Trailblazing for Religious Freedom

Jehovah’s Witnesses in Court in
Europe: Trailblazing for Religious
James T. Richardson, J.D., Ph.D.
University of Nevada, Reno
[email protected]
CESNUR Conference
Baylor, University
June, 2014
This presentation was derived from a chapter in a volume by Brill entitled “Handbook of
Global Contemporary Christianity” edited by Stephen Hunt, 2014. Do not quote or use
without permission.
Early History
• Began in 1870s in the United States
• Now has eight million members worldwide;
represented in nearly every country
• Most litigious of all religious organizations
• Developed a “vigilant litigation” approach, using
courts to defend beliefs and practices where
possible; evolved into “disciplined litigation”
• Very successful, establishing precedents in a
number of countries and regions supportive of
religious freedom
United States Cases
• Hundreds of cases filed in 1930s and 1940s
mainly over proselytizing practices
• Won about 50 cases before they U.S. Supreme
Court, helping expand the Bill of Rights provisions
to all non-federal governmental entities
Helped establish freedom of religion
Helped establish freedom of association
Helped establish freedom of expression
Also helped establish conscientious objection rights,
medical treatment rights, and rights of parents to
raise children within a religion (custody cases)
Canadian Cases
• Pattern of cases similar in Canada, but about a decade later,
with many cases in the 1950s
• Witnesses were officially banned from 1940 to 1943 for
refusing to support war; and suffered serious discrimination
• Especially Quebec was a problem area, with the close
intertwining of the Catholic Church and the government of
Premier Duplessis (Premier from 1936-39 and 1944-59)
• Won several key cases with Canadian Supreme Court
establishing right to distribute literature and proselytize,
against police harassment, and even won a lawsuit against
the Premier! (Roncarelli v. Duplessis, 1959 )
• Also contributed to the movement toward the Canadian
Charter of Rights and Freedoms
European Background
• Post-WWII emphasis on human and civil rights laid
groundwork for Witness use of the courts to further their
interests and religious freedom in this region
• Constitutional courts also established in most western
European countries after the War
• Council of Europe (COE) established after the War
• European Convention for Human Rights and Fundamental
Freedoms approved1950, effective in 1953; included Article
9 on freedom of thought, conscience, and religion
• European Court of Human Rights established to enforce the
Convention, but Article 9 not enforced for four decades
(“margin of appreciation” granted to original members)
Article 9
Article 9 of the European Convention reads as follows:
• Everyone has the right to freedom of thought, conscience,
and religion; this right includes freedom to change his
religion and belief, and freedom, either alone or in
community with others and in public and private, to
manifest his religion or belief, teaching, practice, and
• Freedom to manifest one’s religion or belief shall be subject
only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for protection of the public order, health or morals,
or for the protection of the rights and freedoms of others.
Jehovah’s Witnesses and Article 9
• Kokkinakis v. Greece (1993) involving a Witness
proselytizing cases was first violation of Article 9 found,
on a split vote (6-3) (Greece criminalizes proselytizing)
• Timing was propitious, as Soviet Union had just broken
up, and many former Soviet dominated nations wanted
to join the Council of Europe even though many did not
have a culture and history of religious freedom
• Since then there has been a flood of successful Article
9 cases, many of which involve Jehovah’s Witnesses,
and most of which come from former Soviet
dominated countries and Greece
Record of Witness Cases before ECtHR
• From 1964 through August 2013 a total of 209
Witness cases filed with the ECtHR from many
• Witness plaintiffs have won 29 cases, and had
26 “friendly settlements”
• Lost two cases, five were withdrawn, and 79
are still pending
• A truly amazing record that rivals what was
accomplished in the United States and Canada
ECtHR Record, continued
• JW cases and friendly settlements have included
cases dealing with of registration, taxation,
censorship of materials, freedom of expression,
child custody, deportation, confidentiality of
medical records, neutrality of the State,
conscientious objection, and meeting disruptions
• Even France has finally lost a recent Article 9 case
involving the Witnesses, because of French
efforts to drive them out using tax regulations
Constitutional Courts also Important
• German Constitutional Court found in favor of
Witnesses in 2005, forcing their acceptance as a
“public religion”, a very important designation
• Constitutional Court in Russia also found in favor
of the Witnesses in a reregistration case that
eventually went to the ECtHR where the
Witnesses won a unanimous verdict.
• ECtHR tries to work with constitutional courts
where possible to assist in establishing rights
under the Convention, as well as judicial
Implications for the Witnesses and
Other Minority Religions
• Jehovah’s Witnesses are now registered and
active in all COE countries (although some,
especially Russia, are engaged still in
systematic harassment of the Witnesses)
• Witnesses usually can pursue their beliefs and
practices more openly than before
• Other minority religious groups have also
gained from the many legal battles fought by
the Witnesses
Implications for the ECtHR and the
Council of Europe
• Article 9 is being enforced, but in a focused
manner; what looked like a “double standard”
between original and new COE members appears
more nuanced
• Major thrust of decisions seem to be for right of
religious groups to exist, which is major problem
in former Soviet dominated nations (and France)
• There is less focus on individual religious freedom
issues in ECtHR cases law, although some cases
do involve such claims
Final Comments
• Courts in the U.S. and Canada used Witness
cases to establish important precedents
• In U.S. Witness cases to expand Bill of Rights to
state and local governments
• In Canada the Supreme Court used Witness cases
to establish basic rights and that even the
Premier was subject to the law
• ECtHR and constitutional courts also used
Witness cases to expand authority and establish
individual rights as well as judicial autonomy
Theoretical Suggestions
• Theory of mutually beneficial interaction
(between the courts and the Witnesses)
– Both the courts and the Witnesses have an agenda
and they assist each other in accomplishing their goals
• Theory of third party partisanship (see Donald
Black’s work)
– Can the courts be considered “third party partisans?

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