Separation of church and state: towards a (truly) neutral Constitution? Interview with Thomas Leys (head of the Open Vld research department)

Leys assisted Patrick Dewael in drafting the proposal for a preamble to the Belgian Constitution.

Introduction

The debate on the place of religion in our society has gained importance in recent years. Over the past decades, immigration from Islamic countries has raised questions about the place of Islam. Think, for example, of Islamic terrorism, slaughter without stunning, or whether or not to provide separate swimming facilities for men and women. As a result, questions arise in our post-secularised Western European society about the relationship between religion – recently Islam in particular – on the one hand, and civil society or the democratic state on the other. There are concerns, for instance, that within certain population groups the view prevails that religious precepts take precedence over civil law, putting our ‘fundamental values’ under pressure. Others, by contrast, regard religion as inherently irreconcilable with a rational worldview, which calls into question whether religion may legitimately claim a place in the state. The discussion on the relationship between religion and state is therefore back as if it had never left.

The above has not escaped the attention of the political world. Calls are being made from various quarters for an adapted (constitutional) legal framework on the relationship between church, faith and state. Patrick Dewael (Open Vld) took the initiative to draw up a report on the character of the state in the Constitution Committee. Members of the Chamber Veerle Wouters and Hendrik Vuye argued in response that the Constitution should explicitly prescribe the supremacy of civil law over religious precepts. Patrick Dewael in turn proposed adding a preamble to our Constitution and amending certain constitutional provisions. He aims, among other things, to anchor the separation of faith and state, the neutrality of public authorities, the equality of men and women and, more generally, the values of the Enlightenment more prominently in the Constitution. Reactions from other parties, however, indicate that not everyone regards the need for such constitutional amendments as equally urgent. The current relationship between church and state is, after all, the result of historical compromises. Substantially calling these balances into question is no easy task.

What do you want to achieve with the proposed preamble and constitutional amendments that goes beyond the current provisions?

LEYS: When Patrick Dewael opened the debate in the Constitution Committee in January 2016, our objective was not merely to put forward the idea of the preamble. We did observe, however, that in the aftermath of the Paris attack and the refugee crisis there is much talk in our society about our values and norms and fundamental rights. We ask ourselves what Belgium or Europe stand for, and what those Enlightenment values to which we attach so much importance entail. Mr Dewael felt that we should be clearer about this, so that we do not end up in a society where everyone goes in a different direction. There must be clarity about the basic principles on which we agree as a society.

After a series of hearings with philosophers, constitutional law scholars and other academics, we found that a number of principles are indeed in our Constitution, but that we did not find a number of other things expressly stated. We found that the Constitution makes few clear choices or contains few express provisions. It is often said that the Constitution regulates the separation of church and state, but nowhere is it expressly stated what the exact relationship is. Case law and legal scholarship have admittedly partly filled that gap, but why should we not provide clarity on this in parliament and in the Constitution itself? You can put these basic principles of our society more prominently in article X or Y of the Constitution, but we think it is better that, when someone starts reading the Constitution, he or she is immediately confronted with those principles. That is how the idea of the preamble came about.

The Belgian Constitution receives little attention in society, certainly compared to the status the constitution has in Germany or the United States. In those countries, the population is proud of its constitution and also knows its content much better. We also want to introduce that constitutional culture in Belgium. At present, the Constitution only receives attention at the umpteenth state reform, but citizens have no real bond with their Constitution.

The Constitution should therefore be clear, and it also has a pedagogical role to fulfil. In fact, you should ensure that the Constitution gives priority to the things that are important and essential. In that sense, the intention is not to introduce completely new provisions, but rather to seal existing discussions and to anchor the choices we make as a society in our Constitution.

Is there already a consensus on the legal value the preamble should have? Should it be binding, or rather symbolic as in the American Constitution, for example?

LEYS: The preamble will probably not be drafted with binding provisions, but will mainly contain principles. But it will of course be part of the Constitution, and you therefore have to read the preamble together with the text of the Constitution.

So it would rather be a secondarily binding, interpretative preamble?

