THE TANDEM PROJECT
http://www.tandemproject.com.

UNITED NATIONS, HUMAN RIGHTS,
FREEDOM OF RELIGION OR BELIEF

The Tandem Project is a UN NGO in Special Consultative Status with the
Economic and Social Council of the United Nations

Separation of Religion or Belief and State

UNITED STATES OF AMERICA

Ninth Session U.N. Human Rights Council Universal Periodic Review (2-12 Nov, 2010)

UNIVERSAL PERIODIC REVIEW

The Universal Periodic Review (UPR) is a unique process launched by the UN Human Rights Council in 2008 to review the human rights obligations and responsibilities of all UN Member States by 2011. Click for an Introduction to the Universal Periodic Review, Process and News: http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx

OVERVIEW

Universal Periodic Review & Freedom of Religion or Belief

National Report: Introduction; Human rights are universal but their experience is local, U.S. and Human Rights: A Commitment to Freedom, Equality, Dignity; Article 1 of the Universal Declaration of Human Rights, Freedom of Expression, Religion, Association and Political Participation; Freedom of thought, conscience and religion, Fairness and Equality; Fairness and equality and Muslim, Arab-American and South Asian persons; UPR consultations meeting in Detroit Michigan, Attorney General’s Review of 2003 Guidance Regarding the Use of Race in Law Enforcement, A Commitment to Foster a Society Where Citizens are Empowered to Exercise Their Rights, Paradigm in Franklin Roosevelt’s 1941 “Four Freedoms” speech, A Commitment to Values and National Security.

Stakeholder Letters: Background and Framework; 103 stakeholder letters prepared in accordance with paragraph 15 C of the annex to Human Rights Council Resolution 5/1, Amnesty International and several others recommends ratification and implementation of all international treaties, CEDAW, CRC, ICESCR, OPCAT, Inter-American Commission, USA has not ratified any of the religional human rights instruments, Institutional and Human Rights Infrastructure; Four Freedoms Foundation recommends USA establish a National Human Rights Institute based on the Paris Principles, Promotion and Protection of Human Rights on the Ground; Freedom of religion or belief, expression, association and peaceful assembly and right to participate in public and political life, Becket Fund for Religious Liberty, Right to Education and to Participate in the Cultural Life of the Community, Four Freedoms Foundation recommends a national human rights education curriculum, International Indian Treaty Council and indigenous sacred sites, Shoshone, Achievements, Best Practices, Challenges and Constraints, no Stakeholder letters in this section.

High Commissioner for Human Rights Report: Country Report Click to Open Website Below; Adopted Universal Periodic Review Information after Adoption in 11th Session of UN Human Rights Council, Useful Information; News Archives, UPR Pending, Most Recent Special Procedures Reports; Summary Executions, Extrajudicial Killings (2009), Migrants (2008), Terrorism (2007), Extreme Poverty (2005), Most Recent Concluding Observations on Treaty Bodies; CRC (2008), Racial Discrimination (2008), Torture (2006), Human Rights Committee ICCPR (2006) Next Concluding Report due August 2010, Open Invitation to Special Procedures; No standing invitation.

Working Group Report: Summary; 56 delegations made statements and 27 other delegations posted statements. Conclusions and Recommendations; In the course of the discussion 228 recommendations were made to the United States of America were made to ratify ICESCR, CEDAW, CRC, OP-Cat (United Kingdom), include and rank human rights on the United States in annual reports (Algeria), establish a National Institute of Human Rights under the Paris Principles (Egypt), continue to create an enabling climate for religious tolerance and cultural understanding at a grassroots level (Indonesia), counter insults against Islam and Holy Koran, as well as Islamophobia by adopting necessary legislation (Iran), enact legislation that prohibits religious and racial profiling in the context of the fight againt terrorism (Qatar), continue consultations with non-governmental organizations and civil society in the follow-up (Austria).
Response; the United States will respond to all 228 recommendations before the outcome report is adopted by the UN Human Rights Council in its sixteenth session.

Special Rapporteur on Religious Intolerance  1998 Country Report: Summary; United States does not do an annual report on itself, only visit by a Special Rapporteur on Religious Intolerance was the 1999 report to the UN Human Rights Commission (26 pages with annex on religious beliefs in America (E/CN.4/1999/58/Add.1) published below and in Issues/Country visits in the OHCHR link below, Sections of the Report; Legislation in the Field of Religion or Belief, Tolerance and Non-discrimination Based on Religion or Belief with sections on Muslims, Jews, Native Americans, Atheists, others.

Conclusions and Recommendations; Correct attitude that human rights are to treated as international and not domestic (#91), federal authorities should coordinate meetings between Special Rapporteurs and State Authorities, (Summary and #73 by Bacre Waly Ndiaye, Special Rapporteur on Arbitrary Executives and Extrajudicial Killings), human rights education should be a top priority to overcome ignorance by the media, coordinate federal, state and local laws for legal protection of indigenous peoples and native Americans, Inter-religious Council of Southern California as a best practices model. 

National Report – United States of America:
http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/A_HRC_WG.6_9_USA_1_United%20States-eng.pdf

Summary of Stakeholder Letters: http://www.un.org/webcast/unhrc/archive.asp?go=029
Available by clicking on 5 November and opening Summary of Stakeholder Letters.

High Commissioner for Human Rights Report:
http://www.ohchr.org/EN/countries/ENACARegion/Pages/USIndex.aspx

Draft Report of the Working Group:
http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/A_HRC_WG.6_9_L.9_USA.pdf

Related webcast archives with Member States and the U.S. delegation on 5 November and 9 November 2010: http://www.un.org/webcast/unhrc/archive.asp?go=029

UN Special Rapporteur on Freedom of Religion or Belief Report: visit to the United States in 1998 published below.  

THE TANDEM PROJECT RECOMMENDATION

Universal Periodic Reviews & Freedom of Religion or Belief Format: National Report, Stakeholder Letters, UN High Commissioner for Human Rights Report, Working Group Report, International Religious Freedom Report and Tandem Forums. Each country Universal Periodic Review  has their own focus on the norms, standards and cultures of the country. These are assessed to see how they meet their human rights obligations and responsibilities to implement international human rights law on freedom of religion or belief over the four year follow-up cycle of their review.

NATIONAL REPORT: National Report states human rights are universal but their experience is local in the United States. Test this assertion over four years by demonstrating synergy between United States foreign policy and domestic programs  to foster a society where citizens are empowered to become aware, understand and exercise their international rights to freedom of religion or belief at a local level.

Ask the U.S. State Department International Freedom of Religion Report and U.S. Commission on International Religious Freedom to approach Congress to amend the titles to International Report on Freedom of Religion or Belief and U.S. Commission on Freedom of Religion or Belief, to honor its human rights obligations and responsibilities and build awareness at federal, national and local levels of these obligations under the Article 18 of the International Covenant on Civil and Political Rights, 

STAKEHOLDER LETTERS: Propose partnerships with the Four Freedoms Foundation and other stakeholder’s recommending the United States establish a National Institute on Human Rights under the Paris Principles to better coordinate efforts to implement human rights and freedom of religion or belief at federal, national and local levels.

HIGH COMMISSIONER FOR HUMAN RIGHTS REPORT: Monitor all Treaty-bodies and Special Procedures for reference to human rights and freedom of religion or belief, encourage United States to submit late (August 2010) report to the Human Rights Committee for the ICCPR and suggest the report to the treaty-body include information on Article 18 of the ICCPR.

Encourage the United States to extend an Open Invitation to Special Procedures.   

WORKING GROUP REPORT: 228 recommendations were made to the United States including a recommendation to rank human rights in their annual reports (Algeria), continue to create an enabling climate for religious tolerance and cultural understanding at a local level (Indonesia). Recommend to Indonesia that they follow-up their UPR with a partnership in the United States for local Forums on how to implement this recommendation. Continue consultations with non-governmental organizations as civil society in the follow-up (Austria).  Recommend to NGO’s in Austria that they partner with NGO’s in the United States on this recommendation.

SPECIAL RAPPORTEUR ON RELIGIOUS INTOLERANCE 1998 REPORT: Invite the new U.N. Special Rapporteur on Freedom of Religion or Belief to visit the United States to update the first report in 1998 by Abdelfattah Amor, U.N. Special Rapporteur on Freedom of Religion or Belief.

TANDEM FORUMS: attach invitations to build global awareness of international human rights law on freedom of religion or belief at local levels as a follow-up to Universal Periodic Reviews. This includes Forums for Places of Worship, Academic Discourse, Schools, Women and Civil Society.

INTERNATIONAL HUMAN RIGHTS LAW AND FREEDOM OF RELIGION OR BELIEF

The principal instruments for International Human Rights Law and Freedom of Religion or Belief is Article 18 of the International Covenant on Civil and Political Rights (CCPR) and the 1981 U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The 1981 UN Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief

http://www.tandemproject.com/program/81_dec.htm.

General Comment 22 on Article 18 of the International Covenant on Civil and Political Rights

http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/9a30112c27d1167cc12563ed004d8f15?Opendocument

Article 18: International Covenant on Civil and Political Rights

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice and freedom either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

No one shall be subject to coercion which would impair his freedom to have a religion or belief of his   choice.

Freedom of manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others.

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education in conformity with their own convictions.

The Third Rail

International human rights law on freedom of religion or belief protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief, - General Comment 22 on Article 18 of the International Covenant on Civil and Political Rights. The United Nations does not favor one religion or belief over another. This law protects individuals from discrimination based on religion or belief. It values the equal rights of majority and minority religions or beliefs, indigenous, traditional and new religious movements. It is a universal, neutral and impartial moral principle. Lexicographers may describe the terminology as agnostic, the third rail on the God idea between theism and atheism.

FREEDOM OF RELIGION OR BELIEF

UNITED STATES OF AMERICA

1998 Report of the U.N. Special Rapporteur on Freedom of Religion or Belief
Abdelfattah Amor

Introduction

1. From 22 January to 6 February 1998, the Special Rapporteur on the question of religious intolerance visited the United States of America in the exercise of his mandate. During his mission, he went to Washington (22 January, 2427 January, 5 and 6 February), Chicago (23 January), New York (2728 January), Atlanta (29 January), Salt Lake City (30 January), Los Angeles (31 January1 February) and Arizona (Phoenix and Black Mesa, 24 February).

2. The Special Rapporteur had talks with representatives of the State Department (including Thomas R. Pickering, UnderSecretary of State for Political Affairs, John Shattuck, Assistant Secretary for Democracy, Human Rights and Labor, and various other officials) and of its Advisory Committee on Religious Freedom Abroad; he also met officials from the Departments of Justice (including the Hate Crime Task Force and Office of the Legal Counsel), the Interior and Education (Office of NonPublic Education), the Immigration and Naturalization Service and the Equal Employment Opportunity Council. In addition, he had talks with Sandra Day O'Connor and Stephen Breyer, Justices of the Supreme Court, to whom he is particularly grateful.

3. The organization of official meetings presented problems inasmuch as the State Department confined its assistance to meetings held at the federal level, declaring that it was not competent to help with the Special Rapporteur's visits to the states; this highly regrettable lack of cooperation meant that few meetings with official state representatives were arranged. In fact, the meetings with the Governor of Utah, certain administrations, various committees (concerned with such matters as human rights or hate crimes) and legislators came about through the assistance of the New York Office of the United Nations High Commissioner for Human Rights, nongovernmental organizations and private individuals.

4. The Special Rapporteur also had consultations with a great number of nongovernmental organizations in the field of human rights and with representatives of most religions and beliefs: Native Americans, Christians, Muslims, Jews, Buddhists, Hindus, Jehovah's Witnesses, SeventhDay Adventists, Mormons, Baha'is, Scientologists, atheists, etc. An essential part was played in the success of this mission by the assistance of nongovernmental organizations and private individuals, including in particular: Michael Roan of the NGO Tandem Project in Minneapolis; Craig Mousin of DePaul University in Chicago; John Witte Jr. of Emory University in Atlanta; Cole Durham of Brigham Young University in Utah; Sue Nichols, chairman of the NGO Committee on Freedom of Religion or Belief in New York; Jeremy Gunn of the United States Institute for Peace in Washington; Andrea Carmen of the NGO International Indian Treaty Council; Salam AlMarayati of the Muslim Public Affairs Council and the Interreligious Council of Southern California in Los Angeles; the International League for Human Rights; the International Religious Liberty Association; and the American Jewish Committee. To all of these the Special Rapporteur would like to express his thanks. His thanks also go to the Office of the United Nations High Commissioner for Human Rights.

