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Symposium 2016: Young Scholars Session
Image for Symposium 2016: Young Scholars Session
Photo credit: Page Johnson

by Page Johnson

The BYU Law and Religion Symposium provides an opportunity for rising young scholars to present their research on a topic related to Symposium issues. David Kirkham, Academic Director of the BYU London Centre and a Senior fellow at the BYU International Center for Law and Religion, welcomed this year’s students from China, Italy, Vietnam, and America with a bit of hopeful irony: “These are the people who are the future. They are the ones who will solve all the problems my generation has left them.”

The first young scholar to present was Cheng Hongmeng, Postdoctoral Fellow, Fudan University, China. His presentation was titled “Religious Freedom is the Purpose and the Means for a Higher Purpose”. The recurring theme in Hongmeng’s talk was that religious freedom is a means of reaching the higher purpose of religious harmony. He noted that the American story of independence from Britain included the belief that a fundamental human right is freedom of religion and that a person is entitled to this right because he is a human being.  Suggesting that this concept is “rooted in the hearts of all people,” he said that freedom of religion is the ultimate goal of people everywhere.   

Hongmeng referred to American immigrants who valued religious freedom, particularly early members of The Church of Jesus Christ of Latter-day Saints (LDS) who struggled to live their faith in peace. Aware that the annual Law and Religion Symposium is hosted by BYU, an institution owned by the Church, he mentioned a list of beliefs called the Articles of Faith that Mormon Prophet Joseph Smith expounded to his followers. Hongmeng singled out the 11th Article as a principle of a religious group that wants not only to practice its faith but also to live in harmony with those who profess other beliefs: We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may. 

Hongmeng said that people should have the freedom to practice their religion and to have freedom of choice and activity, but that these freedoms should be carried out within the law. He recognizes, however, that control issues can ensue—both between individual members within a religion as well as between religious organizations. 

He feels that we need to study religious cultures and expand the concept of religious freedom in the search for a “higher value” or a “higher purpose” to life. He concluded by citing the interfaith declaration of the 1993 Parliament of the World’s Religions that is based on the golden rule: (paraphrased) Do unto others as you would have them do unto you. This positive approach for the future is one he believes the Mormon Church understands and embodies as it contributes to religious harmony in the world. 

Elena Ervas, PhD Student, Universita Ca Foscari, Italy, presented her research titled “Agreements between the State and Religious Denominations: The Italian Perspective”. Ms. Ervas focused on the mechanisms the Italian Constitution provides to regulate relations between the State and religious denominations, and she examined how a ruling in a case brought by the Union of Atheist and Agnostics—albeit not a religious denomination itself—may affect all religious groups.  The issue was whether a religious denomination has the right to enter into an agreement with the State. 

Although the Italian Constitution does not mention a general law on religious freedom, it does provide that interactions between the State and religious institutions be governed by specific agreements between the two. There are two methods of achieving this: 1) a Concordat governs the relationship between the State and the Catholic Church and 2) an Intesa governs the relationship between the State and other non-Catholic denominations. (To date, twelve religious denominations have negotiated such an agreement.) 

Each religious denomination is considered autonomous, with the power to negotiate agreements with the state that meet their specific needs. Religious denominations are not required to have such agreements with the State in order to enjoy special status or religious freedom, but without such agreements they will be governed by general laws which give the government more control over the group; consequently, religious groups are incentivized to enter into agreements to obtain more favorable status.

The problem arises when a denomination wants to enter into an agreement with the State but the State refuses. The Union of Atheists and Agnostics brought such a case before the Italian Constitutional Court, but the Court argued that a religious group cannot invoke a right to enter into an agreement with the State nor start negotiations towards an agreement. This means that only the State is responsible for starting and concluding an agreement with religious denominations, plus it is up to the State to ensure that the agreement takes effect. The religious denomination must abide by the State’s actions with no court protection. 

Ms. Ervas argued that this situation poses risks for religious groups because it may lead to discrimination, since the State does not need to provide justification for treating different religious groups in different ways.  The applicant in the above-mentioned case has brought the case before the European Court of Human Rights. Ms. Ervas pointed out that past cases before this court have said there must be an “objective and reasonable justification” for differences in treatment the State may give to different religious groups.

The third young scholar to present was Duong Nguyen, PhD Candidate, Vietnam National University, School of Law. Her presentation was titled “Regulation on Religious Freedom in ASEAN countries”. Nguyen detailed various ways that members of the Association of Southeast Asian Nations (ASEAN) have sought to identify, protect and regulate religious freedom issues in their countries. Currently, the association includes ten members: Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam.

She divided her paper into three sections: Religious diversity in ASEAN countries, religious freedom in domestic law, and religious and international obligations regarding religious freedom. 

