The Religion Defence
Only the defence called witnesses at the Belgian trial of Scientology.
Four of them were practising Scientologists who wanted to testify to all the good their Church had done them. Their message to the court would be perfectly clear: that it could not dismiss the fact that Scientology was a religion.
And to hammer that point home the defence produced an expert witness with impeccable credentials.
At the end of the first week of the trial, Professor Marco Ventura took the stand. He introduced himself as a professor of Canonical Law and the Law of Religions at the University of Siena, in Italy.
In the course of his career he had also held posts or conducted research at University College of London, University in California, Berkeley, the Université Libre in Brussels, as well as in India, Morocco, France, Vietnam and elsewhere.
Fluent in three languages, widely published and with an impressive range of international posts behind him, this was no lightweight taking the stand. (1)
Professor Ventura was dressed smartly in a dark grey suit and carried a file of notes that, in the end, he never needed to consult. He gave his testimony, in flawless, if slightly accented French.
No, he was not a Scientologist, he said in answer to a preliminary question from Judge Yves Régimont; nor had he ever been. The judge invited him to set out his position.
The key question was this, said Professor Ventura: when one talks about religion, can one speak of Scientology being a religion? From a legal position, the answer was unequivocally yes.
European institutions such as the Council of Europe and the European Union had a broad definition of what constitutes a religion, he explained. “This inclusive definition is all the more important because for these institutions it brings with it the protection that religious rights entail.”
One could identify three common criteria for a religion, he said: one was simply auto-definition, a concept set out in several texts. Auto-definition simply meant that you regarded your movement as a religion.
As soon as there was auto-definition, he said, the burden of proof fell on a movement’s detractors to prove that it was not a religion.
“The fact that a new religious movement does not resemble the old ones does not mean it is not what it says it is,” said Professor Ventura
The second criterion related to freedom of religion or belief: and there, he said, European law offered a broad interpretation.
“There has to be a distinction between the form of traditional religions and the new religious movements,” he said. “And the fact that a new religious movement does not resemble the old ones does not mean it is not what it says it is.”
So new religious movements were entitled to the same rights as the traditional denominations, he argued.
Then, said the professor, you had to look at the substantial criteria, which is to say the contents of the movement in question. “They are the manifestations of religion,” he explained.
These substantial criteria included the rituals, the religious objects, the practices and teachings of a movement. The definition, as set down in European law was very long, he added, but that was what it came down to. “There is more, but I don’t have the time for it all,” he added.
Another important element, for European institutions at least, was the question of organisation. “To accomplish these aims, the church must be organised,” he said.
That helped the Church meet test of diversity, which is to say it reflected a spiritual experience that had a broad vision of the world, a doctrine on which its practices depended.
In the context of the trial then, the key question was: does Scientology meet these criteria? For him, the answer was yes.
“What is interesting from the outside, for an expert, is one finds aspects that are modern as well as traditional; and aspects representing new forms of religion that meet the diversity criterion,” he added.
One could also answer yes to the religion question by virtue of what one found in European jurisprudence: by how Scientology had been regarded in previous court rulings.
He cited a European Court of Human Rights (ECHR) ruling on an action that Scientology had brought against Sweden in 1979. That was a landmark case not just because it was the first time that Scientology had been permitted to bring an action as a church; it was the first time any church had been allowed to file a case as a church. (2)
He also noted a 1997 ruling by Germany’s Federal Administrative Court that had said that the fact that there were payments for services was not of itself an argument against the religious character of Scientology. (3)
And he said that a 2013 Amsterdam court ruling that said auditing and Scientology were comparable with ecclesiastical activities in other religions. “That debate isn’t closed, but subsequent rulings haven’t put that in question,” he added. (4)
Another reason Scientology should be accepted as a religion was the notion of community, he said.
Up until now, he said, he had been talking about the notion of community. “But European institutions referred to organisations,” said Professor Ventura.
It was important to understand that religious communities were recognised as moral persons in international law, he explained. Freedom of religion, freedom of belief also entailed the right to organise oneself as one wished: so these freedoms also covered religious communities.
“Insofar as it is recognised as a religion, then we recognise that it is a religion in the eyes of European institutions,” he added. “In the United Kingdom, it is not just recognised as a community, but since 2013 it can celebrate marriages that are recognised in civil law.
“The ethics system does not have as its aim taking people out of their legal obligations: it is a quite different sphere,” said the professor.
Maître Pascal Vanderveeren, the Church of Scientology’s lawyer, asked him about the role of ethics and discipline in religions and how that applied in the context of Scientology.
“When you see how religions structure themselves, one can note that there is always a system of control in place,” said Professor Ventura. “That affects the behaviour of the individual and the group in the heart of the community: so for example, a monastery in the Catholic Church.”
This had important implications, he said. “The State will never go into the conscience of a person whereas a religion is there precisely for that.” And depending on the community concerned, those controls could be very invasive, he added.
