International Journal of Cultic Studies ■ Vol. 3, 2012 13
No state organ, public organisation or
individual may compel citizens to
believe in, or not to believe in, any state
religion nor may they discriminate
against citizens who believe in, or do
not believe in, any religion. The state
protects normal religious activities. No
one may make use of religion to engage
in activities that disrupt public order,
impair the health of citizens or interfere
with the educational system of the state.
Religious bodies and religious affairs
are not subject to any foreign
domination.49
Notwithstanding the vagueness inherent in all
fundamental laws (and particularly the use of the
concept of discrimination), this is a well-crafted
article. It contains an injunction against state
religion (establishment) and by including the
words “or do not believe in,” it potentially
protects the rights of agnostics, humanists, and
indeed atheists (the latter with opposing but
arguably also equivalent belief systems).50
Whether this is a constitutional endorsement of
the policy of structural pluralism, or of state
secularism, or of both is open to interpretation.
In my view, however, it does enable the
constitutional courts to follow a policy of
secularization rather than sacralization. The
latter is arguably outlawed by the
nonestablishment provision because supporting
religious groups would tend to the establishment
of religion over disbelief, potentially resulting in
the marginalization of assertive disbelief.51 In
addition, Article 36 foreshadows sensible public
policy limitations on religious freedom, in
49 R. Murray Thomas, Religion in Schools: Controversies Around
the World, p. 96.
50 “The link with religion in the case of an atheist or agnostic is
clear, as these beliefs are both responses to the same basic
questions of ultimate meaning, the existence of god, and the role of
the supernatural in human affairs. The rejection of the notion of
god can be as fundamental to self-identity as the acceptance of the
existence of god.” Carolyn Evans, Freedom of Religion under the
European Convention on Human Rights (Oxford: Oxford
University Press, 2001), p. 65.
51 Of all worldviews, it is arguable that atheists are the most
vulnerable to persecution in regulatory frameworks that operate
under the sacralization tendency. Atheists are also potentially
vulnerable in supposedly secular countries that embrace religious
vilification laws, where the right of “evangelical” atheists to assert
views critical of religion is often characterized as intolerant
bigotry, or even, paradoxically, antifaith “fundamentalism.”
common with fundamental law developed in
Europe.
This more balanced constitutional provision
places China in an enviable position viz a viz the
United States, which has struggled to decipher
the vagaries inherent in the First Amendment
and has constitutionally delegated the difficult
task of regulating religions to jurists rather than
legislators. As China moves to incorporate more
democratic processes into its systems of
governance, the policy flexibility and
philosophical direction provided in Article 36
should serve it well. In negotiating the prickly
field of religious and quasireligious diversity, it
will find fertile ground for the cross-fertilization
of ideas in governments that have already
determined upon a secular path as the most
pragmatic solution (based on a principled
philosophy of separation) for the governance of
religious diversity. While the United States and
France both espouse theories of separation, it is
the French perhaps who offer a secularist
approach that would be better suited to China.
References
Anderson, Kevin Victor. (1965). Report of the Board of Inquiry into
Scientology. Melbourne: State of Victoria.
Bachelard, Michael. (20 July 2011). Scientologists threaten to sue cult
victim group. The Age. Retrieved online at
http://www.theage.com.au/victoria/scientologists-threaten-to-sue-cult-
victim-group-20110709-1h85b.html
Bachelard, Michael. (14 December 2008). Religion in schools to go
God-free. The Age. Retrieved online at
http://www.theage.com.au/national/religion-in-schools-to-go-godfree-
20081213-6xxs.html
Beckford, James A. (2004). Laicite, dystopia, and the reaction to new
religious movements in France. In Richardson, James T. (Ed.),
Regulating religion: Case studies from around the globe (27–40). NY:
Kluwer Academic/Plenum Publishers.
Bouma, Gary. (2006). Australian soul: Religion and spirituality in the
twenty-first century. New York, NY: Cambridge University Press.
Ching, Frank. (2008). China: The truth about its human rights record.
London: Rider.
Church of Scientology International. (1998). Scientology: Theology &
practice of a contemporary religion. Los Angeles, CA: Bridge
Publications Inc.
Dodd, Vikram. (18 January 2003). Controversial cleric vows to defy
mosque ban. Guardian Unlimited. Retrieved online at
http://www.guardian.co.uk/uk/2003/jan/18/voluntarysector.
terrorism
Evans, Carolyn. (2001). Freedom of religion under the European
Convention on Human Rights. Oxford, England: Oxford University
Press.
