The International Journal
of Not-for-Profit Law
Volume 6, Issue 1, September 2003
By W. Cole Durham, Jr. and Elizabeth A. Sewall
From its earliest days, ICNL has recognized the close connection between the general law of not-for-profit organizations and the law of religious associations. With this issue of IJNL, we take the opportunity to report on a number of representative developments in the religious sector.
That the laws of religious organizations and those of other non-profit organizations should parallel each other is not surprising. Religious organizations constitute one of the oldest types of non-state institutions. As Shirley Williams’s essay reminds us, the world’s religions have provided a major impulse for charitable giving and for idealistic, public benefit service. Actors in the religious and non-religious sectors often overlap. Religiously motivated gifts and bequests have created the need for separate legal entities that can hold, control, and use the property thus contributed. As a practical matter, many secular not-for-profit organizations are spin-offs from religious organizations. In the United States, religious individuals and organizations often set up secular organizations to obtain funding that would otherwise be banned by the constitutional prohibition against establishment of religion. Liability or other organizational concerns may also prompt the creation of affiliated secular not-for-profit entities.
As a functional matter, moreover, the legal issues facing religious organizations are often very similar to those facing secular non-profits. How many founders are required? What formal features must be included in the initial charter or articles of incorporation? What legal mechanisms prevent unscrupulous parties from exploiting religious entity status to circumvent tax, customs, and other financial obligations? On what grounds should such organizations be dissolved? How intrusive should the state be in determining whether a particular organization can qualify for entity status? How broad an array of entity types should be made available? The parallels could be multiplied at length.
At the same time, significant differences must be taken into account. The most fundamental of these, of course, is that freedom of religion or belief holds profound significance when the state deals with religious organizations. It is now well settled, both in the case law of the United States Supreme Court and in the decisions of the European Court of Human Rights, that religious organizations may assert religious freedom claims. In a chain of recent cases, for example, the European Court has held that freedom of association carries with it the right to acquire legal entity status. The Refah Partisi case discussed by Christian Moe in this issue sustained the dissolution of a religiously affiliated political party, but only in a situation where the Court saw a genuine risk to democratic institutions. Moe considers the decision wrongheaded in many ways and blames unfair and stereotypical thinking about Islam, but whatever one’s view on that point, it is clear that Refah does not disturb earlier decisions holding that religious organizations have a right to entity status.
Legislation regarding religious associations often confronts a markedly different political environment than does legislation governing secular non-profits. Despite secularization of varying degrees in different countries, and perhaps because desecularization is increasingly evident in many areas, laws dealing with religion raise a distinct set of sensitivities. As a country seeks a new sense of identity, it often reaches to the past in ways that involve religion. Political parties typically seek to avoid offending prevailing religious groups and may in fact curry favor with them. New legislation has sought to address perceived challenges in Central and Eastern Europe (see the articles in this issue on Bosnia, the Czech Republic, and Belarus) and Latin America (discussed in Scott Isaacson’s comparative analysis of legislation in Colombia and Chile). In Eastern Europe, there has been a lamentable trend to adopt legislation overly protective of traditional religions, as exemplified by the minimum-member requirement of 300 in the Czech legislation discussed here by Petr Pajas. The combination of excessive fears concerning “dangerous sects” and the pursuit of identity politics has been leading toward more restrictive legislation.
Religious organizations often face restrictions and regulatory burdens that exceed those governing secular non-profits. This is both paradoxical and unfortunate. At a minimum, religious organizations ought to be treated the same as other non-profit organizations, and in certain areas, the concern for religious freedom should grant them even greater autonomy.
Complexities in the religion area have been further highlighted by the events of September 11. Anti-extremism laws, such as the one discussed here by Brian Gross, raise a new set of questions for religious entities. Security interests and religious freedom rights have collided in a recent spate of cases where terrorists have seemed to justify their actions by reference to religious teachings.
We wish to express our gratitude to IJNL staff for giving us the opportunity to guest edit this issue, which we hope will not only contribute to awareness of significant recent developments, but help to broaden awareness of some of the distinctive issues emerging in the religious sector.
W. Cole Durham, Jr.,
Elizabeth A. Sewell,
International Center for Law and Religion Studies
Brigham Young University