Presence of the Cross in Public Spaces : Experiences of Selected European Countries [1 ed.] 9781443878661, 9781443899703

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Presence of the Cross in Public Spaces

Presence of the Cross in Public Spaces: Experiences of Selected European Countries Edited by

Piotr Stanisz, Michał Zawiślak and Marta Ordon

Presence of the Cross in Public Spaces: Experiences of Selected European Countries Edited by Piotr Stanisz, Michał Zawiślak and Marta Ordon Reviewer: Rev. Professor Henryk Misztal, JCD This book first published 2016 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2016 by Piotr Stanisz, Michał Zawiślak, Marta Ordon and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-9970-4 ISBN (13): 978-1-4438-9970-3

TABLE OF CONTENTS

Introduction ............................................................................................... vii Chapter One ................................................................................................. 1 The Presence of the Cross in Public Spaces from the Perspective of the European Court of the Human Rights Rik Torfs Chapter Two ...............................................................................................11 The Cross and Other Religious Symbols in the EU Law: Remarks on the Future Accession of the EU to the ECHR Michaá Rynkowski Chapter Three ............................................................................................ 27 The Treatment of Religious Symbols in English Law Mark Hill QC Chapter Four .............................................................................................. 38 The Presence of the Cross in Public Spaces: France Philippe Nelidoff Chapter Five .............................................................................................. 53 The Presence of the Cross in Public Spaces: The Current Situation in Germany Stephan Haering Chapter Six ................................................................................................ 68 The Display of Religious Symbols in Public Spaces in the Greek Debate Konstantinos Papastathis Chapter Seven............................................................................................ 90 The Presence of the Cross in Public Spaces: Ireland Brian Conway

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Chapter Eight ............................................................................................ 111 The Presence of the Cross in Public Spaces: Italy Giorgio Feliciani Chapter Nine............................................................................................ 127 The Public Presence of the Cross: Lithuanian Perspective Kazimieras Meilius and Jonas Juškeviþius Chapter Ten ............................................................................................. 155 The Presence of the Cross in Public Spaces in the Context of the Freedom of Thought, Conscience and Religion: A Polish Perspective Piotr Stanisz Chapter Eleven ........................................................................................ 187 Poland: The Presence of the Cross in the Public Space and the Principle of Impartiality of Public Authorities Dariusz Dudek Chapter Twelve ........................................................................................ 203 Poland: The Presence of the Cross in the Public Space and Right of Parents to Educate their Children in Conformity with their Convictions Paweá Sobczyk Chapter Thirteen ...................................................................................... 219 The Cross in the Public Space: Romanian Case Laurentiu D. Tănase Chapter Fourteen ..................................................................................... 234 The Notion of the State Religious Neutrality Applied to the Presence of the Crucifix in the Public Space in Spain Javier Martinez-Torrón Chapter Fifteen ........................................................................................ 249 The Cross in Public Places: The Legal Situation in Switzerland René Pahud de Mortanges Contributors ............................................................................................. 262

INTRODUCTION

During recent years, the debate on the presence of the cross in public spaces has swept, with varying intensity, through different parts of Europe. At least in some states it has been characterized by a high level of involvement of the contesting parties, and triggered a remarkable range of emotions. This is hardly surprising, for the matter at issue is in essence part of the long-running argument over the way in which social life should be organized, and especially over what should serve as ultimate points of reference for evaluating human behaviour. It encompasses such fundamental issues as the social significance of religion and the essence of human freedom, the content of individual human rights (or even, their very existence – vide the so-called reproductive rights) and their mutual interrelations, as well as the respective duties of public authorities. What acted as a catalyst for this debate were undoubtedly the judgments of the European Court of Human Rights in the case of Lautsi v. Italy, and notably the first judgment, which, in some states, motivated supporters of the extreme version of the secular state to undertake initiatives aimed at removing the cross from public spaces. This was accompanied by genuine agitation on the part of those who are convinced that negating the significance of Christianity to the identity of European states poses a number of serious threats. The above-mentioned judgments of the European Court of Human Rights soon became the subject of vigorous scientific debate. This is evidenced by the sheer number of studies which either comment upon these rulings or ponder the possibility of displaying the cross in public spaces from the perspective of the legal regulations adopted in particular states. At this stage, there is already a range of comparative legal analyses devoted to the subject, which is especially important in view of the oftcriticized lack of adequate references in the Strasbourg judgment of 3rd November 2009. However, there is still ample room for detailed research considering not only the content of the legal regulations binding in various European states, but also the historical and social determinants of these regulations and the practice shaped by them, with a special emphasis put on the decisions taken by public authorities and especially court adjudications. An attempt to address these issues was the international conference entitled The presence of the cross in the public space of the

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European states, which – owing to the generous support by the Polish Catholic Institute “Sursum corda” – was organized by the Department of Law on Religion at the Faculty of Law, Canon Law, and Administration of John Paul II Catholic University of Lublin and took place on 13th and 14th November 2014 in Lublin. The present publication is a continuation of that scientific initiative and it has grown out of cooperation between a number of recognized authors representing various countries and academic institutions. Their involvement in shaping this volume is hereby gratefully acknowledged. When deciding upon the selection of states included in the present work we were guided by the intention to maintain a representative group that would reflect the actual diversity of models of relations between the state and churches and other religious organizations applied in the Old Continent. We sought to include both the established democracies of Western Europe and the post-communist states, as well as the states who acted as third parties in the proceedings before the Grand Chamber and those that decided to adopt the attitude of a detached observer. Given the place of the conference, special attention was devoted to Poland. The analyses concerning the solutions applied in individual states are preceded by the texts sketching a wider, all-European context of the issues under discussion. We hope that the papers in the present collection will help to develop a better understanding of all aspects of the debate over the presence of the cross in the public space of European states and facilitate a clear assessment of the weight of arguments put forward by both supporters and opponents of this presence. It is hoped that the volume, showing the actual diversity of the regulations and practice adopted in the individual states of the Old Continent and examining the underlying motivation for the rather common display of this Christian symbol in the public space of many of these states, will play a role of a comment of approval to the judgment of the Grand Chamber of the European Court of Human Rights of 18th March 2011. We also hope that the multiplicity of research perspectives and viewpoints adopted by the authors will enable the reader to gain a deep understanding of disparate opinions voiced during discussions devoted to displaying the cross in public spaces. It will be especially valuable if the present monograph facilitates distinguishing the actual implications of the respect for the freedom of thought, conscience and religion, as is common in the democratic world, from the consequences of diversified constitutional norms adopted in individual states, and especially from ideological demands and subjective expectations. The editors

CHAPTER ONE THE PRESENCE OF THE CROSS IN PUBLIC SPACES FROM THE PERSPECTIVE OF THE EUROPEAN COURT OF HUMAN RIGHTS RIK TORFS

The discussion about the presence of the cross in public spaces is centred around two decisions of the European Court of Human Rights (ECHR)1. Each of the two consecutive Lautsi versus Italy decisions had a different outcome. During the school year 2001-2002, two sons of the Lautsi-family enrolled in a public school in Italy. Each room of the school had a cross hanging on the wall. Consequently, in April 2002, the father of the children asked the school to remove these religious signs, given the fact that his family was not Catholic and thus should not be confronted with a crucifix in a public school. The school administration refused to do so, which led to several court cases in which the claim of the parents was rejected. Ultimately, the case came before the European Court of Human Rights (ECHR). The Lautsi-family invoked two main arguments to underpin their claim. One of these is article 2 of the 1st protocol of the European Convention on Human Rights. This article is formulated as follows: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the rights of the parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” The other article invoked is article 9 of the Convention itself dealing with freedom of thought, conscience and religion. As is traditionally the 1

European Court of Human Rights (second section), judgment Lautsi v. Italy (3 November 2009); European Court of Human Rights (Grand Chamber), judgment Lautsi and Others v. Italy (18 March 2011).

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case in many articles of the European Convention, the article is divided into two paragraphs, the second one bringing out the nuances of the fundamental right described in the first: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others, and in public or private, to manifest his religion or belief, in worship, teaching, practice, and observance. 2. The freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

In the first decision, in November 2009, the ECHR came to the conclusion that the compulsory presence of a religious symbol in a public school is at odds with the right of parents to educate their children in accordance to their own religious and philosophical convictions. Indeed, the public authority, by imposing the presence of a crucifix in a classroom, is limiting without good reason the rights of parents. This decision led to many bitter comments in Italian society. One could even say that all of a sudden an anti-European atmosphere emerged in a country involved from the very beginning in the construction of Europe. Italy was one of the six founding states of the EU and was once a country with sincere pro-European sentiments. Why was the protest that sharp? The reason was quite simple: the decision by the European Court provoked a sentiment of alienation. Criticizing the presence of the cross in classrooms was at the same time criticizing a symbol perceived as belonging deeply to Italian culture and tradition. This leads us to the following question: what does freedom of religion truly mean? According to most experts, three layers can be identified as forming our understanding of religious freedom. The first layer is that of individual religious freedom. Everybody has the right to adhere to any religious conviction or belief he or she chooses, including the right to change religion and the right not to be religious at all. Historically speaking, individual religious freedom is the cornerstone of the right as such; indeed, individual persecution was the main issue of concern. Its violation has led to war and political instability, as well as to the migration of religious minorities to foreign countries such as the United States. To put it another way, without a clear guarantee of individual religious freedom, the two other layers of freedom are without any real significance. Yet, on the other hand, individual freedom in its own right does not

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suffice, because it would implicitly limit religion to an entirely private matter, having no consequences at all for the external behaviour of people. Precisely that conclusion would be contradictio in terminis, because many religions, if not virtually all of them, not only have a creed or a doctrine of faith, but also prescribe or suggest certain attitudes or forms of behaviour to their faithful. For that reason, it is easy to understand the second layer of religious freedom, namely that of collective religious freedom. Freedom of religion implies freedom of community building and freedom of organising collective manifestations of faith. Holy mass and other forms of liturgy are good examples of the latter. In some countries collective religious freedom is seen as slightly problematic in comparison to individual religious freedom. For instance, it has to be noted that in the Netherlands for a long time Catholic processions in public spaces were forbidden. So while individual religious freedom in theory did not really cause problems, Catholics hardly had any access to important public functions. However, the collective manifestations of a religious faith that at first glance did not belong to the central creed of a religion was formerly slightly problematic. Finally there also exists the third layer of religious freedom, namely that of institutional religious freedom. The faithful have more rights than just those of gathering occasionally or organising ceremonies, they also have the right to organise themselves structurally in religious groups and associations, in communities and churches, with internal norms and structures, and codes of canon law or by laws creating a specific institutional space with a proper subculture. For instance, certain acts may be a crime in the Roman Catholic Church without necessarily being a crime in the external legal order. Attacking the Pope physically is forbidden by both the state and the church, yet procuring abortion is, in certain countries and under specific conditions, allowed by state law, while leading to latae sententiae excommunication in the Roman Catholic Church. Of course, churches and religious groups are not entirely free to do whatever they like. For that reason it is important to refer to the second paragraph of article 9 describing carefully and in a limitative way the exceptions to the first paragraph. Two clear examples of such a limitation would be religious practice requiring human sacrifice, or the stoning of women found guilty of adultery. This overview of religious freedom as it is viewed and practiced by the European Convention and the European Court implicitly offers an image of religion disconnected from any form of enculturation. Human rights conventions are, by nature, a skeleton. Although the catalogue as such may be seen as rather Western and culturally determined, a debate that still

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remains open, the rights themselves are considered to be culturally neutral and applicable to all. However, is this theoretically safe position completely in harmony with reality? I think it is not, or at least not entirely, given the fact that no one lives in a cultural vacuum, whatever the legal norms may suggest in this regard. Indeed, when we look at the second paragraph of the European Convention and at the limitations formulated there, religions that are more remote than others from our Western Judeo-Christian pattern may be hampered by obstacles and legal constraints. Muslim family law will be seen more easily as non-applicable and falling under the exceptions of the second paragraph. There are many examples underpinning this viewpoint. One example is polygamy, as in certain Muslim countries it is allowed, and some consequences of it may be accepted in several other places as a result of international private law. However, concluding a polygamous marriage in a Western state is impossible, at least theoretically. Polygamy is perceived, and in my eyes rightly so, as a humiliation of women and clear proof of inequality between the sexes. Christians do not accept this issue, and if they do have polygamous inclinations, then they will never try to officialise this situation. Even men who are not very faithful in their lives will, if they marry, just conclude a monogamous marriage. In that regard, the history of the Mormons in the United States is interesting. Their founder, Joseph Smith (1805-1844), was in favour of and practiced polygamy, yet gradually Mormons had to comply with the overall American legal framework and eliminate polygamy, which today is only present in some remote and dissident Mormon groups. A second example, unacceptable also under the wording of the European Convention, is the repudiation of women by their husband. Here again, no Western state will accept unilateral repudiation. Certain Muslim traditions are more affected by this prohibition than people and groups belonging to the Christian family. A third more recent example concerns ritual slaughtering of animals. Perhaps ritual slaughtering would not have been a huge problem in the West some hundred years ago, and in the Jewish tradition many examples of slaughtering can be offered. Today, though, the cleavage between animal rights and religiously motivated ritual slaughter has become increasingly problematic. These three examples clearly demonstrate that an apparently neutral set of rights and liberties can lead to very different, often complicated problems when implementation is at stake. Although in theory the second paragraph of article 9 is applicable to all, in practice it is used much more frequently with regard to religions far from a Judeo-Christian tradition.

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This is proof of the fact that even neutral norms are not as neutral as they seem to be at first glance: the cultural setting is of utmost importance. In the Lautsi case, and certainly in the first decision of 2009, the enculturation issue plays a part on another level. This time, the issue is no longer the limitation of the rights of individual people connected to the first layer of religious freedom, but the collective presence of religion in the public sphere. Traditionally dominant religions, such as Roman Catholicism in Italy, are suffering less from limitations linked with the first layer, yet rather from limitations concerning their public presence related to layers two and three. In that regard, the presence or absence of the cross is, in the eyes of many, not just a matter of faith but also of identity and cultural comfort. In many European countries the presence of the cross in public spaces has been an issue, but even then there is a gradation. Italy and Poland are certainly different from Belgium and the Netherlands, the latter being countries with an often hostile view of religion and a more rigid approach to neutrality. Several decades ago, in my own country of Belgium, crucifixes were no longer considered acceptable in the classrooms of public schools, or in courts and tribunals. This led to several marginal problems, where historic paintings and works of art representing Jesus Christ or religious scenes, for example, are still allowed in courts and tribunals when they have an artistic or cultural value. That can lead to strange incidents, as happened once in a court in Metz, France, where the president of the court, while pointing to Christ on a painting with his finger, summoned the accused to follow the example of his saviour. Another issue is that in several classrooms crucifixes became particularly noticeable only after their removal because the wall showed clearly where they had been hanging before. It is clear that the reactions to the Lautsi case in Italy were very violent. Although objectively there was no reason whatsoever to deal with the removal of a crucifix differently according to the country where the facts took place, as the European Convention is applicable both in Belgium and Italy, the reactions of the public were or would not be the same. The cultural significance of the crucifix goes deeper in Italy than it does in Belgium. The question is whether this cultural element may or may not play a part when it comes to jurisprudence and concrete decisionmaking. Lautsi 2 answered this question positively, and invoked the principle of subsidiarity, as well as the margin of appreciation member states have in order to protect the culture and traditions of each particular country. The overall principles of the ECHR guarantee enough sovereignty for member states in that regard.

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It is interesting that the second paragraph of article 9 limits religious freedom, including collective and institutional freedom, only when certain negative or dramatic elements are threatening the stability of the country. Not only do these limitations have to be formulated by law, and should be necessary in a democratic society, but also the reasons for these limitations are always the avoidance of disastrous situations. Public safety is invoked, and the protection of public order, health, or morals. The only less dramatic exception to religious freedom is the protection of the rights and freedoms of others. As a matter of fact, Lautsi also focuses on that issue, because religious freedom and the right of education for the Lautsi family explicitly figured as an argument. However, what we do miss in the second paragraph is the possible role attributed to the cultural element of religion, perhaps restricting strict neutrality and thus leading to a slight limitation on the equal treatment of religious groups. The presence of crucifixes in Italian public school classrooms not only gives an advantage to a Christian symbol, but also forces non-Christians to be visually confronted with the crucifix all day. It certainly is a form of unequal treatment, even though the attempt is made by Lautsi 2 to define the crucifix as just a cultural and not only a religious symbol. In the meantime, it should be noted that the visual presence of religious symbols is psychologically not as easy as many rational thinkers think it is. In 1781, the Austrian emperor Joseph II issued a Toleranzpatent in which he gave the opportunity to Protestants to build their own churches. However, they were not allowed to have a bell tower, and the entrance could not be on the front side of the building. Collective religious freedom as we would define it today was guaranteed, yet without all its visual connotations. Protestants could worship, but could not be seen to worship. This norm from remote times comes very close to the Swiss minaret ban of 2009. As a result of a referendum in November 2009, a constitution amendment banning the construction of new minarets was approved by 57.5% of the voters participating in the referendum, showing that some things do not change. Muslims in Switzerland are also allowed to worship, yet visibility remains an issue of concern, as formerly was the case for Protestants in Austria. Visibility is more a matter of culture than of worship. Religious manifestations can decently take place without a bell tower or without a minaret, and yet it was precisely the bell tower and the minaret that were, or are, seen to be disturbing factors by the majority of the population. The Lautsi case goes the other way round: here a symbol of the majority religion is challenged by a protest formulated by a member of a minority group. However, the problem is also visual, as nobody pretends that pupils

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of Italian public schools are forced to believe in the Christian faith or in the person of Jesus Christ, and yet the crucifix is there, as visible as a Muslim minaret or a Protestant bell tower could have been, without the specific legislation. The issue is clear: can a distinction be made in the public sphere between the symbols of the majority and the minority religions? From a strictly formal perspective of fundamental rights, the answer is no, and yet from a perspective accepting the cultural nonreligious significance of certain initially religious symbols, the conclusion may be different. In that regard, it is interesting to explore the Lautsi 2 decision in more depth. The second decision, this time by the Grand Chamber, was issued on 18 March 2011, reversing the previous decision. The lawyers of the Italian state were followed in their interpretation of the true meaning of the crucifix. As a matter of fact, two positions are possible. According to the first possible interpretation, the crucifix is properly and exclusively a religious symbol, since it is intended to foster respectful adherence to the founder of the Christian religion. According to the second interpretation, the crucifix still may have religious value for believers, but also for nonbelievers its display is justified and it possesses a non-discriminatory meaning from the religious point of view, if it is capable of representing and evoking synthetically and in an immediately perceptible and foreseeable manner, like any other symbol, values which are important for civil society, in particular the values which underpin or inspire (in this case) the constitutional order and the foundation of civil life.2 In that sense the crucifix can perform, even in a secular perspective distinct from the religious one, a highly educational symbolic function, irrespective of the religion professed by the pupils. To put it yet another way, the crucifix can be seen in two senses, namely in a religious one, yet also in a pluralistic one with a shifting significance different for Catholics and other citizens. Here is the beauty and at the same time the risk of Lautsi 2. The decision can only be accepted if religious symbols stop being religious symbols and eventually even become the opposite, a sign of absolute tolerance instead of a sign of outspoken identity. The latter makes it clear that the limits and content of religious freedom cannot be seen without taking into account the overall culture and flavour present in society. In that regard, Europe is much more secular than India or Latin America, for example, and even within Europe many 2

See Lautsi 2, page 9 and 10.

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differences should be taken into account. Poland and Italy are examples of countries where religious traditions are deeply rooted in cultural life. Even intellectuals opposed to the public role of the Catholic Church and of faith in general are themselves highly coloured by what they are criticizing. However, in certain countries of Western Europe, the role of religion is fading away, not just religiously speaking, but also from a cultural angle. In the first stage, during the second half of the last century, fierce criticism still went together with a keen awareness of the religious setting. Even convinced critics had themselves a fair knowledge of Christianity and church life. In this millennium, the latter is no longer true, as today many people are still very critical towards religion, yet without any personal knowledge of the religious past of the country or region in which they live. Clearly, the question whether or not a crucifix is just a religious or also a cultural symbol depends significantly on the overall context of the society in which this question is asked. There is yet another question that implicitly plays an important part in the discussion: what is true neutrality? Neutrality can be given shape in various ways. Obviously, the question can be raised whether or not any religious symbol in the public sphere is permissible. A good example of this is Christmas: to what extent is it still acceptable to talk about it? A book by Stephen M. Feldman published in 1998 is a good illustration of a frontal approach to the topic.3 The title of the book is Please Don’t Wish Me a Merry Christmas, and the subtitle goes as follows: A Critical History of the Separation of Church and State. For Stephen Feldman, Christmas as such is a problem, not just in terms of cribs but also Christmas trees, although their religious devotion may be questioned. Of course, Feldman writes in an American context, with a stronger tradition of the separation between Church and State. Moreover, neutrality with regard to Christmas is already highly present in an American context. On annual cards, the wording “Merry Christmas” is often replaced by “Season’s Greetings”, an empty yet harmless notion. However, it is also possible to maintain Christmas as a neutral feast by removing its Christian connotations. This approach, less radical than the previous one, is becoming common in a Western European context. Christmas as such is maintained, and certain symbols remain acceptable, including Christmas trees and colourful lights spread all over towns and cities. Santa Claus and his reindeer are also tolerated, as they are not 3

Feldman, Stephen M. 1998. Please Don’t Wish Me a Merry Christmas. A Critical History of the Separation of Church and State, 408. New York: NYU Press.

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missionaries of any religion. However, the question arises whether the absence of the crib is neutral or not, as it is not only the presence of certain signs that have meaning, but also the absence of others. Ultimately, in that perspective the approach suggested by Stephen Feldman is more honest. The total rejection of Christmas eventually will be more neutral than the suppression of some symbols, those suspected of being religious, while others are maintained. It is certainly possible that if Western European society continues to evolve in a secular way, the American “Season’s Greetings” will ultimately overtake the current, ambiguous, Western European approach. In the meantime it should be noted that also in Western Europe the attitude vis-à-vis Christmas differs from region to region. The crib will survive for a long time in Bavaria or Austria, but not necessarily in the Netherlands or in the north of Belgium. A third possible approach is the complete acceptance of Christmas as a part of our culture. Southern Europe gives some examples of such an attitude. Christmas as a whole is taken over by civil society, sometimes even without its religious connotations. One could argue that Christianity did something similar by making use of the pagan solstice to identify the perfect date for celebrating Christmas. What precedes makes it clear that neutrality vis-à-vis Christmas can be moulded in various ways. In a completely secular culture, Christmas as a whole has no place in the public sphere. In a period of transition, the half-hearted approach typical for Western Europe could be used. If religion remains part of mainstream culture, the official presence of religious symbols in the public sphere is therefore not a problem. This is one way of looking at things, because it is also possible to opt for some form of active pluralism, an approach that, unlike a more separationist road, allows for the simultaneous presence of various and multiple expressions of faith in the public forum. In such a configuration, everybody is permitted to show his or her religious adherence inasmuch as this is compatible with the compelling norms of the state, including environmental and urbanistic statutes. So what can we conclude about the two Lautsi decisions? The first one, unfavourable to the crucifix in public schools, was highly criticized in Italy, and, moreover, 21 countries gave their support to the Italian viewpoint. However, from a puritanical human rights perspective, it is probably the more solid one, as it cannot be denied that the crucifix is a Christian symbol. Imposing a Christian symbol on non-Christians, in a public sphere, may be problematic. On the other hand, in a more complex configuration, where the concepts are richer and additional aspects of life may be taken into account, the second decision makes a lot of sense. In the

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second decision, state and religion are two notions that are not fully separated, since several aspects of religion may be at the same time characteristics of the culture of the state. This entanglement is different from discussions on the separation of church and state, where both protagonists are present on the level of organisation and legislation. Here, on the contrary, we are talking about culture, about ideas, about content. In that perspective, the exclusion of a crucifix from public school classrooms can be, in a specific context that has to be assessed carefully time and time again, at odds with the cultural feeling of the majority of the population. That conclusion may be a problem for the sustainability of human rights in the long run. Therefore, the margin of appreciation each country enjoys in implementing the ECHR can be very useful. To sum up, both decisions are correct from a human rights perspective. The first one, Lautsi 1, has a classical precision, yet eliminates the surrounding cultural elements. The second one, Lautsi 2, shows a keen interest in complexity and in the, sometimes subtle, entanglement of state, religion, and culture. The latter is more realistic, yet also more dangerous.

References Feldman, Stephen M. Please Don’t Wish Me a Merry Christmas. A Critical History of the Separation of Church and State. New York: NYU Press, 1998.

CHAPTER TWO THE CROSS AND OTHER RELIGIOUS SYMBOLS IN THE EU LAW: REMARKS ON THE FUTURE ACCESSION OF THE EU TO THE ECHR MICHAà RYNKOWSKI

I. Introduction The aim of this paper is to show the place of a cross in the EU legal system, present the jurisprudence of the Court of Justice of the EU (CJEU) as regards the moral and religious issues, and, following the future accession of the EU to the European Convention on Human Rights (ECHR), ask the provocative question as to whether the CJEU would decide differently to the European Court of Human Rights (ECtHR) in the famous Lautsi case. This paper shall start with a general remark that despite decades of European integration there is no “EU ecclesiastical law”. Moreover, there will probably never be such a thing, as Article 17 of the Treaty on the Functioning of the European Union (hereafter TFEU) obliges the EU to respect the laws of the Member States: “The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.”1 For historical reasons, each and every Member State has its own ecclesiastical law: due to certain similarities one can try to group them, but they remain clearly different, with the UK and Denmark on one side and France and Slovenia on the other. This makes the situation for Pan-European institutions like 1

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012E /TXT&from=en.

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the European Union or the Council of Europe, and in particular for their courts, very challenging. Despite this general statement there are certain provisions of EU laws relevant for religion, churches, and religious communities.2 Among the recent interesting documents are the EU-Guidelines on the Promotion and Protection of Freedom of Religion or Belief,3 adopted by the Foreign Affairs Council on 24 June 2013 – but they are supposed to be applied in the context of the EU foreign relations, not internally.4 Among the provisions of EU law are a few that are relevant for the cross and other religious symbols. However, only one is interesting from the point of view of this book: it is Article 3 of the Directive 2008/95 to approximate the laws of Member States relating to the trade marks, which says: 2. Any Member State may provide that a trade mark shall not be registered or, if registered, shall be liable to be declared invalid where and to the extent that: […]

2

Gerhard Czermak calls it “indirektes Religionsrecht”. Czermak, Gerhard. 2008. “para 20, Rn 510.” Religions- und Weltanschauungsrecht, Heidelberg: SpringerVerlag. These provisions are collected and regularly updated by Professor Gerhard Robbers and his team at the University in Trier, available in various languages at: https://www.uni-trier.de/index.php?id=7526&L=0; also: Robbers, Gerhard. 2005. “State and Church in the EU.” In State and Church in the EU, edited by Gerhard Robbers, Baden-Baden: Nomos 2. 3 http://eeas.europa.eu/delegations/fiji/press_corner/all_news/news/2013/eu_guide lines_on_the_promotion_and_protection_of_freedom_of_religion_or_belief_(june _24_2013_fac).pdf (accessed February 20, 2015). 4 “6.With these Guidelines, the EU reaffirms its determination to promote, in its external human rights policy, freedom of religion or belief as a right to be exercised by everyone everywhere, based on the principles of equality, nondiscrimination and universality. Through its external policy instruments, the EU intends to help prevent and address violations of this right in a timely, consistent and coherent manner. 7. In doing so, the EU focuses on the right of individuals, to believe or not to believe, and, alone or in community with others, to freely manifest their beliefs. The EU does not consider the merits of the different religions or beliefs, or the lack thereof, but ensures that the right to believe or not to believe is upheld. The EU is impartial and is not aligned with any specific religion or belief. 8. The Guidelines explain what the international human rights standards on freedom of religion or belief are, and give clear political lines to officials of EU institutions and EU Member States, to be used in contact with third countries and with international and civil society organisations.”

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(b) The trade mark covers a sign of high symbolic value, in particular a religious symbol.5

Thus, the Member States of the EU (and also of the European Economic Area) may introduce such restrictions. Whether or not this is the case in national law is the subject of national reports from various European States, as it would exceed the limits of this paper, which focuses on the EU dimension. Other EU-provisions relate indirectly to religious objects, i.e. to crosses as to parts of cultural heritage, e.g. in the Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully removed from the territory of a Member State. Similarly, the Council Regulation No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty, refers to crosses in Article 90.

II. The CJEU and the “moral plane” Since, as demonstrated above, there is no pertinent EU legislation, it is worth asking if there is a respective jurisprudence of the CJEU. The answer is also negative. There are only two cases clearly referring to religious freedom: Prais v. Council from 1976,6 on freedom of religion of persons applying for an EU job who refused to sit tests on Jewish holidays; and more recently in cases C-71/11 and C-99/11 Ahmadiyya,7 in which the CJEU confirmed the importance of freedom of religion. Apart from these two, there were a few cases on business aspects of churches and religious communities.8 The CJEU is limited in the exercise of its power to the EU competences, and they do not include moral aspects. Therefore the CJEU does not have legal grounds to judge a case concerning the “moral” sphere, for example whether the presence of the

5

Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (Codified version; Text with EEA relevance), Official Journal L 299, 8.11.2008, p. 25–33. 6 130/75 Prais [1976] ECR 1589. 7 C-71/11 Germany v. Y and C-91/11 Germany v. Z (known as Ahmadiyya). 8 41/74 van Duyn [1974] ECR 1337; 300/84 Roosmalen, [1986] ECR 3097; 196/87 Steymann [1988] ECR 6159; all commented in Rynkowski, Michaá. 2004. Status prawny koĞcioáów i związków wyznaniowych w Unii Europejskiej, Warszawa: Prawo i Praktyka Gospodarcza.

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cross is justified or not – for the notion of the “moral plane” and how the CJEU has so far solved this kind of question, see below. Yet, it does not mean the EU is indifferent to human rights: on the contrary, Article 6 of the TEU refers to the Charter of Fundamental Rights of the European Union; it states that the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). As regards the jurisprudence, after a Stork case9 in its early years (in which fundamental rights were denied), the CJEU has developed its own jurisprudence on fundamental rights, starting with cases such as Stauder, Internationale Handelsgesellschaft, Nold, and Hauer.10 The CJEU human rights jurisprudence was presented and discussed in many handbooks: for example, A. O’Neill QC in his handbook “EU Law for UK Lawyers” lists 19 important human rights, protected by the CJEU, ranging from the right to respect for human dignity and the right not to be subjected to torture, or to inhuman or degrading treatment, to the right to vote;11 he also lists a good number of strictly procedural rights. Some of the CJEU judgments may seem controversial. Among them, the most extreme seems the case of the Society for the Protection of Unborn Children v. Grogan C-159/9012 concerning abortion in Ireland, where the ECJ stated that: On those grounds, the court, in reply to the questions submitted to it by the High Court of Ireland, by order of 5 March 1990, hereby rules: 1. Medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty. 13

9

Case 1/58, Stork v. ESCC High Authority, [1959] ECR 17. Respectively: Stauder 29/69, [1969] ECR 419; Internationale Handelsgesellschaft 11/70, [1970] ECR 1125; Nold 4/73, [1974] ECR 491; Hauer 44/79, [1979] ECR 3727. 11 O’Neill, Aidan. 2001. EU Law for UK Lawyers, 203-7. Oxford: Hart Publishing; Also: Smit, Hans, and Peter Herzog. 2010. Hans Smit and Peter Herzog on The Law of the EU, Newark: LexisNexis Matthew Bender; Dybowski, Maciej. 2007. Prawa fundamentalne w orzecznictwie ETS, Warszawa: C.H. Beck; more recently: The Protection of Fundamental Rights in the EU After Lisbon, edited by Sybe de Vries, Ulf Bernitz and Stephen Weatherhill, 2013. Oxford: Hart Publishing; Grabenwarter, Christoph, editor. 2014. Enzyklopädie Europarecht - Europäischer Grundrechteschutz, Baden-Baden: Nomos. 12 [1991] ECR I-4685. 13 Critically: Phelan, Diarmuid. 10

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As regards the “moral plane”, as the CJEU calls it, important are para. 18-21 of the judgment [bold by me, MR]: 18. It must be held that termination of pregnancy, as lawfully practised in several Member States, is a medical activity which is normally provided for remuneration and may be carried out as part of a professional activity. In any event, the Court has already held in the judgment in Luisi and Carbone (Joined Cases 286/82 and 26/83 Luisi and Carbone v. Ministero del Tesoro [1984] ECR 377, paragraph 16) that medical activities fall within the scope of Article 60 of the Treaty. 19. SPUC, however, maintains that the provision of abortion cannot be regarded as being a service, on the grounds that it is grossly immoral and involves the destruction of the life of a human being, namely the unborn child. 20. Whatever the merits of those arguments on the moral plane, they cannot influence the answer to the national court’s first question. It is not for the Court to substitute its assessment for that of the legislature in those Member States where the activities in question are practised legally. 21. Consequently, the answer to the national court's first question must be that medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of Article 60 of the Treaty.

While reading this and following judgments, it becomes clear that there is always a certain economic dimension present in the CJEU judgments. In the case of Czech and Polish prostitutes in the Netherlands (C-268/99), the court deliberated as Grand Chamber and, having heard opinions of numerous governments of the EU Member States confirmed that prostitution is a service, stating: “The activity of prostitution pursued in a self-employed capacity can be regarded as a service provided for remuneration.” Again, the CJEU pronounced itself on the morality/immorality of these activities (para. 56): So far as concerns the question of the immorality of that activity, raised by the referring court, it must also be borne in mind that, as the Court has already held, it is not for the Court to substitute its own assessment for that of the legislatures of the Member States where an allegedly immoral activity is practised legally (see, with regard to abortion, Case C-159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I-4685, paragraph 20, and, with regard to lotteries, Case C-275/92 Schindler [1994] ECR I-1039, paragraph 32).

