H. David Baer: “All animals are equal but some animals are more equal than others”: Continuing problems with Hungary’s law on religion

H. David Baer, associate professor of theology and philosophy at Texan Lutheran University, is spending his sabbatical in Hungary where he is doing research with the support of IREX, an organization that has been supporting research and exchange in Europe and Eurasia. David Baer is also a visiting research fellow for the 20014/15 academic year at the Central European University located in Budapest.

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During the last two years I have devoted considerable research to assessing the impact of Hungary’s religion law on deregistered, or non-established, churches.  This research has consisted of surveys as well as extensive field work carried out during extended visits in Hungary.  Today, in the short time allotted to me, I would like to highlight what I see as key problems with Hungary’s law on religion.  These problems can be grouped into two sets.  The first set concerns the recognition procedure itself; the second set concerns the legal status of religious communities not recognized as churches.  I will discuss these problems in turn, but to do so clearly let me first comment briefly on the religion law’s legislative history.

The religion law’s troubled legislative history

The first version of the law on “the Right of Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations, and Religious Communities” was passed as Act C of 2011.  An initial bill was brought to the floor by the Christian Democratic People’s Party (KDNP), a coalition party in the ruling government.  The original bill listed 44 recognized churches and provided a procedure by which additional religious groups could receive recognition through the courts.  However, two hours before the final vote, the original bill was replaced with a completely different one, introduced on the floor by a member of the ruling Fidesz party.  The new bill, which was passed into law, reduced the number of recognized churches from 44 to 14, and stipulated, further, that future recognition of churches would be determined by a two-thirds vote in Parliament.  Although Hungary’s Constitutional Court later struck down Act C on procedural grounds, an identical version of the bill was resubmitted to Parliament and passed as Act CCVI of 2011, going into effect on January 1, 2012.

In February, Parliament expanded the number of recognized churches from 14 to 27, a list which now includes smaller Christian and non-Western religious groups.  This is still fewer than the number of recognized churches included in the original Christian Democratic bill.  Moreover, at the time it was passed, Act CCVI stripped all religious groups not recognized by Parliament of legal standing.  In my estimate, as many as 150 religious communities may have been deregistered by the law.

Hungary’s Constitutional Court subsequently struck down numerous provisions in Act CCVI on the grounds that the recognition procedure did not adequately guarantee the rights of due process and legal remedy to all religious communities.  The government responded by amending both Hungary’s constitution, or what is called the Basic Law, and Act CCVI of 2011.  Although some of these amendments improve parts of the law, they also preserve Parliament’s power to determine church recognition.  Thus they fall short of addressing adequately the issues of due process and legal remedy raised by the Court.  In this respect, as well as others, Hungary’s religion law remains highly discriminatory.

Problems with the recognition procedure

The government responded to the Court’s concern about due process by modifying Hungary’s laws to allow explicitly for political discretion in the decision concerning which

religious groups to recognize as churches.  Act CCVI now stipulates as a condition for recognition that a religious community must be suitable for cooperation with the state in the pursuit of public goods.  A religious community demonstrates this suitability on the basis of its charter, the size of its membership, and its previous activities.  These, however, are vague criteria.  The current list of recognized churches includes many small churches with a small social presence, while simultaneously excluding larger churches with a significant social presence.  Because the criteria are vague, they open up a legal space in which Parliament is free to act in an arbitrary and discriminatory manner.

The government responded to the concerns about legal remedy by introducing a passage into Act CCVI that allows religious communities to appeal their rejection by Parliament before the Constitutional Court.  That is, a rejected religious community would ask the high court to review Parliament’s specific decision to deny it church status.  However, since both the Basic Law and the law on religion allow Parliament to exercise political discretion in determining which religious groups are suitable to cooperate with the state, it is hard to envision a scenario in which the Constitutional Court could ever overturn a decision by Parliament.  If Parliament has a constitutional right to enact arbitrary decisions, the Court cannot strike down Parliament’s decision for being arbitrary.

To illustrate the kind of arbitrary treatment Hungary’s new constitution protects, one might consider the case of the Hungarian Evangelical Fellowship.  The Hungarian Evangelical Fellowship is a church which, despite its large social presence, has been denied recognition by Parliament.  The church operates a large homeless shelter in Budapest and five nursing homes.  It also maintains a seminary, and educates more than 3000 children, mostly Roma, in preschools and elementary schools throughout the country.  Although the Hungarian Evangelical Fellowship was included among the recognized churches in the original Christian Democratic draft of the law, it was not included in the bill submitted to Parliament by Fidesz’s representative.

The president of the Hungarian Evangelical Fellowship is Gábor Iványi.  Iványi was an opposition figure in the communist period and part of a group that broke away from the Hungarian Methodist church in the 1970’s to establish the Evangelical Fellowship.  Pastor Iványi also baptized Viktor Orbán’s first two children.  The young Orbán, perhaps, was attracted to Iványi because of his strong anti-communist credentials.  Since then, however, the relation between the two men has soured.  Today Iványi is one of the Orbán government’s most vocal critics.

In a published interview, the news weekly Heti Válasz asked the Minister of Human Resources, Zoltán Balog, about the government’s relationship with Iványi.  Balog, who plays a key role in deciding which religious communities are forwarded to Parliament to be considered for recognition, was asked whether Orbán’s children had been baptized in a false church.  He responded as follows:

Baptism is valid even if it is performed by a midwife, which means that Orbán’s child is all right. In addition, it is not in good taste, in my opinion, if someone appears all over the media announcing that he baptized the prime minister’s children. What kind of spiritual leader gives statements about the spiritual life of believers who have been entrusted to him? I would never do such a thing because I take being a pastor seriously. And as to those who don’t, why are they surprised that the government, in turn, does not take them seriously?