These controls systems were structured in very different ways from religion to religion, he said. In the Catholic Church, for example, a book of the canon law code deals with criminal law, whereas in the Protestant Church it was more a disciplinary “code”.
“And these are very important choices of words,” he added. Judaism, Islam; all the major religions had their system, their “criminal code”.
“All these things act at a level that is not at the level of the state: that is very important,” he continued. “It is obvious that the Catholic Church is not in competition with the state, but that is always true with ordinary religions.”
Judge Régimont stopped him: “Isn’t any religion, whatever it is, nevertheless obliged to respect the law in that country?”
“Of course,” the professor replied. Every religion had a doctrine to that effect, he said. “Jewish law is very clear on that point. Obviously, in whatever religion you are talking about there is the necessity that they acknowledge the need to respect the laws of the country.”
But from a human rights perspective, while the same system that acknowledged the primacy of the state also allowed for a judgment as to whether or not the state was encroaching on the rights of a religion.
“It is the state, or supranational law, that ensures that freedom of religion is respected,” he said. And the ECHR was the final court of appeal for most European countries.
It was important to note then that there were mechanisms in place to check the conformity of state laws with Article 9 of the European Convention of Human Rights to ensure that states did not excessively restrain these freedoms. (Article 9 guarantees freedom of thought, conscience and religion.)
He raised the example of Scientology’s experience in Russia: the ECHR had ruled three times against Moscow over its treatment of the Church there. (5)
As an outside observer, it seemed to him that the Church of Scientology met the criteria of a religion in this respect too. But it was important to look at its function from the inside too, he added: “The ethics system does not have as its aim taking people out of their legal obligations: it is a quite different sphere.”
One question worth asking was: if Scientology’s activities were to be stopped, why them and not similar cases involving other religions?
Maître Vanderveeren asked him about the issue of sacred, or ritual objects in religions. Did Scientology’s e-meter qualify? (The e-meter, or electropsychometer, is a device used in Scientology auditing, which they characterise as spiritual counselling.)
The answer was yes, said Professor Ventura: for two reasons. First, it was a question of what the community believed and lived.
And second, he said: “I don’t see how you can accept other objects such as the rosary and not the e-meter… I can’t see the objective elements to set the e-meter apart from others without falling into discrimination.”
Jean-Pascal Thoreau, the prosecutor assisting Christophe Caliman with his case, intervened. He could understand that point in relation to say, Scientology’s distinctive eight-pointed cross, he said. But could one not make a distinction between that and the e-meter?
Could one not also argue that sacred objects were not available to everyone? And was there not a distinction between a symbol and a ritual? Surely a cross could be both.
Caliman agreed with his colleague and thought he had put his finger on something important. “Can one say that the e-meter, when it is used for a confessional, is it being used in a religious way?”
Judge Régimont put a slightly different question: could the e-meter be put to a use that deviated from its original function?
“That depends on how it is used,” said the professor.
He cited the case of a Coptic Christian who had won a case against Britain in the European Court of Human Rights after British Airways, her employer, had prevented her from wearing a cross at work. (6) “The principle is that any restriction will be tested on strict conditions of admissibility,” he said.
Thoreau tried again. “Religious objects have the meaning the community wants them to have. Can it have different meanings inside the church?”
Generally, he said, the courts tried to avoid speculation as to how a religion worked, said Professor Ventura. “There have been cases in which national convictions have been overturned because they were based on what the court thought a religious activity meant,” he added.
He appeared to be referring to ECHR rulings overturning judgments at the national level: the lesson seemed to be that you could not second-guess what a religion might mean. In 2003, the Jehovah’s Witnesses had won a case against France at the Strasbourg court over their refusal to allow blood transfusions. (7)
So on that logic, you could not second-guess Scientology on what you thought the e-meter was being used for: what mattered was what Scientology thought the e-meter was.
Caliman, for the prosecution, was still not convinced. “Is this, perhaps, the wrong debate? Interesting in theory, but we are concerned with the facts.”
The expert was simply doing his job, Judge Régimont pointed out. But he wanted more guidance from Professor Ventura as to the distinction between the doctrine and the actual lived experience of a religion.
Professor Ventura argued there was a difference between the facts, how they were perceived – and who suffered as a consequence. So the court needed to keep in mind what impact any ruling would have on the Church of Scientology.
In Switzerland, for example, police had arrested some people for handing out tracts supporting the Islamic Salvation Front in Algeria. They were detained and eventually convicted. There had been a debate over whether that had been necessary.
The same questions needed to be asked in the context of Scientology, measured against the principle of discrimination. And one question worth asking was: if Scientology’s activities were to be stopped, why them and not similar cases involving other religions?
Sacred objects: “I don’t see how you can accept other objects such as the rosary and not the e-meter...”