5. The Special Rapporteur is unfortunately obliged to draw attention here to the fact that for the first time since he was appointed and embarked on a series of missions (China, Pakistan, Iran, India, Sudan, Greece, Australia, Germany), he came up against a series of obstacles the aim of which was to get his mission put off; he was also the object of various attempts to interfere and take control of his programme and of the activities of the organizations and persons assisting him. What is unacceptable is that these hindrances were the work of international officials of the United Nations, acting; it seems, either on their own initiative or in defence of State interests or certain lobbies. On the subject of these hindrances, a representative of the Permanent Mission of the United States of America to the United Nations Office at Geneva was at pains to tell the Special Rapporteur orally that the United States Government was not in any way responsible for the obstacles and hindrances. The Special Rapporteur greatly hopes that such attempts to undermine the independence of special rapporteurs will not be left without followup, particularly within the United Nations, and will not be repeated in the future.

6. As a result of his visit, the Special Rapporteur has been able to draw up a report on the legal situation in the field of religion or belief and a report on tolerance and nondiscrimination based on religion or conviction.

• LEGAL SITUATION IN THE FIELD OF RELIGION OR BELIEF

7. The principal legal texts concerning freedom of religion or belief are, on the one hand, article VI of the Constitution - “... no religious test shall ever be required as a qualification to any office or public trust under the United States” - and, on the other hand, the First Amendment to the Constitution - “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ....” The two clauses of the First Amendment - free exercise of religion and “non-establishment” of religion - apply equally to the actions of state and local governments since the Supreme Court has ruled that the Fourteenth Amendment's dictum that no state may deprive any person of liberty without due process of law makes the First Amendment applicable to the states. At the federal level, there is no single law on freedom of religion or belief but a collection of laws (“federal statutes”) dealing directly or indirectly with certain aspects of freedom of religion or belief and certain attacks and violations on the part of the State and private individuals and which provide legal protection essentially by the availability of remedies. The Supreme Court, which is the ultimate arbiter of the way in which the American system balances the conflicting rights of its citizens and the Government, has been a major contributor in the construction of the legal framework relating to freedom of religion and belief.

8. The Supreme Court has not tried to define religion itself or to answer the delicate question of what constitutes a religious belief to be legally protected; it has, however, considered that some beliefs may be “so bizarre, so clearly non-religious in motivation, as not to be entitled to protection under the free exercise clause” (Thomas v. Review Board, Indiana Employment Security Div., 450 US 707, 715 (1981)). In identifying such “non-religious beliefs”, the Court has focused on the credibility and sincerity of an individual's beliefs rather than on the orthodoxy or popularity of a particular faith. The Court has held that a state could not make membership in an organized Church, sect or denomination a prerequisite for claiming a religious exemption to an employment insurance statute requirement that claimants be able to work on all days of the week (Frazee v. Illinois Department of Employment Security, 489 US 829 (1989)). An individual's right to believe in non-traditional religions or to be an atheist or agnostic is protected. It should be added that the Internal Revenue Code does not define the term “religious”. Internal Revenue Service determination concerning the tax-exempt status of religious organizations does not involve judgment of the merits of a claimed religious belief, but rather looks at whether the asserted religious beliefs of the organization are truly and sincerely held, and whether the practices and rituals associated with the organization's religious belief or creed are legal or contrary to clearly defined public policy.

• Constitutional and jurisprudential guarantees

9. These guarantees concern, on the one hand, the free exercise of religion and, on the other, the “non-establishment” of religion.

1. Free exercise of religion

10. There follows a brief account of the way the Supreme Court's jurisprudence on the free exercise of religion and the legal restrictions on it has evolved, because of the light it can shed on the subject.

11. The first cases of jurisprudence concerned the Mormons and the practice of polygamy. In Reynolds v. United States, 98 US 145 (1879), the Supreme Court rejected Mr. Reynolds' claim that polygamy was an exercise of his religion and said that the free exercise clause protected his right to believe, but not his right to act on those beliefs. Other cases include Murphy v. Ramsey, 114 US 15 (1885) (concerning a federal statute barring polygamists from voting or serving on juries); Davis v. Beason, 133 US 333 (1890) (territorial legislation requiring prospective voters to swear that they are not polygamists nor a member of any organization encouraging or practicing polygamy); The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 US 1 (1890) (revocation of the charter of the Mormon Church and confiscation of Church property); Cleveland v. United States, 329 US 14 (1946) (transporting a polygamous wife across state lines violates the Mann Act, which prohibits the transportation of women across state lines for “immoral purposes”). In Wisconsin v. Yoder, 406 US 205 (1972) (exempting Amish children from obligatory school attendance) and Sherbert v. Verner, 374 US 398 (1963) (unemployment compensation may not be denied to a person who refused to make her/himself available for work on Saturday because it was her/his Sabbath), it is suggested that a law which substantially burdens the exercise of religion will be subjected to strict judicial scrutiny and will be upheld only if it is neutral, furthers a compelling State interest, and is the least burdensome means of furthering that interest.

12. In other cases, the Court has upheld certain neutral laws of general applicability without applying strict scrutiny: Jacobson v. Massachusetts, 197 US 11 (1905) (validity of compulsory vaccination laws despite religious prescriptions against medical care); Braunfield v. Brown, 366 US 599 (1961) (no exemption from Sunday closing laws for Orthodox Jewish merchants who observe Saturday as the Sabbath and are therefore required to be closed two days of the week rather than one). In Employment Division v. Smith, 494 US 972 (1990) (state drug laws may be applied to bar the sacramental ingestion of controlled substances such as peyote), the Supreme Court decided that neutral laws of general applicability do not typically offend the free exercise clause merely because in application they incidentally prohibit the exercise of someone's religion. Government no longer has to demonstrate a compelling interest unless a law is specifically targeted at a religious practice or infringes upon an additional constitutional right.

13. The Religious Freedom Restoration Act of 1993 was enacted by the Congress in order to subject all laws to the strict scrutiny that the Smith case for the most part abandoned. The Act provides that the Government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest.

14. In Boerne v. Flores, 117 S Ct 2157 (1997), the Supreme Court declared the Religious Freedom Restoration Act unconstitutional because Congress cannot adopt a standard of protection different from that provided by the Constitution unless there is some proportionality between the injury to be prevented and the means adopted to that end. The Act was also considered as a congressional intrusion into the traditional prerogatives and general authority of the states to regulate the health and welfare of their citizens.

15. During the Special Rapporteur's mission, many representatives of nongovernmental organizations, both religious and secular, particularly in the field of human rights, stress the need for legislation along the lines of the Religious Freedom Restoration Act in order to remedy the decision in the Smith case, regarded as a mistaken interpretation by the Supreme Court which is prejudicial to the freedom of religion and belief, particularly for religious minorities. According to these representatives, the decision in the Smith case means that freedom of religion and belief is and may be affected for the following reasons: (a) In the past, formally neutral, generally applicable laws were used to persecute minorities (in 1925, an Oregon law requiring public education for all children was aimed at closing Catholic private schools; the laws against polygamy led to laws dissolving the Mormon Church and its properties; laws in the years 1930-1950 requiring the Pledge of Allegiance led to violence against Jehovah’s Witnesses). As one of the Special Rapporteur’s interlocutors noted, “These laws were enacted originally for legitimate reasons, but when they were enforced against religious minorities, they fanned the flames of persecution”; (b) Jurisprudence since the Smith case is prejudicial to religious minorities (see Yang v. Sturner (1990): an autopsy performed on a follower of the Hmong religion, which views autopsies as a mutilation of the body which prevents the release of the spirit, was not a violation of free exercise rights because the statute governing autopsies was generally applicable and formally neutral, thus constitutional; Munn v. Algee (1991), etc.);  (c) A secular bureaucracy may be indifferent towards the needs of religious communities, or indeed ignorant of them; (d) Legislators may not be aware of the existence and importance of minority groups in the field of religion or belief, so that they do not make any exemptions for them. They may also be influenced by interest groups campaigning for laws without any exemptions for any group in the field of religion or belief, for various reasons (hostility towards religion or certain religious teachings and principles, purely economic interests, etc.).

16. Certain individuals expressed the view that “the biggest problem is the basic pervasiveness of regulations in all aspects of our lives, and in the widespread expectation that everyone will comply with secular norms. Everyone has to comply with the same regulatory rule as everybody else. What the Church is asking for is not religious liberty at all. What the Church is asking for is special privilege”.

17. Nongovernmental representatives in favour of the decision in the Smith case explained that without that decision, the great variety of religions in the United States would mean that there would be a considerable number of requests for exemptions and the situation would become impracticable.

2. “Non-establishment” of religion

18. The Supreme Court has interpreted the “non-establishment” clause of the First Amendment to prohibit official sponsorship of, support of, or active involvement in religious activity. This clause should promote religious freedom by limiting the influence of federal, state and local governments on religious thought and practice. It recognizes the right of an individual or group to be free from laws and governmental decisions which aid one religion, aid all religions, or prefer one religion over another (Walz v. Tax Commission, 397 US 664 (1970); Everson v. Board of Education, 330 US 1 (1947)). The clause serves to prevent both religious control over Government and political control over religion.

19. In Lemon v. Kutzman, 403 US 602 (1971), the Supreme Court put forth a three-part test for determining whether a law or decision violates the “non-establishment” clause: the statute or decision must have a secular nonreligious purpose, the principal or primary effect must be one that neither advances nor inhibits religion, and the statute or decision must not foster an excessive government entanglement with religion.

20. The interpretation of the “non-establishment” clause is often the subject of debate and has undergone a certain evolution, in particular with respect to the following issues: (a) Direct public aid to parochial schools. This issue involved the opposing responsibilities of Government to allow parents “to ensure the religious and moral education of their children in conformity with their own convictions” while respecting the “non-establishment” clause. It is proposed that Government can authorize the provision of public benefits to parochial and secular schools alike without involving itself in the practices advocated by the parochial schools; (b) The recognition and practice of religion in State schools, notably school prayer. In Engel v. Vitale, 370 US 421 (1962), Wallace v. Jaffree, 472 US 38 (1985) and Lee v. Weisman, 112 S Ct 2649 (1992), the Supreme Court ruled that Government-sponsored prayer in State schools violates the “non-establishment” clause. The clause protects freedom of religion by preventing schools from telling how, when and what to pray and by allowing students to pray so long as they are not disruptive. Certain groups would like either to amend the Constitution or to have an interpretation that would permit devotional, though non-sectarian, prayers in State schools. President Clinton has declared that the First Amendment did not convert schools into “religion-free zones” and urged schools to allow all students to exercise their right to religious expression, including private and voluntary prayer at school; (c) Governmental financial assistance that may accrue to the benefit of religious schools. While in the Everson case and Board of Education v. Allen, 392 US 236 (1968) (government provision of free transportation and loans of textbooks to parochial school students) the Court recognized aid “to the students” but not to schools, in other cases, the Court considered that all assistance to children attending parochial schools relieved the schools themselves of some expenses or took a burden off parents and thereby encouraged them to send their children to parochial schools. Thus the “student benefit” test eventually yielded to the “Lemon test” (see paragraph 19). More lenient standards have been applied whereby the governmental assistance may go to an institution of higher education (in Tilton v. Richardson, 403 US 672 (1971), the Court considered it possible, with respect to an institution of higher learning, for the Government to assist the secular facet of the school without appearing to endorse its religious mission).

