Here, voters are asked whether they wish the new Constitution to contain provisions on a national church in Iceland, as has been the case in the Constitution up to now. It should be noted that the question does not cover voters’ attitudes on a separation between the present national church and the state.
The way things are now
Article 62 of the Constitution states that Evangelical Lutheran Church shall be the State Church in Iceland and, as such, shall be supported and protected by the State. Provision is made for this to be amended by law, which is an exception from the general procedure applying to amendments of the Constitution: no other amendments can be made by the ordinary enactment of legislation. There is nevertheless a special rule in the second paragraph of Article 79 of the Constitution to the effect that amendments regarding the status of the church must be approved in a referendum.
The Constitution contains no further description of the form that support and protection of the State Church is to take; this can be found, however, in ordinary statutes, and in particular the Act on the Status, Governance and Functioning of the National Church, No. 78/1997. The view has been taken that owing to its special status, the National Church has certain obligations in Icelandic society which it is to discharge towards the public as a whole, and not only to those who are part of its congregation.
The Constitutional Council’s proposals
Under the proposals of the Constitutional Council, Article 19, there would be no provisions determining the status of churches in the Constitution, and thus no mention of the National Church. It is proposed that the status of churches be determined in ordinary statutes, amendments to such statutes being put to a referendum; thus, the nation would continue to be in a position to adopt a position directly on the issue, as is provided for in the present Constitution. A provision on the referendum requirement would thus be added to the Act on the Status, Governance and Functioning of the National Church, which would continue to be in force.
According to the explanatory notes to the Constitutional Council’s proposals, the removal of the provision on the National Church from the Constitution was one of the most hotly disputed matters that the council discussed. The notes also state that the aim of the article is to make it easy for the legislature and the executive to take a decision on the status of the church in Iceland in the future; such a decision would necessitate a referendum in which the nation itself would decide how the issue were treated.
Discussions and arguments
Established national churches are found in many countries in Europe. The constitutional provisions on the National Church in Iceland are derived from those in the Danish constitution; a materially identical provision is still in Denmark’s constitution of 1953. The Supreme Court ruled that the provision was compatible with the principles of the Constitution regarding freedom of religion and equality, and also the international human-rights conventions that Iceland has ratified, providing that it does not abridge the individual’s right to practice another religion, found a religious association or to remain unaffiliated to the National Church or other religious associations, and providing individuals do not suffer discrimination in consequence.
The rules of the Constitution represent a covenant regarding the structure of the state and the position of the individual within it. They are therefore more important than other rules, and take precedence over ordinary statutes. The constitutional provisions stating that the Evangelical Lutheran Church is to be the State Church in Iceland entails the conferral on the National Church of a role as part of the constitutional structure of society.
Opinion was divided among the experts whom the council turned to on this point. Some experts were the opinion that dropping the provision on the State Church from the Constitution and having provisions on the status of the church in ordinary statutes is the first step in the direction of a separation of church and state. Others expressed the view that the provision on the State Church could not be dropped from the Constitution without submitting the decision to do so to a binding referendum in accordance with the second paragraph of Article 79 of the Constitution, as it would entail an amendment to the status of the church. Others again were of the opinion that dropping the provision, as the proposals envisage, would be a viable course of action.
 Judgement of the Supreme Court of Iceland, 25 October 2007, Case No. 109/2007.