Content

Niels Valdemar Vinding, State and Church in Denmark in:

Gerhard Robbers (Ed.)

State and Church in the European Union, page 87 - 108

Third Edition

3. Edition 2019, ISBN print: 978-3-8487-5472-4, ISBN online: 978-3-8452-9626-5, https://doi.org/10.5771/9783845296265-87

Bibliographic information
State and Church in Denmark Niels Valdemar Vinding Social Facts As established by article 4 of the Danish constitution of 1849, the Evangelical Lutheran Church is the Church of Denmark, or literally, the Folk Church or the People’s Church, Folkekirke in Danish. In 1994, 87.4 % of the Danish population were members of the Folk Church. As of 1 January 2019, 74.7 % were members, corresponding to 4.34 million in a population of 5.81 million. In pure numbers, membership is decreasing due to immigration, increasing religious diversity and growth in atheist sentiments. At the same time, there is a small increase in new baptisms. This reflects an increasingly polarised attitude towards religion, in general, and the Church of Denmark, in particular. The most significant decline in membership is in the Diocese of Copenhagen, where some parishes have membership below 50 %. This calls into question the very premise in the constitution that the Church of Denmark is the People’s Church with the majority of the population as members. In that sense, it will in the future no longer be the People’s Church, but in effect merely the Church of Denmark in Copenhagen amongst other religious communities. With increasing immigration in the second half of the twentieth century and the first decades of the twenty-first, Denmark has a growing number of different religious denominations and faith communities. While it is illegal to register information on religious conviction or affiliation, demographers of religion estimate that about 5.3 % of the population, or about 300,000, are Muslim, either nominally or practising. The second significant religious minority is the Catholic Church in Denmark, which had 47,600 members as of 2017, up more than 25% since 2008. This is mainly due to immigration, most significantly from Poland and other European countries. I. 87 Historical Background Massive carved runestones near Jelling in Jutland from the second half of the 10th century give testimony to the Christianisation of Denmark. Raised by King Harold Bluetooth, the larger of the two stones carries inscriptions celebrating his conquests of both Denmark and Norway, as well as his conversion of the Danes to Christianity. Demonstrating this to those who could not read, the larger stone carries a figure of the crucified Christ. Missionaries had come to Denmark as early as the 8th Century. In the 9th Century, as regional king Harald Klak sought favours with Holy Roman Emperor Louis the Pious, son and successor of Charlemagne, he converted to Christianity and missionaries followed his reinforced troops back to Denmark. Amongst them was St Ansgar (801-865), the Apostle of the North. Historians have argued that major political factors and alliances with German Emperors were much more significant drivers of Christianisation than were the pious ambitions of individual missionaries, despite the flavour of the stories told. From the turn of the first millennium, Denmark became strongly influenced by English church life due to the rule of Cnut the Great (1016–1035) in the Anglo-Scandinavian Empire. After the brutal conquests of England, Cnut would, with the blessing of the Pope, levy tolls on pilgrims travelling to Rome and secure fees from English archbishops after their investiture. Churches were built in most of Scandinavia under his rule and Denmark grew into a Christian country towards the end of the 11th century. Denmark would remain part of the Roman Catholic Church until the Reformation of 1536, which was the culmination of reformist trends in Denmark itself, the influence of Martin Luther and the ambitions of Duke Christian, who had adopted many of Luther’s ideas after the Diet of Worms in 1521. After the death of his father, King Frederik I, in 1533, the rural nobility in Jutland elected Christian king in 1534 and he would set in motion a Protestant reformation in Denmark. However, the Council of the Realm with its Catholic bishops opposed reform, and two years of bloody civil war raged between Protestant and Catholic armies. Duke Christian, his rural nobility and German allies were victorious and in 1536, he was crowned as Lutheran king. Christian III (1536-1559) ended Catholicism in Denmark, imprisoned the bishops, seized their properties and estates and reconstituted the Council of the Realm and applied to the whole of Denmark the principles of the Lutheran Reformation. Johannes Bugenhagen (1485-1558), reformer and confessor of Martin Luther, travelled to Denmark for the coronation of Christian III. In 1537, he was the author of the new Church Ordinance, Ordinatio Ecclesiastica II. Niels Valdemar Vinding 88 Regnorum Daniæ et Norwegice et Ducatuum Sleswicensis Holtsatiæ etc., which was endorsed by Martin Luther, and inducted new Lutheran superintendents. These did not have any temporal powers and served Christian III as prince and first member of the church and defensor fidei. The Danish bishops, as they would soon be called, did not gain the apostolic succession. Bugenhagen’s church order echoes Luther’s doctrine of two governments of the earthly kingdom as an interrelation of God’s two complementary modes of rule. The church therefore became a state church over which King in Council had the power to legislate in all matters. The Lex Regia, the constitution of the absolutist rule from 1665 to 1849, obliged the king to follow the Augsburg Confession of 1530, and required all subjects to follow the same creed, which of course echoes the cuius regio, ejus religio principle. In this absolutist constitution, the king committed himself to protect the realm against heretics, fanatics and blasphemers and article 6 gave the king all legislative and executive power in relation to the entire church, ecclesial administration and clergy. The expression People’s Church is understood in direct contrast to this King’s Church. However, a few places in the Danish realm and the duchy of Schleswig, such as Fredericia and Frederiksstad, Reformed, Catholic and Jewish dissidents were allowed by royal decree to celebrate baptisms and marriages. The Jewish community, for example, was recognised as early as 1685. With the new, democratic Constitution of 1849, such rules of compulsory church membership were replaced by the freedom in article 67 to join religious communities according to one's own