Chapter 17
Podoprigora R.
ИСТОЧНИК: FACILITATING FREEDOM OF RELIGION OR BELIEF: A DESKBOOK / EDITED BY TORE LINDHOLM, W. COLE DURHAM JR. AND BAHIA G. TAHZIB-LIE. - MARTINUS NIJHOFF PUBLISHERS. LEIDEN, BOSTON. 2004. P. 425-440.
I. Introduction
The rise of the human rights movement has placed added significance on the rule of law.[1] At its most basic level, the idea that people should be subject to the rule of law and not to the rule of men is the insistence that human beings should not be subject to the arbitrary power or discretion of others.[2] This applies with special force in the domain of religion. The aim in this chapter will be to focus on certain recurrent types of problems that lead to violations of freedom of religion or belief. Indeed, the most typical violations take the form not of legislation, but of administrative action that prevents people from engaging in religious activities that are properly protected under international human rights agreements and under many national constitutions as well. In a modern administrative state, the interactions of religious and state institutions involve countless, often low-level, approvals, licenses, permits and other governmental decisions that can severely complicate the life of religious communities. Such decisions include threshold determinations of whether a religious community will be registered or recognized and enabled to acquire juristic personality, land use permits authorizing use of specific locations for worship facilities, tax status determinations, visa approvals for travel of religious personnel, approvals in connections with educational institutions, the issuance of licenses for priests, and the authorization of public worship. Administrative decisions can restrict the presence of believers and their associations in hospitals, prisons, and educational institutions. States may have laws that inject governmental decision making into issues involving financial support for religious associations and their projects, or into the grant of special waivers from tax obligations. At one level, such government approvals can be routine and innocuous. But depending on the applicable legal standards that govern approvals, the attitudes of relevant governmental officials, the attitudes of the wider populace, the ability of the wider populace to exert political pressures on decisionmakers, and a variety of other factors, the exercise of official discretion in these contexts can potentially have a very significant adverse impact on the freedom of religion or belief, particularly when smaller or less popular groups are involved. It is in this way that complicated state administrative functions give rise to the risks of abuse of discretion by state bodies and officials who deal with religious activities in many countries. Despite the existence of a developed legal system and glowing formal protections of freedom of religion or belief, such abuse of discretion can compromise religious freedom norms in extremely serious ways. Of course, not every exercise of discretionary power in a religious sphere violates citizens’ rights and freedoms and the organizational autonomy of religious communities. In many cases, the state makes discretionary decisions for the protection of the rights of private citizens, organizations, and society. But the risk of abuse remains and must be guarded against. Otherwise, state action may result in unjustifiable privileging of or discrimination against religious communities, or the curtailing of activities which should be protected and free. International and legal acts and documents do not directly mention the range of ways that government permissions may encroach on religious freedom.[3] These documents simply provide that everyone should be free to exercise his or her religion or belief in any form, individually or together with others, without any restrictions by the state.[4] Similarly, constitutions and legislation in many countries around the world contain articles guaranteeing the right to exercise religion or belief without authorization from the state.[5] But as a practical matter, bureaucrats are accustomed to exercising their powers, and they may either intentionally or unintentionally tread on religious freedom as a result. Under conditions of economic development and globalization, the tendency toward proliferation of regulation is strong, and officials accustomed to regulation in other areas are all too prone to extend into the sensitive and protected realm of contracts between church and state. In this chapter, we will first examine the leading case from the European Court of Human Rights dealing with the ways in which administrative decisionmaking may interfere with the freedom of religion or belief. Manoussakis has profound implications for a range of recurrent types of problems, dealing as it does with a variety of potential rule of law violations. Many of the problems in Manoussakis reflect general problems of abuse of state power in a democratic society, but they apply with added force when the domain of religion is involved. On the basis of our analysis of Manoussakis, we will then provide a taxonomy of some of the types of recurrent problems associated with the exercise of official discretion.
