The external dimension can be divided into positive religious freedom and negative religious freedom. Positive religious freedom is the freedom to actively manifest one’s religion
or belief. The right to manifest one’s religion may include participating in acts of worship;
reading sacred texts; praying; telling other people about one’s religious beliefs, requirements concerning dress, and diet; or observing holy days. As a social freedom, however,
this positive freedom is necessarily subject to certain limitations to preserve social order
and the rights of other citizens.
Negative religious freedom is freedom from coercion or discrimination on the grounds of
religious (or non-religious) belief. For example, Art. 1.2 of the United Nations Declaration
on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief of 1981 states: “No one shall be subject to coercion which would impair his freedom
to have a religion or belief of his choice.”148 Immunity from coercion implies that people not
be subjected to penalties or disadvantageous treatment on account of their religious beliefs.
The ICCPR includes a person’s right “to have or to adopt a religion or belief of his choice”
(Art. 18.1) and to be free from coercion in so choosing (Art. 18.2). The rights of religious
minorities also receive specific recognition.149
If a state were to close its armed forces to certain religious groups or to restrict their opportunities for promotion, clearly this could constitute religious discrimination. However,
insisting that enlisting service personnel swear an oath with a religious component to the
head of state or to the constitution, for example, may equally amount to compulsion in
matters of religion. This may exclude non-believers or those who, for religious reasons,
object to swearing oaths.
Aspects of external religious freedom may conflict with the disciplined nature of life in the
armed forces. These mostly concern positive aspects of religious liberty. However, negative
aspects of liberty can be at stake in certain situations, e.g., if the ceremonial duties of the
armed forces require the participation of a serviceman or -woman in a religious ceremony.150 The Spanish Constitutional Court has ruled that orders of this kind violate religious
liberty.151 In Denmark, the constitutional guarantees on religious liberty are taken to forbid
this also.152
Positive aspects of religious liberty may impose burdens on the armed services as an employer, such as allowing times or places for believers to pray, providing access to spiritual
counsellors or chaplains of various religions, providing burial rites in different religious
traditions, allowing time off for holy days, varying uniform or catering regimes, or facilitating fasting. In these instances, the question is essentially one of proportionality, i.e.,
assuming that there is a genuine military reason for the practice in question, whether or to
what extent it would be compromised by accommodating the religious practice.
The issue can be seen clearly in the example (taken from the United States Supreme Court)
of an Air Force doctor who was an Orthodox Jew and an ordained rabbi.
148 The Declaration was adopted by General Assembly Resolution 36/55, 36 UN GAOR, Supp. (No. 51), 171,
25 November 1981.
149 See Art. 27.
150 Nolte (ed.), op. cit., note 6, pp. 88-89, citing disciplinary requirements in the United Kingdom and in
Italy.
151 Spanish Constitutional Court, Judgment No. 177/1996, 11 November 1996, Boletín Oficial del Estado,
No. 303, 17 December 1996, also retrievable through the website of the Spanish Constitutional Tribunal at
<http://www.boe.es/g/es/bases_datos/tc.php> (enter the judgment number under “referencia-número” and click
“Buscar”).
152 Nolte, op. cit., note 6, p. 250, citing Arts. 67-70 of the Danish Constitution.
88
Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel
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