Post‐Secularism and the European Court of Human Rights: Or How God Never Really Went Away
| Published date | 01 November 2012 |
| Date | 01 November 2012 |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00933.x |
Post-Secularism and the European Court of Human
Rights: Or How God Never Really Went Away
Ian Leigh and Rex Ahdar*
This article analyses the critical yet elusive notions of state neutrality, secularism and religious
coercion under the European Convention in light of the European Court of Human Rights
recent decision in Lautsi vItaly.We contend that the real concern in the Italian crucifix case was
not the infringement of the school pupils’ religious freedom nor the proselytisingor coercive effect
of the‘passive’ religious symbols.Rather, opponents of the longstanding symbols wereanimated by
desire for strict religious equality,a notion that is, correctly in our view, not guaranteed under the
Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neu-
trality and the varieties of secularism, reined in the elastic notion of religious coercion and
eschewed attempts to squeeze the constitutional diversity of European religion-state frameworks
into a strict American-style separationist mould. The Convention jurisprudence on freedom of
religion has finally come of age.
Since Nietzsche announced the death of God,1the secularisation thesis has held
sway in much of theWestern world.According to this once unquestioned axiom
of Western intellectual thought, the decline in the social significance of religious
institutions was inevitable as modernisation proceeded.We may concede that this
part of the secularisation argument was largely accurate. But, the thesis also
insisted that, along with the loss in the precedence of religion in public and social
institutions, there would be a concomitant inexorable decline in religious beliefs
and practices at a personal, individual level. ‘Religious views’, as Habermas
describes it, ‘will melt under the sun of scientific criticism and . . . religious
communities will not be able to withstand the pressure of some unstoppable
cultural and social modernisation.’2
In the past decade it has become obvious, even in (comparatively) secular
Western Europe, that the obituary notices for religious faith were premature,
exaggerated or simply false:‘God is Back’.3Although the so-called ‘NewAtheists’
dominate bookstalls and the media,4in many ways their strident rearguard assault
simply underscores the sea change.One prominent scholar of secularisation, Peter
*Professor, School of Law, Durham University and Professor, Faculty of Law, University of Otago
respectively.
1 Or more accurately, the character fittingly called ‘The Madman’ proclaimed this in Freidrich
Nietzsche’s, The Gay Science (NewYork:Vintage Books,W.Kaufmann tr, 1974(1882)) § 125.
2 J. Habermas,‘Relig ion in the Public Sphere’ (2006) 14 European Journal of Philosophy 1, 15.
3 J. Micklethwait and A.Wooldridge, God is Back:How the Global Rise of Faith is Changing the World
(London: Penguin, 2009).
4 See eg R. Dawkins,The God Delusion (London: Bantam Press,2006); C. Hitchens,God is Not Great:
How Religion Poisons Everything (NewYork:TwelveBooks, 2007);S. Harris, Letter to a Christian Nation
(NewYork:Alfred Knopf, 2006). For criticism see eg A. McGrath and J. McGrath,The Dawkins
Delusion:Atheist Fundamentalism and the Denial of the Divine (London:SPCK, 2007);C. Hedges,When
Atheism Becomes Religion:America’s New Fundamentalists (New York: Free Press, 2009).
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© 2012The Authors.The Modern Law Review © 2012 The Modern Law Review Limited. (2012) 75(6) MLR 1064–1098
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
Berger, has recanted.5Post-secular societies have emerged,characterised by Hab-
ermas in the following terms: ‘In these societies, religion maintains a public
influence and relevance,while the secularistic certainty that religion will disap-
pear worldwide in the course of modernisation is losing ground.’6
Human rights discourse occupies a prominent position in this broader
intellectual and cultural milieu. For theorists and technicians of human rights,
freedom of religion is a necessary democratic freedom to be enjoyed within the
range of protected human rights, suggesting strict limits to religious liberty in
recognition of countervailing societal interests and other human rights.For many
religious believers, by contrast, the human rights framework is an instrumental
way of allowing them to follow the pre-existing dictates of conscience, thus
minimising the potential for conflict with the state.7
In recent years the tensions between secular and religious approaches to
rights have been apparent in a series of skirmishes in a continuing European
Kulturkampf.8One need only think of the controversy over the preamble to
the European Constitution,9the L’affaire du foulard (the battle of the head scarf)10
and continuing clashes between religious rights and protections against sexual
orientation discrimination.11
Some perceive these conflicts to be so intractable that the only sensible way
forward is in a polity that separates religion from the state and that also, while
recognising freedom of private belief and practice, accords faith communities
and their adherents no special privileges. On this version, religion has no place
in public life12 and separation of religion and the state is a sine qua non to a
healthy liberal democratic polity. Freedom from religion in public places is
essential.
This stance leaves many contemporary religionists in something of a quandary.
They can either reject the entire system of human rights as antithetical to their
5 P. Berger (ed), The Desecularization of theWorld:Resurgent Religion and World Politics (Grand Rapids:
William B. Eerdmans, 1999).
