In all European countries the relationship between church and state, as few other areas, is linked in many ways to the history and culture of each country, resulting in a variety of path dependencies. At the same time, the European states do certainly have significant similarities in the religious and ideological sphere and in the cultural sphere determined by it.
On the one hand, the European states share a common Christian tradition. On the other hand, European Christianity has undergone different confessional influences: Catholicism and Protestantism in the West and Orthodoxy in the East. Furthermore, the Enlightenment influenced European states in different ways, not least because of their different religious traditions. The fact of belonging to old multi-confessional empires (the Russian Empire, the Habsburg monarchy or the Ottoman Empire), which until the 19th century knew no religious freedom, but developed a degree of tolerance because of their multiculturalism, is also part of the formative features in Central and Eastern European countries. Furthermore, the length of the period of existence of a free and democratic state governed by the rule of law and promoting fundamental rights and freedoms, as well as the intensity of 20th-century systems of injustice, have massively influenced the structure of religious law.
At the end of the 20th century, these complex systems governing the traditional relationship between state and religion, were challenged by a series of developments. They include the continuing processes of secularization which are overshadowed by a “return of religion,” often exacerbated by religious fundamentalism, and the ethnic-religious pluralization of modern societies. All these developments lend a renewed and unexpected relevance to the topic of “state and church,” which has been dismissed as more or less irrelevant for quite some time.
The secularization thesis and its critical reconsideration
Over the past decades, the critical debate on the secularization thesis and its universal validity has dominated the sociology of religion and political science in their dealings with religion. ‘Secularization’ is a term that has been at the center of the interpretation of modernization since the 19th century at the latest. The great number of secularization theories agree in the fact that there is a rootedness in Christianity, which allows, more than any other religion, a separation or at least distinguishability of the secular and spiritual spheres and thus acknowledges the “worldliness of the world.”
Secularization, on the one hand, even becomes a genuinely Christian project, understood as “the necessary and legitimate consequence of the Christian faith.” On the other hand, and above all, secularization is understood as a separation from Christian origins, as a loss of meaning of religion, especially of religious institutions, which would have made it the necessary condition for modernization.
Of course, this topic, which has, significantly, become a key theme in philosophical, historical, sociological, political, theological and legal discourses in recent decades and has meanwhile led to library filling publications, cannot be pursued further here. However, as far as the link between secularization and modernization, which is characteristic of the traditional secularization thesis, is concerned, not only the ambiguity of the term ‘secularization’ but also the ambiguity of the term ‘modernization’ is a challenge. Both processes are often networked together in their origin in complex ways. The conditions for the emergence of modernization in any case include the denominational pluralization of Western society in the 16th century, which questioned the claims of religious truth and decisively promoted the “discovery” of the individual. This intellectual-historical background was an engine of technical and scientific progress, of the emergence of modern capitalism, and of the bureaucratization of state administration, which traditionally constituted indispensable elements of the concept of modernization.
After 1945 the simultaneity of the rapid modernization processes and the often dramatic decline of the religious character of European society seemed at first to confirm the secularization thesis, and in the Central and Eastern European states of the socialist camp, religion was ousted or at least displaced to privacy according to the Marxist-Leninist state doctrine.
The United States, however, regarded since the 19th century as the epitome of modern society, did not fit into the theory of the necessary linkage between secularization and modernization right from the start. By all means, one was aware that the developments in the U.S., where the relationship between politics and religion was also the result of the European history of suffering, had taken a different course. The separation of church and state, derived from the First Amendment to the Constitution of 1791, did not entail a secularization of society. From the European perspective, therefore, the U.S. has long been seen as a special case because of the particular historical conditions of its foundation.
Recently, modernization theories have increasingly taken the rapid processes of change in “non-Western” societies into account. They had not undergone the historical experience of overcoming religious wars by an internally peace-building state. Shmuel Eisenstadt, therefore, speaks of multiple modernities, according to which European modernity is only one of different models, and of the fact that one must separate the understanding of modernity from its evolutionary-Eurocentric interpretation. One cannot fail to see the resulting conclusions for the connection with the secularization thesis in the sociology of religion or in political science.
In any case, from the European point of view, “non-Western” modernizations that have not experienced a secularization process often show a kind of segmental modernization. While the technical and organizational tools of the modern state for exercising power, technologies and capitalist economic concepts are well accepted, the concepts of democracy and the rule of law developed in response to these modern processes, especially the guarantee of fundamental rights and freedoms, are rejected. In this reasoning reference is often made to the respective religious tradition.
In this sense, use is frequently made of the inadmissible identification of religion-distanced “secularism,” which is interpreted as a Western model par excellence, and religion-friendly “secular statehood,” which represents the predominant concept of law on religion in Europe.
