Leveling the playing field for religious "liberty" in Russia: a critical analysis of the 1997 law "on freedom of conscience and religious associations".

There are five clusters of public opinion in Russia ranging from the retrograde fascism to libertarian democracy ... and each exists to a greater or lesser degree within EACH AND EVERY RUSSIAN. Because these clusters of opinion are pitched in battle with one another, Russia's future remains very much in doubt

Boris Grushin, a leading Russian public opinion specialist(1)

The state is the defense and support of the independent church, and the church is the spiritual leader and guardian angel of the Christian state

I.A. Il'in, Russian jurist and philosopher (1883-1954)(2)

I. INTRODUCTION

The collapse of the Soviet Union in 1991 ended an acute confrontation between two socio-economic systems. In subsequent years, the West has exhibited both euphoria and exasperation over the developments in Russia. Russia's record in the area of human rights, including religious rights, conforms to the overall "roller-coaster" pattern of its attempts to become a truly democratic state,(3) As a result, the West continues to perceive Russia with a certain apprehension: periodic goodwill among political leaders and the relative CNN silence about the events in Russia have left the West with an uneasy, latent anticipation of what might happen next.

In the summer of 1997, the acrimonious debate over freedom of conscience and the role of religion and church in Russia attracted international attention. The passage of a comprehensive new law "On Freedom of Conscience and Religious Associations"(4) was a landslide(5) victory for the conservatives, concluding a seven-year battle to amend the groundbreaking, progressive law "On Freedom of Religion."(6) The 1997 law, while enjoying popular support, generated strong criticism because of its effective curtailment of the legal rights of certain religious associations and individuals.(7) Nevertheless, the new law afforded substantial and much needed political legitimacy to the indecisive Russian legislative branch as well as to the President.(8) These diametrically opposed responses to the new legislation naturally translated into socio-political discomfort both in Russia and in the international arena.

Yet the rigid cultural stereotypes propagated by the Russian and Western media do not provide an adequate understanding of the origins and the repercussions of the new law. The purpose of this Note is to present a more comprehensive framework for analyzing the status of religious human rights in Russia after the enactment of the new law. Following the insights of an eminent scholar on law and religion, Prof. Harold J. Berman, the topic may be evaluated with a view to positive law (Zakon), moral theory (Pravo), and Russian historical experiences.(9) Generally, positive law refers to domestic legal norms. Moral theory also stems primarily from domestic supra-legal sources, but it may connote global human rights principles where a state subscribes to monism,(10) as Russia currently does. Historical contingencies can be described as prior experiences and the related set of solutions developed in the past. Historical experiences are relevant because of a society's natural proclivity to apply these time-tested solutions to new circumstances. Writing about a failed attempt to amend the liberal religious freedom law in 1993, Professor Berman correctly pointed to the overpowering force of historical contingencies in informing Russian legislation and molding both positive law and morality.(11)

The situation in 1997 mirrored the one in 1993.(12) The dissolving of the Russian legislature in 1993 merely postponed the resolution of a drama surrounding Russian religious policies that reached its expected outcome in 1997. Once again, the needs of the state trampled the legal guarantees contained in the Russian Constitution and numerous instruments of international law adopted by Russia. This Note explores the reasons for such a deplorable detour from the rule of law and attempts to chart the reach of the new legislation.

The discussion in Part II begins with a synopsis of religious policies in Russian history. It then offers general observations on Russian cultural predilections regarding religion, state, and the people. These constitute the most powerful strand of supra-legal sources--the Russian version of natural law. Part III identifies an alternative set of higher legal norms and principles contained in international religious rights instruments(13) and in the 1993 Russian Constitution. Part IV starts with a description of the post-Soviet religious landscape and focuses on political and cultural motivations for the new legislation. It then lays out the structure of the new law and provides a commentary on important provisions. The Note assesses the law in light of constitutional guarantees, international norms, and practical domestic imperatives. Part V examines the potential effects of law and suggests the ways to resist gross abuses in its application. The Note concludes by asserting that if Russia blindly follows the worst features of its historic heritage the forecast is bleak. Yet, the future looks brighter if Russia follows international and constitutional norms in developing tempered cooperationist or endorsed(14) paradigms of church-state relations. This scenario satisfies both the Russian quest for its unique cultural identity as well as its ambitions to become a truly democratic state.

II. HIGHLIGHTS IN THE HISTORY OF RELIGION AND RELIGIOUS POLICIES IN RUSSIA

Religious policy is a sensitive area because it is intimately connected with a state's history and is informed to a large extent by elusive national consciousnesses formed over centuries. In order to grasp the motivations and full implications of the positivist norms, one must understand the cultural milieu in which they operate. Russian history reflects a version of religious policies that are in sharp contrast to the Enlightenment-influenced Western European and American traditions.(15) The following discussion explores these differences in a systematic way that adds another dimension to the appreciation of the challenges that Russia currently faces.

A. Historical Developments

The following is a brief summary of crucial events that formed Russian attitudes towards religion and the role; of the Orthodox Church. It draws heavily on the political-juridical theory of Russian history.(16)

1. The Early Period (10th-17th Century)

If the Russian legacy contains any trace of religious "pluralism," a pre-Christian worship of local natural forces is probably the best illustration of the early decentralized religious practices of various Slavic tribes.(17) In the tenth century, the Kievan princes' desire to unify the tribal lands prompted them to adopt a common religion as a moral foundation for the emerging state.(18) After a careful screening of several predominant religions, Prince Vladimir was baptized by Byzantine priests in 988 A.D. and ordered his entourage to convert to Christianity as well.(19) Thus, from the earliest times, the foreign Church depended on princes for support and legitimization.(20) The intimate relationship between church and state was further reinforced by a doctrine of caesaropapism(21) peculiar to Greek Christianity. In contrast to Western Catholicism, the Eastern Orthodox Church never challenged the supreme role of secular rulers.(22) St. Sergius' blessing of prince St. Dmitry Donskoy before a decisive battle with the Mongols in 1388 exemplifies the symphonia(23) that characterized the relations between the princes and clerics.

The St. Sergius-Donskoy dynamic also illustrates that the Church extolled civic patriotism as a religious virtue.(24) The Orthodox Church was synonymous with Russian lands and the Russian people as a whole, in addition to being a close ally of the political elite.(25) The people were addressed not as "citizens" but as "rightful worshippers" (pravoslavnye) implying that everyone was Greek Orthodox, and that it was the one and only true religion.(26) The sense of self-righteousness was further enhanced by the notion that Russia had borrowed a doctrinally complete religion.(27) This religious dogma obliterated any need for truth-seeking and fostered six centuries of a virtual absence of internecine conflicts, typical of the Catholic Church at the time.(28)

In the early sixteenth century, the Church and ambitious Moscow princes allied to proclaim Moscow the Third and Last Rome after the fall of Constantinople.(29) In politics, this ideology justified the rapid expansionism of the Moscow state.(30) In religion, it solidified the Orthodoxy's role as a truly national church.(31) Most importantly, it nourished Russian reveries of grandeur and a special mission(32) in which the Church and secular rulers collaborated in strengthening Holy Russia and imparting its most pure religious and national values on all its subjects as well as beyond its borders.

Ironically, Russian expansionism also required the nation to come in contact with different ethnic groups and religions. The centuries of cultural and religious isolationism under the Mongol yoke left Russia completely unprepared to productively accommodate foreign influences.(33) An overriding concern to preserve Russian Orthodox values insulated Russia from European developments.(34) From the earliest times, the Russian state projected an intolerance towards foreigners and religious minorities.(35) as For example, medieval Russian rulers symbolically reflected national xenophobia in the ceremony of washing hands after each official reception of foreign emissaries.(36)

2. The Imperial Period (18th-20th Century)

The reforms and imperial ambitions of Peter the Great (1689-1725) forced Russia to come face to face with the West.(37) Culturally, it was a painful experience because it exposed Russia to competing socio-cultural norms and demonstrated Russian backwardness, especially in education, economics, and technology.(38) In a truly autocratic manner, Peter ordered Russia to modernize in a series of ruthless executive decrees.(39) Peter's ideal was the Polizeistaat.(40) A creature of German political thought, this model presupposed comprehensive regulation of every aspect of public and sometimes private life as a way to mobilize the country's resources and to create "a perfect order" in a vast, multinational empire.(41) The Orthodox Church also became an arena for governmental action. Peter's Spiritual Regulations promulgated in 1721 made the Church a department of the state.(42) The lay official serving as the High Procurator of the Holy Synod replaced the Patriarch as the leader of the Church, marking the end to the institutional independence of the Church.(43) Later, Catherine II solidified administrative control over the Church through sequestration of its lands.(44)

During the imperial period, the rulers exhibited various degrees of intolerance towards non-Orthodox religious confessions.(45) For example, to attract Western entrepreneurs, and to launch strong educational institutions, Peter was well disposed to Protestants and Catholics who enjoyed great personal religious freedom.(46) On the other hand, he persecuted domestic non-conformist movements, such as the Old Believers, and stressed the importance of ideological uniformity and the Orthodox supremacy.(47) Catherine II, Alexander I, and Alexander II also flirted with liberal enlightenment ideals including the freedom of conscience.(48) However, these were fleeting detractions from the predominant Russian policy summarized by Nicolas I in three words: "Autocracy, Orthodoxy, Nationality."(49) As late as 1903, missionary activity by non-Orthodox confessions was still illegal(50) and any conversion from the Orthodoxy resulted in criminal sanctions.(51) Only in 1905, following great revolutionary agitation, did the government issue the law on tolerance, which adopted a more conciliatory posture towards non-Orthodox religious groups.(52)

3. The Soviet Period (1917-1988)

Consistent with Marxist materialism that viewed religion as a dangerous delusion, the Bolsheviks established the first secular state in Russian history.(53) The new scientific atheism was militant and aggressive.(54) Essentially, the Orthodoxy and Marxism-Leninism were the two competing faiths.(55) The Orthodox Church found itself in an unusual position when the Soviet legislation gave the latter an upper hand as the official state doctrine. The laws, passed in 1918 and 1929,(56) stripped the Orthodox Church of its privileged position and placed it on the same level as all other religions.(57) The Soviet state tolerated religions as a "necessary evil," so long as the religious organizations did not interfere with civil society. Religious organizations did not have the rights of a juristic person(58) because religion was an entirely personal matter. Accordingly, the state "relieved" the Church of its properties, its role in education, and other traditional activities.(59) The religious organizations had no redress for this abuse.(60) Even private religious worship was a risky activity, especially during the 1930s repression period and under the Criminal Code of 1960.(61)

During World War II, the Orthodox Church supported the state by making an appeal to national patriotic sentiments.(62) As a reward, Stalin relented in his uncompromising posture towards traditional religions.(63) The state permitted the "election" of a new Patriarch, but in return created two supervising Councils, one for the Affairs of the Orthodox Church and the other to supervise Religious Cults.(64) The Councils,(65) comprised of communist bureaucrats, dictated religious policies. For instance, they ordered five million Eastern Rite Catholics to merge into Russian Orthodox Church,(66) outlawed entire religious denominations,(67) circulated special administrative directives ordering priests to report their congregates' confessions,(68) all while maintaining an appearance that the USSR complied with the international norms on freedom of conscience.(69)

A religious group had to register with the state to exist legally.(70) The official registration requirement was a powerful instrument of state control. When the state perceived certain religious communities as undesirable for any reason, it simply refused to register them.(71) Any activities by such unregistered groups resulted in criminal and civil sanctions to their members.(72) Some religious groups consciously chose not to register to signify their protest against the state control of religious organizations.(73)

