This reading, which is perhaps true, seems, however, to forget a central aspect of the contemporary tension between institutions, the law and a civil society which is increasingly hybridised. Perhaps Dworkin would like to place the requests to take the oath on the Koran amongst his 'difficult cases' (1).
In fact, the Ellison case brought to the fore the possible short circuit between two forces that have been equally present in American society for centuries and which often turn in the same direction. With his request Ellison demonstrated, instead, how this dynamic is not at all taken for granted.
On the one hand, it is undeniable that the United States of America was formed by basing itself on religious freedom. The great event of the Europeans who reached the New World in search of a place where they could practice not only privately but also publicly their own faith is well known. The event of the Pilgrim Fathers and of the Mayflower is only the point of an iceberg, and to such an extent that authoritative scholars have been able to state that the pre-eminent value of religious freedom is the true and authentic boast of the United States of America (2). This is a boast that has thread its way through the centuries of life of the American Constitution, given, for example, the central role that religious practice has had in the history of electoral campaigns for the presidency (3).
On the other hand, it is equally evident that the characteristic religiosity of the American people is of a Christian imprint. William Penn, Lord Baltimore and Roger Williams, the three leading lights of American freedoms, were Christians - just as those who joined them, in Pennsylvania, Maryland and Rhode Island, were also Christians. It is natural, therefore, to recognise that the Bible is the most important and significant written document there is for the United States of America - it describes not only the religiosity of the people but also the very causes that generated that country.
The Ellison case thus placed public opinion face to face with an alternative: either to allow the member of Congress to take the oath on the Koran, thereby re-affirming the founding value of religious freedom, or to force him to take the oath on the Bible, thereby recognising the significance of Christianity for the existence itself of the United States of America. In other terms, it was a matter of establishing whether one should take the oath on what one holds most dear or on what the 'history of the nation' most holds dear. In both cases something would have been sacrificed: either the recognition that without Christianity the USA would not exist or the evidence that the USA was born of the need for religious freedom that resides in every man.
From a certain point of view, it appears that American society took a step backwards. Wanting to take up the insight of Huysman, the author of À rebours (Against Nature) (4), one could state that the Americans wanted to look at what they base their institutions on - on the values that they are founded. A delicate operation, perhaps underestimated by the press and the media, which, however, demonstrates how important the tie is that links the institutions to society, and how much it is nourished by symbolic elements. When these enter into crisis, it is necessary to retrieve the factors that shaped them in order to replace them or reaffirm them.
Paradoxically, the nation that is most publicly religious and most careful not to institutionalise any creed, in line with the first amendment of the Constitution, had to ask itself what to do with that holy book in the name of which it was born.
The German Constitutional Court
In general, the conflict between the individual conscience and the collective conscience - or between the conscience of a group and that of society as a whole - can be worked out at a political level. Parliament and the executive power are the subjects that are able to envisage at an institutional and normative level solutions that can meet new requirements and re-equilibrate positions of disadvantage or advantage.
The net alternative between two extremes, instead, is a practice that is more usual in the jurisdictional field. Judges at a national but also a supranational level - one may think here of the European Court of Human Rights - decide in terms of an either or with certain appreciable exceptions. The conflict, once it comes before a judge, witnesses a winner or a loser.
One may think here of the different approach condemned in Germany during the cases over the display of the crucifix in school classrooms which was envisaged by Bavarian law. The German Constitutional Court stressed the defence of conscience and the neutrality of the state in rather net terms, reaching the conclusion that the display of the cross was illegitimate.
Bavaria then intervened and once again provided for the display of the cross in classrooms, this time with the clarification that where objections were raised agreed solutions had to be reached (5). The Bavarian political class thus interpreted Christian tradition and freedom of conscience in terms that were less antithetical and more conciliatory than the Court had done.
Naturally, the advantage of one approach is at the same time the defect of another. If the radical binary alternative on which judges appear to base their arguments seems to be unable to keep together the opposing requests of a society in conflict, the modus operandi of politicians at times denounces a pragmatism that does not grasp the core of the question; indeed, ignores it, thereby avoiding, together with a clash between sensibilities, also a deep reflection on the problems involved. In this way, politics in the ecclesiastical field, in the sphere of cultural and social integration, or in field of the relationship between the individual sphere and the collective sphere, takes on more shaded contours and ones without points of reference.
The fracture that took place in institutional and academic domains seems to be a rather eloquent signal when in Italy the question of the display of the cross also came to the fore.
Arguments relating to law overlay with pragmatic questions or ones relating to political advisability and lent themselves to numerous examples of exploitation that were clearly rooted in doctrine (6).
In a series of indications produced by politics and jurisprudence, two lineages can be identified quite easily. On the one hand, the supporters of the illegitimacy of the displaying of the cross who laid stress on the confessional character of the symbol; on the other, the champions of its legitimacy who stressed its cultural character on the basis of which the cross was to be seen to the full as a part of the national historical inheritance. This circumstance, for that matter, generally saw believers, who expressed themselves in favour of the cross, remark on its civil character, with secular people, who were against its display, stressing its religious aspect.
