From Formal Equality to Positive Neutrality to Positive Inferiority (for Some): The European Court of Human Rightss Limited Influence on Constitutional Changes and Religion in Hungary

Abstract

In the period from 1989 to the present day, Hungary twice changed its constitution and the framework of state-religion relations. In 2011/2012, its most recent constitution, the Fundamental Law, was introduced, and with it new legislation on church-state relations, bringing with it an effect of de-registering a number of formerly-recognized smaller religious communities. The European Court of Human Rights in 2014 held these effects to be partially contrary to European human rights standards. I argue that, far from being an aberration, ‘the new church-state regime’ of 2012 represents the formal solidification of the already-operative mode of the 1989-2011 Hungarian church-state system. The Fundamental Law and new legislation on church-state relations merely built on an existing establishment and went on to formally legalize an already present status-based two-tier cooperationist regime between church and state, formally establishing historical churches while converting previously formally equal but de facto unequal smaller religious communities to a status of formal inequality. The positive neutrality stance of the Hungarian Constitutional Court toward state-church relations in the period 1989-2011 transformed applicable constitutional provisions of the previous 1989 Constitution guaranteeing liberal formal equality of religions and separate functioning of church and state into demands for positive neutrality, consequently providing partial legitimacy for the devolution of smaller religious communities to the inferior status of associations after 2012. Against such a background, the influence of the ECtHR and other international and European bodies critical of the direction of state-church relations and politics in Hungary in general appear limited, and will likely depend upon on-the-ground mobilization in resistance to - or in support of - changes or status quo.