conscience and conviction, as long as nothing is taught that violates morality and public order. Noone could be forced to belong to a certain religious community with the exception of the monarch, who according to article 6, “must belong to the Evangelical Lutheran Church.” Today, the Church of Denmark in Denmark is made up of 10 dioceses, with four female bishops. In 1993, the Church of Greenland was given the status of independent diocese in the Church of Denmark. Since 2009, however, it was legally and financially placed under Greenland’s Home Rule government. The Church of Greenland is considered semi-independent from the Church of Denmark, yet still considered a diocese in the Church of Denmark. The Church of the Faroe Islands was previously a diocese in the Church of Denmark, but in 2007 the Church of the Faroe Islands was established. However, the Faroese bishop continues to attend the episcopal meetings of the Church of Denmark. State and Church in Denmark 89 Basic Categories of the Danish System Danish ecclesiastical law consists of all the legal sources for all Christian churches and for all religious groups or communities in Denmark. However, the legal sources for the Church of Denmark are, first and foremost, the Constitution, then general laws and statutes, executive orders, ministerial law reports and circular letters, and case law, especially from the Supreme Court and the special clerical Court for Doctrinal Cases. Public law statutes govern issues regarding the economy of the church, maintenance of church buildings and the churchyards. Other specific legislation concerns membership of the church, its employees, the role of bishops, education, personal registration, baptism, confirmation, burial and a growing body of rules about the parishes and parish councils. As the overarching legal frame, the Danish Constitution, Danmarks Riges Grundlov, governs and orders the relationship between state, church and religion in general. Article 4 imposes a duty on the state to subsidise the Evangelical Lutheran Church and set out unequivocally the legal position of Church of Denmark immediately after the first three articles (which deal with the jurisdiction of the Constitution, the form of government as a constitutional monarchy, and the establishment of the tripartite division of powers). Next, Article 4 states: “The Evangelical Lutheran Church is the Folk Church and as such is to be supported by the State.” The language of the article is two-fold. First, it defines, identifies, describes its subject, the Evangelical-Lutheran Church, as the Church of Denmark. Second, it declares the support of the state to the church, which is understood in economic, legal and political terms. A formal separation between the Church of Denmark and the State is not possible without changing the Constitution, a difficult process. The duty of the state to support the Church of Denmark does not mean that other religious communities or denominations cannot be supported. By Article 66, the Church of Denmark should have its own synodical constitution, “the Constitution of the Evangelical-Lutheran Church of Denmark is regulated by an Act,” giving the church autonomy to freely decide on all ecclesiastical matters and freedom from the political rule to establishing a central church council that could speak on behalf of the church. This constitutional promise of establishment was never honoured, however. Following almost a century with several failed attempts to bring about such a constitutional act, the permanent secretary of the Ministry of Ecclesiastical Affairs argued that the Church of Denmark was ruled not by one law, but by many, in effect, public laws and statutes. The rule of the Ministry of Ecclesiastical Affairs has a legal basis, though not that intended III. Niels Valdemar Vinding 90 in the Constitution. The growing body of law and particular statutes concerning church matters is a testimony to this. One particular example is the 1903 Act on free Parish Councils, which entitled all members of the Church of Denmark of age to vote and to be eligible for election to the parochial church council, which is the fundamental democratic unit of the church. Article 67, under which “members of the public are entitled to associate in communities to worship God according to their convictions, but nothing may be taught or done that contravenes decency or public order,” defines the principle of religious freedom and religious association. Under Article 68, “no-one shall be liable to make personal contributions to any denomination other than the one to which he adheres.” Presently, more than 25% of the population are not members of the Church of Denmark and are not obliged to pay church taxes. However, through the general tax, they indirectly support to the Church as per article 4. Article 69 states that “the affairs of religious communities other than the Evangelical Lutheran Church of Denmark are regulated by an Act.” In December 2017, a bill was passed in the Danish Parliament that collected and clarified rights and privileges concerning the affairs of religious communities outside the Evangelical-Lutheran Church of Denmark. In many ways, this bill restated many of the existing executive practices in Denmark and gave clear and explicit language to the expectations and privileges of religious community. Taking effect on 1 January 2018, this new Act on the Religious Communities outside the Church of Denmark (LOV 1533, 19 December 2017) sets the frame for state and religion relations in Denmark, and it does so by making the executive instruments that conferred recognition upon dissenting religious communities part of statutory law. Article 70 is a non-discrimination rule. “No person shall by reason of his creed or descent be deprived of access to the full enjoyment of civic and political rights, nor shall he escape compliance with any common civic duty for such reasons.” Until recently, Article 70 has been understood as a general provision against discrimination of religion, but in light of the 2016 change of the criminal code (art 136, subsection 3), it has become illegal to express support for certain criminal acts as part of religious education. It has been argued by Lisbet Christoffersen that this change to the criminal code presupposes an interpretation of Article 70 as outlawing discrimination based on a specific ‘his creed,’ and not religion in general, so that if all religious groups are limited by this change in the criminal code, there is no violation of Article 70. This question is still unresolved and remains to be tested in the courts, if prosecution