21. In view of the sensitivity of the question of freedom of religion and belief, and faced with a jurisprudence that, while very rich, is also contradictory and has very different dimensions in similar cases, several NGO representatives expressed the wish that the Supreme Court would develop a coherent and comprehensive framework for interpreting and applying the two constitutional clauses. Justices O'Connor and Breyer of the Supreme Court told the Special Rapporteur that the American legal system proceeded case by case, without necessarily spelling out major principles, and that the jurisprudence in the abovementioned areas was vague and confused. They added that in a pluralist society containing believers and nonbelievers, the principle of the separation of religion and the State was a wise one; similarly, the aim should be to be as generous as possible in relation to the practice of religion as long as it did no one else any harm. With regard to the Supreme Court's jurisprudence, described as “chaotic”, many nongovernmental representatives stressed the need to remedy a kind of insensitivity towards religious minorities in particular (presumably due, in their view, to a certain secular approach which was indifferent to religion) and towards the principles of freedom of religion or belief as understood in international human rights law (Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, International Covenant on Civil and Political Rights and jurisprudence of the Human Rights Committee). They regretted that international law was often seen to affect America's foreign diplomatic relations, but not its domestic constitutional law. They also recommended bridging the gaps between the Constitution and statutory protection of religious rights, while calling for the adoption in particular of a law along the lines of the Religious Freedom Restoration Act, which could be validated by the Supreme Court, or of a general law protecting freedom of religion or belief.

B. Federal legislation

22. While there is no federal law dealing with freedom of religion or belief stricto sensu, there is a non-homogeneous body of legislation dealing directly or indirectly with certain expressions of these freedoms and certain violations and infringements affecting them, which provides some kind of protection by guaranteeing remedies.

23. Federal statutes make it a crime for: (a) A person acting under color of law to deprive another person of any right protected by the Constitution or laws (United States Code (USC), Title 18, sect. 242);
(b) Two or more persons to conspire to injure or intimidate another person in the free exercise of any such right, or because that person has exercised such a right (ibid. sect. 241); (c) And for any person, under color of law, by force or threat of force, to injure, intimidate or interfere with another person because of that person’s race, color, national origin or religion, because that person is attending a State school, applying for employment, or engaged in other such protected activities (ibid. sect. 245); (d) A person intentionally to deface, damage, or destroy any religious property because of its religious character, or intentionally to obstruct, by force or threat of force, another person’s free exercise of religious beliefs
(ibid. sect. 247).

24. The Civil Rights Act of 1871 provides a remedy for individuals denied their First Amendment rights or discriminated against on the basis of religion (USC, Title 42, sect. 1983). The Civil Rights Act of 1964 prohibits discrimination on the basis of, inter alia, religion. Title VII bars discrimination in employment practices while an exception is made for religious institutions to allow them to employ persons of a particular religious background if their work is related to the employer’s religious activities. Title VII also requires an employer to make “reasonable accommodation” of an employee’s religious practices if it is possible to do so without imposing undue hardship on the conduct of business. The Act also enables the Attorney-General of the United States to sue any state school that discriminates against students on the basis of their religion.

25. Over and above the question of the Religious Freedom Restoration Act discussed earlier, and faced with federal legislation which is fragmentary, nongovernmental representatives called for the adoption of a general law on the freedom of religion or conviction, which might be based in particular on international human rights law. Such a law would provide a greater guarantee of protection for minorities in the field of religion or belief, because it would in particular act as a check on the “might is right” principle. It would also be beneficial for the freedom of religion or belief in general, inter alia for the reasons discussed in the specific case of the Religious Freedom Restoration Act. These persons were also surprised that the United States had no such law when the House of Representatives, on 14 May 1998, and the Senate, on 9 October, had adopted a law establishing such protection abroad. Other nongovernmental representatives considered that the legal framework was adequate, but that there were problems of constitutional interpretation affecting the freedom of religion or belief, as illustrated by the Smith case.

26. The State Department representatives considered that the First Amendment to the Constitution was a sufficient guarantee and preferable to general legislation, which could only be the result of a compromise in the Congress, where, moreover, minorities were by definition in a weak position. They explained that the First Amendment constituted the general and principal legal framework and that, under the Constitution, the Congress could not adopt a law on religion, despite the existence of specific laws, which had however been vetted by the Supreme Court in relation to the relevant constitutional principles. It was also stressed that while the wording of the First Amendment was general and might raise queries within a specific political context, the United States' political system of separation of powers meant there could be no doubt about the matter. Apart from the protective legal framework offered by the Constitution, any violation in the field of religion or belief was punishable under the criminal law. It was therefore considered that any revision of the First Amendment would be pointless, but would on the contrary be liable to weaken it. According to the UnderSecretary of State, while the system of separation of religion and the State under the Constitution was not perfect; it was preferable to have a fight between freedoms rather than a fight over freedom.

C. Other matters

27. Many persons deplored the failure of the United States to ratify the Convention on the Rights of the Child, which includes provisions on freedom of religion or belief. We may note that 191 States have ratified this Convention, but that they do not include Somalia and the United States of America. This situation has been interpreted as a manifestation of isolationism and rejection of other people, and also as an attitude revealing a fear on the part of certain religious communities that if children were granted too many rights, those rights might subsequently be used against the parents.

28. In general, it appears that international human rights law, including treaties ratified by the United States, is seen as belonging solely to foreign affairs and not to domestic affairs and that domestic law de facto takes precedence over international law. As one academic said: “It partly reflects the American sense of superiority on human rights issues. Congress thinks we do just fine on religious liberty issues, and the rest of the world should not be telling us how to get it right.”

II. TOLERANCE AND NONDISCRIMINATION
BASED ON RELIGION OR BELIEF

1. Religions and beliefs: the present picture

29. The Special Rapporteur was unable to obtain official statistics for religions and beliefs because, as the State Department representatives explained, the authorities do not compile such statistics, in accordance with the principle of the separation of religion and the State. He therefore had to turn to various nonofficial sources, such as the World Almanac (1997) (see annex) and Harvard University's Pluralism Project.

30. The study entitled “The Religious Landscape of the United States”, which is to be found in the March 1997 issue of US Society and Values, the electronic review of the United States Information Agency, contains an analysis of the Pluralism Project which yields the following figures: (a) 163 million Americans (63 per cent) identify themselves as affiliated with a specific religious denomination;  (b) Roman Catholicism is the single largest religious denomination with some 60 million adherents; (c) American Protestant Churches have a total of some 94 million members of some 220 individual denominations. The Universal Almanac 1997 groups the denominations into 26 major families with memberships of 100,000 or more, but also notes that there are thousands of self-identified groups of believers; (d) There are more than 300,000 local congregations in the United States; (e) There are more than 530,000 members of the clergy; (f) Some 3.8 million people identify themselves as Jews, with an additional 2 million defining themselves as primarily culturally or ethnically Jewish; (g) There are an estimated 3.5-3.8 million Muslims; Islam is the fastest growing religion in the United States; (h) In terms of personal religious identification, the most rapidly growing group in the United States is atheists/agnostics (currently about 8 million).

31. It is noteworthy that these sources of information make no mention of the traditional beliefs of Native Americans (manifested in particular by their sacred tie to the earth), as distinct from the affiliation of part of this group with the Christian religion. According to Freedom of Religion and Belief: World Report by J. Sheen and K. Boyle (ed.) (June 1997), 47,000 Americans profess to belong to an indigenous American religious faith; approximately 46 per cent of Native Americans are Protestants and 21 per cent are Roman Catholics. Also not included are very small minorities in the domain of religion or belief.

32. It is evident from these figures that the United States of America, which is characterized by an extraordinary religious diversity, offers a mosaic of the world's religions and beliefs. While we find a predominantly European and JudaeoChristian heritage, which is the historical product of immigration, the multiplicity of denominations in the majority Christian religion and of minorities in the field of religions and beliefs can nevertheless lead to the view that all denominations are minorities. M J. Gunn, an expert on religious freedom, puts it like this: “No denomination has ever constituted a majority in the United States as a whole. In this sense all denominations are minorities in the United States.”.

33. Before going on to consider these “minority” communities, the Special Rapporteur considers that the situation of the majority Catholic and Protestant religions (each being treated here as a monolithic entity, and not in terms of the different trends and communities it may comprise, as considered later in the context of minorities) is satisfactory, apart from some exceptions described below for the minorities, but that they may be practiced with less intensity because of their majority position (see for example hate crimes, the Supreme Court decision in the Smith case, the separation between religion and the State, the conflict between the religiously intense and religiously un-intense. See also paragraph 49 below in fine).

B. Situation of minority communities in the field of religion or belief

1. Situation of Muslims

34. Within the Muslim community, which is characterized by its ethnic and cultural diversity, there are two main trends: on the one hand, the Afro-Americans who between the end of the nineteenth century and the middle of the twentieth century gradually established the Black Muslim community, rejecting a past of slavery associated with forced conversion to Christianity and reconstructing an identity around Islam, which they think of as their original religion; secondly, the “oriental” Muslim community originally
established by Lebanese and Syrian immigrants at the end of the nineteenth century and enriched by newcomers from Pakistan, Bangladesh, India and the Middle East from the 1960s onwards. For the last 20 years or so, Islam has been going from strength to strength in the United States, mainly as a result of immigration.

35. Most of the Muslim representatives stressed that their community's situation in the religious sphere was satisfactory compared with that of Muslim minorities in other countries, and even with the position of Muslims living in countries where Islam was the majority religion. They emphasized in particular the freedom that prevailed in general with regard to religious activities, including the practice of worship and religious traditions, the management of religious institutions' affairs and the construction of buildings for religious communities. According to the information received, Muslims have 1,250 mosques and Islamic centres, half of which have been built since 1984. There are also about 100 weekday schools, 1,000 weekend schools and about 1,200 community organizations. Interdenominational dialogue is also encouraged and developed. Recently, with a view to remedying problems of communication between religious leaders from abroad and young Muslims who are Americanized, the International Institute of Islamic Thought has introduced a programme of instruction in religious doctrine leading to an MA in Imamate Studies; the Institute is also preparing an MA in Islamic Studies.

36. However, despite a general and comparative situation that is positive, the situation of Muslims within the national religious mosaic is problematic. The Muslim representatives said that they felt that there was both latently and openly a form of islamophobia and racial and religious intolerance in American society. It emerges very clearly that an essential factor in that situation is the particularly harmful role played by the media in general and the popular press in particular, which purvey a stereotyped and distorted message of hatred, treating Muslims as equivalent to extremists and terrorists, as can be seen from the media treatment of the episode when United States diplomats were taken hostage during the Iranian revolution, the explosion at the World Trade Center in New York, the Gulf War, and even the Oklahoma City bombing, which was immediately attributed to Muslims, etc. The media also concentrate their reporting almost exclusively on the often controversial group known as the “Nation of Islam” (see also paragraph 39 below).

37. Such behavior by the media is very disturbing: these powerful means of communication have a decisive effect on the formation of American public opinion, and hence American society; some of those spoken to did not hesitate to assert that United States policy was decided, among other things, by the position in the media. The result is that most Americans are not only kept in a state of basic ignorance about Islam and Muslims, but are also insidiously and involuntarily conditioned by the media through negative representations of this community. It is therefore not surprising to find the following manifestations direct or indirect, intentional or unintentional of intolerance and discrimination, both racial and religious: (a) Acts of vandalism against mosques and Muslims' private property, verbal and physical attacks, discrimination in the field of employment, particularly as regards respect for religious practices, and above all against women wearing “Islamic” dress (the hijab), isolated acts of intolerance by public employees, such as the teacher in South Carolina who called on people to “kill Muslims”. The 1996/97 report on hate crimes and discrimination against Arab Americans prepared by the American-Arab Anti-Discrimination Committee (ADC) includes 22 instances of hate crime, 55 cases of discrimination in the workplace and 22 cases of discrimination by local or federal government agencies; these cases are merely a sample of the types of discrimination complaints received by the ADC and do not reflect the actualnumber of complaints received; (b) A security system used by American airline companies uses a “terrorist  profile” that is seen to be discriminatory and humiliating to Arabs and Muslims (the above-mentioned ADC report includes 30 cases of harassment at airports selected from among hundreds of complaints); (c) The Anti-Terrorism and Effective Death Penalty Act of 1996 allows the deportation of non-citizens on the grounds of suspicion of links to organizations abroad which the United States designates as “terrorist”, and the Illegal Immigration Reform and Immigrant Responsibility Act provides for punishments for minor violations of visa status and makes it more difficult to secure political asylum. Both Acts allow the use of secret evidence in administrative and judicial proceedings without any opportunity for defence lawyers to refute the evidence. It is believed that Arabs and Muslims, often
associated with terrorists, would be most likely to be affected by this legislation.

