The Power of Symbols and Symbols as Power: Secularism and Religion as Guarantors of Cultural Convergence
University of Bologna School of Law; Johns Hopkins University (SAIS)
June 1, 2009
Cardozo Law Review, Vol. 30, No. 6, pp. 2629-2668, 2009
This paper focuses on the conflicts that arise in relation to the 'the place' of religious symbols in the public sphere, and, specifically, in State schools. Religious symbols in the public schools typically raise two sets of conflicts. The first set of conflicts arises over the extent to which the right to wear religious symbols and clothes can be limited in the name of other rights and principles of equal constitutional value. In principle, this type of conflict may arise both in relation to the denomination of the majority as well to those of religious minorities. The French Law of March 17, 2004, which prohibits 'the wearing of symbols or clothing by which students conspicuously manifest a religious appearance' in all State schools, is neutrally worded and therefore applicable to all symbols, including Christian ones. In practice, however, controversies have arisen exclusively in relation to the right of pupils belonging to religious minorities to wear their symbols and have almost exclusively concerned Islamic schoolgirls.The second type of conflict arises when a religious symbol, such as the crucifix, or the crèche, is used as a 'public language' of identity by State authorities. In this case, unlike in the first type of conflict, the contested symbol represents the dominant religion and not that of minority groups.
In this paper, I propose to jointly address the two different sets of conflicts, as they both have to do with the relationship between religion and constitutional identity as well as with the different understandings, uses and driving principles of secularism as a constitutive element of constitutionalism. Moreover, conflicts over majority and minority symbols reveal an increasing blurring of the line between secularism and religion. On the one hand, religions have become 'deprivatized' and seek a wider role in the public sphere as well as in the political arena. On the other hand, the neutral character of secularism and its ability to solve religious conflicts in pluralistic societies is increasingly contested.
Conflicts over religious symbols arise as a consequence of the de facto pluralistic character of European societies. However, a comparative analysis of the reactions of courts and legislators confronted with such conflicts shows a tendency to counter or minimize pluralism, rather than to seek a reasonable accomodation for the different religious components of the polity. In both conflicts over majority as well as over minority symbols, courts and legislators tend to secularize the meaning of religious symbols and interpret it according to the sensitiveness, the prejudices and the claims of the majority. On the one hand, the religious significance of majority (Christian) symbols is watered-down and interpreted in 'cultural' terms, not as the symbols of a given religion, but rather as inditia of the historical and cultural dimensions of national identity. On the other hand, minority, and, particularly, Islamic symbols are interpreted as expressions of cultural and political values and practices which are ad odds with liberal and democratic ones. The wearing of traditional female Islamic clothing, for example, is often prohibited or limited because it supposedly clashes with gender equality. The practical results of this attitude is that crucifixes may be displayed in the public schools because secularized Christianity represents a structural element of the western constitutional identity, while the wearing of Islamic symbols is either banned or restricted, because they represent values and practices which are cast as illiberal and undemocratic.
I will analyze cases decided and laws adopted in various jurisdictions, with sharply different models for managing the relationship between the state and religion: Italy, Germany, France and the United Kingdom. I will also consider the case-law of the European Court of Human Rights, which is invested with the task of striking a balance between unity and diversity in 47 states with deeply divergent constitutional traditions. Despite the differences among all of these systems, all cases rely, more or less explicitly, on a dichotomous construction of the relationship between Christianity and Islam, according to which the first, to be sure in a secularized form, is projected a central component of Western civilization, while the latter is cast a threatening 'other' Both the imposition of Christian symbols in the public schools as cultural mainstays, as well as the as the restrictions on the right to wear Islamic symbols in the name of secularism correspond to this logic. Secularized religion and secularism are used in order to exclude the other and protect the culturally homogeneous character of European societies that is perceived - and even explicitly described - as threatened by pluralism and globalization.
Number of Pages in PDF File: 40
Keywords: religion, secularism, crucifix, veil, Islam, Christianity, state, minority
Date posted: October 2, 2009