ARGUMENT IS NOT ABOUT THE RIGHTS OF SECTS BUT ABOUT THE RIGHT OF RUSSIA NOT TO BE A COLONY
Radonezh, No. 13, August 1997
by Deacon Andrei Kuraev,
member of the Expert Consultative Council on Questions of Freedom of Conscience of the State Duma of the Russian Federation
Russian text: Spor ne o pravakh sekt
Despite the claims of the press that this draft law is the incarnation of the desires of our church, it really is a thorough compromise in which only some of our suggestions have been taken into account. It would be incorrect to suggest that the draft law has been lobbied by the Moscow patriarchate, despite the opposition of religious minorities. Besides our church there are another nine Russian religious associations that supported the draft law. Among them were Muslims, Buddhists, and Jews. The church supports not so much the text of this law itself as its direction: to make a step in defending people from sects. The defense that the draft provides is a very weak one. Undoubtedly it will be extremely ineffective. But it is important to overcome the "democratic" syndrome of concern only for "the rights of minorities" and finally to begin to think about the rights of the majority and defense of this majority from several minorities and about the right of the majority to look carefully at the newly arisen minorities and to require that they not be aggressive and destructive with respect to the traditional community. It is this direction of the draft law that has become the cause of sharp criticism of it in western and westernizing organs of mass media and political circles. The question is not about the procedure of registration of religious organizations. The question is about whether Russia has the right to have noncolonial legislation.
1. The main and most valuable innovation in the draft law is that its basic articles contain the wording "citizens of the Russian federation." The constitution prefers the wording "every person." Article 28 of the constitution guarantees to every person the right to act corporately with others in accordance with their convictions. Article 35 says that every person has the right to own and use property. Article 30 guarantees to every person the right to create associations with other persons. Thus, citizens of Russia, persons without citizenship, and foreign citizens have equal possibilities to create new associations, including religious ones, to own land, buildings, churches, etc.
The equality of rights of local and foreign citizens is a characteristic sign of colonial legislation. The legal, economic, and cultural spaces of a colony must be fully transparent to citizens of the mother country and to its interests. Too many people view Russia precisely as a colony of the "civilized West." The attempt to create, even partially, a noncolonial legislation, naturally, evoked the wrath of world capitals, from the Vatican to Washington. The draft law of 1997 recognizes for "every person" the right to freedom of convictions, choice of faith, and religious education. But it opens the sphere of public and legal relations only to citizens of Russia. Moreover it is suggested that the possibilities for foreigners in the organization of their communities on Russian territory must be regulated by a special law. I state specifically: the fact that the law does not describe a mechanism for the creation of a religious organization by foreign citizens does not mean that they are forbidden to do so. It only means that the right of foreigners in Russia, including religious rights, must be regulated by a special law and not by the one that is supposed to establish the rights of Russian citizens. Thus there is no basis for saying that the draft law introduces "a prohibition on the creation of religious organizations by foreign citizens" (V. Borshchev, "On the criteria of a traditional religion," NG-Religions, 24 July 1997).
2. The very conception of the law may be called obsolete. Instead of the creation of a legislative base for cooperation between the state and confessions that represent the majority of Russian voters, it tries to place limits on the path of small religious groups of foreign origin. For several years now the Russian Orthodox church has insisted on restrictions on the activities of sects, in the first place foreign ones. The draft law touches upon this concern formally, but only formally. Everyone who is interested in doing so has already opened their affiliates in Russia. Today the legislators should be expected to give something else: a juridical basis for cooperation between traditional confessions and the state.