Prior to judgments Grogan and Jany, the CJEU took position on the importation of pornographic materials to the United Kingdom: in both

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cases the Court declared that the UK is not allowed to prohibit import if these goods are manufactured and traded within the country. As regards the moral aspects of such materials, the CJEU stated: “In principle, it is for each member state to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory” (the second point of the official summary in the case R v. Henn, 34/79). A few years later, in the case of Conegate Ltd. v. Customs and Excise Commissioners 121/85 – concerning the importation of inflatable dolls – the Court declared that: “A Member State may not rely on grounds of public morality within the meaning of article 36 of the ECC Treaty in order to prohibit the importation of certain goods on the ground that they are indecent or obscene when its legislation contains no prohibition on the manufacture and marketing of the same goods on its territory”. There are also situations – maybe less spectacular and not so often commented on – when the market/business orientation of the CJEU may actually help churches and their charities in their activities. In a recent case, Hein Persche v. Finanzamt Lüdenscheid, the CJEU confirmed in a judgment of the Grand Chamber of 27 January 200914 that: “Where a taxpayer claims, in a Member State, the deduction for tax purposes of gifts to bodies established and recognised as charitable in another Member State, such gifts come within the compass of the provisions of the EC Treaty relating to the free movement of capital, even if they are made in kind in the form of everyday consumer goods.” In this case, a German taxpayer donated certain goods to an orphanage in Portugal and claimed a tax deduction in Germany: although the German tax authorities did not want to agree, the CJEU, through this preliminary ruling, told them to accept. In a way, the judgment of Persche (and others quoted before) confirms what was already said and written years ago, commenting on the CJEU jurisprudence on charities, hospitals, and medical services. Already then Hartwig stated15 bitterly that for the CJEU, “man is a money-making animal”. On the other hand, in the case of Persche, this business-oriented interpretation is beneficial to churches and charities run by them.

14

Reference for a preliminary ruling from the German Bundesfinanzhof — Case C-318/07. 15 Hartwig, Matthias. 2001. “Korporative Religionsfreiheit und soziale Tätigkeit.” In Religionsfreiheit zwischen individueller Selbstbestimmung, Minderheitenschutz und Staatskirchenrecht, edited by Rainer Grote and Thilo Marauhn, 509, in particular 536. Berlin: Springer.

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Regarding the “moral plane”, from the Polish perspective it may seem worth mentioning that in 2002 the Polish government joined a declaration to the Accession Treaty, years later repeated in a similar form as declaration no. 61 to the Treaty of Lisbon: “The Charter [of Fundamental Rights] does not affect in any way the right of Member States to legislate in the sphere of public morality, family law, as well as the protection of human dignity and respect for human physical and moral integrity”. One has to admit that using a declaration instead of protocol and speaking of rather undefined “moral integrity” is less powerful and less precise than the option used by the Maltese government on the same occasion of the accession to the EU. In Protocol No. 7, Malta stated, leaving no doubts: “Nothing in the Treaty on the European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in the territory of Malta of national legislation relating to abortion.”16

III. The ECtHR and the CJEU – mutual relations In human rights-related cases, it has always been one or another European court issuing a judgment, but never both of them in the same case. The relations between the CJEU and the ECtHR are not legally defined, but are therefore even more interesting, inspiring researchers all over Europe.17 Regarding hypothetical competences to hear an appeal from a judgment of the other court:

16

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2003:236:TOC Mainly in the German-speaking literature: The Accession of the European Union to the ECHR, edited by Julia Iliopoulos-Strangas, Vasco Pereira da Silva and Michael Potacs. 2013. Baden-Baden: Nomos; Huber, Andrea. 2008. Der Beitritt der EU zur Europäischen Menschenrechtskonvention, 205-240. Hamburg: Kovac; Pavlidis, Laura. 2012. EU und EMRK: Rechtsfragen eines Beitritts, Wien-Graz: Neuer Wiss.-Verl; Wiethoff, Jan H. 2008. Das konzeptionelle Verhältnis von EuGH und EGMR, Baden-Baden: Nomos; Vondung, Julie. 2012. Die Architektur des europäischen Grundrechtschutzes nach dem Beitritt der EU zur EMRK, Tübingen: Mohr Siebeck; Krämer, Hannes. 2014. “Änderungen im Grundrechtsschutz durch den Beitritt der EU zur EMRK.” Zeitschrift für öffentliches Recht (ZöR) 69:235-255. 17

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x The ECtHR could be competent if the EU (as a collective of Member States) violated human rights either via the EU legislation or the CJEU’s judgments. x The CJEU could be competent if the ECtHR in its judgment infringed EU law (for example if the ECtHR’s judgment wrongly attributed powers between the EU and the Member States, forcing the wrong addressee to act). In reality, there has not been a case when one court issued a judgment after another (although in the Senator Lines case, see below, such a procedure was already pending). However the CJEU in many judgments was influenced by the ECtHR, while the latter in its judgments acknowledged the achievements of EC and EU law.18 As regards the division of competences between the CJEU and the ECtHR, theoretically, everything is clear. The CJEU should deal with cases where EU institutions were in breach of the law, and the ECtHR where the Parties (Member States) violated human rights. In reality, the situation is much more complicated: R. Lawson proposed to classify these relations in four different kinds of cases:19 1) When ECtHR judges alleged violation by domestic authorities (vast majority of Strasbourg cases), 2) When the CJEU judges alleged violation by domestic authorities (e.g. Grogan, see above), 3) When the ECtHR judges alleged violation by EU institutions (e.g. Senator Lines, see below), and 4) When CJEU judges alleged violation by EU institutions (Baustahlgewebe C-185/95 P – in this case the CJEU awarded 50,000 ECU /!/ as compensation for a too long duration of the proceeding before the Court of First Instance).

18

Slightly outdated but profound analysis: Simon, Denys. 2001. Les influences reciproques entre CJCE et CEDH: Je t’aime et moi non plus, 43-44. Le Seuil: Pouvoirs. Examplatory cases: European Court of Human Rights, Dangeville v. France, appl. 36677/97 (16 April 2002); European Court of Human Rights, Mendizabal v. France, appl. 51431/99 (17 January 2006). 19 Lawson, Rick. 2006. “The impact of the EU Constitution on the relationship between Strasbourg and Luxembourg.” In The EU Constitution: the best way forward? edited by Deirdre Curtin, Alfred E. Kellermann and Steven Blockmans, 377. Hague: TMC Asser Press.

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The most challenging cases are types 2 and 3. For type 2, the Grogan case was mentioned above. As for cases that are type 3, there are a few cases which unfortunately did not lead to a judgment in merito: in the Guérin case a French company brought a complaint against the (at the time) 15 EU-Member States for a judgment delivered by the ECJ, but the complaint was rejected as manifestly ill-founded (ECtHR 4 July 2000, Appl. 51717/99). In the case Senator Lines, a complaint against 15 Member States was declared inadmissible in March 2004 on factual grounds (ECtHR 10 March 2004, Appl. 56672/00 Senator Lines GmbH v. Austria), because while the application was pending in Strasbourg, the Court of First Instance quashed the fine being the subject of complaint to the ECtHR; subsequently, the latter concluded there was no continuing infringement of fundamental rights and that the applicant was not a victim of a violation.20 In practice, the courts were avoiding the situation where they had to judge a case already decided by another court (which would lead to a socalled formal divergence of the judgments) at all costs. On the other hand, there were various cases where the CJEU recalled the jurisprudence of the ECtHR: for example, as regards the notion of privacy as per Art. 8 of the ECHR while searching business premises: Colas Est. v. France (as judged by the ECtHR, appl. 37971/97, judgment 16 April 2002, Reports 2002-III, p. 105) and Roquettes Freres SA (as judged by CJEU, C-94/00, 2002 ECR I-9011, para. 25). In the case Mannesmannröhren,21 the company claimed a right not to incriminate oneself, based on the ECHR. In the judgment, the Court of the First Instance in Luxembourg underlined that although the fundamental rights form an integral part of the general principles of Community law, the ECHR is not a part of (at the time) Community law (para. 59). Following this short analysis of the relations between the ECtHR and CJEU, it is worth asking what the accession of the EU to the ECHR would practically mean. Or in other words, looking at the Lautsi case, one could ask a provocative question: Could we expect a judgment from Luxembourg to be different to the one from Strasbourg?

20

Also: The European Union After Lisbon. 2012, edited by Hermann-Josef Blanke and Stelio Mangiameli, 177. Berlin: Springer. 21 Mannesmannröhren-Werke AG v. Commission, T-112/98, [2001] ECR II-729.

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IV. Accession of the EU to the ECHR In 1996, in the first opinion of the (at the time) ECJ on the accession of the European Community to the ECHR (opinion 2/94), the Court stated that the EC had no competence to accede to the ECHR. As mentioned earlier, this changed with the Lisbon Treaty. The wording of Art. 6 of the TEU is clear that it is an obligation for the EU (“shall accede”) and no more a question of the political “will” (in which case the wording would be: should/may/can). This short provision is accompanied by Protocol No. 8, which is also very short and does not bring many practical hints as to how this must be done.22 On the side of the Council of Europe, changes introduced through Protocol No. 14 made the accession of the EU possible.23 The accession agreement is to be signed by the EU and (currently) 47 parties to the Convention (Members of the Council of Europe). The negotiations started in 2010, following respective recommendation of the Council of the EU authorizing the Commission to negotiate. The negotiations were conducted by the European Commission, more specifically by the Legal Service of 22

Article 1 The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the "European Convention") provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the specific arrangements for the Union's possible participation in the control bodies of the European Convention; (b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate. Article 2 The agreement referred to in Article 1 shall ensure that accession of the Union shall not affect the competences of the Union or the powers of its institutions. It shall ensure that nothing therein affects the situation of Member States in relation to the European Convention, in particular in relation to the Protocols thereto, measures taken by Member States derogating from the European Convention in accordance with Article 15 thereof and reservations to the European Convention made by Member States in accordance with Article 57 thereof. Article 3 Nothing in the agreement referred to in Article 1 shall affect Article 344 of the Treaty on the Functioning of the European Union. 23 Protocol No. 14 and the Reform of the European Court of Human Rights. 2005, edited by Paul Lemmens and Wouter Vandenhole, Antwerp: Intersentia.

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the Commission, with the European External Action Service associated. On the side of the CoE there were 14 negotiating countries: 7 EU and 7 non-EU States. The legal framework for this process is described in Art. 6 (2) of the TEU, and Protocol 8 to the Lisbon Treaty. The EU was meant to join Protocols 1 and 6 – the only two protocols ratified by all Member States of the EU, although the Commission tried to put pressure on for all protocols. The draft agreement, together with a special note of the Legal Service of the European Commission, was sent for the opinion to the CJEU in July 2013. On 18 December 2014 the CJEU issued its opinion (opinion 2/13).24 This opinion was accompanied by a very concise (3 pages) and perfectly clear press release – available in all EU languages – the reading of which is recommended.25 In the first part of this opinion the CJEU confirmed that issues raised by the above mentioned opinion 2/94 were resolved by the Treaty of Lisbon: the EU received legal personality and the accession of the EU to the ECHR is clearly addressed. However, the CJEU raised a number of issues, which are briefly presented below: -

-

-

-

24

The ECHR should be better coordinated with the Charter on Fundamental Rights, and there is no provision in the draft agreement to ensure such coordination. The ECHR would require each Member State to check that the other Member States had observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States. Protocol 16 to the ECHR, signed on 2 October 2013, permits the highest courts and tribunals of the Member States to request the ECtHR to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms guaranteed by the ECHR or the protocols. In view of the CJEU, the mechanism established by this protocol could affect the autonomy and effectiveness of the preliminary ruling procedure provided by the TFEU. Although the TFEU provides that the Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided

http://curia.europa.eu/juris/document/document.jsf?text=&docid=160882&page Index=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=397816 25 http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-12/cp140180en.pdf (accessed June 3, 2015).

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-

-

-

-

for by the Treaties, the draft agreement allowed a possibility that the EU or Member States might submit an application to the ECtHR concerning an alleged violation of the ECHR by a Member State or the EU in relation to EU law. A new co-respondent mechanism would ensure that a Member State or the EU were correctly addressed in a given case. This would lead to a situation where the ECtHR would be required to assess the EU rule of law governing the division of powers between the EU and its Member States; the decision of the ECtHR, following this analysis, would be binding both for the EU and Member States. A case pending before the ECtHR would potentially lead to a situation where the ECtHR interprets the case law of the CJEU,26 and see whether the CJEU has already given a ruling on the same question of law. Therefore the CJEU suggests improving the procedure of the prior involvement of the court in order to avoid such an interpretative practice of the ECtHR. The ECtHR would be empowered to rule on the compatibility with the ECHR of certain acts, actions, and omissions performed in the context of the Common Foreign and Security Policy. The draft agreement in its current wording brings risks that the ECtHR would interpret the case-law of the Court.

In the conclusion, the CJEU leaves no doubt: The agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms is not compatible with Article 6(2) of the TEU, or with Protocol No. 8 relating to Article 6(2) of the Treaty on the European Union on the accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

V. Could the CJEU judgment be different from the judgment of the ECtHR Grand Chamber? Since the Grand Chamber in Lautsi judged mostly on the basis of Article 2 of the first Protocol to the ECHR, which is a right to education, 26

More on this aspect: Baratta, Roberto. 2013. “Accession of the EU to the ECHR: The Rationale for the ECJ’s Prior Involvement Mechanism.” Common Market Law Review 50:1305-1332.

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but not on Article 9 (freedom of religion), it seems that the CJEU would be expected to refer to the provision on education (Article 165 TFEU) and not on religious freedom. In this context it seems useful to recall Article 165 of the TFEU, which clearly underlines the soft character of the EU competencies: The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.

This article does not refer to religious diversity, but presence or absence of the crucifix in a classroom may be easily “covered” by a notion of cultural diversity. Obviously the EU does not have competence to regulate the curricula in schools nor to describe how a classroom should look like or how it should be equipped. The EU legislation in the field of education relates (again) to the internal market aspects.27 Based on Article 165 TFEU and other provisions, the question of respective choices should be left to the Member States. One should keep in mind that 33 members of the European Parliament acting collectively as third-party interveners in the Lautsi case reminded the ECtHR of subsidiarity and stated that: “Display of crucifixes in public buildings did not conflict with the Convention, and the presence of religious symbols in the public space should not be seen as a form of indoctrination, but expression of a cultural unity and identity.” While in general, 33 MEPs seems to be an important number (and could have symbolic meaning of 33, being the age of Jesus when he was crucified), in comparison to the general figure of 751 MEPs, it does not seem high: where were the almost 720 other MEPs, who did not sign? In general terms, 33 out of 751 MEPs do not even constitute 5% of MEPs, which makes their message much less powerful.

27 To name some of them: Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community; Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004; Council Directive 77/486/EEC of 25 July 1977 on the education of the children of migrant workers. More: Siwek-ĝlusarek, Anna. 2012. “Art. 165.” In Traktat o funkcjonowaniu Unii Europejskiej, vol. II, edited by Andrzej Wróbel, 1011. Warszawa: Wolters Kluwer.

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VI. Conclusions As demonstrated in the first part, for EU-law, a cross is mainly an object. The Member States in their national law may assure a particular protection, for example, in trademark law, but there is no general EU law concerning the protection of the cross. Moreover, there is no relevant CJEU jurisprudence as regards presence of crosses in public spaces; the CJEU record in the field of religion, or, as the CJEU calls itself, as regards the “moral plane”, is very limited. After the negative opinion of the CJEU delivered on 18 December 2014, the Commission has to prepare a new agreement, which will be the subject of new negotiations. After the positive opinion of the CJEU, the ratification procedure will start, and after ratification by all the parties to the Convention (47 at the moment), the changes will be valid. Only then will the ECtHR be entitled to hear the cases against the EU. For the moment it seems that it is a really distant perspective. Currently, bringing a Lautsi-like case to the CJEU would be impossible, mainly due to the rationae materiae and, to another major extent, rationae personae (although there were attempts, discussed in previous parts, to sue all Member States). For the EU law, the cross is rather an object of trade; moreover, taking account of the CJEU jurisprudence so far (Grogan, Jany, Persche), one could claim that even after the EU’s accession to the ECHR, this kind of case should remain within the remit of the ECtHR. After this purely theoretical consideration, one should mention that in June 2012, a cross was placed in the plenary room over the chair of the President of the European Parliament (at the time M. Schulz). It was placed there by one of the visitors invited by the Polish MEP Richard Henry Czarnecki (European Conservatives and Reformists). The cross was removed after four days.28 Although an internal investigation concerning the placement of the cross was launched in the EP, it was dropped very soon. This incident has not brought enough material to establish a case before (any) European court…

28

http://wpolityce.pl/polityka/133933-ryszard-czarnecki-sledztwo-ws-krzyza-wpe-wiadomo-juz-ze-w-czwartek-przesluchiwana-ma-byc-moja-asystentka (accessed March 30, 2015).

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References Baratta, Roberto. “Accession of the EU to the ECHR: The rationale for the ECJ’s prior involvement mechanism.” Common Market Law Review 50(2013):1305-1332. Czermak, Gerhard. Religions- und Weltanschauungsrecht, Heidelberg: Springer-Verlag, 2008. Dybowski, Maciej. Prawa fundamentalne w orzecznictwie ETS, Warszawa: C.H. Beck, 2007. Enzyklopädie Europarecht - Europäischer Grundrechteschutz. Edited by Christoph Grabenwarter. Baden-Baden: Nomos, 2014. Hartwig, Matthias. “Korporative Religionsfreiheit und soziale Tätigkeit.” In Religionsfreiheit zwischen individueller Selbstbestimmung, Minderheitenschutz und Staatskirchenrecht, 509-545. Edited by Rainer Grote and Thilo Marauhn. Berlin: Springer, 2001. Huber, Andrea. Der Beitritt der EU zur Europäischen Menschenrechtskonvention, Hamburg: Verlag Dr. Kovac, 2008. Krämer, Hannes.“Änderungen im Grundrechtsschutz durch den Beitritt der EU zur EMRK.” ZöR 69(2014):235-255. Lawson, Rick. “The impact of the EU Constitution on the relationship between Strasbourg and Luxembourg.” In The EU Constitution: the best way forward? 423-433. Edited by Deirdre Curtin, Alfred E. Kellermann and Steven Blockmans, Hague: TMC Asser Press, 2006. O’Neill, Aidan. EU Law for UK Lawyers, Oxford: Hart Publishing, 2011. Pavlidis, Laura. EU und EMRK: Rechtsfragen eines Beitritts, Wien-Graz: Neuer Wissenschaftlicher Verlag, 2012. Phelan, Diarmuid. “Right to Life of the Unborn v. Promotion of Trade in Services: the European Court of Justice and the Normative Shaping of the European Union.” Modern Law Review 55/5(1992):670-689. doi:10.1111/j.1468-2230.1992.tb02841.x Protocol No. 14 and the Reform of the European Court of Human Rights. Edited by Paul Lemmens and Wouter Vandenhole. Antwerp: Intersentia, 2005. Robbers, Gerhard. “State and Church in the EU.” In State and Church in the EU. Edited by Gerhard Robbers. Baden-Baden: Nomos, 2005. Rynkowski, Michaá. Status prawny koĞcioáów i związków wyznaniowych w Unii Europejskiej, Warszawa: Prawo i Praktyka Gospodarcza, 2004. Simon, Denys. Les influences reciproques entre CJCE et CEDH: Je t’aime et moi non plus. Le Seuil: Pouvoirs, 2001.

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Siwek-ĝlusarek, Anna. “Art. 165.” In Traktat o funkcjonowaniu Unii Europejskiej, vol. II, 1011-1024. Edited by Andrzej Wróbel. Warszawa: Wolters Kluwer, 2012. Smit, Hans, and Peter Herzog. “Article 6.” In Hans Smit and Peter Herzog on The Law of the EU, Newark: LexisNexis Matthew Bender, 2010. The Accession of the European Union to the ECHR. Edited by Julia Iliopoulos-Strangas, Vasco Pereira da Silva and Michael Potacs. Baden-Baden: Nomos, 2013. The European Union after Lisbon. Edited by Hermann-Josef Blanke and Stelio Mangiameli. Berlin: Springer Berlin Heidelberg, 2012. The Protection of Fundamental Rights in the EU after Lisbon. Edited by Sybe de Vries, Ulf Bernitz, and Stephen Weatherhill. Oxford: Hart Publishing 2013. Vondung, Julie. Die Architektur des europäischen Grundrechtschutzes nach dem Beitritt der EU zur EMRK, Tübingen: Mohr Siebeck, 2012. Wiethoff, Jan H. Das konzeptionelle Verhältnis von EuGH und EGMR, Baden-Baden: Nomos, 2008.

CHAPTER THREE THE TREATMENT OF RELIGIOUS SYMBOLS IN ENGLISH LAW MARK HILL QC

This paper deliberately adopts in its title the term “treatment”. I took issue with being asked to speak at the conference on “solutions adopted by the United Kingdom”: because the use of the term “solution” implies that there is a problem for which a solution needs to be found. I am yet to be convinced that the display of a cross in the public space amounts to a “problem” in the United Kingdom or, for that matter, elsewhere in the European Union.1 I consider that undue prominence has been given to decisions such as those of the European Court of Human Rights in Lautsi v. Italy, and to various utterances of the Supreme Court of the United States, whose jurisdiction is founded upon a constitutional principle of separation which is wholly alien to the cultural, social, and political tapestry of European models of Church and State. While I reject the premise of a “problem”, and hence the need for a “solution”, I hope that this paper will nonetheless engage with the important theme of this conference, namely the legal issues that arise from the presence of the cross, as an emblematic manifestation of Christianity, in schools, hospitals, civic buildings, and the workplace.2 The issue, however, needs 1

The same is true, with some notable exceptions, in relation to Muslim headgear. See Hill, Mark. 2013. “Legal and Social Issues Concerning the Wearing of the Burqa and Other Head Coverings in the United Kingdom.” In The Burqa Affair Across Europe: Between Public and Private Sphere, edited by Allesandro Ferrari and Sabrina Pastorelli, chapter 6. Ashgate: Farnham. 2 I wish to express my gratitude to the Reverend Professor Piotr Stanisz, Dean of the Faculty of Law, Canon Law and Administration at the John Paul II Catholic University of Lublin for designing and coordinating a gathering of experts in November 2014 in Lublin from many jurisdictions and to all participants whose

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to be explored, with reference to the general law as it applies to religious freedom in a liberal democracy.3

Religious freedom Individual and collective religious freedom are reflected in both international human rights laws and the common law, often with no meaningful distinction being drawn between individual and collective religious freedom. Two recent developments in United Kingdom religion law have led to greater prominence being given to freedom of religion: the Human Rights Act 1998, which gave further effect to the rights and freedoms guaranteed under the ECHR; and the Equality Act 2010, which reiterates earlier statutory prohibitions concerning discrimination on grounds of religion or belief in employment and the provision of goods and services.4 Article 9 of the European Convention on Human Rights states: (1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. (2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

Article 9 therefore provides a positive right to both the freedom of thought, conscience and religion, and the manifestation of religion or belief. The right to freedom of thought, conscience and religion is absolute. It includes the right to hold a religion or belief and to change it, comments and observations have served to improve the observations which I make in this paper. 3 This paper relies heavily on the second edition of Hill, Mark, Russell Sandberg and Norman Doe. 2014. Religion and Law in the United Kingdom. Wolters Kluwer. 4 For a thorough overview of policy, practice and experience over the past decade, see Weller, Paul, Kingsley Purdam, Nazila Ghanea, and Sariya CheruvallilContractor. 2013. Religion or Belief, Discrimination and Equality: Britain in Global Contexts. London: Bloomsbury.

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free from State interference.5 In contrast, the right to manifest one’s religion or belief is limited by Article 9(1) in that the manifestation must be “in worship, teaching, practice and observance” and, more importantly, by the possible qualifications in Article 9(2) which permits the State to interfere with the right if the three tests in Article 9(2) are met. The interference must be “prescribed by law”, and it must have one or more of the legitimate aims listed in Article 9(2) and be “necessary in a democratic society”. Thus, in relation to the right to manifest, which is most directly relevant to the theme of today’s conference, litigants need to show that there has been an interference with their manifestation of religion or belief under Article 9(1), the onus then falls on the State to show that this interference is justified under Article 9(2).

Interference The European Court of Human Rights in Strasbourg generally takes a formulaic approach to Article 9 cases. The Court invariably begins by stressing the importance of the right, citing the leading case, Kokkinakis v. Greece,6 which described how “Freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention”. The Court then asks whether there has been an interference with Article 9(1) and, if so, whether that interference is justified under Article 9(2). In deciding whether Article 9 is engaged, three gateway requirements are utilised.

Definition of belief The European Court of Human Rights has taken a liberal approach to the definition of religion. The term “belief” in Strasbourg jurisprudence was defined in Campbell and Cosans v. United Kingdom,7 as denoting “views that attain a certain level of cogency, seriousness, cohesion, and importance”.8 Strasbourg’s approach has been replicated at the domestic 5

Manoussakis v. Greece (1997) 23 EHRR (European Human Rights Reports) 387; Metropolitan Church of Bessarabia v. Moldova (2002) 35 EHRR 306; Moscow Branch of the Salvation Army v. Russia (2006) ECtHR (No. 72881/01) (5 Oct. 2006). 6 Kokkinakis v. Greece (1994) 17 EHRR 397. 7 Campbell and Cosans v. United Kingdom (1982) 4 EHRR 293. 8 Paragraph 36. This definition has also been applied to Art. 9: Eweida and Others v. United Kingdom (2013) 57 EHRR 8 at para. 81: “The right to freedom of

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level. In the House of Lords’ decision of R v. Secretary of State for Education and Employment and others ex parte Williamson,9 Lord Nicholls noted that: “Freedom of religion protects the subjective belief of an individual”.10 Lord Nicholls held that to be protected under Article 9, beliefs “must be consistent with basic standards of human dignity or integrity”, and “must relate to matters more than merely trivial [and] possess an adequate degree of seriousness and importance”. The High Court decision in R (on the Application of Ghai) v. Newcastle City Council11 suggested however that Article 9 only affords protection to activities that are at the core of religious life. Cranston J held that: “Article 9 accords no protection to the Sikh tradition of using open air funeral pyres,” because it was conceded that their use was “simply a matter of tradition” and “not a matter of dogma and belief”.12

Manifestation: doctrinal mandate? The second gateway is the manifestation requirement, and it is here that the public display of crosses and crucifixes is particularly relevant. This rule has often been summarized as requiring that the claimant’s actions manifest their religion or belief as opposed to being merely motivated by it.13 This has been criticized on the basis that the presence or absence of religious motivation may actually serve as a good indicator of whether a belief should be protected and that a rigid adherence to the manifestation requirement “would seem to discriminate against religions without an established cultural base in European States” whose devotions “take different forms, such as sexual intercourse, ritual violence, or refusal to pay taxes to a centralised state hostile to their beliefs”.14 It is not surprising, therefore, that this filter has been applied inconsistently by the thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance”. 9 [2005] UKHL (United Kingdom House of Lords) 15, [2005] 2 AC 246. 10 Paragraph 22. 11 [2009] EWHC (High Court of England and Wales) (Admin) 978. 12 Paragraph 102. Although the High Court’s decision was later reversed on appeal ([2010] EWCA [England and Wales Court of Appeal] Civ 59), the Court of Appeal held that the accommodation of the claimant’s wishes would not in fact necessarily infringe the legislation relating to cremation. The appellate judgment, therefore, did not focus upon the Art. 9 claim. 13 Arrowsmith v. United Kingdom (1981) 3 EHRR 218. 14 Edge, Peter W. 1996. “Current Problems in Article 9 of the European Convention on Human Rights”. Juridical Review 42:45–7.

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Strasbourg Court.15 In recent Strasbourg decisions, the test has often been re-phrased as requiring, for example, that the action is “intimately linked” to the claimant’s religion or belief,16 or whether the actions “give expression” to their religion or belief.17 In recent years, the principle had taken root in English law that only manifestations of belief that are doctrinally mandated attract protection under Article 9 of the European Convention on Human Rights.18 Thus, Sikh litigants earned the right to wear the kara (bracelet)19 and kirpan (dagger),20 and Muslims (in some instances) the right to wear a veil or headscarf.21 The judgment of the Court outlawed this narrow interpretation of religious manifestation, which had never been a proper reflection of Strasbourg jurisprudence in any event.22 As the Court affirmed, even where the belief in question attains the required level of cogency and importance, it cannot be said that every act that is in some way inspired, motivated or influenced by it constitutes a “manifestation” of the belief.23 15

Knights, Samantha. 2007. Freedom of Religion, Minorities and the Law, 44. Oxford: University Press; Sandberg, Russell. 2009. “The Changing Position of Religious Minorities in English Law: The Legacy of Begum.” In Legal Practice and Cultural Diversity, edited by Ralph Grillo et al. Ashgate: Aldershot. 16 C v. UK (1983) 37 DR 142, 144; Hasan and Chaush v. Bulgaria (2002) 34 EHRR 55; Eweida and Others v. United Kingdom (2013) 57 EHRR 8. 17 Knudsen v. Norway (1985) 42 DR 247. 18 In this regard, the decision of Michael Supperstone QC sitting as a Deputy Judge of the High Court in R “(On the application of Playfoot /A Child/)” v. Millais School Governing Body [2007] EWHC Admin 1698 no longer represents the law. The judge’s test on manifestation was founded on a requirement of “perceived obligation” (in this instance, concerning a “purity” ring), which was itself derived from a misreading of Lord Nicholls’ speech in Williamson (above). Note also the distinction drawn by Cranston J between Hindu and Sikh cremation rituals in a detailed judgment in Ghai v. Newcastle City Council [2009] EWHC 978 (Admin) at paras 99–102, where open air funeral pyres were found to be doctrinally mandated under Hindu teaching, but not Sikh. This lengthy and erudite analysis was rendered entirely nugatory by the Court of Appeal’s disposal of the matter on an entirely different basis: [2010] EWCA (Civ) 59. 19 R (Watkins-Singh) v. Aberdare Girls High School [2008] EWHC 1865. 20 Statutory defence to criminal charge of possession of a bladed article under section 139 of the Criminal Justice Act 1988. 21 Noah v. Desrosiers [2008] UKET 2201867/07, 29 May 2008. 22 See Hill, Mark, 2013. “Religious Symbolism and Conscientious Objection in the Workplace: An Evaluation of Strasbourg’s Judgment in Eweida and Others v. United Kingdom.” Ecclesiastical Law Journal 15:191. 23 Eweida and Others v. UK, at para. 82.

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It continued: “acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9(1)”.24 While rightly acknowledging that liturgical acts are self-evidently outward expressions of belief, the Court makes clear that the manifestation of religion is much wider than this. What must be demonstrated is “a sufficiently close and direct nexus between the act and the underlying belief”.25 The majority judgment could not be more explicit: “there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question”.26 The first of the minority opinions27 is equally plain, addressing directly the question of the cross: Provided a sufficiently close and direct nexus between the act and the underlying belief exists, there is no obligation on an applicant to establish that he or she acted in fulfilment of a duty mandated by the religion. In the present case, we have no doubt that the link between the visible wearing of a cross (being the principal symbol of Christianity) and the faith to which the applicant adheres is sufficiently strong for it to amount to a manifestation of her religious belief.28

Thus, the domestic courts were wrong in Eweida and Chaplin to regard the display of a cross as a personal choice and no more than a fashion 24

Ibid, citing Skugar and others v. Russia (dec), no 40010/04, 3 December 2009; Arrowsmith v. The United Kingdom, Commission’s report of 12 October 1978, Decisions and Reports 19, p. 5; C v. The United Kingdom, Commission decision of 15 December 1983, DR 37, p. 142; Zaoui v. Switzerland (dec), no 41615/98, 18 January 2001. 25 Eweida and Others v. UK, at para. 82. 26 Ibid. 27 Judges Bratza and David Thór Björgvinsson, dissenting on the disposal of the Eweida application (which they would have dismissed), but otherwise concurring in the result. The UK government, both in its written submissions and in oral argument before the Court, had strenuously argued that the desire of Ms Eweida and Ms Chaplin to wear a visible cross, “while it may have been inspired or motivated by a sincere religious commitment, was not a recognised religious practice or requirement of Christianity, and did not therefore fall within the scope of Article 9”: see the summary of the parties’ arguments at para. 58 of the judgment. 28 Eweida and Others v. UK, dissenting opinion, para. 2(a). In addition to the written submissions on behalf of the Bishops of Chester and Blackburn and Premier Christian Radio, there was an intervention by Bishop Michael Nazir-Ali, setting out the history of the cross as a Christian symbol.

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accessory.29 The decision in Strasbourg perhaps also amounts to a vindication of Mr Justice Collins, who, in G v. St Gregory’s Catholic Science College, commented that the requirement in Watkins-Singh to show that a particular practice was of “exceptional importance” put the threshold too high.30

Specific situation The third “filtering device” may be styled the specific situation rule: it recognizes that a person’s Article 9 rights may be influenced by submissions to a voluntary system of rules. Strasbourg has recognized the application of this rule in specific situations such as in relation to a detained person,31 a person who voluntarily submits to military service,32 a person who voluntarily enters into a contract of employment,33 and those who voluntarily enrol at a university.34 In Eweida and Others v. United Kingdom35 the Strasbourg Court held that the specific situation rule should be considered only in relation to the Article 9(2) question of justification and not the Article 9(1) question of interference: “given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate”.36

29

For an incisive critique of the Court of Appeal judgment in Eweida, see Hatzis, Nicholas. 2011. “Personal religious beliefs in the workplace: how not to define indirect discrimination.” The Modern Law Rewiev 74:287–305. DOI: 10.1111/j.1468-2230.2011.00847.x 30 [2011] EWHC 1452 (Admin) at para. 37. 31 X v. United Kingdom (1974) 1 D&R at 41–42. 32 Kalaç v. Turkey (1997) 27 EHRR 552. 33 Stedman v. United Kingdom (1997) 5 EHRR 544; Ahmad v. United Kingdom (1981) 4 EHRR 126. 34 Karaduman v. Turkey (1993) 74 DR 93. 35 Eweida and Others v. United Kingdom (2013) 57 EHRR 8. 36 See also the para. 2 of the partly dissenting opinion of judges Bratza and Björgvinsson. For a discussion of the implications of Eweida v. United Kingdom, see Hill, Mark. 2013. “Religious Symbolism and Conscientious Objection in the Workplace: An Evaluation of Strasbourg's Judgment in Eweida and Others v. United Kingdom.” Ecclesiastical Law Journal 15:191.