II. Manoussakis v. Greece[6]
In the Manoussakis case, Jehovah’s Witnesses appealed their criminal convictions for using an unauthorized place of worship. In March 1983 Mr. Manoussakis rented a room in the Ghazi district of the city of Heraklion. According to the private rental agreement, he intended to use the room «for all kinds of meetings, weddings, etc. of Jehovah’s Witnesses.» Three months later, in June, Mr. Manoussakis and his associates applied for a permit to use the facility as a place of worship. The chairman of the Ghazi District Council refused to certify the applicants’ signatures. He withdrew his refusal in October 1983 at the urging of the prefect of Heraklion, the Deputy Minister of the Interior, and the Speaker of the Greek Parliament; the application thus became eligible for consideration by the Ministry of Education and Religious Affairs in October 1983.[7] Meanwhile, on 30 July 1983, the Ghazi Orthodox Parish Church notified the Heraklion police that Jehovah’s Witnesses were meeting in Mr. Manoussakis’s rented room without authorization. The church authorities wanted the police to take punitive action and to prohibit further unauthorized meetings.[8] Between November 1983 and December 1984, the Ministry of Education sent five letters to Mr. Manoussakis and his fellow Jehovah’s Witnesses saying that it could not grant a permit because it «had not received all the necessary information from the other departments concerned.» The Ministry took no further action on the application for a permit.[9] In March 1986, the Heraklion authorities began the prosecution of Mr. Manoussakis and his associates for having «established and operated a place of worship for religious meetings and ceremonies of followers of... the Jehovah’s Witnesses’ denomination without authorization from the recognized ecclesiastical authorities and the Minister of Education and Religious Affairs, such authorization being required for the construction and operation of a church of any faith.»[10] Greek laws required a valid application to come from at least fifty families «from more or less the same neighborhood and living in an area at a great distance from a temple of the same denomination, it being assumed that the distance makes it difficult for them to observe their religious duties.»[11] The law also required the Minister of Education and Religious Affairs to consider the non-binding «preliminary finding» of the local Orthodox Metropolitan as to whether «the true position regarding religious practice in the locality» warranted the construction of a temple.[12] In convicting the defendants, the Heraklion Criminal Court found that they «had converted the room that they had rented into a place of worship, in other words a small temple... without the authorization of the recognized ecclesiastical authority and of the Ministry of Education and Religious Affairs.»[13] The convictions were upheld by Greek appellate courts and the Heraklion police sealed the room rented by the Jehovah’s Witnesses. The European Court of Human Rights held that under Article 9 of the European Convention on Human Rights, «the restrictions imposed on the Jehovah’s Witnesses by the Greek Government effectively prevent them from exercising their right to freedom of religion.»[14] Article 9 sets forth three tests for determining whether government action impermissibly interferes with the freedom of religion or belief; government action must not violate any of the tests in order to be legitimate. First, limitations must be «prescribed by law.» This requirement «does not merely refer back to domestic law but also relates to the quality of law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention.»[15] The «prescribed by law» requirement can therefore be considered a «rule of law constraint.»[16] Second, limitations must have a «legitimate aim,»[17] specifically «in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.»[18] Third, limitations must be «necessary in a democratic society.»[19] The «necessary in a democratic society» requirement was the basis for the Court’s holding Manoussakis. The Court said that the Jehovah’s Witnesses’ conviction had been persecutory, unjustified and not necessary in a democratic society as it had been «manufactured» by the State. The State had compelled the applicants to commit an offence and to bear the consequences solely because of their religious beliefs. The apparently innocent requirement of an authorization to operate a place of worship had been transformed from a mere formality into a lethal weapon against the right to freedom of religion. The term «dilatory» used by the Commission to describe the conduct of the Minister of Education and Religious Affairs in relation to their application for an authorization was euphemistic. The struggle for survival by certain religious communities... [including] Jehovah’s Witnesses was carried on in a climate of interference and oppression by the State and the dominant church as a result of which Article 9 of the Convention had become a dead letter.[20] The Court noted particular practices in the Manoussakis case that were not justified: «a very wide discretion [in] the police, mayor or chairman of the district council»;[21] «the possibility for the Minister of Education and Religious to defer his reply indefinitely... or to refuse his authorization without explanation or without giving a valid reason»;[22] the government’s power «to assess whether there is a ‘real need’ for the religious community in question to set up a church»;[23] and the fact that in its judgment the Heraklion Criminal Court «relied expressly on the lack of the bishop’s authorization as well as the lack of an authorization from the Minister of Education and Religious Affairs.»[24]
III. Models of the Relationship Between Church and State
