Content

Sophie C. van Bijsterveld, State and Church in the Netherlands in:

Gerhard Robbers (Ed.)

State and Church in the European Union, page 409 - 434

Third Edition

3. Edition 2019, ISBN print: 978-3-8487-5472-4, ISBN online: 978-3-8452-9626-5, https://doi.org/10.5771/9783845296265-409

Bibliographic information
State and Church in the Netherlands Sophie C. van Bijsterveld Social Facts The law and the current situation in the Netherlands are a vast departure from the days of the Constitution of 1801, one of the Constitutions of the turbulent period of 1795 - 1814, which stated that every head of family or independent person of either sex must, upon reaching the age of fourteen, register with a church denomination. Changing denominations at a later date was allowed.1 Currently, both the obligation of church membership as a principle and also the assumption that everyone belongs to a church are obsolete. Insofar as the provision reflects the expression of free choice of religion, and makes an implicit reference to the existence of a variety of religious denominations, it still has a bearing on the present. In the Netherlands, pluralism is a basic characteristic of religious life. Even in the days of the Republic of the United Netherlands, with its established Reformed Church and privileges for its adherents, a variety of denominations existed. The Union of Utrecht of 1579, the basis of the Confederacy, guaranteed freedom of religious conviction and outlawed inquisition. Public worship was restricted, though in the course of time it was practised with an increasing openness. An atmosphere of toleration was fostered. Even in the early days of the nation's history, minority religions were a part of the societal pattern. Religious variety continued and increased after the Kingdom of the Netherlands was founded in 1814, though in a different legal context. Separations from the Reformed Church and later on from its newer branches took place, resulting in a wide variety of Reformed denominations. From the late 19th century onwards, new church denominations emerged, including Pentecostal churches, Evangelical churches and the Salvation Army. Philosophical movements based on nonreligious spiritual belief became structured organisations, most notably following the Second World War. Immigration has led to an influx of adherents of Christian churches I. 1 Art. 12 Staatsregeling des Bataafschen Volks 1801. 409 organised on a national or ethnic basis, as well as adherents of non-Christian religions. In addition to religious diversification, secularisation has also become entrenched in society. Over the years, a distinct decline in church membership has become apparent. This phenomenon first became noticeable in the 1880s. It halted after the 1930s.2 The period of the 1960s once again showed a further decline in church adherence. The decrease of Church membership has continued. The first two decades of the 21st century again show a sharp decline in Church membership. Initially, the large churches suffered from loss of membership. The main Reformed Church was confronted with this development early on. The Roman Catholic Church followed somewhat later. The extent to which smaller Christian denominations were affected by decline in membership varied. It seems that the traditional Christian denominations encountered membership decline, whereas the relatively new branches of the Reformed Church remained fairly stable. Until recently, the demographic spread of religious denominations within the country was a stable one. Notoriously nonreligious areas in the country could also be outlined. Increased mobility and the general decline in church adherence have profoundly altered the picture.3 In the 1980s and 1990s, about a third of the population could be reckoned to adhere to various mainstream Protestant denominations, a third of the population to the Roman Catholic Church, and a third of the population to either other, smaller denominations or no religious denomination. In the latter category also the relatively small percentage of Muslims was included. In only a short period of time, much has changed. Surveys over the first two decades of the 21st century show a steep decrease of church membership in the Christian sphere. By the end of 2004, membership of the mainstream Protestant church was about 13% of the population; of the Roman Catholic Church 28%. By the end of 2015, membership of the mainstream protestant church was 10%; of the Roman Catholic Church 23%.4 No solid information is available about the percentage of Muslims in the Netherlands. In 2018, the percentage of Muslims of various national 2 H. Knippenberg, De religieuze kaart van Nederland, Assen 1992, p. 227, p.230. 3 See H. Knippenberg, op cit; and Hans Schmeets, De religieuze kaart van Nederland. 2010-2015. Den Haag: CBS [Central Bureau of Statistics] december 2016, also available at < https://www.cbs.nl/nl-nl/publicatie/2016/51/de-religieuze-kaart-van-n ederland-2010-2015 > (last accessed on September 30, 2018). 4 See < https://www.ru.nl/kaski/onderzoek/cijfers-rooms/virtuele_map/katholieken/ > (statistics on the Roman Catholic Church) and < https://www.ru.nl/kaski/onderz Sophie C. van Bijsterveld 410 backgrounds was estimated at 6% of the population;5 the percentage of Hindus and Buddhists in 2015 at 0,6% and 0,4% respectively.6 Immigration over the last few years has increased significantly. The number of immigrants per year over the last number of years shows a steadily and strongly increasing line. The number of immigrants in 2015 was 203,000; the expectation for 2016 at that time being 240,000.7 There are no signs that the number is decreasing. However, precise numbers are not available. The total number of the population in 2017 was over 17 million.8 Historical Background The Constitution of 1814 established the Kingdom of the Netherlands, a decentralised unitary state. This Constitution formed a renewed starting point for church and state relationships. At the time of its enactment, it was clear that the idea of an established church belonged to the past. Nevertheless, the 1814 Constitution did not contain all the prerequisites for separation.9 In its general realisation of democratic principles and the rule II. oek/cijfers-overige/ > (statistics on other Churches) (both last accessed on September 30, 2018); see also, Ton Bernts Joantine Berghuijs et.al, God in Nederland. 1966-2015, Utrecht: Ten Have 2016. For longitudinal CBS statistics, see < https://op endata.cbs.nl/statline/#/CBS/nl/dataset/37944/table?ts=1538296900708 > (last accessed on September 30). For developments in the religious domain, see also Joep de Hart, Zwevende gelovigen, Amsterdam: Bert Bakker 2011; and Joep de Hart, Geloven binnen en buiten verband. Godsdienstige ontwikkelingen in Nederland, Den Haag: SCP 2014. 5 See Willem Huijnk, De religieuze believing van moslims in Nederland. Diversiteit en verandering in beeld, Den Haag: Sociaal en Cultureel Planbureau 2018, p.6; also available at < https://www.scp.nl/Publicaties/Alle_publicaties/Publicaties_2018 /De_religieuze_beleving_van_moslims_in_Nederland > (last accessed on September 30, 2018. See also, < https://nos.nl/artikel/2163084-het-aantal-moslims-stijgt-ma ar-met-hoeveel.html > (last accessed on September 30, 2018). 6 See Hans Schmeets, op cit, p.5; Schmeets estimates the percentage of Muslims in the Netherlands slightly lower than other sources. 7 See < https://www.cbs.nl/nl-nl/nieuws/2015/51/bijna-kwart-miljoen-immigranten-v erwacht-in-2016 > (last accessed on September 30, 2018). This number includes asylum seekers, immigration through family unification, and immigration from other EU-countries. Emigration is not included. 8 See < https://www.cbs.nl/nl-nl/visualisaties/bevolkingsteller > (last accessed on September 30, 2018). 