Jehovah’s Witnesses in Court in Europe: Trailblazing for Religious Freedom

James T. Richardson, J.D., Ph.D.University of Nevada, Reno

jtr@unr.eduCESNUR Conference

Baylor, UniversityJune, 2014

This presentation was derived from a chapter in a volume by Brill entitled “Handbook of Global Contemporary Christianity” edited by Stephen Hunt, 2014. Do not quote or use without permission.

Early History

• Began in 1870s in the United States• Now has eight million members worldwide;

represented in nearly every country• Most litigious of all religious organizations• Developed a “vigilant litigation” approach, using

courts to defend beliefs and practices where possible; evolved into “disciplined litigation”

• Very successful, establishing precedents in a number of countries and regions supportive of religious freedom

United States Cases

• Hundreds of cases filed in 1930s and 1940s mainly over proselytizing practices

• Won about 50 cases before they U.S. Supreme Court, helping expand the Bill of Rights provisions to all non-federal governmental entities– Helped establish freedom of religion– Helped establish freedom of association– Helped establish freedom of expression– Also helped establish conscientious objection rights, medical

treatment rights, and rights of parents to raise children within a religion (custody cases)

Canadian Cases• Pattern of cases similar in Canada, but about a decade later, with

many cases in the 1950s• Witnesses were officially banned from 1940 to 1943 for refusing to

support war; and suffered serious discrimination• Especially Quebec was a problem area, with the close intertwining of

the Catholic Church and the government of Premier Duplessis (Premier from 1936-39 and 1944-59)

• Won several key cases with Canadian Supreme Court establishing right to distribute literature and proselytize, against police harassment, and even won a lawsuit against the Premier! (Roncarelli v. Duplessis, 1959 )

• Also contributed to the movement toward the Canadian Charter of Rights and Freedoms

European Background

• Post-WWII emphasis on human and civil rights laid groundwork for Witness use of the courts to further their interests and religious freedom in this region

• Constitutional courts also established in most western European countries after the War

• Council of Europe (COE) established after the War • European Convention for Human Rights and Fundamental

Freedoms approved1950, effective in 1953; included Article 9 on freedom of thought, conscience, and religion

• European Court of Human Rights established to enforce the Convention, but Article 9 not enforced for four decades (“margin of appreciation” granted to original members)

Article 9

Article 9 of the European Convention reads as follows:• Everyone has the right to freedom of thought, conscience,

and religion; this right includes freedom to change his religion and belief, and freedom, either alone or in community with others and in public and private, to manifest his religion or belief, teaching, practice, and observance.

• Freedom to manifest one’s religion or belief shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for protection of the public order, health or morals, or for the protection of the rights and freedoms of others.

Jehovah’s Witnesses and Article 9

• Kokkinakis v. Greece (1993) involving a Witness proselytizing cases was first violation of Article 9 found, on a split vote (6-3) (Greece criminalizes proselytizing)

• Timing was propitious, as Soviet Union had just broken up, and many former Soviet dominated nations wanted to join the Council of Europe even though many did not have a culture and history of religious freedom

• Since then there has been a flood of successful Article 9 cases, many of which involve Jehovah’s Witnesses, and most of which come from former Soviet dominated countries and Greece

Record of Witness Cases before ECtHR

• From 1964 through August 2013 a total of 209 Witness cases filed with the ECtHR from many countries

• Witness plaintiffs have won 29 cases, and had 26 “friendly settlements”

• Lost two cases, five were withdrawn, and 79 are still pending

• A truly amazing record that rivals what was accomplished in the United States and Canada

ECtHR Record, continued

• JW cases and friendly settlements have included cases dealing with of registration, taxation, censorship of materials, freedom of expression, child custody, deportation, confidentiality of medical records, neutrality of the State, conscientious objection, and meeting disruptions

• Even France has finally lost a recent Article 9 case involving the Witnesses, because of French efforts to drive them out using tax regulations

Constitutional Courts also Important

• German Constitutional Court found in favor of Witnesses in 2005, forcing their acceptance as a “public religion”, a very important designation

• Constitutional Court in Russia also found in favor of the Witnesses in a reregistration case that eventually went to the ECtHR where the Witnesses won a unanimous verdict.

• ECtHR tries to work with constitutional courts where possible to assist in establishing rights under the Convention, as well as judicial autonomy

Implications for the Witnesses and Other Minority Religions

• Jehovah’s Witnesses are now registered and active in all COE countries (although some, especially Russia, are engaged still in systematic harassment of the Witnesses)

• Witnesses usually can pursue their beliefs and practices more openly than before

• Other minority religious groups have also gained from the many legal battles fought by the Witnesses

Implications for the ECtHR and the Council of Europe

• Article 9 is being enforced, but in a focused manner; what looked like a “double standard” between original and new COE members appears more nuanced

• Major thrust of decisions seem to be for right of religious groups to exist, which is major problem in former Soviet dominated nations (and France)

• There is less focus on individual religious freedom issues in ECtHR cases law, although some cases do involve such claims

Final Comments

• Courts in the U.S. and Canada used Witness cases to establish important precedents

• In U.S. Witness cases to expand Bill of Rights to state and local governments

• In Canada the Supreme Court used Witness cases to establish basic rights and that even the Premier was subject to the law

• ECtHR and constitutional courts also used Witness cases to expand authority and establish individual rights as well as judicial autonomy

Theoretical Suggestions

• Theory of mutually beneficial interaction (between the courts and the Witnesses)– Both the courts and the Witnesses have an agenda and

they assist each other in accomplishing their goals

• Theory of third party partisanship (see Donald Black’s work)– Can the courts be considered “third party partisans?