3. The law is open to criticism primarily because it is too much of a compromise. For the church it would be important that the concept of a traditional confession be introduced into legislation. In such a case it would be possible, granting to all religious groups a certain minimum of necessary rights (including the right of legal entity) to construct a rational state policy in the area of religion not by depriving anyone of rights but by expanding the rights of certain religious groups. This would not be a path of restrictions but of privileges. According to this plan, the state does not hinder any religious groups in the conduct of their activity, so long as they do not engage in direct and demonstrable violation of human rights. But at the same time the government overtly cooperates with some religions which represent the interests of the majority of citizens and which have made the greatest contribution to the culture and history of the country. The church is not interested in restricting the rights of anyone at all. We only require that the state, which to a significant degree exists on the taxes paid by its Orthodox citizens, should grant us the possibility to exist with these citizens not just in churches. Four spheres must be opened for cooperation of the state and the church: 1) a system of state education (while observing the principle of voluntarism and employing the European experience); 2) the sphere of state means of mass communication; 3) programs for restoring and maintaining monuments of church culture; 4) the sphere of social services (chaplains in the army, prisons, hospitals, and boarding schools). This is not the imposition of Orthodoxy by governmental mechanisms. It is the attempt of Orthodox citizens to get the state to act on the basis of the specifically Orthodox interests of an enormous part of the electorate. If people want their children to be educated about Orthodoxy the state should provide such a possibility, and if people want a greater presence of Orthodox in the media, which are maintained wholly or at least partially at government expense, then the media should honor this desire of those people on whose money they exist. If people are having trouble and they want to have the aid of an Orthodox priest, then the state should provide the services not only of a psychiatrist or mass entertainment but also of a priest. It is not just a matter that they "allow" us things in these areas but that the state budget finances the presence of these emissaries of the church and their work for the sake of people. If the traditional confessions were sufficiently and proportionately present in these spheres of society's life, there would be no need to raise the question of restrictions on the activity of foreign missionaries and newly arisen sects.
4. The equality of religions before the law certainly must not mean that all religious groups have the same relationship with the state. The state recognizes the rights of a multitude of legally registered firms for their activity, but at the same time it conducts its own policies and has the full right to support certain finance and industrial groups while not supporting the others. Thus also the world of religious life is open for the implementation of state policy. The law places boundaries beyond which politics should not go. But the religion policy of the state cannot consist just in the continuous declaration of the standards of the law just as the life of the country cannot be the location of its border posts. It is significant that in the pope's letter to President Yeltsin he says: "The Holy See noted with regret that in the text of the law there is no mention of 'traditional religions,' among which Catholicism always has figured, and that the Catholic church is not once mentioned." (Russkaia mysl 17 July 1997). As we have seen, Catholics are accustomed to the laws of European countries that speak not only about unidentified and thus "religious organizations" with equality of rights but also concretely name the Catholic church specifically in the privileged status of "traditional." If Russia today consisted of the boundaries of the Russian empire, then mention of Catholics as a "traditional religion" would be possible, for the sake of the Polish and Lithuanian subjects of the crown. But in that entity that is called the Russian federation it is completely without foundation to call Catholicism "traditional." Nevertheless it really is a pity that the term "traditional religions" was not incorporated in the text of the law.
5. The duma took an approach to which it was more accustomed, a way more traditional for the soviet system. In essence it refused to recognize for Orthodoxy the status of a traditional religion, openly and legally cooperating with the state, and it preserved a virtual Leninist understanding of the principle of "separation of church and state." So the duma decided to draw the boundaries between traditional and new confessions according to a different principle: the former received the status of legal entity and the latter did not. Thereby the possibility for the activity of our church in Russian society after the adoption of the new law will not be expanded. But at the same time all nevertheless will have the impression that we exerted some kind of pressure with regard to people of other religious convictions.
6. It is impossible to recognize as successful the idea in the preamble in which respect to four confessions is expressed. The preamble does not have juridical force. The law itself gives no priorities or privileges to the confessions mentioned in the preamble. It is no more than a gesture. But the Orthodox church does not need such gestures. In all sociological surveys the people have much more respect and confidence for the church than for the duma or president. Thus it is necessary to pass from gestures of respect to real cooperation. It is especially sad that the preamble sounded quite clumsy in second reading, creating tension in our relations with Muslims, who felt insulted.