Overall, the Soviet legacy did not introduce liberal ideals on the separation of church and state. De jure separation translated into tremendous legal disabilities for religious organizations and did not diminish the pervasive state control of religious activities. Intolerance was still a central feature. The only difference was the substitution of the Orthodox Church with scientific atheism and Marxism-Leninism.(74)

B. Traditional Moral Theory

Unique moral ideals recurrent throughout Russian history led to the development of religious policies that were different from other Western societies. The effect of the 1997 law will depend on the extent to which Russia follows these traditional determinants:

1. Autocracy and All-Encompassing State Control

2. Lack of the Inalienable Rights Concept

3. Great Affinity Between the Church and State

4. Orthodoxy as a Part of Russian National Identity

5. Xenophobia

Historians argued that an overly-developed state mechanism (hypotrophic state) was Russia's way of withstanding foreign invasion by mobilizing the resources of a population spread over vast wilderness. The state's control over its people was absolute, and inalienable individual rights were superfluous. In contrast to Western Europe, where human rights evolved from the rights and responsibilities of feudal classes (or estates) and were extended to individuals during the Enlightenment, Russia never developed the notion of human rights.(75) In Russia, a sovereign could grant or revoke privileges (not rights!) at will.(76) The sovereign was the ultimate source of all benefits and the people's protector.(77) Depending on personality, a ruler could be a reformer and even the most progressive force in society.(78)

The Orthodox Church had a preeminent place because of its collaboration with rulers.(79) Their mission was identical: survival of Holy Russia and the attainment of a special place for its heritage among nations.(80) In an effort to achieve this goal, the Church was responsible for keeping Russia spiritually pure and the state provided for its physical continuity.(81) Although the early Orthodox Church did enjoy some institutional independence, it grew accustomed to persistent state interference in its internal affairs, and doctrinally accepted rulers as a higher authority (caesaropapism).(82) In return, it received a monopoly as the official state religion.(83) Moreover, in a thousand year period, the Orthodoxy became a part of Russian ethnic identity.(84) The Soviet state deprived the Orthodoxy of its privileged position but retained absolute control over religious affairs.(85) Thus, even if Russia witnessed the most radical exclusion of religion from public life, it never experienced a Western-type(86) separation of church and state.

Finally, Russia was very protective of its cultural and religious idiosyncrasies.(87) Accepting the Orthodoxy or communism as the ultimate truth, it had little tolerance for other creeds.(88) Russia had a tendency to indulge in extremes: the utmost moral fervor and idealism did not countenance any compromises and pluralism.(89) Convinced of its moral superiority, and at the same time humiliated and intimidated by more successful(90) foreigners, Russians developed an acute xenophobia that was not conducive to cultural and religious diversity. Religious and ethnic minorities were powerless pawns(91) subjected to both violent pogroms(92) and persecution of the "flirtations with God"(93) by the Soviet regime.

III. INTRODUCTION OF INTERNATIONAL RELIGIOUS HUMAN RIGHTS IN RUSSIA

In the late 1980s Soviet Prime Minister Gorbachev introduced momentous political and social reforms. The role of religion and the Orthodox Church became a prominent issue, especially due to the celebration of the millennium of Christianity in Russia.(94) A great religious revival permeated all strata of society. More people identified themselves as believers.(95) Soviet writers, artists, and filmmakers openly pursued religious motifs.(96) In popular culture, religion was no longer a sign of cultural and social backwardness, but of "civic boldness"(97) and liberalism. People hoped that the newly-found faith would bring moral, spiritual, and ethical salvation as well as material rewards.(98) Given its history, the Orthodox Church expected to monopolize this spiritual awakening.

Significantly, Gorbachev admitted the mistakes with handling religious affairs in the past and promised to enact new legislation on freedom of conscience that would meet the highest international legal standards in regard to both individual rights and the status of religious organizations.(99) Although the Soviet Union always professed a respect for international instruments on human rights, this was the first time a Soviet leader actually intended to enforce international norms. The newly-independent Russia continued to follow liberal international norms, and enacted domestic legislation consistent with these practices. The next section elaborates on the early impact of international religious rights principles in Russia.

A. The Sources and Standards of International Law on Religious Human Rights

Russia inherited all Soviet obligations under international treaties and agreements in the area of religious human rights. Several instruments provide essential standards in this area including: the International Covenant on Civil and Political Rights;(100) the Convention for Protection of Human Rights and Fundamental Freedoms;(101) the U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religious Beliefs;(102) and the Concluding Document of the Vienna Follow-Up Meeting of the CSCE Representatives.(103)

In the international regime, every human being has a right to enjoy personal freedom of thought, conscience, and religion. This includes a right to have, adopt, or freely change religious beliefs, and to profess any religion either individually or in community with others.(104) These guarantees of personal (internal) freedom of conscience are absolute and inalienable. On the other hand, a state can circumscribe the right to manifest one's religion or beliefs in worship, teaching, practice, or observance.(105) However, any such limitations must be strictly necessary to protect an exhaustive list of recognized interests in a democratic state: public safety and order, health, morals,(106) and the fundamental rights and freedoms of others.(107) The European Court of Human Rights has further defined the scope of such limitations when it ruled that any interference with broadly construed religious rights must be "motivated by `a pressing social need' and `must be proportionate to the legitimate aim pursued.'"(108) For example, the Court found that the Greek government failed to meet this exacting standard when it placed significant constraints on proselytizing efforts by Jehovah's Witnesses.(109)

Another important principle in international religious human rights is the equality of all persons before the law and the prohibition of discrimination based on religion.(110) The scope of this provision is subject to debate. If religion takes on its broadest meaning,(111) a state must treat both individuals and religious institutions equally, regardless of denomination. The Vienna Concluding Document buttresses this reading when it links equal rights for religious groups to individual freedom to profess any religion. For example, the Document calls on states to take effective measures to eliminate discrimination against individuals or communities exercising religious beliefs, to foster a climate of mutual tolerance and respect, and to grant upon request the recognition of legal status to religious groups.(112) Such status affords numerous accessory rights such as the ability to: solicit and receive voluntary contributions; have independent governing structures; have access to real property for assembly and worship; consult with other religious institutions; have an opportunity to provide religious education and training; and to produce, import, and disseminate religious publications and materials.(113) Moreover, the Human Rights Committee explicitly voiced its concerns about any tendencies to discriminate against newly-established religions or religious minorities.(114)

Nevertheless, there are numerous permutations(115) on church-state relations in Europe, and most of them reflect the deep historical roots of preferential treatment for one particular religion. The European Court of Human Rights explicitly assented to the proposition that the State Church system does not, in and of itself, violate Article 9 of the Convention,(116) and has repeatedly showed institutional bias in favor of traditional religions.(117) Although religious policies of certain Western European states also evoked the sharp criticism of observers,(118) the specialists agree that cooperative and endorsed models of church-state relations generally achieve international religious liberty standards.(119)

B. Predominant Paradigms of Church-State Relations in Europe

Due to geopolitical and developmental differences, European notions of the role of church and religion usually differ from those in the United States. With the exception of France, European models of church-state relations are more similar to the Russian tradition than to the American First Amendment ideals. Thus, even though the 1997 law was shocking to American religious rights analysts, its thrust is consistent with the European models. The next section describes several of these models.

1. Cooperationist--Germany

Germany is the prime example of a country in which the secular state cooperates with religious organizations. The State provides these organizations with material and other types of support.(120) Religion also has a distinct place in civil society, and the state sponsors religious education.(121) The state does not directly endorse any religion, and officially all religions are equal and entitled to the same state support.(122) However, this model raises practical problems of inadvertent or even intentional state preferences for certain religions and excessive intrusion into religious affairs.(123) For example, the practice of state recognition of some beliefs as religious and others as not meriting such status led to abridged rights and discrimination--especially against new confessions.

Scholars have suggested that Russia needs to adopt certain aspects of the cooperationist approach in order to redeem the damage to religious institutions by the Soviet regime. They recommend a transitional period during which the state will restore expropriated properties to religious organizations.(124) The risk is that Russian traditional moral theory will pervert this paradigm, and the state will indulge in impermissible favoritism and interventionism.

2. Endorsement--Spain

Historic state ties to one predominant religion may lead the state to endorse that religion while still proclaiming separation. Spain, a bastion of Catholicism, provides for such special recognition of this religion.(125) In its most enlightened form, this model reflects national pride when it recognizes a special historic place for a particular religion without providing further advantages to it. When a state assures equal protection to all religious groups, it balances national moral needs with the international principles of religious equality. However, in many states, a symbolic endorsement is inseparable from an actual preservation of prerogatives of formerly established religions under a liberal disguise.(126) In Russia, the endorsement model would accommodate Russian national sentiments, but Russian history alerts one to potential gross abuses of this arrangement. The current political strength of the Patriarchate(127) only exacerbates the worst suspicions of the Orthodox monopoly.

3. Established Church--England

There are variations within the established church model ranging from the state enforced monopoly of one religion to the most democratic English arrangement. In the English experiment, the Anglican Church is historically inseparable from the state and has a prominent place in all spheres of public life.(128) However, the state also guarantees equal treatment of all other religious beliefs. This model is not desirable for Russia where there is no culturally ingrained respect for individual human rights, and the record of the established Church period abounds with examples of egregious inequality and intolerance.

D. Late Soviet and Early Russian Progressive Religious Legislation (1990-1993)

The above-mentioned international principles of religious rights informed late Soviet and early Russian domestic legislation. In the Russian legal scheme, the international norms are self-executory because Russia subscribes to monism in the areas of political and social human rights.(129) Moreover, the enactment of domestic legislation consistent with the international norms further enhanced their status. The concept of universal human rights emerged as a clear rival to the traditional Russian moral history.

1. The Religious Laws of 1990

Gorbachev fulfilled his promise to match the highest religious human rights standards with a federal "Law on Freedom of Conscience and Religious Organizations" promulgated in 1990.(130) The law closely tracked the language of the Covenant and the Convention in defining the freedom of religion. Specifically, it adopted the international bifurcated approach with an absolute freedom of personal convictions and very narrow limitations on the exercise of religion.(131) The law retained the separation between church and state, but permitted religious organizations to become juristic persons upon registration.(132) As legal entities, religious organizations received crucial rights such as the ability to own property, to provide religious education, to distribute religious literature, and many other rights denied to them during the Soviet times.