The fundamental principles articulated in Manoussakis must be applied within a range of possible church-state systems. The position of religion in any given society depends on religion’s relationship with the state and its role in state life. At one extreme, there are countries where ecclesiastical power is inseparably linked with state power and is foundational to its structure. This power is exercised through legislation and legal procedures, which are based on the norms of the dominant religious community. In these countries we commonly find prohibitions or limitations on the activities of «non-official» religious associations. Islamic countries provide vivid examples of this model. For example, in compliance with article 4 of the Islamic Republic Constitution of Iran, all civil, criminal, financial, economic, administrative, cultural, military, political and other laws and regulations must be based on Islamic criteria. By positioning this article prior to other articles, the founders of Iran’s constitution symbolically emphasized that religion forms the basis for state action in Iran.[25] At the other extreme, there are countries that do not recognize religion as an important part of social life and even have a negative attitude towards it. In this model, all religious associations are under strict supervision by the state; religious activity is essentially limited by law and, in some cases, it is presumed that religion will die out in the near future. Communist systems exemplify this model. As Darin W. Carlson writes, «[а]ccording to Chinese theorists, until the time when religion naturally dies out, it should be tolerated by the state in order to prevent its being driven underground.... [T]he policy of the [Chinese Communist Party] is to protect religious activity to the extent necessary to promote its extinction, with the caveat that religion must never be allowed to disrupt the harmony and progress of the state.»[26] Between these two poles are other models of church- state relationships. There are state churches that are granted special privileges and a large impact on state affairs. There are models of separation between church and state in which all religious associations are treated equally and both church and state avoid interference in each other’s affairs. There are models in which states formally recognize the equality of churches, but where, in fact, the system favors one religion.[27] We focus primarily on systems that fall between the two extremes, although the legal principles explored here have force wherever governments acknowledge the fundamental freedom of religion or belief and the necessity of the rule of law.
IV. Registration and Recognition Requirements
Many states exercise broad and far-reaching discretionary powers in the registration and official recognition of religious associations. These common registration requirements often force religious associations to contact the state in their infancy. The decisions of state bodies (courts, justice departments, internal affairs departments, ministries of education or specially formed departments on religious affairs) concerning registration or recognition of religion may decide the fate of an association. This begs the questions, why is it necessary either to register or to recognize religious associations? Can religious associations operate without being recognized? The answers to these questions will be different in each country. Because the answers vary, the consequences of registration, recognition or refusal are extremely important for religious associations in some countries and are unimportant in others. In some countries, national legislation links the opportunity to satisfy demands for religious freedom with the necessity of registration or recognition of religious associations by state bodies. Such constraints, pursuant to which only registered bodies can assert religious freedoms, are problematic under international norms.[28] In many countries, believers and their groups may freely operate without registration or official authorization from the state.[29] In addition, religious associations may create or participate in voluntary associations or non-profit corporations without being distinguished in a legal sense from any other non-profit organizations. Refusal to register a religious organization does not necessarily mean that the organization cannot continue to operate or that its foundation is contrary to law. (In this situation it is more correct to say that an organization is not recognized as a religious entity rather than that a religious organization is forbidden.) The believers can instead choose another form, but lack of official recognition as a religious organization may seriously affect the reputation of the organization and its property status.[30] Even more serious consequences occur, however, when, as a consequence of the refusal to register, the state considers it impossible to qualify the believers’ activity as a religious organization and accordingly limits its activities. At the same time, in accordance with the accepted practice in many countries,[31] official registration or recognition of an association as a religious one automatically brings official approval of the association,[32] which in turn rewards the association with certain property status, tax privileges, and state support. The «approved» organization may also receive access to schools, television, radio and other advantages.[33] The question of recognition is closely connected with granting a religious association the status of legal entity and legal capacity.[34] Nonetheless, in some countries, even registration cannot guard against state interference in the future. In Russia, the local authorities of one region tried to close a congregation of the Evangelical Lutheran Church under the false pretext that their charter documents were fraudulent.[35] In a number of countries there is no registration of religious associations. However, a state may recognize and grant certain privileges to a religious organization through alternative methods such as by making agreements between state and religious associations or by passing distinct laws directed at specific religious associations.[36]
V. Problematic Modes of Exercising Discretion
In this section, we consider the types of problems that religious organizations may face in their efforts to gain discretionary approvals. The situation in Manoussakis typifies many of these problems. We will point out reasons why these obstacles are legally problematic and we will suggest legal arguments that may assist religious associations in demonstrating that such obstacles are inconsistent with appropriate standard of freedom of religion and belief.