LEYS: Yes. But of course much also depends on how the Constitutional Court and other courts deal with it afterwards. In the first place you naturally have to look at the Constitution itself and how certain rights are described in it, but when we are confronted with conflicting fundamental rights, a preamble can of course provide guidance. The intention is not to curtail the Constitutional Court's room for interpretation, but rather to set the direction somewhat. We stand for a great deal of diversity in our society, but we do consider a number of principles central. The intention is that no one can say in 10-20-100 years that these kinds of things are no longer important. We are talking, for example, about the equality of men and women, but also things such as the right to self-determination etc., things which we believe must never again be tampered with.

We saw in the motion for a resolution and in the preamble itself that it speaks of the separation of ‘faith’ and state, and not of the traditional term separation of ‘church’ and state. What is the underlying reason for this?

Church is still mainly interpreted in our country as the Catholic Church, but that is no longer accurate. In 1830 the church was a power organisation with which the state had a certain relationship. Today faith has become much more an individual matter. In addition, there are numerous organisations and institutions that call themselves e.g. Catholic, Protestant, Jewish or Islamic without all of them falling under a central institution such as the Church, and as a result more and more questions arise. If, for example, a Catholic hospital says 'We are not going to apply the euthanasia act', then it does that sort of thing on the basis of faith and not so much the church as such. That is why we want to extend the discussion to faith, but also to philosophical convictions. Organised secular humanism, for example, is not a faith, but it is a philosophical conviction. It too could develop through a pillar with which a number of people would not feel comfortable, because they do not want their government to be dominated by what would then be seen as militant atheism. In our texts we use faith and philosophical conviction interchangeably, but in the final text this indeed needs careful consideration.

Earlier this year Olivier Maingain tabled a proposal to enshrine laïcité in the Constitution – following the example of France. This proposal was not adopted. In the French-language press Mr Dewael consistently uses laïcité, whereas the proposed preamble uses neutrality; what is the reason for that?

LEYS: That is mainly a linguistic matter, I think. Vrijzinnigheid is laïcité in French, so it mainly has to do with that. We are not in favour of the concept of laïcité because it is too reminiscent of the situation in France. That situation cannot simply be transposed to Belgium, and that is why we chose not to use that word. But we are of course engaged in a discussion about laïcité, though more in the academic sense. We believe that the state is not built on certain religious principles; we believe that we are a secular state. That does not mean, however, that the Constitution must therefore state that Belgium adheres to laïcité. For us it is not a deal-breaker to put that in the Constitution at all costs.

On the French-speaking side, the PS has proposed setting up a citizens' convention to discuss constitutional amendments with citizens and not only within politics. Are you also working on that?

LEYS: Absolutely. On the one hand we want the preamble and the principles we want to make explicit in the Constitution, but at the same time we want to pay attention to constitutional culture. In a number of interventions by experts, but also by the various parliamentary groups, it emerged that if you want to make a constitution of and for the people, you also have to involve those people. One of the findings is that our Belgian Constitution was drawn up in 1830 by the National Congress, which admittedly represented the people, but at a time when only 1% of people were allowed to vote. Later constitutional amendments often took place in the context of a state reform over the heads of the people, and that probably also explains the weak constitutional culture in our country. With our proposed preamble you now finally have the opportunity to open up the constitutional debate to the whole of society.

We would therefore like a broad debate that can also be held locally. We also believe that it fits perfectly into the process we are in. As you know, article 195 of our Constitution regulates the procedure for constitutional revision. In practice this often means that the government, at the end of its term, briefly considers which articles should be declared open to revision. Now we have the opportunity as parliament to draw that debate towards us and to hold a broad debate with the population. With input from society we can look at which points of the Constitution need to be amended or, if it is felt that there is a need for a preamble, which form we then prefer, … In this way we can draw up a broadly supported list of articles to be declared open to revision in 2019.

So the intention is to involve the population to some extent before the elections, but afterwards politics pulls the blanket back to itself?

LEYS: Yes. Ultimately it is of course parliament, the constituent power, that amends the Constitution. But it does no harm first to hold the debate with society and, after the next elections, to see whether we can form a two-thirds majority.

How do other parties react to your proposed preamble? Do you encounter opposition?