is ever brought under this provision. State and Church in Denmark 91 Beyond its formal legal scope, the Church of Denmark embodies all kinds of dualisms depending on perspective. From the top down, it is a state church with the public duty to ensure the availability of services and religious functions. From the bottom up, it is a democratic institution for the overwhelming majority of population, people with locally representative self-government. While it is supported by the state and the Ministry of Ecclesiastical Affairs is the executive body in charge, it is not a state agency. It is a religious denomination, but it is not a private association like most other religious communities in Denmark. The Church of Denmark has a status similar to state agencies and its legal regulations are part of public law. Each parish church has to perform administrative functions and civil legal activities. As a rule, the parishes may own property, for instance real estate, which gives a certain income. Most local churches can be understood as legal persons or bodies with legal personality. The parish councils function as board of directors for the local parishes with independent legal capacity. This does not apply in respect of administrative duties, but also in relation to the election of priests, services, rites, and so forth. Legal Status of Religious Communities For many years, rules and regulations to recognise and approve religious clergy and communities to perform ceremonies and weddings were left to the executive practice of the Ministry of Ecclesiastical Affairs and other ministries to govern executively ad hoc and as part of public law, not specific ecclesiastical law. Religious communities and congregations were effectively divided into three groups: communities recognised by royal decree, communities with approval to perform weddings, and other religious communities without any formal recognition. The concept of recognised religious communities originates in pre-constitutional royal practice, as Parliament had not until 2018 passed a law to fulfil the promise of article 69. Until the Marriage Act of 1970, recognition was given by a royal decree to priests of communities, who were then authorised to conduct marriages civil legal validity and to keep registries of civil status. Such recognition was given to 11 churches and communities; the Catholic Church, the Baptists, the Methodists, the Swedish Gustaf’s Church, the Norwegian King Haakon Church, the Finnish Church, the Icelandic Church, the Danish Reformed Church, St. Alban’s Anglican Church, the Russian Orthodox Church and to the Jewish Community. IV. Niels Valdemar Vinding 92 As of 1 January 2018, this three-tier system of recognition, approval and the communities with no formal status was significantly changed, as the new Act on the Religious Communities outside the Church of Denmark came into force. The 2018 statute introduces in particular two new significant ideas; a single process of recognition by ministerial ordinance and distinct mechanisms for revoking the recognition of religious communities. First, for minority religious communities there is now just one category of recognition, which is recognised by ministerial ordinance. The legal effects of the previous first and second tiers were comparable, but symbolically they were seen as very different. In specific terms, the new statute specifies that a religious community can be registered as a recognised religious community, if it: 1) has at least 50 permanent members who either have a permanent residence in Denmark or Danish nationality, and 2) does not encourage or do anything that violates the provisions of law or regulations laid down by law. By subsection 2, it is provided that a request for recognition must include the following information: i) Name and home of the religious community. ii) Number of adult members of the religious community. iii) The Articles of Association of the religious community. iv) Name and address of the contact person who is responsible in relation to the Religious Register. v) A text that expresses, describes or refers to the foundation of faith or doctrine of religion in the religion of religion. vi) Documentation or description of the religious rituals of the religious community. vii) The most recent financial statements, which must be audited and give a true and fair view of the financial situation of the religious community. The second idea introduced is a legal framework for revoking recognition, if the religious community no longer meets the specified criteria. This has been presented as a power that the Ministry has always had, but there have been no cases, and there was never any control or inspection of the communities. The new statute establishes a Registry of Religious Communities (Article 7, subsection 4: “Recognition is listed in the Registry of Religions Communities, which is allocated to the Ministry of Ecclesiastical Affairs”). Furthermore, it sets up a number of continuing duties that the communi- State and Church in Denmark 93 ties must adhere to, including annual reports as well as submitting their constitutions and articles of association to the ministry. For members of the Church of Denmark, it has since 1868 been possible to form a special parish to elect a certain person as their priest and have this “Election Parish” (Valgmenighed) acknowledged as part of the Church of Denmark. This election parish must have its own building or otherwise acceptable church hall. The members pay all expenses and salaries themselves and receive no contributions from state. The Election Parish must have a council with legal capacity and is a legal person with corporate rights and duties in relation to both public and private persons and institutions. It remains under the supervision of the bishop in relation to the Ministry of Ecclesiastical Affairs, as per the Act on Election Parishes (LBK 797, 24 June 2013). It is also possible to establish so-called “Free Parishes” (Frimenigheder) which are organisationally outside the Church of Denmark even if they confess the same EvangelicalLutheran faith and doctrines. The Free Parishes are autonomous in matters of organisatio n and have more privileges than other religious communities e.g. a right to use the buildings of the Church of Denmark for their religious services and for their priests to wear the same gown as other priests. They do not have the right to perform weddings with civil legal effect, but they can conduct ceremonies associated with weddings after the parties have registered a civil wedding. Religious Communities within the Political