H. DAVID BAER
Editor’s note: In late 2018, Hungary amended its religion law of 2011, which replaced pro-freedom legislation introduced in 1990. In 2012 around 300 faith groups lost their legal status as “churches” and were forced either to register as civil associations or else de-register. A faith group could obtain revised “church” status only with two-thirds support in the Hungarian Parliament.
Facing objections to this politicized process–including from the European Court of Human Rights–Hungary soon amended both its Constitution and the 2011 law, but largely to consolidate the restrictions. While able to function, non-established faith groups were still deprived of rights they had enjoyed for two decades, including the ability to receive one percent personal income tax donations (“church tax”) and to conduct hospital, military, and prison chaplaincy. (For a primer on the 2011 law and its effects, see the East-West Church Report, vol. 26, no. 1, 7-8.)
H. David Baer, a theology professor at Texas Lutheran University, spent 2013-14 in Hungary researching the impact of the 2011 law. His commentary below on the latest 2018 amendments is abridged from analysis originally posted on the Hungarian Spectrum blog (http:// hungarianspectrum.org.)
Amendments to Hungary’s religion law introduced on December 11, 2018 are supposedly intended to redress the violations of human rights occasioned by the law’s introduction in 2011. Instead, the revised law simply repackages these violations.
The new legislation introduces a four-tiered classification system for religious groups: lowest are Religious Associations (vallási egyesület), then Listed Churches (nyilvántartásba vett egyház), Registered Churches (bejegyzett egyház), and Recognized Churches (bevett egyház). (In Hungarian, “church” is the common term for religious communities of any faith.) The rationale for these tiers appears to be based upon size. Only 10 members are needed to register a Religious Association. Listed Churches need to have received church tax from at least 1,000 individuals; Registered Churches from at least 4,000. The top category of Recognized Churches consists of Registered Churches with which the government has established “comprehensive agreements” bestowing special rights and benefits.
Faith groups in the bottom three tiers are accorded a few rights denied them before. They will be allowed to collect the church tax, a clear accommodation to the European Court of Human Rights. In addition, the law grants them autonomy to determine their organizational structure—a provision which, had it been in effect earlier, would probably have prevented the liquidation of numerous de-registered churches. (Most religions believe their organizational structure is theologically mandated, while civil associations are required to have a particular organizational structure, with an executive board, a president, and voting rights for members. De-registered churches converting to civil associations were thus forced to adopt an organizational structure dictated by the state.)
In creating a tiered system, the amended Hungarian law gives the appearance of being modelled upon other tiered systems in Europe, perhaps those in Germany or Austria, which conform to European norms. These require that the state adopt an impartial posture toward religion, but do not necessarily preclude differential treatment. Thus, after a superficial read, the amended law might appear typical for Central Europe.
Expanded government role
Closer examination reveals this to be anything but the case. The different tiers in the Hungarian law disguise a thoroughly arbitrary treatment of faith groups. As compared to the old, the new legislation actually expands the role for government discretion in the treatment of religion.
One example is the manner in which faith groups acquire membership in the top tier. In the bottom three tiers, membership is determined by courts in accordance with objective criteria. That might appear to address objections to the power given Parliament to assign “church” status. However, Parliament’s power remains in relation to the top tier of Recognized Churches. This category consists of Registered Churches that have entered into “comprehensive co-operation agreements” with the state, which include state subsidy for both “public interest” and “faith-based” activities and are of unlimited duration. The decision to enter into a “comprehensive agreement” is made by the government, which must refer the “comprehensive agreement” to Parliament for a two-thirds vote. The amended law thus preserves Parliament’s political prerogatives in relation to Recognized Churches, ensuring a constitutionally distinct class of “churches” with substantially greater rights and privileges than any other tier.
The new legislation further extends discretionary power to pick favorites to the lower three tiers, as the government may also now enter into “agreements” with groups there. Such agreements are not “comprehensive,” and thus do not appear to require the approval of Parliamen Nevertheless, they can include substantial state subsidies for both “public interest” and “faith-based” activities. This means that even within a single tier, the state has discretionary power to treat religious communities differently.
According to the newly amended law, Religious Associations may enter into agreements for a term of up to five years; Listed Churches—for up to 10 years, and Registered Churches—for up to 15 years. This leaves the impression that membership in a higher tier entitles a group to longer, better agreements. But the agreements described in the law need not extend the full length of the term; conversely, they can be renewed indefinitely. In practice, the government could make a five-year agreement with a bottom-tier Religious Association that renews indefinitely, while simultaneously making a three-year agreement with a higher-tier Registered Church that will never renew.
Intentional discrimination
The most transparent explanation for the poorly delineated lower tiers, in fact, is that they express an intention to discriminate. The tiers function as a series of hurdles preventing de-registered churches from making a claim on the top status of Recognized Church.