LEYS: Although we had initially expected resistance, we do notice that the other parliamentary groups are taking a very constructive stance and, if necessary, are coming up with alternatives. CD&V, for example, proposes, instead of a preamble, to extend art. 1 of the Constitution with a kind of text such as we had envisaged for the preamble. Our party chair Gwendolyn Rutten (Open Vld) has also regularly remarked that the first article of the Constitution, with its reference to Communities and Regions, is actually only a ‘sad’ opening for our Constitution. We think a preamble would be the most elegant solution, but it can therefore also be an interesting avenue to elaborate somewhat on art. 1 of the Constitution, which also has merely a certain declaratory value. It depends on where the text belongs best. In themselves the positions are reconcilable.

How do you assess the attitude of the N-VA? From a Flemish nationalist point of view, it is not self-evident to give the Belgian Constitution more symbolism and ‘bravura’.

LEYS: Geert Bourgeois (N-VA) gave an interesting speech a few months ago on developing a constitutional culture. He speaks about certain important principles with which we can certainly agree, but then wants to apply them to a Flemish constitution or Flemish basic decree. Those principles are, however, equally applicable in the Belgian context. They are, after all, universal principles: there is no reason why Flemish fundamental rights should differ from Belgian fundamental rights. On that point the N-VA is in fact not consistent.

In the past, Open Vld has also made proposals for a Flemish constitution. In other federal countries, the constituent entities often have constitutive autonomy. To us, however, this seems rather a long-term exercise, which would moreover cause much more division. That is why we prefer to improve an already existing instrument. This does not alter the fact that attention to these aspects is needed at various levels of government. For instance, important fundamental rights instruments also exist at European level, such as the ECHR or the Charter of Fundamental Rights of the EU.

Dewael's motion for a resolution proposes making explicit in art. 21 of the Constitution that religious precepts can under no circumstances be placed above civil law. To what problem does this proposal respond? Are there currently examples of situations in which people can evade the application of legal rules on religious grounds, or is the amendment purely symbolic?

LEYS: The question of this relationship arises in a number of issues. There is, for example, the issue of slaughter without stunning and animal welfare: the Council of State clearly has great difficulty in taking a clear position on this, and essentially proposes reaching a solution through dialogue. The euthanasia discussion is another example. We believe that when designing such legal frameworks, freedom of religion and conscience must certainly be taken into account. From the moment a law has been adopted, however, faith or philosophical conviction may not be a reason to evade the application of the law. Thus, in the context of euthanasia, the patient's right to self-determination prevails over the conscientious objections of a Catholic hospital. Individual doctors, however, may not be forced to participate in euthanasia.

The preamble speaks of an absolute priority of civil law over religious precepts. Does this mean that freedom of religion is thereby restricted? Religious rules would, after all, then always lose out to civil rules in the future. Jogchum Vrielink gave the example of the Catholic Church, where women may not become priests. If the Constitution states that civil law has absolute priority over religious precepts, could women then in theory possibly enforce the priesthood?

LEYS: The separation of faith and state in principle means that the state does not interfere with the internal organisation of religions and with the substantive choices made within a particular religion, insofar as the general interest does not oppose this. Thus one may of course not break the criminal law on the basis of religious or philosophical convictions. For the rest, it is up to the religions themselves to make any internal changes.

Conflicts may, however, arise with regard to the question whether a particular practice (for example wearing a headscarf within Islam) is internal to a particular religion, or may nevertheless be subject to certain measures insofar as it concerns a practice that manifests itself in the public space.

In the context of strict neutrality of the state towards religion, would it not be advisable for the state no longer to recognise certain religions? The recognition mechanism by definition implies a choice between certain religions, which has important consequences in terms of the funding of religious worship. Moreover, in this way citizens fund religions they do not practise (unlike, for example, Germany and Italy). Can such a system really be called neutral? Or does the current recognition regime also offer advantages for the state?

LEYS: Open Vld's party position is that religious worship should not be funded with public money. In our view this is best done in another way, for example through voluntary contributions from believers. That is not, however, the aim of this proposal, since no majority will be found for this in parliament.

The fact that the state recognises certain religious institutions does not, however, mean that there is a mixing of faith and state. The state subsidises many organisations, such as cultural or sports associations. Nobody claims that artists or sportspeople would for that reason no longer be independent. No substantive accountability whatsoever is expected in return for recognition. The criteria for recognition could, however, be more transparent and objective.

Dewael's resolution calls for a revision of article 19 'to clarify under which circumstances the freedom of worship and its free exercise may be restricted, as well as the freedom of religion and worldview’. What circumstances are meant here?