System Denmark is a secular, liberal democracy with a representative parliament, executive power with a government of elected politicians, and an independent judiciary. Although the Christian Democrat party was represented in Parliament from 1973 to 1994 and from 1998 to 2005, and right wing, populist parties have a rather thin varnish of pro-Christian sentiments and an anti-Muslim agenda, religion does not feature prominently in the political system. However, to be secular in Denmark does not mean that religious sentiments are banned from the public sphere and political life. Rather, it means that freedom to religion and worship presupposes that officeholders and civil servants distinguish their religious convictions from the execution of their office. During the debates on the drafting of the constitution, it was said and clearly established that religious dissenters may also be Supreme Court justices, because that is the true meaning of such freedoms. In recent, rather alarmist, parliamentary debates on the influence of Mus- V. Niels Valdemar Vinding 94 lims, some right wing politicians have sought to legislate to limit the appearance and dress of public employees, as not to alienate citizens, who might address themselves to the public officials. Such political notions undermine the trust, dignity and decorum of the Danish public offices and threaten to limit significantly the participation of religious individuals in public life. More generally and looking beyond the political world to the wider public system in modern society, public authorities at local, regional or national level take responsibility for social, educational and healthcare problems and issues, including education of children and young people. This has historically been understood as part of their vocation and grew in the 20th century into the modern welfare state. But the state and public sector is no longer the sole provider of “welfare,” and a significant degree of cooperation has arisen with the ideals of new public management and privatisation. Presently, welfare is supplied from different sectors; from the public sector through state and municipality, the market sector through profitmaking, private organisations, and the civil society sector through voluntary, nonprofitmaking networks or associations. As for both Church of Denmark and other religious communities, to varying degrees, they cross through these sectors. In Denmark, there are more than a hundred free organisations with the status of private legal entity which are founded on Christian principles and are active either in Denmark or on overseas humanitarian work, and around 15 associations working in foreign missions. These free organisations are either connected to the Church of Denmark or associated with other religious communities, and they have established many different social welfare institutions, commercial enterprises and schools. They form essential parts of the Danish welfare system by running kindergartens, primary and secondary schools, nursing homes, and so on. They often work together with public social authorities and are eligible for public subsidies. Regardless of their legal status, all religious communities have the right to arrange social or humanitarian collections at their services or meetings, when the initiative for the collection is taken by the religious community as such. All private charitable and humanitarian organisations have a right to arrange public collections. Among these organisations we find some with close connections to the Church of Denmark or other churches, for instance Caritas with its relation to the Catholic Church. In the Church of Denmark, the parish councils may arrange collections and spend the money on different forms of voluntary work. DanChurchAid (Folkekirkens nødhjælp) is such a private Christian organisation which takes part in national and international ecumenical cooper- State and Church in Denmark 95 ation. DanChurchSocial (Kirkens Korshær) has a closer connection with the Church of Denmark, but cooperates closely with public authorities. In Copenhagen, it works e.g. to help prostitutes, drug addicts and in shelters for homeless people. Article 76 of the Constitution secures freedom of education as “a right for all children to receive a free education.” Parents or guardians, who wants to make their own educational arrangements for their children, are not obliged to send the children into the public schools (Folkeskolen). Such a freedom of schooling is a special right for the parents to give their children the necessary instruction either at home or in a private school. Parents may choose a private school for political, religious, cultural, pedagogical, national or personal reasons as provided in the Act on Free Schools and Private Elementary Schools (LBK 1111, 30 August 2018). Many religious communities have opened such private schools, which may receive public subsidies if they fulfil prescribed conditions as to the curriculum, quality of instruction, independence and good administration. They must not be controlled by special interests and must promote democracy in the education. Larger donations must be disclosed publicly, and it is not allowed for such schools to cooperate with extraneous institutions or groups, which are not relevant to the curriculum, e.g. in order to practise political indoctrination. There have been some cases of this with Muslim schools, which have been closed by the authorities, after recent public attention and political debate. Culture In the elementary schools, the subject “knowledge of Christianity” is a compulsory part of the curriculum on all levels from the 1st to the 10th grade, except the 7th and 8th grade, where the children are given the opportunity to receive preparation for confirmation from the parish priest. According to the Act on the Elementary School (LBK 1510, 14/12/2017), the central theme in this subject is the Evangelical Lutheran Christianity of the Church of Denmark. The teaching of Christianity comprises the history of Christianity in Europe and Denmark, the Reformation and the relation between State and Church in Denmark. It also aims to make the pupils familiar with fundamental values in Danish culture on the basis of the Bible. In the higher grade classes, the pupils are to be presented with other religions and different forms of philosophy of life, including Islam. In the gymnasium or grammar schools, religion is a compulsory discipline, with a focus on religion much more broadly and not especially Christianity. VI. Niels Valdemar Vinding 96 Children who do not want to be confirmed are not obliged to follow the normal education in Christian knowledge instead of going to the priest of the parish. A child can be exempted from the “knowledge of Christianity” subject, if requested by the parents, and at the age of 15, at the request of the child. A teacher, too, can ask for exemption from the duty of giving instruction in Christianity. Religion features into media as well, and most significantly, in the public radio and television. As part of the public service agreements with the Danish Ministry of Culture and regulated by the Act on Radio and Television Broadcasting (LOV 643, 08 June 2016), public radio and television system in Denmark consists of four major units: 1. "DR" (Danish Radio and Television), which is the biggest provider of public service in Danish media. DR is organised as an independent public institution that is fully licence-financed, yet subject to major political agreements between government and parties in Parliament. 