A. Unreasonable Delay and Denial By Inaction
In the Manoussakis case, the European Court of Human Rights observed that the group of Jehovah’s Witnesses had made five requests for a house of prayer permit in 1983 and 1984, and each time, in reply, the Minister of Education and Religious Affairs had told them that he was examining their file.[37] Up to the time of the Court’s decision in 1995, the Minister still had not made an official decision on the requests.[38] «In these circumstances the Court considers that the Government cannot rely on the applicants’ failure to comply with a legal formality to justify their conviction.»[39] Given the government’s unreasonable delay in responding to repeated lawful requests, there was nothing that the group of Jehovah’s Witnesses could do to avoid criminal prosecution short of abandoning their right to practice their religion. Lengthy delay in considering an application is one method of effectively shutting down disfavored religious organizations when direct legal means of doing so are not available. Indeed, in Manoussakis, the Court cited evidence that the Minister’s delay in considering the applications may have been motivated by his «difficulty... in giving legally valid reasons for an express decision refusing the authorization or [by] his fear that he might provide the applicants with grounds for appealing to the Supreme Administrative Court to challenge an express administrative decision.»[40] The Manoussakis court considered this type of delay one reason for violation of Article 9; the government’s unreasonable delay created a limitation on religious freedom that is not necessary in a democratic society. At a minimum, statutory provisions setting forth governmental decision on approval procedures should be structured in ways that preclude inordinate delay. Reasonable and fixed periods for decisions should be established.
B. Discriminatory Exercise of Discretion
Precisely because many prohibitions and authorizations are discretionary, state officials often fail to apply them even-handedly to all religions and religious associations in the country. As Professor Nowak notes in his chapter, even if state action constraining religious freedom might otherwise be appropriate, such action is impermissible if it is applied in a discriminatory manner.[41] Furthermore, where there is a confessional state structure, the differing roles and status of the various religions in the country increase the arbitrary nature of these discretionary decisions. In addition, legislation in many countries directly secures advantages for some religious organizations over others. For example, according to article 2 of the Constitution of Argentina, «the Federal Government supports the Roman Catholic Apostolic Faith.»[42] Similarly, the Evangelistic Lutheran Church of Iceland is the state religion in Iceland and enjoys state support and protection.[43] Also, in Mongolia, the law grants primary religious status to Buddhism.[44] Even in countries where all citizens are considered equal before the law, some provisions appear to contradict this guarantee of equality by favoring certain religions over others. Though the Russian constitution guarantees religious equality, the preamble of the Federal Law of the Russian Federation 1997 «On Religious Freedom and Religious Associations» recognizes the special contribution of Orthodoxy to the history of Russia and to the establishment and development of Russia’s spirituality and culture.[45] Of course, a preamble lacks operative legal effect, but it is problematic at least in the sense that it signals symbolic preferment. In addition, several countries have reached agreements between church and state prohibiting state bodies from altering the status of religious associations at their discretion. However, such agreements often do not reach all religious associations, but benefit only those with established traditional ties. Thus, for example, in compliance with article 7 of the Constitution of the Italian Republic, the Catholic Church and the Italian state are independent and sovereign in their own spheres.[46] However, the Italian Constitution does not specifically address the independence of other, smaller religions. Sometimes competing factions of registered associations are unable to operate because the state favors one faction over another. In Kazakhstan, where one of the major religious structures is the Russian Orthodox Church (Moscow Patriarchy), the government refused to recognize the Russian Orthodox Church functioning abroad (Karlovatsky Schism), which does not recognize the jurisdiction of the Moscow Patriarchy. From these observations we can note that despite the formal equality granted believers and their associations, even in countries where there is no established church, some religions receive more favorable treatment by the state than others. Many researchers of church and state relationships recognize and emphasize this contradiction. For example, in Belgium, «[а]lthough all cults enjoy theoretically the same rights, there is an important juridical difference between recognized and non-recognized cults.»[47] In Portugal, despite the constitutional progress in matters of equality and autonomy, one scholar noted that the principle of equality has not yet been fully recognized.