The “Return of Religion” and “Europe the Exceptional Case”
Already in the 1980s, interest in religion increased significantly, with an increased focus on religious fundamentalism. In 1987, the American Academy of Arts and Sciences launched the Fundamentalism Project, which, under the direction of Martin E. Marty and R. Scott Appleby, explored the phenomenon of religious fundamentalism across disciplines and cultures. The results of the project, completed in 1995, were published in five volumes containing a large number of helpful empirical studies. According to the definition of religious fundamentalism, developed by the project and widely accepted by expert community, the ideological basis of fundamentalism is the response to secularization and the marginalization of religion. At the organizational level, it is characterized by a chosen membership, clear separation between members and non-members, charismatic-authoritarian structures, and strict rules of conduct for members.
In the fall of 1989, the collapse of the Soviet system not only disrupted the global world order, but also opened up completely new perspectives on religion and, consequently, on law on religion. The developments in some states (above all in Poland, but also in Romania and in the GDR) were also religiously inspired. It turned out that, despite anti-religious legislation and political practice, the remnants of the space left to the churches were still strong enough to serve as a forum for resistance to the regime. One of the consequences of the dramatic political changes in Central and Eastern Europe was that religion was once again visible as a social factor in these states and even gained considerable political weight in some of them. The upheavals had a strong impact on the discussions about the “reemergence of religion” in the 1990s. Relevant literature repeatedly refers to the role of the Catholic Church in Poland.
It is significant that in the first half of the 1990s the provocative titles of a series of scientific papers became almost proverbial. This applies first of all to the controversy between Francis Fukuyama and Samuel Huntington. In an essay in Foreign Affairs, Samuel Huntington in 1993 initially turned against Francis Fukuyama’s thesis of the “end of history,” with a question mark. Later, in 1996, in an extensive work with no question mark he warned about a Clash of Civilizations, which he foresaw could be almost entirely determined by religion. However, not only had the title of Huntington’s book become proverbial in the 1990s, but so had the book by Gilles Kepel, who in 1990 spoke of a Revanche de Dieu. In the same year as the essay by Samuel Huntington, the compilation Rediscovering the Religious Factor in American Politics by David C. Leege and Lyman A. Kellstedt was published in the U.S. as a forward-looking research program. In 1994 the frequently quoted work by the American sociologist of religion José Casanova was published (Public Religion in the Modern World), noting the renewed public popularity of religion and questioning the validity of the secularization thesis.
Thus, religion was reintroduced in the late modern period as a global political factor, and the slogan of the “return of religion” has not ceased to exist since then. Rejecting the universal validity of the secularization thesis at the beginning of the 21st century, Grace Davie spoke of the Exceptional Case Europe. The widely accepted thesis by Jürgen Habermas of entering a “post-secular age” goes in the same direction. Both phrases have become frequently-used slogans.
Thus, religions have more innovative power than they have often been believed to possess. Therefore, they are capable of surviving under new social and political conditions. It is a hallmark of post-secular society in the sense of Jürgen Habermas that religious and secular mentalities were covered and reflexively changed by the modernization of the public consciousness at different times. In this sense, European society opens a secular world for pluralistic worlds of living, providing at the same time a social space for the visibility of the religious. Needless to say, a secularist conception of the state does not meet these requirements; a secular, but certainly “religion-friendly state” is needed.
General current developments
The complexity of the world, in which religion is again perceived as a public actor, thus shows a number of diversely interlinked relevant phenomena. They are often both complementary and antagonistic processes. Growth in meaning and politicization of religion and further processes of secularization do not appear to exclude each other. In Europe, if not globally, all empirical evidence indicates further progress of secularization parallel to the reemergence of religion in the public space.
Steve Bruce rightly states: “But, unless we can imagine a reversal of the increasing cultural autonomy of the individual, secularization must be seen as irreversible.”
Detlef Pollack pointed out that often a change of the dominant forms of religion does not necessarily mean a loss of religiosity and church affiliation.
One factor should not be underestimated. One of the main reasons for the pluralization of religious landscapes and the return of religion is international migration, not only in Europe but worldwide, which necessarily has implications for religious policy and the organization of law on religion.
Thus, immigration often brings immigrants increased awareness of their religious identity. Migrants often come from religiously closed, more conservative areas. They are, therefore, inherently more religious than the native population. This concerns not only so-called migrant religions, such as Islam, it also applies, for example, to immigrants from traditional Catholic societies. Moreover, the second generation of these immigrants shows a slower decline in religiosity than the corresponding age groups in the native population do.
These developments have three notable and legally relevant consequences. They create so-called parallel societies, which have always been perceived as an ambivalent phenomenon, especially in immigration societies. While they were initially considered an important role in integration, as bridgeheads to the majority society and as a societal dialogue partner, parallel societies in recent years have almost become a political fighting term. There is discussion all over Europe on the acceptance of alternative dispute resolutions, including religious arbitration tribunals like “Islamic Sharia Councils.”