At the same time, the Russian Federation passed its own law "On Freedom of Religion."(133) Russian law contained an even more impressive list of liberal provisions(134) protecting religious freedom. The Preamble recognized freedom of conscience and an opportunity to exercise it as inalienable rights.(135) The law explicitly extended these religious rights, including the right to form religious organizations, to foreigners. The law also provided for a more equitable registration procedure and a process for judicial appeal if the state refused to register an organization.(136) In sharp contrast to Soviet laws, the Ministry of Justice could reject a registration application only if it failed to meet certain basic requirements specified in the law or if the organization was otherwise unlawful.(137) These easy, mechanical requirements led to the registration of 9,489 religious associations of various denominations by September 1993.(138) Even by the most exacting standards, before the collapse of the USSR, the Russian Federation had one of the most progressive religious policies in the world.(139)

2. Religious Human Rights and the Russian Constitution of 1993

The newly-independent Russia continued to build an exemplary legislative and practical record in the field of religious human rights. Unable to reach a political compromise to promulgate a new Constitution, the Parliament speedily passed the Declaration of Rights and Freedoms of an Individual and Citizen in late 1991.(140) Although not legally binding, this document demonstrated dedication to the democratic concept of inalienable human rights, including the right to freedom of conscience in its broadest sense.(141)

Finally, the Constitution of the Russian Federation, adopted by the popular referendum in December 1993, marks the apex in Russia's quest to implement the norms derived from international human rights sources. The Constitution radically departs from the traditional moral theory, and treats religious rights in the most liberal way. Article 14 proclaims Russia a secular state, and states that "no religion may be established as the State religion or as obligatory."(142) The article further states that "religious associations shall be separate from the state and shall be equal before law."(143)

The Constitution also embraces an expansive(144) view of religion and individual religious liberties. For example, Article 28 affirms each person's right to "freedom of conscience and religion, including the right to profess individually or collectively any religion or not to profess any religion, and freely to choose, possess or disseminate religious and other convictions and act in accordance with them."(145) The specific freedom of religion is buttressed by a general freedom of thought and speech provision in Article 29.(146) Article 29 also prohibits propaganda that arouses religious hatred or preaches religious supremacy.(147)

However, there is a caveat at the end of the Human and Civil Rights Chapter of the Russian Constitution. Article 55 allows limitations(148) on these freedoms by federal law only to the extent necessary for the protection of the basis of the constitutional order, morality, health, rights and lawful interests of other people, and for ensuring the defense of the country and the security of the state.(149) Article 56 deals with a state of emergency and an abridgment of certain liberties for that reason. However, the state may not restrict freedom of conscience, as defined in Article 28, even in such emergency situation.(150)

IV. THE 1997 LAW "ON FREEDOM OF CONSCIENCE AND RELIGIOUS ASSOCIATIONS"

The tremendous social and economic changes in Russia over the last several years have generated a sense of instability that conservatives utilized to introduce restrictions on religious liberty. Ironically, the former rivals, Orthodox Church and communists, allied as the primary sponsors of the new religious legislation.(151) This section begins with an exploration of the domestic imperatives that caused Russia to deviate from its international obligations and constitutional guarantees. The potency of these forces will determine the interpretation of the new law and the scope of its actual enforcement. The remainder of this section analyzes the text of the new law through both normative and hypothetical discussions. In addition to explaining the structure of the law and its potential effects on the religious rights of individuals and religious organizations, the discussion highlights inconsistencies between the new law and the norms of constitutional and international law. These norms can serve as the basis for legal challenges in Russian and European courts.

A. The Hardships of Religious Pluralism

The surge of excitement that initially accompanied the liberal freedom of conscience legislation dissipated in light of numerous socio-economic problems that Russia faced as it struggled to build a democratic society and a market economy.(152) Unaccustomed to religious pluralism, Russians were ill-equipped to deal with a "market place of faiths"(153) with each confession offering a long awaited spiritual and ethical renewal. At the same time, Russia also was widely exposed to a "nihilistic consumer oriented mass culture imported from the United States and Western Europe"(154) that many viewed as an antithesis to spiritual life.

Given the historic role of the Orthodoxy and its appeal to a vast majority of Russians, the Orthodox Church expected to be a bellwether in the religious renewal.(155) However, there were significant internal and external impediments to fully realizing this ambition. For example, the Orthodox Church suffered from the stain of collaboration with the Soviet regime,(156) and from assertions of independence by regional branches of the Russian Orthodox Church in the newly-independent states(157) and by other Christian denominations forced under the aegis of the Moscow Patriarchate by Soviet authorities. Although the Russian religious legislation provided for a gratuitous transfer of sequestered properties back to the Church, the Patriarchate had no institutional structures for channeling resources into religious education and proselytizing efforts.(158) At the same time, the Church faced an increased competition from foreign missionaries who were experienced and possessed considerable resources for mass evangelization.(159)

In addition, the easy registration provisions in the 1990s led to a proliferation of cults that preached violent, socially destructive doctrines.(160) Many pseudo-religious entities obtained an official status allowing them to perpetuate spiritual coercion and outright fraud.(161)

B. The Responses to Challenges in 1993

The criticism of the new religious "anarchy" took many different forms ranging from paranoid xenophobia, espoused by religious and secular nationalists,(162) to a more centrist position adopted by the Moscow Patriarchate and some prominent politicians.(163) The Orthodox Church appealed to the state to restore religious equilibrium by enabling it to compete with all other confessions on `an equal basis'. For the Orthodox Church, the concept of equality had a special meaning that diverged from international principles of separation between church and state. The Church lobbied for effective

restraints on foreign missionary activity in order to mobilize its resources before the "onslaught of destructive religious pluralism."(164) According to Patriarch Aleksii II, considerable economic and social problems prevented people from freely choosing a religious confession, especially when they were "bribed" and "pressured" by the outsiders.(165) This position presupposed that the Orthodoxy was the right religion for every ethnic Russian, that people were unable to make an informed decision for themselves, and that the state had a stake in assisting the Patriarchate's paternalistic efforts in make people realize their destiny.(166) Consistent with this vision, the equality of confessions meant an endorsement of the Orthodox Church. Interestingly, the establishment model did not suit the Patriarchate because it was wary of pervasive institutional control by the state since the late seventeenth century.(167)

In August 1993, the protectionist momentum reached its apogee when the legislature passed an amended version of the 1990 Freedom of Religion law. Supported by a vast majority of the deputies,(168) this bill evoked sharp criticism from human rights advocates and religious minorities because it facially discriminated against non-traditional religious communities, especially those with foreign ties.(169) It also contained numerous provisions allowing for increased state interference in religious affairs through a registration mechanism.(170) The bill introduced multiple disproportionate limitations on the freedom to exercise one's beliefs.(171) President Yeltsin voiced his concern with the spiritual renewal of Russia and the importance of traditional religious confessions but refused to sign the bill because it contradicted international legal agreements and compromised the "equal right of individuals to enjoy freedom of conscience and religion regardless of their possession of Russian citizenship."(172)

The direction of religious policies remained uncertain for the four years following the dissolution of the Supreme Soviet by President Yeltsin in September 1993.(173) Seemingly, Russia embraced an enlightened position consistent with the most liberal strand of international principles on religious human rights and enshrined these ideals in the Russian Constitution adopted in December 1993. On the other hand, the new Parliament was even more ideologically polarized(174) than the previous one, and therefore, the status of religious pluralism in Russia remained in jeopardy.

C. Resuming the Religious Policies Reform in 1997

The concerns that led to proposing protectionist religious legislation in 1993 resurged in the new draft of the "Law on Freedom of Conscience and Religious Associations" in 1997.(175) Both houses of the Russian Parliament enthusiastically supported and passed the new version of the law.(176) This enthusiasm was in spite of the experts' warnings that the law violated essential constitutional provisions and international obligations in the area of religious rights, especially in connection with the principle of equality of religious associations. Observers pointed out that the law was superfluous because the existing criminal legislation adequately safeguarded society from destructive activities of pseudo-religious groups and random acts of violence perpetrated by individual fanatics.(177) They criticized the new law for allowing the state to prejudge religious associations, and to place institutional and ad hoc bureaucratic restraints on the activity of non-traditional religious communities.(178) The thrust of the law exhibited blatant favoritism of the Orthodox Church. It reinforced the impression that religious protectionism rather than permissible concerns such as public safety, health, constitutional order, or rights of other people, was the primary motivation for restricting religious liberty.(179)

Under persistent international pressure,(180) President Yeltsin vetoed the bill, referring to it as unconstitutional and inconsistent with Russian international obligations.(181) However, he promised to sign the bill if certain objectionable features were removed,(182) As the West celebrated a precarious human rights victory, the presidential staff busied itself with reaching a rapprochement with the Patriachate(183) and ensuring token support from other major religious denominations.(184) The resulting version of the law was "music to the Parliament's ears"(185) because it retained the system of discriminatory treatment of religious groups and even contained more restrictive provisions than the parliamentary version.(186) Both the Duma and the Federation Council passed the law with lightning speed and by an overwhelming majority,(187) As the world watched with amazement, President Yeltsin signed the bill into law in September 1997. The brief period of respect for the international standards of religious human rights, had eclipsed and a new era began, inspired by traditional Russian moral theory.

D. The Structure and Substantive Highlights of the New Law

The following discussion tracks the provisions of the new law and identifies potential problems in its application as well as inconsistencies with pertinent constitutional and international law provisions.(188) Subsequent legal challenges to the structure and enforcement of the new law will likely evoke these concerns.

1. The Preamble

As the most ideological portion of the new law, the preamble proved highly controversial from the beginning. The public debate was understandable, because in a country lacking the rule of law tradition, the spirit of a law, usually expressed in its preamble, determines its interpretation and application.

The current preamble has four major elements: 1) confirms the right of each individual's freedom of conscience and freedom to profess a religion (veroispovedanie),(189) and assures personal equality before the law regardless of one's convictions; 2) proclaims Russia a secular state; 3) ranks religions in terms of their historical significance, and 4) aspires to promote mutual tolerance of and respect for religious rights. The first, second, and fourth of these objectives are laudable and consistent with the international principles of religious human rights. A concern, however, is that such aspirations are only diluted versions of a corresponding portion of the 1990 law that explicitly proclaimed freedom of conscience and religion as an inalienable right of each individual guaranteed by the Constitution and by Russian international obligations.(190)

The most controversial part of the preamble is the ranking of the confessions in terms of their importance to Russian national identity. Consonant with the traditional moral theory, the earliest draft of the law placed Russian Orthodoxy at the top of the hierarchical ladder of religions.(191) Within a month, other major traditional religions, such as Islam,(192) Judaism, and Buddhism found their way into the preamble. Originally, Catholicism and Protestantism did not make it on the list, and the international communities associated with these denominations exerted great pressure on Yeltsin to veto the bill. In retrospect, observers criticized the narrow, superficial focus of these international lobbying efforts(193) and doubted the propriety of overt political pressure from abroad.(194) The present law accounts for the above-mentioned concerns when it adopts the following scheme: Orthodoxy is recognized for its special role in Russian history and as the guiding spiritual and cultural force.(195) The law then announces "respect" for Christianity,(196) Islam, Buddhism and Judaism as well as other unnamed religions that "make up an integral part of historical legacy of the peoples of Russia,"(197) i.e., traditional religions.

Significantly, the preamble alters the conceptual model of church-state relations in Russia. Since 1990, a cooperationist dynamic has existed between the state and various religious organizations. Although de facto the Orthodox Church received the greatest portion of state largesse(198) and archived the greatest public prominence,(199) it was legally on the same level with all other religions. The new law undermines the former arrangement by providing a special endorsement of the Orthodoxy. Although the principle of denominational equality inspires the international religious rights regime, many other members of the Council of Europe have a favored religion in either the endorsement or establishment models.(200) Therefore, a special recognition of the Orthodox Church does not appear to contradict international practice.

The more serious problem is the distinction between traditional and non-traditional religions which is apparent in the preamble and which is perpetuated in the substantive provisions of the new law. In light of the Russian ideal of Orthodox supremacy, intolerance, xenophobia, and radical nationalism, such special recognition of certain religions in the preamble raises a strong possibility that the endorsement experiment in Russia will not be benign.(201) Thus, the preamble symbolically paves the way for abuse of the rights of non-traditional religions excluded from the category of "respected" and for discrimination against religions appearing lower on the list. Potential gross violations of the rights of religious minorities and the equality of the confessions principle compromise Russia's record of democratization and adherence to international human rights standards.

2. General Provisions

The general provisions on the status of the legislation appear in Chapter I, Articles 1-2. Article 1 defines the broad scope of the law as regulating norms in the area of human and civil rights, freedom of conscience and religion, as well as the legal status of religious associations. The language extending religious rights to "a human being and a citizen" (prava cheloveka i grazhdanina) is awkward. The spirit of the failed 1993 amendments suggests that it is possible that one has to be a Russian citizen to enjoy religious rights. Such a reading contradicts constitutional(202) and basic international principles(203) which imply that all individuals are entitled to freedom of conscience regardless of their citizenship. To avoid this undesirable result, the latter qualifier may be viewed as redundant. Yet, the substantive provisions which treat citizens and foreigners separately demonstrate that the choice of language was deliberate.

