The freedoms of thought, conscience, belief and religion are regulated jointly in one fundamental right. It is laid down not only in one single law, but is guaranteed in several laws and fundamental rights catalogues (which underlines its great importance):
- in the European Convention on Human Rights of 1958
- in the Charter of Fundamental Rights of the European Union of 2010
- in the State Fundamental Law on the General Rights of Citizens of 1867, which is still in force today.
For Austria, this fundamental right was supplemented and expanded by the Peace Treaty of Saint Germain after the First World War and by the State Treaty of Vienna after the Second World War.
Rights of individuals and of groups
The freedoms of thought, conscience, belief and religion safeguard the freedom of the individual person. At the same time they safeguard the freedom of groups to found religious communities and to determine, organize and develop their internal affairs.
The freedoms of thought, conscience, belief and religion are a human right and not only a right of citizens. This means that they can be invoked by all individuals or religious groups staying or residing in Austria – no matter where they come from or whether they hold a citizenship or are stateless.
The freedom of religion in the legal system
Religious freedom belongs to the group of those fundamental rights which promote and guarantee intellectual and cultural freedoms. It is closely related in particular to the freedom of expression, the right to education, the right to private and family life, the freedom of science and the arts. All cases dealing with religious freedom that were a subject of public debate or were decided by the courts during the past few years did not only concern the exercise of religion, but also matters of school, education, customs and traditions.
Such matters included for example the crucifix in schools, the Muslim headscarf, the „Muhammad cartoons“, the circumcision practised in Judaism and Islam, and the slaugthering of animals according to Jewish or Muslim rites.
These examples show that different fundamental rights may be in conflict. And the question arises which fundamental right shall in a particular case be accorded primacy over another.
Is it, for example, reasonable to expect non-Christians and atheists to tolerate the presence of a crucifix in office rooms when official acts are performed? Whatever the Muslim headscarf may symbolise, it is a garment whose use is a matter of a person’s private lifestyle; and the state is not allowed to regulate a person’s private life. The protection of the inviolability of an individual’s body is rated lower, in terms of a legal asset, than the millennium-old religious practice of circumcision, as long as it complies with the respective medical standards. Or: Animal protection – though well understandable as such – is ranked second when in conflict with the religious practice of killing animals in accordance with religious food rules, as long as the practice is carried out by a person competent in this matter. Cartoons are, as a rule, products of art. But the arts and sciences may normally not be restricted on grounds of religious concerns.
Religion therefore has additional dimensions: It impacts on a person’s way of life and has to do with social relationships and cultural traditions. A fundamental right to culture is not part of the Austrian legal system. The freedom of religion therefore also safeguards elements of individuals‘ self-definition and of their cultural and religious attitudes.
Religious freedom and European history
The fundamental right of religious freedom has a long history that is fraught with conflicts, as religion was over centuries a factor in the European struggle for power. In bloody wars and conflicts, persecutions, expulsions and expropriations, religion was always used for political purposes, and violence was committed in the name of God, of „true religion“ and of the „legitimate church“.
This fundamental right, however, also became a forerunner of religious, social and political pluralism in Europe. Looking at its history, one can see the individual stages which led to a spirit of tolerance and acceptance of pluralism in European countries – long before the Age of the Enlightenment and the French Revolution of 1789.
In the Religious Peace of Augsburg, also called the Augsburg Settlement, of 1555 it was laid down that the ruler could determine the religion of his subjects. Non-conformists either had to emigrate or to convert, but it was the first time in history that they could choose.
The Peace of Westphalia, concluded in 1648, which ended the Thirty Years‘ War, ushered in – despite numerous setbacks caused by expulsions and expropriations – a development during which religious convictions began to enjoy some sort of protection throughout Europe. It was based on the recognition of the equality of all individuals (which referred, however, only to Christians) in their capacity as believers of the gospel and members of a church.
The step towards general and political equality was made at the end of the 18th century. In the 19th and 20th centuries, equality became a reality in numerous respects (see the text on Equality of Rights).
Basis and guarantee of pluralism
What is true of all fundamental rights is also true of religious freedom: It is the basis of religious pluralism – in its absence it would not be possible for individuals in a state to live their respective faiths. At the same time, religious freedom is the guarantee of pluralism. For state religions or for confessions claiming absolute religious truth, religious pluralism was therefore at first unacceptable.
It often took a long time for this fundamental right to become accepted. The Roman-Catholic Church, for instance, recognized pluralism only through the resolutions adopted at the Second Vatican Council in the 1960s. The respect for all fundamental rights has contributed to the respect for others, to the recognition of plurality and to peace between peoples, minorities, ethnicities and confessions.