9 Sophie van Bijsterveld, State and Religion. Re-assessing a Mutual Relationship, The Hague/Portland: Eleven International Publishing 2018. State and Church in the Netherlands 411 of law, the 1814 Constitution was bleak compared to its more progressive predecessors. Subsequent Constitutions, starting with that of 1815, further continued in the line of development that had already been established. Although there are some clear breakpoints, the overall constitutional development has been an evolutionary one, and this is true also with respect to church and state relationships. The chapter on religion in the 1814 Constitution was concerned with church and state, rather than with the individual's freedom of religion. The Constitution, and even more so its 1815 successor, did in essence contain the idea that the state should not interfere with church organisation. In practice, however, the Crown was still actively involved in church matters. This situation would change in the latter part of the century. The revision of the Constitution of 1848, initiated under the pressure of the revolutionary developments abroad, further shaped constitutional government. Various new fundamental rights were adopted, such as freedom of association and education. The chapter on religion was modernised. The 1848 revision prompted the Roman Catholic Church to restore its hierarchy in the Netherlands. This was effected in 1853. In that same year the Religious Bodies Act [Wet op de kerkgenootschappen] was enacted. Its main merit was the explicit formulation of the freedom of internal organisation of the churches. This Act remained to be in force until 1988. At one point the 1848 Constitution proved to be restrictive. A new article was adopted which allowed religious processions only in situations where express permission had been given. As such permission was rarely granted, the result was a de facto ban on processions. The arrangement is illustrative of the somewhat tense relationships between the adherents of the various religious denominations at the time. It must be realised, however, that the general law with respect to meetings in the open air at that time was limited even by modern standards. The period which followed was basically one of consolidation as far as institutional relationships between church and state were concerned. Major issues in the debate between church and state concerned the system of poor relief and that of education. A milestone was the revision of 1917 which prescribed full government funding for private elementary schools which complied with set educational standards and with given financial conditions. From 1848 till 1972 the chapter on religion remained unchanged. The 1972 revision enabled the government to buy off its traditional obligations with respect to salaries and pensions for church ministers. This was realised in 1983. These obligations went back to the late 18th century and Sophie C. van Bijsterveld 412 originally served as compensation for the loss of church property through government expropriation. The year 1983 saw a general revision of the Constitution. The revised Constitution incorporated new fundamental rights including a wide range of social rights. It provided a renewed formulation of fundamental rights which were already protected. Fundamental rights are contained in the first chapter of the Constitution. In order to guarantee optimum freedom, a strict and quite clearly defined system of restrictions of fundamental rights was introduced. The 1983 Constitution brought a new formulation of freedom of religion. As of 1983, freedom of nonreligious belief is also protected by the Constitution. Subsequent partial amendments of the Constitution have nor affected the formulation of the freedom of religion. Religious motivation – together with political persuasion – has been a driving force for the organisation of social activities. Schools, hospitals, trade unions, employers' organisations, broadcasting companies and other social institutions were and are organised on a denominational basis.10 In the early process of development of political parties, religion played a role as a basis of organisation.11 Basic Structure Legal sources Sources of (constitutional) law in the Netherlands are the Statute of the Kingdom, the Constitution, further legislation, court decisions, legal custom or precedent, and European and international law. For the determination of legal relationships between church and state, each of these sources has its significance, albeit to a varying degree.12 The most significant sources of law for church and state relationships will be highlighted below. The basis of church and state relations in the Netherlands is found in the Constitution of 1983. The 1983 Constitution replaced the former chap- III. a) 10 On this process, its origins and significance, see A. Lijphart, The politics of accommodation. Pluralism and democracy in the Netherlands, Berkeley/Los Angeles/ London 1975. 11 A. Hoogerwerf, Godsdienst en politiek, in: H. Schaeffer et.al. (ed.), Handboek Godsdienst in Nederland, Amersfoort 1992, p.303312. 12 The Statute of the Kingdom, which is concerned with the relationship between the Netherlands, the Netherlands Antilles and Aruba, may be disregarded in this respect. State and Church in the Netherlands 413 ter on religion by one article. This article guarantees freedom of religious belief as well as freedom of nonreligious belief. Article 6, section 1, of the Constitution states that "(e)veryone shall have the right to manifest freely his religion or belief, either individually or in community with others, without prejudice to his responsibility under the law". The second section adds that "(r)ules concerning the exercise of this right other than in buildings and enclosed places may be laid down by Act of Parliament for the protection of health, in the interest of traffic and to combat or prevent disorders". Although Article 6 does refer to various manifestations of religious freedom, it is not very specific about the subject matter of its guarantee. Nevertheless, the guarantee in Article 6 is meant to be wideranging.13 At the time of the revision, it was accepted that Article 6 not only protects the freedom to have a religious or nonreligious belief, but also the freedom to act according to that belief. The clause "without prejudice to his responsibility under the law" of the first section means that only the national Legislature is competent to restrict the guaranteed right. It gives, however, no clear indication of the concrete criteria to be met. The purpose of the second section is to allow delegation by the national Legislature of the power to restrict the guaranteed right in so far as it concerns the exercise of religion or nonreligious belief other than in buildings and enclosed places, and only for the purposes mentioned. The courts have slightly modified the strict system that the Constitution introduced concerning the competent authority for restricting fundamental rights. The way this is done is, generally speaking, satisfactory. On the basis of Article 6 (and 9) of the Constitution, the Public Manifestations Act [Wet Openbare Manifestaties] was enacted. This Act regulates, among other things, religious manifestations outside buildings and enclosed places, including religious processions. Apart from Article 6, other articles refer to religion. Article 1 of the Constitution states that all persons in the Netherlands shall be treated equally in equal circumstances. Furthermore, it does not permit discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever. A specific reference to religion can be 13 See Sophie van Bijsterveld, op cit; and, Sophie van Bijsterveld, Godsdienstvrijheid in Europees perspectief, Deventer: W.E.J. Tjeenk Willink 1998; S.C. van Bijsterveld en B.P. Vermeulen, Commentaar op artikel 6 van de Grondwet, in E.M.H. Hirsch Ballin en G. Leenknegt (red.), Artikelsgewijs commentaar op de Grondwet, webedition 2013 (www.Nederlandrechtsstaat.nl). Sophie C. van Bijsterveld 414 found in Article 23 which relates to education. It guarantees freedom of (denominational) education. With respect to public-authority education, it prescribes equal treatment and respect for everyone's religion or belief. The Constitution entails no general guarantee of freedom of conscience.14 Although the Constitution is higher in the hierarchy than parliamentary legislation, the courts are denied the power of review.15 In interpreting the constitutionality of parliamentary legislation, the Legislature itself has the final word. The Courts only have the right to review legislation other than parliamentary legislation as to its compatibility with the Constitution. However, the Constitution prescribes that the courts may review the compatibility of any legislation – including parliamentary legislation and even the Constitution itself – with provisions of treaties that are binding on all persons or of resolutions by international institutions.16 Thus, Article 9 of the European Convention on Human