[48] The state, in its discretion, can use its supervisory and regulatory authority over religion domestically to protect its traditional confessions. In doing so, it might also violate the rights and freedoms of believers who do not belong to traditional religions. The practice of utilizing discretionary power, in many aspects, depends on the role that state authorities perceive believers and their followers to play in society. It makes a difference whether authorities see religion, as a whole or as a particular denomination, as something to be prized and protected or whether they see it as a peril that must be limited. The treatment of religion also depends on whether it is considered an extremely private matter, in which case state interference would be prohibited, or whether religion is considered to be a public matter, in which case close cooperation between state and religious associations would be considered inevitable. Certain minority or suspect religions may face even higher barriers from state actors. This problem arises in cases of the recognition and registration of non-traditional organizations, or, so-called innovative religious movements, which, for some reason, may be considered «undesirable» associations by the state or citizenry.[49] Such special prohibitions on registration or recognition appear in other countries in regards to «unknown» and non-traditional religious associations. In order to comply with the registration legislation of Russia, the organization wishing to obtain registration must submit documentation confirming that it has been functioning for at least 15 years in Russia.[50] Similarly, in Lithuania, an organization seeking status as a «traditional religion» must wait for a period of 25 years or longer.[51]
C. Substantive Review of Doctrinal Belief
At its most general level, impermissible substantive review can occur at the level of definition itself. There is always an element of subjectivity in discretionary processes, but the lack of consensus and predictability is especially obvious where there is no formal legal definition of religion and religious associations. «The French legal system has furnished no definition of a religion.... In practice it is the judge... which decides, case by case and avoiding giving a general definition which could be prayed in aid in other cases.»[52] In the Netherlands, «[n]either the Civil Code nor any other piece of legislation provides a definition of a ‘church.’... In concrete cases, the administration may have to decide on this issue, and, in case of conflict, the court may have to do so.»[53] In Spain, «[t]he Organic Law of Religious Freedom does not provide a legal definition of what can be considered a church or denomination. Furthermore, the concept of ‘religious purposes’ is confusing because the law provides no legal definition.»[54] American scholars Michael Ariens and Robert Destro note that even in the United States, «[d]espite half a century of intensive Supreme Court interpretation of the language of the First Amendment, the Court has not offered a constitutional definition of religion.»[55] Such vagueness often leads state actors to use their discretion in deciding whether this or that association has a religious basis during the process of registering religious associations. Professor Alberto de la Hera, Director of the Department of Religious Affairs in the Spanish Ministry of Justice, describing certain matters of inscription when registering religious organizations, explained that, «[a]s for whether the self-denominated groups actually have a religious basis or nature, the decision of the State in favor of or against the inscription in this case is discretionary; that is to say, it is the result of discretionary consideration by the State of a debatable reality.»[56] While definitional problems can be difficult, every effort should be made to insure that they are not invoked in ways that are discriminatory. As the UN Human Rights Committee has noted in its official interpretation of Article 18 of the International Covenant on Civil and Political Rights, The terms belief and religion are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reasons, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility by a predominant religious community.[57] In some countries that do not directly prohibit the registration or recognition of religious associations, the granting of judicial recognition is indirectly restricted through the discretionary process of closely examining specific theology or religious doctrines. Even a large following and a long history of operation in the country or the unquestionably religious nature of the organization, will not prevent the state from exercising its discretionary authority in possibly denying registration or recognition. For example, «[t]he Jehovah’s Witnesses have been in Austria since the 1920s and are 34,000 members strong. They have been trying for over twenty years to become recognized in Austria.... The question of whether or not they should be recognized bounced between the government and the Austrian courts for some years.»[58] Austria only recently resolved the question when the Jehovah’s Witnesses were finally refused recognition. According to the Austrian Minister of Education, this was due to their intolerant attitude towards government, their non-participation in blood transfusions (especially for children) and the fact that the church would be led from Brooklyn, New York.[59] The laws of some countries require an investigation to determine whether a given organization is religious or not. As a result of such a requirement in Kazakhstan, the Church of the Last Testament was refused registration on the grounds that it was a philosophical rather than a religious trend. At the same time, however, the Church of the Last Testament was registered in Russia. Because organizational patterns and practices are sometimes matters of belief, government review of religious belief also can occur when the state dictates organizational practices that a church must follow. Often this type of state intervention is unintentional. As Cole Durham observed, Laws designed with particular models of ecclesiastical polity in mind may force other religious organizations into Procrustean beds. In part this is a problem that what works for one faith community (e.g., a denomination with a hierarchial structure) does not work for another denomination (one with a congregational, or connectional, or representational structure). But it is also a problem of the complexity of religious organizations. Laws written with a Church in mind do not necessary apply neatly when the organization is a religious order. Wooden interpretations or insensitive rules can complicate the problem.[60]
