Hans-Martien Ten Napel (Leiden Law School) has posted Beyond Lautsi: An Alternative Approach to Limiting the Government’s Ability to Display Religious Symbols in the Public Workplace. The abstract follows.
One of the central ideas underlying the chapter is that the questions regarding the limits of the government’s ability to display religious symbols in the public sphere, and how judges should deal with the manifestation by citizens of religious symbols in public institutions, are closely interrelated.
First, the Chamber and Grand Chamber judgments in the Lautsi case and several related cases in the Italian context will be discussed. Next, two prototypical reactions will be described: one (Mancini’s) agreeing with the Chamber judgment; the other (Weiler’s) agreeing with the Grand Chamber judgment. Finally, after a brief comparison with U.S. case law, an alternative approach inspired by the concept of positive secularism is sketched as a possible way out of this deadlock. This concept has recently been defended in the report of The Consultation Commission on Accommodation Practices Related to Cultural Differences (CCPARDC), which was responsible for analyzing the challenges posed by a new migratory situation in Québec, Canada, among others. The chapter ends with a conclusion.
Richard Moon (University of Windsor Law) has posted Christianity, Multiculturalism, and National Identity: A Canadian Comment on Lautsi v. Italy. The abstract follows.
The Lautsi decision reflects the deep ambivalence in Western liberal democracies about religion and its relationship to politics. Like the Canadian courts, the European Court of Human Rights (ECtHR) seems to recognize that religion and politics should be separated but that this separation can never be total. While the ECtHR and the Supreme Court of Canada rely at least formally on a similar test for determining a breach of religious freedom (a test that emphasizes the state’s obligation to remain neutral in spiritual matters) their application of the test is guided by different understandings of the public/political significance of religion and more particularly the relationship between religion, civic values, and national identity. The Court in Lautsi seems to accept, or at least acquiesce in, two claims made by the Italian government about the meaning of the crucifix: that it symbolizes the Italian national identity, which is tied to its history as a Christian or Roman Catholic nation, and that it symbolizes the Christian foundation of the civic/secular values of the Italian political community – the values of democracy and tolerance. Behind the claim that the crucifix is not simply a religious symbol but also a symbol of the Italian identity and political culture, is the draw of a thicker or richer form of national identity than that offered by civic nationalism. The assumption is that Italians are held together in a political community not simply by their shared commitment to liberal values or democratic institutions but by a common culture rooted in a religious tradition. Religion and politics are joined at the core of national identity and the root of political obligation. This link between religion and politics, though, rests on the problematic claim that the values of democracy and tolerance emerged directly from Christianity (and are the logical, even necessary, outcome of Christian doctrine) and the disturbing claim that Christianity is uniquely tied to these values. While religion does sometimes intersect with politics in Canada, it no longer plays a role in the definition of the country’s national identity. Canada, sometime ago, embraced multiculturalism as the defining feature of its national identity and liberal-democratic values as its political bond. There is no doubt that Canada’s moral/social culture has been shaped in different ways by the Christian faith of earlier generations, nevertheless any attempt to formally link Canadian national identity to a particular religious tradition would run against the country’s self-conception as a multicultural (multi-faith) society.
This November, Martinus Nijhoff Publishers will publish The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom edited by Jeroen Temperman (Erasmus University Rotterdam). The publisher’s description follows.
Increasingly, debates about religious symbols in the public space are reformulated as human rights questions and put before national and international judges. Particularly in the area of education, legitimate interests are manifold and often collide. Children’s educational and religious rights, parental liberties vis-à-vis their children, religious traditions, state obligations in the area of public school education, the state neutrality principle, and the professional rights and duties of teachers are all principles that may warrant priority attention. Each from their own discipline and perspective––ranging from legal (human rights) scholars, (legal) philosophers, political scientists, comparative law scholars, and country-specific legal experts––these experts contribute to the question of whether in the present-day pluralist state there is room for state symbolism (e.g. crucifixes in classroom) or personal religious signs (e.g. cross necklaces or kirpans) or attire (e.g. kippahs or headscarves) in the public school classroom.
On June 22 in Rome, CLR co-hosted a conference, State-Sponsored Religious Displays in the US and Europe, with the Department of Law at Libera Università Maria SS. Assunta (LUMSA). Videos of the panels are now available below. Papers will appear in a forthcoming issue of the Journal of Catholic Legal Studies.
