Public funding of religions as a way to ensure religious freedom? Proposition for an analysis of legal theory

Most of the time in Europe – and it is especially true in Belgium, Spain, Italy, Luxembourg and Alsace-Moselle –, public funding of religions is justified by two reasons. On the one hand, this funding “compensates” the confiscations and nationalisations of Church properties that took place in the XVII-XVIIIth centuries (historical justification). On the other hand, religions are funded because of the “social service” they bring to the population (in particular: spiritual support of ministers of worship at different stages of life – birth, marriage, death, etc.). The aim of the paper is to propose a new analysis of the justifications of public funding of religions, based on legal theory. More precisely, my paper suggests that the division between the first, second and third generations of rights must be abandoned, and that every human right must be respected, protected and guaranteed by the three powers (legislative, executive and judicial). As regards ‘Law and religions’ matters, my paper shows that public funding of religions can be analysed as a way to ensure religious freedom. In other words, ensuring effective religious freedom can be seen as a third – and more contemporary – justification to maintain the public funding of religions.