Churches and religious communities in Poland with particular focus on the situation of Muslim communities.

• Author: Rynkowski, Michal
• Position: Report

Constitutional Law

Basic Principles

The relations between the State and Churches and other religious communities in Poland are laid down in the Constitution of the Republic of 1997, in the Concordat of 1993 between Poland and the Holy See of the Roman Catholic Church, (1) in the statute on freedom of conscience and religion of 1989, (2) and in detailed statutes and regulations of various dates. There have been only a very limited number of respective court judgments, and the existing ones, like those in other European continental states, are binding exclusively in a given case and inter partes. (3) A brief look at the relevant portions of these documents, statutes, and judgments should provide a clear foundation for the ensuing discussion.

Among the sources of law concerning religious matters, Article 25 of the Constitution is of fundamental significance. As it refers to churches and religious communities, and not to individuals, it can be defined as a provision on collective religious freedom, while Article 53 refers to individual religious freedom. Article 25 reads as follows: (4)

1. Churches and other religious organizations shall have equal rights.

2. Public authorities in the Republic of Poland shall be impartial in matters of personal conviction, whether religious or philosophical, or in relation to outlooks on life, and shall ensure their freedom of expression within public life.

3. The relationship between the State and churches and other religious organizations shall be based on the principle of respect for their autonomy and the mutual independence of each in its own sphere, as well as on the principle of cooperation for the individual and the common good.

4. The relations between the Republic of Poland and the Roman Catholic Church shall be determined by international treaty concluded with the Holy See, and by statute.

5. The relations between the Republic of Poland and other churches and religious organizations shall be determined by statutes adopted pursuant to agreements concluded between their appropriate representatives and the Council of Ministers.

It is worth noting that the current Constitution of 1997, unlike Poland's previous constitutions, does not include in its preamble any direct reference to God. The first modern Polish constitution, that of 3 May 1791, stated explicitly: "The national predominant religion is and will be the Holy Catholic faith with all its rights; change of the predominant religion to any other is prohibited under the penalty of apostasy; but as the same Holy Faith commands us to love our brothers, therefore we take all people, of whatever belief, under government protection, and guarantee peace in faith in Polish lands, according to the statutes". (5) The so-called "March Constitution", adopted soon after World War I, had a preamble starting with an Invocatio Dei: "In the name of the Almighty God". This invocation was acknowledged to be acceptable for all Christian denominations, as well as Jews and Muslims. In the course of drafting the Constitution of 1997, debate over the content of the preamble arose during several meetings of the constitutional committee. (6) Finally, the first non-communist Prime Minister, Tadeusz Mazowiecki, proposed a statement which was quite long, but which satisfied all the participants. It read, "We, the Polish Nation --all citizens of the Republic, Both those who believe in God as the source of truth, justice, good and beauty, As well as those not sharing such faith but respecting those universal values as arising from other sources ..."

Formally, the Concordat of 1993, concluded between Poland and the Holy See, refers exclusively to the Roman Catholic Church. However, it is definitely an important source of ecclesiastical law more broadly defined. Although the government of then Prime Minister Ms. Hanna Suchocka signed the Concordat in 1993, it took five years for this treaty to be ratified by the Sejm. To cut a long story short, the Sejm, dominated from 1993-1997 by the left party (namely ex- or post-communists), refused to ratify the Concordat by raising a number of more or less relevant allegations. One of the concerns of the deputies had to do with the provision stating that a marriage concluded in front of a clergy member would take effect in civil law, provided that the priest conducting the marriage ceremony would inform the state office of civil registration of the ceremony within 5 working days (7). The deputies expressed doubts as to whether the priests would be reliable enough to proceed accurately according to the statutory deadlines and requirements. Under the provision that ensued, the privilege of officiating legally binding marriage ceremonies, initially granted exclusively to the Catholic Church, was extended to those churches and religious communities whose relations with the State are based on a separate statute. As a result of an amendment to the family code by the statute of 24 July 1998, marriages that have been solemnized according to the confessional provisions of the following churches and religious communities are recognized in civil law: the Catholic Church, the Orthodox Church, the Lutheran Church, the Reformed Church, the Methodist Church, the Baptist Christians, the Seventh Day Adventists, the Polish Catholic Church, the Union of the Jewish Confessional Communities, the OldCatholic Mariavites and the Pentecostal Church. The Muslim Religious Association, together with the Catholic Church of the Mariavites, the Eastern OldRites Church and the Karaim/Karaites Religious Union are not among the institutions granted this privilege. That is due to the fact that they declared no interest in the popularly termed "concordat" marriage.

It should be underlined that the first Article of the Concordat initially met with heavy criticism: the wording describing both Church and State as "independent and autonomous" was regarded by many left-wing commentators as imbalanced. However, nowadays it seems to be generally accepted.

The Terminology

The statute on freedom of conscience and religion states clearly in Article 10 [section] 1, that "Poland is a lay state, neutral in terms of religion and conviction". The term "lay", Swiecki in Polish, is generally regarded as a neutral term; in the statute used as a justification for denying state subsidies for churches and religious communities, there is neither definition nor description of this word. Words with meanings similar to laicism or secularism are also present in the Polish language, but they are attributed to certain legal processes or solutions, like the French laicite (laickosc), or to special periods of time; sekularyzacja, for example, refers to the process in the 1940s and 1950s, when communist authorities were closing down schools and confiscating church assets. Apart from some radical left wing parties, which are scarcely represented in Parliament, there are presently no cohesive voices challenging the status quo. (After the 2011 elections there was an anticlerical party, Ruch Palikota, but many deputies have since abandoned this party and joined others.) Apparently both interested parties: pro-clerical and anti-clerical alike, are aware that any change to the present equilibrium could damage their position in the long-term. Such an outcome was foreseeable in one of the rare discussions concerning a change to the statute on abortion: After the parliamentary elections of 2005, some right wing politicians suggested a change of law with an eye towards a complete prohibition of abortion. The Church avoided publicly supporting their efforts, knowing that in the next legislative period another change would be inevitable.

As regards terminology: Polish legislation generally uses the term Koscioly i inne zwiqzki wyznaniowe, which is correctly translated as "Churches and other faith communities." In foreign publications they are usually called "Churches and religious communities." The field of law governing questions of church-state relations is calledprawo wyznaniowe (confessional law). (8) In the Constitution and in the statutes dealing with religious iddues, the terms wolnosc religii (freedom of religion) or wolnosc wyznania (freedom of confession, freedom of beliefs) are used as synonyms. The general opinion holds that in practice no significance should be attributed to this difference.

There is no official state church in Poland, a fact implicit in Article 25 of the Constitution, which uses the plural form of the word "church," referring to "Churches and other religious organizations", and which underlines their equal rights (see above). The last constitution to include a provision on the predominant religion was adopted in 1921. Subsequent constitutions, in 1935, 1952 and 1992, did not include such a reference. Nonetheless, even nowadays the Catholic Church is frequently regarded as the Polish national church, although this status is not laid down in any legal text. Rather, the national character of the Catholic Church arises from statistics, presented in a more detailed form below. Out of some 33 million Poles baptized in the Catholic Church, some 40% still regularly participate in services on Sundays, which gives a rough number of 15 million regularly practicing. The second largest church is the Orthodox Church with 0.5 million baptized. The Catholic Church is therefore de facto, but not de jure, the national church.

The current Polish Constitution, adopted on 2 April 1997, mentions explicitly only one Church, namely the Catholic Church. This is due to the fact that only this Church, through the Holy See, is a subject of international law. This formula cannot be regarded as a discrimination against other churches.

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