by Matina Smith
Separation of church and state is a fundamental right in the United States under the Establishment Clause of the First Amendment.[1] While this clause has endured its fair share of challenges, courts have upheld it countless times. Although Turkey’s Constitution claims to have a secular republic, stating that “everyone has freedom of conscience, religious belief, and conviction,” the recent conversion of the Hagia Sophia, a museum, back to a mosque threatens secularism in the country and has the potential to undermine citizens’ religious freedom.[2] Worldwide controversy erupted over converting the historical site to a mosque[3] because many people do not realize that the decision came from Turkey’s highest court and not from their President, Tayyip Erdogan. The Council of State granted an appeal to return the building to its former status of a mosque in 2020.[4] The verdict in the case regarding the Hagia Sophia does not concern a question of legality, but instead, a question of if the court used flawed logic in their decision.
In order to understand the significance of this court decision, it is important to grasp the Hagia Sophia’s history. In 360 AD, a cathedral was erected where the modern Hagia Sophia sits today. A tumultuous series of events followed: the first two churches burnt down due to political strife and only the third building remains today, as a declared Isamic mosque by the Turkish Islamic Sultan.[5] In 1934, Turkish Leader Ataturk converted the mosque into a museum, thereby memorializing the history of the landmark.[6] It remained a museum until July 10, 2020, when the Council of State —Turkey’s highest court — ruled in favor of it becoming a mosque again.[7]
While the background of this case is deeply religious, the core legal issue involves property law. Land ownership in Turkey is founded in Islamic Law, meaning the system is socially-based instead of individualistically-based.[8] In 1858, the Land Code of the Ottoman Empire created five different categories of land ownership; the Hagia Sophia falls under foundation land, which is land dedicated to the public interest.[9] Turkey’s modern property law divides foundation land into two groups: either established before or after the Republic.[10] If the land was designated as a foundation site before the Proclamation of the Republic, it is not possible to establish new foundations, and vice versa.[11] After the Hagia Sophia became a museum in 1934, after the Proclamation of the Republic, it was registered in cadastral proceedings[12] under the Ebul Fetih Sultan Mehmet Foundation as an archaeological site.[13] Therefore, the Council of State used flawed reasoning in deciding the 1934 conversion into a mosque was unlawful because they claimed Ataturk incorrectly applied Ottoman foundation property law.[14]
This decision sparked local and global outrage, not because of the incorrect legal precedent, but rather due to the significance the Hagia Sophia holds in Turkey. The organization UNESCO (United Nations Educational, Scientific, and Cultural Organization) protects the Hagia Sophia museum as a World Heritage site,[15] which resulted in them publishing a statement almost immediately after Turkey’s Council of State decided President Erdogan could turn the historic landmark into a mosque.[16] The conjunction of the Council of State’s and President Erdogan’s blatant disregard for the cultural and historical implications of the Hagia Sophia angered citizens. Regardless of religious affiliation, there was a backlash from Turkish citizens and others around the world, including the U.S. Secretary of State Mike Pompeo, Greece’s government, Russian officials, and leaders of the Orthodox church, among others.[17] Additionally, both practicing Muslims and non-Muslims living in Turkey were upset with the decision because the museum had represented religious harmony for the country.[18]
For almost a century, the Hagia Sophia symbolized religious peace despite its complex religious history. The conversion back to a mosque sparked an outcry due to the implications this decision has for Turkey. While President Erdogan’s conservative religious base fully supported the move, almost no one else did. The Hagia Sophia’s conversion indicates above all else President Erdogan’s intention to hinder Turkey’s progress towards secularism in recent years, and a move back to their Ottoman status of Islamic religious dictatorship.
[1] U.S. Const. amend. I.
[2] Turk. Const. art. XV
[3] Samiya Latief, Explained: Controversy Revolving around Turkey's Hagia Sophia - Times of India. Tʜᴇ Tɪᴍᴇs ᴏғ Iɴᴅɪᴀ (Jul 10, 2020, 7:14 PM), https://timesofindia.indiatimes.com/world/middle-east/explained-controversy-revolving-around-turkeys-hagia-sophia/articleshow/76895635.cms.
[4] Daniștay, Onuncu Daire [Council of State, Tenth Chamber] Matter No. 2016/16015, Decision No. 2020/2595 (July 2, 2020), translated in Court Decision Annulling Cabinet Decision of 1934 Converting Hagia Sophia into a Mosque, SHARIASOURCE (July 28, 2020), https://beta.shariasource.com/documents/3778.
[5] Hagia Sophia Timeline. Aᴜsᴛɪɴ Wᴇʙ Dᴇsɪɢɴ (February 16, 2021), https://www.pallasweb.com/deesis/timeline.html.
[6] Merrit Kennedy & Peter Kenyon, Turkey Converts Istanbul's Iconic Hagia Sophia Back Into A Mosque. NPR (July 10, 2020, 10:37 AM), https://www.npr.org/2020/07/10/889691777/turkish-court-ruling-clears-way-for-hagia-sophia-to-be-converted-to-a-mosque.
[7] Id.
[8] Coruhlu, Yakup Emre, Bayram Uzun & Okan Yildiz, Conflict over the Use of Hagia Sophia: The Legal Case. Lᴀɴᴅ 9, ɴᴏ. 10 (2020): 350. https://doi.org/10.3390/land9100350.
[9] Id.
[10] John C. Dewdney & Malcolm E. Yapp, Declaration of the Turkish Republic. Eɴᴄʏᴄʟᴏᴘæᴅɪᴀ Bʀɪᴛᴀɴɴɪᴄᴀ (August 5, 1998), https://www.britannica.com/place/Turkey/Declaration-of-the-Turkish-republic.
[11] Id.
[12] Government of the Philippine Islands v. Martino Tombis Triño, G.R. No. 26849 (1927), https://www.chanrobles.com/cralaw/1927septemberdecisions.php?id=98 (“In a cadastral proceeding, a court has no jurisdiction to decree a lot as not contested when it is contested, and to proceed to adjudication without giving the opposing parties an opportunity to be heard.”)
[13] Id.
[14] Id.
[15] UNESCO World Heritage Centre, World Heritage. UNESCO Wᴏʀʟᴅ Hᴇʀɪᴛᴀɢᴇ Cᴇɴᴛʀᴇ (Accessed February 23, 2021). https://whc.unesco.org/pg.cfm?cid=160. (“The United Nations Educational, Scientific and Cultural Organization (UNESCO) seeks to encourage the identification, protection and preservation of cultural and natural heritage around the world considered to be of outstanding value to humanity.”)
[16] Audrey Azoulay, UNESCO Statement on Hagia Sophia, Istanbul. UNESCO (July 10, 2020), https://en.unesco.org/news/unesco-statement-hagia-sophia-istanbul.
[17] Id.
[18] Id.