The second consequence is that immigrant religions—such as Islam in many European countries—have undergone structural changes by adopting the respective historically evolved systems of law on religion. For example, the Islamic religious community in Austria has received a public-law position on the model of the churches, which implies a principally positive attitude towards the free and democratic state governed by the rule of law.
Thirdly, the state for its part must redefine its relation to the religious communities under the conditions of increasing religious pluralization. “The adjustment is not an easy task because it alters a longstanding balance of rights and privileges allotted to different religious communities, but it definitely remains within the boundaries of a physiological transformation process.”
Special features in the States with Orthodox tradition
What are currently the specific challenges for the states with an Orthodox tradition?
On the one hand, they increasingly seem to fit into the general evolution of the simultaneity of the return of religion and of progressive secularization, as well as of religious pluralization and the globalization of religious actors. After the great increase in religiosity in the 1990s, the statistics have shown a slow but steady decline over the past decade. On the other hand, the states with Orthodox traditions show historically determined peculiarities—like all European countries, as mentioned above. This applies both to the relation to state power, as well as to the ecclesiological concepts and the application of the canon law of Orthodoxy in the current political and societal context.
The classical texts on the role of political power embodied in the emperor can be found in the 66th Justinian novella and in the 9th century introduction to the Eisagoge, attributed most probably to Patriarch Photios. They contain—albeit with different weighting in the relation of emperor and patriarch—the notion of the ‘symphonia’ of spiritual and temporal power, which forms the basis of Byzantine state law. In this concept, the participation of the emperor in ecclesiastical matters was not only recognized, but in the sense of a commitment to the protection of the faith such an engagement of the sacred person of the emperor was almost demanded. Therefore, the fall of the Byzantine Empire in 1453 marked a significant turning point for the ecclesiology and canon law of Orthodoxy. As far back as in 1393, Patriarch Antonios IV wrote in a famous letter to the Grand Duke of Moscow, Vassily I, that despite his “current political insignificance, it was impossible for the Church to be without the Holy Emperor.” Thus, with the collapse of the Byzantine Empire, there was a de facto vacuum. The Russian Tsar, respectively Emperor, who, in the course of modern times, sought to fill this gap as “Keeper of the Byzantine throne,” was ultimately not able to implement the Universalist concept in theory or practice. So, the fall of the Byzantine Empire has been a central constitutional problem of the Orthodox Church, up to the present day.
On the territory of the former Byzantine Empire, the Ottoman state law provided the church, respectively the Patriarch and the bishops, with secular functions. This political involvement not only led to the emergence of “church nations” in East-Central and South-Eastern Europe, but also conferred on the ecclesiastical officials a special responsibility for the Orthodox people—and thus for their respective national interests—which has had a lasting effect until today.
In the 19th century, the decay of the Ottoman Empire necessitated a redefinition of the relationship between state and church. The nation states that arose on its territory which insisted on the right of self-determination could not fully fall back on imperial Byzantine state law, but usually established a system in which Byzantine traditions were linked to elements of Western state churches. Although the Ecumenical Patriarchate clearly condemned this development as nationalism and ethnophyletism in a Synod decision in 1872, this could not prevent the national fragmentation of Orthodoxy and its persistent use for political purposes.
In the 20th century, the confrontation with the anti-religious injustice systems finally brought the Orthodox Churches completely new experiences. According to the Marxist-Leninist theory of state, this was mostly based on a radical concept of separation, but in practice traditional instruments of state supervision of the churches were often used. Most of the Orthodox Churches lacked the experience of conflicts with the state, as Western churches had been familiar with since the Middle Ages. On the one hand, massive oppression and countless victims of communist persecution created a climate of fear and mistrust, in which the hierarchy often withdrew to a wait-and-see attitude, something that was not easy to overcome even after the end of communism. On the other hand, despite the ideological opposition of communist rule, some Orthodox Churches have been able to use limited space to act. But they have had to accept instrumentalization for state-political interests, especially when it came to the state-mandated commitment to the socialist peace policy.
The “religious rebirth” after the end of communism made it clear that the churches had survived the persecution by the atheistic state in far better shape than many had expected. However, the political turnaround has brought another challenge to the Orthodox Churches in that they are relatively unprepared for confrontation with a pluralistic open society. A potential for conflict was often that religious freedom also means reduction of privileges for traditional religions and freedom for all denominations and their missionary activities. Here, the churches mostly reacted with incomprehension and a defensive attitude, reminding the authorities with reference to national Orthodox traditions of privileges by the respective state. In this way, the churches have often not facilitated the transition to a democratic state governed by the rule of law, making use of the misleading equation of “secularism” and secular statehood in their criticism of this state concept.