If this is intended as an explanation for why the government has refused to recognize Iványi’s church, then such an explanation appears incompatible with the state’s obligation to adopt a neutral attitude toward religious communities.  Are we to understand that the Hungarian Evangelical Fellowship is not suitable for cooperation with the state because, in the view of a government minister, its president does not take his pastoral vocation seriously?  Although this is admittedly a rhetorical question, the point is that nothing in Hungarian law appears to rule out such prejudiced considerations from Parliament’s decision concerning which churches to recognize, and nothing in Hungarian law appears to guarantee the Hungarian Evangelical Fellowship legal remedy against Parliamentary decisions rendered on such a prejudiced basis.

Problems with the legal status of deregistered religious groups

When it reduced the number of recognized churches in Hungary, Act CCVI simultaneously placed the formerly recognized, now deregistered, churches into a no-man’s land in which they had no clear legal status.  Deregistered religious communities were forced to apply for recognition as civil organizations, but neither Hungary’s constitution nor its civil code extended basic religious freedom rights to civil organizations.  In this respect, recent amendments to Act CCVI represent a notable improvement.  The law now creates two clear categories for religious groups.  The first category consists of “established churches” (bevett egyházak), which are the churches recognized by Parliament.  The second category consists of “organizations conducting religious activity” (vallási tevékenységet végző szervezetek).  These religious organizations are registered by the courts, rather than by Parliament, and they enjoy many of the protections associated with the right of religious freedom.

Even so, this two-tiered classification system remains highly discriminatory.  Unlike established churches, religious organizations do not enjoy tax exemptions, nor do they receive the same kind of subsidies as churches.  Beginning in 2014 the accounting laws applicable to established churches will be significantly different from those applicable to religious organizations.  The two tiers are also treated unequally in respect to religious practice.  For example, the clergy of established churches enjoy privileges of confidentiality (e.g., a priest can’t be forced to divulge secrets heard in the confessional) that clergy in religious organizations do not.  Although religious instruction has recently been incorporated into the national school curriculum, religious organizations are prohibited from offering religious instruction in public schools.  Before the new religion law and the change in Hungary’s national curriculum, however, many of these same religious communities could offer optional religious instruction in public schools when there was demand for it.  Moreover, when placed in the context of broader changes in Hungary’s legal environment, the new law on religion functions to burden and restrict the activity of non-established religious organizations.

The best way to understand how the law functions in practice is by way of concrete illustrations.  There is a Buddhist community in Hungary, consisting mostly of Roma, called the Jai Bhim Network.  It is actively engaged in educating disadvantaged gypsy children.  When Jai Bhim was still a recognized church, it rented out several classrooms from a public school in Ózd, a city frequently in the Hungarian news because of racial tensions.  When Jai Bhim lost church status, all of its contracts, including its contract with the school in Ózd, where voided.  City leaders were unwilling to negotiate a new contract, and Jai Bhim had to abandon its activities in Ózd.  Of course, members of Jai Bhim remain free to practice their religion, and they are even able to maintain a few schools.  However, their activities have been restricted, and, lacking the same legal protections enjoyed by established churches, they are more vulnerable to discrimination.

In 2011, Hungary conducted a national census, which included a question about religious affiliation.  In the town of Sajókaza, where Jai Bhim is active and maintains a school, more than 300 Gypsies identified themselves as Buddhists to census workers.  Shortly thereafter, the local police went knocking door-to-door in the Roma neighborhood, asking if the residents had identified themselves as Buddhists on the census.  According to some news reports, the mayor of Sajókaza later informed the town’s Gypsies that the Catholic priest would neither bury Budhhists nor baptize their children.  A few months later, the Hungarian Labour Inspectorate, responding to an anonymous tip, audited the school operated by Jai Bhim in Sajókaza.  Because this school was no longer a church school, the regulations pertaining to it were different.  The school needed to keep a record not only of the hours teachers spent in the classroom, but also the hours teachers spent preparing for class outside of the classroom.  Because it failed to do this, the school was fined 3.2 million HUF (approximately $14,000).  Although the fine was later reduced to 1.75 million HUF, this remains a large sum which the school must pay at the same time its operating budget has been reduced by the loss of state subsidies granted to churches and church schools.

In fact, the representatives of many religious communities have told me they worry about the tax authority.  At any time, they say, the government can order the audit of a religious community it dislikes, and because the accounting laws are complicated and constantly changing, the tax authority can always discover an irregularity and levy a fine large enough to drive a small religious community into bankruptcy.  Established churches, by contrast, will be able to maintain financial records in accordance with their own internal rules starting in 2014.  Thus the tax authority will not be able to audit the records of established churches as carefully or rigorously as it can audit the records of businesses and religious organizations.

The situation regarding religious freedom in Hungary might thus be summarized as follows.  Hungary’s two-tiered classification of religious groups functions discriminatorily by affording different rights and protections to established churches and religious organizations.  Because religious organizations enjoy fewer rights and protections, they are vulnerable to acts of discrimination from state and bureaucratic offices.  Because the registration process is thoroughly political, religious organizations are denied an effective legal avenue to obtaining the rights and protections enjoyed by established churches.  Like the pigs who ruled George Orwell’s Animal Farm, those who crafted Hungary’s new law on religion might well concur that, “all animals are equal, but some animals are more equal than others.”