2. "TV 2 Danmark" which is a limited company, entirely owned by the Danish state. The primary purpose of the company is to do public service media. TV2 is in part financed by advertisements. 3. The regional TV 2 stations are eight autonomous media stations, and they broadcast regional public service programmes from different parts of Denmark. These stations are fully licence-financed. 4. Radio24syv, literally, ‘Radio24seven,’ is an all-talk radio format established as a part of the media agreement from 2010 to counter the DR monopoly in radio. Radio24syv is run by a joint company by two major media organisations, Berlingske Media and PeopleGroup, and funded through the media licence funds. DR, TV 2 Danmark, the eight regional stations and Radio24syv, are all obliged to deliver public service programmes through television, radio or the Internet, defined as “news, information, education, art and entertainment.” The programmes must reflect cultural, democratic and historical values of Danish society, as well as reflect the diversity and plurality. Transmission of programmes which might instigate hatred based on race, gender, religion, nationality or sexual orientation is expressly forbidden, which is in line with the EU Directive concerning broadcasting. In 2018, the specific public service agreement for DR for 2019-2023 was renegotiated and came with two significant changes that reflect current trends. The agreement is between the liberal-conservative government parties and the right wing Danish People’s Party. The agreement firstly terminates DR efforts to work towards better integration of Danish society and secondly, explicitly states that DR programming should demonstrate that State and Church in Denmark 97 Denmark is rooted in Christianity and emphasise the Christian cultural heritage. Both these changes have been criticised by the opposition and are seen as an undemocratic violation of the independence of public media and a part of anti-immigration policies. There are no specific regulations about the right of religious communities to get programme time. DR recently ended the transmissions of the Sunday morning Church of Denmark services, but continues to broadcast them on major religious festivals. Radio24syv have a very diverse and progressive programme platform, which amongst others includes a so-called ‘Bible school,’ where the radio host and a philosopher read and critically discusses the bible in entirety. The inaugural program aired in 1 November 2015 and read Genesis 1, and as of 1 January 2019, they are reading Acts 3 in programme number 827. Associations and private communities as well as municipalities may also get special grants to make programmes. In addition, print media and magazine may get publication support. In print media, The Christian Daily has been published since 1896, and has in recent years seen a rise in readership. Some of the Christian communities have established their own local TV, media and online stations. In Aarhus, a Programme Centre for videos, CDs and special TV programmes was established in 1998 as a commercial foundation, named The Church Media Centre of Denmark (Danmarks Kirkelige Mediecenter). In 2017, a group of young Muslims inaugurated Radio WAIH to air radio on issues relevant to Danish Muslims and others interested in Islam. Labour Law within Religious Communities The Act on Employment in Positions in the Church of Denmark (LBK 864, 25 June 2013) deals with the employment of clergy and all other positions in relation to church services, church administration and churchyards. The clergy are civil servants and are appointed and dismissed by the Minister of Ecclesiastical Affairs in accordance with the Act on Civil Servants (LBK 511, 18 May 2017), which in chapter 9 regulates the special relationship between the clergy and the parishes. Clergy are appointed after nomination by the parish council in consultation with the bishop. Usually the normal rules of suspension and disciplinary action against civil servants applies to clergy, except in doctrinal questions. The rules on dismissal may be used after serious disagreement between the priest and the parish, which adversely affects church life in the parish. VII. Niels Valdemar Vinding 98 For the other religious communities, the main principle is that they have to follow regular labour rules both as to individual labour law and collective labour law. The Act on Prohibition of Discrimination in the Labour Market (LBK 1001, 24 August 2017) and the practice of the Board of Equal Treatment allow – to a limited extend – employers to discriminate and dismiss persons on the basis of their religious conviction, if particularly relevant for the job, e.g. as an executive or minister in a religious community or a teacher in a religious school. By comparison with those in other countries, employees in Denmark are rather well organised in labour and trade unions under a few central organisations, who negotiate salaries, other terms and conditions of employment with the Minister of Finance on behalf of the State. The central organisations for priests and deans and other officials are special interest organisations that also has the right to negotiate with the Minister of Finance. During the labour negotiations and conflict during the spring of 2018, some 370 contractually employed priests and almost all church officials risked either going on strike or being locked out, which threatened to halt most of the everyday business of the Church of Denmark. Each group of church employees has its own trade union, e.g. the Danish Priests' Association (Den danske Præsteforening) and the Deans' Association (Provsteforeningen), with the right to negotiate on all employment matters concerning their members’ relationship to the church authorities. Although the members of the parish councils are democratically elected, they do have an organisation for their special interests, which is not a trade union. Legal Status of Clergy and Members of Religious Orders Priests in the Church of Denmark enjoy the full civil rights and liberties of the Constitution and the European Convention of Human Rights. They also have freedom of expression. In the Act on Parish Councils (LBK 771, 24 June 2013), article 37 emphasises that in preaching, in giving spiritual counsel and in teaching, the priest is independent of the parish council. This principle is called “freedom of preaching,” and per article 1 it rests with the parish council to make sure that the conditions for this is in order. The Act on Civil Servants in article 10 states a “general duty” of “decorum” requiring the civil servants to observe conscientiously the rules about his employment and both within the service and in his private life to show himself worthy of the esteem and trust which his position requires. The VIII. State and Church in Denmark 99 priest has a right to qualified professional secrecy not only concerning confessions, but also concerning all information which he receives during his office, if secrecy is appropriate, e.g. information concerning personal registration, and so on. Ministers and religious leadership in other religious communities share similar rights, but only in so far as they are recognised. Priests and clergy have the right to take part in all forms of public life and to sit on public boards, if it is not in conflict with the duties and with decorum. Both in relation to the preparation of church legislation in the Ministry of Ecclesiastical Affairs and in many other administrative fields, the clergy will often be asked to take part as representatives, e.g. in the trade union for the priests. One provision, however, is that no one can speak on behalf of the Church of Denmark as such, because of the special Danish structure with no General Synod. A recent change to the Procedural Code (LOV 670, 08 June 2017), made clear that a number of persons are excluded from acting as a juror or lay judge. This provision applies to lawyers, attorneys, members of the courts, and other senior officials, but also to the clergy of the Church of Denmark and clergy of recognised religious communities. Where a priest through his preaching of the Gospel has disregarded the confessional basis of the Church of Denmark, and in this way has disregarded his vow in which he had promised to “preach the words of God clean and pure,” the Act on Court proceedings on Doctrinal Cases (LBK 5, 03 January 2007) directs the use of socalled Priests’ or Bishops’ Courts. Doctrinal cases concern breach of church discipline, and are not considered ordinary penal or disciplinary cases. With two theological experts added, the ordinary court and ordinary judge become the special Priests’ Court. Their ruling may be challenged on appeal to the High Court, where three theological experts will join the court. The experts will be chosen by lot from a list which is prepared by the Ministry of Ecclesiastical Affairs. If the case concerns a bishop it will start in the High Court and an appeal may be brought before the Supreme Court. The experts in the Bishops’ Court are the two most senior bishops. The priest or bishop against whom doctrinal action is brought has the right to choose an advocate as assessor. Only a few cases have until now been brought before these special courts, but minor cases on issues of doctrine and conduct are decided by the bishops and most of them amicably. Niels Valdemar Vinding 100 Finances of Religious Communities As at 2015, the revenues of the Church of Denmark amount to about 8.6 billion DKR, 78% of which is paid as church taxes by members and collected from their income by the state tax authorities. The state support from the national budget amounts to 9% and the remaining 13% comes from funds, property and special contributors. The Minister of Ecclesiastical Affairs is responsible for the church taxes and rates in consultation with the offices of the Church and the Minister of Finance. The average church tax rate in 2015 was 0.88%, with a range between 0.44% and 1.40% depending on the wealth of members in the different municipalities. The expenditure of the Church of Denmark is distributed as follows, in rough numbers: 50% for wages to priests, deans, bishops and other staff members, 25% for daily working expenses and maintenance, 10% for pensions and 15% to new investments. About 60% of the church taxes are used for wages to priests and deans. The State subvention goes to the Ministry of Ecclesiastical Affairs, wages for bishops, pensions for priests and deans and the remaining 40% of wages for priests and deans, the administration of parishes and dioceses, education, special grants for restoring historic churches, furnishings, graves and monuments deserving preservation. In 2015, through the national budget every Danish citizen paid 131 DKR to the Church of Denmark. Religious Assistance in Public Institutions The Ministry of Ecclesiastical Affairs and the bishops can decide that theologically trained persons shall or may by appointed in the service of public institutions or for groups who do not constitute a parish, e.g. for university students, for private religious and humanitarian organisations, for hospitals, for prisons and for the armed forces. In recent years priests have become more visible in many social contexts as trained helpers in disaster situations, among street children, the homeless and so on. A recent report on Chaplaincy in Denmark by Aarhus University researchers demonstrated that in a number of public organisations, such Church of Denmark full time or part time chaplains are widely available. Across 57 hospitals in Denmark, some 111 chaplains are present. In prisons, 58 chaplains are available, servicing 14 prisons and 44 detentions. At eight universities, some 15 chaplains served students and employees. In the armed forces, across four branches and five commands, 81 chaplains rotate IX. X. State and Church in Denmark 101 through service. Many of these chaplains have been in service with UN forces, Danish commitments in Iraq and Afghanistan or in other international peacekeeping activities with NATO. By comparison, only two full time imams are chaplains. One is employed at the national hospital in Copenhagen and the other with the Copenhagen prison services. A small