LEYS: The motion for a resolution includes all constitutional articles relating to faith and state. It is quite possible that this or another article will ultimately be left untouched.

Many of our rights and freedoms are in fact very relative. There is, for example, a freedom of expression which applies only insofar as the law does not provide otherwise. It can therefore simply be nullified if parliament, for example, adopts a law stating that one only has the right to say what is in line with the government's position. Only later did the ECHR, for example, make clear that rights and freedoms can only be restricted under certain conditions (necessity requirement, the restriction must be appropriate in a democratic society, etc.).

With the preamble, too, the intention is to make clear when restrictions are possible. Restrictions must be possible, but not just any form of restriction.

In interviews, Dewael spoke about a ban on religious symbols for civil servants. Is it justified to equate the expression of a particular religious conviction by a particular civil servant by means of a religious symbol with the expression of a religious conviction in the name of the public authority itself? On what grounds can such a ban be justified?

LEYS: The intention is not to write such a ban on religious symbols directly into the Constitution. We do argue that the principle of neutrally acting public authorities be anchored in the Constitution. Until now, that principle has nationally only been explicitly recognised in the case law of the Council of State. In the context of this principle, a clear debate will then have to take place in parliament, in which it will have to be determined whether this falls within the individual's freedom of religion or within the neutral conduct of a representative of the public authority.

Many experts describe neutral conduct by public authorities as not showing a preference for particular philosophical convictions, whereby only the actions of civil servants may be taken into account. Patrick Dewael, by contrast, believes that in the case of genuine outward signs of religious conviction, the neutral conduct of the public authority can rightly be called into question, in particular for civil servants who come into contact with the public.

What is most important, however, is that a general rule of conduct is agreed upon that is the same for the whole country. In this way it is clear to everyone what is and is not allowed, and the judiciary no longer has to decide case by case. At present every public authority sometimes has different rules.

To what extent is it desirable to adopt an interpretative preamble more than 185 years after a constitution came into being? In legal scholarship, Frank Judo in particular has already expressed criticism of what he calls the ‘postamble’[1]. By including such a preamble, does one not risk differences in interpretation and substantive shifts in relation to the current understanding of the Constitution, as already indicated by CD&V Chamber group leader Servais Verherstraeten?

LEYS: In itself it may indeed seem a rather strange exercise to write a preamble to the Constitution 185 years after the fact. One should not lose sight, however, of the fact that certain stylistic interventions have already been made in the Constitution in the past. For example, the Constitution was coordinated in 1993, resulting in a renumbering of the articles and titles. Such a ‘postamble’ need not be impossible at all. One could just as well call our proposal an ‘introductory declaration’ or a ‘preliminary title’. The CD&V avenue, which proposes extending art. 1 of the Constitution, seems to us to carry more risk of interpretation difficulties than adding a preamble, since there is a risk that art. 1 of the Constitution will have more binding force than a preamble.

To what extent must the revision procedure of art. 195 of the Constitution be followed for a possible preamble? Is it possible to bypass it?

LEYS: One of the experts, Prof. Marc Uyttendaele (ULB), argued that art. 195 of the Constitution only applies to amending constitutional provisions and not to adding a preamble, which would mean that one has the right to adopt a preamble without following the constitutional revision procedure. All the other experts, by contrast, do regard such exercises as tinkering with the Constitution, which of course means that art. 195 of the Constitution does indeed apply.

How do you expect the further work in the committee to proceed?

LEYS: We are now moving towards two tracks. First, there is the work on the preamble, an idea a majority of parliament would like to pursue, knowing full well that the two-thirds majority is not yet there in the next legislature. The election results will of course play a major role in this. We also want to make a form of citizen participation possible. In any case, we want to approach this process step by step, to give society, parties and parliamentary groups the opportunity to let the idea mature and then move towards a synthesis. Should the project not obtain the necessary support, it will in any event remain a useful exercise for the future.

Second, we are focusing on concrete proposals relating to the separation of faith and state, such as an amendment of article 21 of the Constitution, which is open to revision in the current legislature. This does not seem impossible to us, since many parties have already shown themselves willing to do so.

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[1] F. JUDO, “Een constitutioneel novum: de postambule”, RW 2016-2017, afl. 8, 282.