A panel discussion of issues surrounding church-state relations in Hungary, followed by a conference devoted to discussion freedom of religion and non-discrimination, was held at Central European University, Budapest, Hungary, 7-8 June 2013. The events were organized by the International Center for Law and Religion Studies, J. Reuben Clark Law School, Brigham Young University, United States and Central European University, Legal Studies Department, Hungary. Both events took place in the Popper Room, Nador u. 9, Monument Building, CEU.
The morning of Day One featured two panel discussions on Freedom of Religion and Church State Relations in Hungary: The State of Play After the Fourth Amendment of the Fundamental Law. The first panel (9:00 am), “Freedom of Religion and Church State Relations: The Old and the New Legislative Framework”, was chaired by Renáta Uitz (CEU Legal Studies), with panelists Balázs Schanda (Péter Pázmány Catholic University, Faculty of Law), Csaba Tordai (attorney at law), and Benedek Varsányi (Constitutional Court, Hungary). The second panel, “The Broader Constitutional Framework: The Fundamental Law and Its Fourth Amendment”, chaired by W. Cole Durham, Jr. (International Center for Law and Religion Studies, Brigham Young University, USA), featured panelists Pál Sonnevend (Loránd Eötvös University, Faculty of Law), Kriszta Kovács (Post-doctoral Fellow, CoPolis Program, University of Trento), and Zoltán Miklósi (CEU Political Science).
Day One continued with the conference “Religion and Non-Discrimination: The Collision of Identities”:
Session I: Outlining Core Issues and Key Challenges (2:00 pm), chair Cole Durham, speakers Michael Rosenfeld (Benjamin N. Cardozo School of Law, Yeshiva University, USA), Susanna Mancini (University of Bologna, Italy), and Angelia R. Wilson (University of Manchester, UK).
Session II: Insights on the Same-Sex Marriage Cases before the U.S. Supreme Court (4:30 pm), chair Jeroen Temperman (Erasmus University Rotterdam School of Law, Netherlands), speakers Helen M. Alvaré (George Mason University School of Law, USA), Lori Windham (Becket Fund for Religious Liberty, USA), and Michael Kavey (Columbia Law School, USA).
Day Two, four more sessions:
Session III: The ECtHR: On and Beyond Eweida (9:30 am), chair Renáta Uitz, speakers J. Christopher McCrudden (Queen’s University, Ireland), Ronan McCrea (University College London Faculty of Law, UK), Jeroen Temperman.
Session IV: The ECtHR: On and Beyond Eweida II (12:00 noon), chair Dr. Judit Takács (Institute of Sociology, Hungarian Academy of Sciences), speakers Robert Wintemute (King’s College London School of Law) and Peter Cumper (University of Leicester School of Law).
Session V: The ECtHR: Families and Children (2:00 p.m.), chair Helen M. Alvaré, speakers Sylvie Langlaude (Human Rights Centre, Queen’s University, Belfast School of Law, UK), Alexander Schuster (University of Trento, Italy), Helmut Graupner (Attorney at Law, Austria).
Session VI: Comparative Perspectives and Concluding Observations (5:00 p.m.), chair Sejal Parmar (CEU Legal Studies Department), speakers Renáta Uitz and Cole Durham.
In our era characterized by “culture wars” traditional religious belief systems face many challengers. Often at the center of controversies, courts are increasingly torn by pressures which reach them through competing fundamental rights claims, or as conflict between fundamental rights on the one hand and non-discrimination claims on the other. These issues have been dramatized in recent employment discrimination cases in the European Court of Human Rights (e.g., Eweida and Chaplin v. United Kingdom) and in the pending cases on same-sex marriage in the U.S. Supreme Court (Hollingsworth, Windsor). The underlying issues will also be encountered in a broad array of legal contexts—adoption, contraception, education, employment, immigration and refugee law, land use regulations, reproductive rights, social security, zoning, and so forth.
A risk in this area is that the allure of bright line standards, can lead to the emergence of mechanical formulas that may evade rather than resolve the underlying tensions. As a result of the application of heightened or “strict scrutiny” by courts, one side wins over the other in no uncertain terms. Developments in different areas of the law (under different chapters or articles of constitutions and conventions) seem to allow a kind of substantive-rule forum shopping in which outcomes depend on legal starting points in a world in which initial legal characterization may funnel analysis into parallel tracks: the applicant’s side gets to define the terms of the game, while the respondent seeks to salvage her situation, until next time when the sides are switched. Mechanistic doctrinal structures make it difficult to make sensitive and refined judgments about discrimination. Reasonable differentiations blur into invidious discrimination; genuine conscientious belief is discounted because of fears of abuse from those who would invoke the cloak of religion to shield abusive behavior. Rival dignitarian claims rooted in the identity of religious belief and sexual orientation threaten a watering down of the dignity claims of both, while missing the opportunity of optimizing the rights of both.
Legal formulae may push judges to characterize the issues involved in a case in a way that makes decision of the case easy but long term reconciliation of the underlying tensions hard. Judicial decisions may complicate subsequent processes of dialogue and reconciliation between the affected individuals and their communities. The irony is that instead of achieving first class protection of dignity, liberty, and equality, the result may be the inadvertent forging of second-class citizenship for all.
The conference explored these and related issues against the background of unfolding “culture wars” litigation surrounding same-sex marriage, religious autonomy, discrimination and related issues, comparing approaches in Europe and the United States. A moderated discussion-style format promoted maximal interchange with panelists and audience.