The legislation regulates not only individual religious rights but also religious associations. This type of state regulation of religious entities is common in Europe, even though it sharply contrasts with the treatment of religious communities in the United States.(204) Still, whereas in most democratic countries the registration of a group is a mere formality prior to recognition as a juristic person, the new law reincarnates the old Soviet legacy of registration as a formidable tool in the hands of the state to control the activities of religious communities, and to perpetuate distinctions and inequalities among them.

Article 2(1) identifies the Constitution, the Civil Code, the present law, and normative acts issued in accordance with them, as the core of federal religious legislation that preempts any local laws.(205) Unlike the Constitution (Articles 15(4), 17(1) and (18)) and the 1990 law, which explicitly identified international norms as the highest law in the area of human rights), the new law incorporates international standards only indirectly. Article 2(3) states that "nothing [in the law] should be interpreted as a diminution or limitation of human and civil rights to freedom of conscience and religion guaranteed by the Constitution ... or derived from (vytekayusih)the international treaties." Thus, international treaties are no longer an independent source of self-executing legal norms. Instead, they have only an indirect effect as a method to assess Russian religious policies and make sure that interpretation and application does not fall short of international standards.

3. Personal Freedom of Conscience and Religion

In contrast to the 1990 law, half of which was devoted to individual religious liberties, the new law disposes of this task in a single article that defines individual religious liberty as "the right to profess individually or collectively any religion or not to profess any religion, and freely to choose, change, possess and disseminate religious and other convictions, and act in accordance with them."(206) Although this language tracks Article 28 of the Constitution, it neither lists the specifics(207) of the right, nor ties it to the general freedom of thought and expression provisions. This is a fatal omission because the two freedoms complement each other, and both are necessary to provide for the solid protection of religious liberties.

The law explicitly grants the same personal religious liberties to foreign citizens and stateless persons as to Russian citizens.(208) However, the provision assumes an ominous tone when it connects the rights to liabilities for violating the present law. Thus, the law confers jurisdiction over foreign persons for all violations pertaining to individual religious freedom and activities of religious associations. For instance, if a court finds that a foreign missionary "induces a minor to join a religious association,"(209) the missionary will be prosecuted under Article 3(5) of the law.

Article 3(2) allows the State to limit freedom of conscience by federal laws, but only to the extent necessary to protect constitutional order, morality, health, rights of third persons, and state security.(210) The permissible bases of limitations parallel those in the Constitution (Article 55) and generally follow the accepted norms of international law, with one important distinction. In the international regime, a state can limit only the exercise of religion and not one's personal beliefs.(211) In Russia, the language of the statute permits the State to restrict personal beliefs as well as their manifestation.(212) Practically, the former limitation is almost impossible to administer because a person does not have to identify his religious beliefs.(213) Nonetheless, such textual sloppiness is disturbing, given Russia's record of personal repression and its aim to be governed by the letter of the law.

Finally, Article 3 contains several protective provisions. For example, Article 3(3) prohibits the establishment of advantages, limitations, or other types of discrimination depending on one's attitude toward religion.(214) Article 3(4) confirms equality of all citizens(215) before the law in all spheres of life regardless of one's religion.(216) Article 3(6) prohibits intentional insults to personal religious feelings, including the propaganda of religious supremacy, threats to destroy personal property, and other acts that prevent one from realizing personal religious rights.(217) Article 3(7) guarantees the secrecy of confession.(218) All these provisions are specific responses to abuses of religious liberty in the pre-Revolutionary and Soviet times.(219) The effectiveness of these legal norms depends on their ability to influence the culture of civil society and to neutralize deep-rooted intolerance and violence.

4. The Status of Religious Associations

The new legislation creates an intricate hierarchy of religious associations. Such differentiation between religious communities as well as excessively burdensome registration requirements and procedures are the most controversial parts of the law and will constitute the gravamen of any constitutional challenge to it.

i. Separation Between Church and State in a Cooperationist Mode

Article 4(1) confirms the principles of separation between church and state, the non-establishment of religion, and equality of religious associations.(220) However, the entire structure of the law consistently undermines equality of religious associations.(221) Article 4(2) explicitly incorporates constitutional principles, and further defines the meaning of separation. However, the provision is silent about equality.(222)

Article 4(3) envisions a cooperationist relationship in which the state provides religious organizations with a preferential tax treatment as well as special funding for restoration and maintenance of cultural objects, and even for secular subjects taught at religious schools.(223) It treats religious employees as state employees for retirement purposes,(224) and encourages public educational institutions to form agreements with religious organizations to teach religious subjects after regular school hours.(225) Also, religious organizations may request that the State observe religious holidays as non-working days.(226) Still, Article 4(4) prohibits public religious rituals and ceremonies during the exercise of State functions.(227) A strict enforcement of this provision is unlikely because many prominent politicians continue to use their affiliation with the Orthodox Church as a public relations tool.(228) The same is true for the provision that religious associations may not participate in the functioning of state bodies and political parties.(229) In practice, the prohibition may target only minority religions, and is unlikely to reduce the great influence of the Orthodox Church over the political process.

ii. Religious Associations

Article 6(1) defines religious associations as voluntary associations of citizens or lawful aliens formed for the purposes of jointly professing and disseminating a faith (vera)(230) and exhibiting any of the following traits: a creed (veroispovedanie), worshipping or engaging in other religious rituals and ceremonies, or conducting religious instruction of its followers. All religious associations are subdivided into religious organizations and religious groups.(231) This is a crucial classification because groups' rights are a fraction of those enjoyed by some organizations.

Article 6(4) typifies numerous instances of vague restrictions on the activities of religious communities. The provision tersely forbids the creation of a religious association if "its purposes or actions contravene the law."(232) This language invites an improper intrusiveness by the state throughout the process of formation and functioning of religious associations. It presupposes that local authorities have wide discretion to investigate and assess the purposes and activities of religious associations. Importantly, in the international religious rights context, a religious community is presumed innocent until proven guilty.(233) The new Russian law reverses this presumption when it targets aspirations of religious associations as a starting point for official scrutiny. In this scenario, administrative abuse is practically inevitable.

iii. Religious Groups

Members of religious communities in Russia may opt to become a religious group if they wish to avoid the complicated registration process.(234) However, a religious group does not receive the status of a juristic person.(235) Article 7(3) limits the rights of religious groups to conducting worship sessions and other religious rites and ceremonies, and to teach religion to its followers.(236) However, the groups do not have to file reports with the state, unless they anticipate transforming themselves into religious organizations.(237) The state may still monitor the creation and activities of groups under Article 6(4) because they are a form of religious association.(238)

The religious group classification is an extraordinary and, most likely, unconstitutional legal creature. The circumscribed rights of groups fall infinitely short of the international liberties of religious communities.(239) The status of groups is similar to that of religious institutions in the Soviet period when religion was tolerated as long as it was kept within the "four walls" of a state-owned building. The experts on religious human rights point out that a legal entity status for religious communities is a prerequisite to genuine freedom of conscience.(240) Russian drafters may argue that the law does not force religious associations to organize themselves as groups, and that juristic personality is available to communities which elect to become religious organizations. In practice, some associations will be forced to operate as groups(241) upon their failure to pass the rigorous registration requirements

A comparison of the fights of groups versus organizations highlights an egregious inequality between these two forms. Granting extensive fights to organizations, derived from their status as legal entities, and only minimal fights to groups, contravenes Article 14(2) of the Russian Constitution which provides for equality of religious associations before the law.(242) It is also internally inconsistent with Article 4(1) of the instant legislation which tracks the constitutional equality language.(243) Finally, the group/organization dichotomy discriminates against non-citizens because only citizens can form religious groups.(244) The only justification for this unconstitutional(245) distinction is the immediate threat of foreign cults that may choose to operate as religious groups and thereby prevent the state from effectively regulating their activities. Still, the problem of whether the scope of the discrimination is proportionate to the danger of foreign cults remains especially because these foreign cults co-exist with radical domestic cults. In short, this provision appears to be another instance of Russian xenophobia.

iv. Definition and Types of Religious Organizations

A religious organization is a type of religious association formed by citizens or lawful aliens that gets recognition as a juristic person.(246) Depending upon the geographical reach of activities, all organizations are subdivided into either local or centralized ones.(247) A local organization must consist of at least ten members over the age of eighteen who reside in the same locality.(248) If at least three local organizations unite under the same charter, they can apply for recognition as a centralized religious organization.(249) A centralized religious organization can generate accessory religious organizations under its charter.(250) The newly-formed accessory organizations can perform a variety of tasks connected to the functioning of the primary centralized organization.(251)

Articles 8(5) and 8(8) are symbolically noteworthy for their treatment of the naming religious organizations.(252) In response to an alleged proselytizing fraud, organizations must now use their full name while engaging in activities.(253) The word "Russia" and all its derivative forms can be used only by a narrow class of traditional religions that have legally operated in Russian territory for at least fifty years prior to current registration.(254) This provision is an excellent example of the protectionist spirit of the law that is directed against foreign religions and against some non-conformist groups within the major Russian confessions that were outlawed by the Soviet government.(255) The application of this provision creates an inconvenience by requiring evidence of the status of a given confession throughout Russian history.(256) Although the naming classification does not have any tangible consequences, except for an ability to set up offices of foreign religious representatives under its auspices,(257) it is a potent psychological tool for alienating believers who do not belong to "Russian" churches. In Russia, where religion, ethnicity, patriotism, and social standing are interlinked, this provision is of great concern. Thus, the potential effects of Article 8(5) can raise constitutional challenges under Articles 14 and 19(2).(258)

v. The Registration Process

The registration process and its effects on religious organizations is one of the most problematic parts of the instant legislation. In particular, excessive complexities throughout the registration process, the omnipotence of the registration agencies, pervasive state supervision and control of subsequent activities by religious entities, and an operational distinction between the full and limited-power religious organizations, are the most troubling features of the law.

The hypothetical situations described below are designed to illustrate the application of the law. First, the Patriarchate desires to establish an Orthodox seminary in Tver. Second, a Hare Krishna community tries to register as a centralized religious organization in Tver. It submits applications along with two other sister-communities in Moscow and Yakutsk. Third, several Mormon families, some from the United States and some Russian citizens, would like to re-register their existing local organization in Moscow as required by the new law.

All believe that they qualify as religious associations under Article 6(1). They also prefer the status of an organization to that of a religious group because of the severe restrictions on the latter type of associations. Thus, they need to re-register in order to become organizations and to acquire their legal entity status. What do they do next?

First, each must prepare a charter.(259) Article 10(2) lists the information that should be included in the charter.(260) In addition to basic requirements such as the name and location of an association, the charter must also elaborate its purposes, prospective activities, structure, and sources of income.(261) It must contain a procedure for amending the charter and meet several other requirements in order to allow the registration agencies to monitor its activities and to intrude if an organization departs from its charter.(262) In fact, Article 25 (1-2) explicitly authorizes the registration agencies and the procurator to supervise organizations' compliance with their charters on a continuous basis.(263) The extensive scope of such supervision may violate separation between church and state. Furthermore, the law is adamant about registering any amendments to charters(264) and updating information included in the register of juristic persons within one month of discovery.(265) Systematic activities that contravene the purposes with which an organization was created may lead to disbanding pursuant to a complaint by the registration agency.(266)

The next step will differ for each of the three associations. The Orthodox seminary will swiftly register as a member of the largest centralized registered organization, the Russian Orthodox Church. In theory, the seminary will have a choice of registering as a more independent local organization or remaining a part of the centralized organization that endows it. In the former scenario, it will have to file a petition with a local registration agency established under the auspices of the Ministry of Justice in the federal constituent area (sub'ekt) where it plans to operate.(267) The application must contain a confirmation note from the centralized "parent" stating that the seminary was indeed within its structure prior to the application.(268) Most likely, the seminary will choose to remain within the structure of the centralized organization that creates it. The seminary will then submit its petition, charter, and other documentation(269) to the federal registration agency. The agency will issue its registration decision within one month.(270)

The Hare Krishna's situation will be much different. Despite its presence in the USSR since the 1970s, it was outlawed by the Soviet regime.(271) As a result, it never received official registration prior to 1990. In order to form a centralized organization, the associations in Moscow, Yakuts, and Tver will have to present the federal registration agency with three charters confirming their status as local religious organizations. This facially benign requirement is the most formidable obstacle to non-traditional religions.

