Rethinking the Validity of State Religions: Is Antiestablishmentarianism a Fundamental Prerequisite for the Protection of Religious Rights Under International Human Rights Law?
Ernst, Julia L.
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State religions exist in various forms in approximately forty percent of countries, including Denmark, Greece, and the United Kingdom. Despite the benefits that the establishment of religion may bring to some people, this church-state arrangement violates internationally recognized human rights in a number of ways. Yet antiestablishmentarianism— otherwise known as the doctrine of separation of church and state—is not currently recognized as necessary for the protection of religious rights. This Article argues that antiestablishmentarianism is a fundamental prerequisite for the protection of religious rights under international human rights law. Following the introduction in Part I of the Article, Part II reviews examples of human rights norms protecting religious rights embodied in international instruments and explores how these rights are violated by state religions. Part III considers additional concerns that are raised by the establishment of religion. Part IV critiques pronouncements by international human rights entities and scholars suggesting that, while aspects of state religions have encroached upon religious rights, state religions per se do not. Part V discusses the tentative movement toward antiestablishmentarianism, including countries that have recently disestablished. Part VI concludes that the international human rights community should explicitly affirm the principle of antiestablishmentarianism as a necessary prerequisite for the protection of religious rights within the international human rights framework.