Caliman referred to the testimony of one of the defendants who had said that the e-meter did nothing of itself. “What matters is the person using it and interpreting it, and it is the auditor who uses his knowledge and experience. (8)
“So my question is: could one not distinguish between the act of healing and the act of faith? If someone heals or lays on hands by prayer, he does nothing himself, but is the instrument of God, and is there not a parallel here?
“Is the e-meter for example, not similar, because the e-meter doesn’t do the work.” Surely, he argued, Article 9 could not be used to protect the use of an e-meter that violated the law.
For Professor Ventura, given the diverse ways in which holy objects were used, “...I don’t see a substantial difference between an e-meter and any other object.”
Another defence lawyer, Maître Cedric Vergauwen stood up. “I don’t think we are missing the debate, as the prosecutor suggested, given the questions put to the defendants.”
Maître Vergauwen and other members of the defence team had intervened earlier that week on just this matter. They had objected to the way the judge had asked some defendants about the e-meter, arguing that he should show more respect for what Scientologists considered a religious artefact. (9)
“Does the fact that the e-meters are sometimes very expensive undermine the argument that they are religious objects?” he asked.
No, said the professor: not if that was part of the doctrine of the religion.
Would it be comparable to a Muslim paying for a prayer rug, Maître Vergauwen asked.
Professor Ventura was not sure that this counted as a religious object, but he added: “If a Christian paid a fortune for a relic, that wouldn’t conform with the Catholic religion’s values.”
Another defence lawyer, Maître Ines Wouters, stood up. Could Scientology’s Preclear files be considered religious in the same way?
“Certainly,” Professor replied, “in the sense that they have a function in the religious community.” Again, he said, it came back to the principle of auto-definition.
“European law is very general, so as to avoid having to make restrictive rulings.” Accordingly, the courts took these issues on a case-by-case basis.
“So the line between teaching and practice is fluid,” Maître Wouters concluded.
For Professor Ventura, the important thing to bear in mind was that European institutions had accepted that the secular authorities had only a limited appreciation of these matters. Any cases affecting religious practice should not be judged in too restrictive a manner, he said.
The judge thanked Professor Ventura for his exposition and he stepped down to make way for the four Scientologists who were there to bear witness to their faith.
Professor Ventura’s testimony flagged up the legal obstacles that lay ahead if the court decided to convict the Church.
The last hour or two had been anything but academic.
For decades now, Scientologists and their lawyers had denounced attacks on its practices in the courts as religious persecution. It was one thing to hear them insist that Scientology was a legitimate religion; it was quite another to hear it from an expert in the field.
A few weeks later, as expected, the prosecutor Caliman asked for the dissolution of the Church of Scientology Belgium, which he accused of being a criminal organisation. The defence had seen that coming.
Scientology’s decision to bring Professor Ventura in to testify was a way of flagging up the obstacles that lay ahead if the court decided to convict the Church.
It was a reminder that whatever the Belgian court might think about Scientology, it would be well advised to consider the position of the European Court of Human Rights on religious questions.
Professor Ventura’s testimony – the religious argument in all its applications – was a cornerstone of their defence.
Judgment in this case is due on Friday, March 11.
Photo of the 2013 model of the Scientology E-Meter by "Colliric", used under a Creative Commons licence.
1) Professor Ventura has since taken up another prestigious post, as Director of the Fondazione Bruno Kessler at the University of Trento, Italy. Professor Ventura speaks English and French as well as his native Italian. My thanks to Professor Ventura for having taken the time to provide the references to the case law he cited and for having gone over his presentation with me.
2) The case was brought under Article 9 of the European Convention on Human Rights, which guarantees freedom of thought, conscience and religion. This is the ruling he meant: X. and the Church of Scientology v Sweden (May 5, 1979).
The Court actually rejected Scientology’s application, but the key point, so far as Prof. Ventura’s argument is concerned, is that it was allowed to make the application as a Church in the first place.
3) Here’s the reference, courtesy of Professor Ventura. Bundesverwaltungsgericht, 6 novembre 1997 (N. 25. Of the version accessible at jurion.de). Here’s the Federal Administrative Court’s press release on the judgment (which Google-translates quite well into English).
4) It may be that an October 2015 tax court ruling overturned the judgment he mentioned here (but I forgot to check with him if it he was talking about the same case). See my October 24, 2015 report on that ruling over at Tony Ortega’s Underground Bunker.
5) I covered these three rulings against Russia at my website, Infinite Complacency. See “Russia had it coming” from November 2014.
That case relied in part on a judgment 10 years earlier: Hoffmann v Austria, June 23, 1993 (application no. 12875/87). Once again, my thanks to Professor Ventura for providing the links.
8) Caliman may have been referring to comments made by Patricia R. See “Who decides?” elsewhere at this site.
9) See “Appropriate Questions” from earlier in the coverage.