Under the 1997 law, all religious entities recognized under the 1990 law will have to re-register. Article 27(4) mandates re-registration for all organizations by December 31, 1999, under the penalty of liquidation by a judicial order.(272) The Krishna associations in Moscow, Yakuts, and Tver will have to obtain new registration as local organizations, and then submit these three approved charters for re-registration as a centralized organization. However, in order to qualify as bona fide local organizations, the applicants will have to furnish "a document that confirms the existence of that religious group on the given territory for no less than fifteen years."(273) This is one of the most problematic and ambiguous provisions in the law. It is unclear how and from whom a religious association can get such document. Although the language does not require a local group to have fifteen years of prior legal existence as a registered religious entity,(274) it is practically impossible to imagine how anything other than a certificate of such official existence will suffice. For Hare Krishna this requirement is particularly burdensome because fifteen years ago the USSR simply refused to recognize its existence. Will the Soviet press materials of the early 1980s ridiculing Hare Krishnas be accepted as a proof of actual existence? Will the imprisonment of its leaders under Article 227 of the Soviet Penal Code--infringement upon personal rights under the guise of performing religious rites--or their confinement to psychiatric institutions be sufficient to demonstrate their existence? All of these questions are left to the discretion of the registration agencies. The decision is in the hands of bureaucrats influenced by a tradition of intolerance, xenophobia, and scientific atheism.

Acknowledging this high burden of proof, the law creates a special niche for confessions not registered during the Brezhnev era. Article 27(3) "graciously" extends the status of a juristic person to such organizations, but with substantially diminished rights and a mandatory re-registration each year until they reach the fifteen-year "age of maturity."(275) This is the most flagrant violation of constitutional and international norms of equality of religious associations before the law, as it uses the policies of the Soviet era to arbitrarily differentiate between religious organizations. This provision also directly conflicts with Article 54 of the Constitution which guarantees that laws establishing or heightening responsibility cannot be retroactive.(276)

Depending upon the officials' attitudes, Hare Krishnas may not even be able to avail themselves of this limited organization status. Article 27 prohibits registration if an organization exhibits any traits for which it can be liquidated under Article 14(2).(277) For instance, engaging in rituals found detrimental to public health or morality, or improperly using drugs, psychotrophic devices, and hypnosis during their ceremonies, are some; of the grounds for liquidation.(278) The Hare Krishna group will have to wait for up to six months while the registration agency conducts a review (ekspertiza) of its charter and of its general profile and practices.(279)

Mormons will encounter many of the same problems as the Hare Krishnas. They will have to prove their fifteen-year existence in Moscow in order to obtain the local legal entity status. Unlike the Hare Krishna, however, the first Mormons did not come to Russia until the early 1990s, so they will not encounter the same difficulties establishing their existence.(280) Thus, there will be no imbroglio in establishing its existence. Mormons will also have to submit to a six-month examination period throughout which a local registration agency will examine its charter, the charter of its foreign parent-organization,(281) and make sure that Mormons are not subject to liquidation under Article 14(2). The agency will have a great deal of discretion during the entire process. If it finds that the Mormon church should be liquidated, the case will automatically go to court where the religious community will appear as a defendant.(282) If the agency re-registers Mormons, they will receive the status of a religious organization with limited rights.(283) They will also be required to re-register every year until they can prove their fifteen-year existence in Russia. These clearly disproportionate limits on freedom of religion, even in light of a perceived danger to public health or national security, clearly contravene constitutional and international norms.

If the agency denies registration to Mormons and the court agrees with such a determination, the Mormon church cannot exist as a religious organization, even as one with limited rights. It probably cannot operate even as a religious group, due to the likelihood of a ban under Article 14(2) and 14(5) of the law.(284) Mormons may have some special rights under Article 13, which regulates representative offices of foreign religious organizations. Article 13(3) leaves the questions of registration and the opening and closing of such offices to be addressed through regulations.(285) Still, Article 13(2) clarifies that these outposts of foreign religions are not deemed religious associations by the law.(286) Accordingly, they can not engage in cultic or other religious activity.(287) The function of these offices remains unclear and presents another example of objectionable differentiation between religious rights of Russian citizens and foreigners.(288)

vi. Grounds for Denying Registration

As Soviet history demonstrates, authorities had unlimited discretion to deny registration to religious communities. The new law aims to prevent such rampant administrative abuse in Article 12(2) and prohibits non-registration due to undesirability (nezelesoobraznost) of forming a religious organization.(289) This provision also requires that a written explanation for the denial be given to the applicant.(290) Most importantly, it gives religious organizations a right to appeal the denial or the agency's failure to make a decision within the established time (uklonenie) in court.(291) This is the only explicit conferral of the right to sue to religious organizations in the entire body of the new law.(292)

Article 12 sets out a list of five grounds that agencies may use to deny registration.(293) Three of them focus on the mechanics of the application.(294) The two remaining grounds are more problematic. Article 12(1) allows an agency to deny registration if it finds that the submitted charter contravenes constitutional or other federal norms.(295) The registration officers have broad discretion to scrutinize the charter for such flaws.(296) However, the agency must then provide specific references to the allegedly violated constitutional or legislative provisions.(297) This thoughtful requirement will help to contain potential abuse and give applicants a chance to reform their charter or even to submit a particular issue to court for review. The liberal inclinations of the law cease at this point.

Most troubling, denials of registration will likely occur due to non-recognition of applicants as religious organizations. Conspicuously absent from the text of the law is any method to determine whether an organization qualifies as religious and any information about the person authorized to make this decision. What if a liberal minded official in Yakutsk thinks that Hare Krishna is a religion and one in Tver views it as a totalitarian non-religious sect? Russia does face a serious problem of sham religions and dangerous sects, but this problem does not justify the denial of registration to a legitimate group under the pretext that it is not a religion. The disproportionality of this protective measure is even more obvious because the State can protect itself through the law's liquidation mechanism, which is based on actual conduct of religious communities.(298) It is unfortunate that Russia will follow the European practice of prejudging beliefs rather than the U.S. precedent. This ground for non-registration can become a potent tool for administrative tyranny and discrimination against new or minority beliefs.

Article 12 is deceptive in that it seems to imply that the above mentioned grounds for non-registration are exclusive. A careful reading, however, suggests that all the liquidation grounds in Article 14 are applicable by reference. Article 27(3) specifically prohibits re-registration if the agency "has reasons to believe" that an organization is subject to liquidation under Article 14(2).(299) Article 27 re-registration requirement is extremely important because it mandates re-registration of all currently registered religious organizations.(300) In practice, all existing organizations that intend to continue to operate as such, risk being denied registration or liquidation by judicial means when they apply for re-registration.

vii. Grounds for Liquidation

Article 14 contains a long list of grounds for liquidation if an organization's activities constitute a menace to society. This article can be activated by the procurator or the registration agency.(301) It can also be invoked at time the agency determines that an organization does not comply with its charter, or meets other grounds for liquidation.(302) Furthermore, local governing organs (organy mestnogo samoupravlenia) have standing to bring liquidation and banning actions against religious organizations and groups.(303) Once disbanded, an organization loses its juristic personality, and its property is distributed in accordance with its charter.(304)

There are twelve paragraphs in Article 14(2) defining the grounds for banning groups and liquidating organizations.(305) These expansive grounds invite active administrative enforcement. The State would not have to try very hard 1:o ban or liquidate an objectionable organization or group under one of these provisions. For example, the Church of Scientology is almost certainly subject to liquidation because it uses "psychotrophic" devices. Some Amish-type communities are definitely illegal because they prevent their children from getting primary education and they provoke citizens to abstain from carrying out legally established civic duties. Furthermore, if one adopts Patriarch Alexii's thesis that any missionary activity is by definition coercive and detrimental to individual liberty, all evangelical organizations will be in danger of liquidation as "inflicting coercion upon an individual or interfering with civil rights and liberties."(306)

These numerous reasons for liquidation clearly exceed the narrow bases upon which a state can limit religious liberties.(307) Even if originally intended as a clarification of broad constitutional norms,(308) rather than new substantive rules enabling the state to close down organizations and curtail religious practices, this departure from the Constitutional text is unfortunate because it creates additional ambiguities and lays a deeper foundation for abuse by law enforcing organs.

viii. Distinctions Between the Rights of Organizations as a Result of Meeting the Fifteen Year Existence Requirement

Once a religious association passes the mandatory re-registration under the new law, it becomes an organization and acquires broad rights as a juristic person.(309) In contrast to the Soviet period, during which religious organizations were powerless, Articles 15-23 of the Law explicitly authorize such organizations to perform an array of functions. However, even though all newly-reregistered organizations become juristic persons, the religious communities which cannot prove their fifteen-year existence in the given area or fail to present a certificate from a centralized religious organization of the same denomination do not enjoy the rights accorded to traditional churches.(310) Instead, they are placed on a mandatory probation period during which they have to re-register every year, although they eventually may be eligible to receive equal treatment.(311) This dichotomy between organizations with full rights and those with limited powers blatantly defies constitutional and international norms.

The prerogatives of organizations with full rights are on par with international standards. Article 15 allows religious organizations to operate according to their own bylaws as long as they are consistent with their registered charters and do not contravene federal legislation.(312) Religious organizations are free to conduct any type of rites on their properties.(313) They also have an unrestricted access to cemeteries and pilgrimage sites.(314) They may conduct services in hospitals, elderly care centers, orphanages, and even prisons, at the inmates' requests.(315) In order to conduct public services in other places, they need only to go through the same permit process as secular groups.(316)

Article 17 gives religious organizations a right to produce, purchase, export, import, and disseminate religious literature and audio-visual materials for religious purposes.(317) Also, religious organizations have a monopoly on producing prayer books (bogostuzhebnaya literatura) and ritual objects.(318) In order to counteract alleged fraud and manipulation by certain religious communities, an organization that produces such items must mark its full name on the objects.(319)

Article 18 is particularly important because it allows religious organizations to engage in charitable activities either directly or through special foundations.(320) In order to realize the goals specified in its charter, an organization may establish religious schools, cultural centers, and mass media corporations.(321) The government pledges to support charitable religious organizations, including significant cultural and educational programs.(322) This last provision gives an advantage to traditional religions, especially the Orthodox Church, because Russian political culture views the Orthodox revival as a significant cultural event.

Article 19 redeems the structural weakness of religious organizations by giving them an exclusive right to set up institutions for professional religious training,.(323) Such schools receive state licenses upon registration.(324)

Article 20 permits organizations to maintain contacts with foreign religious communities, and gives them an exclusive right to invite foreign citizens to engage in professional religious activities such as preaching.(325) This is a significant provision because now foreign missionaries will have to get invitations from religious organizations, rather than from individual citizens or foreign representatives, in order to enter Russia for the purposes of proselytizing or engaging in other religious activities.