No state organ, public organisation or
individual may compel citizens to
believe in, or not to believe in, any state
religion nor may they discriminate
against citizens who believe in, or do
not believe in, any religion. The state
protects normal religious activities. No
one may make use of religion to engage
in activities that disrupt public order,
impair the health of citizens or interfere
with the educational system of the state.
Religious bodies and religious affairs
are not subject to any foreign
domination.49
Notwithstanding the vagueness inherent in all
fundamental laws (and particularly the use of the
concept of discrimination), this is a well-crafted
article. It contains an injunction against state
religion (establishment) and by including the
words “or do not believe in,” it potentially
protects the rights of agnostics, humanists, and
indeed atheists (the latter with opposing but
arguably also equivalent belief systems).50
Whether this is a constitutional endorsement of
the policy of structural pluralism, or of state
secularism, or of both is open to interpretation.
In my view, however, it does enable the
constitutional courts to follow a policy of
secularization rather than sacralization. The
latter is arguably outlawed by the
nonestablishment provision because supporting
religious groups would tend to the establishment
of religion over disbelief, potentially resulting in
the marginalization of assertive disbelief.51 In
addition, Article 36 foreshadows sensible public
policy limitations on religious freedom, in
49 R. Murray Thomas, Religion in Schools: Controversies Around
the World, p. 96.
50 “The link with religion in the case of an atheist or agnostic is
clear, as these beliefs are both responses to the same basic
questions of ultimate meaning, the existence of god, and the role of
the supernatural in human affairs. The rejection of the notion of
god can be as fundamental to self-identity as the acceptance of the
existence of god.” Carolyn Evans, Freedom of Religion under the
European Convention on Human Rights (Oxford: Oxford
University Press, 2001), p. 65.
51 Of all worldviews, it is arguable that atheists are the most
vulnerable to persecution in regulatory frameworks that operate
under the sacralization tendency. Atheists are also potentially
vulnerable in supposedly secular countries that embrace religious
vilification laws, where the right of “evangelical” atheists to assert
views critical of religion is often characterized as intolerant
bigotry, or even, paradoxically, antifaith “fundamentalism.”
common with fundamental law developed in
Europe.
This more balanced constitutional provision
places China in an enviable position viz a viz the
United States, which has struggled to decipher
the vagaries inherent in the First Amendment
and has constitutionally delegated the difficult
task of regulating religions to jurists rather than
legislators. As China moves to incorporate more
democratic processes into its systems of
governance, the policy flexibility and
philosophical direction provided in Article 36
should serve it well. In negotiating the prickly
field of religious and quasireligious diversity, it
will find fertile ground for the cross-fertilization
of ideas in governments that have already
determined upon a secular path as the most
pragmatic solution (based on a principled
philosophy of separation) for the governance of
religious diversity. While the United States and
France both espouse theories of separation, it is
the French perhaps who offer a secularist
approach that would be better suited to China.
References
Anderson, Kevin Victor. (1965). Report of the Board of Inquiry into
Scientology. Melbourne: State of Victoria.
Bachelard, Michael. (20 July 2011). Scientologists threaten to sue cult
victim group. The Age. Retrieved online at
http://www.theage.com.au/victoria/scientologists-threaten-to-sue-cult-
victim-group-20110709-1h85b.html
Bachelard, Michael. (14 December 2008). Religion in schools to go
God-free. The Age. Retrieved online at
http://www.theage.com.au/national/religion-in-schools-to-go-godfree-
20081213-6xxs.html
Beckford, James A. (2004). Laicite, dystopia, and the reaction to new
religious movements in France. In Richardson, James T. (Ed.),
Regulating religion: Case studies from around the globe (27–40). NY:
Kluwer Academic/Plenum Publishers.
Bouma, Gary. (2006). Australian soul: Religion and spirituality in the
twenty-first century. New York, NY: Cambridge University Press.
Ching, Frank. (2008). China: The truth about its human rights record.
London: Rider.
Church of Scientology International. (1998). Scientology: Theology &
practice of a contemporary religion. Los Angeles, CA: Bridge
Publications Inc.
Dodd, Vikram. (18 January 2003). Controversial cleric vows to defy
mosque ban. Guardian Unlimited. Retrieved online at
http://www.guardian.co.uk/uk/2003/jan/18/voluntarysector.
terrorism
Evans, Carolyn. (2001). Freedom of religion under the European
Convention on Human Rights. Oxford, England: Oxford University
Press.