38. These manifestations are not, of course, due to any anti-Muslim policy on the part of the United States authorities and are not the general rule for Muslims. They are in fact manifestations which are marginal in society, on the part of citizens, but also of officials acting on their own initiative and of private corporations but which nevertheless really affect a part of the Muslim population. The intensity of these manifestations varies in the light of international events such as those mentioned above. We may also note the importance of the ignorance factor, which results in any Arab being identified with the Muslim religion and hence with terrorism. The effect of this factor is certainly exacerbated by the influence of the media and certain groups hostile to Islam.

39. The Special Rapporteur would like to refer here to the particular role played by the Afro-American organization “Nation of Islam”. During the mission, this organization was described by both Muslim and Jewish representatives as an extremist group in the American Muslim community and as a source of intolerance purveying messages of hatred for whites, Catholics, Jews, Arabs, women, homosexuals, etc. They consider that this group causes difficulties for the integration of Muslims into American society and for Islam and its representation in the eyes of American public opinion. The representatives of the Nation of Islam, for their part, declared that their aim was to put an end to the American oppression of Muslims that has existed since the days of slavery and kept them in a state of destitution. They stressed their positive role with regard to education and advancement within the Afro-American population and referred to the Million Man March on Washington in 1995. They rejected the accusations made against their organization and its leader, Louis Farrakhan, in particular by the media with a negative attitude to Islam. Their organization was not anti-Semitic, since Judaism was a revealed religion in Islam, but it had political differences with certain Jewish organizations on the subject of Israel and the Palestinians. They added that they suffered oppression from certain Jewish organizations and the media, although the Nation of Islam was training up the best American citizens and was not violent. Finally, they urged the need for a dialogue with the Jewish community.

40. The Special Rapporteur wishes in conclusion to refer to the positive action taken on behalf of the Muslim community by some authorities and non-State entities. At the official level, several initiatives directly or indirectly in favour of Muslims deserve to be reported. President Clinton's greetings on the occasion of Ramadan and Mrs. Clinton's invitation of Muslims to the White House for an Iftar dinner (celebrating the end of Ramadan) are gestures of recognition for and communion with the Muslim community and send messages to American society. The White House conference on hate crimes in November 1997, which was attended by the Secretary for Education and the Attorney General among others and by representatives of nongovernmental human rights organizations and of the religions, was an opportunity to develop strategies for preventing intolerance and discrimination based on religion (we may mention among other things the publication entitled “Preventing Youth Hate Crime: A Manual for Schools and Communities”). In the field of prevention, the role and activities of the Commission on Human Relations and Hate Crimes, such as programmes for increasing the awareness of children, parents and teachers, are essential. Finally, in society, the Special Rapporteur was very conscious of the role of the interdenominational dialogue and its impact, such as the interdenominational prayers during the Gulf war. He also wishes to stress the exemplary performance of the Interreligious Council of Southern California, which, through its various intercommunity and interdenominational activities and its many initiatives in society and with the different parties involved public, political and media is trying to promote mutual understanding and dialogue and to prevent intolerance and discrimination.

2. Situation of Jews

41. The Jewish community is characterized by its diversity. It includes, on the one hand, people who identity with it on a religious or cultural or ethnic basis and, on the other, the three main branches of Judaism in the United States orthodox, conservative and “reform”. Although it only accounts for 3 per cent of the population of the United States (having been present throughout the country's history, but with substantial European immigration at the end of the nineteenth and beginning of the twentieth century), in terms of numbers it represents the greatest Jewish presence in the world, and is even larger than the Jewish community in Israel. This is a religion and a community which have made an essential contribution to the different spheres of American life.

42. Representatives of the Jewish community have stated that they have benefited from a privileged - indeed unique - situation in the United States, due in particular to a degree of religious liberty which is without equal in the world. They attributed this situation to the constitutional protections (“non-establishment” and free-exercise clauses) which were also responsible for the “thriving religious life within the Jewish community”. It should be noted that while there is strong support and appreciation for the constitutional provisions, there is a diversity of opinion within the Jewish community as to what the “non-establishment” clause requires. It was also pointed out that American Jews suffered from prejudice, discrimination and intolerance until the 1950s but since then the protection of Jews has improved significantly.

43. Exceptions, however, exist. It was noted that in the Attorney-General’s January 1998 report on hate crimes statistics in the United States, of 8,734 crimes classified as “hate crimes” reported to the Federal Bureau of Investigation, 1,400 were “religion-motivated”. Of those more than 1,100, nearly 80 per cent, were anti-Jewish. It was pointed out that while these incidents demonstrate that there are some individuals who continue to manifest intolerance against Jews (most often manifested in crimes against their property, cemeteries, etc.), the statistics also reveal the heightened awareness of these incidents by citizens and law enforcement agencies and the extent to which the Federal Government, by requiring local and state agencies to report such crimes, has exercised leadership in helping to eliminate such acts. Jewish representatives also suggested that the methods developed by Jewish organizations to monitor and report such incidents to local and state authorities serve as a model for other groups and communities facing discrimination, both in the United States and abroad.

44. They also drew attention to the Smith case and said that since the 1990 ruling, the Government in most cases is no longer required to demonstrate a compelling reason for restricting religious exercise. This has led to efforts to adopt the Religious Freedom Restoration Act, which the Supreme Court declared unconstitutional and which is being revised and reviewed by a very broad coalition of religious and faith communities. A related initiative, the Religious Freedom in the Workplace Bill, proposed in the Congress, would address the obligations of individual employers to accommodate religious practice in the workplace more adequately. One Jewish representative noted that the Clinton Administration had announced guidelines to protect religious freedom in the federal workplace and that it supported passage of the Religious Freedom in the Workplace Bill to ensure the same protection in the private sector. It was noted that the focus of the Bill is not on religious discrimination, but rather on the question of how to provide more accommodation to religious obligations of employees in the private sector, including, for example, observance of the Sabbath and other holy days, the right to wear required religious garb, etc. At issue has been the fact that the courts have interpreted narrowly the provision that employers must reasonably accommodate their employees as long as that accommodation does not present undue hardship. A representative of the Justice Department confirmed to the Special Rapporteur that this was the legal situation, while representatives of the Commission on Equal Opportunity in Employment said that a large number of complaints in this area came from the Jewish community, which was more aware of its rights.

45. In addition to this situation, considered very satisfactory by the Jewish community, Jewish representatives stressed very strongly the primary role of the constitutional provisions as well as the numerous remedies available under existing local, state and federal laws. They also noted that the Jewish community had played a pioneering role in American society in initiating interreligious dialogue such as the Catholic/Jewish Educational Enrichment Programme which sends rabbis into 30 Catholic high schools to teach about Judaism, anti-Semitism and the Holocaust, and which sends a Catholic professor to teach about Catholicism and the Catholic community in Jewish day schools. Similarly, there are interfaith dialogues and ongoing programmes with, inter alia, Protestant denominations, as well as an ongoing Jewish-Muslim dialogue on national and local levels. The Special Rapporteur was, however, informed by a representative of the Jewish community in Chicago that dialogue with the Nation of Islam was refused so as not to give legitimacy to “religious fanatics”. The Special Rapporteur was also informed about a request - which was refused - by ultra-Orthodox Jews at Yale University to have separate toilets.

3. Other communities in the field of religion or belief

46. In general, it appears that the situation of minority communities in the field of religion and belief is satisfactory. Asian religions, such as Buddhism and Hinduism, are integrated into American society and are even gaining ground among the non-Asian population. “Marginal” religions such as the Jehovah's Witnesses, the Mormons, the Seventh Day Adventists and the Assemblies of God, are also accepted in the society, no doubt because some minorities which in the past suffered from intolerance and discrimination have with time become figures in the landscape of religion and belief which the public have got used to and familiar with. As far as Scientology, on the one hand, and atheism, on the other, is concerned, the situation also appears to be satisfactory.

47. If the situation as a whole is thus good, there are still difficulties in some places and at some levels, difficulties which can be interpreted in different ways. The Special Rapporteur proposes to examine them below, but making a distinction between the group of minority communities and marginal religions, on the one hand, and Scientology and atheism, on the other.

48. The difficulties most often mentioned concern discrimination at the workplace (such as dismissals, non-respect for religious practices especially in the case of SeventhDay Adventists and problems connected with so called “religious” dress especially in the case of Sikhs). They also concern places of worship, particularly as regards obtaining permits for building, renovation and use for different purposes (particularly in the case of Buddhists, Hindus, Jehovah's Witnesses, Hare Krishna, Mormons outside Utah, etc.), and even isolated attacks on religious buildings.

49. As far as permits for places of worship are concerned, one of the main factors emphasized by the representatives of these communities is the Supreme Court's decision in the Smith case, which affects above all communities in a minority position. For example, it seems that because of zoning regulations, the authorities have discretion in taking decisions, and it would be difficult to identify religious or nonreligious reasons as the grounds for any particular refusal. This situation is said to be prejudicial for the communities, the Smith case having established that for neutral laws of general applicability, the authorities are no longer obliged to demonstrate a compelling interest unless the law is specifically targeted at a religious practice. This situation was confirmed by the justices of the Supreme Court consulted by the Special Rapporteur. According to Douglas Laycock, a professor at the University of Texas Law School, who based his view on a 1993 survey which concluded, first, that 43 per cent of Americans said they had a very negative or negative opinion of “fundamentalists” (a term which was not defined) and, secondly, that 80 per cent of them had negative opinions about sects or minority cults, there is a sort of lowlevel hostility and insensitivity in society (manifesting itself in particular in the difficulties regarding employment and places of worship mentioned above), also on the part of officials in their capacity as simple citizens with regard to certain minorities who might be regarded as fundamentalists, sects or minority cults. Because of the highly decentralized nature of the United States federal system, isolated pockets of intolerance can be found among officials acting on their own initiative. But in general, according to Douglas Laycock, it is found that there are hundreds of different isolated conflicts between secular norms, governmental regulations and religious views and practices that from the dominant secular standpoint seem idiosyncratic. These difficulties can be interpreted as being the result of a sort of secularism which has pervaded the legislation and which is characteristic of elite who are for the most part nonbelievers and indifferent to religious matters or who consider that the communities' demands are for privileges rather than for rights. Still according to Laycock, in the United States “the conflict is between the religiously intense and the religiously un-intense”. We may note, moreover, that for most minorities, to remedy this situation, and in particular to resolve specific problems such as refusals relating to places of worship, would take a great deal of time and money.

50. Concerning Scientology, its representatives declared that their organization had been recognized as a religion in the United States since 1993 and that it had 42 churches with 3 million members. As regards the information collected by the Special Rapporteur during his visit on the existence of forced labor camps the “Rehabilitation programme” and Scientology's harassment of its former members and its critics, even including killings, the representatives of the organization firmly rejected those accusations and sent the Special Rapporteur a detailed dossier in which they explained that: (a) the Rehabilitation Programme was a voluntary religious retreat emphasizing intensive contemplation and concentrated religious studies, balanced by a certain form of physical labor, and that it was not “brainwashing”; (b) Scientology's ethical code prohibited illegal activities, and hence the organization's detractors were not the object of harassment, but of legal proceedings; (c) the deaths of certain Scientologists in Florida were
accidental.

