Regulating Religion in Taiwan:
Historical Background, Changes, and Recent Controversies
One of the most notable characteristics of Taiwan’s approach to regulating religion is that the country has very few laws that directly intervene in religious affairs. Though some other Asian countries have religion-specific statutes that restrict interfaith marriage, regulate proselytization, or criminalize certain strains of religious speech, no such statute can be found in Taiwan’s regulatory scheme. Taiwan’s most well-known statute targeting religious affairs is the Act of Supervision of Temples and Shrines (ASTS).
The ASTS: Past and Present
The ASTS was enacted in mainland China in 1929 against the background of a movement to build schools with temple property. Just one year earlier, the nation had been reunified under the leadership of the Kuomintang (KMT) government, following a chaotic period in the 1910s and 1920s known as the “warlord era” when China had been carved into several independent political entities controlled by competing military cliques. Encouraged by the new political situation centered around the KMT, many Chinese intellectuals committed themselves to thinking about how to rebuild and revitalize the nation. And many of them came to the conclusion that public education needed to be the core of the nation-rebuilding project. However, as the KMT government had just concluded a series of costly military campaigns and thus lacked the financial capacity to provide sufficient educational funding, some intellectuals and educational leaders began to contemplate the idea of nationalizing temple property to build up the public education system.
In response to this call from the social elite, the KMT government drafted a law in 1929 that, if it had passed, would have paved the way for the forcible transfer of temple property to the public-education system. However, in the face of fierce protests from Buddhist and Taoist organizations, the government eventually backed down from its draconian plan for the expropriation-based transfer of wealth from religious entities to the state. Nevertheless, the government would not surrender its power to monitor the ways in which the owners and occupiers of temple property used and managed it. Then at the end of 1929 the KMT government promulgated a new law, the ASTS, stipulating that monks and nuns shall not use the income derived from temple property except for specifically religious purposes (Article 7). It also stipulated that the disposal of temple real estate shall be approved by both the parent religious association to which the temple belongs and the government (Article 8). Monks and nuns failing to comply with these requirements would face harsh punishment: according to Article 11 of the law, those who would violate Articles 7 and 8 would be banished from the temple in question or be prosecuted in the courts.
The ASTS took effect in Taiwan with the conclusion of World War II in the late summer of 1945. At that time, the island was being retroceded from Japan to China (known officially as the Republic of China). However, in 1949, the KMT government suffered a string of military defeats at the hands of Chinese communist forces and fled to Taiwan, which became the last bastion of the Republic of China. Consequently, the ASTS remained in effect only in Taiwan, not mainland China, which, under the victorious Chinese communists, became known officially as the People’s Republic of China.
With its stringent control over religious organizations’ management of their property, the ASTS is consistent with China’s long tradition of monitoring the activities of religious organizations. As the historian Daniel Bays points out, “there has hardly been a Chinese political regime from the Tang dynasty (618–907) to the present that has not required a form of registration or licensing of religious groups or has not assumed the right to monitor and intervene in religious affairs (25, 26).” Although it has its own unique legislative background, the ASTS can be understood as yet another example of centuries-old Chinese traditions manifesting themselves in contemporary Chinese settings.
Despite this appearance of historical continuity, it has become difficult to argue that state–religion relations in Taiwan are simply pure incarnations of Chinese traditions. After all, since the late 1980s Taiwan has undergone a gradual but unmistakable political transformation from the previous authoritarian regime (dominated by the KMT) to a liberal democratic government (with a multi-party system that includes the KMT). Cheng-Tian Kuo, a prominent scholar of religious studies in Taiwan, observes that after the late 1980s, “the democratizing state gradually withdrew its control over religion” and became “very reluctant to intervene in religious affairs unless serious crimes had been committed.”