Article 21 restores property rights to religious organizations, a feature they have been legally deprived of since the age of Catherine II.(326) Religious organizations can own personal and real property, including historical monuments, manufacturing and charitable establishments, and establish bank accounts.(327) Importantly, the state transfers back property, nationalized during the Soviet regime, free of charge.(328) Naturally, the Orthodox Church will remain the greatest beneficiary of this policy. The law also provides for some tax and creditor exemptions to religious organizations.(329)

The gap between organizations with full rights and those on a probation period is enormous.(330) First of all, the latter congregates are explicitly denied civil equality before the law, which amounts to a gross deviation from Article 14.(331) They cannot create private religious education institutions or arrange for religious education of children on public school premises in the after-hours.(332) Aside from violating constitutional and international norms, this reservation gives traditional religions a tremendous advantage in one of the most crucial areas in which they sought control.(333) This provision forces theological instruction by non-traditional religions back underground.

The organizations with limited rights cannot set up representative offices of foreign religious organizations.(334) They also cannot invite foreign citizens to act as priests and in other professional religious capacities.(335) This is a significant limitation because many new religions in Russia have extensive foreign contacts.

The public profile of new religions will also be diminished. For example, they will not be allowed to conduct services in public institutions such as hospitals and prisons.(336) This rule compromises both the individual freedom of conscience of people in such institutions and the principle of proportionality for restrictions on the manifestation of religion. The arbitrariness of this limitation is best demonstrated in the context of Pentecostals. Some Pentecostal communities belonged to the dissident wing of the Protestant movement (C.C.E.C.B.) and consciously refused to register with the Soviet authorities.(337) These communities will have the same difficulties proving their fifteen-year existence as the Hare Krishna described in the earlier hypothetical. They will be placed on probation only because of their courage in defying the Soviet regime in the past, whereas the members of the same religious faith who cooperated with communists will enjoy full rights as a time-tested organization that does not pose a threat to society.

The traditional religions will also have a monopoly on publishing, importing, and distributing religious literature; to the detriment of the limited power organizations.(338) The restriction undermines constitutionally guaranteed freedom of religion and expression. The Orthodox Church clamored for such limitations because it felt truly threatened by an influx of Protestant literature,(339) But there was also a legitimate need for some regulation of the mass media against excessive usage by destructive cults such as Aum Senrikyo. As some Russian observers have suggested, general civil legislation would have been the best way to achieve such legitimate purposes without violating constitutional guarantees that are inherent in a flat denial of rights to some religious organizations based on the arbitrary length of existence requirement.(340)

Allowing new religious communities to conduct charitable activities was probably the most important concession in the final version of the bill.(341) However, to protect traditional faiths from competing with the new ones, usually backed by rich foreign sponsors, the law still prohibits organizations with limited rights from establishing cultural and religious education facilities, and from establishing their own mass media sources.(342) The new religions are also deprived of the right to create their own institutions of professional religious training.(343) This provision is reminiscent of Soviet methods of battling religion.(344) Along with the prohibition on inviting foreign religious professionals as preachers,(345) this restriction casts a shadow on the prospects of survival for the new denominations in Russia. Overall, the restraints on the rights of certain religious organizations interfere with individual liberty to profess the religion of one's choice, and contravene basic international religious human rights principles because they act as barriers to one's equal access to all religions.

V. PROSPECTIVE APPLICATION OF THE LAW AND THE WAYS TO CHALLENGE VIOLATIONS OF CONSTITUTIONAL AND INTERNATIONAL NORMS ON FREEDOM OF RELIGION

As noted above, the current political and social climate as well as traditional moral theory and historical inclinations militate for strict enforcement of the 1997 law despite numerous high-level assurances(346) to the contrary. Recently reported incidents of intolerance, non-registration, and violence in various regions(347) confirm the worst fears about the effect of the law.

In general, there are two major flaws in the legislation that are likely to foster undemocratic developments: textual violations of constitutional/international norms on freedom of religion and broad powers conferred upon administrative agencies during the process of re-registration and liquidation. In the short term, courts can ameliorate these problems. However, a comprehensive solution must involve changing societal attitudes towards religious rights.

A. Judicial Recourse

The analysis of the text of the law in the previous sections revealed numerous conflicts with constitutional and international norms as well as internal contradictions among various provisions.(348) The most conspicuous constitutional problems are as follows:

1. Differentiation between the rights of religious organizations based on meeting the fifteen-year existence requirement, and effective denial of basic religious and freedom of expression rights as a result of this distinction.(349) Also, retroactive imposition of the heightened registration requirements contradicts Article 54 of the Constitution, as the Head of the Department for Registration of Religious Associations has acknowledged.(350)

2. Inequality among individual believers manifested in classifications such as: citizens or foreigners, members of religious groups or members of religious organizations, members of religious organizations with full rights or members of religious organizations with limited rights.(351)

3. Severe limits on freedom of religion as defined in the Constitution accomplished through a complex registration process with low administrative accountability.(352)

4. Expanded grounds for liquidation of religious organizations and groups that undermine democratic prerequisites of compelling justification and proportionality of any curtailment of religious rights.(353)

5. Erosion of the separation between church and state through ubiquitous state supervision over organizations' compliance with the purposes set out in their charters and strict reporting requirements regarding internal changes.(354)

6. General unjustifiability of numerous categories and limitations in the law.

In addition to the above mentioned problems, the following major deviations from international principles of religious human rights are apparent:(355)

1. The same heightened level of regulation of individual's personal beliefs and practices.(356)

2. Automatic discrimination against religious organizations which can not prove their fifteen-year existence clashes with a "presumption of innocence" until the actual conduct of a religious organization rebuts that presumption.(357)

There are several opportunities to challenge the new law in courts. Several religious communities have already expressed their willingness to pursue this option.(358) Individual citizens and religious groups may seek a writ from the Russian Constitutional Court(359) raising constitutional and international law questions. This method may have sweeping consequences because judicial review by the Constitutional Court is the only way to invalidate the 1997 law, aside from resorting to the political process. Although a human rights challenge is very strong on its merits, it is highly unlikely that the Constitutional Court, populated by Yeltsin's proteges,(360) will review the claim(361) and support a counter-majoritarian(362) cause at the risk of further compromising its already low public stature.(363)

The law gives religious organizations an opportunity to appeal non-registration in local courts.(364) In addition to these specific claims, individuals and organizations can allege constitutional violations in local courts because, for the first time in Russian history, the 1993 Constitution makes human rights guarantees directly applicable and enforceable in the courts.(365) Such challenges will probably implicate freedom of expression and manifestation of religious beliefs. In these cases, judges should pay close attention to the text of constitutional provisions and use international norms on religious rights at least as persuasive, if not binding, authority.(366)

Another important arena for human rights actions is the judicial review of administrative actions in order to combat draconian application of the law by state agencies.(367) In reviewing such complaints, judges should focus on proportionality and justifiability of administrative actions vis-a-vis religious associations and their members, especially if the plaintiff is affiliated with a new or minority religion. Realistically, local courts will probably hesitate to take up the organizational dichotomy scheme enunciated by the law as the basis for a constitutional challenge because they are still adjusting to their new institutional independence.(368) However, more specialized complaints based on specific fact patterns may serve as an impetus to the judiciary's activism even though the judiciary has been reluctant to serve as a constitutional watchdog in the past.(369) Importantly, Russia now has very competent legal professionals, like Galina Krylova(370) and Jacov Krotov, who have dedicated their expertise to defend democratic freedom of conscience norms and to counteract the mass hysteria generated by popular anti-cultists, such as A. Dvorkin, that has found its way into the judicial system.(371)

The last innovative path for judicial recourse are international legal channels. The right to appeal to international bodies is confirmed by Article 46(3) of the Russian Constitution. Currently, individuals may file complaints with the U.N. Human Rights Committee or the European Court of Human Rights. The latter is particularly promising because Russia undertook firm human rights obligations upon becoming a member of the Council of Europe in 1996, and has a high political stake in complying with basic conditions of accession to this organization.(372) It is hard to predict whether the European Court of Human Rights would be willing to resolve the issues presented by Russian plaintiffs. Since one of the Council's primary functions is to promote human rights in its member states, and Russia has a checkered record in this area, the Court of Human Rights may elect to address the issue. On the other hand, history reveals that the Court was only a reluctant champion of the rights of minority religions.(373) In any event, the Court of Human Rights is likely to be more receptive to a claim that focuses on a specific, arbitrary denial of essential religious rights to some organizations under Article 27(3), instead of invalidating the general endorsement of traditional religions and the Orthodoxy.

B. Reforming Public Conception of Law and Religious Human Rights

Aside from facial constitutional violations, the broad discretion accorded to the registration agencies is the most objectionable feature of the new legislation.(374) In the short term, this problem should be addressed by the Ministry of Justice who should promulgate standardized definitions of such critical terms as "existence," "religious," and "creed" as well as provide guidelines regarding the individuals authorized to make the final decisions on these issues.(375)

In the long run, reforming societal outlooks is the most daunting challenge that Russia faces as it tries to become a democratic state. As discussed above, both Russian people and institutions historically gravitate toward political autocracy, ethnic intolerance, and a single established religion or predominant ideology.(376) History and traditional moral theory are compelling forces that still shape Russian politics and society even if on a subconscious level.(377) This legacy will aggravate normative deviations from constitutional and international religious human rights principles because bureaucrats responsible for implementing the new religious regime are conditioned by Russia's past.

However, there are also nascent signs of cultural and democratic structural changes in Russia. First of all, the Russian Constitution endorses domestic human rights legislation that matches liberal international standards.(378) The country also has a high political stake in keeping its international obligations. In making Russia abide by international agreements, the world community should emphasize Russia's sovereign interest in choosing such behavior as opposed to forcefully antagonizing and threatening Russian leaders as it did during the enactment of the present law. The latter technique plays squarely into the hands of reactionaries and nationalists.(379) For the future, funding of international observers who will monitor the application of the new law and participate in public life as influential interest groups is a better, less intrusive approach.(380)

Since the late 1980s, Russia also engaged in numerous institutional reforms making the judicial, law enforcement, and administrative systems more sensitive to human rights concerns.(3814) Recently, even the most repressive institution--the Procuracy--prided itself on successfully pleading on behalf of civil and political human rights.(382) The Human Rights Commissioner(383) may also become a player in the field of human rights.

Non-governmental organizations (NGOs) are another promising mechanism for changing popular conceptions of law and human rights.(384) The post-Soviet legislation enables independent(385) peoples' groups to influence public opinion and political process as mediators between specialized and state interests. In addition, NGOs can appear in court on behalf of human rights interests.(386) The interested political, social, and religious non-governmental groups, both domestic and foreign, should utilize this method in order to challenge the excesses in application of the new religious legislation. The most notable of such progressive organizations are the Christian Juris-Center, led by A. Pchelintsev and V. Riakhovsky (recently transformed into the Institute for the Study of Law and Religion), the Independent Organization of Psychiatrists which provides vital expert testimony in trials to counteract the allegations of "zombying" by new religions, and the Committee for Freedom of Conscience, led by G. Yakunin.(387) Unfortunately, the activities of the latter organization often received negative publicity detrimental to its lofty goals.

In fact, Article 8(7) of the instant legislation specifically encourages such participation and instructs state organs to involve religious organizations in the decisions affecting their activities.(388) Notably, this provision does not discriminate against new religious organizations.(389) One can only hope that local authorities will carefully consider this provision when dealing with the various interests of the religious communities.