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Justification In Strasbourg jurisprudence, the focus invariably shifts from the question of interference under Article 9(1) to the Article 9(2) qualifications, which are used to determine whether the interference by the State was justified.37 The same is also true of domestic decisions, though for the reasons discussed above, in many cases the consideration of Article 9(2) by a domestic court has often been obiter, the Court having rejected the claim on the question of interference under Article 9(1). Nevertheless the vast majority of decisions address the three tests laid out in Article 9(2) applying them one by one: to be justified, the interference must be “prescribed by law”, have a “legitimate aim”, and be “necessary in a democratic society”.

Prescribed by law This first test requires that the interference must have some basis in domestic law. Strasbourg has defined “law” broadly to include statutory law and “written law”, encompassing enactments of lower rank than statutes,38 regulatory measures taken by professional regulatory bodies under independent rule-making powers delegated to them by Parliament,39 as well as judge-made law and “unwritten law”.40 Implicit within this test is the requirement that the interference complies with European rule of law standards.41 This test has not proved problematic for the domestic judiciary: the House of Lords has held that both a rule “prescribed by primary legislation in clear terms”42 and a school uniform policy43 was 37

Where the interference with Art. 9 was not directly attributable to the State, since it was the actions of a private company, for instance, then “the Court must examine whether in all the circumstances the State authorities complied with their positive obligation under Article 9; in other words, whether [the applicant’s] right freely to manifest her religion was sufficiently secured within the domestic legal order and whether a fair balance was struck between her rights and those of others”: Eweida and Others v. United Kingdom (2013) 57 EHRR 8 at para. 91. 38 De Wilde, Ooms and Versyp v. Belgium (1979–1980) 1 EHRR 373. 39 Barthold v. Germany (1985) 7 EHRR 383. 40 The Sunday Times v. United Kingdom (No. 1) (1979–1980) 2 EHRR 245. 41 Evans, Carolyn. 2001. Freedom of Religion under the European Convention on Human Rights, 138. Oxford: Oxford University Press. 42 R v. Secretary of State for Education and Employment and others ex parte Williamson [2005] UKHL 15, [2005] 2 AC 246. 43 This was accepted by all of the appellate committee in Begum.

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prescribed by law. In relation to the latter, emphasis was given to the fact that schools and their governors were permitted under statutory authority to make rules on uniform, and those rules had been very clearly communicated to those affected by them.44

Legitimate aim The second test is that the interference fulfils one of the aims listed in Article 9(2). The Strasbourg Court has suggested that a “wide margin of appreciation” is to be given to domestic authorities where the legitimate aim is health and safety given that local decision makers are “better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence”.45 A similar approach appears to be taken at a domestic level. Although in most cases the legitimate aim is protecting the rights and freedoms of others,46 referring to the Convention rights of others,47 a wide range of legitimate aims have been cited by courts.

Necessary in a democratic society The third test has been the subject of clarification by Strasbourg. It is understood that the requirement that the interference be necessary in a democratic society requires two requirements to be met: the interference must correspond to a “pressing social need”, and it must be “proportionate to the legitimate aim pursued”.48 This requires a “balancing exercise” whereby the court asks “whether the interference with the right is more extensive than is justified by the legitimate aim”.49 Most cases concerning Article 9(2) focus upon the issue of proportionality. The court in weighing 44

Lord Bingham at para. 26. Eweida and Others v. United Kingdom (2013) 57 EHRR 8 at para. 99. 46 See Begum, Lord Bingham at para. 26, Lord Hoffmann at 58 and Baroness Hale at 94. 47 The Supreme Court has recently questioned, however, whether “the "rights of others" for the purpose of Article 9(2) (and indeed the other qualified rights in the Convention) are not limited to their Convention rights but include their rights under the ordinary law”: Bull v. Hall [2013] UKSC (Supreme Court of the United Kingdom) 73 at para. 44. 48 Serif v. Greece (2001) 31 EHRR 20. 49 Feldman, David. 2002. Civil Liberties and Human Rights in England and Wales, 57. 2d edition. Oxford: Oxford University Press. 45

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the proportionality of the measures taken operates “within a margin of appreciation”, but is concerned with whether a “fair balance” has been “struck”.50 There needs to be a “reasonable relationship of proportionality between the means employed and the aim sought to be achieved”.51 Further, the Court “generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights”.52 In Begum, for instance, the House of Lords conceptualized the question largely in terms of proportionality, giving scant attention to identifying a pressing social need.53 Lady Hale concluded that the school’s uniform policy was a thoughtful and proportionate response to reconciling the complexities of the situation. This is demonstrated by the fact that girls have subsequently expressed their concern that if the jilbab were to be allowed they would face pressure to adopt it even though they do not wish to do so.54

Conclusions The relative brevity of this paper, and the inclusion of case law and commentary of religious symbolism beyond the limited example of the cross which provided the main focus for the comparative scholarship in the conference, demonstrates my opening assertion that the display of the cross is not a cause for concern in the United Kingdom. Hence it has given rise to litigation. The exceptional case of Eweida helpfully identified and reinforced the fact that for two millennia the cross has been emblematic of Christianity and the wearing of a symbolic representation of the cross is expressive of religious belief, even though it may not be doctrinally mandated. However, the recognition of the position by the Strasbourg court in 2013 merely mirrored what British Airways had already recognised back in 2007 when it changed its uniform policy and permitted its employees to wear crosses at work. Put shortly, the United Kingdom does not subscribe to the concept of the “public space” from which all 50

Eweida and Others v. United Kingdom (2013) 57 EHRR 8 at para. 91. Francesco Sessa v. Italy, App No 28790/08, Judgment of 3 Apr. 2012, para. 38. 52 Eweida and Others v. United Kingdom (2013) 57 EHRR 8 at para. 106. 53 Lord Bingham para. 26, Lady Hale at para. 94. 54 Paragraph 98. Drawing upon Sahin, Lord Bingham concluded that the interference with the Art. 9(1) right was proportionate since the school “had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening, and uncompetitive way”: para. 34. 51

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symbols of religiosity must be removed. The display of the cross in public buildings or in the public square is not problematic.

References Edge, Peter W. “Current Problems in Article 9 of the European Convention on Human Rights.” Juridical Review 42(1996):42-50. Feldman, David. Civil Liberties and Human Rights in England and Wales. 2d edition. Oxford: Oxford University Press, 2002. Hatzis, Nicholas. “Personal religious beliefs in the workplace: how not to define indirect discrimination.” The Modern Law Rewiev 74(2011): 287–305. DOI: 10.1111/j.1468-2230.2011.00847.x Hill, Mark. “Religious Symbolism and Conscientious Objection in the Workplace: An Evaluation of Strasbourg’s Judgment in Eweida and others v. United Kingdom.” Ecclesiastical Law Journal 15(2013):191203. —. “Legal and Social Issues Concerning the Wearing of the Burqa and Other Head Coverings in the United Kingdom.” In The Burqa Affair Across Europe: Between Public and Private Sphere, 77-100. Edited by Allesandro Ferrari and Sabrina Pastorelli, Ashgate: Farnham, 2013. Hill, Mark, Russell Sandberg and Norman Doe. Religion and Law in the United Kingdom. Wolters Kluwer, 2014. Knights, Samantha. Freedom of Religion, Minorities and the Law. Oxford: University Press, 2007. Sandberg, Russell. “The Changing Position of Religious Minorities in English Law: The Legacy of Begum.” In Legal Practice and Cultural Diversity, 267-282. Edited by Ralph Grillo et al. Ashgate: Aldershot, 2009. Weller, Paul, Kingsley Purdam, Nazila Ghanea, and Sariya CheruvallilContractor. Religion or Belief, Discrimination and Equality: Britain in Global Contexts. London: Bloomsbury, 2013.

CHAPTER FOUR THE PRESENCE OF THE CROSS IN PUBLIC SPACES: FRANCE PHILIPPE NELIDOFF

Introduction Even though France is officially a secular state, religious symbols are still very much present in public spaces, including wayside crosses, calvaires, mission crosses, crosses on monuments to the dead, at entrances to cemeteries and inside them, on official decorations, the Cross of Lorraine, the symbol of the liberation of France and of Gaullism, crosses on city and provincial coats of arms and blazons, the Occitan cross in the middle of the Place du Capitole in Toulouse… not to mention the crosses on churches and clergy houses, most of them communal. This traditional presence of Christian religious symbols, the legacy of a centuries-old history, should hardly be astonishing, and we see the same historic continuity in the names of villages, towns, districts, streets, and squares that originate from religious references, or in public statues, some of which honour religious figures such as St. Joan of Arc in many towns, or bishops like Cardinal Lavigerie (1825-1892) in his hometown of Bayonne. The persistence of these religious symbols, the cross occupying a preponderant place among them, reveals an incomplete and perhaps impossible secularization of the French public space, given the country’s Christian tradition.1 A project launched by the Third Republic2 in the

1

The debate was reopened at the end of 2014 in connection with nativity scenes, like the one put up at the general council of the Vendée (Nantes Administrative Tribunal, 14 November 2014) and in Béziers.

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1880s was to lead subsequently to the Law on the Separation of the Churches and the State of 9 December 1905,3 which constitutes the common law regarding the religious system of France; although for historical reasons special regimes exist for the departments of Haut-Rhin, Bas-Rhin, and the Moselle, as well as for overseas territories.4 The first attempts at secularization date back to as early as the French Revolution. The adoption in 1793 of the Revolutionary Calendar (only officially suppressed in 18065), abolishing Sunday and introducing the décadi, is evidence of a desire to usher in a new age based on a true “religion of the Revolution” and universalist ideals. In the same way, the revolutionary holidays6 stood in a particular relation to the time and place they were seeking to reconfigure in accordance with a utopian revolutionary order. Conceived as a substitute for traditional Christian feasts, they generally achieved quite pitiable results. Breaking with the religious pacification of the Napoleonic concordat and the system of recognized religions, the desacralization of the public space picked up where it had left off at the end of the nineteenth century. This process occurred gradually through the adoption of measures aiming to secularize institutions and public spaces, particularly schools, the judiciary, and hospitals.7

2 Lalouette, Jacqueline. 2002. La République anticléricale, XIXe-XXe siècles. Paris: Seuil. 3 Mayeur, Jean-Marie. 2005. La séparation des Eglises et de l’Etat. Paris: Les Éditions de l’Atelier / Éditions Ouvrières. Originally published in Mayeur, JeanMarie. 1966. La séparation des Eglises et de l’Etat. Paris: Julliard. 4 L’Observatoire de la laïcité [National Observatory on Secularism] is due to issue an opinion on these special regimes at the beginning of 2015 and will doubtless propose some technical amendments, for instance with regard to the content and modes of religious instruction. 5 Even though it had dropped out of use before then. 6 Ozouf, Mona. 1992. “Calendrier.” In Chapitre 3: Institutions et créations. Dictionnaire critique de la Révolution française, edited by François Furet, 91-106. Paris: Champs-Flammarion; Ozouf, Mona. 1992. “Religion révolutionnaire.” In Chapitre 3: Institutions et créations. Dictionnaire critique de la Révolution française, edited by François Furet, 311-328. Paris: Champs-Flammarion. See also Ozouf, Mona. 1976. La Fête révolutionnaire 1789–1799. Paris: Gallimard. Republished in Collection Folio histoire (n°22), Paris: Gallimard 1988. 7 Lalouette, Jacqueline. 1991. “Expulser Dieu: la laïcisation des écoles, des hôpitaux et des prétoires.” Mots 27(1):23–38.

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In France, debates on the secularization of the public space – one of the visible thresholds of the process8 – are therefore old and well established. While one of the more intense periods in this discussion coincided with the “republicanization” of the Republic at the turn of the previous century, we are currently seeing its resurgence in a new context, that of religious and cultural pluralism and of the presence of Islam, which has become the country’s second religion if we discount atheists, agnostics, and those indifferent to matters of faith. Without pretending to be exhaustive, we will focus on the presence of the cross and, more widely (laïcité oblige!), of religious symbols in the public space of schools, courts, streets, and cemeteries.

The presence of the cross in schools Schools are described as “the oldest stake in the quarrel between Church and State”.9 It is a well-known fact that the secularization of public schools in France began in the 1880s with the policies of Jules Ferry, beginning with the law of 28 March 1882 on primary education. During this period, primary and secondary public schooling was progressively secularized.10 Due to the Goblet Law (30 October 1886), members of the clergy, particularly congregational clergymen, could no longer teach in public schools. This led to the rise of private schooling that was essentially Catholic, since the principle of freedom of teaching, promulgated by the Guizot Laws (1883) for primary education and the Falloux Laws (1850) for secondary education, remained in force. It is therefore logical for Christian symbols to have been removed from public schools at this time, just as the catechesis was replaced with moral education classes. Catholic schools, meanwhile, continued to display these symbols, sometimes overtly.11 Article 2 of the 1905 law meanwhile provided for the existence

8

Baubérot, Jean. 2000. “Histoire de la laïcité en France.” In Que sais-je?, no. 3571:4. Paris: PUF. 9 Remond, René. 2001. Religion et société en Europe, La sécularisation aux XIXe et XXe siècles 1789–2000, 278. Paris: Seuil. 10 The Law of 19 July 1889 on investing secular teachers with the status of public servants. 11 For instance in front of Sainte-Marie d’Albi school. Combes, Chanoine. 1957. Histoire de l’Ecole Sainte-Marie d’Albi (1882–1957). Albi: ICSO. A monumental cross had been set up in front of the school to commemorate an 1864 TRPP Capuchin mission, with the inscription, “Ave Crux, spes unica”. See also our

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of religious chaplaincies in schools; the cross was not entirely absent from public educational institutions because even in the very midst of public schools, chapels that could be used for worship continued to exist. This was the case of the Lycée Lapérouse chapel in my town (Albi, near Toulouse), built by the Jesuits in the seventeenth century and not deconsecrated until the end of the twentieth century, when it was converted into an auditorium. In recent times the debate has rebounded in connection with the law of 15 March 2004,12 prohibiting the wearing of overt religious symbols by students in public schools. It is true that this law was largely intended as a measure, awkward as it was, against the wearing of headscarves by certain Muslim students, a trend that became increasingly pronounced in the 1980s. Uncomfortable with these dress practices that have since grown in France and, according to some, form a sign of identity or even communitarian demands, but were judged incompatible with Republican values, a certain number of teachers and the Ministry of National Education itself have sought to neutralize schools as a public space by prohibiting the wearing of any symbols that might overtly point to a religious affiliation.13 Thus, for the last ten years, students attending French public schools have been banned from wearing overt, that is to say highly visible, religious symbols. After a period of tensions, this requirement has today become less stringent. Young women wearing headscarves take them off before entering the school, and the Directorate General of School Education at the Ministry of National Education reported no disciplinary proceedings connected to headscarves during the 2012-2013 school year.14 The circular of 18 May 2004 defined religious symbols of the type to be banned, referencing those “whose wearing immediately communicates one’s religious affiliation, such as the Islamic veil, regardless of its name, the kappa, or a cross of manifestly excessive dimensions”.15 Likewise with the Sikh turban or sub-turban,16 or bandanas article: “Les cent-trente ans de l’Ecole Sainte-Marie d’Albi” in the school’s newsletter, no. 68, April 2013. 12 Law no. 2004-084 of 15 March 2004 (article L.141-5-1 of the Education Code). 13 Circular of the Ministry of National Education no. 2004–084 of 18 May 2004. Journal Officiel (JO) of 22 May 2004 and Bulletin official (BO) no. 21 of 27 May 2004. 14 Cf. Journal La Croix, 14 March 2014. 15 Circular of 18 May 2004, 2-1. JO no. 118 of 22 May 2004, p. 9033. 16 Conseil d’Etat (hereinafter CE), 5 December 2007, Singh v. Minister of National Education, no. 285394, Recueil Lebon (hereinafter Rec.), p. 463; European Court of Human Rights, 13 November 2008, Mann Singh v. France (inadmissibility).

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worn on a permanent basis.17 “The law does not challenge the students’ right to wear discreet religious symbols”.18 The European Court of Human Rights has ruled the law compatible with the Convention on Human Rights,19 notably with article 9 of the Convention, which guarantees freedom of thought, conscience and religion, and with article 14 (prohibition of discrimination), citing the national margin of appreciation, in keeping with its standard jurisprudence on such issues as seen famously in the Lautsi case against Italy.20 Another recent example is the appeal of the law of 10 October 2010 prohibiting concealment of the face in public places,21 upheld reluctantly by the Strasbourg judges, who maintained only one of the arguments advanced by the French government, namely “living together”.22 One should bear in mind here the generally liberal orientation of the European Court of Human Rights. Even if it could be reproached for its casuistic attitude, which is inevitable as the court examines individual cases, article 9-related jurisprudence can be said to have certain principal traits, as cited by President Jean-Paul Costa, namely: state respect of religious pluralism, the state’s obligation to remain neutral and not to interfere in the practice of religion or intra-religious conflicts, and finally, the importance of the principle of subsidiarity and of national margins of appreciation.23 Certain questions have arisen with regard to the law of 2004, which has sparked much criticism on grounds of freedom of The matter concerns an appeal regarding the obligation to appear without a head covering on identity photographs to be used on official documents (in this case a driver’s license). 17 CE, 5 December 2007, M. and Mme. Ghazal v. Minister of National Education, no. 295671, Rec. p. 464. 18 Circular of 18 May 2004, 2-1. 19 European Court of Human Rights, 30 June 2009, Aktas v. France, Bayrac v. France, Gamaleddyn v. France, Ghazal v. France, Ranii Singh v. France and Jasvir Singh v. France. These cases concern six students excluded from their educational establishments after wearing the Islamic veil or the keksi, a Sikh sub-turban. The judges ruled the case inadmissible and the sanction non-disproportionate. 20 European Court of Human Rights, Grand Chamber, 18 March 2011, Lautsi and Others v. Italy, no. 30814/06. 21 According to the figures cited by the Ministry of Justice (JO of 25 March 2014, p. 2851), second class contravention as defined by the Law of 11 October 2010 resulted in 64 sentences in 2011, 307 in 2012, and 194 in the first semester of 2013. 22 European Court of Human Rights, Grand Chamber, 1 July 2014, SAS v. France, no. 43835/11. 23 Costa, Jean-Paul. 2013. La Cour européenne des droits de l’homme: Des juges pour la liberté, 99–100. Paris: Dalloz.

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expression and religion, such as whether the law should apply, at least in principle, to chaplains delivering catechesis in public schools or to parents, such as veiled mothers, accompanying children to school. The initial tendency of the Ministry of National Education was to extend religious neutrality to the parents, treating them as occasional collaborators of public education services. The Conseil d’État issued an opinion on this matter in December 2013, which defined the status of chaperones as being neither that of agents nor collaborators of public services, and therefore not bound by the requirement of religious neutrality, aside from special cases (disturbance of public order or proselytism). As a result, we are currently headed towards a liberal application of the Chatel Circular of 27 March 2012, which stipulates that school officials are to remind, in the internal regulations of the school, that schools are subject to the principle of secular public education and neutrality of public service, and education professionals should only intervene with discernment and in a civil fashion, which technically means that veiled mothers, for the case in point, are not bound by the requirement of religious neutrality when accompanying children to school, with the exception of cases involving disturbance to public order. One should applaud this interpretation, currently enforced by the Ministry of National Education,24 which is in line with the overarching principle that whenever a fundamental right is at risk, then freedom should be the rule of interdiction, the exception. Thus, veiled mothers should, as a rule, be accepted inside schools, while the exceptional refusal to admit them should be motivated by particular circumstances. A secularism charter for schools25 introduced in the fall of 2013 discusses these issues in simple language, easily understandable by students. As for teaching staff, they are required to be reserved, an obligation incumbent on all public servants. This means that teachers at different levels of education also have to abstain from wearing overt religious symbols. The previous year saw debates regarding the introduction of a stricter secular regime in French universities. The fact that students are majors, coupled with the principle of freedom of expression at universities, makes it possible for higher education establishments to maintain a liberal dress code, including the wearing of visible religious symbols, aside from in cases of proselytism, breach of 24

Cf. Ministry of National Education hearing of Madame Najat Vallaud-Belkacem at the Observatoire de la laïcité, 21 October 2014. Published in Journal La Croix, 30 October 2014. 25 Circular no. 2013-144 of 6 September 2013, BO n°33 of 12 September 2013, MENE1322761C.

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hygiene, security,26 or public order. The question, finally, is also to be addressed in the case of private schools, which in France are largely Catholic and linked to the state by an association agreement provided under the Debré Law of 31 December 1959, which assigns them to the public education sector while recognizing their special character which is, precisely, Catholic. It is quite certain that the 2004 law is aimed specifically at students attending public schools and not at those attending Catholic ones because of the very notion of the special character, which, in the case of the latter, happens to be religion. The issue may come up when a private Catholic school is used as an examination centre for national diplomas such as the baccalauréat. In our opinion there is no reason to remove crosses that are in the classrooms because of the special character of the school for the sole reason that students from other schools are to take their examinations there. This is the same in the situation where a teacher who happens to be a nun and follows the dress code of her order is convened to oversee an examination. These questions, however, remain sensitive and are a frequent subject of discussion in our country, where the delicate balance in such matters sometimes borders on acrobatics, as we well recognize, and where there are shadowy areas that judges strive to cast light on when examining the cases brought before them. Finally, beyond the enforcement of a law that some might judge punctilious, it is a matter of mutual respect and sensitivity, the goal being to ensure that no one feels ill at ease or discriminated against in our multicultural society, regardless of their religious beliefs.

The presence of the cross in courts The efforts made in the Third Republic to secularize the public sphere were equally directed at the judiciary, which was affected last, after schools and hospitals.27 During various seminars held on the occasion of the 100th anniversary of the passing of the Law of 1905 our colleague and friend, Prof. Jacques Poumarède, presented the circumstances of the secularization of courts, and here we make an explicit reference to his study.28 The Mass of the Holy Spirit, or “red mass”, which for many 26

European Court of Human Rights, 3 March 2009, Dogru v. France, no. 27058 /05. 27 As for hospitals, the secularization of their premises was effected pursuant to municipal legislation and instructions issued by the Public Aid administration. 28 Poumarède, Jacques. 2007. “Le Christ chassé des prétoires: anticléricalisme et justice à la veille de la Séparation.” In Auteurs et acteurs de la Séparation des

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centuries had traditionally marked the beginning of the judicial year, was abolished by a circular of 22 December 1900.29 However, it was another circular, issued on 31 March 1904 by the Minister of Justice (in the government of Émile Combes), Ernest Vallé, which was adopted “at the height of the crisis between Church and State”,30 that urged prosecutors general in appellate courts to take immediate measures to remove all religious emblems, crucifixes, paintings, and any other outward symbols of religion from courtrooms. The same was applied to civil, commercial, and district courts of all instances. These objects were to be deposited with the authorities of the department or commune, with the exception of those of an indubitable artistic or historic value, which should be stored carefully in a room in the appellate court before the fine arts authority issued a conservator’s opinion. This measure caused a scandal in Catholic circles, all the more so since, by a curious coincidence, the tribunals received the Ministry of Justice circular on Good Friday and were asked to implement it during the Easter judicial holidays (in order not to interfere with the functioning of the courts, according to the ministry), a month before the municipal elections of 1 May 1904. The implementation of the Vallé Circular proceeded with varying results. In Paris the removal of crucifixes and religious paintings was effected within a week. The Palais de Justice boasted numerous representations of Christ,31 one in each of its chambers. The famous triptych from the Grand Chamber of the old Paris Parliament, deposited at the Court of Appeal in 1808, became a bone of contention and was not deposited at the Louvre’s Pavillon de Marsan until 12 April, at which point it was included in an exhibition of French primitive art organized in 1904.32 In Toulouse, the first chamber of the court of appeal, a reconstitution of the Grand Chamber of the Parliament, comprised a chapel in the form of an apse containing a retable. The Chief Justice had contented himself with installing a curtain that was to hide the Eglises et de l’Etat, edited by Sylvie Humbert and Jean-Pierre Royer, 143–160. Lille: Centre d’Histoire Judiciaire (Université Lille 2). 29 Debré, Jean-Louis. 1981. La justice au XIXe siècle: Les magistrats, 170–171. Paris: Librairie Académique Perrin. 30 Poumarède, Jacques. 2007, 144. 31 Three at the Cassation Court, Eleven at the Court of Appeal, Fourtheen at the Court of First Instance and the Police Tribunal. 32 See also: Favard, Jean. 2007. “Après leur expulsion des prétoires, le destin du retable du Parlement et des autres "Christs" du Palais de la cite.” In Auteurs et acteurs de la Séparation des Eglises et de l’Etat, edited by Sylvie Humbert and Jean-Pierre Royer, 161–169. Lille: Centre d’Histoire Judiciaire (Université Lille 2).

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religious symbols from public sight, while at the same time the entire courtroom was copiously decorated with fleurs-de-lys and monograms of Charles VII under whose reign the Parliament had been definitively installed in Toulouse. Opposition was voiced in many places – in HauteGaronne (Montastruc), Dunkerque (consular judges), Limoges, Caen, and Bastia (the fishery board of judges). In the realm of justice, even though the magistracy remained rather reserved, a fact which could be attributed to previous dismissals and purges, it was mainly the lawyers who stood up against the anticlerical measure, both in Paris, around that venerable chairman of the bar, Edmond Rousse, a member of the Académie Française, and in the great bars of Dijon, Toulouse, and Lyon, and the lesser bars of Espalion in Aveyron and Saint-Jean d’Angély in CharenteMaritime, for example. We should emphasize here, following our colleague Jacques Poumarède, that the removal of crucifixes from the courts did not prevent the maintenance of the judicial oath in the religious forms provided for in articles 312 and 348 of the 1808 Code of Criminal Procedure. Despite a failed attempt at abolishing them in June 1882, oaths were still taken “before God and men”. These forms were judged substantiated by the Court of Cassation (judgment of 27 August 1914). Article 312 of the Code of Criminal Procedure still made provision for an oath “before God and before men to examine the charges [against the accused] with the most scrupulous attention” when it came to jurors in the assize court. At the end of judicial discussions, the chief juror had to – in accordance with article 348 of the same code – swear on his honour and conscience before God and men before he presented the jury’s verdict. The 1958 Code of Criminal Procedure upheld these forms (article 304 restating the former article 312) right up until the reform of 1972.33

The presence of the cross on streets and in cemeteries To begin, let us recall the rather unsightly debates going on today with regard to the proposals put forward by some anticlerical mayors, who would ban the use of streets for religious and funeral processions or carrying the viaticum. Many matters were widely talked about at the turn of the previous century, a time when the anticlerical struggle was at its most feverish. By virtue of the powers assigned to the police in the interests of maintaining public order under article 97 of the Municipal Law

33

Law no. 72-1226, JO of 30 December 1972, p. 13783.

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of 5 April 1884, referenced in article 27 of the law of 9 December 1905,34 certain mayors passed regulations prohibiting all outward demonstrations of faith, including funeral processions or the carrying of the viaticum by priests to the dying. Having extended its authority over these controversial regulations, widely discussed in doctrine, including by Maurice Hauriou, who in 1896 exhorted the administrative judge to lean “toward liberal interpretation rather than restriction”, the Conseil d’État evolved its jurisprudence after the adoption of the law of 1905.35 In 1909, in the famous abbé Olivier case,36 the High Administrative Court annulled legislation issued by the mayor of Sens that prohibited “religious demonstrations, notably those taking place on public roads on the occasion of funerals”. In fact this ban had not been necessary for maintaining public order, the custom since time immemorial being for the priest to come on foot to the house of the deceased and from there to walk at the head of the procession to the church, and then the cemetery – this in an age when funeral rites were much more externalized than today. This ruling became a starting point for the liberal jurisprudence of the Conseil d’État on such matters,37 based on the understanding that any such ban must be founded on a concrete and serious threat to public order, that one should reckon with customs, and that the formal requirement of prior notice was not 34

According to this article “Ceremonies, processions and other external demonstrations of faith will be regulated by articles 95 and 97 of the Municipal Law of 5 April 1884”. 35 To gain a wider perspective on the jurisprudence of the Conseil d’Etat with regard to religious freedom, see: Conseil d’Etat. 2014. Rapport public 2004, Jurisprudence et avis de 2003, Un siècle de laïcité, no. 55. Paris: La Documentation française, Etudes et documents, as well as Liberté religieuse et régime des cultes en droit français, Textes, pratique administrative, jurisprudence, 1996, edited by Bernard Jeuffroy and François Tricard. Paris: Edition du Cerf, new edition 2005; Ministère de l’intérieur et de l’outre-mer, des collectivités territoriales et de l’immigration. 2011. Laïcité et liberté religieuse, Recueil de textes et de jurisprudence, Paris: Les Éditions des Journaux Officiels. 36 CE, 19 February 1909, “Abbé Olivier.” In Marceau Long, Prosper Weil and Guy Braibant. Les Grands arrêts de la jurisprudence administrative, 86-89. Paris, France: Sirey, 1978, n. 22; Recueil des arrêts du Conseil d'Etat (Recueil Lebon), 181. Paris: Dalloz, 1910; Recueil des arrêts du Conseil d'Etat, n. 3, 34 (conclusions Chardenet). Paris: Sirey, 1910; Recueil des arrêts du Conseil d'Etat, n. 3, 121 (conclusions Chardenet). Paris: Dallloz, 1910; Revue du droit public et de la science politique, 69 (footnote Jèze). Paris: Chevalier-Marescq, 1910. 37 Nélidoff, Philippe. 2009. “Les premières interprétations de la loi du 9 décembre 1905 par le Conseil d’Etat.” In Mélanges en l’honneur de notre collègue Michel Ganzin, forthcoming from Presses universitaires D’Aix-Marseille.

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necessary because the date on which religious ceremonies took place was usually known in advance, for instance the visit and prayer for the dead on All Saints Day or the day after. We observe the same evolution with regard to the carrying of the viaticum, after a ruling in 1909,38 this being of necessity an external and public act of the Catholic faith performed according to consecrated ritual: the visible carrying of the Eucharist by a priest dressed in sacerdotal robes, accompanied by two clerics, one carrying an aspergillum, holy water, and a burse holding the Corporal, the other a ceremonial, and sounding a bell. These discussions are certainly out-dated today, as funeral rites have since become more discreet and more intimate than public. On the other hand, obsequies are no longer necessarily religious. In 2013, 70% of funerals in France were religious, 95% of these being Catholic funerals, which puts the number of civil funerals at around 30%, with strong regional variations.39 Lively debates have, however, re-erupted over the question of Muslim public prayers in streets on Fridays and during major Muslim holidays, particularly in the Paris area and in Marseille. They are related to another question, namely that of building (and financing the construction of) mosques that can accommodate Muslim worshippers in dignified conditions. The exercise of police powers by mayors also sparked a dispute about cemeteries being public space. In this particularly sensitive domain, that of the secularization of death, the major legislation dates back to the period between 1880 and 1905, corresponding to the quarter-century identified with the “discordate” – a fitting term coined by our colleague Gérard Cholvy. Less known than the others, this legislative body played a part in preparing the people’s minds for the idea of separation that was to dominate the law of 1905.40 The law of 14 November 1881 first “neutralized” public cemeteries by stripping them of a confessional character. The municipal law of 5 April 1884 (articles 93 and 97) prohibited all distinction in the treatment of the deceased, regardless of their beliefs or circumstances of 38

CE, 19 March 1909, Abbé Deguille, Rec., p. 307; Dalloz, 1910. 3. 12, Concl. Saint-Paul. See also: Leca, Antoine. “L’évolution de la jurisprudence du Conseil d’Etat en matière de culte 1879–1914.” In Christianisme et politique dans le Tarn sous la Troisième République, edited by Olivier Devaux and Philippe Nélidoff, 159. Toulouse: Presses de l’Université des Sciences Sociales de Toulouse, footnote 7. 39 Civil funerals account for 46% of funerals in the Essonne and for 13% in Metz. Cf. Journal La Croix, 1 and 2 November 2014. 40 Bertrand, Régis. 2005. “Limites d’une laïcisation de la mort.” In La Séparation de 1905, Les hommes et les lieux, edited by Jean-Pierre Chantin and Daniel Moulinet, 37-49. Paris: Les Éditions de l’Atelier / Éditions Ouvrières.