- Silvio Ferrari (Università di Milano – Facoltà di Giurisprudenza)
Session 1: Cultural or Religious? Understanding Symbols in Public Places
- Thomas C. Berg (U. of St. Thomas School of Law)
- Carlo Cardia (Università di Roma Tre – Facoltà di Giurisprudenza)
- Eduardo Gianfrancesco (LUMSA – Dipartimento di Giurisprudenza)
- Francesco Margiotta Broglio (Università di Firenze – Facoltà di Scienze Politiche)
Session 2: The Lautsi Case and the Margin of Appreciation
- Monica Lugato (LUMSA – Dipartimento di Giurisprudenza)
- Marc O. DeGirolami (St. John’s U. School of Law)
- W. Cole Durham, Jr. (Brigham Young U. Law School)
Session 3: State‐sponsored Religious Displays in Comparative Perspective
- Diarmuid F. O’Scannlain (U.S. Court of Appeals for the Ninth Circuit)
- Paolo Cavana (LUMSA – Dipartimento di Giurisprudenza)
- Mark L. Movsesian (St. John’s U. School of Law)
- Sophie C. van Bijsterveld (Tilburg U. School of Humanities)
Posted in CLR News, Marc O. DeGirolami, Mark L. Movsesian, Scholarship Roundup
Tagged Church-State Relations, Comparative Law and Religion, Conferences, Faculty Appearances, Italy, Lautsi v Italy, Religion in Europe, Religious Symbols
Last week, CLR hosted a conference in Rome on state-sponsored religious displays, along with our colleagues at the Department of Law at LUMSA. The conference, held at LUMSA’s main campus in the Borgo, drew about 100 people and included panels on the cultural and religious meanings of symbols, the Lautsi case and the margin of appreciation, and a comparison of American and European jurisprudence. I moderated one panel and spoke on another, so I couldn’t take notes on everything. Here are some notes on a few of the day’s very fine presentations, though. Selected papers will appear in a forthcoming issue of the Journal of Catholic Legal Studies.
Silvio Ferrari (University of Milan) opened the conference by offering a framework for understanding state-sponsored religious displays. After describing the three models European nations have adopted with respect to such displays, Ferrari noted the central problem: “religious” symbols often have a variety of meanings, both religious and cultural, that one cannot easily disentangle. He suggested relying on Jurgen Habermas’s distinction between an “informal” public space, like a town square, and an ”institutional” public space, like a courtroom. In the former, Ferrari argued, religious symbols might be permissible; in the latter, they should be prohibited. He concluded by stressing the benefits of the debate on state-sponsored religious symbols. The debate itself is important, he argued, because it forces people to take religious symbols seriously as a public question.
In the day’s second panel, Monica Lugato (LUMSA) gave a paper on the conceptual roots of the margin of appreciation doctrine, which played a central role in the Grand Chamber’s judgment in Lautsi. She explained how the doctrine, which grants national governments discretion in applying the rights guaranteed by the European Convention, follows from basic rules of treaty interpretation and coheres with the principle of subsidiarity. My CLR colleague Marc DeGirolami followed with a paper on the shift from an abstract, single-value jurisprudence to one that considers the many possible meanings of religious symbols. For example, he argued, the Latin cross has many possible references; he praised the new recognition of the multiple meanings of religious symbols in American and European jurisprudence. Cole Durham (BYU) ended the panel with a call for an authentic “pluralistic secularity,” a midway point between “confessionalism” and “fundamentalist secularism,” that would allow national majorities to celebrate their culture but not impose religion on minorities. Durham argued that the Grand Chamber’s judgment in Lautsi struck an appropriate balance in this regard.
Jeroen Temperman (Erasmus University Rotterdam) has posted Religious Symbols in the Public School Classroom. The abstract follows.
This paper flags a couple of preliminary legal questions that are remarkably often ignored or trivialized by (international) courts. Underscoring the importance of identifying primary rights holders, genuine conflicting interests, and the obligations of duty bearers in symbol cases, this contribution illustrates that much depends on who can be identified as ‘symbol-displayer’ and who as ‘symbol-viewer’ and within which particular (public) setting. Focusing on public school education, the paper addresses such questions as under what circumstances may State neutrality be considered a legitimate ground for limiting fundamental rights. And who is actually supposed ‘to be neutral’ according to human rights law –– States, buildings, the ‘public square’, civil servants, teachers, students, and/or pupils? When does a symbol truly ‘interfere’ with the rights and freedoms of others or with public order? And who is to prove that? Also, what are the exact standards of proof in symbols cases?
The Center for Law and Religion is delighted to announce that Professor Joseph Weiler (NYU) will visit us at St. John’s Law School next Monday, March 5, at 5:30 pm. His is the third session in our ongoing seminar, Colloquium in Law: Law and Religion. Professor Weiler will be presenting a paper dealing with the case of Lautsi v. Italy, which involved the display of the crucifix in Italian public schools and in which he was an advocate for several intervening European states. Academics in the New York area and beyond are welcome to attend. Please contact me if you wish to do so.
Pablo Cristóbal Jiménez Lobeira (Centre for European Studies (ANU); Centre for Applied Philosophy & Public Ethics (CSU)) has posted Public Schools and Crucifixes: What Kind of Neutrality? – Reflexions on the Principle of Secularism in a Plural Europe. The abstract follows.
Lautsi v Italy attracted widespread attention in Europe and beyond. At stake were different conceptions of neutrality of the modern secular state. Though the contention was about a Christian symbol, the European Court’s ruling has consequences for other religions and worldviews present in Europe today. This paper will review different ways in which neutrality can be understood according to the “immanent frame” (Taylor). It will analyze secularism as statecraft and as worldview (Casanova). It will explore the role of religion in the European public sphere in a “post-secular age” (Habermas). Furthermore, it will study the concept of tolerance as inclusion of plurality in the context of Europe’s constitutional traditions than as indifference about, or even hostility towards religion (Weiler). Finally, I will propose an understanding of neutrality in the public sphere that enables interculturalism among the European citizens, and arguably the success of the European Union as an analogical polity.