A robust polemic in the mass media is another sign of changing times. During the period of adopting the new law and in the months following its enactment, the Russian media covered the developments in great detail and offered insightful political and legal commentaries. The Moscow News and Nezavisimaya Gazeta emerged as the true champions of religious liberty. Also, Russians now have access to information reflecting democratic values advanced by the Western media and on the Internet.(390)

Finally, even the Orthodox Church, the primary lobbyist and beneficiary of the new law, has an inherent stake in resisting a strict application of the law. Both traditional and non-traditional religions should be wary of numerous provisions giving the state enormous control over religious organizations. The registration requirement and continued state supervision over an organization's compliance with its charter provide ample opportunities for intervention into religious affairs. As its own history demonstrates, the Patriarchate must realize that a short term gain of virtual religious monopoly of the Orthodox Church may cause a long term loss of its institutional independence, a feature that Patriarch Alexii II considers essential in church-state relations.(391)

VI. CONCLUSION

The law on Freedom of Conscience and Religious Associations represents a major setback in Russia's recent human rights record. The law clashes with the constitutional principles of individual religious liberty and subverts the notion of equality of religious organizations. The law establishes a system in which religious organizations that cannot prove their fifteen-year legal existence enjoy only a fraction of the rights reserved for traditional religions. Although this restriction is only a temporary probation period, it may effectively destroy less-favored religious communities. Even if they survive, they will almost certainly be burdened by the vicissitudes of administrative arbitrariness. Another hallmark of the 1997 law is the laborious registration process, reminiscent of the Soviet period. The law confers great powers on agencies to supervise the activities of religious organizations under the pretext of verifying their compliance with charters, and to initiate the liquidation process on a variety of grounds.

Although in a brief post-communist euphoria Russia enacted one of the most progressive constitutions in the world and ratified numerous international human rights instruments, it was naive to believe that in such a period of acute cultural crisis the newly-implanted liberal principles (democratic Pravo) could easily overcome the millennium-old Russian moral theory (reactionary Pravo). The current legislation (zakon) is a reflexive response to what proponents of the legislation view as ruinous religious anarchy that threatens internal security, rather than as desirable religious pluralism. Even though Russia did not wish to contravene democratic principles, it had absolutely no experience in dealing with its very real problems in a democratic fashion. By default, in creating the new law, policy-makers reverted to a slightly modified traditionalism with a stricter control of religious institutions.

Russia is currently reviving religious policies that are historically tested and culturally suitable. In practice, Russia may develop a viable cooperationist or endorsement mode of church-state relations rather than pursue the ideal of benign neutrality as provided for in the Russian Constitution. European experience illustrates that substantial religious liberty is attainable in cooperationist, endorsement, and even establishment models as long as the state maintains some religious equality within the preferential superstructure. Such balancing is possible when human rights are an integral part of a country's political and social culture.

Unfortunately, Russia does not share the Western democratic tradition of respect for human rights. Therefore, Russia must strive twice as hard to assure the equality of individuals and organizations in their access to religious rights. The thrust of the new law contravenes this goal and casts serious doubt on the future of religious liberty in Russia. Yet, there is a glimmer of hope embodied in the Russian Constitution and international instruments. This alternative set of norms permits interested individuals and groups to challenge the new law, and to counter the excesses of its strict, reactionary enforcement. As Russian society stabilizes, and its liberal institutions and traditions solidify, the international human rights tradition may yet prevail over nationalistic sentiments.

(1.) See Jerry G. Pankhurst, Sociological Models of Religion in Post-Communist Societies, in CHRISTIANITY AFTER COMMUNISM: SOCIAL, POLITICAL AND CULTURAL STRUGGLE IN RUSSIA 75, 82-83 (Niels S. Nielsen, Jr. ed., 1994) [hereinafter CHRISTIANITY AFTER COMMUNISM].

(2.) For a discussion of Il'in's conceptualization of ideal relations of church and state in Russia, see L.A. Morozova, Gosudarstvo i Tserkov': Osobennosti Vzaimootnoshenii [The State and the Church.' Distinctive Features of Their Relationship], 3 GOS. I PRAVO 86-95 (1995), reprinted in 38 RUSSIAN SOCIAL SCIENCE REVIEW 40, 48 & n. 11 (quoting from Il'in's book ODINOKII KHUDOZHNIK).

(3.) In the 1990' Russia has faced the tremendous challenge of preserving its territorial integrity while simultaneously upholding democratic norms. The war in Chechnya highlighted this dilemma. Ultimately, it demonstrated that Russia would suspend the rule of law in critical situations. See, e.g., Elizabeth K. Cooper, Comment on "Transitional Constitutionatism: Politics and Law in Russia Since 1993." 14 Wis. INT'L L.J. 531, 540 (1996).

(4.) FEDERAL'NYI ZAKON O SVOBODE SOVESTI I O RELIGIOZNYH OB'EDINENIYH [Federal Law on the Freedom of Conscience and on Religious Associations], Sobr. Zakonod. RF, 1997, No.39, Item 4465; Ross. Gazeta, 1 Oct., 1997, at No.190. (RF) [hereinafter THE NEW LAW] (all translations are by the author).

(5.) The State Duma voted 358-6, with four abstentions, in favor of the bill. See Igor Zhukov, Religion Law to Protect Russians from Radical Sects, ITAR TASS NEWS AGENCY, Sept. 19, 1997, at 1, available in LEXIS, News Library, TASS International File; Russian Duma Passes Revised Religion Bill, U.P.I., Sept. 19, 1997, at 1, available in LEXIS, News Library, International File. The upper house of parliament, the Federation Council, unanimously voted in favor of the measure. See Dmitriy Zaks, Federation Council Approves Religion Bill, Moscow TIMES, Sept. 25, 1997, at 1, available in LEXIS, News Library, File No. 1301 (quoting a prominent member of the Federation Council who claimed that Russians "have flooded" him with letters demanding to draft legislation "regulating the work of destructive cults.")

(6.) ZAKON RSFSR O SVOBODE VEROISPOVEDANII [The Law of RSFSR On Freedom of Religion], Vedomosti RSFSR, 1990, Issue No. 21, Item No. 267-1, at 240 [hereinafter 1990 RUSSIAN LAW]. For a discussion of this law see Harold J. Berman, Religious Rights in Russia at a Time of Tumultuous Transition.' A Historical Theory, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE LEGAL PERSPECTIVES 285, 295-97 (Johan D. van der Vyver & John Witte, Jr. eds., 1996) [hereinafter RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE]; W. Cole Durham, Jr., Lauren B. Homer, Peter van Dijk, John Witte, Jr. et al, The Future of Religious Liberty in Russia: Report of the De Burght Conference on Pending Russian Legislation Restricting Religious Liberty, 8 EMORY INT'L L. REV. 1, 2-4, 30 (1994) [hereinafter De Burght Report].

(7.) See, e.g., David Hoffman, Yeltsin and Religion: Gore Appeals Against a Russian Curb, INT'L. HERALD TRIB. (NEUILLY-SUR-SEINE, FR.), Sept 23, 1997, at 10, available in LEXIS, News Library; Yeltsin Signs Controversial Religion Law, AGENCE FR. PRESSE, Sept. 26, 1997, at 1, available in LEXIS, Int'l News File (quoting regrets expressed by the White house officials and the leaders of the Catholic community); Charles W. Holmes, Yeltsin Ok's Restricting Some Faiths, ATLANTA J. & CONST., Sept. 27, 1997, at 03B, available in LEXIS, News Library, Foreign File (citing comments by the OSCE representative that the new law "does not represent progress toward the path to religious coexistence").

The majority of Russians apparently supported the bill. See Eric Burkett, Orthodoxy Expert Says Russian People Back Religious Restrictions, ANCHORAGE DAILY NEWS, Oct. 11, 1997, at 8C , available in LEXIS, News Library. However, there were outspoken domestic opponents of the law such as leading religious rights activist Fr. Gleb Yakunin. See David Filipov, Yeltsin Signs Law Restricting Some Religions: Critics Say Constitution Violated, BOSTON GLOBE, Sept. 27, 1997, at A2, available in LEXIS, News Library, Foreign File (criticizing the subjection of religion to the whim of the state). There was also a public protest staged by the opponents of the new law. See Julia Shargorodska, 5,000 Decry Church Law At City Park; MOSCOW TIMES, Oct. 8, 1997, available in LEXIS, News Library, Indep. Press File No. 1310. (Almost all the demonstrators appeared to be Russian and tried to emphasize their nationality by singing popular songs accompanied by balalaika; Anatoly Pchelintsev, Director of the Moscow Institute of Law and Religion, led the protest).

(8.) See generally Melor Sturua, Svobodu Propovedi v Rossu Senat SSHA Ozenil v 200 Millionov Dollarov [The U.S. Senate Valued the Freedom to Preach at $200 million], IZVESTIA, Oct. 1, 1997, at 1 (arguing that, by passing a measure popular with the majority of the electorate, Russian leaders paid attention to their own political priorities and increased their political capital even though they lost $200 millions in aid from the U.S.).

Conservatives accused Yeltsin of bowing to Western pressure when he vetoed an earlier version of the law in July 1997. See Peter Ford, Curb on Religious Freedom in Russia May Rise Again, CHRISTIAN SCIENCE MONITOR, July 24, 1997, at 6:3 (communist deputy V. Ilyukhin stated that the veto "provided further proof that Russia has become a protectorate of the West" and called to "limit Western pressure over the minds of Russian citizens); Newsline-Yeltsin Expecting Religion Law Override, THE PATRIOT LEDGER (Quincy, Ma), July 24, 1997, at 5, available in LEXIS, News Library (citing a comment by V. Kuptsov, top communist lawmaker, that Yeltsin's actions lead to "the public humiliation of Russia"); Yeltsin Intends to Pass Freedom of Conscience Law, NEZAVISIMAYA GAZETA, July 29, 1997, at 1, available in LEXIS, News Library, RusData File (A. Isayev, a prominent labor leader, said that turning down the law was a "grave political error" and that Russian labor unions were indignant at the overt international political pressure).

The Parliament, on the other hand, was a popular champion of the Orthodox Church and a protector of the people against destructive `totalitarian sects.' See Zhukov, supra note 5 (quoting Chairman of Parliament's Committee for Religion and Public Organizations).

(9.) See Berman, supra note 6, at 285-87. For an excellent summary of zakon vs. pravo dichotomy, see William E. Butler, Justice in Russia, in THE INTEGRATIVE JURISPRUDENCE OF HAROLD J. BERMAN, 13, 22-24 (Howard O. Hunter ed., 1996).

(10.) For a discussion of monism and dualism see Louis Henkin, The ,Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L.R. 853, 864-866 (1987) (illustrating an interesting contrast between the role of international law in the U.S. and in Russia) As a part of its full-scale democratization, Russia borrowed a multitude of international rules in the areas of political and civil rights. The country has clearly subscribed to monism in its Constitution. See KONST. RF (1993), arts. 17(1), 15(4). See Antti Korkeakivi, The Reach of Rights in the New Russian Constitution, 3 CARDOZO J. INT'L. & COMP. L. 229, 243 (1995) (summarizing various types of human rights included in the Russian Constitution and identifying various ways to enforce them).

(11.) See Berman, supra note 6, at 297-304.

(12.) The parallels between the proposed religious law reform in 1993 and in 1997 are worth noting. In each case, the major forces driving reform were the nationalists--communists and Christian Democrats, labor and agrarian Parties--and the Moscow Patriarchate. Both bills received overwhelming support from the legislative branch before the President vetoed them. The coup in August 1993 and the subsequent dismissal of the legislature halted the momentum of the first proposed law. For an insightful first-hand description of these events, see Michael Bourdeaux, Glasnost' and the Gospel' The Emergence of Religious Pluralism, in THE POLITICS OF RELIGION IN RUSSIA AND THE NEW STATES OF EURASIA 113, 118-123 (Michael Bourdeaux ed., 1995) [hereinafter THE POLITICS OF RELIGION]. In 1997, Yeltsin again countered the populist legislation with his veto. Yet, he acknowledged the need for more effective regulation of religious organizations and was prepared to compromise. See Andrei Zolotov, Compromise Alters Little in Religion Bill, Moscow TIMES, Sept. 3, 1997, at 1, available in LEXIS, News Library, Indep. Press File No. 1285. See Mikhail Sivertsev, Civil Society and Religion in Traditional Political Culture: The Case of Russ/a, in THE POLITICS OF RELIGION, supra, at 75-94, for a description of the major types of parties in Russia and an interesting correlation between political and religious pluralism.