7. The basic idea of the draft law was the separation of religious associations into religious groups and religious associations. Religious groups conduct their activity without having the rights of legal entity. It is necessary to note that the appearance of such a standard in the law of 1990 was more successful by way of liberating religious life. It meant that registration of religious associations by state agencies ceased to have an obligatory and permissive character and assumed an informational character. A number of religious groups consider it impermissible for themselves to accept state registration (Catacomb churches, Baptist-Initsiativniki, Jehovah's Witnesses, etc.). In order to place such people directly outside the law and not to declare their activity illegal, the law provided the possibility of the existence of a religious group without acquiring the rights of legal entity. In the new draft this standard was made more detailed. It is important to note article 7.2: "Citizens who have formed a religious group inform the agencies of local administration of its creation and commencement of activity." As we have seen, it would be sufficient to telephone the mayor in order that a religious group could begin its activity. If a religious organization had to present a charter, information about its history and belief system, then a religious group would not have to provide anything more. All subsequent requirements of the law relate only to religious organizations. Even the form of the response of the state agencies to the act of informing is not specified in the law. And this means that nothing more than "informing" is required of a religious group, which could be made in just about any form, and the state has no right to require more. In principle this is a radical protection of the activity of these groups from interference and control on the part of the state. Whether it is practical or not is another question. But it is impossible not to recognize that this is more than democratic.
However, if one is so inclined one can find even here a "violation of democratic principles." The appeal of the Russian Department of the International Organization for Religious Freedom notes that "there is no other way but interference of the state structures in the affairs of believers to label the provision that says that citizens who have decided to form a religious group are obligated to inform representatives of local authority about their decision (Izvestiia 16 July 1997). Meanwhile, the word "obligated" does not exist in the draft. It is simply the word "inform." But is there really any other way to establish contact with the state than "informing"? Is it really possible to commence a partnership or even an acquaintance without an introduction? If someone does not want to have dealings with the state generally--fine. But if you want to operate within the purview of the law and public rights, then at a minimum you have to step forward and state your name. The law does not require anything more.
8. However it is necessary for religious groups to pay something for this radical freedom, namely, the price for this invisibility to state authority is that they will be outside the light of public legal relations. They will not receive the right of legal entity and accordingly will not have the right to acquire property, rent facilities, or invite foreign missionaries. It is not fully clear from the draft law just what these religious groups can do. Thus, article 7.3 says: "Religious groups have the right to conduct religious services, religious rites, and ceremonies." And the things excluded from this list? Do religious groups have the right to conduct religious propaganda? However article 6.1-2 seems to recognize the right to active preaching for religious groups: "Religious associations are associations which have been formed for the purpose of corporate confession and dissemination of faith. . . . Religious associations may be formed as religious groups and religious organizations." So we see that the right to "dissemination of faith" is recognized not for religious organizations but for religious associations, which includes religious groups. Article 5.3 similarly recognizes the right "to teach religion to their adherents" for "religious associations," and not only for religious organizations. Thus the conclusion of O. Moroz that religious groups cannot engage "generally in any kind of activity except religious services" (Moroz, "New Law on Freedom of Conscience places a cross on this freedom," Lit.Gaz 23 July 1997) cannot be considered to have any basis.
9. For those who wish to be invisible people, all these standards are extremely convenient. The essence of the problem, however, is that such "invisible people," who are absent from the sphere of public legal relations, are not limited by the law to those who wish to be invisible. So the chief point of criticism of the law is not that it permits religious groups to exist without registration but that it does not permit them to register. A "quarantine period" of fifteen year has been introduced for religious groups. Only upon its expiration can they acquire the rights of legal entity, that is, become a "religious organization."
10. Criticism of the provisions of the draft is characterized by crude bad faith. It is constructed on two switches. The first switch is that the draft describes a mechanism of registration of those religious movements which will arise in the future. There is no reason to fear, just as there is none to hope, that those religious organizations, including nontraditional ones, which have arisen in Russia in the past seven years would fall under this restriction of the draft law. A fundamental legal standard says that no law can have retroactive effect. If yesterday I did a certain deed, which would not be a crime from the point of view of the legislation in effect in the country on that day, and tomorrow the parliament adopts a new law according to which such acts are declared illegal and criminal, then I cannot be prosecuted under that new law. Similarly, those religious organizations which had registration in past years on the basis of current legislation cannot be deprived of it. If in reregistration (as the draft speaks about it in article 27.5) some congregation loses its registration and is deprived of the rights of legal entity it now has, it can appeal this decision to a court (according to article 12.3). Only a court is competent to interpret the law. But in this case the legal decision evokes no doubts. The court cannot be guided by expressions of "practicality," and juridical standards do not permit giving a newly adopted law retroactive force.