A second problem area emerged in some countries, where the conflicts known from the collapse of the Ottoman Empire were rekindled due to new state borders. The formation of new states on the territory of the Soviet Union and Yugoslavia has again led to intra-Orthodox jurisdictional conflicts, as both the Russian Orthodox Church and the Serbian Orthodox Church essentially claim the old territory as their canonical territory.
This problem is overshadowed by the controversial question as to whether a claim to autocephaly exists, and if so, under which conditions this declaration is given and especially, who the competent authority actually is. The modern declarations of autocephaly have all followed the principle that ecclesiastical and political-state boundaries should, in principle, coincide. The state they had in mind was the modern nation-state. In this respect, a national principle prevailed despite the condemnation of the so-called phyletism in the 19th century. Of course, as a very specific, historically contingent concept of autocephaly it cannot simply be projected back into the past, and in view of today’s developments it is also questionable what significance it will have in the future.
Not least because of this connection with state borders the question of autocephaly is one of the most crucial issues of Orthodox canon law and its interaction with state policy and even international relations. In 1976, therefore, the subject was put on the agenda of the planned Holy and Great Council of the Orthodox Church. Since it was clear that there would be no consensus on this issue, it was removed from the agenda in 2016, which caused great regret in some churches.
In any case, the question of autocephaly is a prime example of the dilemma involved in solving the current structural problems of Orthodoxy with far-reaching political implications. The old canons, which were created under the completely different ecclesiastical and political conditions of the first millennium, offer no clear answers to current questions, unfortunately often allowing divergent interpretations. This is also true of the declaration of autocephaly, which raises various questions: Who is the mother church in the special case? What are its competences? When is a Pan-Orthodox consensus reached? It was almost inevitable, therefore, that the attempt to find a solution at the Holy and Great Council of Orthodoxy in 2016 was almost inevitably doomed to failure.
This question also shows that the growing importance of religion in the last decades, embedded in manifold complex developments, confronts Orthodoxy with difficult tasks, more than any other denomination.
 The Christian tradition of criticism of power, on the one hand, and the emphasis on the distinctiveness of spiritual and worldly tasks, on the other hand, is well anchored in biblical texts, for instance, in Mk 12, 17 (“Render to Caesar the things that are Caesar’s, and to God the things that are God’s”) and some text passages of the Acts of the Apostles (culminating in the famous quote “We ought to obey God rather than men” (5, 29). Again and again these texts were historically effective to justify the independence of the spiritual sphere of the church.
 It should not be overlooked that the First Amendment only prohibited Congress from intervening in the religious system of the Federal States, some of which even had state churches at that time. It was not until the 14th Amendment, ratified in the aftermath of the American Civil War in 1868, that the first ten amendments of the United States Constitution (known as the Bill of Rights) were made applicable to the Federal States (“Incorporation Doctrine”). With respect to the religious clauses of the 1st amendment this was a long-lasting process. As late as 1890, thirty-seven of the then existing Federal States made reference to God in the preambles or texts of their constitutions.
 In the decision of the Grand Chamber of the ECtHR in the Case of Refah Partisi (The Welfare Party) and others v. Turkey of February 13, 2003 (Appl nos 41340/98, 41342/98, 41343/98, 41344/98) Russian judge Anatoly Kovler regrets in his concurring opinion with the judgement “that the Court […] has missed the opportunity to analyze in more detail the concept of a plurality of legal systems which is linked to that of legal pluralism and is well-established in ancient and modern legal theory and practice.” Kovler was not only referring to the increasing importance of legal pluralism in general but was also pleading for an unbiased approach to the Islamic Sharia.
 On Soviet territory, the question first arose in regard to the Orthodox Churches in the Baltic states, which led, in particular, to the split in Estonian Orthodoxy, and more recently in connection with the attempt to unify the existing Orthodox jurisdictions in Ukraine in an autocephalous church.
 In Yugoslavia, a declaration of autocephaly already took place in Macedonia in 1967. After the Yugoslavian secessions such an attempt was made in Montenegro in 1998.
 A Message of the Holy Assembly of Bishops of the Serbian Orthodox Church concerning the convocation of the Holy and Great Council convened in Crete states: “In view of the fact that the question of communion between autocephalous Churches is of crucial importance for the mission of the Orthodox Church in the world, we deem it necessary to discuss the theme of autocephaly, and our Church has insisted on this incessantly. This Synod has a sufficient number of theological and pastoral motifs to acknowledge that today fourteen autocephalous Churches exist and that this is sufficient to confirm their status. Besides, within current preparations for the Synod the theme of autocephaly has been explored in detail, as well as the way in which it is proclaimed, except for the way of signing. Therefore, it is wholly justified and appropriate at the Holy and Great Synod to accept and proclaim that which for decades has been processed and completed.”