Rights (ECHR) and Article 18 of the Covenant on Civil and Political Rights (CCPR) may be invoked in court procedures relating to religion. The courts, notably the Supreme Court (Hoge Raad), however, are reluctant to uphold challenges. In a remarkable ruling in 1962, the Supreme Court held that the – then still existing – constitutional ban on religious processions was compatible with Article 9 ECHR.17 The Supreme Court interpreted its power of review in a restrictive way. The same was true of its interpretation of Article 9 ECHR itself. Recently, the Supreme Court has adopted a more active approach in reviewing legislation. The cases concerned did not involve religion. The general administrative court seems to have taken a more liberal view from the start.18 In the present Constitution, the church as an organisation is no longer mentioned. Likewise, financial relationships between church and state find no explicit basis in the Constitution. But it should not be concluded from this that the Constitution has no relevance in these areas. On the contrary, freedom of church organisation is an essential element of the guarantee of freedom of religion. The Constitution does provide a framework for understanding financial relationships between church and state. Further institutional guarantees are necessary. The same is true for ensuring the 14 Art. 99 Const. provides the basis for acknowledgment of conscientious objection against military service. This has lost practical meaning as drafting no longer takes place. 15 Art. 120 Const. 16 Art. 94 Const. 17 HR 19 January 1962, NJ 1962, 107. 18 Vz.ARRvS 1 May 1981, AB 1982, 28; ARRvS 20 December 1981, AB 1983, 243. State and Church in the Netherlands 415 free exercise of religion individually or in community with others. Exposition of these freedoms by the Legislature is required to secure the guarantees in the various specific areas of the law. Treaties between church and state are not a normal feature of the law. A special event was the agreement reached in 1983 between the state and the respective churches concerning the termination of the traditional government obligations with respect to salaries and pensions of church ministers. This agreement was subsequently confirmed by Act of Parliament. Legal doctrine is relevant for the development of church and state relationships, though in itself it is not a source of law. Religion may play a role in legal relations between private individuals. The law is responsive to this. At the time of the general revision of the Constitution, it was explicitly acknowledged that fundamental rights not only function in relation to public authorities, but that they may have relevance for legal relationships between private individuals as well. Aspects of these relations may be determined in general by the intervention of the Legislature. More often, the courts have to balance interests in concrete cases on the basis of an interpretation of general concepts of civil law. Categories of system approach The system of church and state relationships is characterised throughout as one of separation of church and state. This principle has never been formulated in the Constitution or in any further legislation. Nevertheless, it does play a role and is referred to in the legislative process, in administration and in court decisions. The principle has a clear significance in the organisational independence of the church and has relevance for the financial relationship between church and state. Likewise, it has implications for the equal position under the law of the various denominations and for the attitudes towards denominational and nondenominational movements. Its precise meaning, however, is not easy to define. The separation of church and state is not a "strict separation" in the sense that church and state should have nothing to do with each other. Such an idea would not be in keeping with social and political realities. Nor is it to be understood as a church hostile principle. In its actual functioning it is best understood by the interpretation of the constitutional provisions in which the principle is embedded as current law against a background of the historic development. This means that the principle of separation of church and state must be interpreted in harmony with the principle of state neutrality and of freeb) Sophie C. van Bijsterveld 416 dom of religion or belief as reflected in the Articles 1 and 6 of the Constitution, separately and taken together. In this instance, it is also interesting to notice that current fundamental rights doctrine acknowledges that classic liberal rights may induce positive government action under certain circumstances in order to secure the actual functioning of that right. This applies equally to freedom of religion. Neither the principle of separation of church and state nor its constitutional expression gives a blueprint for the precise relationship between church and state. It must also be realised that guarantees which in a given period may be seen as necessary for ensuring separation, whether on the side of the church or on the side of the state, may eventually become unnecessary.19 With the development of law and society, new safeguards may, however, become necessary. Thus, the fundamentals on which the relationship between church and state are based need continuous interpretation and explication. Legal Status of Religious Bodies Legal status of religious bodies The church as an organisation is no longer mentioned in the Constitution. Nevertheless, the church is protected under the Constitution, as is its freedom to organise itself. Obviously, freedom of church organisation needs explication within the framework of law. The basic expression of the status of the church as an organisation is to be found in the law relating to legal entities. Churches are legal entities of civil law. The Civil Code recognises churches as legal entities sui generis. Thus, their status as legal entities is distinct from that of other legal entities such as associations or foundations. Whereas the Civil Code defines the structures of the various types of legal entities, shaping their internal legal order is the sole province of the churches themselves. The Civil Code merely states that churches are governed by their own statutes in so far as they do not conflict with the law.20 IV. a) 19 Sophie van Bijsterveld, op cit (2018), Chapter 9. 20 Art. 2:2 Civil Code [Burgerlijk Wetboek]. The precise content of the clause is debated. See J.J.M. Maeijer, Rechtspersoon, godsdienst en levensovertuiging, Mededelingen der KNAW, Afd. Letterkunde, Amsterdam 1986. State and Church in the Netherlands 417 As a consequence of the autonomy of the church with respect to its organisation, the Civil Code also exempts the churches from its general provisions which are applicable to all types of legal entities. Analogous application of these provisions is allowed, in so far as this does not conflict with the churches' statutes or with the nature of their internal relations.21 Although the latter clause is not clear-cut, it does express the priority of church law over the civil law in this field. The current tendency in favour of analogous application is best illustrated by the decision of the Supreme Court which held that analogous application should be the starting point for rulings in this field.22 Neither the Civil Code nor any other piece of legislation provides a definition of a "church". It is the organisation that constitutes itself as a church which determines this. In concrete cases, the administration may have to decide on this issue, and, in cases of conflict, the court may have to do so. In a case which did involve a dispute on the nature of the organisation, the court formulated the minimal requirements that there must be a "structured organisation" and that "religion must be involved".23 There is no system of prior recognition of churches. However, mechanisms of recognition can be found in specific areas, such as that of state funded spiritual care in public institutions, or state funded faith-based education.24 Religious communities may organise themselves differently from a church, notably as an association or foundation under civil law, in which case the normal civil law regulations apply. Non-Christian religious communities often choose these forms of organisation.25 The concept of Church in law and the right to self-determination The legal status of the church as described above also applies mutatis mutandis to independent units within churches as well as bodies in which churches are united.26 Thus, the law is equally receptive to church strucb) 21 Art. 2:2, section 2, Civil Code. 22 HR 15 March 1985, NJ 1986, 191. 