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their death (a measure formulated for those who had committed suicide, as well as freethinkers, those who had converted to another religion or had married someone of a different faith…). The law of 15 November 1887 introduced the principle of funerary freedom. The law of 28 December 1904 took away the churchwardens’, councils’ and consistories’ monopoly on funerals, stating that communes could henceforth provide “this public service [directly] or entrust it to a specialized company or secular charitable societies under municipal supervision”. Cemeteries were therefore largely secular even before the Law of 9 December 1905, whose article 28 simply “prohibit[ed] in the future, raising or attaching any religious sign or emblem to public monuments or any other public sites, with the exception of buildings serving a religious function, burial grounds in cemeteries, funerary monuments, and museums or exhibitions”. Certain anticlerical mayors, meanwhile, did not hesitate to introduce regulations aiming to impose strict religious neutrality in cemeteries. This caused an eruption of controversies over these questions, with certain administrators expending considerable energy to contravene these provocative interdictions. The Council of State ruled that a mayor could not demand the removal of a cross with the inscription “o crux, ave, spes unica” put up in a municipal cemetery by a priest who had previously obtained a concession to erect it there for his own grave and that of two sisters. Even though no burial had yet taken place, the mayor could not cite the unusual height of the cross (4 meters) in the absence of legislation regulating the height of crosses and religious emblems and without being able to point to any menace to security, hygiene, or public peace.41 On the condition of not exceeding the limits, mayors could not prohibit the erection of a tombstone topped by a cross on a grave, even before the time when concessions had to be renewed.42 Nor could they set limits on the height of funerary monuments erected on tombs or in burial grounds inside a communal cemetery, or prohibit the engraving of (religious) inscriptions such as could impair the religious neutrality of the cemetery on such monuments.43 Despite this, one could venture the hypothesis that one of the consequences of this anticlerical policy was to stimulate private initiative in the field of monument crosses, and statuary and religious inscriptions on tombs during the period in question.44 One should also bear in mind that although in some anticlerical municipalities the large, central cross is recorded as 41

CE, 21 January 1910, Abbé Gounod, Rec., pp. 51-52. CE, 23 June 1911, Dames Téoulé and Baux, Rec., p. 714. 43 CE, 30 July 1915, Flaget, Rec., p. 261. 44 Cf. Bertrand 2005, 44, including footnote 33. 42

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having been removed from some cemeteries, most municipalities abstained from making any changes whatsoever to these “temples of the dead”. Likewise with religious inscriptions at some cemetery entrances, including at the famous Père-Lachaise Cemetery in Paris. The question has resurfaced lately in connection with demands for denominational plots. Although religious cemeteries managed by Jewish or Protestant religious associations have traditionally existed in France, Muslim families are now demanding the institution of burial plots for Muslims in communal cemeteries. The Machelon Report (2006) pronounced itself in favour of private cemeteries because of the risk of communitarianism represented by denominational plots. Still, the question remains a sensitive one. It is natural that one should both respect the religious rites of the deceased and their families, and avoid the extremely burdensome procedure of transporting bodies to Muslim countries. The presence of the cross in the public space has given rise to multiple discussions in France. The question was at the centre of debates at the end of the nineteenth century and the beginning of the twentieth with the violently anticlerical policies of the Third Republic. It is certain that World War I brought about a significant change in outlook and easing of the restrictions linked to the policy of the Union Nationale. Today the question has resurfaced, yet in a vastly different context, namely that of religious pluralism, the place of Islam in our country, and the compromises between believers and non-believers that will be necessary to achieve “living together”, positively defined by secularism as respect for all forms of belief, and neutrality of political power. It is quite certain that the practices of other states, especially in Europe,45 can only illuminate reflection in this domain, which also touches on the freedom of expression. Beyond the ideological approach, an examination of contemporary conditions leads us to conclude positively – along with René Rémond46 and Jean-Pierre Machelon47 – that religions have a social dimension. This means that the religious question cannot be confined to the private sphere. To the extent that religious feelings rest on collective, and so public, expression, religious freedom, as stated in article 1 of the 45 See, particularly for the United Kingdom: European Court of Human Rights, 15 January 2013, Eweida and Others (Chaplin) v. United Kingdom. As for the two plaintiffs, one was an employee of British Airways and the other a geriatric nurse who wore Christian crosses in the workplace. 46 Remond, René. 2001, 283. 47 Machelon, Jean-Pierre. 2012. La laïcité demain: Exclure ou rassembler, Paris: Éditions du CNRS.

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Law of 9 December 1905, cannot exist without freedom of conscience and freedom of religious practice, limited by the natural constraints of public order. This freedom, doubtless relative, as guaranteed by the judge, is an integral component of the state of law, which is one of the benefits enjoyed by societies today. The presence of religious symbols in the public space therefore seems to us to be a concrete sign of respect for this fundamental freedom. One should therefore courageously promote an open and pluralistic conception of secularism48 that preserves both the freedom of religion and of expression, whilst at the same time respecting the values of the Republic.49

References Baubérot, Jean. “Histoire de la laïcité en France.” In Que sais-je?, no. 3571:4. Paris: PUF, 2000. Bertrand, Régis. “Limites d’une laïcisation de la mort.” In La Séparation de 1905, Les hommes et les lieux, 37-49. Edited by Jean-Pierre Chantin and Daniel Moulinet. Paris: Les éditions de l’Atelier / Editions Ouvrières, 2005. Costa, Jean-Paul. La Cour européenne des droits de l’homme: Des juges pour la liberté. Paris: Dalloz, 2013. Debré, Jean-Louis. La justice au XIXe siècle: Les magistrats. Paris: Librairie Académique Perrin, 1981. Dictionnaire critique de la Révolution française. Edited by François Furet. Paris: Champs-Flammarion, 1988. Favard, Jean. “Après leur expulsion des prétoires, le destin du retable du Parlement et des autres ‘Christs’ du Palais de la cite.” In Auteurs et acteurs de la Séparation des Eglises et de l’Etat, 161-169. Edited by Sylvie Humbert and Jean-Pierre Royer. Lille: Centre d’Histoire Judiciaire (Université Lille 2). Lalouette, Jacqueline. “Expulser Dieu: la laïcisation des écoles, des hôpitaux et des prétoires.” Mots 27/1(1991):23-39. —. La République anticléricale, XIXe-XXe siècles. Paris: Seuil, 2002. Leca, Antoine. “L’évolution de la jurisprudence du Conseil d’Etat en matière de culte 1879–1914.” In Christianisme et politique dans le 48

Picq, Jean. 2014. La liberté de religion dans la République, Paris: Jacob Odile. On all these questions one cannot but cite Poulat, Émile. 2003. Notre laïcité publique, Paris: Berg International; Idem, 2014. Notre laïcité ou les religions dans l’espace public. Entretiens avec Olivier Bobineau et Bernadette Sauvaget. Paris: Descleé de Brouwer. 49

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Tarn sous la Troisième République. Edited by Olivier Devaux and Philippe Nélidoff. Centre albigeois d’histoire du droit et des institutions. Toulouse: Presses de l’Université des sciences sociales de Toulouse. Liberté religieuse et régime des cultes en droit français, Textes, pratique administrative, jurisprudence. Edited by Bernard Jeuffroy and François Tricard. Paris: Edition du Cerf, new edition 2005. Marceau, Long, Prosper Weil, and Guy Braibant. Les Grands arrêts de la jurisprudence administrative, n. 22. Paris: Sirey, 1978. Machelon, Jean-Pierre. La laïcité demain: Exclure ou rassembler. Paris: Éditions du CNRS, 2012. Mayeur, Jean-Marie. 1966. La séparation des Eglises et de l’Etat. Paris: Julliard (republished Les Éditions de l’Atelier/Éditions Ouvrières, 2005). Ozouf, Mona. La Fête révolutionnaire 1789–1799. Paris: Gallimard, 1976 (republished in Collection Folio histoire /n°22/, Paris: Gallimard 1988). —. “Calendrier.” In Chapitre 3: Institutions et créations. Dictionnaire critique de la Révolution française, 91-106. Edited by François Furet. Paris: Champs-Flammarion, 1992. —. “Religion révolutionnaire.” In Chapitre 3: Institutions et créations. Dictionnaire critique de la Révolution française, 311-328. Edited by François Furet. Paris: Champs-Flammarion, 1992. Picq, Jean. La liberté de religion dans la République. Paris: Éditions Jacob Odile, 2014. Poulat, Émile. Notre laïcité publique. Paris: Berg International, Faits et Représentations, 2003. —. Notre laïcité ou les religions dans l’espace public. Entretiens avec Olivier Bobineau et Bernadette Sauvaget. Paris: Descleé de Brouwer, 2014. Poumarède, Jacques. “Le Christ chassé des prétoires: anticléricalisme et justice à la veille de la Séparation.” In Auteurs et acteurs de la Séparation des Eglises et de l’Etat, 143-160. Edited by Sylvie Humbert and Jean-Pierre Royer. Lille: Centre d’histoire judiciaire (Université Lille 2), 2007. Rémond, René. Religion et société en Europe, La sécularisation aux XIXe et XXe siècles 1789–2000. Paris: Seuil, 2001.

CHAPTER FIVE THE PRESENCE OF THE CROSS IN PUBLIC SPACES: THE CURRENT SITUATION IN GERMANY STEPHAN HAERING

Introduction In a television discussion in May 2014, a European politician who hails from Germany and who is, at the same time, the President of the European Parliament, Martin Schulz, stated the demand for public spaces to be free of religious symbols. This statement triggered off a brief debate, particularly about the relevance and status of the presence of the cross in public spaces. Martin Schulz received much criticism in Germany from different quarters, including representatives of his own party, the Social Democratic Party of Germany (SPD). A social democrat from the state of Bavaria said that he could imagine the peak of the Bavarian mountain that is studded with crosses. In the background of the comment from Schulz is, on the one hand, the opinion, held at least in some parts of different political groupings that religion is a private affair. On the other hand, however, the religious and ideological pluralism, which in the course of the past decades has considerably evolved in Germany, have also played quite an essential role in this regard. Up to the 1980s, before the reunification of Germany, the old Federal Republic of Germany (West Germany) was at least statistically a predominantly Christian country with a very high number of its citizens having a link to the Church; the proportional percentage of the members of the Church to the overall population had certainly seen a decline over the years, but not that significantly. That has changed, especially over the past 25 years. As a result of the massive process of secularization and the large number of citizens from the Eastern German states, who are mostly without any religious affiliation and who joined the Federal Republic of

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Germany in 1990, more than one third of the German population today is without religious affiliation. As a result of migration, there are, besides the two main traditionally represented Churches – the Catholic and Lutheran Churches – other Christian denominations and non-Christian religions in Germany. Around four million Muslims currently live in Germany, and they have their own religious traditions and symbols. The then German President, Christian Wulff, in his address at the 20th Anniversary of the Unification of Germany on 3 October 2010, said in fact that Islam also belongs to Germany.1 In considering the religious and ideological complexity presented above, it might seem reasonable to agree with Martin Schulz’s opinion that excluding religious signs and symbols as well as everything connected with religion from public places might help avoid from the very beginning all possible conflict between the different religious and ideological groups. Such an action would, however, not be in line with the prevailing regulation in Germany with regard to the relationship between the state and different religions and ideologies. I intend therefore to present first the general basics of the German legal system as regards religion and religious or ideological communities. Secondly, I intend to dwell specifically on the issue of the presence of the cross in public places in Germany, for which the important decision of the Federal Constitutional Court of 1995 will be the focal point. This will be followed by some short remarks on the private display of the cross in public, and then a summary and future prospects will conclude this essay.

Freedom of religion and the basics of the relationship between the state and religions in Germany The Federal Republic of Germany belongs to those states that are committed to the freedom of religion and to the neutrality of the state towards the Church and other religions or ideological communities.2 The 1

http://www.bundespraesident.de/SharedDocs/Reden/DE/Christian-Wulff/ Reden/ 2010/10/20101003_Rede.html (accessed March 15, 2015). 2 For the German constitutional order concerning religious rights and the relation between the state and religious communities see: Handbuch des Staatskirchenrechts der Bundesrepublik Deutschland. 1994/1995, edited by Joseph Listl and Dietrich Pirson, 2 vol., 2nd ed. Berlin: Duncker & Humblot; Listl, Joseph, and Alexander Hollerbach. 1999. “Das Verhältnis von Staat und Kirche in der Bundesrepublik Deutschland.” In Handbuch des katholischen Kirchenrechts, 2nd ed., edited by Joseph Listl and Heribert Schmitz, 1268-1293. Regensburg: F.

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main provisions of the Constitution (1949, Grundgesetz3) are found in the section dealing with fundamental rights. Article 4 states explicitly: (1) The freedom of faith, of conscience and the freedom of religious and ideological confessions are inviolable. (2) The undisturbed exercise of religion is guaranteed.

These provisions for the freedom of faith, conscience, religious and ideological confessions, as well as the undisturbed exercise of religion, form the cornerstones for the relationship between the state and religions and ideological communities. They not only guarantee every individual the opportunity to confess and actively practice his faith, but also provide the most important fundamental legal basis for the existence of religious communities and their activities. Besides, Article 19, section 3 of the German Constitution stipulates that fundamental rights are also valid for juridical persons to the extent that this can be applied to them. At any rate, this applies to the freedom of confession and to the freedom to exercise religion, which can be exercised collectively. In addition, it must be pointed out that the German Constitution also provides for religious education in public schools as a regular subject, whose content and the approbation of the teaching staff is largely influenced by the religious community (Article 7, section 3 of the Constitution). Pustet; Jeand’Heur, Bernd, and Stefan Korioth. 2000. Grundzüge des Staatskirchenrechts. Stuttgart: Boomberg; von Campenhausen, Axel Freiherr, and Heinrich de Wall. 2006. Staatskirchenrecht. Eine systematische Darstellung des Religionsverfassungsrechts in Deutschland und Europa, 4th ed. München: C.H. Beck; Mückl, Stefan. 2007. “Trennung und Kooperation – das gegenwärtige StaatKirche-Verhältnis in der Bundesrepublik Deutschland.” In Die Trennung von Staat und Kirche. Modelle und Wirklichkeit in Europa, edited by Burkhard Kämper and Hans-Werner Thönnes, 41-83. Münster: Aschendorff (= Essener Gespräche zum Thema Staat und Kirche 40); Id. 2009. “Grundlagen des Staatskirchenrechts.” In Handbuch des Staatsrechts der Bundesrepublik Deutschland, 3rd ed., vol. 7: Freiheitsrechte, edited by Josef Isensee and Paul Kirchhof, 711-789. Heidelberg: C.F. Müller; Germann, Michael. 2009. “Religion und Staat in der Bundesrepublik Deutschland: rechtliche Maßgaben.” In Religion im öffentlichen Raum. Deutsche und französische Perspektiven (= Frankreich-Forum 8), edited by Bernd Schröder and Wolfgang Kraus, 47-66. Bielefeld: Transcript; de Wall, Heinrich, and Stefan Muckel. 2014. Kirchenrecht. Ein Studienbuch, 4th ed., 60-94. München: C.H. Beck. 3 Cf. Hufen, Friedhelm. 2002. “Art. Grundgesetz.” In Lexikon für Kirchen- und Staatskirchenrecht, vol. 2, 180-181 (bibl.). Paderborn: Schöningh.

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Further to that, there are also constitutional regulations, such as the Church articles of the Weimar Imperial Constitution (1919, Weimarer Reichsverfassung4; Articles 136–139, 141 WRV), which was absorbed into the constitutional order of the Federal Republic of Germany according to Article 140 of the German Constitution. In Article 136, explanatory clarifications with regard to the individual freedom of religion are formulated; for instance, it is stated there that nobody should be discriminated for exercising the freedom of religion, and that religious belief must not be disclosed, except under strictly limited conditions, where the state may be allowed to ask for information about one’s religious affiliation. Article 137 contains several provisions for the freedom of the Churches and the ability of religious and ideological communities to act as legally recognized corporate public bodies with the corresponding privileges. Article 138 allows the removal of state subsidies to the Churches and guarantees Church property. Article 139 covers Sundays and public holidays, while article 141 provides the opportunity to render military chaplaincy and pastoral care within institutions such as hospitals or prisons. On the basis of these constitutional provisions, very favourable conditions have evolved for the development of the individual and corporate freedom of religion. There is, admittedly, the principle of separation between the Church and the state in Germany, but there also exists the opportunity for cooperation between the two partners, and this opportunity is being utilized by the major Churches. To some extent, there are some elements existing from the state-church relationships of the past that still remain, even when they were thought to have long been overcome. This has nothing to do with any issues of particularly practical importance; such issues are to a large extent normally handled by both sides without much problem. A good example of this is the state requirements for the educational background and citizenship of certain ecclesiastical office holders,5 or the oath of allegiance of Catholic

4

Cf. Hammer, Felix. 2004. “Art. Weimarer Reichsverfassung.” In Lexikon für Kirchen- und Staatskirchenrecht, vol. 3, 873-874 (bibliography). Paderborn: Schöningh. 5 Cf. Link, Ludwig. 1942. Die Besetzung der kirchlichen Ämter in den Konkordaten Papst Pius’ XI (= Kanonistische Studien und Texte 18-19), 65-162. Bonn: Ludwig Röhrscheid Verlag; Hermes, Christian. 2009. Konkordate im vereinigten Deutschland, 375-387. Ostfildern: Grünewald.

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bishops before the state.6 The corresponding regulations go back to earlier concordats (agreements) and they apply today only in a few German states. Owing to those agreements between the Catholic Church and the German partners that have been entered into in the last two decades7, the oath of allegiance for the bishops before the state has been abolished without exception, so that today the oath is only required from bishops of the western and southern German dioceses. The certification of ecclesiastical office holders, who do not fulfil all the conditions as stipulated in the agreement, is accepted on the side of the state. On the basis of the outlined legal relationship between the Federal Republic of Germany and Churches and religious or ideological communities, which can also be described as “favourable separation”, religious life can easily find complete expression. The state respects the religiosity and ideology of its citizens and gives the associations and corporate bodies, formed out of the religious and ideological convictions of their members, their place in public life. In the interest of its citizens who are religiously or ideologically bound together, the state is ready to encourage the activity and development of Churches and religious communities under the principles of equity. The public operation of these communities in Germany is therefore basically not suspicious, but is favourably viewed and supported. The presentation and the dissemination of their belief form part of the public activity of Churches and religious communities. This also happens with the help of symbols, such as the cross as a primary symbol for Christianity. In a state in which the freedom of religion and worship is respected and protected, such symbols occupy a special place in the public sphere. 6 Cf. Dahl-Keller, Ulrike Marga. 1994. Der Treueid der Bischöfe gegenüber dem Staat. Geschichtliche Entwicklung und gegenwärtige staatskirchenrechtliche Bedeutung (= Staatskirchenrechtliche Abhandlungen 23). Berlin: Duncker & Humblot. 7 Cf. Haering, Stephan. 1999. “Die Verträge zwischen dem Heiligen Stuhl und den neuen Bundesländern aus den Jahren 1994 bis 1998.” In Dem Staate, was des Staates – der Kirche, was der Kirche ist. Festschrift für Joseph Listl zum 70. Geburtstag (= Staatskirchenrechtliche Abhandlungen 33), edited by Josef Isensee, Wilhelm Rees and Wolfgang Rüfner, 761-794. Berlin: Duncker & Humblot; Id. 2009. “Neuere Entwicklungen im deutschen Konkordatsrecht.” In Kirche und Staat im Horizont einer globalisierten Welt (= Wissenschaft und Religion 21), edited by Hans Paarhammer and Gerlinde Katzinger, 149-173. Frankfurt am Main: Peter Lang; Hermes, Christian. 2009, 177–270.

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The 1995 decision concerning the cross by the German Federal Constitutional Court It is now roughly two decades since the most threatening controversy occurred around the cross in public spaces, which was about the debate on the hanging of crosses in classrooms. The issue also partly reawakened historical memories, because, during the Nazi era in Germany, crosses and religious symbols were removed from the classrooms at the order of the state. This led to considerable unrest and resistance among the populace at that time, forcing the Nazi Regime to partly rescind the decision. The political context of the controversy in the 1990s was quite different. It was no longer about a totalitarian and illegal regime that was hostile to the Church and with whom no one wanted to have anything to do. This time, it was about a state committed to the defence of human rights that was neutral to religion. The origin of the debate about the cross in classrooms in public schools in the state of Bavaria can be traced to a corresponding regulation in the Bavarian rules for public primary schools, which makes provision for the hanging of crosses in the classrooms. The parents of one of the pupils, citing the negative freedom of religion, demanded from the school authorities the removal of the crucifix from the classroom where their daughter was attending. In this connection, the reference to the depiction of brutality that the image of the crucified Jesus portrays for the parents played some sort of role. Initially, the conflict was partly resolved by replacing the crucifix with a simple cross without the corpus and hanging it not at the front of the classroom but on a sidewall. However, the parents decided to follow the next course of action by filing a lawsuit at the Administrative Court against the Free State of Bavaria, claiming that it incorporated an illegal provision in its regulations for public schools. They applied for the removal of the cross, but the Administrative Court dismissed the case in the first instance. The appeal at the next instance at the Bavarian Administrative Court of Justice ended equally without success. It was argued in the judgments of the Courts that hanging a cross in the classroom has very little influence on the pupils and that the pupils are not demanded to identify actively with the Christian faith. The presence of crosses in classrooms violates only slightly the negative freedom of religion, and the freedom of the state to organize its schools and the positive freedom of religion of those parents who want the cross in the classroom outweigh the request of the plaintiff. The neutrality of the state is therefore not violated.

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Thereafter, the petitioner lodged a constitutional complaint at the Federal Constitutional Court in Karlsruhe (Bundesverfassungsgericht) and was successful this time. In its judgment of 16 May 1995, the Constitutional Court declared the provisions of the Bavarian Public School Regulations about hanging crosses in classrooms null and void.8 The judgment was justified by the argument that the provision is not compatible with the fundamental right of the freedom of religion and worship according to article 4, section 1 and the right of parents to bring up their children according to article 6, section 2 of the Constitution. The Federal Constitutional Court was of the opinion that the freedom to decide which religious symbol every single individual wants to recognize is also included in the negative freedom of worship. It is not only about the freedom not to take part in the cultic activity of a religious community or not. The cross has an appealing character and presents the Christian articles of faith in an exemplary manner that suggests compliance. When the state prescribes the hanging of a cross, it is then encroaching into an area that is protected by the fundamental right of the negative freedom of religion and worship. By the organization of its school laws, the state can also take into consideration the positive freedom of religion and worship of those parents who want the Christian education of their children, and therefore appreciate the presence of a Christian symbol such as the cross in the classroom. However, in a conflict situation about the hanging of a cross, a practicable solution must be found that takes into consideration all legitimate claims. A peaceful coexistence of the various positions should be encouraged.9

8

Archiv für katholisches Kirchenrecht 164(1995):187–203. Cf. Badura, Peter. 1995. “Das Kreuz im Schulzimmer. Inhalt und rechtliche Tragweite des Beschlusses des Bundesverfassungsgerichts vom 16. Mai 1995 (1 BvR 1087/91).” Archiv für katholisches Kirchenrecht 164(1995):17–53; Muckel, Stefan. 1996. “Überkreuz mit dem Kreuz. Bemerkungen zum "Kruzifix-Beschluß" des BVerfG.” Kirche & Recht 2(1996):65–80 [= 110, pp. 21–36]; Kästner, Karl H. 1996. “Lernen unter dem Kreuz? Zur Zulässigkeit religiöser Symbole in staatlichen Schulen nach der Entscheidung des BVerfG vom 16. Mai 1995.” Zeitschrift für evangelisches Kirchenrecht 41(1996):241–272; Jestaedt, Matthias. 1997. “Karlsruhe im Kreuz-Feuer. Inhalt, Analyse und Kritik des KruzifixBeschlusses.” Die Neue Ordnung 51(1997):26–39; Brugger, Winfried. 1998. Der Streit um das Kreuz in der Schule. Zur religiös-weltanschaulichen Neutralität des Staates. Baden-Baden: Nomos. 9

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It is also interesting that the Federal Constitutional Court classifies the cross explicitly as a symbol of faith and not just as a symbol signifying the Christian cultural tradition. Incidentally, three out of the eight judges of the senate did not agree with the decision of the Federal Constitutional Court to declare the corresponding provision of the Bavarian regulations for public school unconstitutional. They gave reasons for their dissenting opinion,10 although we are not going to dwell on them here. The practical implementation of the majority decision of the court led to the removal of crosses from those classrooms or classes where the affected child frequently had to attend. The controversy over the school cross did not yet end with the publication of the decision of the Federal Constitutional Court. The decision was fiercely discussed and also criticized in public debate. In doing so the historical experiences of the Nazi era played a great role, and this was also testified by some of the participants. The reaction of the Bavarian legislator was to draft article 7, section 3 (now: section 4) of the law about the educational and teaching system in such a way that the policy of hanging crosses in the classrooms will be retained. However, the objections and observations of the judgment of the Federal Constitutional Court had to be put into consideration. The regulation received the following wording: Given the historical and cultural character of Bavaria, a cross is to be hung in every classroom. With this, the intention is to achieve the highest goal of education as contained in the Constitution on the basis of the Christian and western values, while observing the freedom of faith. If for serious and understandable reasons bordering on faith or ideology the parents or legal guardians of a pupil raise an objection against the hanging of the cross, the principal of the school should try to seek an amicable agreement. If an agreement cannot be reached, the principal, after due consultation with the education authority, should be able to take an ad hoc decision, which should take into consideration the freedom of worship of the opposing parties and at the same time bring about an equitable balance of the religious and ideological convictions of everyone involved in the class, thereby taking into account as far as possible the will of the majority.11 10

Archiv für katholisches Kirchenrecht 164(1995):203–211. Bayerisches Gesetz über das Erziehungs- und Unterrichtswesen (BayEUG) in der Fassung der Bekanntmachung vom 31. Mai 2000. Bayerisches Gesetz- und Verordnungsblatt 2000, pp. 414–451 (419: Angesichts der geschichtlichen und kulturellen Prägung Bayerns wird in jedem Klassenraum ein Kreuz angebracht.

11

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This statutory regulation subsequently continued to be the cause of further court disputes, but it withstood the test.12 Noticeable in the justification for this regulation is the attempt to link the cross to the cultural characteristic of the state of Bavaria through Christianity, and thereby to put the genuine religious importance of the Christian beliefs and the cross insofar into the background. The Bavarian legislator chose this method in order to salvage the cross in the classroom, because if one considers the cross primarily as a symbol of culture, then the state, which is committed to religious neutrality, can also prescribe and provide for the hanging of a cross in the classroom.

The cross as a “private” religious symbol in public spaces The individual and the corporative freedom of religion allow the individual the expression of his/her faith and religious conviction, even through symbols and signs. This can happen in different ways. The cross is found in religious buildings like churches, but private individuals can also hang it in their homes. For the modalities of doing this, there may be provisions under the building law to be followed. The same is true of the Damit kommt der Wille zum Ausdruck, die obersten Bildungsziele der Verfassung auf der Grundlage christlicher und abendländischer Werte unter Wahrung der Glaubensfreiheit zu verwirklichen. Wird der Anbringung des Kreuzes aus ernsthaften und einsehbaren Gründen des Glaubens oder der Weltanschauung durch die Erziehungsberechtigten widersprochen, versucht die Schulleiterin bzw. der Schulleiter eine gütliche Einigung. Gelingt eine Einigung nicht, hat sie bzw. er nach Unterrichtung des Schulamts für den Einzelfall eine Regelung zu treffen, welche die Glaubensfreiheit des Widersprechenden achtet und die religiösen und weltanschaulichen Überzeugungen aller in der Klasse Betroffenen zu einem gerechten Ausgleich bringt; dabei ist auch der Wille der Mehrheit, soweit möglich, zu berücksichtigen). 12 Beschluß des Bayerischen Verfassungsgerichtshofs vom 26. November 1996 (3 CE 96.1926) zur Entfernung von Kreuzen aus Unterrichtsräumen. Archiv für katholisches Kirchenrecht 165(1996):588–591; Entscheidung des Bayerischen Verfassungsgerichtshofes vom 1. August 1997 (Vf. 6-VII-96, Vf. 17-VII-96 u. Vf. 1-VII-97) zur Frage der Anbringung von Kreuzen in bayerischen Volksschulen. Archiv für katholisches Kirchenrecht 166(1997):581–597; Urteil des Bundesverwaltungsgerichts vom 21. April 1999 (6 C 18/98) zur Entfernung von Kreuzen aus Unterrichtsräumen. Archiv für katholisches Kirchenrecht 168(1999):243–256. Cf. Häußler, Ulf. 1998. “Schulkreuze im säkularen Staat. Zum Verhältnis von Grundrechtsschutz und Neutralitätsprinzip.” Zeitschrift für evangelisches Kirchenrecht 43(1998):461–492(475–482).

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cross as a memorial in open fields or farmland, which can be erected by the owner on his plot of land while observing the existing laws for the erection of such symbols. There are traditionally many such field-crosses found in some regions of Germany. How, though, does this relate to the private use of religious signs in government premises, such as in classrooms or courtrooms? Can a cross be hung or worn there? It is not that such public places in Germany must be kept strictly free of religious symbols. The individuals who stay there essentially have the right to profess their faith in these places, and such expression of faith can also include symbols like the cross. Most German states do not have any law that defines whether a cross has to be hung in a classroom. Nevertheless, it would also be possible in such states to hang a cross in the classroom if the individuals using the room were to ask for it or approve of it. Every faithful individual is completely at liberty to express his faith in any way, for example by personally wearing a cross around the neck. From the fundamental right of the negative freedom of religion and the principle of religious neutrality of the state, no unconditional claim can be made to the effect that one cannot be confronted in public places with religious symbols such as the cross.13 There may, however, be certain restrictions in this area. It is thus possible that a teacher may be forbidden to wear very conspicuous religious symbols in the classroom. With that, positive freedom of religion is admittedly being restricted, but this can be allowed in the official realm since the teacher is seen as a representative of the state, which is committed to religious neutrality.14

Conclusion and Prospects Heiner Bielefeldt, Professor for Human Rights and Human Rights Politics at the University of Erlangen, Germany, and, since 2010, United Nations Special Correspondent on the Freedom of Religion and Ideology 13

Cf. Heinig, Hans Michael. 2013. “Gerichtliche Auseinandersetzungen um Kreuz und Kopftuch im öffentlichen Raum. Thesen und Beobachtungen.” In Religion im öffentlichen Raum (= Religion – Staat – Gesellschaft 1), edited by Karlies Abmeier, Michael Borchard and Matthias Riemenschneider, 79-88. Paderborn: Schöningh. 14 Cf. Jestaedt, Matthias. 2009. “Schule und außerschulische Erziehung.” In Handbuch des Staatsrechts der Bundesrepublik Deutschland, 3rd ed., vol. 7: Freiheitsrechte, edited by Josef Isensee and Paul Kirchhof, 521-596 (590-592). Heidelberg: C.F. Müller.

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has recently observed that there is an alarming degree of religious disdain in Germany and other west European countries. He further argues that this disdain might even change to hatred. According to him, this high rate of religious disdain was observable in 2012 during the debate about the circumcision of boys on religious grounds.15 Bielefeldt has expressed his great concern in many various publications and commentaries to this issue. For him, there is an aggressive lack of understanding towards matters concerning religious communities in particular and religion in general. In the assessment of this political scientist, there is a growing proportion of our western society that have little understanding of the fact that religion is an existential concern for many people. One can’t quite comprehend such assessments like that of Bielefeldt when one reads the letters to the editors of many German newspapers and, still more, when one observes in the corresponding internet sites the anonymous commentaries submitted on factual or alleged scandalous cases in religious communities. Such a climate of religious contempt in some wide sections of society can lead further towards the preference for the negative freedom of religion as a fundamental right.16 Religious and cultic expressions of the individual citizen or even the religious communities could increasingly be eliminated from public spaces and relegated to private niches. In that way, the fundamental right to the freedom of religion would ultimately be undermined and finally eradicated.17 In virtue of the prevailing constitutional provisions for Churches and religious communities, such a scenario in Germany is not imminently threatening. In the German Constitution and in the Constitutions of the different federated states in Germany, the public status and public relevance of religious communities are recognized. There is also at present in Germany no obvious political majority that may want to change these legal realities. 15 Cf. Bielefeldt, Heiner. 2012. “Der Kampf um die Beschneidung. Das Kölner Urteil und die Religionsfreiheit.” Blätter für deutsche und internationale Politik 57/9(2012):63-71; Id. “Interview.” Nordwest-Zeitung, October 18, 2013. 16 Cf. Schneider, Heinrich. 2007. “Religionsfreiheit, Kulturkampf oder was sonst.” In Religion im öffentlichen Raum. Religiöse Freiheit im neuen Europa (= Iustitia et Pax. Dokumentation 5), edited by Friedrich Gleißner, Hanspeter Ruedl, Heinrich Schneider and Ludwig Schwarz, 11-40. Wien – Köln – Weimar: Böhlau. 17 Cf. Wittreck, Fabian. 2013. “Perspektiven der Religionsfreiheit in Deutschland.” In Neuere Entwicklungen im Religionsrecht europäischer Staaten (= Kanonistische Studien und Texte 61), edited by Wilhelm Rees, María Roca and Balázs Schanda, 825-857. Berlin: Duncker & Humblot.

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Nevertheless, one has to bear in mind that the train of public opinion does not slowly head to the aforementioned opposite direction. In my assessment, this would not only portend a threat to the prospects of religious and ideological communities, but it will ultimately jeopardize fundamental rights in general. I dare to posit this theory, that respect for the freedom of religion is a decisive yardstick towards answering the question of whether human rights should actually be respected in a country. Against this background, the Church will have to be making sure that it does not miss any opportunity for the proclamation of the gospel and salvation in Christ, and that it remains faithful to its mission and discharge this mission courageously, even under increasingly difficult conditions.18 The presence of the cross in public spaces in Germany will continue, while at the same time the regional differences will continue to exist with regard to the intensity of this public presence, in accordance with the different confessional or ideological compositions of the populace in the various regions in Germany. The Church will have to be watchful that the symbols of other religions are accorded their due presence in the public place, and to this extent also that the freedom of religion of other communities is respected.19 And finally it will also be important on the part of the Church that the cross is not just allowed to degenerate into a mere Christian-cultural tradition. This is because the cross is far more than the sign of a particular cultural tradition. For Christians it is in a special way the sign of salvation, the sign of the deliverance from sin and death. It is the symbol of hope and must be testified as such before the world. That is the assignment of Christians and the mission of the Church, because: Stat crux dum volvitur orbis.

