‘No watershed between church and state’
Law and religion are clashing more and more often, it seems. The arrival of – in Dutch eyes – new religions such as Islam certainly plays a role, but there appear to be more stumbling blocks. For example, an ‘unwilling official’ recently made the headlines. But should there be room for conscientious objections, for example being unwilling to conduct a homo marriage. Absolutely not, says Fokko Oldenhuis, professor of Law, Religion and Society at the University of Groningen. ‘If you hold an official position you should just do your job, regardless of your personal opinion.’
Oldenhuis: ‘When officials are performing, they wear robes. Their own clothes are underneath, but you don’t see them. The same should apply to their personal opinions.’ As far as Oldenhuis is concerned, the same should apply to wearing headscarves in court. ‘Judges wear robes to emphasize their neutrality. A headscarf does not fit that image. When I’m wearing my robes in the court in Arnhem, I don’t pin on my Huguenot Cross either.’
Church and state are separate in the eyes of the law, but it’s clearly not a watershed, says Oldenhuis. ‘There have been situations when the judge has reacted to the content of a sermon. It’s certainly so that the same could happen with statements by an imam. This correction of behaviour that cannot be tolerated occurs evenhandedly. In that sense, comments by preachers and imams are subject to the same norms. A secular judge, quite rightly, has the last word.’
Testing the dividing line
In recent years there has been a lot of debate about the separation of church and state. The dividing line between what can and cannot be said has been repeatedly tested. That’s fine, in Oldenhuis’s opinion, because we certainly should not avoid the discussion in the public domain, ‘on condition that you know your place. There’s certainly nothing wrong with expressing your opinion, even if it is a rather exclusive one. The fact that the majority does not think that a certain statement is acceptable is not enough to forbid it.’
If somebody makes statements that are unnecessarily hurtful or offensive, you need a judge to make a decision. He or she is then playing the part of a line judge – deciding what is permissible and what is not. But the playing field is a wide one, admits Oldenhuis: ‘Sharp debate should be possible and is useful.’ Even if it concerns statements about religion. ‘Provocation, however, should not be the driving force. Society is not served by a debate where the statements are mainly designed to shock. Ayaan Hirsi Ali, for example, was always testing the limits. In my opinion she sometimes went too far.’
Oldenhuis: ‘You can claim that religion belongs behind closed doors. But so many people draw meaning for their daily existence from their religion. You cannot avoid that. In fact, you shouldn’t want to! Religion should not be banished from the public domain. That’s about as useless as trying to get rid of air stuck behind wallpaper; people continue to believe.’
On the other hand, you should let believers know where they stand, thinks Oldenhuis. ‘Particularly if you are operating in the public domain. In that sense, I think that Yvette Lont’s position in the homo debate is completely out of order. It is evidence of a very limited capacity to identify with someone else. Totally unsuitable for the public domain! Your personal opinions do not have to vanish in the public domain, but you should certainly keep them under wraps. Yvette Lont clearly does not understand that.’
Fokko T. Oldenhuis (Delfzijl, 1950) studied Dutch Law at the University of Groningen. After graduating he became a lecturer in the Civil Law department of the RUG. Since 2005 he has been professor of Law, Religion and Society. In addition, since 1993 he has been deputy justice for the Court of Appeal in Arnhem. Alongside publications about religion and the law, Oldenhuis has written many works on liability law and tenancy law.
On 16 January 2008, Fokko Oldenhuis is organizing a congress on the theme: Neutrale Staat: Kreet of Credo? - Over de (on)wenselijkheid van religieuze ruimte binnen het publieke beleid [ Neutral State: Slogan or Creed? The (un)desirability of religious space within public policy]. You can register by e-mail or telephone by contacting Ms A.M. Heins ( firstname.lastname@example.org , tel. 050-363 5770 (mornings) or fax 050-363 7101).
Contact: Prof. F.T. Oldenhuis
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