23 HR 31 October 1986, NJ 1987, 173. 24 See Sophie van Bijsterveld, op cit (2018), Chapter 4. 25 See S.C. van Bijsterveld, Religious minorities and minority churches in the Netherlands, the legal context, in: European Consortium for Church and State Research, The Legal Status of Religious Minorities in the Countries of the European Union, Thessaloniki/Milano 1994, p. 277298. 26 The latter category has been added in 1992, but in fact it was already recognised. Sophie C. van Bijsterveld 418 tures based on a central, hierarchical church concept, and to decentralised church models. Neither of these categories is defined by the law. As to bodies in which churches are united, the requirement of a "distinctive incorporation in church law" was formulated during the process of enactment.27 Furthermore, the will to constitute a legal entity of that type is an essential condition. Councils of churches and other forms of cooperation between churches will usually not be regarded as such. As to independent units of churches, the intent of the church is a formative condition. The way in which the intent should be expressed is not completely clear. Material criteria (what is the organisation occupied with, religious, social, economic activities) as well as formal criteria (what is the formal influence of the church within the organisation) have been suggested as elements which may play a role in determining whether or not an organisation should be qualified as an independent unit of a church.28 In the light of the freedom of church organisation, notably the self-determination of churches, it is important, however, not to set strict criteria. The open character of the legal system itself does not justify strict criteria either. Though churches are free to organise certain areas of their activities as independent units, there is in fact a long tradition of organising activities in the field of social, cultural and educational matters as normal associations or foundations on the basis of a religion or belief.29 These organi- 27 Kamerstukken II, 19821983, 17 725, no. 3, p. 53. 28 See e.g. F.T. Oldenhuis, Kerkgenootschappen en hun zelfstandige onderdelen, in: WPNR 5865 (1988), p. 155159. 29 Sophie van Bijsterveld, Religious Liberty and Church Autonomy in the Netherlands, in: Gerhard Robbers (ed.), Church Autonomy. A Comparative Survey, Frankfurt am Main, New York [etc.]: Peter Lang 2001, p. 59-76; Sophie C. van Bijsterveld, Churchrelated, Charitable, NonProfitmaking Institutions and their Relations to Church, State, Civil Society and the Market. The Dutch Experience, European Consortium for Church and State Research, in: Inger Dübeck, Frands Ole Overgaard (ed.), Social Welfare, Religious Organizations and the State, European Consortium for Church and State Research, Proceedings of the Sandjerg Meeting, November 18-20, 1999, Milan 2003, p.137-155. For the relationship between ecclesiastical proceedings and civil court proceedings, Sophie C. van Bijsterveld, Church Autonomy in the Netherlands. The Distinctiveness of the Church. The Interplay between Legal, Popular, and Ecclesiastical Perspectives. Church Autonomy as a ´Test Case, in: Hildegard Warnink (ed.), Legal Position of Churches and Church Autonomy, Leuven: Peeters, 2001, p. 147163; A.H. Santing-Wubs, Geschilbeslechting binnen geloofsgemeenschappen, in: L.C. van Drimmelen, T.J. van der Ploeg (eds.), Geloofsgemeenschappen en recht: Den Haag: Boom Juridische Uitgevers 2014, p.167-193. State and Church in the Netherlands 419 sations may to a greater or lesser extent be linked to a church, which link may be formalised in terms of statutes and regulations. The denominational identity of such organisations is, in general terms, protected by the Civil Code. These organisations are subject to legislation governing their field of activity.30 Within the framework of this legislation, special provisions may be needed to take the denominational aspect into account. The preceding material shows that in its basic arrangement, freedom of church organisation and freedom of organisation on the basis of a religion is respected by the law. Occasionally, however, problems may arise. This is notably the case in relation to legislation which itself is not dealing with issues of church or religion but which may nevertheless affect churches and religion, for example, legislation prescribing democratisation of organisations, data protection legislation or equal treatment legislation. The tightening of state supervision with respect to acquiring the financially important fiscal status of ”public benefit organisation” also for churches and faith-based charitable organisations is a case in point as well. The result for either type of legal entity may not always be satisfactory. In any case, the freedom of the denominational organisations is usually respected to a lesser extent than that of the church as a legal entity – including the independent units and structures in which churches are united. The discussion on the criteria for independent units gains an extra dimension in view of the legal consequences which may thus evolve. Churches and the political system No statutes or case law exist regarding the involvement of churches or members of the clergy in political life.31 Therefore, there is no obstacle to members of the clergy participating in politics or holding public office. Similarly, churches can and do participate in public debate; the extent to which (representatives of) various religious or religious denominations feel inclined to do so varies.32 This is also true for the way in which such participation takes place. In the Netherlands, the churches also cooperate as far as their activities in the public domain is concerned. The Council of Churches in the c) 30 See also below, section VIII. 31 See below, section XI. 32 Henk Vroom, Henk Woldring (eds.), Religies in het publieke domein, Zoetermeer 2002. Sophie C. van Bijsterveld 420 Netherlands is a forum on which Christian Churches of a wide variety of denominations cooperate with a view of developing joint statements and on public policy issues and commenting on public policy. For their joint legal interests, that is, for legal issues with a church-state dimension, including issues of freedom of religion, Jewish communities and Christian Churches cooperate in the Interchurch Contact in Government Affairs [Interkerkelijk Contact in Overheidszaken – CIO] and, for this purpose, maintain contact with public authorities at the national level. These forms of cooperation do not preclude churches from acting on their own behalf in these areas as well. Islamic believers are still in a process of setting up a joint organisation, representative of the various Islamic communities in the Netherlands, for maintaining contact with the state authorities. In addition to this, it is worth noting that various political parties represented in (both chambers of) Parliament have a confessional basis. The most significant of these, that of the Christian Democrats [CDA] is a constant factor in Dutch politics. Apart from the CDA, there are currently, at the national level, two (small) Reformed parties. Churches and Culture At the beginning of the 19th century, the basis was laid for a distinction between public(-authority) education and private education. On the basis of this distinction free private education was advocated as the Constitution gave the government responsibility for public education alone. Freedom of education was subsequently guaranteed in the Constitution of 1848. In the following period, the discussion concentrated on the character of publicauthority schools – notably the place of religion in those schools – and on the (financial) position of private schools. The development with respect to elementary education was trendsetting for other areas of education. The prescription that public-authority education be given "with respect to everyone's religion or belief"33 is to be interpreted as a neutrality clause which requires a positive attitude towards religion. The various education Acts provide that attention must be paid to the different religious values and traditions. Provision