number of other religious clergy is called in when needed. Matrimonial and Family Law The wedding ceremony may be either religious or civil, at the choice of the parties. The religious wedding may take place in the Church of Denmark, if one of the parties is a member. The same applies in recognised churches and religious communities. In such cases, the community must have a priest who is authorised to perform weddings. Everyone has a right to civil weddings. In recent years, the promotion of access to same-sex marriages in the Church of Denmark has been a widely discussed issue. In 1989, registered or civil partnership was allowed, which forced the Church of Denmark to discuss the question. After public debate and changes in the political climate, in June 2012 the gender-neutral marriage was introduced to the Marriage Act (LBK 87, 29 January 2019) making marriage a legal union whether between two people of different sexes or between two persons of the same sex. Thereby, Denmark became the 12th country in the world to allow same-sex marriage, but priests in the Church of Denmark may excuse themselves from performing the marriage on the basis of conscientious objection. The Act of Aliens (LBK 1117, 02 October 2017) has been significantly amended in recent years to include several new and very strict conditions especially concerning family reunions. If a marriage seems to be a forced marriage or a marriage of convenience entered into in order to get a residence permit, the permit will not be given and the marriage will not be recognised. Under the Act on Aliens there is no longer a right to a residence permit in order to bring about a family reunion. The aliens’ authorities (Udlændingestyrelsen) must, subject to ECHR articles 8 and 12 and the UN conventions, test the existence of all the legal conditions. The result of the new rules is that the number of family reunions among immigrants has been sharply reduced. Also, the number of forced marriages of young immigrant women has been reduced during recent years. XI. Niels Valdemar Vinding 102 The strict regime of the current government regarding aliens, asylum seekers and Muslims has been vehemently criticised by opposition parties. This criticism culminated after then Danish Minister for Immigration, Integration and Housing, Inger Støjberg, who is quite popular but controversial, directed the aliens’ authorities to separate 27 couples in the Danish asylum system, where one of the parties – usually the bride – were underage. A young Syrian couple, husband 26 and wife 17 and pregnant, were separated by force in 2016. The order from the minister was criticised by the Ombudsman and the separations were deemed illegal by the courts and the couple was awarded compensation. Criminal Law and Religion Anyone who tries to hinder, obstruct or disturb divine services or other church ceremonies can be punished under the Criminal Code, article 137. In 2016, the so-called blasphemy provisions under article 140, which made it illegal to publicly mock or insult the confession of faith or worship of God, were revoked. Article 266b under the Criminal Code, the so-called racism article, penalises statements or information, made publicly or with the intention of disseminating them widely, by which a group of persons are threatened, insulted or degraded because of their race, colour of skin, national or ethnical origin, faith or sexual orientation. If the activities or information have the character of propaganda this will be looked upon as aggravating circumstances. A handful of members of the rightwing Danish People’s party, including the former president of Parliament, Mrs Pia Kjærsgaard, have been convicted under this article, and the party is significantly biased against the use of anti-racism measures. According to the Execution of a Sentences Act (LBK 1491, 13 December 2017), prisoners serving a sentence in prisons or arrests have the opportunity to participate in religious services performed in the institution and a right to see a clergyman or minister or equivalent from his own religious community. When in custody this right may be limited because of an ongoing investigation. If the prison authorities are responsible for the preparation of the prisoners’ food, a special diet must be provided for Muslims, Jews and others whose religion requires it. Again, in light of recent trends, the question of halal meat is hotly debated. XII. State and Church in Denmark 103 Major Developments and Trends Amongst major developments and recent trends – and in addition to issues discussed above – two items warrant special attention. The first concerns the committee to propose a more coherent and modern governance structure for the Church of Denmark from 2012 to 2014. The second deals with a number of new pieces of legislation from 2016 following a rather problematic hidden-camera documentary allegedly exposing ‘radical’ mosques and imams. In 2012, the Minister of Ecclesiastical Affairs, Mr Manu Sareen, commissioned former Parliamentary Ombudsman, Professor Hans Gammeltoft Hansen, as chair and a team of university experts and key stakeholders from the Church of Denmark, to work towards a more modern governance for the Church of Denmark, effectively to prepare a white paper to implement the promise of establishment in article 66 of the Constitution. The group presented their white paper on the Governance of the Church of Denmark in April 2014. Despite a number of minority opinions, the commission presented a new structure for the church, including a distribution of the powers and privileges that today rest with the Minister of Ecclesiastical Affairs. A democratically elected joint committee for the entire church together with the college of bishops would decide on the affairs of the forum internum of the Church of Denmark, including rites, doctrine, authorised hymn book and much more. In addition, the committee recommended a reform of the funding and finances of the church to promote greater transparency and autonomy. However, in late October 2014, then Minister of Ecclesiastical Affairs, Mrs Marianne Jelved, reported that there was no political will or support to legislate based on the Commission white paper. Because of the significance of the issue and the deeply embedded nature of the Church of Denmark, the minister had insisted on wide parliamentary support, but failed to rally the different parties, including the liberals and conservatives, who feared a centralised and politicised church. Thus, the promise of article 66 remains unfulfilled. Nevertheless, the white paper and the deliberations and debates in the Church