6 J. Habermas, ‘A“Post-Secular” Society:What Does that Mean?’ ResetDoc 16 September 2008 at
http://www.resetdoc.org/story/00000000926 (last visited 6 August 2012).See also A. Harr ington,
‘Habermas and the ‘Post-Secular Society’(2007) 10 European Journal of Social Theory 544.
7 See eg James Madison, Memorial and Remonstrance against ReligiousAssessments (1785) discussed in
R. Ahdar and I. Leigh, Religious Freedom in the Liberal State (Oxford: OUP, 2005) 32–33.
8 There are of course similar struggles in the United States, Canada, Australia, New Zealand and
many other Western nations.
9 S. Cvijic and L. Zucca,‘Does the European Constitution Need ChristianValues?’ (2004) 24 OJLS
739; J. Weiler, L’Europe chrétienne? Une excursión (Paris: Les Éditions du Cerf, 2007).
10 Stasi Commission Report, 11 December 2003; C. Laborde, Critical Republicanism: The Hijab
Controversy and Political Philosophy (Oxford:OUP, 2008); D. McGoldr ick, Rights and Religion –The
Islamic Headscarf Debate in Europe (Oxford: Hart, 2006).
11 C. Stychin,‘Faith in the Future: Sexuality, Religion and the Public Sphere’(2009) 29 OJLS 729;
I. Leigh, ‘Homophobic Speech, Equality Denial and Religious Expression’ in I. Hare and J.
Weinstein (eds), Extreme Speech and Democracy (Oxford: OUP, 2009) 373; I. Leigh, ‘Clashing
Rights, Exemptions and Opt-Outs: Religious Liberty and “Homophobia” ’ in A. Lewis and R.
O’Dair (eds), Law and Religion Cur rent Legal Issues 4 (Oxford: Oxford University Press, 2001)
247.
12 Witness the furore concerning the High Court’s recent r uling that it was ultra vires for a local
authority to include prayers as an item on the agenda at a council meeting: National Secular Society
and Bone vBideford Town Council [2012] EWHC 275.
Ian Leigh and Rex Ahdar
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited. 1065
(2012) 75(6) MLR 1064–1098
beliefs at a foundational level,and risk forfeiting its protection, or they can assert
their religious rights as part of the Rawlsian ‘overlapping consensus’, that is
within what they perceive to be an essentially unsympathetic lowest-common-
denominator political compromise of beliefs and worldviews.Either way there is
little assurance that freedom of religion will trump other competing rights.
The recent decision of the Grand Chamber of the European Court of Human
Rights in Lautsi vItaly13 (Lautsi) is a crucible for these clashes of secular and
religious worldviews.The judgment places at centre-stage the question of the
extent to which secularism is a necessary pre-condition for freedom of religion,
belief or conscience within Europe.This question in turn cannot be answered
without a close analysis of what secularism means.
The structure of this article is as follows.In the next section we analyse the Lautsi
judgment. We then explore the meaning of the pivotal yet elusive concept of
‘secularism’. One intriguing aspect of Lautsi was the Court’s treatment of symbols
– in this instance, the display of crucifixes in state schools- and its introduction
of the notion of ‘passive symbols’.The following section takes up this subject.
We then consider various strands to the notion of ‘neutrality’ of religion. Our
discussion then returns to Lautsi to assess how the Court treated the secularism-
is-neutral claim.Another difficult notion is ‘religious coercion’.We continue our
analysis of Lautsi by focusing on what it means to be free from religious coercion
in the case of minors and in an educational setting. Next,we revisit the critical
concept of the margin of appreciation in Convention jurisprudence. In the
penultimate section we ask whether the real concern is not religious freedom or
coercion but rather the desire for strict religious equality. Finally,we conclude that
the European Court of Human Rights has properly acknowledged the constitu-
tional diversity of religion-state frameworks in Europe, resisted the temptation to
squeeze member states into a strict secularist mould and provided a more secure
conceptual platform for future debates on the scope of religious freedom.
THE GRAND CHAMBER RULING IN LAUTSI VITALY
The European Court of Human Rights in Lautsi was asked to determine
whether the rights of the applicants (a parent and her two sons,then aged 11 and
13) had been violated by the refusal of their school to remove religious symbols
(crucifixes) from the classroom walls where they were hung in conformity with
Italian law.The Second Chamber had held in November 2009 that the display
of crucifixes in state schools in Italy was incompatible with the state’s duty of
neutrality in the exercise of public services,particularly in the field of education,
and therefore violated Article 2 of the First Protocol (the rights of parents to
ensure that state education is in accordance their religious and philosophical
convictions) taken in conjunction with Article 9.14 Following widespread con-
sternation at the potential implications of that decision, the Italian Government
lodged an appeal and no fewer than 10 other governments, who all supported
13 Lautsi vItaly Application No 30814/06 Grand Chamber 18 March 2011 (Lautsi).
14 Lautsi vItaly Application No 30814/06 Second Chamber 3 November 2009 (Lautsi Second
Chamber).
Post-Secularism and the European Court of Human Rights
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited.
1066 (2012) 75(6) MLR 1064–1098
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