
The state of Faith in a State of faith: Poland’s Stance on Religious Neutrality
Europe has always been diverse in terms of religion, with this diversity deeply rooted in its history. The Central and Eastern European (hereinafter: CEE) region exemplifies this, being historically and geographically influenced by various religious traditions. These religions and beliefs have had a great impact on our state’s present and the views of its citizens, even on democracy, which is enshrined in several human rights documents, such as Article 9 of the European Convention on Human Rights (hereinafter: ECHR) declare: “Freedom of thought, conscience, and religion is the foundation of a democratic society”, also in the EU Charter of Fundamental Rights (hereinafter: Charter) Articles 10 and 22. However, as research shows, neither the European Court of Human Rights (hereinafter: EctHR) nor the Court of Justice of the European Union (hereinafter: CJEU) had a common, frequent practice before the 90s. Secularism defines many European countries—in this sense the most “radical” approach is in France—, but we can find other approaches in the legal theory and practice, highlighting that secularism does not also mean neutrality. The concept has become a central “golden thread” in religious freedom and discrimination rulings by the ECtHR and the CJEU, extending its influence across both the public sphere and the private employment sector.
An important question arises: how does the Polish state in the CEE identify itself in its constitution, and how does it approach religion in its national identity? This article aims to review the practices of constitutional interpretation in Poland, concerning international standards, particularly the ECtHR.
What do we understand by “thought,” “conscience,” and “religion”?
To understand the problem of neutrality and secularism, we need to understand or outline what we in the European socio-cultural environment as such mean by these concepts or notions. These terms are not defined under Article 9, nor in the constitutions of the member states, and are therefore interpreted broadly, or in other ways suggest a wider scope for the Article, not limiting convictions to only for example religious belief. In the case of Campbell and Cosans v. the United Kingdom, the Court gave a more handleable understanding of what the mandatory, minimal standards to reach for when describing something as belief, where the ECtHR said: “attain a certain level of cogency, seriousness, cohesion and importance.” This meansthat neither mere ideas nor opinions can constitute a belief.
To define or understand the concept of religion under European law, we can find that it is interpreted broadly as well. However, the case law of the ECtHR indicates a more narrowed approach. Following the practice of the ECtHR, we can declare that the Court interpret the following:
- The greater religions (such as Christian denominations of many kinds, Islam, Judaism, Hinduism, etc.)
- Smaller religious views (Jehovah’s Witnesses, Afro-American religions)
- Partially religious views (Scientology, spiritualism)
- Rejecters of supernatural beliefs (atheists, agnostics)
- Value system (such as veganism, pacifism)
The idea of a neutral state, the concept of neutrality
In recent years, secularization processes have accelerated, leading to a decline in the number of individuals who identify as religious. Despite this trend, religions continue to have an undeniable impact on cultural identity. In parallel, the concept of the neutral state has gained increasing relevance in the legal practice of the European Court of Human Rights (EctHR). However, its precise definition and implementation remain somewhat unclear. In the following, we will distinguish between secularism and the neutral state and explore how the Religious Neutrality Requirement (RNR) doctrine has become so significant in contemporary legal discourse.
Religious neutrality is an important issue that engages constitutional lawyers, as religious diversity is a significant phenomenon across Europe. While the religious background and history of each nation deeply define its identity, they also represent its national and cultural heritage. “One often-affirmed element of the liberal secular ideal is the view that the state should not take a position on the truth of any particular religion.” However, as Schanda expresses: “freedom of religion and the relation between the state and church is still a relevant question relating to the identity of a state”. We could also reference Giovanni Bonello’s concurring opinion in the Lautsi v. Italy case, where the Maltese judge of the EctHR remarked: “A court of human rights cannot allow itself to suffer from historical Alzheimer’s.” If we examine the Constitutional Courts’ practices in the CEE region, we find that in Hungary, an important case already defined the relationship between the state and the churches during the Sólyom era[1], the well-known 4/1993 CC Decision, which stated that: “From the fact that the state itself is neutral, negative religious freedom does not follow, and even less so the support of religious indifference.”
In the Kokkinakis case, the European Court of Human Rights (EctHR) described religious diversity as a fundamental characteristic of a democratic society. Despite the diversity (or precisely because of it) in church-state relations among member states, over the past 25 years the Court, albeit slowly, has gradually provided this principle with an autonomous (sui generis) normative content. Alongside the routine invocation of the broad margin of appreciation afforded to states, the case law seems to have solidified the requirement of state neutrality.
As Renáta Uitz points out, the identifiable source of the requirement of state neutrality initially
consisted of a series of simple prohibitions:
1. The state cannot judge the legitimacy of religious doctrines,
2. it cannot criticize religious doctrines and teachings,
3. and it cannot align itself with the teachings of a particular religion or church.
4. Over time, this was expanded to include the prohibition of religious indoctrination,
closely linked to the prohibition of coercion.
In connection with the Hungarian church law reform (Hungarian Christian Mennonite Church), and later with the restrictions on the rights of the Alevi Muslim community living in Turkey (Izzettin Dogan), the EctHR closely intertwined the protection of religious freedom, the prohibition of discrimination, and the requirement of state neutrality. From the current case law, it appears that a neutral state cannot make arbitrary distinctions between individuals solely on the basis of religion. At first glance, there seems to be a close connection between the prohibition of discrimination and neutrality. It is also possible that the prohibition of arbitrary state action is related to another fundamental principle of the ECHR, the rule of law.