of Denmark were of lasting significance and demonstrated the difficulties in bridging the diversities and reforming governance, while maintaining a uniquely depoliticised Church of Denmark. By contrast and rather over-politicised, the second major development in recent years regards a wave of legislation that seeks to target radical Muslims, but which alienates all religion, including the Church of Denmark. On 31st May 2016, a so-called agreement paper was presented by the Minister of Ecclesiastical Affairs, Mr Bertel Haarder, which sought through XIII. Niels Valdemar Vinding 104 a number of specific initiatives to curtail religious preachers, who seek to undermine Danish laws, values and support parallel views of law. The 8page document accompanied by seven appendices constitutes the in-principle agreement by the Government (then, just the Liberal Party, Venstre) and the Social Democrats, the Danish People’s Party and the Conservatives, effectively representing a substantial majority in Parliament. In the months and years that followed, some 12 bills were passed that systematically sought to push the limits of what Parliament might validly legislate, including mandatory courses on Danish family law, freedom and democracy for religious preachers (L50, 2016), the criminalisation of sympathy towards certain punishable acts during religious education (L18, 2016), a public list of non-EU religious preachers who were barred from entering Denmark (L48, 2016), limitation on municipal support for religious organisations (L149, 2016), a ban on the burqa and niqab in public (L219, 2017) and a specific and detailed mandatory ceremony requiring new citizens to shake the hand of the Minister (L80, 2018), which is assumed to be something Muslims would not do. All of this, and especially the criminalisation of certain opinions expressed during religious education and limitations on local support for religious groups, has a potentially dangerous impact on the social cohesion of religious individuals in society, the extent of which remains to be seen. All this legislation has been criticised vocally by the Church of Denmark, religious groups, civil and human advocates and much of the legal profession. The political agenda behind these acts and the disregard for its unintentional consequences makes it poor, ineffective and counterproductive legislation, and truly anti-democratic Muslim groups, such as Hizb ut-Tahrir, are having a field day. Ultimately, many of these legal instruments may never be used and the legislation might remain dead letter law, a lasting testimony to the anti-Muslim populism that ruled the former government. XIV. Bibliography Inger Dübeck, Kirchenfinanzierung der nordischen Länder, in: Zeitschrift für Evangelisches Kirchenrecht, Band 47, Tübingen 2002. Inger Dübeck, Church and State in Denmark, in: Robbers, Gerhard (ed) State and Church in the European Union, Baden-Baden, Nomos, 2005 Lisbet Christoffersen, Kirkeret mellem stat, marked og civilsamfund, Copenhagen 1998. State and Church in Denmark 105 Lisbet Christoffersen, Church Autonomy in Nordic Law,” in, Christoffersen, Modéer & Andersen, Law & Religion in the 21st Century – Nordic Perspectives, Copenhagen: DJØF Publishing 2010 Lisbet Christoffersen, Religion and State: Recognition of Islam and Related Legislation,” in, Nielsen, J.S. (ed.), Islam in Denmark. The Challenge of Diversity, Lanham, MD: Lexington 2012 Lisbet Christoffersen, Kjell Åke Modéer & Svend Andersen, Law & Religion in the 21st Century – Nordic Perspectives, Copenhagen: DJØF Publishing 2010 Lisbet Christoffersen & Niels Valdemar Vinding, Challenged Pragmatism – Conflicts of Law and Religion in the Danish Labour market, in: International Journal of Discrimination and the Law, Sage Publications (2012) Preben Espersen, Kirkeret. Almindelig Del, Copenhagen 1993. Preben Espersen, Kirkeret i Grundtræk, Copenhagen 2000. Brian Arly Jacobsen & Niels Valdemar Vinding, “Denmark,” in: Scharbrodt (et al) (eds.), Yearbook on Muslims in Europe, vol. 10, Leiden: Brill Publishers 2018 Mohammad Hashas, M., Jan Jaap de Ruiter, and Niels Valdemar Vinding, Imams in Western Europe, Developments, Transformations, and Institutional Challenges, University of Amsterdam Press, 2018 Lene Kühle, Religion and State in the Nordic Countries,Thematic issue of Nordic Journal of Religion and Society, 24(2), Oslo, Tapir Academic Press, 2011 Lene Kühle, et al, Funktionspræster i Danmark: en kortlægning, Aarhus University 2015 Peter Lodberg, The Evangelical Lutheran Church in Denmark 1940 – 2000, in: Ryman, G., Lauha, A., Heiene, G., & Lodberg (2005), P., The Nordic Folkchurches – a contemporary history, Grand Rapids, Michigan: William B. Eerdmans Publishing Co. Niels Valdemar Vinding, Muslim Positions in the Religio-Organisational Fields of Denmark, Germany and England, PhD Thesis, Publications from the Faculty of Theology, No. 42, University of Copenhagen Niels Valdemar Vinding, The Question of Sharīʿa in Denmark, Sharia Source at Harvard Law School, 2016 Niels Valdemar Vinding, Churchification of Islam in Europe, in: Vinding, N.V., Racius, E., & Thielmann, J., (eds.), Exploring the Multitude of Muslims in Europe. Essays in Honour of Jørgen S. Nielsen, Muslim Minorities Series, Vol. 27, Leiden: Brill Publishers 2018 Niels Valdemar Vinding & Lisbet Christoffersen, Danish Regulation of Religion, State of Affairs, and Qualitative Reflections, Publications from the Faculty of Theology, No. 36, University of Copenhagen Niels Valdemar Vinding & Emil Saggau, Challenges of the Institutionalization of Same Sex Marriage for Religious Pluralism in Denmark, in: Aslan, E. (ed.) Religious Pluralism in Europe, Springer International Publishing 2016 Niels Valdemar Vinding 106 Margit Warburg, Lige ret for Loke så vel som for Thor? Religionsbegreber og retspraksis i forbindelse med religioner uden for Folkekirken. Chaos 26, Copenhagen 1996 Henrik Zahle (ed.), Danmarks Riges Grundlov med kommentarer, Copenhagen 1999. State and Church in Denmark 107 Author’s note and thanks This article on State and Church in Denmark for the third edition of Gerhard Robbers (ed.), State and Church in the European Union, is based on prof. Inger Dübeck’s articles for the first and second editions. Although thoroughly re-structured, re-written, and updated, it is important to highlight that many of the choices, arguments and details find their direct origins in Dübeck’s articles. This concerns particularly sections VI, VII, VIII, IX, XII and XIII. Niels Valdemar Vinding 108

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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.