In 2004, the Constitutional Court of Taiwan struck down two key articles of the ASTS in a decision known as Judicial Yuan Interpretation No. 573. This Interpretation is a landmark religious freedom case, as it is the first in which the Court explicitly recognized the constitutionally protected autonomy of religious associations. The first article invalidated by the Court was Article 2(1), which subjected Buddhist temples and Daoist shrines, but not institutions of other religions, to the law’s regulatory power. The Court, in striking the article down, asserted that it violated the principles of religious neutrality and religious equality. The other article invalidated by the Court was Article 8, which, as we have seen, required that temple owners’ disposal of their religious real estate be approved by both the parent religious association to which the temple belongs and the government. The Court declared this article unconstitutional on the grounds that it infringed on the property rights of temples. Although the ASTS remained in effect as a law, it has to a large extent become a mere “law on the books” without a practical regulatory function.
Conflicts under Neutral and Generally Applicable Laws
In contemporary democratic Taiwan most conflicts between the state and religious organizations or religious individuals emerge as a result of the application not of religion-specific regulations (such as the ASTS), but of neutral and generally applicable laws. For example, in the landmark 1999 decision Judicial Yuan Interpretation No. 490 the Constitutional Court of Taiwan dealt with the issue of whether freedom of religion, as guaranteed in the Constitution, required that the government exempt Jehovah’s Witnesses from the obligatory military service prescribed in the Act of the Military Service System. The Court first gave a definition of the freedom of religion and then divided it into three sub-categories: “the freedom of inner belief,” “the freedom of religious practices,” and “the freedom of religious association.” However, when focusing on the conflict between religious freedom and civic obligations, the Court made quite a remarkable statement:
[N]o one shall renounce the state and laws simply because of his or her religious belief. Thus, because believers in all religions are still people of the state, their basic responsibilities and duties to the state will not be relieved because of their respective religious beliefs.
In this statement, the Court was clearly stipulating that no possibility exists for religious believers to be exempt from the requirements of state law. The “basic responsibilities and duties” borne by religious citizens to the state always trump their religious obligations.
Interestingly, the principle laid out by the Court in Judicial Yuan Interpretation No. 490 is very similar to the position of the U.S. Supreme Court in Employment Division v. Smith (1990). Writing for the majority in that decision, Justice Scalia argued that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’.” Therefore, “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Did Justice Scalia’s comments—and the Smith case, in general—influence Judicial Yuan Interpretation No. 490, which was rendered in 1999, around 9 years after the Smith decision? Given the Constitutional Court of Taiwan’s strong tendency of looking abroad for normative inspiration in interpreting the Constitution, as Wen-Chen Chang and Jiunn-Rong Yeh detailed in their empirical study on the use of foreign precedents by the Court, it is not unlikely that the Court drew inspiration from Smith when considering how to address the conflict between religious freedom and the obligation to comply with a neutral law of general applicability. In the end, the Court rejected the claim by Jehovah’s Witnesses that the obligation of military service violated their religious freedom; thus, members of this Christian denomination obtained no exemption from obligatory military service.
A more recent example of state interference with the decisions and activities of religious organizations through neutral and generally applicable law involves an employment dispute within the China Evangelical Seminary (CES), one of the most prestigious theological seminaries in Taiwan. The plaintiff was a faculty member of the seminary teaching courses in systematic theology. In January 2019, the plaintiff informed the President of the CES that she had gotten married and that her husband was not a Christian. One month later, the CES decided to remove the plaintiff from her faculty position and transfer her to a non-teaching job. In December, the seminary’s Faculty Evaluation Committee decided to formally terminate the plaintiff’s contract on the basis that she had failed to pass the performance assessment. The plaintiff then filed a lawsuit against both the seminary’s transfer decision and its termination of her contract.
In November 2020, the Taipei District Court declared both the seminary’s transfer decision and termination of contract decision null and void and demanded the reinstatement of the plaintiff to her previous position. The court first pointed out that the seminary’s decision to transfer the plaintiff to a non-teaching job violated Article 10-1 of Taiwan’s Labor Standards Act (LSA), which prohibits employers from transferring an employee on the basis of “improper motives or purposes.” According to the court, the transfer in the plaintiff’s case had nothing to do with her job performance. Rather, the transfer was the CES’s way of punishing the plaintiff for exercising her constitutionally protected right to marry. Therefore, in the court’s view, there was no proper motive underlying the transfer.