All these juridical and political arguments, in favour of or against the cross, seem to be marked by a rather unitary approach: religion and politics are conceived as separate spheres which do not encounter each other except at individual points of tangency. The religious factor filters into the institutions because of its cultural value and not because of its autonomous value. Religion and its contents are banned from the institutional sphere.
'For Christianity…the method, that is to say charity, prevails over the assumptions, that is to say faith and over the finalities, that is to say hope, and this constitutes a unicum amongst religions'; 'the logical mechanism of the exclusion of the infidel is inherent in every religious creed, even if those involved are not aware of this; for that matter, with the sole exception of Christianity, where this is well understood'. As a result, 'the rejection of a non-believer by a Christian implies a radical negation of Christianity itself, a substantial abjuring'. These statements seem to belong to a theological reflection carried out by a subject who holds himself to be able to distinguish the peculiar traits of Christianity compared to other faiths. On the contrary, they make up an important part of the reasoning of a judge of the Regional Administrative Tribunal (TAR) of Veneto who was involved in deciding upon the legitimacy of the display of the cross (7) - with arguments destined to have a profound effect on the successive declaration of the Council of State (8) which settled the question by pronouncing in the same way in favour of the legitimacy of the display of the cross.
Rather than adopting an approach outside religion which dwells upon the bearing of the symbol of the cross on the secularity of the state, on the religious freedom of students and on the historical role of Christianity in the history of Italy, the TAR 'penetrated' the Christian religion because it thought it was 'necessary to explore how Christianity approaches certain values that are upheld at a juridical level by the Constitution of the Republic'.
For the judge of the TAR, 'tolerance of the other and the defence of the dignity of man', 'the strong emphasis on the precept of love for neighbour and even more…the explicit prevalence given to charity over one's own faith', were said to have contributed to outlining 'those ideas of tolerance, equality and freedom that are at the basis of the modern secular state and of the Italian state in particular'. This was said to fully legitimate the displaying of the cross in school classrooms.
And thus it is the consonance between the nature of Christianity and the fundamental principles of the Italian Constitution that justifies the presence of the symbol of the cross - not simply its cultural rooting.
The point of greatest interest, and which opens up new prospects, of the reasoning of the TAR of Veneto is perhaps that which raised most doubts - which, indeed, makes understandable both the criticisms (9) and the applause (10) which the pronouncement received from scholars. Such an in-depth intervention by the judge, which focused on the characteristics of the Christian religion, can without doubt be said to be able to go to the core of the question and place the relationship between religious feeling, the secularity of the institutions and religious freedom in extremely concrete and precise terms - much more than an argument, albeit valid, that balances religious heritage, national culture and Constitutional principles only in the abstract. Indeed, the TAR engaged in an analysis of the contents of the faith of Christianity in order to assess its compatibility with the values of the Constitution - a central subject but one generally not touched upon by judges and scholars themselves. In this way the judge made clear what remaining jurisprudence and doctrine generally take for granted - when it is argued that the cross must be displayed because it expresses national history, the positive and edifying value of the Christian tradition is explicitly upheld. In contrary fashion, in fact, very few would be in favour of the display of the Fascist bundle in Italy or the swastika in Germany because they are equally expressive of a part of the history of those two countries.
For that matter, although the sentence of the TAR betrays a certain propensity of the judge for theological questions and issues, at a broader level it raises the doubt whether beyond personal grounding a representative of the institutions of the country can delineate the salient characteristics of a religious creed. This is an operation that the judge of the TAR of Veneto engaged in with clear ease, exhibiting a personal Weltanschauung in relation to the core of Christianity and its historical development, including the indication of Christ to 'render unto Caesar what is Caesar's', events such as the Crusades or the Inquisition, the contribution of Paolo Sarpi and the contribution of the Valdese Church.
Understandings and Requests
From a certain point of view, the TAR of Veneto puts into a state of crisis the separation or, at least, the distinction, between religion and the civil institutions; on the other it offers especially interesting points by which to meet the requirements that are increasingly clearly emerging within the European and American contexts.
The process of hybridisation, in fact, is witnessing the multiplication of requests by newly installed religions and cultures in relation to the institutions of the state. This development in the relations between the state and religious confessions is documented in the Italian context in the production of bilateral relations, agreements between the state and the confessions. Hitherto fourteen have been signed and others are currently being examined.
To distinguish unsound or symbolic requests - such as a Friday holiday for Muslims when, in contrary fashion, the Islamic religion requires only that on that day people should go to common prayer - is difficult, given that only the principles of the Constitution are available. The cases of radical conflict between the Constitution and religious dictates are in fact rather limited compared to the broad fan of requests.