18

Cf. Koch, Kurt. 2009. “Brauchen wir ein öffentliches Christentum.” In Religion und Öffentlichkeit. Probleme und Perspektiven (= Religionsforum 4), edited by Mariano Delgado, Ansgar Jödicke and Guido Vergauwen, 99-118. Stuttgart: Kohlhammer . 19 Cf. also Müller-Funk, Wolfgang. 2007. “Säkularisierung – Kirche, Religion und Staat – Toleranz und Anerkennung. Stichworte zu einer fälligen Diskussion.” In Religion im öffentlichen Raum. Religiöse Freiheit im neuen Europa, edited by Friedrich Gleißner, Hanspeter Ruedl, Heinrich Schneider and Ludwig Schwarz, 173-185. Wien – Köln – Weimar: Böhlau.

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References Badura, Peter. “Das Kreuz im Schulzimmer. Inhalt und rechtliche Tragweite des Beschlusses des Bundesverfassungsgerichts vom 16. Mai 1995 (1 BvR 1087/91).” Archiv für katholisches Kirchenrecht 164(1995):17–53. Bielefeldt, Heiner. “Der Kampf um die Beschneidung. Das Kölner Urteil und die Religionsfreiheit.” Blätter für deutsche und internationale Politik 57/9(2012):63–71. Brugger, Winfried. Der Streit um das Kreuz in der Schule. Zur religiösweltanschaulichen Neutralität des Staates. Baden-Baden: Nomos, 1998. von Campenhausen, Freiherr Axel, and Heinrich de Wall. Staatskirchenrecht. Eine systematische Darstellung des Religionsverfassungsrecht in Deutschland end Europa, 4th ed. München: C. H. Beck, 2006. Dahl-Keller, Ulrike Marga. Der Treueid der Bischöfe gegenüber dem Staat. Geschichtliche Entwicklung und gegenwärtige staatskirchenrechtliche Bedeutung. Berlin: Duncker & Humblot, 1994 (= Staatskirchenrechtliche Abhandlungen 23). Germann, Michael. “Religion und Staat in der Bundesrepublik Deutschland: rechtliche Maßgaben.” In Religion im öffentlichen Raum. Deutsche und französische Perspektiven. Edited by Bernd Schröder and Wolfgang Kraus, 47-66. Bielefeld 2009 (= Frankreich-Forum 8). Haering, Stephan. “Die Verträge zwischen dem Heiligen Stuhl und den neuen Bundesländern aus den Jahren 1994 bis 1998.” In Dem Staate, was des Staates – der Kirche, was der Kirche ist. Festschrift für Joseph Listl zum 70. Geburtstag. Edited by Josef Isensee, Wilhelm Rees and Wolfgang Rüfner, 761-794. Berlin: Duncker & Humblot, 1999 (= Staatskirchenrechtliche Abhandlungen 33). —. “Neuere Entwicklungen im deutschen Konkordatsrecht.” In Kirche und Staat im Horizont einer globalisierten Welt (= Wissenschaft und Religion 21). Edited by Hans Paarhammer and Gerlinde Katzinger, 149-173. Frankfurt am Main: Peter Lang, 2009. Hammer, Felix. “Art. Weimarer Reichsverfassung.” In Lexikon für Kirchen- und Staatskirchenrecht, vol. 3. Paderborn: Schöningh, 2004. Handbuch des Staatskirchenrechts der Bundesrepublik Deutschland, 2nd ed. Edited by Joseph Listl and Dietrich Pirson, Berlin: Duncker & Humblot, 1995. Häußler, Ulf. “Schulkreuze im säkularen Staat. Zum Verhältnis von Grundrechtsschutz und Neutralitätsprinzip.” Zeitschrift für evangelisches Kirchenrecht 43(1998):461–492.

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Heinig, Hans Michael. “Gerichtliche Auseinandersetzungen um Kreuz und Kopftuch im öffentlichen Raum. Thesen und Beobachtungen.” In Religion im öffentlichen Raum (= Religion – Staat – Gesellschaft 1). Edited by Karlies Abmeier, Michael Borchard and Matthias Riemenschneider, 79-88. Paderborn: Schöningh, 2013. Hermes, Christian. Konkordate im vereinigten Deutschland, Ostfildern: Grünewald 2009. Hufen, Friedhelm. “Art. Grundgesetz.” In Lexikon für Kirchen- und Staatskirchenrecht, vol. 2. Paderborn: Schöningh 2002. Jeand’Heur, Bernd, and Stefan Korioth. Grundzüge des Staatskirchenrechts: Kurzlehrbuch. Stuttgart: Boorberg, 2000. Jestaedt, Matthias. “Karlsruhe im Kreuz-Feuer. Inhalt, Analyse und Kritik des Kruzifix-Beschlusses.” Die Neue Ordnung 51(1997):26–39. —. “Schule und außerschulische Erziehung.” In Handbuch des Staatsrechts der Bundesrepublik Deutschland. Edited by Josef Isensee and Paul Kirchhof, 3rd ed., vol. 7: Freiheitsrechte, 521-596. Heidelberg: C.F. Müller. 2009. Kästner, Karl H. “Lernen unter dem Kreuz? Zur Zulässigkeit religiöser Symbole in staatlichen Schulen nach der Entscheidung des BVerfG vom 16. Mai 1995.” Zeitschrift für evangelisches Kirchenrecht 41 (1996):241–272. Koch, Kurt. “Brauchen wir ein öffentliches Christentum.” In Religion und Öffentlichkeit. Probleme und Perspektiven (= Religionsforum 4). Edited by Mariano Delgado, Ansgar Jödicke and Guido Vergauwen, 99-118. Stuttgart: Kohlhammer, 2009. Link, Ludwig. Die Besetzung der kirchlichen Ämter in den Konkordaten Papst Pius’ XI (= Kanonistische Studien und Texte 18-19). Bonn: Ludwig Röhrscheid Verlag, 1942. Listl, Joseph, and Alexander Hollerbach. “Das Verhältnis von Staat und Kirche in der Bundesrepublik Deutschland.” In Handbuch des katholischen Kirchenrechts, 2nd ed. Edited by Joseph Listl and Heribert Schmitz, 1268-1293. Regensburg: F. Pustet, 1999. Muckel, Stefan. “Überkreuz mit dem Kreuz. Bemerkungen zum "KruzifixBeschluß" des BverfG.” Kirche & Recht 2(1996):65–80. Mückl, Stefan. “Trennung und Kooperation – das gegenwärtige StaatKirche-Verhältnis in der Bundesrepublik Deutschland.” In Die Trennung von Staat und Kirche. Modelle und Wirklichkeit in Europa. Edited by Burkhard Kämper and Hans-Werner Thönnes, 41-83. Münster, 2007 (= Essener Gespräche zum Thema Staat und Kirche 40). —. “Grundlagen des Staatskirchenrechts.” In Handbuch des Staatsrechts der Bundesrepublik Deutschland, 3rd ed., vol. 7: Freiheitsrechte. Edited

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by Josef Isensee and Paul Kirchhof, 711-789. Heidelberg: C. F. Müller, 2009. Müller-Funk, Wolfgang. “Säkularisierung – Kirche, Religion und Staat – Toleranz und Anerkennung. Stichworte zu einer fälligen Diskussion.” In Religion im öffentlichen Raum. Religiöse Freiheit im neuen Europa. Edited by Friedrich Gleißner, Hanspeter Ruedl, Heinrich Schneider and Ludwig Schwarz, 173-185. Wien – Köln – Weimar: Böhlau, 2007 (= Iustitia et Pax. Dokumentation 5). Schneider, Heinrich. “Religionsfreiheit, Kulturkampf oder was sonst.” In Religion im öffentlichen Raum. Religiöse Freiheit im neuen Europa. Edited by Friedrich Gleißner, Hanspeter Ruedl, Heinrich Schneider and Ludwig Schwarz, 11-40. Wien – Köln – Weimar: Böhlau, 2007 (= Iustitia et Pax. Dokumentation 5). de Wall, Heinrich, and Stefan Muckel. Kirchenrecht. Ein Studienbuch, 4th ed. München: C. H. Beck, 2014. Wittreck, Fabian. “Perspektiven der Religionsfreiheit in Deutschland.” In Neuere Entwicklungen im Religionsrecht europäischer Staaten. Edited by Wilhelm Rees, María Roca and Balázs Schanda, 825-857. Berlin: Duncker & Humblot, 2013 (= Kanonistische Studien und Texte 61).

CHAPTER SIX THE DISPLAY OF RELIGIOUS SYMBOLS IN PUBLIC SPACES IN THE GREEK DEBATE KONSTANTINOS PAPASTATHIS

Introduction This paper seeks to explore the political aspect of the question involving the presence of the cross within the Greek social arena. In this regard, special emphasis is laid on documenting and assessing the public debate following the Lautsi v. Italy (L1) ruling (2009), which defined the display of the cross in Italian schools as a violation of the negative right of religious freedom.1 It should be noted that the paper neither focuses on the analysis of the European Court of Human Rights (ECHR) rulings on the Lautsi case, nor does it reflect on the external factors (i.e. EU Parliament) that influenced the final outcome of the affair.2

1

European Court of Human Rights, Lautsi v. Italy, Application no. 30814/06 (3 November 2009). 2 On the Lautsi case see: The Lautsi papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom. 2012, edited by Jeroen Tempernam. Leiden: Brill; Andreescu, Gabriel, and Liviu Andreescu. 2010. “The European Court of Human Rights’ Lautsi Decision: Context, Contents, Consequences.” Journal for the Study of Religions and Ideologies 9(26):47-74; Ferrari, Silvio. 2013. “State-Supported Display of Religious Symbols in the Public Space.” Journal of Catholic Legal Studies 52(7):7-22; McGoldrick, Dominic. 2011. “Religion in the European Public Square and in European Public Life – Crucifixes in the Classroom?” Human Rights Law Review 11(3):451-502; Mancini, Susanna. 2010. “The Crucifix Rage: Supranational Constitutionalism Bumps against the Counter-Majoritarian Difficulty.” European Constitutional Law Review 6(1):6-27; Puppinck, Grégor. 2012. “The Case of Lautsi v. Italy: a Synthesis.” Brigham Young Law Review 873(2012): 873-930; Zoethout, Carla M. 2011. “Religious Symbols in the Public School Classroom: a New Way to Tackle a

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The jurisprudence of the ECHR and its impact on the institutionalization of secular legal frameworks have been the topic of various studies.3 With regard to Greece, Dia Anagnostou suggested that ECHR case law has contributed to the modernization of certain legal practices, because its implementation was supported by domestic establishment. In particular, she argued that ECHR influence on the administration depends on “particular preconditions”; namely, whether social actors, such as state officials, have created fertile ground for the social acceptance of reforms, and are willing to proceed to the relevant institutional change.4 For instance, the State complied with ECHR rulings, modifying the legal banning of proselytism5 or the insuperable restrictions on constructing non-Orthodox places of worship,6 because an elite-driven social alliance had created the necessary political space for promoting the respective normative change.

Knotty Problem.” Religion and Human Rights 6(3):285-290. Accessed February 10, 2016. DOI: 10.1163/187103211X601900 3 Barras, Amélie. 2012. “Transactional Understanding of Secularisms and Their Impact on the Right to Religious Freedom – Exploring Religious Symbols Cases at the UN and ECHR.” Journal of Human Rights 11(2):263-279; Fokas, Effie. 2015. “Directions in Religious Pluralism in Europe: Mobilizations in the Shadow of European Court of Human Rights Religious Freedom Jurisprudence.” Oxford Journal of Law and Religion 4(3):1-21. Accessed February 10, 2016. DOI: 10.1093/ojlr/rwu065; Gülalp, Haldun. 2010. “Secularism and the European Court of Human Rights.” European Public Law 16(3):455-471; Koening, Matthias. 2012. “Governance of Religious Diversity at the ECHR.” In International Approaches to the Governance of Ethnic Diversity, edited by Jane Bolden and Will Kymlincka, 51-78. Oxford: Oxford University Press; Langaude, Sylvie. 2006. “Indoctrination, Secularism, Religious Liberty, and the ECHR.” International and Comparative Law Quarterly 55:929-944; Martínez-Torrón, Javier. 2012. “The (Un)protection of Individual Religious Identity in the Strasbourg Case Law.” Oxford Journal of Law and Religion 1(2):363-385; Ringlheim, Julie. 2012. “Rights, Religion and the Public Sphere: the European Court of Human Rights in Search of a Theory?” In Law, State and Religion in the New Europe: Debates and Dilemmas, edited by Lorenzo Zucca and Camil Ungureanu, 283-306. Cambridge: Cambridge University Press. 4 Anagnostou, Dia. 2010. “Does European Human Rights Law Matter? Implementation and Domestic Impact of Strasbourg Court Judgments on MinorityRelated Policies.” The International Journal of Human Rights 14(5):721-743. 5 European Court of Human Rights, Kokkinakis v. Greece, Application no. 14307/88 (25 May 1993). 6 European Court of Human Rights, Manoussakis and Others v. Greece, Application no. 18748/91 (26 September 1996).

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However, the positive stance of the elites should not be viewed only as the outcome of the gradual liberalization of Greek political culture, but should also be attributed to the quasi-neutral stance of the Orthodox Church of Greece (OCG), which did not actively oppose the alteration of the legal modus operandi. In contrast, for measures affecting the core of the OCG’s privileged status, or threatening the dominance of the Orthodox value frame, the political establishment has not been so willing to follow the European legal paradigm. For instance, the ECHR Grand Chamber ruled that the “civil unions” introduced by Law no. 3719/2008 violated article 14 of the Convention, because it was designed only for differentsex couples; it was, thus, a discrimination between different-sex and samesex couples.7 However, the government under Prime Minister A. Samaras refused to implement the ECHR decision, due to the objections of religious officials who represent an influential factor for the centre-right constituency’s electoral choice. It seems, therefore, that the religious actor has a direct effect over policy decision-making with regard to religious agenda issues. In short, the stance of the religious body forms one of the said “preconditions” that have to be fulfilled for the Greek Administration to be compelled to implement an ECHR ruling that affects the State and Church modus vivendi. Building on this analytical framework, the paper suggests that the display of the cross and icons in Greek public spaces has not been seriously disputed, because the political establishment viewed its removal as a polarizing factor that would divide society on the basis of the secularization cleavage, at a critical period for social cohesion. Taking into account the social dominance of the Orthodox Church of Greece, it is argued that external factors worked as veto players for blocking the policy reform with regard to the display of religious symbols. To paraphrase Fokas, the actors and developments taking place “in the shadow” of domestic jurisprudence8 that influenced the decision making after L1 were: a) the financial crisis; and b) party politics, i.e. the threat of alienating the ruling party’s electorate. On the one hand, within the context of the financial crisis and its negative effects over the social operation, putting such a controversial issue on the table would have created additional problems for the state elites, contributing further to their ongoing stigmatization. On the other hand, a possible compliance to the ECHR L1 ruling might have had a positive effect in favour of the

7

European Court of Human Rights, Valianatos and others v. Greece, Applications nos. 29381/09 and 32684/09 (7 November 2013). 8 Fokas, Effie. 2015, 21.

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developing Eurosceptic political framework, working as an indirect factor for the growth of the radical right. The paper is divided into three main parts: a) a short description of Church and State relations and of the hegemonic role of religion within the Greek society; b) an analysis of the place religious symbols hold within Greek public spaces and of the emerging controversy after the Chamber’s ruling; and c) an exploration of the actual political character of the issue and its electoral importance within the context of the Greek financial crisis. In conclusion, the paper attempts to assess the State’s current religious policy and the limits of a possible reform, in conjunction with the growth of the radical right.

Church and State Relations Greece may be considered to be one of the most de-secularized states in Europe. The hegemonic position of religion within Greek society has both institutional as well as structural foundations. From an institutional perspective, Greece has been defined as a “fully regulated” religious market.9 On the basis of the common framework of religious law principles shared by all the European states,10 the system of State-Church relations applied in Greece is a form of “State-law rule”. The OCG is recognized as the prevailing religion within Greece, i.e. a State Church,11 having the status of a legal person under public law.12 It enjoys preferential treatment, being the recipient of “massive state subsidies”,13 directly as an institution or indirectly through tax privileges, state salaries

9

Chaves, Mark, and David E. Cann. 1992. “Regulation, Pluralism, and Religious Market Structure: Explaining Religion’s Vitality.” Rationality and Society 4(3):272-290. 10 Doe, Norman. 2011. Law and Religion in Europe: a Comparative Introduction. Oxford: Oxford University Press; State and Church in the European Union, edited by Gerhard Robbers. 2005. Baden-Baden: Nomos. 11 Papastathis, Charalambos. 2005. “State and Church in Greece.” In State and Church in the European Union, edited by Gerhard Robbers, 115-138. BadenBaden: Nomos. 12 Alivizatos, Nicos. 1999. “A New Role for the Greek Church?” Journal of Modern Greek Studies 17:23-40; Konidaris, Ioannes. 2011. ǼȖȤİȚȡȓįȚȠ ǼțțȜȘıȚĮıIJȚțȠȪ ǻȚțĮȓȠȣ [Handbook of Ecclesiastical Law]. Athens-Thessaloniki: Sakkoulas. 13 Madeley, John. 2003. “European Liberal Democracy and the Principle of State Religious Neutrality.” West European Politics 26(1):1-22.

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for the upper and lower clergy, confessional school funding, etc.14 Despite the fact that the right to religious freedom is constitutionally protected, various religious institutions have in the past faced serious impediments to their function.15 However, the institutional identification between State and Church does not establish a mutual relationship between equal partners, but is structured on the primacy of the political domain. In this regard, it is important to note that the State approves by decree the appointment of the elected OCG officials, and controls their administrative and financial activities.16 Based on the idea that cultural heritage has an enduring effect on the political operation of any given country,17 it is suggested that the OCG dominant position is path-dependent, being linked to the social norms and hierarchies that have pertained historically in the region. Various analyses have been proposed for explaining the close ties between State and Church. First, Greek society has a mono-confessional character that has not allowed the development of a pluralization value frame.18 Second, the Reformation and Modernization cleavages,19 which were the catalyst for the change of dominant social perceptions (i.e. the processes of secularization, individualism, rationalization, etc.) exerted little influence on the region, the so-called “cultural-dualism” thesis.20 Third, the instrumental role 14

Papastathis, Charalambos. 2006. “Il finanziamento statale della religione dominante in Grecia.” Quaderni di Diritto e Politica Ecclesiastica 1(Anno XIV): 51-66. 15 Christopoulos, Demetres, editor. 1999. ȃȠȝȚțȐ ȗȘIJȒȝĮIJĮ șȡȘıțİȣIJȚțȒȢ İIJİȡȩIJȘIJĮȢ ıIJȘȞ ǼȜȜȐįĮ [Legal Aspects of Religious Otherness in Greece]. Athens: Kritiki; Papastathis, Charalambos, editor. 2000. ĬȡȘıțİȣIJȚțȒ İȜİȣșİȡȓĮ țĮȚ İʌȚțȡĮIJȠȪıĮ șȡȘıțİȓĮ [Religious Freedom and Prevailing Religion]. Thessaloniki: Sakkoulas. 16 Papageorgiou, Konstantinos. 2013. ǼțțȜȘıȚĮıIJȚțȩ įȓțĮȚȠ: ĬİȦȡȓĮ țĮȚ ȞȠȝȠȜȠȖȓĮ [Ecclesiastical Law. Theory and Jurisprudence]. Thessaloniki: Barbounakis. 17 Inglehart, Ronald, and Wayne E. Baker. 2000. “Modernization, Cultural Change, and the Persistence of Traditional Values.” American Sociological Review 65:1951. 18 Madeley, John. 2003. “A Framework for the Comparative Analysis of ChurchState Relations in Europe.” West European Politics 26(1):25-34. 19 Lipset, Seymour, and Stein Rokan. 1967. “Cleavage Structures, Party Systems and Voter Alignments.” In Party Systems and Voter Alignments, edited by Seymour Lipset and Stein Rokkan, 1-64. New York: Free Press. 20 Diamandouros, Nikiforos. 1994. Cultural Dualism and Political Change in Postauthoritarian Greece. Estudio working paper 1994/50. Prodromou, Elisabeth. 2004. “Negotiating Pluralism and Specifying Modernity in Greece: Reading Church-State Relations in the Christodoulos Period.” Social Compass 51(4):471-

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attributed to the Orthodox Church in the building and crystallization of the Greek “imagined” national identity. In particular, Orthodoxy has been represented as the symbolic reference point of the collective subject and the tangible continuity of the national group’s presence in time and space. Its instrumentality consisted of the fact that it worked as a medium for the construction of the “other”, both in relation to the Latin West and to the Muslim East, picturing both as “foreign enemies”. Through naming the “self”, as well as through constructing negative stereotypes for the “others”, the Orthodox Church produced the “outgroup v. ingroup” distinction; it generated, thus, a narrative for the collective past, in which the Church’s image was sketched as that of protector and “trustee” of the primordial myths and “invented traditions” of Greek nationalism.21 As such, the Church’s social position has been perceived more or less as “natural”. Last, the extremely high “religiosity” has been a factor of the utmost importance for maintaining the OCG’s privileged status. The data with regard to the religious set of variables (i.e. belonging, practice, belief and attitude) indicate an advanced state of commitment, establishing Greece as one of the most religious countries in Europe. The following statistical evidence is characteristic: 84.3% self-identify as a religious person; 18% attend a church service at least once a week, while the number of “once a month” churchgoers is high as well (21.2%); 40.8% pray to God every day, 13.1% more than once a week, and 7.7% once a week (the more or less frequent prayers comprise about 60% of the total); 38.5% believe that non-faithful politicians should not take up public office. The number of those who take a neutral stance on this question is high as well (20.9%).22 The question that then arises is what happens when privileges, such as placing Orthodox religious symbols in state institutions, are actually disputed. The so-called Lautsi case and its outcome might be helpful in elaborating on this issue.

85; Stavrakakis, Yannis. 2002. Religion and Populism: Reflections on the "Politicised" Discourse of the Greek Church. Working paper 10, Hellenic Observatory, European Institute, London School of Economics, 2002. 21 Lekkas, Pantelis. 1996. Ǿ İșȞȚțȚıIJȚțȒ ȚįİȠȜȠȖȓĮ: ȆȑȞIJİ ȣʌȠșȑıİȚȢ İȡȖĮıȓĮȢ ıIJȘȞ ȚıIJȠȡȚțȒ țȠȚȞȦȞȚȠȜȠȖȓĮ [The Nationalist Ideology: Five Case Studies in Historical Sociology], 178-194. Athens: Katarti; Roudometof, Victor, and Vasilios N. Makrides, editors. 2010. Orthodox Christianity in 21st Century Greece: the Role of Religion in Politics, Ethnicity and Culture. Farnham: Ashgate. 22 European Value Surveys (EVS) 1981-2008 Longitudinal Data File.

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The place of religious symbols in Greek public spaces This section of the paper examines: a) the legal ground which justifies the display of religious symbols in Greek public spaces; b) the public debate on the first ECHR ruling (2009); and c) the decision of the Greek judiciary in respect to claims for removing the icons on the basis of the L1 ruling.

a) The legal aspect of the question The legal ground for the display of religious symbols in Greek public spaces is custom. On the one hand, there is no specific regulation within the Greek legal corpus explicitly or implicitly supporting this tradition. On the other hand, it is widely acknowledged that this practice is commonly accepted both by the people and the judiciary, being established since the creation of the Greek State in the 19th century and never annulled thereafter. In short, for the advocates of religious symbol display, this practice forms the tangible representation of the presumed identification between Greek national ideology and the Orthodox Church. As such, their presence has a “hegemonic” character, perceived as part of the “common sense”. In fact, it has remained more or less unquestionable. It is a characteristic that, according to two opinion surveys conducted with regard to religious symbols, only 15.2% and 16% of the sample agreed with the ECHR L1 decision (2009).23 The low scale “demand” for policy reform was reflected in the narrow public debate following L1, as well as to the low grassroots activity in favour of its implementation.

b) The public debate on the first ECHR decision (2009) Contrary to expectations, the discussion on the religious symbol question was confined more or less to jurists and intellectuals. On the one hand, religious symbol display was advocated on the basis of legal and socio-historical arguments. According to these, the ECHR ruling was grounded on the system of State-Church relations applied in Italy per se. That means that the Court examined whether the practice of placing the crucifix in classrooms of public schools should be maintained within a country where the Church is constitutionally “independent and sovereign” 23

Giagkazoglou, Stavros. 2010. “ȉĮ șȡȘıțİȣIJȚțȐ ıȪȝȕȠȜĮ ıIJȘȞ İțʌĮȓįİȣıȘ” [The Religious Symbols in Education]. ȃȠȝȠțĮȞȠȞȚțȐ, ǼʌȚșİȫȡȘıȘ ǼțțȜȘıȚĮıIJȚțȠȪ țĮȚ ȀĮȞȠȞȚțȠȪ ǻȚțĮȓȠȣ [Nomocanonica: Review of Ecclesiastical and Canon Law] ǿȋ (1):23-48.

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with regard to the State. In other words, the L1 decision condemned Italy, because this practice was against its own Constitution, which stipulates State-Church separation.24 That being said, the Chamber’s judgement was not binding on other countries, which regulate their relations differently with the dominant Church, on the basis of the wide margins of the appreciation principle. According to this line of thought, since Greece is not a secular state and, thus, not obliged to apply the principle of religious neutrality, the claim for abolishing the display of icons in public spaces has no legal ground. In contrast, since the Constitution stipulates the institution of religious classes in primary and secondary education (art. 16), a provision interpreted by the Hellenic Council of State as referring to the Orthodox faith (3356/1995), the display of Orthodox symbols is implicitly established.25 According to a different but still pro-religious viewpoint, the ECHR was essentially judging whether the presence of the cross is legitimate when it is actually imposed by statute or not. In this respect, it has been suggested that since the Greek state had never issued such a law, the display of a religious symbol had not been the effect of the Church-State system of relations, but that of customary law. In fact, the Chamber’s judgement could not thus apply to the Greek case.26 In conjunction with this frame, it was argued that even if Greece became a non-confessional state, the eventual removal of the icons would not reinforce the application of the Human Rights value system, but would actually signify a violation of the right to religious freedom for a large portion of the social body, which views church symbols as an expression of its cultural identity.27 As Archbishop Hieronymus stated: “majorities too, not only minorities, have rights”.28 According to this perspective, Orthodoxy forms a first-order cultural expression of the collective body and the cohesive element par excellence of the national community. This is why the presence of icons in 24

Marinos, Anastasios. 2009. “ȉĮ șȡȘıțİȣIJȚțȐ ıȪȝȕȠȜĮ ıIJĮ ıȤȠȜİȓĮ” [The Religious Symbols in Schools]. To Vima, November 22. http://www.tovima.gr/opinions/article/?aid=300818. 25 Ibid. 26 Alibrandis, Nikitas. 2009. ǼijĮȡȝȩıȚȝȘ ıIJȘȞ ǼȜȜȐįĮ Ș ĮʌȩijĮıȘ ȖȚĮ IJȠȞ ǼıIJĮȣȡȦȝȑȞȠ?’ [Implementable in Greece the ruling on the Crucifix], Romfea [Ecclesiastical News Agency], December 5. http://www.romfea.gr/index2.php?option=com_content&task=view&id=3669&po p=1&page=0&Itemid=1. 27 Ibid. 28 Lyle, Jenna. 2009. “Greek Orthodox Church Opposes Crucifix Ban.” The Christian Post, November 14. http: //www.christianpost.com/news/greekorthodox-church-opposes-crucifix-ban-41864/.

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classrooms is founded not on their theological symbolism, but on their value as works of art and culture that reflect and simultaneously form the collective conscience. In sum, their presence should not depend on the legislature, as they have, by definition, an organic character.29 Contrary to these approaches, it was advocated that the removal of icons is grounded on the principle of religious equality, their display being offensive for non-Orthodox Greek citizens. This frame was founded on the idea that the fundamental rights of the minorities and the right of religious self-identification are inalienable in the sense that the State may not impose a certain cultural identity on its citizens. The fact that the majority of the population self-identifies with one or another faith does not mean that minorities should be under a “homogenization” process.30 More particularly, it has been suggested that the religious symbols represent the actual dominance of a specific faith over the other and indicate the State’s biased outlook. The State promotion of one religious group at the expense of another means that the right to equal treatment before the law, which the Greek polity is supposed to provide to all its citizens alike, is violated.31 In fact, the placement of religious symbols in public institutions is against article 13 of the Greek Constitution, which guarantees religious freedom.32 The fact that article 3 of the Constitution establishes the Orthodox cult as the “prevailing religion” does not at all signify the relativisation of the right to freedom of conscience, since the principle of state religious neutrality would be thus invalidated.33 It was moreover suggested that this practice violates article 6 (right to a fair trial – in relation to the religious symbols in the court), article 9 (freedom of thought, conscience, and religion), and article 14 (prohibition of discrimination) of the European Convention of Human Rights, the 29

Giagkazoglou, Stavros. 2010. Kalabakou, Helen. 2010. “Ǿ șȡȘıțİȣIJȚțȒ ȠȣįİIJİȡȩIJȘIJĮ ȦȢ İȖȖȪȘıȘ IJȠȣ ʌȜȠȣȡĮȜȚıȝȠȪ ıIJȘ įȘȝȩıȚĮ İțʌĮȓįİȣıȘ. Ǿ «ȝȐȤȘ IJȦȞ ıȣȝȕȩȜȦȞ» ıIJȘ ȞȠȝȠȜȠȖȓĮ IJȠȣ Ǽǻǻǹ” [Religious Neutrality as a Guarantee for Pluralism in the Public Education: the “Battle for Symbols” in the ECHR Case Law]. ǻȚțĮȚȫȝĮIJĮ IJȠȣ ĮȞșȡȫʌȠȣ [Human Rights] ȋǿǿ (48):1164-1174. 31 Stathopoulos, Michalis. “Ǿ ȈȣȞIJĮȖȝĮIJȚțȒ ȀĮIJȠȤȪȡȦıȘ IJȘȢ ĬȡȘıțİȣIJȚțȒȢ ǼȜİȣșİȡȓĮȢ țĮȚ ȠȚ ȈȤȑıİȚȢ ȆȠȜȚIJİȓĮȢ – ǼțțȜȘıȓĮȢ” [The Constitutional Protection of Religious Freedom and the Relationships between the State and the Church]. In ȃȠȝȚțȐ ȗȘIJȒȝĮIJĮ [Legal Aspects], edited by Dimitris Christopoulos, 199-224. Athens: Kritiki. 32 Chrysogonos, Costas. 2010. “ǹȞȐȝİıĮ ıIJȠ ȈȪȞIJĮȖȝĮ țĮȚ ıIJȘȞ ǼȣȡȫʌȘ” [Between the Constitution and Europe]. To Vima, January 31. http: //www.tovima.gr/opinions/article/?aid=312788. 33 Ibid. 30

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provisions of which have been incorporated in Greek Law since 1974 (53/1974).34 As regards article 16 of the Constitution, which stipulates the development of religious sentiment in public schools, it should not be interpreted as imposing religious conscience along confessional lines in a way that transforms the student body into a church flock, but as promoting the significance of the religious phenomenon in public life and the value of studying its role for social and individual progress.35 Against the argument that the placement of religious symbols is grounded on the need to protect the cultural identity of the nation-state, i.e. of the collective group that is superior to individual rights, it was suggested that the Human Rights value frame is not related to the majority rule, but has an intrinsic value and should be respected and applied regardless of the domestic political context. In sum, it was argued that within a pluralised social space, the State’s coercion, as reflected in the display of religious symbols in public institutions, violates the right of religious freedom and development and, therefore, is inconsistent with democratic governance per se.36

c) The Greek judiciary in respect to claims for removing religious symbols In Lautsi v. Italy, the ECHR Chamber held that there had been a violation of Article 2 of Protocol No. 1 (right to education), together with Article 9 (freedom of thought, conscience, and religion). The Greek Helsinki Monitor (GHM) intervened as a third party contesting the Italian government’s argumentation. Immediately after the judgement was passed, a series of pleas were filed, demanding its application in Greece as well. Specifically, the GHM claimed the removal of icons from the courtroom of the Athens Court of Appeal. The GHM supported that the religious symbols imply the identification of the Greek state with the 34

Sotiropoulos, Vasilis. 2009. “ǹʌȠȝȐțȡȣȞıȘ șȡȘıțİȣIJȚțȫȞ ıȣȝȕȩȜȦȞ Įʌȩ įȚțĮıIJȚțȑȢ ĮȓșȠȣıİȢ” [The Removal of Religious Symbols from the Courtrooms]. E-Lawyer, November 10, http: //elawyer.blogspot.com/2009/11/apo.html. 35 Sotiropoulos, Vasilis. 2009. “ǹȞșȡȫʌȚȞĮ įȚțĮȚȫȝĮIJĮ țĮȚ ıȣȞIJȘȡȘIJȚțȩ ĮțȡȠĮIJȒȡȚȠ” [Human Rights and a Conservative Audience]. E-Lawyer, November 10, http: //elawyer.blogspot.com/2009/11/blog-post_10.html. 36 Ibid.; Kalambakou, Helen. 2011. “Religious Neutrality”; Panagiotis Mantzoufas. 2011. “ĬȡȘıțİȓĮ țĮȚ İțʌĮȓįİȣıȘ. ȉȠ ȚıIJȠȡȚțȩ țĮȚ ıȣȞIJĮȖȝĮIJȚțȩ ʌȜĮȓıȚȠ IJȘȢ șȡȘıțİȣIJȚțȒȢ İțʌĮȓįİȣıȘȢ” [Religion and Education: the Historical and Constitutional Framework of Religious Education]. Book’s Journal 7(2011), http: //constitutionalism.gr/site/wpcontent/mgdata/pdf/4mantzoufasthriseia0550511.pdf.