is made for religious education in public-authority schools. This instruction is offered on a voluntary basis. Pupils in primary public(-authority) schools, whose parents wish so, are provided with education in a religion or nonreligious belief within regular school time. In V. 33 Art. 23, section 3, Const. State and Church in the Netherlands 421 2017, it was established by Act of Parliament that this education is statefunded at national level.34 Freedom of education comprises freedom to found a school, freedom of denomination and freedom to administer a school.35 Private schools are financed by the state under the condition that they meet certain educational standards and comply with financial conditions. This was laid down in the Constitution of 1917 for general elementary schools.36 Among other things, the Legislature specifies numerical criteria for the foundation of a school. In setting up standards and conditions, the Legislature must respect freedom of denomination and freedom to administer the school.37 The precise range of these freedoms and the powers of the Legislature with respect to these freedoms are subjects of ongoing discussion. Private (denominational) schools may set loyalty conditions for their staff with regard to denominational views. Admission of pupils may be subject to such conditions as well.38 In the field of higher education also, a distinction must be made between private universities and public-authority universities. Private (denominational) universities originated at the end of the 19th century. These universities are financed by the state, again subject to the condition that they meet certain educational standards and comply with financial regulations. The faculties of theology of private universities may offer programmes leading to an academic degree as well as programmes for the education of church ministers.39 Apart from these institutions, churches run education centres which are under the financial and administrative control of the church itself. Theological faculties at state universities do not prepare students for the office of church minister as was the case for the ministers in the previously established Reformed Church until 1876. Education for the office of 34 See Jurn de Vries, Sluitstuk van de financiële gelijkstelling. Honderd jaar na de onderwijspacificatie van 1917 ook bekostiging voor GVO en HVO op openbare scholen, in: Tijdschrift voor Religie, Recht en Beleid (TRRB), 2017 (8) 2, p. 66-82. 35 The socalled freedoms of "stichting, richting, inrichting". They are hard to translate. 36 For other schools this finds application too. 37 D. Mentink, B.P. Vermeulen, P.J.J. Zoontjens, Commentaar op artikel 23 van de Grondwet, in E.M.H. Hirsch Ballin en G. Leenknegt (eds.), Artikelsgewijs commentaar op de Grondwet, webedition 2013 (www.Nederlandrechtsstaat.nl). 38 Under the General Equal Treatment Act (Act of 2 March 1994, Stb. 230), these powers are to some extent restricted. See below. 39 Some of these universities have only the one faculty of theology. Sophie C. van Bijsterveld 422 church minister rested with the state university and was financed by the state. Other churches established colleges at state universities too, which were also were financed by the state. Religion is also a relevant factor in the field of mass media. Broadcasting time is allotted to broadcasting companies. According to the Mass Media Act, these companies – associations under civil law – represent a specific societal, cultural, religious or spiritual tendency and focus on the satisfaction of the corresponding needs of the population. The amount of time allotted to each company is dependent on the number of members it has. Several of these broadcasting companies have a denominational background. Until 2016 Churches were allotted broadcasting time in the public broadcasting system as well. Labour Law within the Churches In the field of labour law, religion and the freedom of church organisation is taken into account in various ways. The Labour Relations Act, for instance, exempts spiritual offices from the obligation of a public authority permit in the case of the dismissal of the officeholder. The relevance of this provision to church and state relations has been clearly demonstrated in a ruling of the Supreme Court. Initially, an Islamic imam was not regarded as having a religious office. A relevant consideration in reaching this conclusion was the fact that he would otherwise not enjoy dismissal protection. The Supreme Court came to the opposite conclusion and stressed the importance of the provision in terms of church and state relationships.40 The General Equal Treatment Act exempts churches, their independent units as well as the spiritual office, from its application.41 This does not mean that the state exercises no control over labour relations within the church. As was mentioned above, the Civil Code does not prevent courts from applying to churches the general provisions relating to legal entities "in as far as this does not conflict with the churches' statutes and the nature of their internal relations". These general provisions include the right of the court to declare void a decision of a legal entity which is taken contrary to "good faith". The specific case in which the VI. 40 HR 30 May 1986, NJ 1986, 702; see also in this respect – with application of church statutes – Rb. Groningen, 21 December 1990, KG 1991, 90. 41 See also Rb.Den Bosch 11 December 1992 (unpublished). State and Church in the Netherlands 423 Supreme Court accepted this analogous application dealt with a church minister who challenged his dismissal.42 Traditionally, the labour relationship between a church minister and a church is not regarded as a contract of employment under civil law.43 In the field of social security law, a marked change in approach became apparent in a series of rulings by the social security court in 1977. Until then, holders of a spiritual office were not subject to social security legislation as the element of subordination necessary for the application of the law was considered absent. In 1977 it was decided that the fact that the work performed was of a spiritual nature did not in itself exclude the possibility of a contract of employment. The change of opinion resulted in detailed case law which is not always easily accessible. In concrete cases, it has to be decided whether the official performs his work in "subordination", an essential requirement for a contract of employment. Traditional ministries in the church will usually not be regarded as meeting this criterion. In the ordinary civil courts, where dismissals are usually dealt with, categorisations may differ from those in the field of social security law. The Supreme Court concluded with respect to a church minister that he did not have a contract of employment. The perspective of church and state relationships and freedom of church organisation played a prominent role in this decision.44 A test as to whether the work was conducted in subordination, however, was applied. In a case concerning an Imam, the court designated the labour relationship as a contract of employment.45 Labour relations which seemingly take place in an ordinary setting, but in which the church exercises influence in one way or other, such as church ministers working in hospitals or homes for the elderly or other social institutions, whether denominational or not, are usually classed as contracts of employment by the ordinary civil courts. The essence of the employment is the church mission. When the requirements for the spiritual office no longer are fulfilled, which is a matter for the judgement of the 42 HR 15 March 1985, NJ 1986, 191. 43 For an elaborate study on the legal status of the clergy see P.T. Pel, Geestelijken in het recht, de rechtspositie van geestelijke functionarissen in het licht van het eigen recht van de kerken religieuze gemeenschappen in de Nederlandse rechtsorde, Boom Juridische uitgevers, Den Haag 2013. 44 HR 14 June 1991, NJ 1992, 173; the decision was in contrast to the court of first instance and the court of appeal. Lower courts, however, may conclude that a contract of employment exists, e.g. Rb. Breda 3 February 1987, KG 1987, 103; Ktr.Den Bosch 2 February 1988, NJ 1992, 173. 