Not agreeing to all requests that do not come into frontal conflict with the legal settlement - an improbable hypothesis which would lead in the extreme even to the recognition of objection to paying taxes used to fund war expenditure - the solution adopted hitherto has been of an extremely pragmatic kind and based upon reciprocal accommodations by the institutions and religion. The sentence of the TAR of Veneto is to be located, instead, as a point that is overly advanced but anyway one that is relevant in a process that seeks to look at the phenomenon of religion as it presents itself and not solely in terms of its consequences. If developed, this new approach would perhaps allow a rooting of the relations between the state and creeds on the basis of the concrete needs of these last. For that matter, it is in this sense that the jurisprudence of the European Court of Human Rights also operates which seems to impose on institutions a listening to the individual conscience and to the conscience of religious groups only in the case of strongly rooted beliefs and not beliefs simply linked in a tenuous way to the baggage of beliefs and values to which an individual or a groups refers (11).
This need on the part of institutions for a compass by which to guide themselves in relation to disparate religious requests is growing with the number of requests themselves, which are reaching hitherto unprecedented heights for the modern Western idea of the state and its relations with religion. For example, the request by certain Italian Muslims for the state to establish a system of certification for the leaders of worship in the face of the multiplication of seductive imams, at times of dubious teaching, who present themselves as points of reference, above all for the immigrant communities, without an adequate grounding and training. This is a recent request - for that matter in line with at least a part of the Islamic tradition which has constantly witnessed the influence of political power over religious power, if not a perfect coinciding between the two - which puts back by centuries the clock of the history of the institutions in the West.
Paradoxically, whereas the Catholic Church desires to be able to appoint autonomously its own bishops in China, some Muslims invoke in Italy state intervention in the selection of imams. Perhaps if one does not reach the appointment of imams by the state it is rather possible that in the next years the civil institutions will have to choose whether to remain onlookers in relation to the evolution of the cultural and social panorama or whether to intervene - and to what point; at times in response to the requests of the religious confessions themselves.
The current panorama is clearly very dynamic: it is difficult to predict what direction the state-religions dialectic will take in the various Western nations. However, at the moment it appears possible to advance two brief observations.
Firstly, the organisation of the civil sphere and the religious sphere that it typical of the West should probably not be simply ascribed to a process of the fencing of the two domains, created in a logical and coherent way, albeit slowly and progressively. In the light of the new tensions that thread their way through the two shores of the Atlantic, it appears that a great deal of the Western tradition is due to the religious cultures that have been present within it and have constructed its bone structure and its development. This is a bone structure that now seems to be based on new examples of grafting.
Secondly, perhaps the institutional pragmatism with which the questions concerning religious practice and its interaction with the civil sphere are addressed could be reduced thanks to the drawing up of new instruments of interpretation that are able to explore the real needs of a hybridised society: the TAR of Veneto offers an example of this, but one that is probably too invasive as regards the religious sphere. A certain level of pragmatism, in contrary fashion, seems to be inevitable as regards the propensity of the institutions of the state to deal with the religious factor. As has been expressively but also effectively observed, the marking for ever of the boundaries between the state and religions truly seems to be an impossible mission (12).
(1) R. Dworkin, I diritti presi
(2) J. T. Noonan Jr., The Lustre
of Our Country.
The American Experience
of Religious Freedom
Los Angeles, London, 2000), p. 2: ‘Free exercise…
is an American invention’.
(3) P. Hamburger, Separation
of Church and State
(4) J. Huysmans, À rebours
(Charpentier, Paris 1884);
Italian edition: A ritroso
(BUR, Milan, 1999).
(5) On this episodi useful
reference may be made to:
S. Ceccanti, ‘E se la Corte
andasse in Baviera?’,
in R. Bin - G. Brunelli
- A. Pugiotto - P. Veronesi
(eds.), La laicità
crocifissa? Il nodo
dei simboli religiosi
nei luoghi pubblici
Of later date: P. Cavana,
Interpretazioni della laicità. Esperienza francese
ed esperienza italiana
(6) V. Tondi Della Mura,
‘Dei politici laici e dei giuristi chierici. Note a margine
del crocefisso nelle scuole’,
(7) Sentence n. 1110
of 17 March 2005.
(8) Section VI, sentence n. 556
of 13 February 2006.
(9) For example N. Fiorita,
‘Se il crocefisso
afferma e conferma
la laicità dello Stato:
di una sentenza
del Tar del Veneto’,
(10) L. P. Vanoni, ‘Il crocifisso
della laicità dello Stato
(Commento a Tar Veneto,
sezione III, sentenza
17 marzo 2005, n.1110)’,
(12) J. B. Marie, La liberté
dans les instruments
des droits de l’homme:
in «Revue de droit
n. 52/1, p. 43.
(13) S. Fish, ‘Mission
the just bounds between Church and State’,
in Columbia Law Review