11. The second switch is that the confirmation of fifteen years of the existence of a religious group required by the law is understood as a fifteen-year period of time from the time of the first registration of a certain group with the state agencies. Here again everything is projected into the past and they declare with alarm: in this case even Catholics will be deprived of the rights of legal entity because they received registration only seven years ago! This is the switch that was contained in the letter of Fr Alexander Borisov to President Yeltsin: "It requires confirmation from local governmental agencies that a certain religious group existed on the given territory. . . .Thus, many Russian citizens will be subjected to discrimination worse than in the past because they belong to a religious group that did not have the 'fortune' to be recognized by the agencies of soviet power" (Russkaia mysl, 30 June 1997). If it really is possible to draw from the formula "confirmation of existence" (9.1) the notion of confirmation of existence as a legal entity, then even the Moscow patriarchate will turn out to be one of the "religious groups." According to the Leninist decree of 1918 all religious organizations were deprived of the rights of legal entity. This right was restored to us only in 1990. For confirmation of physical or, more accurately, social existence it is sufficient to have any mention about a certain religious congregation in the archives "of agencies of local administration," in order to begin from that moment the calculation of the time of existence of a given group. For example, an appeal with a request for registration (even if this appeal was refused by the soviet state). Or the record of some bureaucrat (or KGB agent or atheist propagandist) about the religious situation in a certain locality, where this group is mentioned. Even if it is mentioned as existing underground and engaging in covert antisoviet activity--all of this is "confirmation of existence." Thus all the lamentations of American congressmen that the law recognizes only those religious congregations which were recognized and registered by the soviet state under Brezhnev and Andropov are based on simple forgery. Instead of discussing the question whether congregations that did not exist in soviet Russia but exist today can be deprived of registration, we should discuss a different question: is it necessary that congregations which do not now exist, but which will arise, should be subjected to such a standard. For this it is necessary to see clearly that none of the currently existing religious elements will be affected by this provision of the draft law. We must not imagine that the law even as adopted will remove from the religious life of Russia those protestant missions and other sects which have already entered it. The law--even in the current version as adopted--does not restrict in the least the activities of those sects that already have been founded in Russia. It does not contain a return to the past.
12. One should not exaggerate the antisectarian potential of the law. Even those sectarian movements which will arise in the future cannot be very seriously restricted. The draft law only declares an intention and makes a threatening gesture, but really it contains almost no means which would be able to lessen the influence of sects. Even the "quarantine period," introduced by this law, is more likely to complicate the religious situation in Russia than to regulate it. Indeed, religious groups will be seriously limited in their rights. But the basic shortcoming of the draft is that it does not establish clear criteria by which the state itself can determine whether it is dealing with a religious group or a public association of citizens or simply a circle of friends. Since a religious group only gives notice of its existence, then in particular the state itself does not have the right nor criteria on the basis of which it would be able to categorize the activity of these group as specifically religious. Only if the people themselves explicitly declare that they intend to be a religious association will they fall into the category regulated by this law. And if these people do not want to make such a declaration? If they prefer to call themselves a "cultural fund" or "educational center"? The majority of sects in Russia do not consider themselves religious centers. They are circles of personal improvement, schools of eastern meditation, esoteric readings, Rerikh circles, centers of magic and witchcraft, "academies of folk medicine," "academies of bioenergy information sciences," courses of "depth psychology," etc., etc.
13. The essence of the problem here is that the majority of sects are not registered as religious organizations and do not call themselves religions in order to be able to cooperate with the educational system and actively violate the principle of the separation of school and religion. Besides, calling themselves a "science" or "philosophy," they can more easily acquire the sympathy of people and state officials. Thus it is important for the law to give a definition of religion which would be able to protect the secular character of the state. For this a clear definition of religion is necessary, so that the state itself can determine whether one or another group of people that is establishing contact with officials is violating the secular character of state activity. The text of the current draft law shifts this question to the groups themselves: if they declare, "we are not a religion," the state is deprived of the possibility of conducting its own expert analysis and thus easily can become an instrument for disseminating religious ideas and practices.