With regard to the seminary’s decision to terminate the plaintiff’s contract, the court determined that the seminary had violated Article 12 of the LSA. Article 12 allows employers to terminate a labor contract without advance notice under certain conditions, one of them being that the employee is “in serious breach of the labor contract” or “in serious violation of work rules.” Concerning the question of whether the plaintiff was in serious breach of her labor contract with CES, the court pointed out that no part of the contract stated that “the employee’s spouse must be a Christian.” In addition, there was no evidence that the plaintiff was in serious violation of work rules. The court argued that none of the plaintiff’s job duties, including teaching, researching, or providing counseling services, had been negatively affected by her marriage to a non-Christian.
In light of the fact that both the transfer decision and the termination of contract decision were illegal under the LSA, the court reinstated the plaintiff to her previous position as an assistant professor at the seminary. This judgment by the Taipei District Court was upheld by the Taiwan High Court in 2021.
While the judgment by the Taipei District Court can be examined from different perspectives, the court’s decision is an example of how state authorities can be inadvertently insensitive to religious needs when applying a neutral law of general applicability. In a seminal article written in 1996, W. Cole Durham identified eight types of church–state regimes, which he classified according to “the degree of identification between governmental and religious institutions” (15). The eight types of church–state regimes are (19-23):
- “absolute theocracies”
- regimes with “established churches”
- regimes with “endorsed churches”
- “cooperationist regimes”
- “accommodationist regimes”
- “separationist regimes”
- regimes exhibiting “inadvertent insensitivity”
- regimes engaging in “hostility and overt persecution”
According to Durham, a regime with “inadvertent insensitivity” toward religion is one in which “[b]ureaucrats…fail to distinguish between conduct regulated in secular settings…and…similar conduct [regulated] in religious settings” (22). Furthermore, in such a regime, “[r]egulations as initially formulated often lack any anti-religious animus; those drafting the regulations were simply unaware of the religious implications of their regulations” (22-23).
To those who closely followed the developments in the CES case, the Taipei District Court’s judgment was surprising not so much for what it emphasized as for what it disregarded: the judgment did not consider the freedom of religion of institutions. This apparent oversight is curious insofar as the court—in interpreting whether the seminary’s transfer decision had been made on the basis of improper motives—invoked another fundamental right: the plaintiff’s freedom of marriage. While the court took very seriously the plaintiff’s constitutional right to choose whom to marry, it overlooked the constitutional right of the CES to govern its internal affairs in accordance with its religious beliefs. In other words, the court in this case can be said to have inadvertently neglected its obligation to protect the defendant’s right to religious autonomy.
Of course, the right to religious autonomy does not mean that religious institutions have an absolute right to do anything they regard as required by religious tenets. Likewise, some state supervision is necessary to deter religious institutions from abusing religious rights. However, the CES case unavoidably involved the right to religious autonomy, regardless of the Taipei District Court’s failure to acknowledge this fact. The court should have sought to balance these conflicting rights─ freedom of marriage, on the one hand, and freedom of religion, on the other hand─ rather than prioritize the former to the exclusion of the latter. In fact, because the labor contract in question nowhere makes an employee’s marital status a condition of employment, a carefully balanced analysis by the court should still have led to the conclusion that the seminary’s religious interests were outweighed by the plaintiff’s marital freedoms. However, simply because the correct conclusion was drawn does not mean that the correct reasoning was followed. The fact that there was no discussion at all about religious freedom in the court’s judgment is unacceptable.
Overall, religious freedom in Taiwan is reasonably secure, especially when compared to the situation in mainland China under the rule of the Chinese Communist Party. But Taiwan can and should continue to make progress in this area. In particular, I wish to see a future Taiwanese society in which there is a higher level of sensitivity on the part of state authorities regarding their obligation to protect religious liberty. ♦
Rung-Guang Lin is a Postdoctoral Fellow at the Institutum Iurisprudentiae, Academia Sinica, Taipei. His primary research areas include law and religion in Taiwan, state-religion relations, and comparative constitutional law.
Lin, Rung-Guang.“Regulating Religion in Taiwan: Historical Background, Changes, and Recent Controversies.” Canopy Forum, October 18, 2022. https://canopyforum.org/2022/10/18/regulating-religion-in-taiwan-historical-background-changes-and-recent-controversies/