Catholics vs. Protestants – Birth and Tax: a Case of Religious Discrimination?

The relationship between church and state is attracting increased attention in Denmark and the relationship between the Danish Protestant State Church and other religious group in Denmark is often intensely debated. The Protestant State Church comprises 82 percent of the Danes whereas e.g. the Catholic faith is a minority religion – comprising some ½ percent of Danish people. The Protestant Church has assumed the role of the State Church since 1849, a status which implies moral and financial support by the state. State church systems are far from exceptional; in a European context and can be found in European countries such as Norway, Finland, Ireland, United Kingdom and Greece. Not surprisingly, however, a state church system like the Danish one can be the source of dispute in a multi-religious society. In 2007 a complex dispute reached the Danish Supreme Court concerning two inherent elements in the legal relationship between church and state: 1) the birth registration system which is administered by Protestant State Church offices and 2) the general taxation system according to which every citizen – Protestant, Catholic and other religious or non-religious citizens – indirectly contributes to the Protestant State Church. A Catholic citizen claimed that his right of freedom of religion according to the European Convention on Human Rights had been infringed. Although the starting point of the case is as tangible as a piece of paper certifying the birth of a child, the emotions and implications at stake are immense. In November 2007, the Supreme Court handed down its decision, which was a clearcut victory for the State Church (published in the Danish Law Weekly 2008 p. 342). The Supreme Court found no basis of religious discrimination and the Danish state church model is untouched.

Two Controversies: Birth and Tax
In 2004, in order to obtain a birth certificate a father (who was a Danish citizen of Iraqi origin) set out to the local church office in Northern Denmark to register the birth of his new-born daughter. Like everybody else, he was going through the motions and complying with standard requirements in birth registration cases. However, the father was a member of the Roman-Catholic Church, but his church office was part of the Protestant State Church. During the meeting between the father and the clerk of the office, the father felt discriminated against by being “compelled” into a system of birth registration overseen by the Protestant church. Adding insult to injury, he was handed a birth certificate by the clerk of the Protestant State Church office which had the official stamp of “The Danish State Church” at the left top corner.

Secondly, and more generally, the father felt aggravated by his duty to pay tax to the Danish state insofar as portions of tax revenue are transferred from the state to the State Church. This is a generally accepted fact among Danes although taxation in itself is a highly political question. The overall financial framework of the Danish State Church is that the church receives some 79 percent of its income by direct church tax levied upon the members of the church. As a non-member of the State Church, the Catholic in question did not pay church tax. However, 11 percent of the budget of the State Church is based on the general taxes that are levied on all citizens. As such, every Dane pays an indirect tax to the Protestant State Church.

Freedom of Religion and Religious Discrimination
The Catholic citizen decided to take legal action against the Danish State as represented by the Ministry of Ecclesiastical Affairs. The father argued that the birth registration requirement and the indirect tax contributions are contrary to his right of freedom of religion according to Article 9 of the European Convention of Human Rights (ECHR). The Convention ensures that every one has the right of freedom of thought, conscience and religion. The general idea of the plaintiff is that the compulsory birth registration implies a compulsory religious contact between him and the Protestant faith. Consequently, the father makes a claim that the ban on discrimination in Article 14 of ECHR and Article 26 of the United Nations Covenant on Civil and Political Rights (CPR) are infringed. According to the ECHR and CPR respectively, the enjoyment of the rights and freedoms “shall be secured without discrimination on any ground such as … religion” and “the law shall prohibit any discrimination and guarantee to all persons equal and effective protections against discrimination on any grounds such as … religion.”

In response, the defendant Danish Ministry argued that the birth and tax systems were secular and practicalities of general interest rather than ceremonious rituals with religious connotations. In legal terms, the Ministry argued that the birth registration does not relate to freedom of religion at all. The registration task is an administrative technicality that – according to tradition in most parts of Denmark – is managed by the State Church. It is a practical arrangement and it is a procedure that every citizen without exception must comply with. No religious information about the child is required by the office. In order to downplay the possible religious implications of the birth registration procedure, the church offices are empowered to provide documents of birth registration without the official stamp of the state church. In the case of the father in Northern Denmark, the Ministry emphasized that it was a mistake by the office that the he was given a stamped certificate. In that respect, the Ministry reminded the Supreme Court judges that the father could have obtained the certificate by postal application and could have avoided personal contact with the office. As to the taxation dispute, the defendant argues that Article 9 of ECHR does not give a citizen the right to refuse to pay a general tax that partly and indirectly supports the state church.

The ruling of the Supreme Court is cautious but clear. The court found that the birth registration task is a “civil and administrative task” that must comply with public law principles. In its capacity as a birth registration office, the local State Church office is merely an office – almost like a public train ticket office – of the state administration handling a non-religious case. The court was not convinced by the claim that the religious freedom of Catholic Danes had been infringed upon. Although it was a mistake by the office to hand over a certificate with official state church stamp, the father of the child to be registered could have asked for the mistake to be corrected. The ECHR does not prohibit a member state from establishing a birth registration like the Danish one (see the decisions of the Strasbourg Court in Lundberg vs. Sweden, appl. no. 36846/97 and Bruno vs. Sweden, appl. no. 32196/96).

As to the more complex tax controversy, the Danish Supreme Court stressed the fact that there is no direct correlation between the father’s payment of general taxes and the state subsidy to the Protestant State Church. The right to freedom of religion according to article 9 of ECHR and the relevant European case-law (among others Darby vs. Sweden, European Human Rights Commission case 11581/85) is not infringed. The Danish Supreme Court added that a part of the State Church expenditure is related to non-religious services rendered to all citizens such as birth registration and burial services. The Supreme Court concluded that the existing system does not violate the human rights of the citizen in question. There is nothing rotten in the state of Denmark.

The rulings of the Supreme Court were unsurprising to most lawyers, politicians and religious experts due to the general fact that European Human Rights Law has so far not prevented state church systems as opposed to e.g. the US constitutional system. In practice, moreover, the Supreme Court’s acceptance of the Catholic opposition to the taxation system would have had far-reaching consequences not only to the Protestant State Church, but also to the Danish state as such. Consequently, it can be argued that changes of the church system are to be dealt with by politicians rather than judges. With that in mind, it was expected that the Supreme Court would play it safe. From a broader perspective, one might conclude, however, that although religious wars are a part od Danish history, the case is an example of an intensified religious debate. Other sensitive religious conflicts are likely to bounce back into the court rooms. Modern Danish society is multi-religious and disputes on the relationship between church and state will no doubt reappear in the legal system.