Religious freedom in detail
Religious freedom means the right to freely choose and to freely and publicly manifest (e.g. in official documents, in Corpus Christi processions) a religion, confession or denomination. Religion may be called in question. There is no need for an individual to adhere to his or her confession once and forever.
Religious freedom also means the right to practice one’s faith alone or in community with others, in private or in public. This may take the form of divine service, religious ceremonies, worship and meditation, instruction (e.g. religious instruction at schools, educational institutions operated by denominations), but in particular observance of religious rites and religious feasts. This is what is referred to by the technical term „positive religious freedom“.
However, religious freedom is not unlimited. It may be regulated and also restricted by democratic legislation, in particular in the interest of public security and order, of health and to safeguard of the rights and freedoms of other individuals.
Religious freedom moreover includes the right to choose, manifest or practice no religion, to suffer no inconvenience through the religious practice of others, and to remain free of compulsion to perform religious acts. Exceptions are possible only for persons under legal parental care (based on the fundamental parental right) or under court-appointed guardianship. This „negative freedom of religion“ includes the right to leave or change one’s religion or confession at one’s own choice. The procedure of leaving a church or religious society is, by the way, regulated by the state, which is to protect against any pressure that might be brought to bear by the respective religious community or by the family.
Freedom of belief
Beliefs – which include political convictions as well as atheism – have the same legal status as religions. The difference between religion and belief lies in the assumption that religion transcends the human being (i.e. goes beyond his/her immediate experience of the world), and usually also in a „reference to God“. This is precisely the dimension which atheists deny.
Freedom of thought
Die Gedanken sind frei, wer kann sie erraten? ... Kein Mensch kann sie wissen, kein Jäger erschießen. Es bleibet dabei: die Gedanken sind frei! (Thoughts are free, who can guess them? … No man can know them, no hunter can shoot them. And so it will always be: Thoughts are free!), this is the text of an old German folk-song that is part of the collection „Des Knaben Wunderhorn“ („The Boy’s Magic Horn“). That this will continue to be true in the future, that’s what freedom of thought aims to ensure. It has not lost its relevance. In our time, its purpose is for instance to protect against potential measures of authorities which have become possible through latest research results of pharmaceutics and nanotechnology, or against supervision of the internet which makes it possible to create „profiles“ reflecting the opinions and attitudes of individuals.
Freedom of conscience
By the term „conscience“ we refer to the notion that people have of what is good and right and what is bad and objectionable. In our time, freedom of conscience protects for example researchers. They must not be compelled to twist, manipulate, renounce or abjure their opinions or convictions for political reasons. It also protects physicians, who, by taking the Hippocratic oath, had even promised to exclusively serve the lives, wellbeing and health of human beings, but may find themselves induced to act in violation of this oath or – contrary to their scientific and medical convictions – to endorse politically desired results, deny or carry out certain therapies, carry out or refuse to carry out certain surgeries.
Religious freedom in community
From the rule which permits every individual to publicly manifest and practice his/her religion or belief in community with others it follows that public and joint practice of religion may be organized by suitable forms of communities.
In many religions, such as in Judaism or in Christianity, the joint profession and practice of faith plays a central role. This is also reflected in legislation.
For a religious community to be recognized by the state, particular legal procedures must be followed. In Austria, like in many other European states, a religion must first register as a confessional community. This first step may later be followed by a second, which is the recognition as a church or religious society. What is created in both cases is a legal person, i.e. a group which may participate in legal and economic life. In Austria, they have the status of a “public corporation” and as such have a special public responsibility.
To qualify for registration or for recognition, certain criteria must be fulfilled. Confessional communities must, for instance, furnish proof that they comprise at least 300 members who exclusively belong the community in question. They must submit statutes and documents which provide adequate information on the community’s doctrine, practice and organization and must guarantee the respect of public order.
To be recognized as a religious society, a confessional community must have a membership equaling at least two one-thousandths of the Austrian population, and it must have been active in Austria for a period of 20 years, at least 5 of which as a group registered as a confessional community. It must moreover have a positive attitude towards society and the state. For, as it was already laid down in Articles 14 and 15 of the State Fundamental Law of 1867, “the enjoyment of civil and political rights is independent of religious belief”, „duties incumbent on citizens may not be prejudiced by religious beliefs“, and the religious societies „remain subject to the general laws of the state“. Their religious officers must have appropriate education. The community must also furnish proof of its sustainable financial autonomy. It is barred from missionizing among recognized religious societies. Breach of the laws governing religious organizations may lead to the loss of the legal status and even to the dissolution of the religious society.
Communities recognized as churches or religious societies have the right to autonomously regulate their internal affairs. They are free to determine their own organization, to regulate the qualification and assignment of their personnel, to administer their own property and to conclude appropriate legal transactions.
For a list of the religious communities recognized in Austria please click here.