How Should State and Church Interact?

The Jurist 70 (2010) 473–486 473 HOW SHOULD STATE AND CHURCH INTERACT?1 Roland Minnerath* I propose to deal with a subject which suggests a worldwide questioning , yet cannot but receive a local or national answer. I will limit my reflection to the Christian churches and particularly to the Catholic Church. If we had to deal with various religions and the State at large, the question itself should have been rephrased as no other religious group offers a similar paradigm in its self-understanding with respect to the State. I shall proceed in five steps. I. When States and Churches largely differ in appreciating their relationship 1. Speaking of the relation between Church and State makes sense as long as these entities are distinct from each other. Moreover, if we speak of the Catholic Church and the State, we are dealing with two institutions which understand themselves as autonomous legal systems , as sovereign bodies, each one in its own sphere. States may be religiously neutral, support a State religion, or promote a policy of systematic hostility to religion. States may have a centralized or a federal structure. In Germany, for instance, legislation about religious organizations and education belongs to the competence of the Land, and only in a subsidiary way to the federal State. We are now much more aware of the Christian input in matters of religion vis-à-vis the State. It belongs to the nature of Christianity to assemble believers in a community which is distinct from the ethnic or national community. This seems obvious to us today; but at the time when the American experiment begun, almost all the churches in Europe had the status of a State religion. * Archbishop of Dijon, France 1 This is a somewhat adapted version of The Seventh Annual James H. Provost Memorial Lecture given on March 18, 2010 at the Catholic University in Washington, DC. In the context of Islam or Hinduism we would not have such a distinction , as religion and society are not really distinct from each other, the State being legitimized by its compliance with religious norms, religion being the internal link of society. Only the secular State under the rule of law inaugurated by the American revolution has reintroduced in the western world the radical distinction of Church and State and their independence from each other. The rule of law does not overlap, for instance, with the rule of Islamic law, as stressed in the Declaration of Human Rights in Islam (Cairo, 1990), which is built on the principles of the sharia (see art. 24–25). As an example, I may quote the convention passed in 1983/1984 in the form of an exchange of letters between Pope John Paul II and the King of Morocco. We read that the Catholics in this country will enjoy the traditional tolerance of the State, but there is no question of a right to freedom of religion. States have proper norms governing the place of religious organizations in society, ranging from general principles to local legal measures. Each State presents a mix of principles and specific legal measures influenced by history. It is useful to note that States change their philosophy about religion. Since 1948, States have signed international conventions and covenants with binding principles such as individual religious freedom. But these principles are far from being shared and applied by all the signatory States. We should not think that all the states which subscribed to the Universal Declaration of Human Rights of 1948 comply with its article 18. We have become ever more aware of this in the last few decades. The principle of church autonomy in regulating its own affairs was first anchored in a European constitution in 1831 in Belgium. Then it was recognized by Austria in 1867. State churches have no legal autonomy. But separation does not always mean autonomy. In France the appointment of bishops is still submitted to the prior information of the government which may raise objections of a general policy nature. There is an increasing awareness that the State has no competence in religious affairs . Historically, church autonomy has two sources: the non-conformist Protestant communities founding the United States of...