The Constitutional Development of Religion in Greece
By Konstantinos G. Margaritis
Published on August 19, 2011
Due to historical reasons, the religious culture of the citizens of Greece has been developed in a Christian-oriented way.
During the years of enslavement to the Ottoman Empire and the preparation of the Greek War of Independence in 1821, Orthodoxy was a mark of coherence among Greek people that stiffen their resolve through those difficult years when religious minority citizens were considered to be inferior and played a major role in the resurgence of Greek identity.
Therefore, the role of the Orthodox Church became quite important from the first Constitutions of independent parts of Greece.
The aim of this paper is to briefly show how the relations between State and Church were developed in the Constitutions of Greece and after the analysis of relevant provisions, to what extent those relations conflict with the indisputable freedom of religion.
The beginning of the Modern Greek State can be put in 1830 after the end of the successful Greek War of Independence (1821-1829) and the signature of the London Protocol. In 1830 Greece officially gained independence from the Ottoman Empire and recognition by the Great Powers of that time (Great Britain, France and Russia) which guaranteed that independence.
In terms of constitutional development, the history of modern Greece started earlier, with the creation of three revolutionary constitutional texts in 1822, 1823, and 1827. From the very beginning, the exceptional position of Orthodox Christianity was obvious. Although all Constitutions protected religious pluralism, Orthodoxy was named as “the predominant religion” and all the others held the position of being “allowable”.
The hesitation of equal protection of all religions is understandable as the War was still pending and Greece still needed the social cohesion that Orthodoxy had brought. An exception can be observed in the Constitution of 1827 which used, for the first time, the term “freedom” for all people to exercise every religion; a big step for the recognition of religious freedom –in modern terms- in Greece.
After struggling with absolute Monarchy, the citizens of Greece managed to achieve the institution of a Constitution in 1844, the first adopted after 1830. It can be described as a highly conservative legal text that demonstrated clearly the period and the regime under which it was adopted. The predominant Church became more powerful as it was the only one protected from proselytism. Another issue was the use of the term “allowable religion” instead of “freedom”, a term that was abolished from the 1827 Constitution. Hence, the concept of religious freedom was getting limited.
In 1864 a new Constitution came as a consequence of the new regime in Greece. Crowded Democracy was inaugurated and significance was given to the general reconstruction of the State institutions.
Despite the major changes in the political field, the provisions related to religious freedom remained old-fashioned as in the 1844 Constitution. The social changes that followed led to a constitutional revision in 1911.
New social demands influenced the revised version of the Constitution that was focused on the enrichment of fundamental rights (the public law of the Greeks) and the increase of protection of those rights. The provisions of religious freedom remained the same.
Eighty years after the establishment of modern Greece, Orthodoxy gets a special position within all Constitutions. On one hand, as the Constitution reflects the major beliefs of a particular society, Orthodox Christianity was an element of coherence among Greek from the very beginning, therefore was an inextricable part of the Greek spirit. On the other hand, the State authorities wanted to protect society from being “influenced” by another religion. An understandable position if we take into consideration the historical periods except from the fact that the authorities were abusing the concept of proselytism to such an extent that led to diminution of religious expression in some cases.
The end of the military junta that ruled Greece from 1967 until 1974 leaved its mark on Greek political status quo. During that period totally undemocratic and anachronistic institutions were adopted, a fact that made the creation of a brand new Constitution more than necessary. The Constitution of the Third Hellenic Republic was adopted in 1975 and is active up to now after being revised three times (1986, 2001 and 2008).
The most important constitutional provision related to religion is article 3. Article 3 deals with the connection between the State and the Church. In this article the Eastern Orthodox Church of Christ is explicitly recognized as the prevailing religion in Greece; a fact that is not strange in the Greek Constitutional culture as historically speaking, it has been mentioned in all Constitutions of modern Greece. Article 3 must be seen in combination with the dedication of the Constitution in the name of the Holy and Consubstantial and Invisible Trinity which also contributes to the historically Christian basis of the State.
The dominant opinion nowadays is that the meaning of those provisions is just symbolic reflecting the contribution of the Church to the Greek War of Independence and expressing the majority of the citizens who have chosen Orthodox Christianity as religion; therefore they do not grant any advantages to any religion.
Article 13 (consisting of five paragraphs) deals with religious freedom in Greece. The first paragraph refers to religious conscience. The right of religious conscience derives from religious freedom; in fact, it is a prerequisite of religious freedom. Religious conscience is usually related to the perception of people about God and all other spiritual pursuits. The freedom of religious conscience contains the right for every person to choose, maintain, change, or quit a specific religion or choose and quit all religions in total or deny all religions or atheism or skepticism without any consequences.