45 HR 17 June 1994, RvdW. 136. Sophie C. van Bijsterveld 424 church, the basis of the contract of employment is gone. Problems do arise when the reason for the church's action is based on grounds applicable to the clergy which would ordinarily not be valid a reason for dismissal, such as (a second) marriage. A similar situation is found in public institutions such as the armed forces and penal institutions. The difference is that in such cases the church minister will have the status of a military or civil servant. In a court ruling concerning a spiritual assistant in a penal institution, it was acknowledged that the church and state aspect played a role in interpreting the applicable civil servant law.46 Denominational institutions with personnel in nonreligious functions apply normal contracts of employment. The identity of the institution may justify specific loyalty requirements. The question is how far can they go. This is mainly a matter of case law, in which the courts balance the various interests. The General Equal Treatment Act sharpens the scrutiny of the courts. Collective labour relations within churches are not well developed.47 Labour conditions are fixed unilaterally. Trade unions in the classic sense of the term hardly exist; various professional groups within the church, however, have organised themselves and are taking part in discussions on labour conditions. Their status in regard to the church authorities varies. Matrimonial and Family Law Just as religion may play a role in relationships between private individuals in general, religion may be a factor of legal relevance within family relations as well. As the legislation which deals with family matters is not specific with regard to religion, the courts decide upon family issues involving religion in concrete cases. In interpreting open legal concepts, courts can take the religious factor into account, without showing a preference for a particular denomination. Legislation does specify the relationship between civil marriage and "religious marriage". The institution of marriage is clearly defined by the Civil Code and outlined in relation to religious procedures. The Civil Code states that it regards marriage only in its civil aspects. Religious ceremonies VII. 46 Rb. Assen 23 March 1993, (unpublished). 47 See P.T. Pel, op cit. State and Church in the Netherlands 425 with regard to marriage48 are not legally binding and cannot take place prior to the performance of a legally valid marriage. Thus, the Civil Code leaves no doubt as to the primacy of civil marriage over religious marriage. The church minister who performs a religious wedding ceremony without having verified the existence of a legally binding marriage is liable to prosecution.49 Discussions about the abolition of the requirement of a prior civil marriage before a religious ceremony with respect to the marriage have not led to any change in the law. Denying legal validity to church marriages is seen as a consequence of the separation of church and state. The justification of the priority in time of civil marriage is to allow no misunderstanding of the legal consequences. The arrangement has been challenged under Article 9 ECHR. In 1971, the Netherlands Supreme Court upheld this system as a justified restriction of religious freedom.50 As of 2002, persons of the same sex can also marry.51 Not all Churches regard same-sex marriages as a marriage in the religious sense and some, therefore, do not allow the performance of religious marriage ceremonies for such relationships. Prior to 2002, the so-called "registered partnership" was introduced in the Civil Code.52 The Roman Catholic Bishops' Conference has determined that the prohibition to marry for its clergy also extends to registered partnerships. In 2014, an Act of Parliament specifically ended the possibility of recognition of conscientious objection of civil registrars against the performance of same sex marriages. Within family relations, conflicts may arise which find their roots in religion; conflicts between spouses or between parents and children. The courts acknowledge, for instance, that religious differences may lead to such estrangement between spouses that divorce is justified. In relations between parents and children, it has been decided that a parental refusal of marriage consent on religious grounds is not acceptable. On the other hand, parents are entitled to deny permission for a passport for their daughter to travel abroad with a boy-friend. Religious convictions or church membership may not be a condition for inheritance. Even when religion itself is not at the root of the conflict, religion can be taken into account. In cases of guardianship, the religious background will be taken into account, especially if so desired. The area is primarily 48 Art. 1:68 Civil Code. 49 Art. 449 Criminal Code. 50 HR 22 June 1971, NJ 1972, 31. 51 See Article 1: 30 Civil Code. 52 See Article 1: 80 ff. Civil Code. Sophie C. van Bijsterveld 426 shaped and influenced by case law. The courts deal with these cases in a satisfactory way.53 Finances of the Churches No general state support to churches exists. Nevertheless, financial support to church and religion has been granted over the years in various forms and for various causes. These ways of support are of a limited nature. Their legal basis varies. Financial relationships are not mentioned in the Constitution.54 Financial relationships between church and state have been a subject of serious discussion in the 1980s and 1990s. The conclusion of this discussion was that financial support to churches and religion is allowed under special circumstances in order to prevent the free exercise of religion from becoming illusory.55 Thus, at the time, the Cabinet left open the possibility of financing buildings for non-Christian minorities. Incidentally, municipal governments are involved in a financially favourable way with the construction of religious buildings.56 Sometimes arrangements with financial consequences are made in the process of setting up urban renewal projects. Financial support is given to specialised church ministries, i.e., for religious care in institutions such as military institutions and penal institutions. Currently, the basis of this support is the right to the free exercise of religion by persons in such institutions. For the armed forces, a special VIII. 53 A more difficult and controversial issue relating to families is the way in which the state may interfere in cases of adoption or refusal of certain medical treatment. 54 Previously, the Constitution did contain a specific article on the subject (see above). Only in the additional articles to the Constitution is there a relic which has lost its force. It is expected to be eliminated in the current revision. 55 Kamerstukken II, 19891990, 20 868, no. 2; Kamerstukken II, 1990 1991, 20 868, no. 3; UCV 47, 22 june 1992, Handelingen II, 19911992. Committee report, Overheid, godsdienst en levensovertuiging, eindrapport van de Commissie van advies inzake de criteria voor steunverlening door de overheid aan kerkgenootschappen en andere genootschappen op geestelijke grondslag, 'sGravenhage 1988. 56 For a famous case concerning the construction of the so-called Westermosque in Amsterdam, see Kemal Rijken, De Westermoskee en de geschiedenis van de Nederlandse godsdienstvrijheid, Amsterdam/Antwerpen: Atlas Contact 2014. State and Church in the Netherlands 427 consideration is the element of ethical conflict which plays a role in the justification as well.57 In institutions such as hospitals and homes for the elderly specialised religious care also takes place. This is financed by the general funds of such institutions. Spiritual care is regarded as an essential element in the overall care which is provided. The organisation of the care in special institutions has consequences for the provision of religious care. Apart from these specific areas, financial support exists which is not exclusively aimed at church and religion, but focuses on other causes. Tax exemptions exist in various forms. Donations to churches as well as to a wide variety of charitable institutions are exempt from taxation. This holds for both private individuals and for corporations or institutions. In this way, donations are encouraged. Both the criteria for eligibility for the required status for the receiving organisation of “general benefit organisation” and the supervision thereof have been considerably tightened. Ancient church monuments like other ancient monuments share in public subsidies for repair and