51. As far as atheism is concerned, it is a movement which, for the time being, is developing and organizing among the population on a modest scale, generally because of its non-acceptance by the society, in which religion remains a very strong point of reference in social, cultural and identity terms. However, some organizations, such as the Free Thought Society of Greater Philadelphia and the Antidiscrimination Support Network play an active role aimed in particular at securing genuine recognition for atheism and respect for the rights such recognition would entail. Apart from contesting State supported religious symbols, which to a degree are imposed on everyone, such as the mottos “In God We Trust” on United States currency and “One Nation Under God” in the Declaration of Allegiance to the national flag, and various oaths which include a reference to God, these organizations complain about discriminatory situations and bring court proceedings with regard to them, in particular the obligation to sign an oath to God in order to join the Boy Scouts of America.

1. Situation of Native Americans

52. The situation of the Native Americans was discussed in depth with officials, including the Assistant Secretary of the Interior for Indian Affairs, representatives of the Native Americans and nongovernmental organizations and various personalities.

53. The Native Americans are without any doubt the community facing the most problematical situation, one inherited from a past of denial of their religious identity, in particular through a policy of assimilation, which most Native Americans insist on calling genocide (physical liquidation, religious conversion, attempts to destroy their traditional way of life, laying waste of land, etc.).

54. It was explained to the Special Rapporteur that it must be clearly understood that the continuation and preservation of traditional Native American religion is ensured only through the performance of ceremonies and rites by tribal members. These ceremonies and rites are often performed at specific sites which are often established by creation myths and other events of importance in the native community. These sites may also be based on special geographic features such as burial sites, areas where sacred plants or other natural materials are available, and structures, carvings or paintings of religious significance. For most Native American religions, there may be no alternative places of worship since these ceremonies must be performed at certain places and times to be effective.

55. Concerning the situation of Native Americans in the religious domain, regulations restricting traditional ceremonies, including dances, lasted until 1934 when the Indian Reorganization Act was adopted. In 1978 Congress adopted the American Indian Religious Freedom Act (AIRFA) which stipulates, in particular, that: “It shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express and exercise the traditional religions ... including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites”. In 1990 came the Native American Graves Protection and Repatriation Act to ensure that Native American remains and sacred objects retained by federal, state and local governments, as well as universities and museums, are returned to the appropriate tribes and/or descendants and that burial sites on tribal and federal lands are properly protected. Finally, in 1996, President Clinton issued the Executive Order on Indian Sacred Sites calling for the protection of sites considered sacred by tribes and directing federal agencies to provide Native American traditional practitioners access to those sites.

56. With respect to the jurisprudence of the Supreme Court, in Lying v. Northwest Indian Cemetery Protective Association (1988) the Court declared that AIRFA was only a “policy statement”. Although the Court recognized that the Government did not have a “compelling interest” in constructing a road on sacred land, as there existed alternatives, and although the project implied the annihilation of religious practices, the First Amendment did not provide the relief sought. Consequently, there are no enforceable safeguards for worship at sacred sites. The Smith case and the failure of the Religious Freedom Restoration Act (see chapter I, section A) also directly affected the religious practices of Native Americans.

57. On the basis of that brief legal background, the representatives of Native Americans and nongovernmental organizations explained that the legislation concerned with the recognition and protection of Native American religious practices suffered from many weaknesses and gaps, which limited or even prevented its application.

58. Concerning the Executive Order in particular, it was stated that while it was very positive for tribes, the Order had no “action clause”, leaving tribes without the needed legal “teeth”, and that a stronger commitment to effective tribal consultation and higher standards for the protection of sacred sites were needed.

59. Concerning the Native American Graves Protection and Repatriation Act, representatives of Native American and non-governmental organizations expressed concern that the Act was too limited and failed to resolve, inter alia, the repatriation conflict between the scientific community and tribal governments. Concerns were also expressed on the following issues: (a) On 24 October 1997, the Advisory Council on Historic Preservation approved regulations that place tribes in a secondary role, in regard to section 106 of the National Historic Preservation Act (16 USC 470), when a tribal sacred site is located off tribal lands; (b) On 7 January 1997, a bill (HR 193) was introduced to prohibit sites of traditional significance from being listed in the National Register of Historic Places. This bill would have a significant impact on Native American historic and sacred sites and would result in increased damage to these sites, further infringing on the capacity of Native Americans to practice their religion within the bounds of existing law; (c) In April 1994, President Clinton issued an Executive Memorandum on Native American Access to Eagle Feathers, directing the Department of the Interior to take the necessary actions to ensure priority distribution of eagles, a protected species, to Native Americans for traditional religious purposes. The memorandum simplifies the eagle permit application, minimizes delays, involves tribes in the distribution process, reviews methods for storage, etc. While the Federal Government has increased its efforts to improve its eagle distribution process, many concerns remain, in particular conflicts between religious needs and federal directives and laws such as the Endangered Species Act and the Eagle Protection Act; the waiting period involved in the acquisition of an eagle through the federal repository; and the condition of the eagle once it is received by the religious practitioner; (d) There is a pressing need for federal protection of the religious rights of Native Americans incarcerated in federal, state and local penal and
other institutions.

60. In general, the charge is often made that legislation derived from a western legal system is incapable of comprehending Native American values and traditions. Native Americans are being asked to “prove their religion”, and in particular the religious significance of sites, most of which are situated on land belonging to the federal, state or local Governments and some on private land; but the need to provide “proof” conflicts with certain values, because the sacred site has to remain secret; furthermore, to reveal its location would allow the authorities to interfere in matters of religion. Similarly, the definition of property is based on the western concept of individual rights, whereas for Native Americans property is collective. The jurisprudence of the Supreme Court is also seen as showing a lack of understanding of Native American values. According to the Native American representatives, there is thus a double standard: because the Native Americans' system of values is not recognized, their religious practices are less well protected than those of other religions. These legal shortcomings and weaknesses associated with the Supreme Court's jurisprudence make it easier to neutralize the legislation on religious matters analyzed above. Furthermore, the adoption of neutral laws of general applicability enables economic projects to be undertaken on sacred sites, which is tantamount to profaning them or destroying them. It was underlined that conflicts concerning the use and protection of sacred sites between traditional Native American religious practitioners, developers and land managers were likely to continue to affect Native Americans unless clear guidelines for protection were established and enforced. Similarly, legislation to protect animals or prohibit the use of certain plants may affect Native American religious practices, such as those requiring the use of eagles' feathers or the consumption of the peyote cactus. Finally, the Special Rapporteur was informed that court decisions in Native Americans' favour on the ownership of sacred sites had not led to their restitution, but to financial compensation, which, for example, the Sioux nation was refusing in the case of the Black Hills of South Dakota, which it was deprived of illegally according to a Supreme Court decision in 1980.

61. Apart from these problems of a legal nature, the representatives of the Native Americans and nongovernmental organizations reported very many cases of what they called intolerance and discrimination in the field of religion, which, in fact, resulted from these legal problems.

62. A first series of complaints relates to sacred sites and sacred natural objects used in rituals (plants, rice, etc.). They involve first of all damage to sites due to the execution or attempted execution of economic projects (for example, mining projects affecting the sacred sites in the Little Rocky Mountains of the Gros Ventre and Assiniboine tribes on the Native American reserve of Fort Belknap in the Northern Montanales (Montana) and the sites near Lake Rice in the Sokaogon Chippewa reserve in northern Wisconsin; a plan to build a road in a national park affecting a sacred site of the Pueblo Indians near Albuquerque (New Mexico); a uranium mining project affecting the sacred site of the Havasupai tribe in the Grand Canyon (Arizona); economic development projects at the Mount Shasta sacred site of the Shasta, Pit River, Wintu, Karuk, Okwanuchu and Modoc tribes and at the Medicine Lake Caldera sacred site of the Pit River, Shasta and Klamath/Modoc tribes in California; a nuclear project on the Ward Valley sacred site of the Fort Mojave tribe in California). Then there is the problem of access to religious places and sacred features situated on private property (for example, a request for compulsory authorization for Native Americans to practice their religion on the Mount Graham sacred site situated near the University of Arizona's telescopes), on Native Americans' own property (case mentioned above of the Sioux nation having been unable to recover their property in the Black Hills and being denied the exclusive use of their sacred site for religious ceremonies), or situated on the frontier with Mexico (for example, case of the Yaki nation and the Tohono O'odham). In general, these complaints reflect both a real lack of understanding and consideration and an indifference and even hostility on the part of the various officials and other parties involved (in the economy, research, etc.) with regard to the values and beliefs of the original inhabitants of the United States.

63. The Special Rapporteur wishes to draw attention here to two situations which have already been the subject of a communication addressed to the United States authorities, in June 1997. First of all, there is the case of Mount Graham, where telescopes are being constructed by the University of Arizona on the sacred site of the Apache nation with the authorization of the federal water and forest service. The other case concerns the complex and sensitive situation resulting from the Relocation Act (25 USC) following a land dispute between two Native American tribes, the Navajos and the Hopis; in connection with the resettlement of families from these two tribes in the Black Mesa region of Arizona, the Navajos consider that their right of access to their sacred sites in the area allocated to the Hopis is not respected; the Hopis for their part consider that their religion and its practices should also be respected (for further details, see the report entitled “HopiNavajo relocations”, prepared by Erica Irene A. Daes and John Carey E/
CN.4/Sub.2/1989/35, parts I and II).

64. A second series of complaints relates to ceremonial instruments and objects (eagles' feathers, tobacco, cactus, peyote, etc.). Persons having them in their possession sometimes run into serious difficulties, including confiscation, especially at frontiers, arrest and prosecution, for the reasons given in the section on legal issues (see in particular the Smith case). A third series of complaints concerns the restitution and non-profanation of human remains, particularly on the part of the scientific community, a problem mentioned in that same section.

65. A fourth category of complaint concerns Native American prisoners (some 7,000) in the United States prison system, both State and federal. Sweat lodges (for cleansing and purification ceremonies), long hair worn in a traditional fashion, headbands, medicine bags, possession of sage, cedar and tobacco and other practices have been banned as “security risks” by one prison or another. Concerning the question of cutting the hair of Native American prisoners, many individuals asserted that this act was tantamount to castration. According to the information received, enforcement of and compliance with laws and regulations have not been uniform and lawsuits filed to enforce existing laws have resulted in contradictory decisions. The freedom of religion of Native American prisoners has depended upon the whim of individual prison officials. Lawsuits are pending and complaints have been filed against the Departments of Correction of Texas, California, New York, Wisconsin, Minnesota, Nevada, Missouri, Washington, Oregon, Pennsylvania and Arizona.

66. Finally, a fifth category of complaints concerns children asked in certain schools to cut their hair. Children placed in non-native American adoptive families and institutions are also a problem, because their links with traditional Native American religion are broken.

67. During official consultations, State department representatives said that there were many problems relating to Native Americans. However, while recognizing the existence of very serious abuses in the past, they emphasized that recent years had been marked by progress towards greater protection and autonomy for indigenous peoples. They also explained that the process was a long term one.

68. Officials from the Departments of Justice and the Interior described past United States policy as destructive towards Native Americans and biased in favour of the country's economic interests. According to them, President Clinton's policy, on the contrary, took account of Native Americans' interests. They stressed nonetheless the difficulties caused by the conflict between economic values involving vast financial interests and the importance of the concept of private property, on the one hand, and Native Americans' traditional values, on the other. It will be noted that the Native Americans are a small religious minority in a democracy shaped by the will of the majority (we may cite, for example, the case of 500 persons claiming protection for their sacred site in the face of a project for the construction of ski runs which is of interest to 200,000 American citizens). The question of the proper response is made still more complex by the fact that intervention by the authorities on behalf of the Native Americans is not to lead to the establishment of an official religion. It was however stated that within those limits there was still room for improvement. Concerning the prisoners, the Special Rapporteur was informed that in general the federal Government was making every effort to meet, as far as possible, the religious
needs of Native Americans in federal prisons. With regard to respect for holy days, they were recognized by the federal Department of the Interior, but unfortunately not by all official bodies.

