Religion and law in the Netherlands.

• Author: van Bijsterveld, Sophie
• Position: Report

Historic Background

The last explicit change to the model of church and state relationships in the Netherlands took place in 1796. In that year, "separation of church and state" was first proclaimed. The proclamation of separation of church and state--a quite novel step--came as a reaction to the system under the Republic of the United Netherlands (1579-1795) in which the Dutch Reformed Church was the established or privileged church. The proclamation of the separation of church and state constituted a fundamental change. At the time, it was obvious that both the Republic and its church and state system had outlived themselves. The period that followed (1796-1813) was politically and constitutionally quite turbulent. After being a Kingdom under the rule of Louis Napoleon, a brother of Napoleon Bonaparte, from 1810 to 1813, a fresh start was made in 1814. In this year the Kingdom of the Netherlands, a decentralized unitary state, was established, of which Belgium formed a part from 1815 to 1830.

The current state and its constitution gradually developed from 1814 onwards. During the 19th century, the constitutional system developed into a full-fledged parliamentary system with universal suffrage for every citizen of 18 years and older based on a mature understanding and functioning of the rule of law. The system of church and state relationships also developed over the course of time. The proclamation and acceptance of "separation of church and state" was important. However, in the beginning it was not altogether clear what it should mean in practice for all the relevant areas of the law. Furthermore, the social, religious and demographic realities did not change overnight. Religion remained engrained in the functioning of society and in societal institutions, and its continued importance was respected by the law.

In the beginning of the 19th century, the state had a substantial influence in church affairs. The recognition of institutional freedom of religion, for which the constitutional revision of 1848 was of paramount importance, led to more autonomy of churches vis-a-vis the state. The establishment of regulations and internal organization of the Dutch Reformed Church, the Lutheran Church, and the Jewish Community by the King, for instance, became obsolete in the decades to follow. The acceptance of the full institutional freedom of religion enabled the restoration of the Roman Catholic bishopric hierarchy in the Netherlands in 1853. Among the other most significant developments was the agreement regarding the dual school system, in which both public and private schools were funded by the state on equal footing. This agreement was reached in the Constitution in 1917.

Even up to the present day, the principle of separation of church and state has never explicitly been delineated in the Constitution or in any other legal document. It is useful to keep this fact in mind in order to understand the Dutch model of the church and state relationship, as well as the current dynamics and debates in this field.

The Netherlands has always been a pluralistic country in terms of religious belief. Christianity is predominant, yet within Christianity a wide variety of denominations is represented. Even during the time of the Republic, there were various protestant churches, and from the early 19th century onwards, a variety of separations took place which continues even in the present time. There are also various, long-standing Jewish religious communities.

Church membership in the Netherlands has undergone a strong decline over the last few decades. (1) In 2014, the Dutch population amounted to about 16.9 million in total, according to the Central Bureau of Statistics (CBS). Figures from the research institute KASKI of 2012 show that Roman Catholics in the Netherlands number 4.044.000, comprising 24.1% of the population at the time of measurement. In 2012, the number of members of the Protestant Church in the Netherlands amounted to 1.762.000 members, equaling 11% of the population. (2) Membership numbers of the many other protestant denominations are small. Over the last few decades, the numbers of Hindu and Muslim believers have both increased significantly. It is estimated that there are currently about 1 million Muslims in the Netherlands. As there are no formal registrations of religious believers, and the various religious communities have different criteria as to whom they consider to be their members, the numbers are always estimates. Generally speaking, Dutch law has traditionally been sensitive to the religious needs of minorities.

The Netherlands is not only a pluralistic country in terms of religious beliefs; it is also a secularized country. By the end of the 19th century, the first wave of secularization had already occurred. Presently, religious issues, and issues regarding the relationship between church and state are returning to the forefront of public attention.

Religion, Culture, and Society in the Netherlands

Religion has traditionally played an important role both in individual people's lives, and in Dutch society at large. As we have seen, the Netherlands has always been highly pluralistic in terms of religion and belief. Dutch culture is also characterized by pragmatism. This may sound paradoxical, but highly pluralistic societies need a certain degree of pragmatism in day-to-day life in order to function. The existence of many Christian and Jewish minorities in the Netherlands has left an imprint on the formation of church and state relationships and, more generally, on Dutch laws relating to religion. Generally speaking, the Dutch system can be characterized as an open system, one adaptable to change.

A second characteristic of Dutch society is that of "pillarization" meaning that Dutch society was organized along denominational lines. Traditionally, in the Netherlands, churches or church-affiliated organizations have played, and continue to play, an active role in social and cultural domains. We may think, for instance, of schooling, youth activities, health care institutions, social support, and mass media. With the expansion of the state in these domains from the 19th century onwards, and more prominently in the 20th century, the state had to accommodate these initiatives in those areas in which the state itself became active. This resulted in a system of, on the one hand, state facilities in these domains, which are neutral from the point of view of religion and belief, and, on the other hand, the existence of confessional facilities. The quality requirements and the financing system are usually the same for both.

A third characteristic of Dutch society is that political activities are organized, at least in part, along confessional lines. The largest confessional party is the Christian Democratic Party. There are also a few smaller denominational parties. Dutch electoral laws are based on the model of proportional representation, which means that the variety of political opinions is reflected in parliament. Because a large variety of political parties are represented in Parliament, there is always the need to build coalitions between the larger parties.

The Dutch Model of State-Religion Relations

The Constitution

The current relationships between the state and religion are based on the Constitution. In 1983, a general revision of the Constitution took place. This revision also reformulated and modernized the first chapter on fundamental rights.

The Constitution does not explicitly make any statement regarding the form of church and state relationships. The principle of separation of church and state is regarded to be implicitly embedded in the Dutch Constitution, notably through the guarantee of freedom of religion and belief (Article 6), and the provision on equal treatment and non-discrimination (Article 1). Also of special importance is Article 23, which guarantees freedom of education and which introduces the system of publicly financed private elementary schools, the majority of which are confessional, as an option alongside public schools. This system has been extended by ordinary law to confessional secondary schools, as well as universities and professional schools. Of course, other fundamental human rights are important as well, both within the context of church-state relations and beyond, among them being freedom of expression and freedom of the press, as well as freedom of assembly and association.

The Constitution does not mention churches. In other words, it does not refer to the institutional dimension of freedom of religion. Article 6 of the Constitution speaks of freedom of religion or belief "individually, or in community with others". Nevertheless, it was acknowledged during the process of revising the Constitution that Article 6 protects institutions as well. Churches therefore also enjoy freedom of religion. They enjoy other fundamental rights as well, if applicable. Freedom of religion as guaranteed by the Constitution is meant to be far-reaching. It entails not only the right to hold a religious opinion, but also the right to act according to that opinion.

A particularity of the Dutch Constitutional system is that Acts of Parliament are inviolable (Article 120 of the Constitution). This means that the courts do not have the power to review Acts of Parliament as to their constitutionality. (3) Acts of Parliament, of course, must be in harmony with the Constitution, but Parliament is, itself, the legislative body which determines this. Because of the ban on constitutional review of parliamentary legislation and the absence of an explicit statement defining the separation of church and state, there is hardly any case law on the meaning of the principle of separation of church and state. The precise meaning of the separation of church and state in the Netherlands is thus a combined understanding of the Constitution and the whole system of secondary...