maintenance. Apart from central government funds, there are local and provincial monument lists and subsidies. These subsidies are partial and church communities which use ancient monuments still have a lot of costs. Church buildings, i.e. buildings used predominantly for worship, are excluded from local rates. More generally, the future of church and monastery buildings as religious cultural heritage – whether or not monuments in the technical sense – is recognised as a concern, not only by churches and religious orders but also by the state. (Local) governments subsidise a whole range of social activities. They are not obliged to do so, but if they do, denominational activities should not be excluded. Only if the denominational background leads to objective differences in terms of the activity to be subsidised may it be taken into account. As to key areas of social work such as health care, financing structures are quite complex. Denominational institutions, however, participate in the same way as do other institutions.58 The financial retreat of the state in the social domain and the introduction of contractual arrangements instead of subsidy regulations, has changed the relationship in this field between churches and faith-based organisations on the one hand, and municipal authorities on the other. 57 For alternative ways to justify these and other types of financial support, see Sophie van Bijsterveld, op cit (2018), Chapter 5. 58 Problems arise in the case of budget cuts, and forced consolidations. For schooling, see above. Sophie C. van Bijsterveld 428 Religious Assistance in Public Institutions Specialised religious care takes place in various types of institutions, such as the armed forces, penal institutions, health care institutions, institutions for young people, and homes for the elderly. The church sees availability to people in unusual circumstances as part of its task. The history of specialised religious care in various institutions, its structures, its financing, and its specific legal basis are varied, though certain similarities do exist. From the perspective of church and state relationships, these forms of spiritual care hold a special position. Although providing spiritual care is the province and responsibility of the church itself, the state has a responsibility as well. This responsibility varies according to the circumstances under which the spiritual care takes place. At present, it is accepted that the government must take action when fundamental freedoms are threatened. Depending on the nature of government involvement with these institutions as a whole, the necessary involvement with regard to the conditions of providing spiritual care needs to be specified. In institutions which are fully controlled and financed by the state, such as penal institutions, government responsibility with regard to the availability of spiritual care is substantial. In social institutions for which the government merely prescribes the organisational structure, government responsibility takes a different shape. The justification of government involvement can be further outlined for every specific type of institution. Elements of relevance are involuntary presence (e.g. penal institutions), confrontation with ethical conflicts (armed forces), and reduced accessibility for regular spiritual care (hospitals). It is clear that spiritual care cannot be provided on the basis of strict proportionality of denominational preference. Cooperation between denominations is necessary.59 In public institutions, the responsible government minister appoints the church minister on the basis of nominations by the churches. A debate has emerged over the desirability of ‘being sent’ by a particular church as a precondition for appointment as chaplain.60 IX. 59 Also nonChristian religion, and nonreligious belief. 60 See (in favour) Ryan van Eijk, ‘Goed geregeld. Geestelijke verzorging bij justitie’, in Tijdschrift voor Religie, Recht en Beleid 2015 (6) 1, p. 69-81 and (an opposite view) Hans Schilderman, ‘Van ambt naar vrij beroep. De geestelijke verzorging als voorziening in het publieke domein’, in Tijdschrift voor Religie, Recht en Beleid 2015 (6) 2, p. 5–23. State and Church in the Netherlands 429 The legal basis varies. In penal institutions, the basis is an Act of Parliament. For the armed forces funds are set aside in the budget. The specific services make the more precise arrangements of their own. An Act of Parliament secures the availability of spiritual care within care institutions. In ministerial subsidy and acknowledgement regulations religious care is mentioned as well. Criminal Law and Religion The penalisation of the various types of public blasphemy, previously penalised by the Articles 147, 147a, and 429 of the Criminal Code, was abolished in 2014. The Criminal Code does contain various other provisions regarding to religion. Articles 137c-e of the Criminal Code recognise as felonies public oral expressions or expressions in writing which are offensive to people on grounds of their religion, belief or race, or which incite to hatred against or discrimination of people. Convictions on the basis of these articles do take place from time to time.61 Expressions regarding religion or religiously inspired expressions which are not pertinent to religion can and do give rise to civil lawsuits. In these cases, courts usually balance the interests of the parties involved, taking into account fundamental principles such as freedom of religion or belief, freedom of expression, and the principle of non-discrimination. In a civil lawsuit, an expression may be regarded as wrongful vis-à-vis another party, even if that same expression would not lead to a criminal conviction. Another example of the way criminal law and religion are connected is the protection of the secrets of the confessional which falls under the generally worded Article 218 of the Criminal Procedure Code.62 Legal Status of Holders of a Spiritual Office It would be inaccurate to claim that holders of a spiritual office have a special legal status. Specific fields of law, however, do mention spiritual offices. In the field of labour law, for instance, exceptions to the general rules X. XI. 61 See Sophie van Bijsterveld, op cit (2018), Chapter 8. 62 See also Article 272 of the Criminal Code on professional secrets. See also Art. 145, 146 of the Criminal Code on disturbing ceremonies. Sophie C. van Bijsterveld 430 are made with regard to holders of a spiritual office, and by means of interpretation, courts may regard the employment relation within a church as other than a labour contract.63 Another area which should be mentioned is that of military service. The Military Conscription Act provides the basis for the exclusion of holders of a spiritual office from military service. The same arrangement has been made forthose being educated to hold a spiritual office. For this purpose, secondary legislation covers in detail the specific church offices in specific churches. This list, however, is not exhaustive. With the abolition of the penalisation of blasphemy, the Criminal Code provisions on insulting a cleric during the lawful execution of his vocation were also abolished. In regulations concerning specialised religious care, the office of church minister is, likewise, sometimes dealt with, as well as in the legislation concerning religious and civil marriage.64 In the past, provisions existed which excluded holders of a spiritual office from representative councils of government. From 1848 to 1887, the Constitution stated that holders of a spiritual office were not eligible to be elected and sit in the national parliament. Until 1931, a similar provision existed in the Local Communities Act for the municipal councils. Such impediments no longer exist. Developments Major general developments in the domains of religion, society, and the state influence not only debates on church and state relationships and freedom of religion and belief in the Netherlands, but also the law and practice of these relationships. One of these developments is the substantive decrease in membership of Christian Churches. This tends to affect the general personal experience with religion in society and the understanding and support of specific church and state law. In a different way, this development also raises positive concern such as for the future of religious cultural heritage. Another