I. Historical Background
The Constitution of 1814 formed a new starting point for the relationship between church and state. At the time of enactment it was clear that the idea of an established church belonged to the past. But the Constitution of 1814 did not contain all the prerequisites for separation. Only subsequent constitutions, starting with that of 1815, further continued in the line of development that had already been established. The 1814 Constitution and even more the 1815 Constitution did essentially contain the idea that the State should not interfere with church organisation. In practice, however, the Crown was still actively involved in church matters. The situation would change in the latter part of the century. In the revision of the Constitution of 1848 the chapter on religion was modernised. The 1848 Revision prompted the Roman Catholic Church to restore its hierarchy in the Netherlands. This was achieved in 1853. In that same year the Religious Bodies Act was enacted. Its main merit was the explicit formulation of freedom of internal organisation of the churches. This Act remained to be in force until 1988. The following period was basically one of consolidation as far as institutional relationships between church and state were concerned. In 1983 there was a general revision of the Constitution. The revised Constitution incorporated new fundamental rights including a wide range of social rights. It provided a renewed formulation of fundamental rights which were already protected and also a new formulation of freedom of religion. As of 1983, freedom of non-religious belief is also protected by the Constitution.
II. Religious affiliation today
The Netherlands have about 16 million inhabitants. The percentage of members of the Roman Catholic Church is estimated at 31 %. The Protestant Church in the Netherlands, which exists since May 2004, is the largest Protestant church in the Netherlands in terms of membership. 21 % of the population belongs to this union of three former churches, including the Netherlands Reformed Church, the Reformed Churches in the Netherlands, and the Evangelical Lutheran Church in the Kingdom of the Netherlands. Then there are some adherents of Islam and Hinduism. The number of followers of Islam with various national backgrounds was estimated at 886,000, the Hindu population was estimated at about 95,000.
III. Basic Categories of the System
The system of church and state relationships is characterised as one of separation of church and state. This principle has never been formulated in the Constitution or in any further legislation. Nevertheless it does play a role and is referred to in the legislative process, in administration and in court decisions. The separation of church and state is not a “strict separation” in the sense that church and state should have nothing do to with each other. It is not a church-hostile principle and the idea of a “strict separation” would not be in keeping with social and political realities. In its actual functioning it is best understood by the interpretation of the constitutional provisions in which the principle is embedded as current law against a background of the historic development. This means that the principle of separation of church and state must be interpreted in harmony with the principle of state neutrality and of freedom of religion or belief as reflected in the Articles 1 and 6 of the Constitution. Neither the principle of separation of church and state nor its constitutional expression gives a blueprint for the precise relationship between church and state. Guarantees which in a given period may be seen as necessity for ensuring separation, whether on side of the church or on the side of the state, may eventually become unnecessary. With the development of law and society, the fundamentals on which the relationship between church and state are based, need continuous interpretation and explication, because new safeguards may become necessary.
IV. Cultural and social exercise of functions
Religious denomination, together with political persuasion, has been a driving force for the organisation of social activities. In the early process of development of political parties, religion played a role as a basis of organisation. Schools, hospitals, trade unions, employers organisations, broadcasting companies and other social institutions were and are organised on a denominational basis. Freedom of education comprises the freedom to found a school, freedom of denomination and freedom to administer a school. Private schools are financed by the state under the condition that they meet certain educational standards and comply with the financial conditions. Private denominational universities originated at the end of the last century. Religion is also a relevant factor in the field of mass media. Broadcasting time is allotted to broadcasting companies of which several have a denominational background. Churches are allotted broadcasting time as well. In addition specialised religious care takes place in various types of institutions, such as the armed forces, penal institutions, health care institutions, institutions for young people and homes for the elderly, because the church sees it as part of its task to help people in unusual circumstances. From the perspective of church and state relationships, these forms of spiritual care hold a special position. Although providing spiritual care is the province and responsibility of the church itself, the State has a responsibility as well.
V. Legal foundations
The Article 6 of the Constitution of 1983 guarantees freedom of religious belief as well as freedom of non-religious belief. On the basis of Article 6 and also of Article 9 the Public Manifestations Act was enacted. This Act regulates, among other things, religious manifestations outside buildings and enclosed places, including religious processions. Apart from Article 6, there are other articles of the Constitution which refer to religion. Article 1 does not permit discrimination on the grounds of religion, belief, political opinion, race or sex or any other grounds whatsoever. Furthermore a specific reference to religion can be found in Article 23 which relates to education and guarantees freedom of (denominational) education. The Constitution entails no general guarantee of freedom of conscience, though. Further sources of constitutional law in the Netherlands are the Statute of the Kingdom, further legislation, court decisions, legal custom or precedent, and European and international law. For the determination of legal relationships between church and state, each of these sources has its own significance. But for all that, the basis of church and state relations in the Netherlands is found in the Constitution of 1983.