Imagine there's no religion - and no state church too?

On January 1st, 2017, the Church of Norway (CoN) officially separated from the state by gaining legal personality through amendments of the Church Act. The exact ramifications of this change are currently being ironed out by the Ministry of Culture, with the legal framework regulating the entire relationship between religious communities and state entities up in the air. In this reshuffle, the financial support of religious communities and the relationship between policies on religion and policies on culture, education and integration are hot button issues still to be determined.

Exit Religion

The ongoing rearrangement of the Norwegian legal framework on religion was preceded by comprehensive constitutional amendments in 2012. The amendments removed provisions regulating state rule over the church, including the appointment of bishops and the role of the King as the formal head of the church, although a requirement that the King remain a member of the CoN was retained in article 4 at the behest of the reigning King Harald V. Article 5, proclaiming the “sacred” nature of the King’s person rings a little awkward, but was kept in order to indicate the inviolability and legal immunity of the monarch.

The amendment of article 2, which previously secured that “the Evangelical-Lutheran religion remains the official religion of the state”, effectively ended the association of the state of Norway with one specific religious tradition. Confirming the split, the new, watered down version of article 2 pronounced the far more modest and imprecise ambition that “Our [sic!] values will remain our [sic!] Christian and humanist heritage”. Who the “we” of the sentence denotes, what versions of “Christianity” and “humanism” are implied, and the exact ramifications of these values remains uncertain, which is probably the way the drafting committee intended it all along. This is not dissimilar from other, comparable “value” articles, in constitutions around the world, presented as a form of grandiose preamble to the rest of the text with few, if any practical consequences.

Enter the Folk National Established Church of Norway

Not so with the amendment of article 16, which formerly specified the role of the King as the head of the church. In its new version, the article introduced a new concept to the constitutional relationship between church and state: that of the CoN as an Evangelical Lutheran folkekirke, which literally translates to the church of “the people” or the “folk”, distinct from other religious communities. The article is phrased in language strongly reminiscent of article 4 of the Danish constitution, where the Church of Denmark is characterized as the folkekirke of Denmark. What exactly a folkekirke means in the Norwegian context is notoriously fuzzy, ranging from who exactly constitutes the folk to which the CoN should act as “the” church, and to what kinds of rights and obligations arise from this particular status. Although the term has previously been used in the Church Act, it has remained unspecified. Recently, however, some clues of the intended meaning of article 16 have gradually become evident.

One indication of what the folkekirke denotes is the “common core” document submitted by the Norwegian government to the numerous UN committees monitoring the implementation of international human rights conventions. The document, which is intended to summarize key background information on local conditions in Norway, suggests that the CoN remains the “folk church”, without offering further elaboration of what this means, apparently finding the term self-evident. Another piece in the puzzle is the provisional English translation for the bicentennial of the Constitution in 2014, which suggested that the CoN will remain “the Norwegian National Church”, indicating an interpretation that seems to view the CoN as an entity more specifically in service of the nation, rather than the folk, or people.

A contrasting indication as to what the kind of creature the folkekirke is supposed to be can be found in the more recent, official translation of the Constitution, which pronounces that the Church of Norway will remain the Established Church of Norway. This choice of words may come as a bit of a surprise to English-language speakers whose primary connotations to legal rules on the establishment of religion tend to be informed by the debates surrounding the First Amendment to the U.S. Constitution, proclaiming that Congress shall make no law respecting an establishment of religion, suggesting the very opposite of the Norwegian constitutional provision. 

US connotations notwithstanding, the exactitude of “establishment” for legal purposes is no more clarified than the concept of folkekirke, a fact that the notorious unpredictability of US Supreme Court jurisprudence on the specific scope of the establishment clause attests to. Like its Norwegian counterpart, the choice of “established Church” to translate folkekirke dovetails the English version of the Danish Constitution, although the Church of Denmark is widely considered to remain, for all means and purposes, a state-run affair.  

Practicing Establishment

In more practical terms, the precise meaning of the CoN as a folkekirke has come to the fore in the ongoing debate on the new financial arrangements between the state and the plethora of other religious communities in Norway: Although the final part of article 16 provides that “all religious and belief communities shall be supported on equal terms” with the CoN, recent adjustments to §19 of the Act on Faith Communities secure a substantial financial compensation to the CoN to alleviate the burden placed upon pastors who will no longer have secure access to state-owned church lodgings.

The question was considered complicated enough to merit the consideration of the Legislation Department, a specialized agency within the Ministry of Justice and Public Security. In a lengthy opinion on the potential for differential treatment created by the financial compensation to the CoN, the Department looked to the jurisprudence of the European Court of Human Rights for guidance, citing the court’s decision in Ásatruarfelagid v. Iceland (2012), where the court found that other religious communities could not demand support on equal terms with the state church, as long as they received some form of support themselves, and their erstwhile freedom of religion was not violated. The Legislation Department reasoned that the special status attributed to the CoN in article 16 merited differential treatment on par with that allotted to the Icelandic state church, effectively finding the status of the CoN to be identical to a traditional state church arrangement in legal terms.

While the question of financial equality between the CoN and other religious communities is among the most clear cut examples of the concrete consequences of the special status of the CoN, other tailormade provisions abound, ranging from the requirement that every parish must have one church building and to the future of The Norwegian Church Endowment, a fund in charge of churchly assets dating back to the Middle Ages, administering a portfolio of approximately NOK 2,5 billion.     

The Song Remains the Same

If the CoN is effectively still a state-funded, state-regulated church whose financial privileges are embedded and on par with other state churches and whose far reaching obligations are still many and to be found nationwide, why was there a need to alter the constitution in 2012? Cui Bono?Indeed, under the current system, Norway has moved away from a dormant official religion maintained by an increasingly anemic church with no legal personality and over to a system based on “our” shared Christian and humanist values that both liberates and establishes a church to which the state promises to provide special treatment, specific legal regulations and perpetual funding.

Although the legal framework regulating the role of religious communities is currently undergoing major revisions, the constitutional starting point for these revisions leaves little room for the development of a reasonable, principled solution for religious equality. These challenges have been noted by the Liberal Party and the Socialist Left Party, both of which supported the 2012 amendments, but are now calling for new amendments to §16, to firmly sever the bonds between church and state.

Before any new amendments can be made, however, Norway is due to appear before the UN Human Rights Committee, where the delegation will likely go through the familiar, humiliating motions of being chided once more by the human rights body for the discriminatory constellation of its constitutional preference for one specific religious tradition. Just like in the old days.