(13.) Constitutional provisions, international treaties, and "universally recognized" principles in the area of human rights function as both a set of aspirational ideals, "the supreme value," and as directly applicable positive rules. See KONST. RF., supranote 10, at arts. 2, 17(1) & 18. In the former capacity, they present an antithesis to traditional Russian moral theory. As legal norms, Constitutional provisions are "the supreme law." Id. at art. 15(1). International agreements supersede inconsistent domestic laws and customary international law is a "part of the Russian legal system. Id. at art. 15(4).

(14.) This terminology is borrowed from a comprehensive discussion of different models of church-state relations and the content of religious liberty in them. See Cole W. Durham, Perspectives on Religious Liberty: A Comparative Framework, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE, supra note 6, at 1-45 [hereinafter Comparative Framework]. For a summary of broad comparative classifications by other scholars, see Johan D. van der Vyver, Legal Dimensions of Religious Human Rights: Constitutional Texts, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE, supra note 6, at XIX-XX.

(15.) For an exploration of the cultural and historic forces that determined the content of freedom of religion in the United States, see John Witte, Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 NOTRE DAME L. REV. 372, 376-405 (1996). The essential American freedom of religion values are liberty of conscience, free exercise of religion, pluralism, equality, separationism, and disestablishment of religion. These are derived from four influential historical perspectives: Puritan, Evangelical, Civic Republican, and Enlightenment. Interestingly, current Russian policies aiming to revive religious ethics and ethos as pillars of civil society and favoring a predominant religion while maintaining institutional separation between church and state resemble Civic Republican and Puritan ideologies respectively. In fact, Massachusetts and other New England states maintained "slender" establishment with special privileges to Calvinists until the 1830'. See id. at 388-89. Unlike the U.S., Russia does not have domestic parallels to countervailing Evangelical (religious equality) and Enlightenment (benign secularism and human rights) traditions. Both of these theories are reflected in international religious rights instruments. However, for Russia, these international norms remain culturally allien.

(16.) The major Nineteenth Century proponents of this influential school are V. Kliuchevskii, S. Soloviev, and B. Chicherin. For a good summary, see HUGH RAGSDALE, THE RUSSIAN TRAGEDY: THE BURDEN OF HISTORY 30-32 (1996).

(17.) For two interesting discussions of pre-Christian religious practices in Russia and their interaction with Christianity, see B.D.Grekov, Kreshenie Rusi [Christening of Russia], at 40-42 and M. N. Tikhomirov, Jazucheskoe Mirovozzrenie i Khristianvo [Pagan Worldview and Christianity], at 42-46, in RELIGIA I TSERKOV'V ISTORII ROSSII [Religion and Church in Russian History] (A.M. Sakharov ed., ]975).

(18.) PAUL D. STEEVES, KEEPING THE FAITHS: RELIGION AND IDEOLOGY IN THE SOVIET UNION 19 (1989).

(19.) The monk Nestor's Eleventh Century account of Vladimir's baptism is the primary historical source. See THE RUSSIAN PRIMARY CHRONICLE 96-97, 110-11, 116-17 (Samuel H. Cross & Olgerd P. Sherbowitz-Wetzor eds. & trans., 1953), reprinted in PAUL D. STEEVES, KEEPING THE FAITHS: RELIGION AND IDEOLOGY IN THE SOVIET UNION 19-22 (1989). Vladimir selected Orthodox Christianity for its aesthetic beauty and a lack of objectionable features associated with other religions. He rejected Islam for its abstention from alcohol and was appalled at Jewish political inability to keep their land. See id.

(20.) Scholars agree that religious conversion was forced and slow. See S. Bakhrushin, K Voprosu o Kreshernii Kievskoi Rusi [On the Question of Baptism of Kievan Russia], in RELIGIA I TSERKOV'V ISTORII ROSSII, supra note 17, at 16-18; STEEVES, supra note 18, at 23. The early Church depended wholly on princes' support because it was not a popular institution and because early Greek priests could not even communicate in Russian. Id.

(21.) See Ragsdale, supra note 16, at 43 (arguing that caesaropapism-submission of church to state--historically suited the Russian political model of overdeveloped, `hypertrophic' state); STEEVES, supra note 18, at 25-27 (discussing `symphonia'--a harmony and mutual support between ecclesiastic and secular authorities in pursuit of a common task of "conducting the people to salvation, on earth and in heaven").

(22.) See STEEVES, supra note 18, at 25.

(23.) See STEEVES, supra note 18, at 32-34. This imagery recurs in relations between Yeltsin and Alexii II: the Patriarch publicly blessed Yeltsin before his first presidential campaign in 1990 and since then has figured prominently in Kremlin ceremonies. See Yeltsin Signs Law to Curb Other Faiths, THE BALTIMORE SUN, Sept. 27, 1997, at 9A. Yeltsin also appealed to the Orthodox Church for moral support during August 1991. After short hesitation, Alexii II threw the whole weight of the church behind the Yeltsin government. See Dennis J. Dunn, Religion, Revolution and Order in Russia, in CHRISTIANITY AFTER COMMUNISM, supra note 1, at 24.

(24.) See STEEVES, supranote 18, at 31-32.

(25.) Id. at 63.

(26.) See RAGSDALE, supra note 16, at 47. There was also a persistent assumption that all Russian common folk are Christian. The language illustrates this assumption. For example, "krestianin," a peasant, is derivative from "krest," a cross and phonetically is almost identical to "khrest'anin," a Christian. See id.

(27.) See SLEEVES, supra note 18, at 24-25. Russian Orthodoxy recognizes resolutions of only the first seven ecumenical councils held between 325-787 A.D.

(28.) See id. Many leading Russian church historians such as George Fedotov and George Florovsky acknowledged the fact that Russia "had no theology worthy of the name" and "endured centuries long intellectual silence." RAGSDALE, supra note 16, at 46. One specialist aptly referred to traditional Orthodoxy as "the absence of books and the presence of painters," referring to magnificent icons that adorn Orthodox Churches and to "more sensate spirituality than was true of the more rationalist theology of the Catholic and Protestant West." Walter Sawatsky, Visions in Conflict: Starting Anew Through the Prism of Leadership Training, in CHRISTIANITY AFTER COMMUNISM, supra note 1, at 114-15. Russian philosophers such as Chaadaev, S. Bulgakov, V. Soloviev, Il'in, Frank, Berdyaev and Meyendorff were the first significant contributors to the field of theology in the Nineteenth and early Twentieth Centuries but they are little known or followed by the Orthodox hierarchy and clergy.

(29.) See STEEVES, supra note 18, at 37-41. For the early political significance of this doctrine and its historic sources, see Pokrovsky, Moskva-Tretij Rim [Moscow as a Third Rome], in RELIGIA I TSERKOV'V ISTORII ROSSII, supra note 17, at 119-24.

(30.) See Ragsdale, supra note 16, at 27 (a Russian version of this manifest destiny).

(31.) See STEEVES, supra note 18, at 40-41.

(32.) The monk Philoteus concisely stated the vision that "[a]ll Christian realms will come to an end and will unite into one single realm of our sovereign" and that also included an exalted mission to promote the welfare of the whole humanity. See STEEVES, supra note 18, at 37. The notion of a special mission, or "The Russian Idea," remains one of the most popular themes in Russian culture. In fact, it imbued Russian and Soviet legal norms and led scholars to suggest that Russian society required not only a sense of direction conveyed by positive law, but also an inspiring idea or a mission. See Butler, supra note 9, at 26.

(33.) See, e.g., RAGSDALE, supra note 16, at 48 (explaining the divorce and state prom society).

(34.) See STEEVES, supra note 18, at 63.

(35.) For a classic perspective on the fate of religious minorities in Russia since the Middle Ages, see SERGE BOLSHAKOFF, RUSSIAN NONCONFORMITY; THE STORY OF "UNOFFICIAL" RELIGION IN RUSSIA (1950). The major schism within the Orthodox Church occurred in 1652 A.D. as a result of Patriarch Nikon's liturgical reforms. A substantial group of dissenters, the Old Believers, faced severe persecutions throughout the centuries. See id. at 46-83. Their derogatory name, the Schismatics, depicts the Orthodoxy earning for unity and consolidation at the expense of religious pluralism. Amazingly, the sect survived (probably because of its strong work ethic) and as of 1993, there were 121 religious associations formed by them. See Berman, supra note 6, at 296 n. 12.

(36.) See RAGSDALE, supra note 16, at 26.

(37.) Id. at 49-62.

(38.) Id.

(39.) See S.M. SOLOVIEV, CHTENIA I RASSKAZY PO ISTORII ROSSII [Readings and Lectures on Russian History] 520-21,557-63 (1990), for an apologetic view of Peter's `large stick' measures by one of the preeminent Nineteenth Century historians.

(40.) See RAGSDALE, supra note 16, at 49-59.

(41.) Id.

(42.) See STEEVES, supra note 18, at 47-49. A major theme in Peter's decree was the desirability of religious uniformity. Although Russian rulers were prepared to enforce this ideal, in practical terms, its achievement was virtually impossible because of the steady territorial expansion and the incorporation of many non-Russian and non-Orthodox people into the empire. See a/so Berman, supra note 6, at 288.

(43.) See Steers, supra note 18, at 47.

(44.) See ROBERT PIERCE CASEY, RELIGION IN RUSSIA 23 (1946).

(45.) See id. at 1-27, for a concise overview of imperial religious policies consistent with the temperaments of individual Russian czars.

(46.) See id. at 13, 31, 37-38.

(47.) See STEEVES, supra note 18, at 47-49.

(48.) CASEY, supra note 44, at 19-27.

(49.) RAGSDALE, supra note 16, at 80.

(50.) See Berman, supra note 6, at 288 & n.3. In Russia, Orthodox theology was closely affiliated with ethnicity. Non-Orthodox Russians betrayed their national identity and civic duties, and were viewed with hostility and suspicion. Non- Orthodox non-Russians, such as Jews, Tartars etc., occupied an even lower social status. For a discussion of persecution of Muslims and Jews in the Russian Empire, see STEEVES, supra note 18, at 49-55.

(51.) See Morozova, supra note 2, at 43.

(52.) See Berman, supra note 6, at 288. For a detailed account of this period, see JOHN SHELTON CURTISS, CHURCH AND STATE IN RUSSIA: THE LAST YEARS OF THE EMPIRE, 1900-1917, 195-235 (1940).

(53.) See STEEVES, supra note 18 at 65.

(54.) See, e.g., Alexander Nezhny, Jad i Topor [Poison and Axe], KULTURA, Nov. 6, 1997, at 7.

(55.) See STEEVES, supra note 18, at 65-67.

(56.) For selected reprinted provisions and a discussion of the content and application of these laws, see Nezhny, supra note 54, at 7 (citing archive materials with secret Politbureau orders, issued in the early 1920s, to crush religious uprisings as violently as possible and to expropriate the church in the most expedient manner); STEEVES, supra note 18, at 70-72, 86-87; Berman, supra note 6, at 289-90.

(57.) One of the perverse results of this measure was a transitory growth of minority religions, especially evangelical Protestantism, before Stalin's repression in the 1930'. See, e.g., STEEVES, supra note 18, at 85; Sawatsky, supra note 18, at 119.

(58.) In the U.S.S.R., religious organizations could not engage in charity work,