US Law Professor: Secularity Not Compulsory for Europe

Argues on Behalf of 10 Member States in "Crucifix Trial"

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STRASBOURG, France, JULY 1, 2010 (Zenit.org).- While a strict separation of Church and state may work for countries such as France, it's not compulsory that all the countries of the European Union be secular states, says a US law professor.

Joseph Weiler, a Jewish law professor at the New York University School of Law, said this Wednesday before the European Court of Human Rights on behalf of several third-party intervening states in the "Italian Crucifix Case," which calls into question Italy's right to display crucifixes in its public schools.

Seventeen judges, including Jean-Paul Costa, president of the rights court, heard Italy's appeal of the November decision on Lautsi v. Italy, which ruled in favor of an Italian citizen of Finnish origin who complained in 2002 that the state school where her two children studied violated their freedom by displaying crucifixes.

During the proceedings, the attorney for Lautsi "delivered a strong case" in favor of "total secularism, and stated that he considered the presence of the crucifix to be an expression of the 'tyranny of the majority,'" reported the European Center for Law and Justice in a statement published Wednesday.

"The Italian government passionately argued in defense of religious freedom and its right to express its unique heritage and identity through the display of crucifixes in state-funded schools," the center added.

Weiler, who is the Joseph Straus Professor of Law and European Union Jean Monnet Chair at New York University, delivered his argument on behalf of the member states participating in the case as "amicus curiae" in defense of the crucifix. The European Center for Law and Justice noted that the number of states joining the appeal was "unprecedented, demonstrating the magnitude of this case for all of Europe."

Ten states -- Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Monaco, Romania, the Russian Federation, and San Marino -- officially participated in the case, and four more -- Ukraine, Moldova, Albania, and Serbia -- gave their official support.

Plurality

In his argument, Weiler centered on what he considers errors in the formulation of the principle of "neutrality" by the court. The first error is that while the European Convention on Human Rights provides for "freedom of religion," as well as "freedom from religion," this does not mean that all member states must "espouse laïcité."

The law professor used as contrasting examples the member states of France and England. In France, he said "laïcité is part of the very definition of the state," and "there can be no state-endorsed or -sponsored religious symbol in a public space. Religion is a private affair."

Then, in England, he continued, "there is an established state church, in which the head of state is also the head of the church, in which religious leaders, are members, 'ex ufficio,' of the legislative branch, in which the flag carries the cross and in which the national anthem is a prayer to God to save the monarch, and give him or her victory and glory."

"There is a huge diversity of state-church arrangement in Europe," Weiler explained. "More than half the population of Europe lives in states which could not be described as laïque."

"In Europe," the professor continued, "the cross is the most visible example appearing as it does on endless flags, crests, buildings etc. It is wrong to argue, as some have, that it is only or merely a national symbol. But it is equally wrong to argue, as some have, that it has only religious significance. It is both -- given history that is part of the national identity of many European states."

"This European arrangement constitutes a huge lesson in pluralism and tolerance," he stated. "As part of its pluralism and tolerance, Europe accepts and respects a France and an England; a Sweden and a Denmark, a Greece and an Italy all of which have very different practices of acknowledging publically endorsed religious symbols by the state and in public spaces.

"It may be, that some day, the British people, exercising their constitutional sovereignty, will divest themselves of the Church of England, as did the Swedes. But that is for them, not for this distinguished court, and certainly the convention has never been understood as forcing them to do so."

Neutral?

Regarding the second error, Weiler pointed to the interchangeable use of the terms "secularism, laïcité, and neutrality."

"Secularity, Laïcité, is not an empty category, which signifies absence of faith," he explained. "It is to many a rich world view which holds, inter alia, the political conviction that religion only has a legitimate place in the private sphere and that there may not be any entanglement of public authority and religion.

"It is a political position, respectable, but certainly not 'neutral.' The non-laique, whilst fully respecting freedom of and from religion, embrace some form of public religion as I have already noted.

"Laïcité advocates a naked public square, a classroom wall bereft of any religious symbol. It is legally disingenuous to adopt a political position which splits our society, and to claim that somehow it is neutral."
 
In statements to ZENIT, Gregor Puppinck, director of the European Center for Law and Justice, noted that his center "has great hope and confidence that the court understood that the right of nonbelievers not to believe cannot eclipse the rights of believers (i.e., that 'laicite' is not required by the convention)."

He said the center also "hopes that the court will understand that it cannot and should not require a state to renounce its own deep identity in the name of tolerance and human rights philosophy. Real pluralism would start with respect between the countries."

The decision of the court will not be released until later this year.

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On ZENIT's Web page:

Full text of Weiler's argument: www.zenit.org/article-29769?l=english