A Paradigm Shift in the Religious Communities Act

Vart Land

January 19, 2024

The case of Jehovah’s Witnesses is a good example of the paradigm shift that the Religious Communities Act has undergone: Before, the religious communities were allowed to govern themselves. Today, the protection of the individual is much stronger.

Jehovah’s Witnesses have filed a lawsuit against the state after they were stripped of their registration as a religious community and thus also their state subsidy. The lawsuit is a good example of the paradigm shift in the Religious Communities Act, the chronicler believes. The picture shows board member of Jehovah’s Witnesses, Kåre Sæterhaug, in court

The pending court case between Jehovah’s Witnesses and the state raises fundamental questions about the relationship between religious freedom on the one hand and individual rights on the other. The balance point between these has changed considerably through the Religious Communities Act of 2020, which is due to a conscious choice of direction by our elected representatives. The importance of democracy is nevertheless almost overlooked in the public debate of the last few days. Legal developments over the past 50 years show that the majority has now adopted a completely new regulation of religious communities in Norway, which gives individual rights far stronger protection than before.

50 years ago: Religious communities can govern themselves

Norway got its first law on religious communities in 1969, and it was in force until it was replaced by the 2020 law. The 1969 Act established a system of state support for religious communities. At the same time, the law contained few and vague requirements. It established that “right”, “righteousness” and “morality” must not be violated, but these were requirements that had little meaning in practice. Under the 1969 Act, religious communities could thus both receive state support and have great freedom to decide how their own business was run.

Vibeke Blaker Strand is professor at the Department of Public Law at the University of Oslo.

However, questions about the rights of individuals within religious communities have been an ever-recurring theme. This was clearly expressed when the first law on gender equality (Equality Act 1978) was passed. The law applied to all areas of society, but with one limitation. It did not apply to “internal affairs in religious communities”, which gave religious freedom priority over women’s individual protection. But after this, both society and the law have developed further.

25 years ago: Individual protection comes into play

From the year 2000 onwards, the scope of individual rights accelerated. This was closely related to the internationalization of Norwegian law. The human rights provisions on individual protection were central. Among other things, both the UN Convention on the Rights of the Child and the UN Convention on Discrimination against Women were made part of Norwegian law. EU/EEA law’s rules on anti-discrimination were also of great importance. These were central when, from 2005, the Storting passed new laws which provided discrimination protection for new groups.

Neither the human rights conventions nor the EU/EEA directives contained special exceptions for religious communities. This meant that the Equality Act’s exception for “internal relations in religious communities” came under pressure – and was repealed in 2010. As a result, religious communities were no longer an area of ​​exception. They had to comply with rules on discrimination in the same way as all other actors. More concretely, this means that religious practice in itself was not enough to be able to justify any activity in a way that made it legal. The practice of religion instead had to be weighed against affected individual rights. There are many examples of such balancing of rights with freedom of religion on the one hand and individual protection on the other – e.g. in cases from the European Court of Human Rights. The strengthening of individual protection thus led to a change that narrowed the freedom of religious communities. Freedom of religion was still a fundamental human right, but it could no longer be seen separately from other fundamental human rights, such as the rights of children and women or the right of individuals to private and family life.

Religious Communities Act 2020: Individual protection as a limit

The purpose of the Faith Communities Act 2020 is to “support faith and belief communities”. At the same time, it relates to the fact that individual protection is strengthened by this being drawn directly into the law. This appears, among other things, in § 6 (1) on the right to withdraw state aid. Here it states that state grants can be refused or curtailed if a religious community “exercises violence or coercion, makes threats, violates children’s rights, violates statutory prohibitions on discrimination or in other ways seriously violates the rights and freedoms of others”. Section 4 (2) states that a breach of Section 6 can lead to the withdrawal of registration as a religious community, which has the consequence, among other things, that the right to marry is lost.

By including individual rights, the 2020 Act draws up boundaries for the kind of activity that can take place in religious communities that receive state support. The changes are accompanied by a strengthened structure for supervision and control, and faith and belief communities have an obligation to report on their own activities in a more detailed manner than before. The difference to the 1969 regulations is thus large. In reality, we are talking about a paradigm shift.

The consequences of the paradigm shift

The administration of the Religious Communities Act 2020 has been added to two state administrators: Agder, and Oslo and Viken. We are now seeing more and more examples of the supervisory authorities using the new rules. The case of Jehovah’s Witnesses is an example. Another is the decision that Menigheten Samfundet will lose the state grant for 2023. The rules are new and the changes are big. It is therefore not surprising that there is disagreement about the implementation. However, the overall perspective must not be lost sight of. The 2020 regulations are based on a conscious choice by our elected representatives. The law’s content is linked to a long legal development where religious communities have gradually had to adapt to a new legal situation as a result of the introduction of individual rights. The way I see it, today from a human rights perspective it would be demanding to maintain a system of active financial support for religious communities, without the development of law with regard to the rights of individuals being taken into account. The 2020 Act expresses precisely this: Protection of individual rights is no longer something that can be defined apart from the activities of religious communities. Privacy also applies here.