State Neutrality and the Limits of Religious Symbolism
University of Amsterdam
April 4, 2012
Penultimate version of a chapter to be published in Jeroen Temperman (Ed.) The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, (Leiden, Boston: BRILL/Martinus Nijhoff, 2012)
Amsterdam Law School Research Paper No. 2012-54
General Subserie Research Paper No. 2012-04
The European Court of Human Rights (ECtHR) has concluded that the mandatory display of crucifixes in public school classrooms does not violate the European Convention. Many have questioned whether a supra-national court like the ECtHR is entitled to interfere in issues that are so intimately linked to the national identity of state parties. However, even if one agrees that the Court’s Grand Chamber was in the end correct not to interfere (by employing the margin of appreciation), one can still question whether a constitutional democracy like Italy is justified in enforcing an explicit Christian symbol in public schools.
In this chapter, I analyze the Lautsi case from the perspective of state neutrality. It is generally acknowledged in legal and political philosophy that contemporary constitutional democracies cannot be formally linked to some religious confession, except in a vestigial and largely symbolic sense. As Rajeev Bhargava argues, the idea of neutrality requires a “principled distance” between religion and the state, two entities that should be seen as distinct spheres with their own respective areas. In this chapter, I analyze whether the wish to hold on to such a religiously inspired tradition is consistent with the idea of state neutrality, a central value of contemporary constitutional democratic states.
In the first part of the Chapter (sections II–III), I analyze the arguments that were employed when the case was before the ECtHR. In the second part (sections IV-VIII), I analyze the obligatory crucifix in terms of state neutrality. I argue that the Italian insistence on holding on to the obligatory display of the crucifix is an example of what I will call the European constitutional deficit: the unwillingness or inability of European states to justify government institutions in a way that does justice to the pluralistic nature of European societies.
Number of Pages in PDF File: 20
JEL Classification: L28, K19
Date posted: April 5, 2012 ; Last revised: March 4, 2015