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Orthodox Church, with which the plaintiffs were not affiliated. Thus, their right of religious freedom (in its negative form) was not protected. It was further argued that neither substantial law nor the Codes of Civil or of Criminal Procedure stipulate the presence of icons in the courtroom or of the Gospel at the bar. Their claim was rejected by the court. First, because one of the plaintiffs was not present, second, because there was no legal provision relevant to the removal. In this regard, it was argued that the Code of Criminal Procedure (art. 339) does not oblige the Court to remove religious symbols. The competency for such a decision actually rests on the Minister of Justice (Law 1756/1988). According to the Court, religious symbol display did not violate the right of religious freedom of the two defendants, because the first one was absent corpore, being represented by a lawyer, while the second could take the non-religious oath (art. 220 of the Code of Criminal Procedure). It was also ruled that the display of religious symbols did not influence the objectivity and the freedom of conscience of the Court. Last but not least, the decision made clear that the ECHR judgment referred to Italy alone and could not be applied to Greece before the final ruling of the Grand Chamber. The GHM has appealed to the ECHR against this decision. The subsequent ruling of the ECHR on the Dimitras and others v. Greece no. 1 (42837/06) referred to the presence of icons in the courtroom and the doubts raised concerning the impartiality of those judges who belong to the Orthodox Church. In this respect the GHM argued that there might be a violation of Article 6(1) of the Convention of Human Rights, which establishes the right to a fair trial. The Chamber noted that the claims of the plaintiffs could not be supported substantially. As regards the display of religious symbols, the Court found that in most cases reported by the applicants they were referring to their appearance before the judge as witnesses to be heard in his chambers, i.e. they referred to procedures that do not take place in a courtroom. In addition, it was not apparent from the record that the judicial authorities had failed in their duty of impartiality towards the plaintiffs. The Chamber noted that the system of individual petition under Article 34 of the Convention excludes applications by way of actio popularis. In effect, requests must be submitted by persons claiming to be victims of the violation of one or more provisions of the Convention. They must demonstrate that they have been directly affected by the impugned measure. In this case, the Court observed that it was not established that a sufficiently direct link existed between the applicants and the alleged violations of Article 6 § 1. Their

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application was thus rejected.37 The ECHR came to the same conclusion concerning the cases of Dimitras and others v. Greece no. 2 (34207/08) and no. 3 (44077/09, 15369/10 and 41345/10), repeating the argumentation of the 42837/06 ruling.38 On 19 November 2009, three legal professionals applied to the Council of the Administrative Court of Thessaloniki, petitioning for the removal of all religious symbols from the Courthouse, as an act of respect to their right to religious freedom. The Council’s ruling was that the competent authority to decide this question was the central political and judicial authorities of the state (act. 1/12.1.2010). The applicants made an appeal in turn to the Council of State (CS). The CS in its ruling, 2980/2013 (29/5/2013), rejected the petition as “inadmissible”, for both procedural and substantive reasons. On the one hand, it was ruled that the decisions of the Administrative Committee (i.e. the Council) of the Court could not be contested or annulled (par. 5-7). On the other hand, the CS ruled that since the petitioners had not proved their vested interest, their claim could not be accepted. The ruling actually invoked the decision Lautsi v. Italy of the ECHR Grand Chamber (L2) (18/3/2011), which accepted the line of thought of the Italian Government, defining the subsidiarity principle as the criterion for regulating the affair within the “margins of appreciation” framework (par. 4).39 Moreover, the ruling made reference to the ECHR decisions Dimitras and others v. Greece no. 1 (42837/06) and no. 2 (34207/08), which had rejected the claim for the removal of religious symbols from courtrooms. It should be noted that the Metropolitan of Piraeus intervened against the petitioners as a third party in the trial.40 Overall, the legal aspect of the religious symbol question within Greek public spaces has been clarified in recent years. All the court rulings issued either by the national judiciary or the ECHR have rejected the claim for the removal of Christian icons upon procedural as well as substantive grounds. At the same time, case law has established the Government and the legislature as the only competent authorities to institute a legal framework to change the existing state of affairs. This is because, at a national level, the Greek courts ruled that the presence of religious 37

European Court of Human Rights, Dimitras and others v. Greece, Application no. 42837/06 (3 November 2010) par. 55-57. 38 European Court of Human Rights, Dimitras and others v. Greece, no. 2, 34207/ 08 and 6365/09 (3 November 2012) par. 37-38 ; Dimitras and others v. Greece, no. 3, 44077/09, 15369/10 and 41345/10 (8 January 2013) par. 24-25. 39 European Court of Human Rights, Lautsi and others v. Italy, Application no. 30814/06 (18 March 2011). 40 http: //www.nomika-nea.gr/post/?id=665

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symbols is not founded on a concrete statute but on customary law. In this regard, it is worth mentioning that the judiciary is not completely autonomous from the state authorities. In other words, the Government is able to exercise, to some extent, control over the legal administration, via the establishment of a top-down judicial structure, i.e. the appointment by the government of the senior offices. At the EU level, the ECHR ruled that the public display of religious symbols is subject to the subsidiarity principle (L2), and does not violate the right to a fair trial (Dimitras and others v. Greece). The questions that then arise are whether the Greek political system has been willing to adopt such a legal reform, as well as which factors have influenced its policy making so far. The paper argues that the social dominance of religion actually represents a first order external agent against the promotion of such an agenda. In short, the state has to take into account the possible reactions of the OCG before applying a pro-secular legal framework.

Power Politics and the Presence of the Cross The effect of the social dominance of religion is that it allows the Church to act as a highly influential interest group in order to protect its status and carry out its agenda. In particular, the Church’s central political role is built on its hegemony, in the sense that religious cues form an actor for determining party preference and electoral choice. In effect, the religious value frame forms part of the “zone of acquiescence”, namely the bipartisan centre ground.41 Since religion is part of the ideological position of the median voter, and the mainstream parties (or other groups struggling to gain the majority vote) articulate their discourse and implement their policies on the basis of voters’ perceptions, the OCG’s preferential treatment by State authorities is more or less secured. To put it cynically, it is an actual “give and take” situation. On the other hand, despite the fact that L1 represented a threat for the OCG’s symbolic power, the religious officials’ response was moderate and cautious.42 They did not react strongly at a domestic level, and neither did they participate in the developing transnational network against L1 application, the so41

Norris, Pippa, and Joni Lovenduski. 2004. “Why Parties Fail to Learn: Electoral Defeat, Selective Perception and British Party Politics.” Party Politics 10(1):83102. 42 Fokas, Effie. 2012. “"Eastern" Orthodoxy and "Western" Secularisation in Contemporary Europe (with Special Reference to the Case of Greece).” Religion, State and Society 40(3-4):406-7.

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called “holy alliance”.43 Taking into account their past political behaviour when a religious issue has been put at stake, as well as the dynamic mobilization of Church authorities in other European countries against L1, the OCG’s stance may be viewed as contradictory. The Church’s attitude should be analysed within the context of its strategy of “controlled compromise”. This is based on the idea that, instead of mobilizing the religious body by claiming a political role for the Church, it has found it preferable for its officials to abstain from the political arena and hence not create problems for the political establishment as long as church privileges remain safe.44 Viewed from this angle, it was not necessary for the OCG to mobilize its flock against the Chamber’s ruling, because the Government was not in any way willing to promote its application, as the State officials’ reaction after L1 plainly demonstrated. In particular, when the Greek Minister of Justice, Charis Kastanidis, was called to respond as to whether the government wished to implement the Chamber’s decision, he made it crystal clear that the political authorities acknowledged the special role of the Church, assuring that no action would take place before the Grand Chamber ruling. If the Grand Chamber confirmed the L1 ruling, the Greek Government would have to comply. However, he gave the assurance that there would be no unilateral decision on the part of the government, and any measure would be decided in cooperation with the Church.45 Giorgos Papandreou, the then prime minister, advocated the same view at the Council of Europe.46 Moreover, Greece was one of the ten governments that sided as a third party with the Italian Government at the second hearing of the Lautsi case at the Grand Chamber, on the grounds that national identity is “of religious origin” (par. 47).47 Taking into account that G. Papandreou in his 2009 electoral campaign had explicitly stated that his aim was to change the existing 43

Annicchino, Pasquale. 2011. “Winning the Battle by Losing the War: the Lautsi Case and the Holy Alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to Reshape European Identity.” Religion and Human Rights: an International Journal 6:213-219. 44 Papastathis, Konstantinos. 2012. “From Mobilization to a Controlled Compromise: the Shift of Ecclesiastical Strategy under Archbishop Ieronymos.” In Innovation in the Christian Orthodox Tradition? The Question of Change in Greek Orthodox Thought and Practice, edited by Trine Stauning Willert and Lina Molokotos-Liederman, 207-227. Furnham: Ashgate. 45 Greek Helsinki Monitor, Press Release (24 November 2009). 46 Greek Helsinki Monitor, Press Report (27 January 2010). 47 European Court of Human Rights, Lautsi and others v. Italy, Application no. 30814/06 (18 March 2011).

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church-state relation framework and apply the system of “separation”, certain factors led the Greek Government to modify its agenda towards a pro-religious orientation. These seemed to be of a contextual as well as a political character. Since 2009, Greece has entered a devastating financial crisis, the main characteristics of which are economic depression as well as high unemployment. Another effect has been the structural break in the domestic political functioning: the state officials had to follow the directives of a non-elected international body, the troika, whose policies, defined in the so-called “memorandum”, enjoyed very limited social legitimization. Within this context, the Government needed the support of the OCG, not its hostility, such as triggered by a possible implementation of the ECHR ruling. In such a case, the Church, instead of working as a cohesive element creating consensus, would have been an additional dividing factor. Moreover the Church, because of its traditional antiWesternism,48 in the event of a convergence with the anti-memorandum political camp, would contribute to the representation of the crisis along cultural lines, thus further heightening the produced ”us” v. “them” distinction. From a political perspective, opposing religious symbol display would have contributed to the electoral growth of the major competitor of the PASOK single-party Government, i.e. the right-wing party of New Democracy. Despite the fact that religious cleavage is apparent in Greek party politics and that religiosity is generally correlated with the right wing political preference, a significant number of churchgoers vote for the Centre and the Left parties as well.49 Overall, the PASOK government could not afford to alienate this group of voters, especially during the period between L1 and L2 when New Democracy articulated a populist discourse and maintained a hostile stance towards the application of the memorandum.

48

Makrides, Vasilios N. 2009. “Orthodox Anti-Westernism Today: a Hindrance to European Integration.” International Journal for the Study of the Christian Church 9(3):209-224. 49 Georgiadou, Vassiliki, and Elias Nikolakopoulos. 2002. “ȉȪʌȠȚ șȡȘıțİȣIJȚțȒȢ įȑıȝİȣıȘȢ, İțțȜȘıȚĮıIJȚțȒ ʌȡĮțIJȚțȒ țĮȚ ʌȠȜȚIJȚțȑȢ ʌȡȠIJȚȝȒıİȚȢ. ȂȚĮ İȝʌİȚȡȚțȒ ĮȞȐȜȣıȘ” [Dimensions of Religious Commitment, Ecclesiastical Practices and Political Preferences: an Empirical Analysis]. In ĬȡȘıțİȓİȢ țĮȚ ʌȠȜȚIJȚțȒ ıIJȘ ȞİȦIJİȡȚțȩIJȘIJĮ [Religions and Politics in Modernity], edited by Thanos Lipovats, Nicos Demertzis and Vassiliki Georgiadou, 254-279. Athens: Kritiki.

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Concluding Remarks It has been suggested that the new coalition government headed by the Leftist party, SYRIZA, might bring to the table a relevant reform, legislating in favour of the removal of religious symbols. This possibility was actually implied by the former Prime Minister, Antonis Samaras, during the electoral campaign of 2015.50 Moreover, Archbishop Hieronymus has recently stated again his firm objection against the removal of icons from public schools.51 In this regard, it should be noted that SYRIZA was the only Greek party that supported the proposed resolution of the Verts/ALE, GUE/NGL and ALDE party groups in the European parliament demanding the removal of religious symbols. It also objected to the Greek intervention as a third party in L2.52 On the other hand, the important charity work and welfare activities of the OCG cannot be underestimated. In fact, within the current critical juncture, the OCG has covered to some extent the basic needs of a relatively large part of the population.53 A rupture between the State authorities and the OCG would be a counterproductive development with regard to the need to maintain social cohesion, which is currently the prime political stake. Moreover, certain political conditions make it difficult for new governments to change traditional state policy. First, the partner of SYRIZA in the coalition government is the radical right party of the Independent Greeks (IG). The IG forms probably the most proreligious party within the Greek political spectrum, reserving a central 50

Samaras, Andonis. 2015. “ȈĮȝĮȡȐȢ: įİȞ șĮ ĮʌȠȝĮțȡȣȞșȠȪȞ ʌȠ İȚțȩȞİȢ Įʌȩ IJĮ įȘȝȩıȚĮ țIJȒȡȚĮ” [Samaras: The icons will not be removed from the public buildings]. Skai. gr, January 12. http://www.skai.gr/news/world/article/272972/samaras-de-tha-apomakrunthoun-oieikones-apo-ta-dimosia-ktiria/. 51 ǿİȡȫȞȣȝȠȢ [Hieronymus]. 2015. “ȆĮȡȑȝȕĮıȘ ǿİȡȫȞȣȝȠȣ ȖȚĮ IJȘȞ ĮʌȠțĮșȒȜȦıȘ IJȦȞ İȚțȩȞȦȞ Įʌȩ IJĮ ıȤȠȜİȓĮ” [Hieronymus’ intervention on the removal of icons from schools]. Kathimerini, May 5. http://www.kathimerini.gr/813811/article/epikairothta/ellada/paremvashierwnymoy-gia-thn-apoka8hlwsh-twn-eikonwn-apo-ta-sxoleia. 52 Greek Helsinki Monitor, Press Report (4 June 2010 and 5 June 2010). 53 Molokots-Liederman, Lina. “The Orthodox Church of Greece and the Economic Crisis: A Moment of Challenge and Opportunity.” (Paper presented at the Workshop: Greece in Crisis: Culture and the Politics of Austerity; Centre for Byzantine, Ottoman and Modern Greek Studies, University of Birmingham, 23 May 2015); Makris, Gerasimos. 2013. “The Greek Orthodox Church and the Economic Crisis since 2009.” International Journal for the Study of the Christian Church 13(2):111-132.

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place in its programme for the ideological setting of traditional and family values. The possible removal of icons from state institutions would signify the breaking up of the coalition and the fall of the government. Second, SYRIZA is no longer a protest party, with which a relatively small share of the constituency has aligned, nor does it still articulate a radical left ideological discourse. In contrast, the process of gaining power led the party to follow a centripetal political strategy, a condition of which was the creation of a broad social alliance with groups that hold different places within the political spectrum. As regards the party’s positioning in relation to the religious agenda, the shift of emphasis has been striking. On the one hand, SYRIZA MPs voted in all legal measures taken in favour of the OCG during the previous government's term of office. On the other hand, senior party members created links with religious officials, assuring them that any possible change would not be unilateral, but a product of cooperation between the State and the Church. In short, SYRIZA, being recently transformed into a mainstream party, also represents voters who are probably not willing to accept the removal of icons. Electoral cost matters in politics, and SYRIZA, like any other party, cannot afford to alienate part of its constituency. Another effect of a possible policy reform could be that of further developing the political influence of parties advocating the religious value system. The neo-Nazi Golden Dawn (GD) party is currently one of these, having constructed a false image of being the protector of the nation’s cultural frame and having defined the related fields as “signature” issues of its programme. Moreover, the political strategy of the GD to create links with the rigorist faction of the OCG has allowed the party to establish “ownership” over salient social issues, for which the OCG has clearly expressed its disagreement, such as the construction of a Mosque in Athens.54 It seems thus that the subsequent revitalization of the secular/religious divide might be an opportunity for the GD to expand its political audience. Thus, from a political realism perspective, reintroducing the Lautsi question might have negative effects on the Greek party system. While in theory the display of religious symbols may be viewed as contrary to the Human Rights value system, their eventual removal might practically contribute to the radicalization of society towards an extremeright direction. While being ideologically against this state of things, 54 Papastathis, Konstantinos. 2015. “Religious Discourse and Radical Right Politics in Contemporary Greece.” Politics, Religion & Ideology 16(2-3):218-247; Sakellariou, Alexandros. 2014. “The Church of Greece.” In Mapping Ultra-Right Extremism, Xenophobia and Racism within the Greek State Apparatus, edited by Dimitris Christopoulos, 81-94. Brussels: Rosa Luxembourg Stiftung.

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SYRIZA seems to acknowledge the impact that a policy change on this issue might create on the social ground. Since ECHR L2 acknowledged that the question of religious symbol display falls under the “margins of appreciation” doctrine and should be dealt with according to the “subsidiarity” principle, it seems difficult for the Greek Administration to initiate a reform that would certainly face the fierce opposition of the Church. The traditional “trade-off” between the two spheres continues to be difficult to subvert, especially within the current context of both a financial and social crisis.

References Alivizatos, Nicos. “A New Role for the Greek Church?” Journal of Modern Greek Studies 17(1999):23-40. Anagnostou, Dia. “Does European Human Rights Law Matter? Implementation and Domestic Impact of Strasbourg Court Judgments on Minority-Related Policies.” The International Journal of Human Rights 14/5(2010):721-743. Andreescu, Gabriel, and Liviu Andreescu. “The European Court of Human Rights’ Lautsi Decision: Context, Contents, Consequences.” Journal for the Study of Religions and Ideologies 9/26(2010):47-74. Annicchino, Pasquale. “Winning the Battle by Losing the War: the Lautsi Case and the Holy Alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to Reshape European Identity.” Religion and Human Rights: an International Journal 6(2011):213-219. Barras, Amélie. “Transactional Understanding of Secularisms and Their Impact on the Right to Religious Freedom – Exploring Religious Symbols Cases at the UN and ECHR.” Journal of Human Rights 11/2(2012):263-279. Chaves, Mark, and David E. Cann. “Regulation, Pluralism, and Religious Market Structure: Explaining Religion’s Vitality.” Rationality and Society 4/3(1992):272-290. Diamandouros, Nikiforos. Cultural Dualism and Political Change in Postauthoritarian Greece (Estudio working paper 1994/50). Doe, Norman. Law and Religion in Europe: a Comparative Introduction. Oxford: Oxford University Press, 2011. Ferrari, Silvio. “State-Supported display of Religious Symbols in the Public Space.” Journal of Catholic Legal Studies 52/7(2013):7-22.

86

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Fokas, Effie. “Eastern Orthodoxy and Western Secularisation in Contemporary Europe (with Special Reference to the Case of Greece).” Religion, State and Society 40/3-4(2012):395-414. —. “Directions in Religious Pluralism in Europe: Mobilizations in the Shadow of European Court of Human Rights Religious Freedom Jurisprudence.” Oxford Journal of Law and Religion 4/3(2015):1-21. DOI: 10.1093/ojlr/rwu065. Georgiadou, Vassiliki, and Elias Nikolakopoulos. “ȉȪʌȠȚ șȡȘıțİȣIJȚțȒȢ įȑıȝİȣıȘȢ, İțțȜȘıȚĮıIJȚțȒ ʌȡĮțIJȚțȒ țĮȚ ʌȠȜȚIJȚțȑȢ ʌȡȠIJȚȝȒıİȚȢ. ȂȚĮ İȝʌİȚȡȚțȒ ĮȞȐȜȣıȘ” [Dimensions of Religious Commitment, Ecclesiastical Practices and Political Preferences: an Empirical Analysis]. In ĬȡȘıțİȓİȢ țĮȚ ʌȠȜȚIJȚțȒ ıIJȘ ȞİȦIJİȡȚțȩIJȘIJĮ [Religions and Politics in Modernity], 254-279. Edited by Thanos Lipovats, Nicos Demertzis and Vassiliki Georgiadou, Athens: Kritiki, 2002. Giagkazoglou, Stavros. “ȉĮ șȡȘıțİȣIJȚțȐ ıȪȝȕȠȜĮ ıIJȘȞ İțʌĮȓįİȣıȘ” [The Religious Symbols in Education]. ȃȠȝȠțĮȞȠȞȚțȐ, ǼʌȚșİȫȡȘıȘ ǼțțȜȘıȚĮıIJȚțȠȪ țĮȚ ȀĮȞȠȞȚțȠȪ ǻȚțĮȓȠȣ [Nomocanonica: Review of Ecclesiastical and Canon Law] ǿȋ 1(2010):23-48. Gülalp, Haldun. “Secularism and the European Court of Human Rights.” European Public Law 16/3(2010):455-471. Inglehart, Ronald, and Wayne E. Baker. “Modernization, Cultural Change, and the Persistence of Traditional Values.” American Sociological Review 65(2000):19-51. Kalabakou, Helen. “Ǿ șȡȘıțİȣIJȚțȒ ȠȣįİIJİȡȩIJȘIJĮ ȦȢ İȖȖȪȘıȘ IJȠȣ ʌȜȠȣȡĮȜȚıȝȠȪ ıIJȘ įȘȝȩıȚĮ İțʌĮȓįİȣıȘ. Ǿ «ȝȐȤȘ IJȦȞ ıȣȝȕȩȜȦȞ» ıIJȘ ȞȠȝȠȜȠȖȓĮ IJȠȣ Ǽǻǻǹ” [Religious Neutrality as a Guarantee for Pluralism in the Public Education: the “Battle for Symbols” in the ECHR Case Law]. ǻȚțĮȚȫȝĮIJĮ IJȠȣ ĮȞșȡȫʌȠȣ [Human Rights] ȋǿǿ 48(2010):1164-1174. Koening, Matthias. “Governance of Religious Diversity at the ECHR.” In International Approaches to the Governance of Ethnic Diversity, 5178. Edited by Jane Bolden and Will Kymlincka. Oxford: Oxford University Press, 2012. Konidaris, Ioannes. ǼȖȤİȚȡȓįȚȠ ǼțțȜȘıȚĮıIJȚțȠȪ ǻȚțĮȓȠȣ [Handbook of Ecclesiastical Law]. Athens-Thessaloniki: Sakkoulas, 2011. Langaude, Sylvie. “Indoctrination, Secularism, Religious Liberty, and the ECHR.” International and Comparative Law Quarterly 55(2006):929944. Lekkas, Pantelis. “Ǿ İșȞȚțȚıIJȚțȒ ȚįİȠȜȠȖȓĮ: ȆȑȞIJİ ȣʌȠșȑıİȚȢ İȡȖĮıȓĮȢ ıIJȘȞ ȚıIJȠȡȚțȒ țȠȚȞȦȞȚȠȜȠȖȓĮ” [The Nationalist Ideology: Five Case Studies in Historical Sociology]. Athens: Katarti, 1996.

Display of Religious Symbols in Public Spaces in the Greek Debate

87

Lipset, Seymour, and Stein Rokan, “Cleavage Structures, Party Systems and Voter Alignments.” In Party Systems and Voter Alignments, 1-64. Edited by Seymour Lipset and Stein Rokkan. New York: Free Press, 1967. Madeley, John. “A Framework for the Comparative Analysis of ChurchState Relations in Europe.” West European Politics 26/1(2003):25-34. Makrides, Vasilios N. “Orthodox Anti-Westernism Today: a Hindrance to European Integration.” International Journal for the Study of the Christian Church 9/3(2009):209-224. Makris, Gerasimos. “The Greek Orthodox Church and the Economic Crisis since 2009.” International Journal for the Study of the Christian Church 13/2(2013):111-132. Mancini, Susanna. “The Crucifix Rage: Supranational Constitutionalism Bumps against the Counter-Majoritarian Difficulty.” European Constitutional Law Review 6/1(2010):6-27. Martínez-Torrón, Javier. “The (Un)protection of Individual Religious Identity in the Strasbourg Case Law”. Oxford Journal of Law and Religion 1/2(2012):363-385. McGoldrick, Dominic. “Religion in the European Public Square and in European Public Life – Crucifixes in the Classroom?” Human Rights Law Review 11/3(2011):451-502. Molokots-Liederman, Lina. “The Orthodox Church of Greece and the Economic Crisis: A Moment of Challenge and Opportunity” (Paper presented at the Workshop: Greece in Crisis: Culture and the Politics of Austerity; Centre for Byzantine, Ottoman and Modern Greek Studies, University of Birmingham, 23 May 2015). Norris, Pippa, and Joni Lovenduski. “Why Parties Fail to Learn: Electoral Defeat, Selective Perception and British Party Politics.” Party Politics 10/1(2004):83-102. ȃȠȝȚțȐ ȗȘIJȒȝĮIJĮ șȡȘıțİȣIJȚțȒȢ İIJİȡȩIJȘIJĮȢ ıIJȘȞ ǼȜȜȐįĮ [Legal Aspects of Religious Otherness in Greece]. Edited by Dimitris Christopoulos, Athens: Kritiki, 1999. Orthodox Christianity in 21st Century Greece: the Role of Religion in Politics, Ethnicity and Culture. Edited by Victor Roudometof and Vasilios N. Makrides, Farnham: Ashgate, 2010. ĬȡȘıțİȣIJȚțȒ İȜİȣșİȡȓĮ țĮȚ İʌȚțȡĮIJȠȪıĮ șȡȘıțİȓĮ [Religious Freedom and Prevailing Religion]. Edited by Charalambos Papastathis. Thessaloniki: Sakkoulas, 2000. Papageorgiou, Konstantinos. ǼțțȜȘıȚĮıIJȚțȩ įȓțĮȚȠ: ĬİȦȡȓĮ țĮȚ ȞȠȝȠȜȠȖȓĮ [Ecclesiastical Law. Theory and Jurisprudence]. Thessaloniki: Barbounakis, 2013.

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Papastathis, Charalambos. “Il finanziamento statale della religione dominante in Grecia.” Quaderni di Diritto e Politica Ecclesiastica 1(Anno XIV, April 2006):51-66. —. “State and Church in Greece.” In State and Church in the European Union, 115-138. Edited by Gerhard Robbers. Baden-Baden: Nomos, 2005. Papastathis, Konstantinos. “Religious Discourse and Radical Right Politics in Contemporary Greece.” Politics, Religion & Ideology 16/2-3(2015): 218-247. —. “From Mobilization to a Controlled Compromise: the Shift of Ecclesiastical Strategy under Archbishop Ieronymos.” In Innovation in the Christian Orthodox Tradition? The Question of Change in Greek Orthodox Thought and Practice, 207- 227. Edited by Trine Stauning Willert and Lina Molokotos-Liederman. Furnham: Ashgate, 2012. Prodromou, Elisabeth. “Negotiating Pluralism and Specifying Modernity in Greece: Reading Church-State Relations in the Christodoulos Period.” Social Compass 51/4(2004):471-485. Puppinck, Grégor. “The Case of Lautsi v. Italy: a Synthesis.” Brigham Young Law Review (2012):873-930. Ringlheim, Julie. “Rights, Religion and the Public Sphere: the European Court of Human Rights in Search of a Theory?” In Law, State and Religion in the New Europe: Debates and Dilemmas, 283-306. Edited by Lorenzo Zucca and Camil Ungureanu. Cambridge: Cambridge University Press, 2012. Sakellariou, Alexandros. “The Church of Greece.” In Mapping UltraRight Extremism, Xenophobia and Racism within the Greek State Apparatus, 81-94. Edited by Dimitris Christopoulos. Brussels: Rosa Luxembourg Stiftung, 2014. Stathopoulos, Michalis. “Ǿ ȈȣȞIJĮȖȝĮIJȚțȒ ȀĮIJȠȤȪȡȦıȘ IJȘȢ ĬȡȘıțİȣIJȚțȒȢ ǼȜİȣșİȡȓĮȢ țĮȚ ȠȚ. ıȤȑıİȚȢ ȆȠȜȚIJİȓĮȢ – ǼțțȜȘıȓĮȢ” [The Constitutional Protection of Religious Freedom and the Relationships between the State and the Church]. In ȃȠȝȚțȐ ȗȘIJȒȝĮIJĮ [Legal Aspects], 199-224. Edited by Dimitris Christopoulos. Athens: Kritiki, 1999. Stavrakakis, Yannis. Religion and Populism: Reflections on the “Politicised” Discourse of the Greek Church (working paper 10, Hellenic Observatory, European Institute, London School of Economics, May 2002). The Lautsi papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom. Edited by Jeroen Tempernam. Leiden: Brill, 2012.

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Zoethout Carla M. “Religious Symbols in the Public School Classroom: a New Way to Tackle a Knotty Problem.” Religion and Human Rights 6(2011):285-290.

CHAPTER SEVEN THE PRESENCE OF THE CROSS IN PUBLIC SPACES: IRELAND BRIAN CONWAY

Introduction In recent times, sociologists of religion have increasingly turned their attention to the presence or absence of religious symbolism in public spaces as a harbinger – or indicator – of processes of secularisation and religious change in modern societies. This topic provides an important window onto debates in the discipline concerning the relationship between the religious and secular domains, the historic interactions and exchanges between church and state systems, and the negotiation of growing religious plurality and diversity, all important and live issues of concern to students of contemporary religion and society. This paper examines the presence of the cross – and religious symbolism more generally – in public spaces in contemporary Irish society. This issue has become particularly heightened in Western Europe1 in the wake of recent European Court of Human Rights case law, particularly the well-known Lautsi v. Italy case in 2011, concerning the presence of the crucifix in school classrooms. More specifically, three basic orienting questions guide this analysis of the Irish case: Are religious symbols largely uncontested or not? To what extent have religious symbols become the subject of public scrutiny? Who “owns” the authority to negotiate religious plurality in society?

1

For a discussion of the presence of the cross in Poland, see Zubrzycki, Geneviève. 2006. The Crosses of Auschwitz Nationalism and Religion in PostCommunist Poland. Chicago: University of Chicago Press.

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I begin by providing some contextual detail concerning the Irish example, focusing on nationally specific meanings of the cross and recent macro-level changes in society. This brief background information is useful for making sense of the current debate concerning religious symbolism in Irish society. Following this, I outline a conceptual framework for interpreting the changing place of religious symbolism in the public domain. The third part of the paper examines how the presence of religious symbols has played out in five key Irish societal institutions – local/national parliament, the arena of high politics, health care, the Defence Forces, and education – in recent times. For each societal institution, I present and discuss a “critical incident” which crystallises recent shifts in the meanings and interpretations of religious symbolism and how the dominant religious institution responds to challenges to its traditional symbolic authority. In relation to each incident, I examine what happened as well as what happened afterwards in terms of reactions to the incident as played out in public spaces. Finally, in the concluding section of the paper I summarise the analysis, consider the limits of the present study, and offer some reflections on the broader implications of the Irish case for religion and society in general.

Setting the Context Ireland is a predominantly Catholic country. Historically, the Catholic Church has enjoyed a “moral monopoly” in society.2 This is symbolised by historic close church-state interactions, even in the context of formal church-state separation, and by the strong public presence of Catholicism in social service institutions and lay organisations. It is also reflected in the locating of national ethnic identity in Catholic culture, or put differently, in a strong historic association between being Irish and being Catholic.3 The fact that virtually every Irish town and village has a Catholic church building attests to the historical intimacy of the church within the society.

2

Inglis, Tom. 1998. Moral Monopoly: The Rise and Fall of the Catholic Church in Modern Ireland, Dublin: University College Dublin Press. 3 Conway, Brian. 2014. “Religious institutions and sexual scandals: a comparative analysis of Catholicism in Ireland, South Africa, and the United States.” International Journal of Comparative Sociology 4:318-341. Accessed February 25, 2016. doi 10.1177/0020715214551472

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In this sense, and in others, the church may be considered a cultural “insider”4. Unsurprisingly, then, the cross has traditionally been associated with the culture of the society, as reflected in the commodification of the “Celtic Cross” as a symbol of Irishness. But this Irish-Catholic linkage is no longer a taken for granted reality. Since the 1960s, Irish society, in common with other advanced western European societies, has undergone significant socio-cultural change resulting from the decline of agriculture, the rise of a materialist culture, the advent of the mass media, the spread of feminist ideas, and other important shifts.5 All of these changes have created greater socio-economic opportunities for Irish men and women, and provided alternative cultural messages to those provided by traditional religious institutions. In other contexts, the cross has frequently been employed to mark the graves of the dead and as a mnemonic device to commemorate the past. For example, white crosses are carried by relatives of the victims of “Bloody Sunday” in Northern Ireland in 1972 during the annual commemorative march symbolically re-enacting the original tragic event.6 Along roadsides, crosses are frequently erected as spontaneous and impromptu graves to memorialise victims of car accidents, a social practice that is also quite common in other settings. In graveyards, the cross is a symbol of the salvation of one’s soul and the uniting of the dead with God in eternal life. Perhaps the best-known and largest cross in a public space is the Papal cross in Dublin’s Phoenix Park, which was erected in 1979 to commemorate the visit of Pope John Paul II in that year. In still other contexts, the cross may function as a kind of aesthetic object or fashion item, as in its wearing by individuals in a necklace arrangement.7 Of course, this meaning may also overlap with religious understandings of this symbol. Thus, the cross in the Irish context, in common with other settings, may be understood to be semiotically “open”.8 By this I mean that a 4

Dillon, Michele. 1996. “Cultural Discourses in the Abortion Discourse of the Catholic Church: Evidence from Four Countries”. Sociology of Religion 1:25-36; Conway, Brian. 2014, 318-341. 5 Tanner, Marcus. 2003. Ireland’s Holy Wars The Struggle for a Nation’s Soul 1500-2000, New Haven: Yale University Press. 6 Conway, Brian. 2010. Commemoration and Bloody Sunday: Pathways of Memory, Basingstoke/New York: Palgrave Macmillan. 7 Mark Hill, United Kingdom, Paper presented at the international conference “The Presence of the Cross in the Public Space of the European States”, The John Paul II Catholic University of Lublin, Lublin, Poland, 12-13 November, 2014. 8 Zubrzycki, Geneviève. 2006.