14. From the point of view of legal relations, a religion is a form of human activity. The law must regulate those relations among people which arise in the course of their religious activity. This activity is distinguished from other forms of human activity by its goals. Religious activity is that which pursues specifically religious goals. These goals may be characterized as religious only in the sense that no other kinds of human activity tries to achieve them. Such goals are two: 1) contact with the supernatural spiritual world, and 2) the most important meaning of this contact is seen as an overcoming of death. The Russian philosopher S.N. Trubetskoy gives this definition of religion in the Brokhaus-Ephron dictionary: "Religion may be defined as the organized submission to higher forces. . . . Religion is not merely faith in the existence of higher powers but it establishes a special relationship to these powers; it is, consequently, a certain action of the will that is directly toward these powers." According to article 6.1 the definition of a religious organization should come from the definition of religious activity: "Religious organizations are voluntary associations of citizens (physical persons) formed for the purposes of conducting religious activity. A sign of religious activity is the attempt to accomplish specifically religious goals, such as contact with the supernatural spiritual world, which is understood as having significance for the determination of the fate of a person upon the death of the body. Activity directed toward the establishment of such personal contact is called religious practice (religious rite, religious ceremony, religious service). The conceptualization of such activity is called religious doctrine. The dissemination of information about religious doctrine that has the goal of drawing people into participation in religious practice is called religious indoctrination, education, and preaching. The signs of a religious organization include the presence of religious activity manifested in: doctrine, performance of religious rites, ceremonies, and religious services, religious indoctrination and education, preaching or other forms of disseminating doctrine."
15. And so, if the current draft law goes into effect, a newly arising sect will act in the following way: on the one hand, it "informs" the agencies of the state about its existence (so that after fifteen years it will have the possibility of receiving registration as a religious organization), and at the same time it will create a "cover organization" and will immediately go through the procedure for registration as a public association. For the majority of sects this technique is already perfected. A multitude of "cover organizations" exist for the Moonies, Scientologists, and "Mother of God Center." And these "daughter firms" will enjoy all rights of legal entity.
16. As a result, it will become more complicated for a person to be oriented in religious life. He will be drawn into religious activity even without knowing that he is being offered not simply "spiritual science," but a religion. Instead of dragging as much religious activity as possible within the regulatory sphere of the law on freedom of conscience, the current draft does more to deprive the state of the possibility of controlling the activity of sects rather than to make them beholden to it.
17. The only standard in the draft which really can help in the struggle with sects is article 14.2. Among the bases for prohibiting the activity of a religious organization this article lists "inducing refusal on religious bases of medical care for persons who are in life and health threatening conditions." This standard can complicate the life of the Jehovah's Witnesses, who forbid their members to have blood transfusions, or donate blood, and also to submit their blood for medical analysis. The extent of the resolve of the president, who was lobbied by this sect, will be shown by whether he amends this specific point or not.
18. The president's veto of the draft law can diminish the stability in the country. According to public opinion surveys over the course of many years, only two public institutions enjoy stable confidence of Russians, the army and the Orthodox church. The number of people who have confidence in them remains stable at over forty percent and it quite significantly exceeds the level of confidence in the president, the government, or the duma. Nevertheless during July the president made gestures that strained his relationship both with the army and with the church. The prospect of agitating 500,000 people hardly won sympathy for the president in the eyes of officers. The veto of the law on freedom of conscience activated negative attitudes toward the president among those Orthodox who already had them and politicized others who earlier did not consider it necessary to have anything to do with politics. Questions of privatization interest religious people little, but here is something affecting the prestige of the patriarch and the authority of the church itself. Besides what seems to be a gesture of disrespect toward the church, the president also appears in the eyes of the public to be a protector of sects. Moreover it is possible to talk about the narrowing of the base of stability on which the present regime could count. And we should not forget that this step by the president also showed disrespect to Russia's Muslims, whose leaders also supported the draft.
19. At the same time the enactment of a presidential veto could be greeted as a step that reveals the actual social base to which President Yeltsin appeals and toward which he is oriented. The pope's opinion seems more important to him than that of the patriarch of Moscow. The opinion of religious minorities seems more important than the opinion of the religious majority. The opinion of the American Congress seems more important to him than the opinion of the Russian parliament. The opinion of the European Council seems more important than the opinion of his own government (the government actually presented this draft to the duma). The letter of "my friend Bill" seemed for him more important than the tragedy of thousands of Russian families. The "unbending" Boris Nikolaevich seems strong only when it comes to pressure on him from Russians themselves. But this is not an isolated case when he could not resist the pressure from his western "friends." This means that he is not the president of a sovereign Russian federation but is the agent of the colony called the Russian federation.