Thus, the newly amended law includes a transitional provision stipulating that the churches de-registered after 2011 shall be classified as Religious Associations, when many of them actually meet the criteria for Listed or Registered Churches. Every de-registered organization seeking to move into a higher tier must apply for admission starting out on this bottom tier. That might not seem overly problematic given that admission into the next two tiers is determined by courts on the basis of objective criteria. However, those “objective criteria” include several unfulfillable conditions that render advancement into the higher tiers impossible.
To become a Listed Church, a faith group must have been operating in Hungary for at least five years or be affiliated with an international religious organization operating for 100 years. In addition, it must have received church tax from at least 1,000 individuals in the three preceding years. This latter condition, however, cannot be met by any deregistered church, because all de-registered churches have been prevented from collecting the church tax since 2011.
A similar condition applies to faith groups seeking to become Registered Churches, which need to have received church tax from at least 4,000 individuals in the previous five years. In short, to move out of the bottom tier into which they have been placed by de-registration, de-registered churches must meet conditions they cannot meet because they have been de-registered.
If meeting this nonsensical condition should prove too burdensome, the law does provide de-registered churches another avenue for advancing into the middle tiers. If a de-registered church officially declares that it will not accept financial support “from budgetary sub-systems, European Union funds or programs financed on the basis of international agreements, whether in the context of tender or not, for the purposes of its faith-based activities or public interest activities, and special decisions,” it need not certify receipt of church tax. In plain English, provided a deregistered church meets the conditions of size and duration of operation, it can move into the higher tiers immediately if only it abjures every conceivable means of financial support.
“Lex Iványi”
This combination of conditions is simply too Kafkaesque to be sustained by any authentic legal rationale. The most plausible explanation for the “perplexing condition” is that it was written exclusively with the aim of preventing a particular church from acquiring the status of Registered Church. The Orbán regime is well known for passing legislation directed against specific groups. It passed “Lex CEU,” for example, to drive the Central European University out of Hungary, and “Lex NGO” to restrict the activities of non-governmental organizations. In the same way, provisions in the amended law are clearly directed against the church led by Rev. Gábor Iványi, fully meriting the sobriquet “Lex Iványi.”
Gábor Iványi established a reputation as a dissident back in the Communist period. Today he is one of Viktor Orbán’s most prominent critics. His church, the Hungarian Evangelical Fellowship, actively assists groups marginalized under the Orbán regime, such as through its numerous schools for Roma children and homeless shelters across the country. [For an interview with Rev. Iványi, see the East-West Church Report, vol. 26, no. 1, 9-10.]
The Fellowship is also perhaps the only de-registered church in Hungary capable of meeting the legal conditions required of a Registered Church. It has been operating in Hungary for more than 20 years and demonstrated a membership of 10,000 as recently as 2013. However, since it has been prevented from collecting church tax for more than five years, it cannot certify tax donations. To acquire status as a Registered Church, therefore, the Hungarian Evangelical Fellowship would need to renounce all financial support. Of course, no human organization–not even a faith group–can comply. A law that demands churches refuse even manna from heaven is blatantly cynical and unjust.
Furthermore, while the transitional provisions impose impossible burdens upon de-registered churches, no transitional provisions whatsoever are imposed upon currently Recognized Churches. They simply retain their current legal status under the amended legislation. This is so even while most Recognized Churches do not appear to meet the new conditions necessary to acquire the legal status of a Registered Church. According to data provided by the state tax authority, only 13 of 32 Recognized Churches received church tax from more than 4,000 people in 2016. (The 13 include the Catholic, Calvinist, Lutheran and several other Protestant Churches, as well as the Society for Krishna Consciousness and several Buddhist organizations. The remaining 19 include the Seventh-day Adventist and Methodist Churches, the Salvation Army, several Orthodox Churches and Muslim communities.)
To sum up, Hungary’s newly amended religion law treats religious communities in a completely arbitrary manner by assigning rights and privileges on the basis of state discretion. The transitional provisions reproduce the legal situation created by the 2011 law, and hence repeat–rather than correct—the violations of human rights identified by the European Court of Human Rights. Faith groups de-registered in 2012 will be treated as Religious Associations regardless of their objective characteristics. Faith groups which kept their legal status in 2012 will retain their privileges as Recognized Churches, regardless of their objective characteristics.
Like the 2011 law, the amendments will certainly be challenged in the courts, and one easily imagines they will also be found to violate the right of religious freedom. Much less clear, however, is whether any of this matters. The Orbán regime has been flouting European norms and the rule of law for close to a decade. Those in Hungary bearing the brunt of the regime’s oppressive tactics may soon lose their war of attrition.
H. David Baer is Pastor Gerhard A. and Marion Poehlmann Professor in Theology at Texas Lutheran University. He has written extensively about legislation on religion in Hungary, including the Hungarian-English collection A vallásszabadság védelmében/ Essays in Defense of Religious Freedom (Budapest: Wesley János Kiadó, 2014.)