development in the domain of religion is that of the substantial and growing presence of Islam in the Netherlands. Although this development is not new in itself, societal issues related to it have become more pressing over the last few years. Issues of Islamic radicalisation and jihadism are XII. 63 See above, section VI. 64 See above, section VII. State and Church in the Netherlands 431 matters of concern, and debates on integration policies and, in part, also on ‘values and norms’- debates, have gained a new acuity. In constitutional terms these developments play out in issues on restriction versus freedom of religion and on the meaning of “equal circumstances” in equal treatment of religion and belief. In the wider context, developments in and debates on the ways in which law and morality connect are relevant.65 Developments in society such as are commonly referred to as individualisation or globalisation lead to the introduction or strengthening of mechanisms of legal and administrative supervision and control where previously trust and mutual familiarity were dominant. This can be observed especially in financial and fiscal fields and the field of trade, where the prevention and countering of money laundering, unlawful use of assets, and other types of fraud also affect the law relating to religion. The financial withdrawal of the state in the social domain and the repositioning of the state vis-à-vis society date back to the 1980s, but have accelerated over the last decade. As a result, self-reliance and participation of citizens are promoted. In this context, the social significance of churches and religious organisations is being re-discovered by the various levels of government and by society at large and renewed openness to various forms of co-operation can be witnessed. XIII. Bibliography Ton Bernts, Joantine Berghuijs, God in Nederland. 1966 – 2015, Utrecht: Ten Have 2016. Sophie van Bijsterveld, De verhouding tussen kerk en staat in het licht van de grondrechten, Zwolle: W.E.J. Tjeenk Willink 1988. Sophie van Bijsterveld, Godsdienstvrijheid in Europees Perspectief, Deventer: W.E.J. Tjeenk Willink 1998. Sophie van Bijsterveld, Richard Steenvoorde (red.), 200 jaar Koninkrijk: religie, staat en samenleving, Oisterwijk: Wolf Legal Publishers 2013. Sophie van Bijsterveld, ‘Een vergeten episode uit de schoolstrijd: de ontdekking van ‘openbaar’ en ‘bijzonder’ onderwijs’, in Tijdschrift voor Religie, Recht en Beleid, 2013 (4) 3, p. 16-32. S.C. van Bijsterveld en B.P. Vermeulen, Commentaar op artikel 6 van de Grondwet, in E.M.H. Hirsch Ballin en G. Leenknegt (red.), Artikelsgewijs commentaar op de Grondwet, webeditie 2013 (www.Nederlandrechtsstaat.nl). 65 See also Sophie van Bijsterveld, The Empty Throne: Democracy and the Rule of Law in Transition, Utrecht 2002. Sophie C. van Bijsterveld 432 Sophie van Bijsterveld, State and Religion. Re-assessing a Mutual Relationship, The Hague/Portland: Eleven International Publishing 2018. Wibren van der Burg, Het ideaal van de neutrale staat. Inclusieve, exclusieve en compenserende visies op godsdienst en cultuur (oratie EUR), Den Haag: BJu 2009. W.B.H.J. van de Donk et.al. (red.) (WRR), Geloven in het publieke domein. Verkenningen van een dubbele transformatie, Amsterdam: Amsterdam University Press 2006. L.C. van Drimmelen, T.J. van der Ploeg, Geloofsgemeenschappen en recht, Den Haag: Boom Juridische uitgevers 2014. Joep de Hart, Zwevende gelovigen, Amsterdam: Bert Bakker 2011. Joep de Hart, Geloven binnen en buiten verband. Godsdienstige ontwikkelingen in Nederland, Den Haag: SCP 2014. Ben Koolen, ‘Integratie en religie. Godsdienst en levensovertuiging in het integratiebeleid etnische minderheden’, in Tijdschrift voor Religie, Recht en Beleid 2010 (1) 1, p. 5–26. D. Mentink, B.P. Vermeulen, P.J.J. Zoontjens, Commentaar op artikel 23 van de Grondwet, in E.M.H. Hirsch Ballin en G. Leenknegt (eds.), Artikelsgewijs commentaar op de Grondwet, webedition 2013 (www.Nederlandrechtsstaat.nl). Overheid, godsdienst en levensovertuiging, Eindrapport van de Commissie van advies inzake de criteria voor steunverlening aan kerkgenootschappen en andere genootschappen op geestelijke grondslag (Commissie-Hirsch Ballin), ’s-Gravenhage 1988. P.T. Pel, Geestelijken in het recht, de rechtspositie van geestelijke functionarissen in het licht van het eigen recht van de kerken religieuze gemeenschappen in de Nederlandse rechtsorde, Boom Juridische uitgevers, Den Haag 2013. Hans Schilderman, ‘Van ambt naar vrij beroep De geestelijke verzorging als voorziening in het publieke domein’, in Tijdschrift voor Religie, Recht en Beleid 2015 (6) 2, p. 5–23. A.B. Terlouw, J.L.W. Broeksteeg (red.), Overheid, recht en religie, Deventer: Kluwer 2011. A. Vleugel, Het juridische begrip van godsdienst, Deventer: Wolters Kluwer 2018. Jurn de Vries, ‘Sluitstuk van de financiële gelijkstelling. Honderd jaar na de onderwijspacificatie van 1917 ook bekostiging voor GVO en HVO op openbare scholen’, in: Tijdschrift voor Religie, Recht en Beleid (TRRB), 2017 (8) 2, p. 66-82. VNG, Ministerie van BZK (J.E. Overdijk-Francis, P.M. van den Eijnden), Tweeluik religie en publiek domein. Handvatten voor gemeenten, Den Haag, maart 2009. Anton van Wijk, Bo Bremmers et.al., Het warme bad en de koude douche. Een onderzoek naar misstanden in nieuwe religieuze bewegingen en de toereikendheid van het instrumentarium voor recht en zorg (onderzoek in opdracht van het WODC, ministerie van Veiligheid en Justitie), Arnhem: Bureau Beke 2013. T.A.M. Witteveen, Overheid en nieuwe religieuze bewegingen, ’s-Gravenhage: Staatsuitgeverij 1984. State and Church in the Netherlands 433 Annual publication: The annual proceedings of the European Consortium for Church and State Research. Journal: Tijdschrift voor Religie, Recht en Beleid (TRRB), with summaries in English. Sophie C. van Bijsterveld 434

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Abstract

Churches as essential components of European culture have major significance for European integration. A Europe, bound by common constitutional traditions, cultures and traditions of its Member States, their national identity and the principle of subsidiarity, will have to respect the deep-rooted systems of State and Church relationships in its Member States.

The volume presents in its second edition a broad comparison of different systems of State and Church relationships in the Member States of the European Union. It includes the new Member States and gives an account of the new developments throughout Europe. The volume shows the implications of European integration on the position of the Churches. It is of interest to all working in the field of State-Church relationship as well as to public and church institutions.

The volume has been produced in association with the European Consortium for State-Church Research. The authors are experts in the field from the different Member States of the European Union, presenting the relevant systems of their home countries. The editor is professor for public law at the University of Trier and head of the Research Centre for European Constitutional Law.

Zusammenfassung

Im Prozess der europäischen Einigung kommt den Kirchen als wesentlicher Bestandteil der europäischen Kultur eine besondere Bedeutung zu. Ein Europa, das den gemeinsamen Verfassungsüberlieferungen, den Traditionen und Kulturen der Mitgliedstaaten, ihrer nationalen Identität und dem Grundsatz der Subsidiarität verpflichtet ist, wird das gewachsene Staatskirchenrecht seiner Mitgliedstaaten zu respektieren haben.

Die 2. Auflage bietet einen umfassenden Vergleich der unterschiedlichen staatskirchenrechtlichen Systeme in den Mitgliedstaaten der Europäischen Union. Der Sammelband berücksichtigt auch die neuen Mitgliedsländer und beschreibt europaweite Entwicklungen. Er macht deutlich, wie sich die europäische Integration auf die Stellung der Kirchen auswirkt. Das Werk ist für jeden, der im Staatskirchenrecht arbeitet, aber auch für staatliche und kirchliche Institutionen von Interesse.

Das Buch ist in Zusammenarbeit mit dem Europäischen Konsortium für Staat-Kirche-Forschung entstanden. Die Autoren, führende Staatskirchenrechtler aus den verschiedenen Mitgliedstaaten der EU, erläutern die religionsverfassungsrechtlichen Systeme ihrer Heimatländer. Der Herausgeber ist Professor für öffentliches Recht an der Universität Trier und Leiter der Forschungsstelle für Europäisches Verfassungsrecht.