A tram conductor who wants to pin a cross to his uniform, a teacher who wants to wear her headscarf in class, a lawyer who refuses to stand up when the judges enter, and politician Geert Wilders who says that the Koran should be banned. These are expressions of religion and philosophies that continually lead to fevered discussions and eventually to court cases. ‘Expressing ideas and beliefs has gone too far’, thinks professor of religion and law Fokko Oldenhuis. It’s thus high time that the active expression of beliefs and philosophies in the public domain was curtailed, he states.
‘People are obsessed with their own convictions’, says Oldenhuis. ‘However, in public positions in particular, you should not lose sight of their representative nature. This applies just as much to a tram conductor driver as to a politician. The tram conductor who wants to keep his cross is functioning on behalf of his employer, the municipality of Amsterdam, and a politician is fulfilling a role in the interests of the entire country.’ Nobody needs to turn into a boring grey mouse, continues Oldenhuis, but ‘religion and your own ideas may not be used within public positions to bulldoze everything and everyone you don’t agree with.’
A multicultural society requires everyone to make concessions, emphasizes Oldenhuis. ‘In our traditional society, characterized by the Protestant-Catholic-nonbeliever triangle, it was easier to permit matters when people invoked their religion. The consequences were clearer and it caused less tension than in our current society.’ Oldenhuis draws a comparison with a full bus. Everyone is supposed to make room for others, unlike in a tram where only three seats are occupied. ‘This is why we should reassess matters concerning the freedom of belief and freedom of expression.’
The degree of freedom granted to someone to express their opinions is related to their position. Oldenhuis differentiates three layers. ‘First there is the church. A lot can be said within the church, but not everything. A vicar can also be called to account by a judge if he makes reprehensible statements. The second layer is the public domain. People who are active in the public sphere should certainly tone down their personal views.’ Oldenhuis then presents the classic example of the registrar of births, deaths and marriages who refused to marry homosexual couples due to his own beliefs. That official should put aside his own views, according to the professor, because he’s functioning on behalf of society. This official is not wearing a gown for nothing – it is designed to prevent differences in clothing, religion or origin. The third level consists of individual citizens. ‘They are allowed to say a lot’, explains Oldenhuis. ‘In a pub you’re allowed to shout that the Koran should be banned without being punished.’
Somewhere at the bottom of the second level are the political parties. They fill a special position, says Oldenhuis, because on the one hand they have to be able to debate without hinder. ‘At the same time, our society is so fluid that calling on old, acquired rights such as freedom of expression and freedom of religion are no longer sufficient. These rights need to be assessed anew. The legal system should adapt to social developments. For over fifty years we hardly had to think about the separation of church and state, but historic events like 11 September 2001 and the fall of the Berlin Wall have accelerated social change.
‘So, when the SGP forbids women to play an active role in the party, I can imagine that a multicultural society should reconsider how far a political party can go in its views’, according to Oldenhuis. I can well imagine that in this day and age the government wants to set out new boundaries and oblige political parties to grant men and women equal rights.’It’s precisely the over-tolerance that leads to inequalities in society, thinks Oldenhuis, because if the SGP is allowed to ban women, the way is also open for a Muslim party that only admits men. One of the Supreme Court’s recent decisions (9 April 2010), incidentally, is in line with what Oldenhuis is averring. The highest legal body found in a case started by the Test Case Foundation Clara Wichmann that the SGP should treat men and women equally and thus admit the latter to administrative positions and onto the list of candidates. The Supreme Court confirmed that banning women was in conflict with the UN treaty for the rights of women, signed by the Netherlands. Although Oldenhuis agrees with the decision of the Supreme Court, he feels that the state should have been the one to initiate the case against the SGP and not an outsider like the Clara Wichmann Foundation. ‘The State should have set the boundaries. Particularly in a multicultural society, you should prevent one individual citizen dragging another in front of a judge in this way.’
‘Within the public domain, both believers and non-believers should tone down their extreme views’, concludes Oldenhuis, here referring also to the statements of PVV leader Geert Wilders. ‘He is the leader of a major party. In essence, he is so in the country’s interests. He should therefore face up to his responsibilities. When he systematically announces that reading the Koran, even in your own home, should be a punishable offence, he offends large groups of people. This would mean that people would no longer feel safe even behind their own front doors. That could never be in the interests of society. And that’s leaving aside the issue that it could be regarded as hate-mongering.’Oldenhuis points out that the European Court of Human Rights is already setting a trend. In two recent cases, the court has decided that politicians may not say anything they like at the cost of fellow citizens. It approved the disenfranchising of a Belgian politician after he spoke of ‘reservations for couscous clans’ and permitted a French mayor who called for a boycott of Israeli products to be prosecuted. According to Oldenhuis, Wilders’s comments are proof that the idea that every human right has limitations has been lost to sight. The professor emphasizes that the reason behind human rights is to protect citizens against the government. ‘Those rights are now being applied horizontally, from citizen to citizen, as if one citizen has the right to offend another. That is completely misplaced. The whole point of the human rights is thus being obscured.’
Fokko T. Oldenhuis (Delfzijl, 1950) has been professor by special appointment in Religion and Law at the Faculty of Law and the Faculty of Theology and Religious Studies since 2005. He is a member of the department of Private Law and Notary Law of the University of Groningen. 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.
Contact: Fokko Oldenhuis
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