69. The Office of the Legal Counsel of the Department of Justice stated that while the legislation adopted for the benefit of Native Americans was in general positive, there were problems at the level of courts and public services, which, in many cases, did not abide by it. As regards the sacred sites, the Office pointed out that a process was being worked out for taking due account of these places, which, for the most part, were unfortunately not situated on Native American property. In some cases, however, it had not been possible to arrive at a compromise.

1. CONCLUSIONS AND RECOMMENDATIONS

70. The Special Rapporteur has endeavored to give an account of the legal situation in the United States of America in the field of religion or belief and at the same time to analyze the situation with regard to tolerance and nondiscrimination based on religion or belief. His study has dealt with the present picture with regard to religion and belief, and in particular with the “minority” communities in the field of religion and belief. He has made a special effort to analyze both the religious and the nonreligious spheres and the relationship between religions, between beliefs and between society and the State.

71. Concerning the legal situation in the field of religion or belief, the existence of a well developed Constitution and legislation has to be recognized. The two constitutional clauses relating to “non-establishment” and free exercise constitute fundamental guarantees for the protection of religion and belief, particularly within the context of the mosaic of religions and beliefs that is typical of the United States. It is evident, however, that the interpretation of these two clauses by the Supreme Court creates problems, because they are sometimes seen by some people as prejudicing the freedom of religion and belief, more particularly of religious minorities. Firstly, concerning the clause on free exercise, many religious and nongovernmental representatives contest the “new” jurisprudence that emerged from the Smith case, establishing that neutral laws of general applicability do not typically offend the free exercise clause merely because in application they incidentally prohibit someone's exercise of religion, and therefore the Government no longer has to demonstrate a compelling interest unless a law is specifically targeted at a religious practice or infringes upon an additional constitutional right. The religious communities feel that they are thus vulnerable in the face of legislation and political and administrative institutions governed by a conception of the separation of religion and the State which requires that everyone must comply with the same rules and regulations, and which hence regards any request from religions that their specific nature should be respected in their rights and freedoms as a request for privileges. Secondly, concerning the clause on “non-establishment” of religion, the Supreme Court's interpretation, particularly with regard to public aid for religion, recognition of religion in State schools and financial aid given by the Government to religious schools, unfortunately appears from a general viewpoint to be vague and confused, as was stated, incidentally, by members of the Supreme Court. According to John Witte, professor at Emory University in Atlanta, the development of a coherent and comprehensive framework for interpreting and applying the two constitutional religion clauses would be most useful. That unified approach could come in a variety of forms through grand synthetic cases or through comprehensive statutes, restatements, codes, or even constitutional amendments (“The Essential Rights and Liberties of Religion in the American Constitutional Experiment”, Notre Dame Law Review, vol. 71, No. 3, 1996). The Special Rapporteur wholly endorses the approach of taking into account the traditions of other peoples as reflected in the main United Nations human rights instruments, namely, the International Covenant on Civil and Political Rights (article 18 and General Comment No. 22 of the Human Rights Committee; see paragraph 78 below) and the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. For example, the prioritizing of liberty of conscience, free exercise and equality principles might well serve as a prototype for the integration of the values enshrined in the free exercise and “non-establishment” clauses. This second approach would be a way of correcting the attitude of the United States of America that human rights are to be treated as belonging to international affairs and not as a domestic matter. We may point out here that this attitude was also noted by Mr. Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or arbitrary executions, in his report on his mission to the United States of America (E/CN.4/1998/68/Add.3).

72. There certainly is federal legislation providing protection in the sphere of religion and belief, but it is fragmentary, only dealing with certain aspects of the freedom of religion and belief and certain infringements of that freedom. As regards, in particular, Title VII of the 1964 Civil Rights Act, concerning religious practice at the workplace and the employer's obligation to make “reasonable accommodation”, it seems that it has limited effect and that there is a problem of generally restrictive interpretations by the courts in the matter of religion. The Special Rapporteur considers that this legislation needs to be strengthened and hopes that the Religious Freedom in the Workplace Bill and the guidelines for the protection of freedom of religion in federal institutions announced by the Clinton Administration will contribute to that end. In general, the Special Rapporteur considers that in the absence of a consistent and detailed framework within which the two constitutional clauses on “non-establishment” and free exercise of religion could be interpreted and applied, a general law on freedom of religion and belief based on the relevant international human rights instruments and conforming with those two clauses would provide appropriate and necessary legal protection for the freedom of religion and belief in general, but above all for communities in the field of religion or belief. Such a law could also be able to incorporate the advantages of the two constitutional clauses while encouraging State religion
relations based on an appropriate dynamic equilibrium and avoiding extreme situations of “anti-religious clericalism” and “religious clericalism”.

73. Finally, ratification of the Convention on the Rights of the Child by the United States is strongly encouraged: it would be a logical consequence of the human rights policy proclaimed by that country at the international level. It will be remembered, however, that as happened in the case of Mr. Bacre Waly Ndiaye's mission, the federal authorities who are supposed to represent the states of the Union at the international level did not take it upon themselves to organize meetings between the Special Rapporteur and the state authorities. Furthermore, most of the official and nonofficial representatives that the Special Rapporteur met in the states did not seem to know the international human rights instruments. Similarly, statements by certain public figures irritated by United Nations special rapporteurs' visits to the United States are surprising to say the least, in that they would seem to imply that the world's leading Power fears United Nations “domination”, on the one hand, and on the other, wishes to set itself up as entitled to give
other countries lessons while rejecting criticisms of its domestic situation, which is seen in a positive light without any limitations or reservations. It would therefore be desirable that these individual positions should remain incidental phenomena not affecting the move towards a more open policy both at home and abroad which is evident in the United States and that the country's commitment in the field of human rights should take on a practical aspect rather than remaining simply a matter of form both internationally and nationally.

74. As far as tolerance and nondiscrimination based on religion or belief are concerned, the Special Rapporteur notes that the United States, a vast mosaic of religions and beliefs (as can be seen in some Washington avenues consisting of an extraordinary succession of places of worship of all denominations), not only extends a welcome to different faiths, but itself begets them, as a country which is free and open to all religions and beliefs. The representation of the United States through the symbol of the mosaic is in fact relevant, because although there is a dominant European and Judeo-Christian element, the great variety of denominations in the majority Christian religion and of minorities in the field of religion and belief leads one to see all denominations as minorities. At the end of his study, the Special Rapporteur considers that the actual situation in the United States in the field of tolerance and nondiscrimination is in general satisfactory. There are nevertheless some evident exceptions that must be pointed out, particularly as regards the situation of Native Americans. 

75. The Jews are satisfied with their lot as a whole and do not hesitate to describe their situation as privileged, and indeed unique, in particular because of a degree of religious liberty which the representatives of the Jewish community consider to be without equal elsewhere in the world. Faced with problematical situations, which are described as exceptions, involving hate crimes, the Supreme Court's decision in the Smith case and religion at the workplace, the community is displaying real vigor both through the dialogue between religions and through militancy in making claims and seeking to promote greater awareness in the field of religion.

76. The situation of Muslims is distinctly less favorable, although taken all in all it is not negative. The Muslim community can certainly flourish freely in the religious sphere, but it has to be recognized that there is an islamophobia reflecting both racial and religious intolerance. This is not the fault of the authorities, but of very harmful activity by the media in general and the popular press in particular, which consists in putting out a distorted and indeed hate filled message treating Muslims as extremists and terrorists. American public opinion and hence society is thus informed and formed by negative representations of the Muslims. The Special Rapporteur raises the question of the responsibility of the media for manifestations direct or indirect, intentional or not of racial and religious intolerance and discrimination in society, on the part of citizens,  but also of officials acting on their own initiative and of private corporations, manifestations which may be marginal, but nevertheless do really affect Muslims. It is up to the public authorities to help combat the iniquitous representation of Muslims. Here the Special Rapporteur would like to acknowledge the initiatives taken by President Clinton and his Government directly or indirectly for the benefit of Muslims and aimed at the development of strategies for preventing intolerance and discrimination based on religion. Efforts to combat the ignorance and intolerance purveyed by the media, above all through preventive measures in the field of education, should be given priority. The interdenominational dialogue practiced in certain States, particularly California, as was evident at the time of the Gulf war, can also serve as an example to the international community. The activities of the Interreligious Council of Southern California deserve to be better known and should be taken as a model. Other communities in the field of religion or belief

77. The situation of Asian religions (Buddhism, Hinduism, etc.) and “marginal” religions (Jehovah's Witnesses, Mormons outside Utah, SeventhDay Adventists, Assembly of God, etc.) is generally satisfactory. There are of course exceptions, such as cases of discrimination at the workplace, and obstacles relating to places of worship and attacks on them. These obstacles and acts of discrimination are sometimes the consequences of the Smith case and a form of secularism, as explained in the section on the constitutional clauses. They can also be interpreted in a general way as manifestations of a conflict between intense religion and un-intense religion. In accordance with this interpretation, it appears finally that in general the position of minority communities in the sphere of religion or belief corresponds to that of the majority Christian communities, with the proviso that any difficulties encountered by the latter are less acute precisely because of their majority status.

78. On the subject of atheism, the Special Rapporteur notes that in its general comment No. 22 of 20 July 1993 on article 18 of the International Covenant on Civil and Political Rights, the Human Rights Committee pointed out that “the freedom to 'have or to adopt' a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another or to adopt atheistic views” (HRI/GEN/1/Rev.3, p. 37, para. 5). Native Americans

79. A situation which raises a problem is that of the Native Americans: they have in the past been exposed to a policy of assimilation which many of them describe, with surprising insistence, as genocide and which continues to have effects even today. In recent years a policy in favour of these indigenous peoples has been set in motion, particularly under the presidency   of Mr. Clinton, but it needs to be strengthened in the religious sphere.

80. As far as legislation is concerned, while noting advances in recent years in the instruments emerging from the legislature and the executive which are designed to protect Native Americans' religion in general (American Indian Religious Freedom Act) and in particular (Native American Graves Protection and Repatriation Act, Executive Order on Indian Sacred Sites, Executive Memorandum on Native American Access to Eagle Feathers), the Special Rapporteur identified weaknesses and gaps which diminish the effectiveness and hinder the application of these legal safeguards. Concerning the American Indian Religious Freedom Act, the Supreme Court has declared that this law was only a policy statement. As for the Executive Order on Indian Sacred Sites, unfortunately, it does not contain an “action clause”, leaving the tribes without the needed legal “teeth”. Higher standards or the protection of sacred sites are needed and effective tribal consultation should be ensured. These recommendations are all the more necessary in light of the October 1997 Advisory Council on Historic Preservation regulations and the January 1997
bill (see paragraph 59 (a) and (b) above). Concerning the Native American Graves Protection and Repatriation Act of 1990, it is apparent that its coverage was too limited; it is of the utmost importance that concrete solutions be found to solve the repatriation conflict between the scientific community and tribal governments. It is also essential to secure genuine de jure and de facto protection of Native American prisoners' religious rites.

81. In general, the Special Rapporteur recommends that steps should be taken to make sure that there is no conflict or incompatibility between the different federal, state and local laws, so as to arrive at a uniformity or at least a convergence in the legal protection of indigenous peoples' religion throughout the territory of the United States, while guaranteeing effective application of these texts, by everyone, for everyone and everywhere, all other things being equal (we may cite as an example the 1994 Executive Memorandum on Native American Access to Eagle Feathers see paragraph 59 (c) above). It is also recommended that in the legal sphere Native Americans' system of values and traditions should be fully recognized, particularly as regards the concept of collective property rights, inalienability of sacred sites and secrecy with regard to their location. Because of the decision in the Smith case, which affects Indians inasmuch as it seems that in their case there is a lack of understanding of their values and religion, since they are asked to “prove” their religion, and in particular the religious significance of their sacred sites, the Special Rapporteur reiterates his recommendations regarding, firstly, the adoption of a unified approach to the interpretation and application of the two constitutional clauses on “non-establishment” and free exercise of religion and, secondly, the adoption of a general law on freedom of religion and conviction, on the understanding that the special status of Native Americans should be taken into account and backed up by the principle of compensatory inequality in order to arrive at greater equality.