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number of quite distinct – and sometimes overlapping – meanings can be invested in it, ranging from being a symbol of collective ethnic identity (cultural interpretation) to an icon of suffering and the promise of eternal life (confessional interpretation). It is true to say that the Irish religious landscape has become increasingly diverse and heterogenous in recent times, especially during the “Celtic Tiger” period of macro-economic prosperity, mainly as a result of immigration by social groups who brought new religious traditions and systems into contact with the dominant Catholic culture.9 This is reflected in the presence of notable religious minorities such as Buddhists, Pentecostals, and Jews in Irish society. Other religious groups such as Jehovah’s Witnesses are also growing. According to the 2011 census, the three fastest growing religious bodies in Irish society are the Orthodox, Hindu, and Pentecostal religious groups, each experiencing a growth rate of over 70% compared to the previous census in 2006.10 In addition, the no religion, atheist, and agnostic categories increased by about 44,320 and 132% respectively in the 2006-11 span. This means that more Irish people than ever before are publicly declaring themselves as secular. Of course, this does not imply that Irish society is transitioning to a highly secular society, as only a relatively small proportion of the general population (less than 7%) self-identifies as belonging to these categories. However, considered alongside the trend of growing religious plurality, it points to the increasing diversification of the Irish religious marketplace, a heterogeneity that has in turn spurred the development of legal codes and standards – such as equality legislation – which accord equal legal status to all religious traditions and none.11 It is also true that the church itself has undergone significant change and transformation. Beginning in the 1990s, a large number of clerical sex abuse scandals developed in the Irish church, which contributed to significant institutional reputational damage and the tarnishing of its public status and image. These scandals had a dual component, arising in 9

Tanner, Marcus. 2003. All-Island Research Observatory (AIRO), PDR Table 35: Percentage and Actual Change in Population by Sex, Religion, Census Year, and Statistic, Available online at http://airo.maynoothuniversity.ie/external-content/table-35-percentageand-actual-change-population-sex-religion-and-statistic (accessed November 18, 2014). 11 Borowik, Irena. 2007. “The Religious Landscape of Central and Eastern Europe after Communism.” In The SAGE Handbook of the Sociology of Religion, edited by James A. Beckford and Nay J. Demerath, margin no. 654-669. London: SAGE Publishing. 10

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the first place from the abuse of children by individual priests, and then from the church hierarchy’s subsequent handling of abuse cases.12 At the same time, the church in Ireland retains significant power and authority, especially through its control of the education system. Together, these internal and external changes have created a social context in which the “proper” place of religious symbols in the public domain – and particularly symbols reflecting aspects of Catholic identity and culture – has become more and more debated, criticised, and questioned. A number of reasons can be posited for the timing of this issue; including the fact this symbolism involves the concrete materiality of space, the increasing activism of secular groups and the secularism of the society, and the growing prevalence of anti-Catholic messages in the media.13 Thus, the next section attempts to provide a basis for understanding this dynamic at a conceptual level.

Theoretical Framework How might the place of religious symbolism in the public domain be understood? To provide a conceptual framework of this analysis, I draw on three bodies of sociological research and theory: world polity theory, secularisation theory, and religious organisational theory.

World Polity Theory According to world polity theory, today’s world is characterised by an increasing emphasis on the following by individual nation-states of world cultural scripts.14 By this I mean that national societies are more and more subject to – and influenced by – the actions and imperatives of transnational nongovernmental organisations and entities, as well as 12

Conway, Brian. 2014, 318-341. For a similar example in a different context, see Rhys Williams, “Civil Religion and the Cultural Politics of National Identity in Obama's America.” Journal for the Scientific Study of Religion 52(2):239-257. 14 Bradley, Karen and Francisco O. Ramirez. 1996. “World Polity Promotion of Gender Parity: Women’s Share of Higher Education, 1965-1985.” Research in Sociology of Education and Socialization 11:63-91; Meyer, John. 2004. “The nation as babbitt: how countries conform.” Contexts 3:42-47; Gili, Drori S. and John W. Meyer, Francisco O. Ramirez, Evan Schofer. 2002. Science in the Modern World Polity: Institutionalization and Globalization. Stanford: Stanford University Press. 13

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powerful nation-states in terms of their law-making, political organisation, and institutional arrangements, despite the quite significant national variation across societies. In this view, the nation is a “babbitt” that seeks to align itself with global cultural norms, a process involving a kind of impression management at the collective national level. This is reflected, for example, in the signing by increasing numbers of nation-states of various human rights instruments, in order to manage their identity as “nice” in the eyes of other nations, even if, in practice, human rights commitment is often weaker than assumed. To take another example, it is increasingly common for national societies to develop their scientific infrastructures – by establishing well-funded, data-driven research institutes – as a prerequisite for macro-economic prosperity.15 This motivates Proposition 1: The presence of religious symbolism in the public space should be influenced by the degree to which the national society is influenced by the diffusion of global norms and trends in that country.

Secularisation Theory A second body of research – on secularisation theory – suggests that as societies become more modernised, the influence of religiosity declines. In this view, a kind of see-saw relationship exists between religiosity on the one hand and modernity on the other. Thus, as one increases, the other declines.16 Of course, sociologists of religion have also turned their attention to studying the mechanisms that help explain how modernity is linked to secularisation, isolating such factors as the modernisation of ideologies brought about by exposure of the general populace, to rational ideas associated with education and science, the modernisation of economies created by the greater ability of people to secure their basic material survival needs, and the modernisation of social ties involving the sundering of close-knit social ties in small-scale, well-integrated rural communities and their replacement by the “loose connections” of urbanised living.17 15

Meyer, John. 2004, 42-47. Casanova, Jose. 1994. Public Religions in the Modern World, Chicago: University of Chicago; Dobbelaere, Karel. 2004. Secularization: An Analysis at Three Levels, Oxford: Peter Lang; Ruiter, Stijn and Frank van Tubergen. 2009. “Religious Attendance in Cross-National Perspective: A Multilevel Analysis of 60 Countries.” American Journal of Sociology 3:863-895. 17 Ruiter, Stijn and Frank van Tubergen. 2009, 863-895. 16

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This secularisation process is best understood as occurring at a number of “levels” of society, from the micro level of the individual right up to the macro societal level. As sociologist Geneviève Zubrzycki points out, “secularization turns on multiple axes”.18 Thus, at the individual level, secularisation concerns the decline of religious belief and practice. At the organisational level, secularisation is reflected in the decline of religious involvement in societal institutions catering for the education, health care, and social service needs of the general populace, as well as the declining ability of religious groups to attract new callings. And at the societal level, secularisation is manifest in the apparent liquidation of the public role of religion and its increasing marginalisation to the private sphere (though considerable debate rages in the discipline concerning this trend).19 This increasing emphasis on the draining of religious symbolism from public space in modern secularised societies reflects the growing privatisation of religion – an important component of secularisation – and the consequent reduction in its “publicness”.20 This motivates Proposition 2: The presence of religious symbolism in the national society should be influenced by the degree of religious privatisation in that country.

Religious Organisational Theory Religious groups and traditions take a variety of forms, ranging from “vertical” entities in which power flows downward to more “horizontal” entities with distributed models of authority. In hierarchical institutions – such as the Catholic Church – decision-making is carried out by top-level church officials such as cardinals, archbishops, and bishops, who exercise authority over the laity and seek to bring national churches into conformity with global church teaching as defined and regulated by Rome.21 But from the sociological literature on religious organisations, we also know that religious systems do not operate in a vacuum, but are 18

Zubrzycki, Geneviève. 2006, 222. Casanova, Jose. 1994. 20 Casanova, Jose. 1994; Dobbelaere, Karel. 2004. 21 Conway, Brian. 2014. “Religious Public Discourses and Institutional Structures: A Cross-National Analysis of Catholicism in Chile, Ireland, and Nigeria.” Sociological Perspectives 57(2):149-166; Byrnes, Timothy A. 2001. “American Church or Church of America? The Politics of Catholic Bishops in Comparative Perspective.” In Christian Clergy in American Politics, edited by Sue E.S. Crawford and Laura R. Olson, margin no. 120-138. Baltimore: John Hopkins University Press. 19

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influenced, to varying degrees in different national contexts, by influences from “below”. These influences can range from financial giving to the socio-moral position taking of adherents, the interest concerns of secular groups, and the understandings among the general populace of the linkage between religiosity and nationality.22 Of course, the degree of receptivity by top-level religious officials to “below” may vary within a single religious tradition, as evidenced by the commitment to social justice concerns in many national churches in Latin America. In general, though, for strongly hierarchical religious organisations such as the Catholic Church, the influence of factors from “below” might be expected to be relatively weak, compared to more horizontally organised religious bodies, but even in this church, top-level elites do not operate completely independently of devotees. Indeed, the stress placed in this institution on lay input and participation – and the consequent erosion of the authority of church leaders – in the post-Vatican II era23 would lead one to expect at least moderate levels of responsiveness by institutional elites to the views and opinions of ordinary laypersons, who are increasingly viewed as important sources of insight for the church.24 In the discourse of Vatican II, this involved emphasis on the church as the “People of God”, as opposed to a stress on clericalism. This, in turn, led to new forms of church practice, though varying in their institutionalisation in different national settings,25 in which the Catholic laity performed functions previously reserved for clergy. By contrast, in less vertically organised religious groups where clerical professionals have less authority and influence (in the Bahá’í faith, for example), such responsiveness might be expected to be greater, as laypersons fulfill important day-to-day leadership and governance roles. This motivates Proposition 3: The presence of diverse religious symbolism in the national society should be influenced by the degree to 22 Christian Clergy in American Politics, edited by Sue E.S. Crawford and Laura R. Olson, Baltimore: John Hopkins University Press.; Calfano, Brian P., Elisabeth A. Oldmixon, and M. Gray. 2014. “Strategically Prophetic Priests: An Analysis of Competing Principal Influence on Clergy Political Action.” Review of Religious Research 1-23; Conway, Brian. 2014, 149-166. 23 Smith, Brian H. 1982. The Church and Politics in Chile Challenges to Catholicism. Princeton: Princeton University Press; Levine, Daniel. 2012. Politics, Religion & Society in Latin America, Boulder: Lynne Rienner Publishers. 24 Conway, Brian. 2014. “Religious Public Discourses and Institutional Structures: A Cross-National Analysis of Catholicism in Chile, Ireland, and Nigeria.” Sociological Perspectives 57(2):149-166; Conway, Brian. 2014, 318-341. 25 Levine, Daniel. 2012.

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which the dominant religious institution reacts to pressures from “below” in that country. It should be pointed out that these three perspectives or approaches to understanding the religious presence in public spaces do not operate independently of one another, but may in fact be inter-related. Consider, for example, that the impetus to drain public state institutions of direct references to religion may reflect the diffusion of global norms emphasising the neutrality of state institutions. An important analytical distinction is necessary here. The context in which the cross is displayed matters, as the presence of a cross in settings such as hospitals and schools is not necessarily the same as its presence in seats of local and national power. The latter may be said to be direct sites of the exercise of state authority, whereas the former are not.26 Thus, the ”cross” presence in certain settings may have quite different ramifications for church-state exchanges, the negotiation of religious plurality, and the intersection between the secular and religious domains than its presence in other contexts. It is also the case that the meaning of the cross may vary, not just between different settings, but also over time in response to changes in the surrounding social environment. Put another way, the meaning of symbols does not stand still.27 For example, in certain time periods, the presence of the cross may take on a historically taken for granted and uncontested quality, but in response to changes in such things as the numerical strength of religious minorities or the political environment,28 may become more (or less) subject to criticism in other time periods. In the following section, I investigate Proposition 1 (in relation to local/national parliament and high politics), Proposition 2 (with respect to health care and the Defence Forces), and Proposition 3 (with regard to education). In relation to most of these public institutions (and in common with other majority Catholic societies),29 two competing approaches are vying for symbolic dominance, a traditional Catholic perspective on the one hand and a secular-liberal standpoint on the other. Each group seeks to legitimise its preferred values in the society and to organise on normative issues such as education, family, and children. This puts increasing

26

Javier Martinez-Torron, Spain, Paper presented at the international conference “The Presence of the Cross in the Public Space of the European States”, The John Paul II Catholic University of Lublin, Lublin, Poland, 12-13 November 2014. 27 Zubrzycki, Geneviève. 2006. 28 Ibid. 29 Ibid.

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pressure on the state to regulate or “manage” how it institutionalizes (or not) certain cultural values.30

Patterns and Trends in the Presence of Religious Symbolism in Key Societal Institutions This section of the paper presents the findings in relation to the presence of the cross in the public space of five societal institutions in contemporary Ireland. The temporal boundary of this analysis extends from 2000 to the present day. This time period was chosen for study as it reflects a relatively recent timeframe, while at the same time allowing for the consideration of changing dynamics in relation to the public presence of the cross in certain societal institutions, over a relatively long time span. In carrying out this analysis, I relied on national newspaper reportage, such as in the Irish Times and Irish Examiner newspapers, and online media outlets such as Irish Central, the websites of secular organisations such as Atheist Ireland,31 and the websites of religious entities such as the Iona Institute (independent, lay-led, neoconservative Catholic think-tank)32 and the Irish Catholic Bishops’ Conference.33 It should be pointed out that this analysis is not intended to be representative, but rather as indicating certain general tendencies evident in society.

Local/National Parliament One important context in which the religious and the secular come into contact is local and national civil administration. In January 2014, a 30

Oldmixon, Elisabeth A. and Brian R. Calfano. 2007. “The Religious Dynamics of Decision Making on Gay Rights Issues in the U.S. House of Representatives, 1993-2002.” Journal for the Scientific Study of Religion 46(1):55-70. 31 For more detail, see http://atheist.ie/ (accessed November 24, 2014). 32 For more detail, see http://www.ionainstitute.ie/ (accessed November 24, 2014). The Iona Institute is dedicated to promoting traditional Catholic values, particularly in relation to the family and education. A focus on these two areas is unsurprising given their significance for prolonging the faith among potential future devotees. More broadly, the institute defends the proper place of religion in Irish society using up-to-date mass media and fundraising techniques. Although independent of the church and lacking official approval from the hierarchy, it is connected to it in two ways. First, a prominent Catholic cleric serves as one of its five patrons. Second, Catholic leaders are frequently invited to speak as external experts at Iona Institute-sponsored events. 33 For more detail, see http://www.catholicbishops.ie/ (accessed November 24, 2014).

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controversy arose in county Kerry concerning the erection of a cross in the refurbished local county council chambers. Interestingly, this debate did not concern the removal of a cross from a place that it had been for a long time, but the erection of a cross in a newly developed public building. Elected members of the local civil administration did not all agree on this symbol’s presence. Opinion was divided between those who objected to the cross as an exclusivist symbol, which failed to conform to equality legislation banning the privileging of any one single religious group, and those who identified it as an expression of Christian belief. The debate was “resolved” by the erection of the cross in the council chambers.34 Similarly, in 2011, the reciting of prayers in Castlebar Town Council came up for discussion, with opinion varying between local politicians favoring it as an expression of the historic Catholicity of the society and elected representativeness who put forward a neutrality argument, delinking religion from state institutions.35 Debate concerning the presence of religious symbols in civil administration extends to the national level as well. In October 2014, some members of the national parliament – Dáil Éireann – raised objections to the reciting of a prayer, both in English and the national language, Irish, to mark the opening of the legislative year. As in other Christian societies, official occasions often open with a Christian prayer.36 An earlier controversy arose in 2011 concerning the reciting of this prayer, when Aodhán Ó Riordáin (Labour) called for its ending in light of a fraught period of church-state interactions over the church’s handling of clerical child sex abuse scandals.37 In this example, the controversy concerned the presence of a longstanding symbol – dating back to 1932, when the prayer was introduced in parliament – rather than the establishment of a new ritual or symbol that had not been there before. As at the local level, cleavages emerged along familiar lines, varying between secular-liberal politicians such as Clare Daly (Independent) and Aodhán Ó Riordáin (Labour), who considered the prayer to be a violation of church-state separation, an assertion of Catholic values, and an expression of intolerance toward non-Catholics, to parliamentarians like Mattie McGrath (Independent) who saw it as a 34

For more detail, see http://www.irishtimes.com/news/politics/crucifix-erectedin-kerry-county-council-meeting-chamber-1.1822912 (accessed January 5, 2016). 35 For more detail, see http://clericalwhispers.blogspot.ie/2011/06/castlebarcouncil-prayer-row.html (accessed January 5, 2016). 36 Fox, Jonathan. 2008. A World Survey of Religion and the State. Cambridge: Cambridge University Press. 37 Conway, Brian. 2014, 318-341.

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signifier of the religious freedom enjoyed in a modern Ireland. In the wake of this debate, the Oireachtas Committee on Procedures and Privileges decided to retain the prayer, subject to future revision by a parliamentary vote.38

High Politics The second context considered in this paper concerns high politics. By this I mean the presence or absence of religious symbolism in situations in which the state commemorates the country’s past or other special state occasions such as visits of foreign heads of state, swearing-in ceremonies, the state funerals of former Taoisigh (Prime Ministers), or of state symbolism at church rituals, as when public officials occupy the reserved pews in the installation ceremonies of Catholic bishops, or receive the first-order welcome and greeting during the bishop’s homily.39 Other instances include inviting clergy to attend special council meetings. Such occasions are characterised by the ritual marking of the past or of transitions from one period of political (or religious) power to another, and thus involve a high degree of ceremony, often involving religious officials. Some such events are characterised by an emphasis on expressing commitment to religious plurality and diversity, while this is less true of others. Consider, for example, the state funerals of former Taoisigh. Such “unsettled” occasions40 tend to involve the privileging of Catholic ritual and symbol – as in the recent death rituals for Garret Fitzgerald and Albert Reynolds – and a relatively marginal position accorded to other faith traditions. On most other state occasions, however, religious pluralism comes to the fore. A good example of this has to do with the commemoration of Irish citizens who participated in various past wars. During such events, a notable feature is the presence of religious officials from a diverse range of religious groups, including the Church of Ireland, Roman Catholicism, Methodist tradition, and the Islamic faith, all united in shared remembrance of the war dead. How might the impetus to establish formal procedures restricting the expression of religious symbols in the national parliament and generally promoting religious diversity on state occasions be understood? The 38 For more detail, see http://www.irishexaminer.com/ireland/daacuteil-row-overoffensive-recital-of-lords-prayer-289922.html (accessed January 5, 2016). 39 Martin, David. 1978. A General Theory of Secularization. Oxford: Blackwell. 40 Swidler, Ann. 2001. Talk of Love How Culture Matters. Chicago: University of Chicago Press.

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insights of world polity theorists such as John Meyer and John Boli may be useful here. As mentioned, world polity theory posits nation-states as conforming actors who seek to align themselves with global cultural scripts. Based on this, I posited (Proposition 1) that the presence of religious symbolism in public spaces should be related to the diffusion of global norms in that country. Thus, I argue that this theory helps explain why Irish national (and local) parliamentarians are increasingly likely to question the “proper” place of the cross – and religious rituals such as prayer – in state institutions. Global expectations in relation to legal-rational forms of authority (as reflected in various authoritative documents of transnational institutions such as the United Nations) as well as changes in other societies influence and inspire how national or local-level political elites think about and respond to the presence of religion in public spaces such as national parliaments.

Health Care Historically, one of the most visible expressions of historic close church-state interactions in the Irish context is the presence of religious personnel as staff in hospitals and other health care settings. Although their numbers are much reduced now, clergy and religious continue to play an important role in the running of many such settings in Ireland. The Catholic hospital system accounts for about 40 per cent of the 71 acute hospitals in the country, and receive subsidies from the state. Unsurprisingly, then, this has been reflected in the historic display of religious symbols such as crosses, crucifixes and other elements of Christian material culture in health care settings, as well as their employment of Catholic chaplains.41 In recent times, this symbolism has come under increasing challenge as more and more people either disaffiliate with Catholic culture or express commitment to a secular society in which religious symbols are drained from the public domain. One good example of this occurred in March 2010 in relation to the display of religious symbols in two hospitals – Killarney Community Hospital and St. Columbanus Home – in Killarney, Co. Kerry. In this “critical incident”, the local bishop expressed his disapproval at the 41

For more detail, see Standards for Certification Catholic Healthcare Chaplains, Council for Health Care Irish Catholic Bishops’ Conference, 2014, available online at http://www.catholicbishops.ie/wp-content/uploads/2014/01/Standards-forCertification-in-Healthcare-Chaplaincy-1-January-2014.pdf (accessed November 27, 2014).

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removal of religious statues from a Kerry hospital by the local health authority, the Health Service Executive, on alleged health and safety grounds. In advancing this claim, the bishop invoked the cross as a symbol of hope in the face of suffering, a strongly confessional interpretation.42 Notably, in this example, the controversy arose in relation to symbols that had been in place for over 70 years, dating back to 1939. A local Catholic priest, Fr. Kevin McNamara, supported the bishop’s position, arguing that non-Catholics and non-believers alike did not take offence from the presence of symbols of Catholic culture in hospitals. Backing for this confessional argument also came from secular sources, as local politician Brendan Cronin (Independent) called for the re-instatement of the symbols and claimed that religious minorities were not intolerant of them.43 Interestingly, this incident involved the expression of the reservations of an individual bishop, rather than members of the church hierarchy as a corporate body, in defending the public presence of Catholic symbolism. This may result from the hierarchy’s understanding that it can exert little influence in relation to such issues. It may also derive from its recognition of the risk of drawing public criticism from secular groups.

Defence Forces Another key institution where the church exchanges with the state is in the Irish Defence Forces, comprising the army, navy, and air corps. This is manifest in the appointment of military chaplains, especially for overseas missions involving peacekeeping duties in places such as Lebanon. It is also reflected in the fact that newly commissioned officers swear on the Bible an oath of allegiance to the state during their commissioning ceremony. Of particular concern here is the military chaplaincy, a specialised church ministry usually held by an army officer. In 2014 there were 17 full-time army chaplains in the Irish Defence Forces, representing less than 1 per cent of the total clerical population in the country.44 The “critical incident” which crystallises the interaction between church and state in this context concerns a controversy which took place in January 2014 relating to the content of the Christmas Eve speech delivered by the President of Ireland, Michael D. Higgins, who also acts as 42

Cassidy, Joseph. 2006. These Might Help Too: Homilies for Cycle C. Dublin: Veritas. 43 For more detail, see http://www.irishexaminer.com/ireland/bishop-saddened-byhse-removal-of-religious-statues-114106.html (accessed January 5, 2016). 44 For more detail, see http://militarychaplaincy.ie/chaplains/ (accessed November 27, 2014).

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commander-in-chief of the Defence Forces, to mark Christmas. This speech was criticized by an army chaplain for its alleged omission of any reference to God. The army chaplain went on to criticize the removal of a Crib from the Defence Forces headquarters. In the latter case, the criticism arose in relation to a religious symbol that had a long-standing presence. Resolution of this issue arose following an official apology and statement from the Defence Forces press office, which pointed out that the army chaplain’s remarks had been misinterpreted and did not involve any direct criticism of the President.45 Since the early 2000s, other incidents concerning the discontinuation of religious ceremonial participation by Defence Force personnel – such as the 2012 Eucharistic Congress, local Corpus Christi processions, parish missions, and Sunday Mass – point to an increasing stress on delinking church and state systems, particularly the state’s historic close association with the Catholic tradition. Such contestation around religious symbolism is not confined to the Defence Forces, however, but also extends to the Gardaí (Irish police force). In 2007, for example, a police force member was prohibited from wearing the turban on the grounds of the state’s neutrality vis-à-vis religion.46 So how can we understand the contestation surrounding the presence of religious symbolism in Irish hospitals and the Defence Forces? I argue that the insights provided by secularisation theory help explain this dynamic. According to secularisation theory, the “publicness” of religion in the modern world is being increasingly challenged – though there are clear counter-trends to this in various national settings47 – and consequently being marginalised to the private sphere. Based on this, Proposition 2 posited that the presence of religious symbolism in public spaces should be related to the degree of privatisation in that country. This makes it more difficult for public state institutions to legitimise the honoring of the religious symbols associated with one particular religious group at the expense of others, or to display religious symbols at all. Thus, more and more state institutions are adopting positions of “neutrality” with regard to religious icons by liquidating their public presence. At the same time, it should be pointed out that not displaying religious symbols may be said to signal the state’s reluctance to accommodate religious diversity and freedom of religious expression. 45 For more detail, see http://www.irishtimes.com/news/politics/army-apologisesover-remarks-about-higgins-1.1644048 (accessed January 5, 2016). 46 Migrant Activism and Integration from Below in Ireland. 2012. Edited by Ronit Lentin and Elena Moreo. London: Palgrave. 47 Casanova, Jose. 1994.

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Education In addition to health care settings, clergy and religious in Ireland have historically played an important role in the educational system as teachers and managers of religiously inspired denominational schools. Catholic schools account for about 90 per cent of all primary schools in the country.48 Schools are particularly important for religious leaders, as they are crucial sites for the prolonging of the Catholic faith among future possible adherents. Thus, Catholic leaders pay particular attention to protecting the church’s strategic interests in this domain. At the same time, church elites have taken surprisingly few public official stands in relation to growing contestation – and state intervention – concerning the presence of religious symbols in schools. Instead, lay-led Catholic think tanks such as the Dublin-based Iona Institute have tended to weigh in to such debates by defending the principle of freedom of religious expression.49 In addition, there has been some litigation in the Irish courts concerning issues such as the funding of chaplains in schools, the ringing of the Angeles on national radio, and in relation to religious instruction50, but to my knowledge, none relating to religious symbols per se. As with religious symbolism in hospitals, the question of the proper place of symbols in schools has recently come to the fore. A good example of this was the controversy that arose in 2008 concerning the wearing of the Islamic Hijab in Irish schools, following a request by letter from a school principal in Gorey for guidelines concerning such symbols from the Department of Education. This letter came to light following a Freedom of Information request by media journalists.51 Relatedly, and spurred on by the presence of more religious minorities in Irish schools than previously, the progress report of the Forum on Patronage and Pluralism in the Primary Sector, urged the public display of 48 Darmody, Merike, Emer Smyth, and Selina McCoy. 2012. “School Sector Variation among Primary Schools in Ireland.” Department of Children and Youth Affairs; https://www.esri.ie/__uuid/7c3b20b7-0671-43a1-8ca7-7d073b36e6d0/ BKMNEXT221.pdf (accessed November 27, 2015). 49 Iona Institute. 2012. “Iona Institute Briefing Notes The rights of denominational schools in Irish and international Law.” http://www.ionainstitute.ie/assets/files/denom.sch.law_WEB.pdf (accessed November 28, 2012). 50 Doe, Norman. 2011. Religion and Law in Europe: A Comparative Introduction. Oxford: Oxford University Press. 51 For more detail, see http://www.herald.ie/news/hijab-row-in-schools-kicks-offfor-new-the-term-27883914.html (accessed January 5, 2016).

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religious symbols reflecting the full diversity of religious groups in Irish society, rather than the removal of religious symbols altogether. This report noted that such symbols give expression to the confessional nature of the school system.52 With regard to understanding the presence of religious symbolism in educational settings such as schools, religious organisational theory may provide some useful contribution. As mentioned, this theory posits that religious groups, even strongly hierarchical ones, are sensitive to pressures from “below” in how they operate on a day-to-day basis. Proposition 3, then, posited that the presence of religious symbolism in public spaces should be related to the degree to which religious elites respond to pressures from “below”. Thus, I argue that this theory helps explain why Catholic leaders have been relatively guarded in their claims-making with regard to religious symbolism in schools, as this may reflect sensitivity to the heterogeneity among the rank-and-file laity – ranging from disaffiliation from the church to adherents who are strongly committed to it – and its increasing acknowledgement that the era of Catholic dominance in Irish society is a thing of the past, a reality requiring greater recognition of the diverse faith traditions on the island and the inappropriateness of asserting claims to being the lead religious group in a society which no longer defines national belonging in exclusively Catholic terms. This is reflected in a recent well-received speech given by the Catholic Archbishop of Tuam, Michael Neary, in November 2014, in which he compared the attitude of the general population to the Catholic Church to the residual toleration of an elderly family member.53 In addition, it could be argued that the church’s muted reaction is also related to the growing organisation and mobilisation of secular groups, such as the members of Atheist Ireland (founded in 2006), who advocate a secular-civic state. Against this background, a church that seeks to promote itself as the lead religious group by asserting a special claim to displaying exclusive ethnoreligious symbolism in public spaces, exposes itself to criticism – in the

52

Department of Education and Skills. 2014. “Forum on Patronage and Pluralism in the Primary Sector Progress to Date and Future Directions.” http://www.education.ie/en/Press-Events/Conferences/Patronage-and-Pluralism-inthe-Primary-Sector/Progress-to-Date-and-Future-Directions-Forum-on-Patronageand-Pluralism-in-the-Primary-Sector.pdf (accessed November 27, 2014). 53 For more detail see Neary, Michael. 2014. “Homily of Archbishop Michael Neary for Association of Papal Orders in Ireland, McKee Barracks.” Dublin, 7 November 2014. http://www.tuamarchdiocese.org/2014/11/homily-of-archbishopmicahel-for-association-of-papal-knights/ (accessed November 18, 2014).

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legitimacy battleground – from such secular-oriented organisations and risks alienating itself from the general populace.54

Conclusion This paper has attempted to examine recent controversies – or “critical incidents” – in Irish society, as manifest in certain societal institutions, which reflect the encounter between the public space and religious symbolism. I have argued that Irish society has been characterised in recent times by an increasing emphasis on challenging or questioning by secular groups and organisations of exclusive religious symbolism – usually associated with Catholic culture – and the parallel articulation of the claims of non-Catholic religious traditions in the struggle for power to define the “proper” place of religious symbolism in the public domain. Increasingly, government officials at local and national levels (and to some extent legal elites) are making important decisions about “managing” or regulating the presence of religion in the public space. More broadly, the meaning of religious freedom in Ireland is up for grabs.55 At the same time, the reaction of the Catholic leadership to recent challenges to Catholic symbolism in various settings has been surprisingly muted. To my knowledge, the bishops have not published a press statement directly engaging with this important issue, though individual bishops have publicly defended respect for Catholic religious symbols more generally. This may reflect the bishops’ awareness of the increasing mobilisation potential of secular groups and organisations in opposing religious groups that seek to preserve traditional religious practices, especially those linked to state institutions. It may also flow from the bishops’ acknowledgement of the growing privatisation of religion in contemporary society and of their reluctance to alienate the episcopal conference from adherents and non-adherents alike.56 This analysis of the presence of the cross (and religious symbols, more broadly) in the Irish case contains three important lessons for students of religion in general. First, this study shows that the legitimacy of 54 My thanks to Prof. Javier Martinez-Torron (Complutense University of Madrid, Spain) for this point (personal communication, 13 November, 2014). 55 Richardson, James T. 2015. “Managing Religion and the Judicialization of Religious Freedom.” Journal for the Scientific Study of Religion 54(1):1-19. 56 Conway, Brian. 2014. “Religious Public Discourses and Institutional Structures: a comparative analysis of Catholicism in Chile, Ireland, and Nigeria.” Sociological Perspectives 57(2):149-166.

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religiosity, even in “settled” contexts,57 is increasingly coming under challenge in response to a range of factors operating “above” (state and transnational influences), “below” (religious plurality and secular mobilisation), and “within” (declining religious authority/legitimacy). Second, this study shows that even in societies characterised by a dominant religious monopoly with a historic homogenous population, growing religious diversity makes it increasingly difficult for any one religious group to claim “ownership” of the public space and assert a claim to being the lead religious tradition. Third, this study shows that the authority to regulate the presence of religious symbolism in the public space is not neatly defined, being neither the sole preserve of the state nor of the church, and perhaps may be best negotiated at the local small community level.58 While this study has attempted to investigate the presence of religious symbols in the public space in Ireland by focusing on five key societal institutions, further research would benefit from extending this analysis to include other important public state institutions such as prisons, as well as examining the similarities and differences in the presence of religious symbols across these different domains – prisons, schools, hospitals, and civil administration – in a comparative framework. Another fruitful avenue for future research would be to focus more directly on the reactions of religious elites to shifts in the lead religious group in society arising from the negotiation of the presence of the cross (and religious symbolism generally) in the public space. Such an analysis would require in-depth interviews with church officials to investigate their views regarding how religious institutions respond to attempts by the state to integrate religious minorities, such as the promotion of inclusive religious symbolism, or the removal of traditional religious expressions. Even considering these important limitations and shortcomings, this paper has sought to investigate how religious symbolism is negotiated in the public space in contemporary Irish society, and how this might be understood in light of extant sociological theory and research. As such, I hope it might serve as an invitation to sociologists – and other social scientists interested in symbolic politics – to pay more detailed attention to the examination of religious symbols in the public space in Ireland and beyond.