Paragraph 1 mention that religious freedom is inviolable. In that sense, initially, there are no limits set by the Constitution except for compliance with the laws (paragraph 4); every person is free to develop religious conscience without making any difference if the religion is a “known” one or if is the constitutionally characterized as “prevailing” (Orthodox Church). In addition, every person has a specific right also deriving from article 13 (1) to express his religious beliefs or atheism or not.
The equal treatment of people concerning civil rights is also declared in article 13 (1). In that sense, a form of religious equality is established or equality based on religion. Finally, it is important to be mentioned that article 13 (1) is not subject to revision according to article 110 (1) of the Constitution.
The second paragraph deals with the profession of religion as an individual and as a social right; every person is free to profess religion individually or in a community. Beyond any doubt, the profession of religion is a major part of the concept of religious freedom.
The practice of religion materializes the faith and completes the purposes of religion as it guides the believers in a spiritual realm. In paragraph 2 the issue of “known” religion arises; only known religions are free to perform their worship and are protected under the law. Therefore the term “known” needs to be defined. The dominant opinion on both theory and case law defines “known” religion as the one that its spiritual ceremonies, worship and organization are unconcealed and open to everybody who wants to participate in. “Known” religion does not need to be known to public authorities or have specific permission for professing. Of course, the constitutional term “known” shall not be confused with the term “popular”.
Another limit concerning profession of religion is set in article 13 (2) of the Constitution. The practice of worship shall not offend public order or the moral principles of Greek society. A fundamental question can be how exactly those concepts exist within the Constitution and more if they are related to the constitutionally recognized prevailing religion. About the first issue, public order can be defined as a set of principles and beliefs that characterize Greek society and protect social coherence and are most of the times described in the law.
Moral values have a more ethical dimension; they reflect the perception of society concerning religious profess and affect social behavior. Therefore, if profess contains for example group suicide or violence is against public order and moral principles and is not protected by the Constitution. In that sense whenever religious profess put in danger the social coherence, the security of the State prevails.
Public order as a constitutional norm is highly ranked. In any case, it shall not be used as an excuse on behalf of State authorities to limit fundamental rights. The limits that public order puts in, for example, freedom of religion shall always be proportional in order for the social damage to be prevented.
With regard to the second issue that raises, Article 13 (2) shall be interpreted in a broad way. As has been mentioned, all people are equal and shall not be discriminated in a religious basis. This is the general spirit of the Constitution that is expressed in article 13 (1). Therefore, the religious moral principles of the Greek society that are definitely connected to the Orthodox Church shall not affect the freedom of profess of all known religions that shall be and are recognized as equal to the Orthodox Church.
Article 13 (2) establishes a positive State obligation. Religious profess shall be performed under the protection of the law. All known religions that are not against public order and moral principles are not only free to be professed but are also protected by the State in order for these professes to be unhindered.
Another issue that article 13 (2) touches on is proselytism. According to that provision, proselytism is forbidden. First of all, it will be better to define the notion of proselytism in the Greek Constitution.
Proselytism can be described as the direct or indirect organized attempt to penetrate into the religious conscience of people of different religions with the purpose to change its contents. For the fulfillment of this purpose benefits or promises of benefits are used by fraudulent means, with abuse of confidence or inexperience, with manipulation of need or intellectual weakness.
Consequently, there is no violation of Article 13 (2) in the case of public confession of a religion as this falls into the scope of Article 13 (1)-freedom of religious expression and is of course completely legal. In addition, there is no violation either in the case that someone convinces someone else to change his religious beliefs as a liberal Constitution shall have as a priority the protection of human rights and not their restriction through narrow interpretation.
From the above mentioned a very important issue arises; when the attempt to convince somebody to change his religion can be described as proselytism and when it as just an expression of religion. This distinction is not always feasible. The national courts’ position on this issue is controversial. As a general observation, the Constitution correctly sets the limit of proselytism for the protection of people’s beliefs.
Each case of proselytism shall be examined on its own basis, according to the different facts. Directions can be educational level, psychological background, and health conditions in general and plus the intention to fraud. For example, the promise to someone who suffers from a serious disease and hence, cannot be objective, that he will be healed if follows a specific religion is proselytism.
The Constitution does not make a distinction therefore it is assumed that all religions are protected from proselytism, not only the prevailing one.
From a structural perspective of the second paragraph, the constitutional ruler has included the forbiddance of proselytism in the same paragraph after giving the right of free professes to all known religions. Thus the will was to extend the rights of known religions beyond that; to the protection against proselytism. It is an obligation of the State to fortify the practice of religion.
The third paragraph of article 13 comprises another element of equality among religions that the Constitution promotes. Equality is not only related to rights but also to obligations. Article 13 (3) establishes that all ministers of all known religions are under the same supervision of the State as those of the prevailing religion. Ministers that exercise public authority are supervised by the State. The supervision of the State is only typical; it pertains to compliance with the Constitution and the laws of the State and shall never intervene in the essence of the religion.
