Crosses and Culture: State-Sponsored Religious Displays in the U.S. and Europe

Abstract

This article compares the recent jurisprudence of the U.S. Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious "neutrality," but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favor a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, in contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give "preponderant visibility" to the symbols of traditionally dominant churches. The different conceptions of neutrality reflect institutional and cultural realities. Institutionally, the Supreme Court’s status as a constitutional court allows it to adopt a stricter version of neutrality than the ECtHR, which, as a supranational tribunal without formal appellate authority, must accommodate a variety of domestic church-state arrangements. Culturally, the Supreme Court’s conception of neutrality reflects what the recent sociology of religion literature refers to as the American model, which sees churches as voluntary associations that must compete in a free religious market. This model rejects government expressions of support for particular churches as inappropriate market distortions. In contrast, the ECtHR’s thinner conception of neutrality comports with the European model, which accepts culturally dominant, territorial churches as a given.

Keywords: Church and State, Comparative Constitutional Law, European Court of Human Rights, Religious Displays, Religious Neutrality, United States Supreme Court

JEL Classification: K10, K30