In some cases, however, government intervention is dramatically more direct. For example, in the Case of Hasan and Chaush v. Bulgaria,[61] the Bulgarian government was held to have violated the European Convention’s protection of freedom of religion or belief by intervening in the selection of the Chief Mufti of the Bulgarian Muslim community, twice dictating who would serve in that capacity. International human rights documents place constraints on practices that allow the state to make substantive judgments about religious belief and practice. With reference to the European Convention on Human Rights, the Manoussakis decision announced, «The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.»[62] Principle 16.3 of the Vienna Concluding Document provides that participating states will both «favourably consider applications» and that they «will... grant upon their request to communities of believers, practicing or prepared to practice their faith within the constitutional framework of their States, recognition of the status provided for them in their respective countries.» Principle 16.4 of the Vienna Concluding Document protects the right of religious organizations to make their own decisions about the necessary practices of their faith. States will respect the right of these religious communities to -establish and maintain freely accessible places of worship or assembly, -organize themselves according to their own hierarchical and institutional structure, -select, appoint and replace their personnel in accordance with their respective requirements and standards as well as with any freely accepted arrangement between them and their State, -solicit and receive voluntary financial and other contributions.
Laws and administrative practices violate these principles when they treat different religions unequally,[63] or allow the state bureaucracy to approve the legitimacy of a particular religious belief, or allow the state to interfere in the structure of a religious community.
D. Impermissible Delegation of Authority
Because most countries are committed to the neutrality of the state, situations in which state authority is delegated to religious leaders are unusual. Nonetheless, such problems do tend to recur, particularly when they take non-obvious forms. A religious association that wishes to perform public worship must sometimes obtain permission from the official or state-recognized church, even when not otherwise required by law. For example, when the Seventh Day Adventists, a registered and a very popular community in Russia, tried to obtain permission to hold meetings and conferences, the local government official required the Seventh Day Adventists to first obtain consent from the local Orthodox clergy.[64] When the Jehovah’s Witnesses in the Manoussakis case made application for a house of prayer permit, the government authorities took account of opinions from the local Orthodox clergy in considering the request.[65] The Manoussakis court rejected this type of entanglement between the state and the official church, commenting that the authorities’ actual practices went beyond even the degree of deference that Greek laws gave to the Orthodox Church.[66] Similarly, the United States Supreme Court invalidated a law that gave local churches the power to reject liquor license applications under certain circumstances, saying that even though «[s]ome limited and incidental entanglement between church and state authority is inevitable in a complex modern society,» it is best to preserve religion as «a private matter for the individual, the family, and the institutions of private choice... for the preservation of civil liberty.»[67]
The hypothetical case in which a cleric may have informal private access to government decision makers is also problematic. Even when government and religious leaders do not consciously intend to discriminate against minority religious associations, wherever the decision making process lacks full transparency there may be a suggestion of unfairness.
E. Vague Standards and Unguided Discretion
Several reasons justify discretionary state actions, including the fact that relations within religious spheres cannot be regulated on a precise normative and objective basis. However, Italian professor Silvio Ferrari, while speaking about providing religious associations with ample opportunity to reach agreements with the state for favorable status in financing, religious foundation and pastoral care, mentions that «one of the aspects of Italian ecclesiastical law which attracts criticism concerns the excessive amount of discretion which public powers possess in deciding whether to accept or reject the proposal of a denomination to enter into negotiations on an agreement.»[68]
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