82. Because of economic and religious conflicts affecting in particular sacred sites, the Special Rapporteur wishes to point out that the freedom of belief, in this case that of the Native Americans, is a fundamental matter and requires still greater protection. The freedom to manifest one's belief is also recognized, but can be subject to limitations insofar as they are strictly necessary and provided for in article 1, paragraph 3, of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief and in article 18 of the International Covenant on Civil and Political Rights. The expression of the belief has to be reconciled with other rights and legitimate concerns, including those of an economic nature, but after the rights and claims of the parties have been duly taken into account, on an equal footing (in accordance with each party's system of values). As far as Native Americans' access to sacred sites is concerned, this is a fundamental right in the sphere of religion, the exercise of which must be guaranteed in accordance with the abovementioned provisions of international law on the matter.

83. These recommendations apply of course to the two particular situations of Mount Graham and Black Mesa. In the first case, according to information received since the visit, the Italian Parliament has adopted new legislation forbidding Italian participation in the project to set up a telescope, which would be a profanation of the Mount Graham site. As regards the permit delivered to the University of Arizona by the federal water and forest service for the establishment of telescopes on Mount Graham, which is a sacred site of the Apaches, the Special Rapporteur considers it necessary to make sure officially that the conditions stated above with regard to international law have been respected. On the subject of Black Mesa, the Special Rapporteur also calls for the observance of international law on freedom of religion and
its manifestations.

84. Concerning the religious rights of Native American prisoners, apart from the recommendation made in the section on legal issues, the Special Rapporteur recommends that the positive and practical action taken in many federal prisons (fully compatible with security requirements, e.g. ending the practice of cutting their hair) should become general throughout the United States prison system and that steps should be taken to ensure, particularly through training, and perhaps through penalties for prison officers and governors, that these rights are not treated as privileges that can be granted or refused at the whim of an authority or official.

85. In general, it is essential to make society and the whole of the administrative and political apparatus aware of the indigenous peoples' religions and spiritual beliefs in order to prevent any attitude often involuntary because due to ignorance of discrimination and intolerance in the field of religion (cutting young Native Americans' hair in schools, etc.).The participation of Native Americans in the executive is particularly important and helps to promote greater awareness and reduce the marginalization of these people; it is therefore to be welcomed. It is also desirable that Native Americans, who in general suffer from an accumulation of unfavorable conditions economic, social, cultural and religious should benefit in practice from a policy of support to compensate for these inequalities. The Special Rapporteur fully understands that, as the authorities stated, the Native American question is to be viewed in the context of a long term process, and he welcomes the advances made in recent years. Some official representatives, however, said that more could be done; the Special Rapporteur shares that view and would encourage the authorities to act accordingly.

86. Finally, the Special Rapporteur wishes to emphasize that education can play a primary role in making people aware of the values of tolerance and nondiscrimination  in the field of religion and belief and of the richness of every denomination and belief. In schools, in particular, it can inculcate values based on human rights and thus encourage a culture of tolerance. The federal authorities have launched such a preventive strategy through the programme “Preventing Youth Crime: A Manual for Schools and Communities”. The Special Rapporteur would encourage the federal Government to extend and develop a national policy coordinated at the federal and state levels in the field of education in order to reach all educational institutions, teachers, pupils and students. It is also strongly recommended that nongovernmental organizations should make a contribution.

87. The Special Rapporteur also recommends a campaign for greater sensitivity in the media so that they do not put out a biased and harmful message with regard to religion and beliefs. There have to be limits on the fundamental freedom of the press when it generates actual intolerance, the antithesis of freedom. There is something wrong if certain media hide behind the fundamental principle of freedom in order to pervert it. The Special Rapporteur reiterates his recommendations regarding action to be taken under the advisory services programme (E/CN.4/1995/91, p. 147) and particularly the organization of training workshops for representatives of the media. He also calls for the establishment of machinery for consultation between the media and the religious communities. Finally, he invites media proprietors to show a more acute sense of responsibility in all fields.

88. Last but not least, the Special Rapporteur wishes to emphasize the value of the interdenominational dialogue which he found to be taking place in certain places he visited, and particularly in California.

ANNEX

Membership of religious groups in the United States 1

• These membership figures generally are based on reports made by officials of each group, and not on any religious census. Figures from other sources may vary.

Many groups keep careful records; others only estimate. Not all groups report annually. Christian Church membership figures reported in this table are inclusive and refer to all “members”, not simply full communicants or confirmed members. Definitions of “member”, however, vary from one denomination to another. Only data reported within the past 10 years are included.

The number of houses of worship appears in parentheses. An asterisk (*) indicates that the group declines to make membership figures public. Groups reporting fewer than 5,000 members are not included. If membership numbers are not given, only those Churches with 50 or more houses of worship are
listed.

Religious group Members

Adventist Churches:
Advent Christian Church (317) 27,100
Church of God General Conference
(Oregon, IL; Morrow, GA) (88) 5,040
Seventh-Day Adventist Church (4,297) 790,731
American Rescue Workers (15) 8,000
Apostolic Christian Churches of America (80) 11,450
Baha’i Faith 130,000 2
Baptist Churches:
American Baptist Association (1,705) 250,000
American Baptist Churches in the USA (5,823) 1,517,400
Baptist Bible Fellowship International (3,600) 1,500,000
Baptist General Conference (857) 135,008
Baptist Missionary Association of America (1,355) 231,191
Conservative Baptist Association of America (1,084) 200,000
Free Will Baptist, National Association of America (2,491) 213,716
General Association of General Baptists (876) 74,156
General Association of Regular Baptists Churches (1,458) 136,380
National Baptist Convention of America (2,500) 3,500,000
National Baptist Convention, USA (33,000) 8,200,000
National Missionary Baptist Convention of America* 2,500,000
North American Baptist Conference (263) 43,928
Progressive National Baptist Convention (2,000) 2,500,000
Separate Baptists in Christ (100) 8,000
Southern Baptist Convention (40,039) 15,663,296
Brethren in Christ Church (200) 18,529
Brethren (German Baptists):
Brethren Church (Ashland, OH) (121) 13,578
Church of the Brethren (1,114) 143,121
Grace Brethren Churches, Fellowship of (273) 39,511
Old German Baptist Brethren (57) 5,623
Buddhist Churches of America 780,000 2/
Christian Brethren (Plymouth Brethren) (1,150) 98,000
Christian Church (Disciples of Christ) (4,036) 929,725
Christian Churches and Churches of Christ (5,579) 1,070,616
Christian Congregation (1,431) 113,259
Christian and Missionary Alliance (1,957) 307,366
Christian Union, Churches of Christ in (240) 10,400
Church of Christ, Scientist (2,400) *
Church of the United Brethren in Christ (234) 24,095
Churches of Christ (13,020) 1,655,500
Churches of God:
Churches of God, General Conference (349) 31,745
Church of God (Anderson, IN) (2,307) 224,061
Church of God (Seventh Day), Denver, CO (161) 6,000
Church of God by Faith (145) 8,235
Church of God, Mountain Assembly (118) 6,140
Church of the Living God (170) 42,000
Church of the Nazarene (5,135) 601,900
Community Churches, International Council of (517) 250,000
Congregational Christian Churches, National Association of (426) 70,000
Conservative Congregational Christian Conference (201) 36,864
Eastern Orthodox Churches:
American Carpatho-Russian Orthodox Greek Catholic Church (78) 12,541
Antiochian Orthodox Christian Archdiocese of
North America (184) 300,000
Apostolic Catholic Assyrian Church of the East,
North American Diocese (22) 120,000
Armenian Apostolic Church of America (28) 180,000
Armenian Church of America, Diocese of the (72) 414,000
Coptic Orthodox Church (85) 180,000
Greek Orthodox Archdiocese of North and South America
(approx. 500) *
Orthodox Church in America (600) 2,000,000
Romanian Orthodox Episcopate of America (37) 65,000
Russian Orthodox Church in the USA, Patriarchal
Parishes (38) 9,780
Russian Orthodox Church Outside of Russia (147) *
Serbian Orthodox Church in the USA & Canada (68) 67,000
Syrian Orthodox Church of Antioch (17) 32,500
Ukrainian Orthodox Church of America (27) 5,000
Episcopal Church (7,415) 2,536,550
Evangelical Church (132) 12,444
Evangelical Congregational Church (150) 23,422
Evangelical Covenant Church* 91,458
Evangelical Free Church of America (1,224) 242,619
Friends:
Evangelical Friends International-North American Region (92) 8,666
Friends General Conference (602) 31,415
Friends United Meeting (503) 43,680
Full Gospel Fellowship of Churches and Ministers
International (650) 195,000
General Church of the New Jerusalem (34) 5,587
Grace Gospel Fellowship (128) 60,000
Hindu 910,000 2/
Independent Fundamental Churches of America (670) 69,857
Islam 5,100,000 2/
Jehovah’s Witnesses (10,541) 966,243
Jewish organizations:
Union of American Hebrew Congregations (Reform) (876) 1,300,000 2/
Union of Orthodox Jewish Congregations of America (1,200) 1,000,000 2/
United Synagogues of Conservative Judaism, The (800) 2,000,000 2/
Latter-Day Saints:
The Church of Jesus Christ of Latter-Day Saints
(Mormon) (10,417) 4,711,500
Reorganized Church of Jesus Christ of Latter-Day
Saints (1,160) 177,779
Lutheran Churches:
Apostolic Lutheran Church of America (60) 7,700
Church of the Lutheran Brethren of America (118) 24,906
Church of the Lutheran Confession (70) 8,783
Evangelical Lutheran Church in America (10,955) 5,190,489
Evangelical Lutheran Synod (135) 22,371
Free Lutheran Congregations, Association of (230) 30,769
Latvian Evangelical Lutheran Church in America (57) 12,097
Lutheran Church-Missouri Synod (6,154) 2,594,555
Lutheran Churches, American Association of (91) 17,973
Wisconsin Evangelical Lutheran Synod (1,252) 412,478
Mennonite Churches:
Beachy Amish Mennonite Churches (95) 6,968
Church of God in Christ (Mennonite) (96) 11,037
Hutterian Brethren (398) 41,600
Mennonite Brethren Churches, The Conference of (147) 19,218
Mennonite Church (986) 90,812
Mennonite Church, The General Conference (268) 35,852
Old Order Amish Church (898) 80,820
Methodist Churches:
African Methodist Episcopal Church (8,000) 3,500,000
African Methodist Episcopal Zion Church (3,098) 1,230,842
Evangelical Methodist Church (132) 8,500
Free Methodist Church of North America (1,068) 74,707
Primitive Methodist Church, USA (78) 7,234
Southern Methodist Church (127) 7,669
United Methodist Church (36,361) 8,538,662
The Wesleyan Church (USA) (1,624) 115,867
Metropolitan Community Churches, Universal Fellowship of (291) 30,000
Missionary Church (315) 29,542
Moravian Churches:
Moravian Church in America, Northern Province (95) 27,656
Moravian Church in America, Southern Province (56) 21,513
National Organization of the New Apostolic Church of
North America (554) 41,863
Pentecostal Churches:
Apostolic Faith Mission Church of God (26) 11,450
Apostolic Overcoming Holy Church of God (162) 12,390
Assemblies of God (11,823) 2,387,982
Bible Church of Christ (6) 6,850
Church of God (Cleveland, TN) (6,060) 753,230
Church of God in Christ (15,300) 5,499,875
Church of God in Prophecy (1,961) 72,859
Elim Fellowship (170) 21,038
International Church of the Foursquare Gospel (1,742) 227,307
International Pentecostal Church of Christ (73) 5,411
International Pentecostal Holiness Church (1,653) 157,163
Open Bible Standards Cs. (361) 45,988
Pentecostal Assemblies of the World (1,760) 1,000,000
Pentecostal Church of God (1,224) 119,200
Pentecostal Free Will Baptist Church (149) 12,640
United Pentecostal Church International (3,790) *
Polish National Catholic Church (143) 50,000
E/CN.4/1999/58/Add.1
page 36
1. Sources: Yearbook of American & Canadian Churches 1997: Prepared and
Edited for the Communication Commission of the National Council of Churches of
Christ, Kenneth B. Bedell (ed.), National Council of Churches of Christ,
Abingdon Press, 1997; The World Almanac, 1997.
2. Based on reliable estimates; figures from other sources may vary.
Presbyterian
Churches:
Associated Reformed Presbyterian Church (General Synod) (207) 38,996
Cumberland Presbyterian Church (783) 87,896
Evangelical Presbyterian Church (177) 56,449
Korean Presbyterian Church in America (203) 26,988
Orthodox Presbyterian Church (189) 21,131
Presbyterian Church in America (1,299) 267,764
Presbyterian Church (USA) (11,361) 3,669,489
Reformed Presbyterian Church of North America (70) 5,657
Reformed Churches:
Christian Reformed Church in North America (716) 206,789
Hungarian Reformed Church in America (27) 9,780
Protestant Reformed Churches in America (27) 6,318
Reformed Church in America (908) 306,312
United Church of Christ (6,145) 1,472,213
Reformed Episcopal Church (102) 6,084
Roman Catholic Church (19,726) 60,280,454
Salvation Army (1,264) 453,150
Unitarian Universalist Association of North America (1,039) 209,129
United Brethren in Christ (239) 24,671