It is Important to understand the position of Eastern European countries that lies in the lasting effects of over 40 years of communist rule. As Katarzyna Zielińska explains, “To the West, human rights are inherent in the individual person; it is the duty of the State to sustain them, and only to impose such limitations as are necessary in order to safeguard the equal rights of others. To the communist East, it was fundamentally wrong, since it makes the individual supreme in significance, and the State secondary.”
Polish(ed) Neutrality:
The preamble of the Constitution of the Republic of Poland states: “Both those who believe in God as the source of truth, justice, good and beauty, As well as those not sharing such faith but respecting those universal values as arising from other sources.”
Poland played a significant role in the regime changes across Eastern Europe. The impact of the Solidarity Movement is undeniable, and even more so because Poland remains one of the most Catholic countries in Europe. A public poll conducted in the late 1990s revealed strong societal support for universal human rights. According to the survey, 94% of respondents believed that every individual in Poland is entitled to human rights. While 56% felt that human rights were respected in the country at the time, only 9% expressed complete certainty about this. When asked to identify the most important rights, 54% of respondents highlighted the right to privacy, followed by 47% who emphasized the right to freedom of religion and conscience.
However, more recent polls from 2010 confirm the generally positive perception of human rights in Poland. A substantial percentage of Poles (52%) ranked human rights as the most important value, placing it above other priorities such as respect for human life (38%), peace (44%), and democracy (19%).
The quote from the preamble of the Polish Constitution reflects the country’s historical connection to Christianity, while Articles 25 and 53 regulate the relationship between the state and churches, ensuring freedom of conscience and religion, and it also lays down the impartiality of public authorities in matters of religious and philosophical beliefs.
However, the question arises as to whether this meets the religious neutrality requirement (RNR) or not. But, RNR concerns only religious neutrality, which is narrower than liberal neutralism per se. Although, religious symbols and their understanding are deeply connected to the country’s history, as well as its social and cultural background. For example, the Christian cross became a symbol of identity, sovereignty, and tradition in addition to its basic, religious meaning in Poland. This is indirectly supported by the wording of the Constitution of the Republic of Poland. The Sejm of the Republic of Poland underscored this connection in a special resolution in 2009, stating, among other things, that “the sign of the cross is not only a religious symbol […] but in the public sphere, it serves as a reminder of the readiness to sacrifice for another human being. It embodies values that foster respect for the dignity of every human being and their rights.” “In difficult times, during the partitions and occupation […], the cross became a symbol not only of Christianity and its values but also of longing for the Homeland.”
Neutrality and/or impartiality in Poland
As Dariusz Dudak explains, the Constitution uses the concept of impartiality in two other contexts—excluding the one in Article 25(2), which pertains to religious matters—, and in Article 45(1), which addresses judicial impartiality, as a fundamental attribute of the right to a fair trial and due process, serving as a constitutional indicator of the judicial system and the status of judges. As well as Article 153(1), which mandates that the civil service operating within government administration must ensure the professional, reliable, impartial, and politically neutral execution of state functions. Dudak defines impartiality as follows:
“Simply put, it refers to an objective, unbiased approach that measures with equal standards while respecting the principles of egalitarianism and objective justice, without favoritism or discrimination. The opposite of impartiality is not any form of differentiation, but rather differentiation that arises from bias, that is, from pre-accepted preferences or prejudices.”
To understand neutrality, following relevant Polish literature, we have to separate and explain the difference between the neutrality of authorities toward religion in both a closed and an open sense. Neutrality, in a closed sense, involves the complete removal of all expressions of religious beliefs from public life. In contrast, contemporary doctrine emphasizes the impartiality (or neutrality) of public authorities in an open sense, which allows for the acknowledgment of religious beliefs while maintaining a fair and unbiased approach.
As Dudak asks the question, “Can legislation and public authority actions remain completely indifferent to religious, worldview, and philosophical questions, which are generally intertwined with each other and, importantly, with a specific ethical system that evaluates human actions in terms of good and evil?”
In line, with the mentioned Constitutional Court of Hungary Decision, Dudak’s answer is deeply similar: “The answer is no. It would be incorrect and misguided to interpret the requirement of impartiality in a way that leads to relativism and a value-free nihilism of the state, and to completely exclude, for example, religious matters from the scope of decision-making or legal authority”
The Polish Constitutional Court stated in the Constitutional Court’s judgment of 8 June 2011 (case ref. K 3/09), inter alia, that “the regulations on the institutional position of churches and religious associations, as contained in Article 25 of the Constitution, were given by the Constitution framers the form of a systemic principle.” In a brief description of the principles that compose the Polish model of relations between the state and religious associations, one should follow their systematics as adopted by the Constitution framers. Article 25(1) sets out the principle of equal rights of churches and other religious associations, which is a complement and a determination of the principle included in Article 32 of the Polish Constitution (equality before the law), as emphasized several times by the Constitutional Court in its jurisprudence.
The question of RNR appears for example in cases relating to education, hence educational neutrality has more and more relevance in an increasingly—religiously—diverted society. As such, Poland’s Constitutional Court has dealt with numerous cases involving religious symbols, particularly crucifixes in public schools, and the court generally upheld the presence of these symbols, arguing that those reflect the country’s cultural heritage.
[1] The era is named after the first President of the Constitutional Court of Hungary following the regime change.
Soma BÁCSFALVI is a final year Msc student of law at the Faculty of Law and Political Sciences of the University of Szeged, Hungary, but has also studied at the Université Catholique de Louvain and is a former student of the European Academy of Public Law. He was a scholarship student of the Aurum Foundation. As a former intern with the presidential cabinet of the Hungarian Constitutional Court and the National Assembly, his researches focuses on the interconnections of national constitutional law and European public law, in particular on the rule of law and its manifestations in the European Union.