20. One cannot help but be struck by the way the opponents of the law threaten religious disorders in society if the law goes into effect. More than that, it turns out that the law contains the "real threat of domestic religious war." (I. Vandenko, "Defenders of the rights of believers," Izvestiia 16 July 1997). The letter of V. Borshchev, S. Kovalev, and other professional dissidents states: "The law actually incites war between the traditional religions and the nontraditional confessions that are subjected to discrimination (LitGaz 23 July). So if these nontraditional confessions are so militant that discrimination could cause war, then perhaps there is more reason for Russia to be cautious about such guests? It is strange that in the opinion of these "defenders of rights" offending the rights of millions of Orthodox and millions of Muslims does not mean inciting tensions in society. But restricting the rights of small sects leads them to evoke visions of an apocalyptic nightmare. Nonetheless is democracy the fulfillment of the will of the majority or the will of Clinton? Concern for the rights of minorities is necessary. But only when the state has learned to respect the majority and its rights.
21. The discussion around the law has shown that the "defenders of rights" have very weak skills in legal thinking. Consider the train of thought: "According to the new law religious associations are forbidden to teach the bases of their religion to anyone except their adherents, that is, a practical prohibition on preaching and missionary activity has been introduced." (ibid.) The basis for such reasoning is Article 5.3: "Religious associations have the right to teach immediately religion to their adherents." Here there is a permission and not a "prohibition." The law contains no word nor intimation of a prohibition on missionary activity. Nowhere is it said that religious associations do not have the right to address people who are not their adherents with their preaching. Have the democratic journalists really forgotten their favorite principle: "what is not forbidden is permitted"? Here partisanship has clearly overcome honesty. We must not forget that the restrictive interpretation of this principle of the draft law is impossible because the constitution, in article 28, recognizes: "Each person is guaranteed the right freely to disseminate religious convictions." The standard of the law cannot be interpreted in a way that would contradict the constitutional norm. This means that even without any adjustment the draft law recognizes missionary activity as both permitted and legal.
22. With all of its imperfections the draft law is still worthy of support because in the course of the discussion about it the essential issue has been whether Russia has the right to carry out a policy of support for its spiritual traditions. Does Russia have the right to remain Russia or must it be transformed into a "United State of Eurasia"? Any European country has the right to conduct a protectionist policy in the area of religion, supporting its traditional churches. But for Russia such a right is not recognized.
Mr. A. Pchelentsev, a Baptist and founder of a certain "Institute of Religion and Law" (this institute does not have state recognition, but Mr. Pchelentsev prefers not to mention that, in order to appear more authoritative) writes: "In violation of the constitutional equality of all religious associations before the law, in the preamble of the law there is a list of state 'respected" confessions . . . which in violation of the constitution places religious association in unequal positions before the law." (A.V. Pchelentsev, "Expert conclusion on the federal law," Religion and Law, Informational-Analytical Journal, no. 1, 1997, p. 21)
In the first place, equality before the law means primarily that in case of the commission of crime a person or an organization will be equally responsible before a court, irrespective of where the person committing the crime is male or female, academic or stoker, minister or worker, Orthodox or atheist. This equality is clearly specified in the draft law.
In the second place, the state has the right to express its respect for anyone whom it needs to respect. If the state expresses respect to the creative heritage of F.M. Dostoevsky, this is no reason for the fans of L.N. Tolstoy to be upset.
In the third place, the Orthodox church really is the most respected institution in society. What is strange in the fact that the deputies, elected by the people, expressed their respect for that which their electors respect?
The law is open to change. It is hardly worth insisting that everything in it remain as it is now. The question is different: will those changes which we see in it be in the direction of its principles that are for the good that corresponds to the interests of Russia. I would recommend that we accommodate the wishes of the Roman pope and introduce into the law the term "traditional religions." (tr. by PDS)
Russian text: Spor ne o pravakh sekt