Special Rapporteur on Freedom of Religion or Belief: 1998 Visit to the United States of America (E/CN.4/1998/6/Add.2).

http://www2.ohchr.org/english/issues/religion/index.htm

BACKGROUND

MANDATE OF THE U.N. SPECIAL RAPPORTEUR ON FREEDOM OF RELIGION OR BELIEF

The U.N. Human Rights Council every three years draft a resolution for the mandate of the U.N. Special Rapporteur on Freedom of Religion or Belief who serves as an independent expert on human rights and freedom of religion or belief through a process known as Special Procedures.

In the U.N Human Rights Council in 2007 the right to change one’s religion or belief was resisted by Pakistan on behalf of the 57 country Organization of the Islamic Conference (OIC) as a requirement they could not subscribe to. In 2010 Pakistan and the OIC withdrew the objection when the U.N. Human Rights Council dropped 9 (a) from the mandate on freedom of religion or belief without a vote. 

2007 Mandate on Freedom of Religion or Belief (A/HRC/RES/6/37)

9. Urges States:

• (a) To ensure that their constitutional and legislative systems provide adequate and effective guarantees of freedom of thought, conscience, religion and belief to all without distinction, inter alia, by the provision of effective remedies in cases where the right to freedom of thought, conscience, religion or belief, or the right to practice freely one’s religion, including the right to change one’s religion or belief, is violated;

Pakistan speaking on behalf of 57 countries in the Organization of the Islamic Conference (OIC)  objected by saying, “It called  for respect for norms about the right to change one’s religion.  The EU draft explicitly urges States to guarantee the right to change one’s religion or belief,  a requirement the OIC could not subscribe to.”

Portugal, speaking on behalf of the European Union (EU) said over 40 paragraphs in the draft resolution was eliminated in an attempt at consensus with the abstaining states, but consensus over the right to leave one’s religion or belief is inviolable and could not be compromised.  The Resolution (A/HRC/RES/6/37) with recorded votes can be viewed by clicking on this link:

http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_6_37.pdf

2010 Mandate on Freedom of Religion or Belief (A/HRC/RES/14/11)

In 2010 at the 14th session of the U.N. Human Rights Council Pakistan and the OIC dropped their objections to the resolution.  The resolution was adopted without a vote for the three year mandate of the U.N. Special Rapporteur on Freedom of Religion or Belief (A/HRC/RES/14/11). Paragraph 9 (a) the point of tension and abstentions in 2007 was deleted and an amendment withdrawn by Pakistan on behalf of the Organization of the Islamic Conference (OIC) and several other countries to achieve consensus.

Does (A/HRC/RES/14/11) still urge states to guarantee the right to change one’s religion or belief as it did in the 2007 resolution or does it accommodate cultural norms not to change one’s religion? 

Paragraph 9 (a)  in the opinion of the EU still applies to the discharge of duties in 2010 for the U.N. Special Rapporteur on Freedom of Religion or Belief . Whether the OIC agrees after abstaining in 2007 based on cultural norms is a key issue and needs clarity for 9 (a) to be fully implemented. 

UN Human Rights Council Resolution on Freedom of Religion or Belief

IMPLEMENTING 9 (a)

If the mandate in 2010 includes a call to implement 9 (a) it will be a significant step forward  to resolve the question of universality vs. cultural relativity, at least for norms that guarantee the right to change one’s religion or belief.  As a principle of universal democracy the right to leave a religion is  inviolable for all religions or beliefs, all governments, all members of the human family. 

The global challenge is to build widespread awareness and acceptance of this right as international law through dialogue with governments and non-governmental organizations, civil society, schools and places of worship, including leaders of the Ummah in Islamic schools and mosques. 

Implementing 9 (a) must respect the sensitivity and complexity of this issue which was one of the causes of the 1968 impasse by the U.N. in drafting a legally-binding international treaty (History).

MANDATES RELATING TO FREEDOM OF RELIGION OR BELIEF

Mandate of the U.N. Special Rapporteur on Freedom of Religion or Belief: http://www2.ohchr.org/english/issues/religion/index.htm

Mandate of the U.N. Special Rapporteur on Promotion and Protection of the Right to Freedom of Opinion and Expression:
http://www2.ohchr.org/english/issues/opinion/index.htm

Mandate of the U.N. Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance:
http://www2.ohchr.org/english/issues/racism/rapporteur/index.htm

Ad-Hoc Committee on Complimentary Standards:  http://www2.ohchr.org/english/issues/racism/AdHocCommittee.htm

TREATIES & DECLARATIONS

International Human Rights Treaties: http://www2.ohchr.org/english/bodies/treaty/index.htm
The original intent in 1960 was to draft two core legally binding human rights treaties on religion and race. “ The decision to separate the instruments on religious intolerance from those on racial discrimination constituted a compromise solution designed to satisfy a number of conflicting viewpoints. Western states insisted on addressing both matters in a joint instrument. Communist states were not anxious to deal with religious matters. African and Asian states considered the question of religious intolerance a minor matter compared with racial discrimination.  In contrast to the religious intolerance matter, international instruments on the elimination of racial discrimination were adopted fairly swiftly, in 1963 and 1965 respectively.
At the General Assembly’s twenty-second session, the Third Committee had an opening general debate and a line-by-line review of the text of the draft convention. The convention’s most fierce critics were the Soviet Union, other communist states, and several African and Asian States. Since the draft Convention’s definition of “religion or belief’ included theistic, non-theistic and atheistic beliefs; there was strong opposition from Islamic states, the Catholic church, and other religious groups. At its twenty-third session, the General Assembly decided to defer consideration of the draft convention.” (History next section).
In 1968 the UN deferred work on a legally-binding treaty on religious intolerance as too complex and sensitive and passed a non-binding declaration in its place. The Tandem Project believes until a core legally-binding Convention on Freedom of Religion or Belief is adopted international human rights law will be incomplete, and a lasting foundation for the universality of human rights may not be possible. 

HISTORY & STATISTICS

• HISTORY: The United Nations failed to achieve consensus on a legally binding international treaty on religious intolerance, settling instead for the non-binding 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief.

http://www.tandemproject.com/program/history.htm

• STATISTICS: The United Nations protects all theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. Statistics: builds the case for an  inclusive and genuine approach to implementing human rights and freedom of religion or belief.

http://www.tandemproject.com/program/major_religions.htm

THE TANDEM PROJECT 

1984: The Tandem Project co-founder represented the World Federation of United Nations Associations (WFUNA) in 1984 at the two week Geneva Seminar called by the UN Secretariat on how to implement the 1981 UN Declaration on the Elimination of All Forms of Intolerance of Discrimination Based on Religion or Belief. In 1986 The Tandem Project hosted the first International Conference on the 1981 U.N. Declaration on Freedom of Religion or Belief.

1986: Minnesota held the first International Conference on how to implement the 1981 United Nations Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief. Thirty-five international delegates and thirty-five Minnesota delegates were invited. Minnesota organizations and individuals proposed twenty- seven Community Strategies on how to implement the 1981 U.N. Declaration under: Synopsis, Strategy, Objectives, Program Approach, Obstacles and Outcomes. These Community Strategies can be read on the following link:

Minnesota Community Strategies:  http://www.tandemproject.com/tolerance.pdf .

2011: Since 1986 The Tandem Project has built support for Human Rights and Freedom of Religion or Belief simultaneously from top down and ground up, understanding one cannot succeed without the other. In 1986 top down was  the U.N. Human Rights Commission, now its successor the U.N. Human Rights Council.  The Tandem Project approach for Universal Periodic Reviews & Freedom of Religion or Belief from the ground or local level up includes; Forums for Places of Worship, Academic Discourse, Schools, Women and Civil Society.

Tandem Project Database: http://www.tandemproject.com/databases/forms/card.htm

Tandem Project Internet Course: http://www.tandemproject.com/toc/toc.htm

The Questionnaire is a checklist for inclusive and genuine dialogue on human rights and freedom of religion or belief and conflicting truth claims, for places of worship, government and non-governmental organizations, academic institutions, schools and civil society, in preparation for Tandem Forums. 

OPEN QUESTIONNAIRE

Reflections

The First Preamble to the Universal Declaration of Human Rights reads: Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Surely one of the best hopes for humankind is to embrace a culture in which religions and other beliefs accept one another, in which wars and violence are not tolerated in the name of an exclusive right to truth, in which children are raised to solve conflicts with mediation, compassion and understanding.

There is an increase in dialogue today between religions and other beliefs to embrace diversity, but few persons, less than one percent of any population, ever participate. This is a challenge. The value of such dialogues is proportionate to the level of participation. For civil society increased participation would create opportunities for education on inclusive and genuine approaches to human rights and freedom of religion or belief. 

In 1968 the United Nations deferred passage of a legally-binding convention on religious intolerance saying it was too complicated and sensitive. Instead, they adopted a non-binding declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief. While very worthwhile, the declaration does not carry the force and commitment of a legally-binding international human rights convention on freedom of religion or belief.

Religions and other beliefs historically have been used to justify wars and settle disputes. This is more dangerous today as the possible use of nuclear and biological weapons of mass destruction increases. Governments need to consider whether religions and other beliefs trump human rights or human rights trump religions and other beliefs. Can international human rights law help to stop the advance and use of such weapons in the face of this historic truth?

• QUESTION: Weapons of mass destruction as history teaches  are legitimized for national security and justified by ethnic and religious ideology. The U.N. Review Conference on the Nuclear Test Ban Treaty and studies on biological and cyber weapons demonstrate advances in science and technology is being used to increase their potential for mass destruction. The question is whether an International Convention on Human Rights and Freedom of Religion or Belief, elevated and supported equally by the U.N. Human Rights Council and U.N. Security Council, would help offset the risk of weapons of mass destruction. Recognition of the need for synergy to balance rights and security is the foundation for solving this issue.

“I am become death, the destroyer of worlds” - Robert Oppenheimer, quote from the Bhagavad Gita after exploding the first atomic bomb, Trinity 1945.

The Tandem Project a non-governmental organization (NGO) founded in 1986 to build understanding, tolerance, and respect for diversity of religion or belief, and to prevent discrimination in matters relating to freedom of religion or belief. The Tandem Project has sponsored multiple conferences, curricula, reference material and programs on Article 18 of the International Covenant on Civil and Political Rights- Everyone shall have the right to freedom of thought, conscience and religion – and the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief.

Documents Attached: USA - Minneapolis-St. Paul Area Forum for Places of Worship on Human Rights & Freedom of Religion or Belief; USA - Macalester College Forum for Academic Discourse on Human Rights & Freedom of Religion or Belief