She first pointed out the great diversity within these countries, both political as well as ethnic racial, cultural, linguistic, and religious. In addition, she noted that all ASEAN countries were colonized except for Thailand and listed the various colonizers for each, observing that some of them helped codify laws. The result of such diversity and history is that the laws regarding religious freedom differ and can be very region-specific. Currently, the largest religious group within ASEAN is Islam (primarily Sunni), with 42% of the population, followed by Buddhism at 18%, and Christian at 17%. 

Nguyen examined parts of the constitutions of various ASEAN country to show how most of these constitutions protect freedom of thought, conscience and religion--as long as the rights and freedoms of others, public health, public order, and national security are protected. Some countries declare one religion the official religion, while others ensure special privileges for one religion. Islam is the official religion of Brunei, Indonesia, Malaysia; only Cambodia has designated Buddhism as the state religion. Of the 10 state constitutions, Cambodia, Indonesia, Malaysia, Myanmar, Singapore, Thailand, and Vietnam have equality/non-discrimination clauses about religion. 

Nguyen concluded her paper by highlighting a number of international instruments regarding freedom of religion and the ASEAN members who have either ratified them and/or declared reservations about specific aspects of such instruments.  

Khac Duc Nguyen, PhD, Institute for Religious and Belief Studies, Ho Chi Minh National Academy of Politics gave his presentation “Improvements in Implementation of Religious Freedom in Vietnam Today”. Nguyen divided his presentation into five sections: making laws on religion or belief, recognizing and registering religious organizations, facilitating the building of places of worship, the religious activities of foreigners in Vietnam, and religious issues. 

Calling Vietnam a colorful “museum of religions,” he said old religions as well as new have originated both within and outside of the country, and he provided a variety of statistics regarding different religious entities. More than 90 percent of the population professes religious beliefs and 27 percent identifies with a specific religion. Buddhism is the largest religion with 11 million believers. 

Although Vietnam has been implementing policies about religious freedom for the last quarter century, he says the protection of religious freedom has been a “circuitous journey.”  He cited several laws and legal documents added since 2004 that have substantially facilitated religious practice and protection. The “Ordinance on Belief and Religion,” that provides religious rights and recognizes religious organizations, has prompted many religious groups to register. There are now 39 such groups.

The ordinance also addresses religious activities of foreigners in Vietnam, allowing them much more flexibility and freedom, such as permitting them to bring religious publications into the country for their own need or to print religious materials. Nguyen noted that, “religious publications have recently rocketed.” More diverse kinds of religious activities are also permitted now, such as a U.S. evangelists’ address in Ho Chi Minh City in 2011. A separate legal document helps Protestant denominations gain needed recognition and status. 

One of the biggest issues concerns the religious use of land to build places of worship or seminaries to train clergy. The document, “Instruction on Buildings, Land Concerning Religion” helps facilitate the returning of land and buildings to religious entities. 

Nguyen also pointed out that the 2013 Vietnamese Amended Constitution considerably furthered religious freedom by saying that everyone has the right to freedom of belief and religion. A draft of a Law on Belief and Religion was submitted to the Vietnam National Assembly in 2015.

Currently, the religions with the most numerous places of worship are the Buddhists and Roman Catholics; their religious buildings include churches, seminaries, monasteries, and schools.  Graduates from religious schools and training courses from all denominations totaled 6,963 in 2005.

Ongoing problems include the lack of funding, lack of religious leaders and clerics, and lack of understanding about religious concerns. Many officials still misunderstand religion and are not prepared to protect religious freedom. 

The final presenter was James Heilpern, Law clerk, U.S. Court of Appeals for the Fifth Circuit. Heilpern noted several decisions in recent Supreme Court cases that protected religious liberties based on legislative enactments and not on the First Amendment. He finds this a troublesome trend, and he also believes the Religious Freedom Restoration Act (RFRA) may be in jeopardy, although it had widespread bipartisan support when it was signed into law in 1993. 

He compared the modern age, with alternating positive and negative attitudes regarding religious freedom and religious liberty to an age in A Tale of Two Cities that Charles Dickens described as both the best and the worst of times. Heilpern suggested that this conflict about and ambiguity towards religious freedom and liberty is due in part to changes in connotation –that these phrases have different meanings and evoke different reactions today than they did in earlier historical settings.  He said that although there is “much to be excited about” concerning the state of religious freedom today, the linguistic and societal changes associated with the phrases themselves may impact the way they are being protected under the law.

To support this, he applied the technique of corpus linguistics, which studies the gradual evolution and use of words over time, to reveal his findings that: 1) we talk about religious freedom less than we once did, and 2) the terms “religious freedom” and “religious liberty” do not have the positive connotations they once did. For example, although “religious freedom” was once referred to as a “noble endeavor” in the first half of the 19th century, it only appeared in a positive context 27 percent of the time between 1990-2012. 

“It’s important that we recognize these subtle changes in connotation,” Heilpern argued, “especially now that our religious freedoms are protected principally by statutes and not by the Constitution.” Moreover, he is concerned that even the statues may come under scrutiny and face revision or revocation.