Article 13 (4) contains another limit to religious freedom. According to that provision, nobody can rely on his religious convictions for avoiding obligations to the State or waiving a law. At that point, it is made quite clear that nothing is above the law.
As the State shall not discriminate against a citizen because of religion, citizens shall not get any advantages due to their religious beliefs. Paragraph 4 does not give to the legislature the power to limit religious freedom without a specific reason. The limitation of religious freedom because of non-compliance with the law is allowable only if public benefits that are usually protected by law can be put in danger (public health).
The fifth paragraph of article 13 refers to the oath. Whenever an oath is adverted shall have been administered by law. This pertains to both political and religious oaths. Furthermore, Article 13 (5) provides citizens with the right not to take a religious oath. If their beliefs do not accept or recognize oaths, the word of honor or conscience shall be given instead.
The way that article 13 is formulated leads to the conclusion that applies to all people that are in Greece irrespective of citizenship.
The Constitution does not make any distinction between Greek and other nationals in order to enjoy religious freedom in Greece; people with no nationality also enjoy that right.
Another issue is the application of religious freedom in cases among privates. As historically this right does not refer to the relationship between privates, the major opinion in Greece is that this provision does not directly apply to that kind of case and deals with State-citizen relations.
Only in cases that no special private law exists, demands can be based on constitutional articles.
Possible Conflicts – Concluding Remarks
As the importance of religious freedom is indisputable, its sufficient protection becomes an absolute priority within a legal system. The Constitution of Greece is generally shown to fulfill this obligation.
Although religious equality prevails, in numerous of Constitutional provisions the neutrality of the State is not that explicit. A good example is the religious oath that the President of the Republic (article 33) and the members of the Parliament (article 59) shall give.
Before assuming the exercise of his duties, the President swears in the name of the Holy and Consubstantial and Invisible Trinity, in that sense religion becomes an unofficial prerequisite for being elected as President of the Republic in Greece, as the President needs to be Christian.
The case is slightly different for the members of the Parliament. The difference is based on the fact that an alternative oath is written in the Constitution for members that are not Christians but nothing is mentioned for atheists or skeptics. However, in practice, atheists Parliamentarians have the right not to give a religious oath.
Another important example related to the ambiguously referred neutrality of the State in religious affairs is education in Greece. In article 16 of the Constitution, the development of the religious consciousness of Greeks is mentioned as a target of the educational system.
The Constitution does not make a clear distinction among religions as it generally refers to the concept of “religious consciousness”. Nevertheless, in practice, religious education in public and private schools is Orthodox Christian-based education. All religious courses are obligatory and connected to the teaching of history and principles of Orthodoxy.
Exceptions from attending religious courses on the basis of different beliefs are allowed. Minority schools specially designed for religious minorities can be established. The case in that matter is the schools established for the Muslim minority of Western Thrace where courses related to the Muslim religion are given.
Taking into consideration the examples mentioned above in combination with the issue of prevailing religion (even for historical reasons) it can be said that in practice Christianity gains some minor advantages from the Constitution, to a certain extent, comparing to other religions. This becomes more explicit in the case of the President of the Republic.
The constitutional approach on this issue shall be characterized as old-fashioned and needs to be revised. The first and most important institution which symbolizes democracy and guarantees the rule of law in Greece is (or has to be) substantially related to a specific religion.
In addition, religious education in Greece is limited, strictly attached to one religion without giving any chance to broader horizons in those affairs.
As the Constitution does not directly connect religious consciousness with Christianity, courses of general religious interest shall be introduced with Orthodox religious ones being at an elective status at schools.
The contribution of the Orthodox Church to Greek culture can be part of history class.
Problems that arise in Greece are not directly related to the existence of “prevailing religion” but mostly to the way that this concept is interpreted. From a personal point of view, the existence of such a provision in a modern Constitution is unnecessary. The meaning of “prevailing” concerns historical and statistical reasons; hence, if not total expulsion, a different structure is better to be used in the description of the relations of the State with the Church as the terminology itself creates interpretative confusion.
Closing this paper, although Greece is a secular State from several constitutional provisions it can be said that the interference of religion in State sphere still exists to a certain extent. Compared to former Constitutions, positive steps have been taken (all known religions are protected against proselytism) through the secularization of the State.
Of course, the matter of “prevailing religion” not only in the Constitution but more as part of the moral values of the social majority in Greece shall be well respected up to the point that creates obstacles to religious freedom.
Still, provisions as articles 33 or 59 (religious oath) and the whole concept of “prevailing religion” describing the State and Church relations belong to another historical period and therefore revision needs to be considered as a possible solution.
Konstantinos G. Margaritis is a Ph.D. candidate at the Law School of National and Kapodistrian at the University of Athens, an Attorney at Law, member of the Heraklion Bar Association.
Article picture: Leonhard_Niederwimmer via Pixabay