57

Swidler, Ann. 2001. My thanks to Prof. Mark Hill QC (Cardiff University, Wales) for this point (personal communication, 13 November, 2014). 58

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References Borowik, Irena. “The Religious Landscape of Central and Eastern Europe after Communism.” In The Sage Handbook of the Sociology of Religion, 654-669. Edited by James A. Beckford and Nay J. Demerath. London: Sage Publications, 2007. Bradley, Karen, and Francisco O. Ramirez, “World Polity Promotion of Gender Parity: Women’s Share of Higher Education, 1965-1985.” Research in Sociology of Education and Socialization 11(1996):63-91. Byrnes, Timothy A. “American Church or Church of America? The Politics of Catholic Bishops in Comparative Perspective.” In Christian Clergy in American Politics, 120-138. Edited by Sue E.S. Crawford and Laura R. Olson. Baltmore: Johns Hopkins University Press, 2001. Casanova, José. Public Religions in the Modern World, Chicago: University of Chicago, 1994. Cassidy, Joseph. These Might Help Too: Homilies for Cycle C. Dublin: Veritas, 2006. Conway, Brian. Commemoration and Bloody Sunday: Pathways of Memory. Basingstoke/New York: Palgrave Macmillan, 2010. —. “Religious institutions and sexual scandals: a comparative analysis of Catholicism in Ireland, South Africa, and the United States.” International Journal of Comparative Sociology 55/4(2014):318-341. doi 10.1177/0020715214551472 —. “Religious Public Discourses and Institutional Structures: A CrossNational Analysis of Catholicism in Chile, Ireland, and Nigeria.” Sociological Perspectives 57/2(2014):149-166. Calfano, Brian P., Elisabeth A. Oldmixon, and Mark Gray. “Strategically Prophetic Priests: An Analysis of Competing Principal Influence on Clergy Political Action.” Review of Religious Research 2014:1-23. Darmody, Merike, Emer Smyth, and Selina McCoy, School Sector Variation among Primary Schools in Ireland, Department of Children and Youth Affairs, 2012, available online at https://www.esri.ie/__uuid/7c3b20b7-0671-43a1-8ca77d073b36e6d0/BKMNEXT221.pdf (accessed November 27, 2014) Dillon, Michele. “Cultural Discourses in the Abortion Discourse of the Catholic Church: Evidence from Four Countries.” Sociology of Religion 57/1(1996): 25-36. Dobbelaere, Karel. Secularization: An Analysis at Three Levels, Oxford: Peter Lang, 2004.

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von Drori, Gili, John W. Meyer, Francisco O. Ramirez, and Evan Schofer. Science in the Modern World Polity: Institutionalization and Globalization. Stanford: Stanford University Press, 2002. Inglis, Tom. Moral Monopoly: The Rise and Fall of the Catholic Church in Modern Ireland. Dublin: University College Dublin Press, 1998. Levine, Daniel H. Politics, Religion & Society in Latin America. Boulder: Lynne Rienner Publishers, 2012. Meyer, John. “The nation as babbitt: how countries conform.” Contexts 3(2004):42-47. Migrant Activism and Integration from Below in Ireland. Edited by Ronit Lentin and Elena Moreo. London: Palgrave, 2012. Ruiter, Stijn, and Frank van Tubergen. “Religious Attendance in CrossNational perspective: A Multilevel Analysis of 60 Countries.” American Journal of Sociology 115/3(2009):863-895. Smith, Brian H. The Church and Politics in Chile Challenges to Catholicism. Princeton: Princeton University Press, 1982. Swidler, Ann. Talk of Love How Culture Matters. Chicago: University of Chicago Press, 2001. Tanner, Marcus. Ireland’s Holy Wars The Struggle for a Nation’s Soul 1500-2000. New Haven: Yale University Press, 2003. Zubrzycki, Geneviève. The Crosses of Auschwitz Nationalism and Religion in Post-Communist Poland. Chicago: University of Chicago Press, 2006.

CHAPTER EIGHT THE PRESENCE OF THE CROSS IN PUBLIC SPACES: ITALY GIORGIO FELICIANI

1. Legislation Italian legislation concerning the display of crucifixes in public places is at best fragmentary and incomplete. This handicap is to a large extent due to the absence, at the national level, of general provisions concerning all such locations generally.1 Under these circumstances, the most important and significant legal texts concern schools and, moreover, are of a regulatory nature and decidedly outdated, since they were created in the 1920s. They include, first of all, the Royal Decree of 30 April 1924, no. 965, concerning the internal regulations of secondary schools in the Kingdom of Italy, article 118 of which stipulates that “every educational institution has to have a national flag, and each classroom a crucifix and a portrait of the king”. These provisions are extended to other schools by the Royal Decree of 26 April 1928 no. 1297, relative to the General Regulations of Primary Education Services, article 119 of which

1

Both doctrine and jurisprudence continually cite the ministerial ordinance of 11 November 1923 no. 250 concerning the display of crucifixes in public places, but the original text is nowhere to be found. This has led to the observation that “an error of citation might have occurred, seeing as not all the circulars in this period were published”. Randazzo, Barbara. 2008. Diverse e eguali: le confessioni religiose davanti alla legge, 351 footnote 163, see also 59 footnote 3. Milan: Giuffrè.

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enumerates the cross among “the equipment and materials required for school classrooms”.2 The respect for these norms was later cited by the Ministry of Public Education in the Circular of 19 October 1967, no. 367, and has more recently been referenced in the Directive of 3 October 2002, no. 2666, which, among other things, announces “appropriate measures to be taken by directors of educational institutions to ensure the exposition of the Crucifix in the classroom”.3 In all cases, as we will see, the validity of the provisions in question has largely, though not unanimously, been confirmed by court decisions. The cross is not only present in schools but also in other public places, particularly in courts. At the same time, the only normative prescription regarding this matter is to be found in the Ministry of Justice and Grace Division III Circular of 29 May 1926 no. 2134/1867, which merits being quoted verbatim because, unlike other norms, it enounces the ratio of its provisions. It essentially prescribes that: In courtrooms, above the judges’ bench and next to the likeness of His Majesty the King, there should be a Crucifix, in accordance with our ancient tradition. May the venerated symbol be a solemn incitement to truth and justice. The offices of the chiefs of justice should come to agreement with the municipal administrations to [ensure that] these provisions are put in place with the solicitude and artistic dignity proper to the very high office of the judiciary.

With regard to the presence of the cross in hospital rooms, military premises and prison offices, no provision is made in any normative act. It is an established traditional practice, widespread, though not always followed. For the sake of thoroughness, one should also recall that local regulations contain provisions regarding the presence of the crucifix. Among these, the Law of the Region of Lombardy of 21 November 2011 no. 18 deserves special attention. In it, the region, recognizing the “historical, cultural and social values of its Judeo-Christian roots”, requires that the cross be displayed “in institutional rooms and at the

2

All the sources mentioned in this paper are available on the website of the Osservatorio delle libertà ed istituzioni religiose (www.olir.it), unless otherwise indicated. 3 See also a note issued by the same ministry, no. 2667, from the same day.

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entrance to regional buildings and those occupied by the regional administration” (art. 1-2). The aim of the present article is not to deal with the ECHR ruling in the Lautsi v. Italy case, yet we cannot fail to consider the former’s critical opinion with regard to Italian legislation. The said ruling refers more specifically to schools, but because of the arguments raised it can also be extended to other public spaces. The ECHR ruling was intended to recognize the obligatory display of crucifixes in the classroom, provided for in the abovementioned legislation, as implementing a principle introduced in art. 1 of the Constitution of the Kingdom of Sardinia from 4 March 1848, which on 17 March 1861 became the Constitution of the Kingdom of Italy. This fundamental charter remained in force until the adoption of the Republican Constitution on 27 December 1947. The said article stated: “Roman Catholicism is the sole religion of the State. Other religions are tolerated within the limits of the law”. The presence of crosses in schools would therefore merely be one of many possible manifestations of a confessional state. Such a claim is completely erroneous, however, since the principle set out in the abovementioned law was immediately repudiated by a whole series of laws, which, from June 1848, implemented a type of separatism not devoid of hostility towards the Church. It suffices to consider the abolition of the principle of privilegium fori, the suppression of monasteries and confiscation of their property, or the institution of civil marriages as the only form of marriage recognized by the state: measures so anti-confessional that they earned their authors excommunication. The result, as a discerning expert has pointed out, is that the presence of the cross in classrooms is not a consequence of the principle established by article 1 of the Constitution, but of the “autonomous choice of a state, which, though it be agnostic and indifferent, has not neglected to take into account … its own popular, religious, and cultural tradition” and has therefore deemed it its duty to “maintain a symbol, which is part of the intimate Italian identity, in schools”.4

4

Cardia, Carlo. 2010. Identità religiosa e culturale europea: La questione del crocifisso, 53-54. Turin: Umberto Allemandi.

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2. Jurisprudence Over the last few decades the subject has given rise to numerous questions and controversies, and resulted in a plethora of decisions by regional administrative tribunals, the Council of State, civil and criminal courts, the Supreme Court of Cassation and even, though marginally, the Constitutional Court.5 As it is clearly not possible to relate all of these in detail here, we should therefore limit ourselves to the most significant and important decisions, to gain an understanding of the situation in Italy. The presentation of different decisions will be arranged according to the different contexts in which the crucifix is displayed, namely classrooms, polling stations, and courtrooms,6 and will be followed by a general analysis highlighting the principles that inspired the rulings as well as their doctrinal and practical consequences.

a) The presence of the cross in classrooms For a synthetic outline of jurisdiction as it pertains to the display of crosses in classrooms, we should begin with the Opinion of 27 April 1988, no. 63, of the Italian Council of State, the second section, which recognizes as “still valid today” the royal decrees of the 1920s, in the light of substantial and formal considerations. With regard to the former, it is considered that the crucifix, “beyond its meaning to the faithful, is a symbol of Christian civilization and culture in its historic rootedness, as a universal value, independent of any religious faith”. It therefore seems that the display of crucifixes in public places, and especially in classrooms, does not constitute a restriction of religious freedom, sanctioned by the Constitution (which, in fact, contains no proscription in this regard). An ordinance of the Tribunal of L’Aquila from 23 October 2003 presents a whole different orientation. It was subsequently revoked for reasons to do with the competence of the issuing authority,7 but deserves 5

In the ordinance of 13 December 2004 no. 389 the Court ruled the question of illegitimacy raised by the Veneto Regional Administrative Tribunal with regard to crosses inadmissible insofar as the legal texts cited were of a regulatory nature and thus without legislative value; by definition they were not within the purview of the Court. 6 With regard to hospitals, we must cite the sentence for insult to the Catholic religion handed down to a person who had thrown the crucifix out a window while visiting a hospitalized relative. 7 See the ordinance of the same court from 19 November of the following year.

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attention because of the arguments raised therein and the breadth of the justification, containing as it does numerous references to doctrine. According to this tribunal, “the preservation of religious and cultural pluralism”, guaranteed by the Constitution, “cannot be realized unless educational institutions remain impartial with regard to the phenomenon of religion”. This condition is not only contradictory when it comes to the presence of crucifixes, but also with regard to a potential “display of the plurality” of religious symbols, “which, in fact, could never be allembracing and would always in the end infringe on the negative religious freedom of those without a credo”. This measure, which might be seen as radical, is in fact clearly contradicted by subsequent jurisprudence. For example, the Veneto Regional Administrative Tribunal strove to demonstrate in its decision, no. 1110 of 17 March 2005, the full legitimacy of the presence of the crucifix in classrooms, citing ample and detailed considerations which deserve to be quoted verbatim, at least in their main lines, because of the original construction of the argument. Having first upheld the full validity of the 1920s decrees, the tribunal first of all observes that “the crucifix is also a historical and cultural symbol … having value as part of the identity of our nation” insofar as “it represents the historical and cultural journey of our country and generally of Europe as a whole, and is an adequate synthesis thereof”. Indeed, the cross has more than just this value; it “must be considered a religious symbol” of Christianity. As for this aspect, the tribunal deems it necessary to verify the relationship of Christianity to the values sanctioned by the Constitution in order to determine whether the presence of religious symbols in public schools is compatible with the latter. In this area, it notes that Christianity contains “essentially the ideas of tolerance, equality, and liberty which are at the root of the modern secular state and particularly of the Italian State”, and constitutes one of the “many roots” of the constitutional principles of freedom. “It would therefore be somewhat paradoxical to exclude a Christian symbol from a public structure in the name of a secularism that certainly has one of its distant sources in the Christian religion”. Upon this basis, the tribunal comes to the conclusion that the cross “can legitimately be placed in public school classrooms because it is not only opposed to but in fact affirms and confirms the very principle of Republican State secularism”. These arguments were reiterated, sometimes verbatim, by the Council of State in a ruling of the sixth section from 13 February 2006, no. 556, and in an opinion issued by the second section on 15 February of the following year. It will suffice to recall that the first of these forcefully

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dismissed “the claim that the State abstains, in an educational setting, through a symbol (the crucifix) considered as adapted for this purpose, from presenting and defending values that are decidedly secular, though of religious origin, which pervade Italian society and connote its fundamental Charter”. The second text, on the other hand, recognizes that: In the present social conditions, the cross must be considered not only as a symbol of historic and cultural evolution, and so of the identity of our nation, but also as a symbol of a system of values comprising liberty, equality, human dignity, and religious tolerance, and therefore also of the secular nature of the State, which are expressly enounced in our Constitutional Charter.

The judgment of 22 May 2006, no. 603 of the Regional Administrative Tribunal of Lombardy, office in Brescia, offers a new and original, though not entirely consistent, approach to this controversial issue. It first of all regards the regulatory texts from the 1920s as having been surpassed by the Concordat of 1984 which, on the one hand, recognized the principle of Roman Catholicism as the sole religion of the State as no longer binding, and on the other granted everyone the right to choose whether or not to attend Catholic religion classes in public schools, respecting the freedom of conscience and the educational responsibility of parents. One can therefore affirm that “public, and in particular educational, institutions cannot … choose to identify with religious symbols which, even though they express a universal message, always belong to the sphere of conscience and free individual choice”. This affirmation is so categorical that it seems absolutely decisive. However, at this point in the argumentation, the judgment, oddly enough, recalls that the same Concordat justifies the teaching of religion in public schools on the grounds of “the historic value of the majority religion in the national territory”. This recognition “can also be invoked as a criterion for regulating situations when the visibility of religious symbols inside school buildings (and public buildings in general) reflects deeplyrooted habits” that one may recognize as important since they are “shared” by the users of the building in question. Moreover, given the autonomy of different educational institutions, solutions must be sought on a case-bycase basis by collegiate bodies with the involvement of teachers, parents, and students.8 8

On this subject, the judgment of the Veneto Regional Administrative Tribunal of 17 March 2005 cited above, stated: “As for … leaving the choice up to each

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b) The presence of the cross in classrooms used as polling stations One particularly sensitive question concerns the presence of the crucifix in polling stations, which are usually set up in classrooms. Because of the different, manifestly opposed stances on this subject, the magistracy is often called upon to solve this problem. For a concise outline of the different decisions, one should begin with the judgment of 1 March 2000, no. 439, passed by the Court of Cassation, the fourth penal section, which ruled it a “justified ground for refusal” that “there is a conflict between personal adherence to the supreme principle of secularity of the State and carrying out the tasks of an electoral committee member because of the presence in the room of a crucifix or other religious images”. Nevertheless, two years later, the judgment of 22 May 2002, no. 4558 of the Regional Administrative Tribunal of Latium, first section b, found the request of the Union of Atheists, Agnostics and Rationalists to ban the crucifix from polling stations inadmissible, noting that: “According to principles established by the Constitution with regard to religious matters … there is no obligation or prohibition relative to the display of the cross in public offices in general”. Similarly, in 2005, the civil courts of Bologna, Naples, and L’Aquila9 mutually dismissed demands to ban the crucifix from polling stations, citing arguments of a different nature, which can be summed up as follows. First, it is recognized that the crucifix has a cultural value expressing the historical heritage of the country. On the other hand, the vast majority of Italian citizens identify with this symbol spiritually. It is then recalled that the presence of the crucifix does not come into conflict with the principle of state secularism or religious freedom because it makes no demand of adherence or veneration. Finally, it is powerless to exert influence on one’s political beliefs or a ballot. A whole different orientation was subsequently embraced by the chief justice of Perugia’s Court of Appeal in the decree of 10 April 2006, in connection with circumstances that deserve to be cited. The prefect of Terni had notified him of “… the appropriateness of revoking the mandate school, on the one hand the regulations do not permit this, on the other it seems dubious to let the majority decide on a matter that pertains to individual freedoms”. 9 See the Civil Court of Bologna, the first civil section, ordinance of 24 March 2005; Tribunal of Naples, the tenth civil section, ordinance of 26 March 2005; Civil Court of L’Aquila, ordinances of 31 March and 26 May 2005.

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of the president” of a polling station “for having set aside the crucifix that was there and moreover failed to obey the mayor’s order … to replace the said crucifix, thereby causing significant tension inside the polling place”. The chief justice rejected the complaint, observing, first, that the room inside of which a polling station is set up is “simply a physical space, at a time being destined to serve a purpose different from the school’s didactic activity”. He then noted that “the crucifix, whose indubitable symbolic value is not here debated, is in no way mentioned or considered” among the equipment of which a voting station must consist. He concludes: “By simply pointing out that it is appropriate for a room which is to serve as a polling station to be absolutely neutral and therefore devoid of symbols that could, in one way or another, even indirectly or involuntarily, be suggestive to or influence the voter”. We can certainly agree with the first two remarks concerning the classroom as being simply a physical space and to the absence of regulations that make the presence of the crucifix obligatory inside a voting station. Yet it is quite unrealistic that the presence of the cross, which most of the time passes entirely unnoticed, could make an impression on, let alone influence, the voter. This brief description clearly shows that jurisprudential orientations on this matter are extremely varied, ranging from those that consider the presence of the cross in polling stations unfortunate at best, through to those that admit a sort of conscientious objection to such a presence, to those, finally, which on the contrary consider that such a presence is in no way opposed to constitutional freedoms. In reality, it would seem appropriate to approach the question not only via a dispassionate opposing of contrary principles but also a case-by-case one, in order to find a balanced, common sense solution. From this perspective, one should definitely exclude a general elimination of crucifixes which, all things aside, would pose enormous organizational problems, whilst anticipating the eventual sensitivities manifested by voters or electoral committee members.

c) The presence of the cross in courtrooms Decisions pertaining to the presence of the crucifix in courtrooms are almost exclusively confined to cases where a judge refuses to conduct a hearing in a room fitted with this symbol. As a result, they are not only less numerous but also less significant, as they are almost exclusively concerned with disciplinary and administrative matters that are of little interest to us here.

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Nevertheless, the ordinance of the disciplinary section of the Superior Magistracy Council of 23 November 2006, which proposes a coordinated and thorough investigation of the issue, deserves special attention. It first notes that the arguments raised by the indicted judge “are part of a much broader and sensitive problem, including the issue of displaying religious symbols in public places, hotly debated not only in Italy, but also in other European Union countries”. It then makes sure to describe the different solutions adopted in the regulations of those countries, and proposes a broad and detailed review of Italian jurisprudential orientations. Upon this basis, the judgment comes to the recognition that the “demand for excluding the crucifix from courtrooms” is “not manifestly unfounded”, particularly in light of the fact that the 1926 circular “appears to contrast with the principle of state secularism and with the guarantee of freedom of conscience and religion”.10 On the other hand, the judgment of the Supreme Court of Cassation, the sixth penal section, from 10 July 2009, no. 28482, indicates that: “At present, certain questions of primary importance for a just solution to the problem do not seem to have been properly confronted and resolved”. In particular, it notes that the 1926 circular, “bearing in mind the time period from which it dates, does not seem to be in line with the constitutional principle of state secularism and with the guarantee of freedom of conscience and religion, defended also at the constitutional level”. Moreover, the court does not deem it its duty to confront these problems, as they are not essential for a decision on any case brought before it. In these judgments, the decisive argument rests on the non-validity of administrative acts such as the circular of 1926. It is hard not to agree with this point. The most recent ruling in this matter is the decision of the Court of Cassation of 14 March 2011, no. 5924, which concerns, among other things, another interesting question: the possibility of the common presence of symbols of different religions in public spaces. On this subject, the court notes that: “In theory, the principle of secularism is compatible with a model … that allows every citizen to see symbols of their religion represented in public spaces”. To do this, however, “requires a discretionary choice by the legislator which, at present, does not exist”. Such a choice would presuppose “an evaluation of several aspects, starting with the feasibility and balance between the exercise of religious freedom 10

The indicted judge was nonetheless subsequently sanctioned for refusal to perform his duties.

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by the users of [a given] public space, and at the same time the exercise of negative religious freedom by atheists or non-believers, as well as balance between the guarantee of pluralism and the possible conflicts that may arise between different mutually-incompatible religious identities”. These considerations sound reasonable and acceptable.

d) Critical analysis Such a divergence of jurisprudential orientations requires a critical and exhaustive analysis, at least with regard to its most striking and significant aspects. To do this, the first question to consider is the validity of the regulations – which as such do not have statutory force – that provided for the display of the crucifix in the 1920s. There is a great number of decisions that consider them obsolete because they are incompatible with constitutional principles, particularly that of state secularism, recognized by the Constitutional Court as the “supreme principle” and “one of the aspects of the form of State defined by the Constitution”.11 At the same time those who support this view do not seem to be unanimous when it comes to taking it to its logical conclusion. While some consider that this incompatibility renders the presence of the cross and other religious symbols in public buildings inadmissible, others seem to think that such presence can be tolerated as long as those concerned are not contesting it. In each case the dominant jurisprudence has no doubt as to the continuing validity of the 1920s royal decrees, given the full compatibility of the presence of the cross with state secularism. In seeking to demonstrate this view, its proponents above all proceed to effect a form of “deconfessionalization” of the crucifix, recognizing it as a symbol not only of Catholicism but also of all other Christian denominations, and, at its base, of the gospel message and its teaching on human dignity, equality, justice, and liberty. It is on this basis that they conclude that the crucifix is a symbol of universally acknowledged values that have contributed in an essential, though by no means exclusive, way to the principles that inspire the modern state, including the principle of secularism. Moreover, they recall, almost on the margins, that, as recognized by the Concordat of 1984, art. 9, point 2: “The principles of Catholicism are part of the historic heritage of the Italian people”. By contrast, in keeping with the evolution

11

Judgment of 12 April 1989, no. 203.

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of the jurisprudence of the Constitutional Court,12 judges staunchly avoid appealing to the traditional argument that the Catholic religion pertains to the vast majority of citizens. The already-cited judgment of 22 May 2006 of the Regional Administrative Tribunal of Lombardy adopts a highly original approach to this question. Whilst denying the continued validity of regulations dating from the 1920s, it considers that the display of the crucifix is not opposed to the principle of secularism on condition that we are dealing with a deeply seated habit, shared by all those concerned. As for classrooms, it devolves all decisions to the educational establishments – an original and interesting ruling, though manifestly contradictory, insofar as on the one hand the question is said to belong to “the sphere of individual conscience and free choice”, and on the other that the collegiate bodies of different educational institutions are free to decide the matter for themselves. It is worth noting that on the whole, these discrepancies pose a problem much broader than the issue of the crucifix alone. In fact, a closer look reveals that they derive from different, if not outrightly opposed, interpretations of the principle of secularism. We must therefore ask whether it would not be more beneficial if the legislators or Constitutional Court formulated a more precise definition of this principle.

3. Reactions in Italy to the decision of 3 November 2009 that declares it illegitimate to display the cross in classrooms The object of this paper is not to provide a critical analysis of the decisions of the European Court of Human Rights with regard to the Lautsi v. Italy case. However, it is worth briefly considering the reactions in Italy to the declaration of illegitimacy of the presence of the cross in classrooms, formulated in the decision of 3 November 2009. For this purpose, we will analyse articles that appeared in the main Italian daily papers, namely Corriere della sera, La Repubblica and La Stampa. All three unanimously reported widespread opposition to the aforementioned decision, which, in many cases, took a violent turn. The Corriere in particular reported that no fewer than 84% of Italians were in favour of the

12 For a number of observations on this subject, see Feliciani, Giorgio. 2004. “La laïcité dans la jurisprudence constitutionnelle italienne.” Revue d’éthique et de Théologie morale. Le Supplément 228(March):53–60.

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presence of the cross in schools.13 According to La Stampa the reactions to the Strasbourg ruling could be considered “a popular revolt, threatening to alter the landscape: more crucifixes than satellite dishes”.14 Yet the general feeling was best captured by a cartoon published on the first page of the Corriere, showing Christ bent over under the weight of the cross, walking out of a school and saying: “They’ve voted for Barabbas again”. Representatives of the most important institutional bodies rushed to interpret this diffuse protest. The speaker of the Chamber of Deputies warned against “negation – proper to the most degenerate secularism – of the role Christianity plays in Italian society and identity”, while the speaker of the Senate expressed his “great bitterness”. The president of the Council, who happened at the same time to be the leader of Italy’s most important centre-right party, said the decision was “unacceptable” and made one “doubt Europe’s common sense”. The minister of the interior called it “a stupid act”, and the minister of institutional reforms (who was also the leader of the Lega party, a right-wing regionalist party) described it in terms that would be improper to restate. The minister of foreign affairs believed that “the Court had struck a fatal blow to the Europe of values and rights”. For his part, the minister of education forewarned that “no one, not even an ideologised European court, can erase our identity”, while the minister of defence gave reassurances that the crucifix would remain “in all public rooms”. It would, however, be a mistake to believe that opposition to the Strasbourg ruling was confined to centre-right parties; in fact, the vision met with consensus in other political circles as well. Suffice to recall the secretary of the Democratic Party, the country’s most important left-wing party, who observed that “an ancient tradition like that of the crucifix cannot offend anyone”, and spoke of “common sense defeated by law”. The leader of the Italia dei Valori party considered the crucifix “a sign of peace valid for those practicing all religions, and atheists”.15 As for the numerous and explicit position statements made by Church authorities, let it suffice to say that the aforementioned newspapers did not just report them, but gave them a prominent place. We might note the place accorded

13

Mannheimer, Renato. 2009. “Crocifisso nelle aule: l’84% è favorevole.” Corriere della sera, 8 November. 14 Brambilla, Michele. 2009. “In viaggio tra i crocifissi d’Italia.” La Stampa, 13 November. 15 For all of these citations, see the dailies quoted starting from 4 November 2009.

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to the declarations of the Cardinal Secretary of State16 or to interviews with the Prefect of the Congregation for Bishops17 and the President of the Pontifical Council for Christian Unity.18 With regard to statements of position by other religious denominations, we should particularly note the considerations, moderate in tone, offered by the chief rabbi of Rome. According to him, public buildings “should not bear symbols of a specific faith, yet one must not offend ingrained sensitivities and histories, and avoid a war over religion”.19 According to the national spokesman of the Union of Islamic Communities in Italy, “taking away the crucifix is not a sign of respect in our opinion, while it is an offence to the Italian tradition”.20 News reports on pronouncements in support of the ruling by political and social bodies were less numerous and more succinct. We can mention that of the secretary of the Communist Refoundation Party, who applauded the Court “for this sign of secularism”,21 and of the School and Constitution Committee, which demanded “an inventory of all the rooms where the crucifix [was] still found”.22 A recognized representative of the most important leftist union observed that “the question was not so much about the crucifix as about the confessional drift of public schools”.23 The Secular network of Bologna articulated a singular position: in a polemical tone, it demanded “displaying symbols that are most representative of Italian culture, such as the Riace bronzes, on the walls of public places”.24 The opinions of those who approved of the ruling crystallized and became clearer in the course of the lively debate that took place between experts and opinion-makers on the pages of three daily newspapers. The constitutional expert, Michele Ainis, recalled that there was no law that 16

Vecchi, Gian G. 2009. “Via i crocifissi? L’Europa ci lascia solo Halloween. Bertone: giusto il ricorso del governo.” Corriere della sera, 5 November, 28. 17 La Rocca, Orazio. 2009. “La condanna del cardinal Re. ‘Sentenza che lascia sgomenti’.” La Repubblica, 4 November, 4. 18 Vecchi, Gian G. 2009. “Il cardinale Kasper ai credenti: ‘Non dormite, alzate la voce’.” Corriere della sera, 4 November, 3. 19 Galeazzi, Giacomo. 2009. “Togliete i crocifissi dalle aule scolastiche.” La Stampa, 4 November, 2. 20 Griseri, Paolo. 2009. “Torna l’Italia di guelfi e ghibellini.” La Repubblica, 4 November, 3. 21 Galeazzi, Giacomo. 2009. 22 Griseri, Paolo. 2009. 23 Ibid. 24 Ibid.

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provided for the presence of the crucifix in public places.25 The jurist, Stefano Rodotà, considered that the ruling reinforced “the conditions of common life between different people, where … the parents’ educative rights take centre stage”.26 The political scientist, Gian Enrico Rusconi, exhorted “not to avoid the problem” but to talk about it “in a responsible and calm way among teachers, parents, and the students themselves”.27 Pero Bellini, a canon and Church law expert, offered a conciliatory position: religious symbols should be excluded from new buildings, but where they already exist, the matter should be dealt with case by case, taking into account the needs of the users.28 The position of the philosopher, Massimo Cacciari, seems altogether original: on the one hand, he recognized the crucifix as “a sign of extraordinary welcome and giving of oneself”, and therefore “a secular symbol”, and on the other found it necessary to remove crosses from schools where they had been reduced to a completely misunderstood decoration.29 Opinions critical of the ruling were more numerous and voiced by individuals just as influential. The theologian, Vito Mancuso, known for his extreme non-conformity, cautioned that: “Law cannot assert itself abstractly, ignoring the contexts and traditions of nations”.30 The historian, Alberto Melloni, similarly observed: “It seems appalling to remove the crucifix from where it has been for centuries without causing harm” and “visible consequences”.31 Piero Ostellino, a columnist for Corriere, thought that: “The removal of the crucifix from public places [did] not offend religion … but common sense”.32 In a similar vein but from a 25

Ainis, Michele. 2009. “Nessuna legge lo prevede.” La Stampa, 4 November, 1. Rodotà, Stefano. 2009. “La battaglia su un simbolo.” La Repubblica, 4 November, 1, see also Rodotà, Stefano. 2009. “La guerra identitaria del crocifisso.” La Repubblica, 17 November, 32. 27 Rusconi, Gian E. 2009. “Crocifisso braccio di ferro inutile.” La Stampa, 5 November, 33. 28 Bellini, Piero. 2009. “Togliamolo ma solo negli istituti nuovi.” La Repubblica, 4 November, 2. 29 Brambilla, Carlo. 2009. “Rappresenta la laicità di Gesù. L’intervista.” La Repubblica, 5 November, 1. 30 Mancuso, Vito. 2009. “Quanto vale quel simbolo.” La Repubblica, 5 November, 1. 31 Melloni, Alberto. 2009. “Il crocifisso e la caccia ai simboli che provoca soltanto danni.” Corriere della sera, 4 November, 1. 32 Ostellino, Piero. 2009. “Quando si offende il senso commune.” Corriere della sera, 7 November, 57. 26

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different perspective, the German literature scholar and publicist Claudio Magris stated that the ruling was “a backward step in the continual struggle for secularism, which is fundamental, though it can only be effective … on the condition of not overrunning common sense”.33 The view voiced by sociologist Francesco Alberoni seems particularly severe, notably on account of its general dimension; he denounced the birth of a “Eurocratic totalitarianism” which “brandishes its utopian promises, destroys the institutions of the past, and imposes its power”.34 We can therefore conclude that, by a singular heterogeneity of ends, the decision of the European Court of Human Rights of 3 November 2011 aroused interest in the subject, even though it was one full of contrast, and brought to light, as had never been done before, all the reasons one could advance in favour of the presence of the cross in public spaces. In the end, the later decision of the Grand Chamber from 18 March 2011 consolidated the legal foundation of that presence.

References Ainis, Michele. “Nessuna legge lo prevede.” La Stampa, 4 November 2009, 1. Alberoni, Francesco. “La storia, i simboli e i divieti. Se l’utopia cancella la libertà.” Corriere della sera, 9 November 2009, 1. Bellini, Piero. “Togliamolo ma solo negli istituti nuovi.” La Repubblica, 4 November 2009, 2. Brambilla, Carlo. “Rappresenta la laicità di Gesù. L’intervista.” La Repubblica, 5 November 2009, 1. Brambilla, Michele. “In viaggio tra i crocifissi d’Italia.” La Stampa, 13 November 2009, 10. Cardia, Carlo. Identità religiosa e culturale europea: La questione del crocifisso. Turin: Umberto Allemandi, 2010. Feliciani, Giorgio. “La laïcité dans la jurisprudence constitutionnelle italienne.” Revue d’éthique et de Théologie morale. Le Supplément 228/March(2004):53-60. Galeazzi, Giacomo. “Togliete i crocifissi dalle aule scolastiche.” La Stampa, 4 November 2009, 2. 33

Magris, Claudio. 2009. “Crocifisso, simbolo di sofferenza che non può offendere nessuno.” Corriere della sera, 7 November, 10. 34 Alberoni, Francesco. 2009. “La storia, i simboli e i divieti. Se l’utopia cancella la libertà.” Corriere della sera, 9 November, 1.

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Griseri, Paolo. “Torna l’Italia di guelfi e ghibellini.” La Repubblica, 4 November 2009, 3. La Rocca, Orazio. “La condanna del cardinal Re. "Sentenza che lascia sgomenti".” La Repubblica, 4 November 2009, 4. Magris, Claudio. “Crocifisso, simbolo di sofferenza che non può offendere nessuno.” Corriere della sera, 7 November 2009, 10. Mancuso, Vito. “Quanto vale quel simbolo.” La Repubblica, 5 November 2009, 1. Mannheimer, Renato. “Crocifisso nelle aule: l’84% è favorevole.” Corriere della sera, 8 November 2009, 8. Melloni, Alberto. “Il Crocifisso e la Caccia ai Simboli che provoca soltanto Danni.” Corriere della sera, 4 November 2009, 1 Ostellino, Piero. “Quando si offende il senso commune.” Corriere della sera, 7 November 2009, 57. Randazzo, Barbara. Diverse e eguali: le confessioni religiose davanti alla legge. Milan: Giuffrè, 2008. Rodotà, Stefano. “La battaglia su un simbolo.” La Repubblica, 4 November 2009, 1. —. “La guerra identitaria del crocifisso.” La Repubblica, 17 November 2009, 32. Rusconi, Gian E. “Crocifisso braccio di ferro inutile.” La Stampa, 5 November 2009, 33. Vecchi, Gian G. “Il cardinale Kasper ai credenti: ‘Non dormite, alzate la voce’.” Corriere della sera, 4 November 2009, 3. —. “Via i crocifissi? L’Europa ci lascia solo Halloween. Bertone: giusto il ricorso del governo.” Corriere della sera, 5 November 2009, 28.

CHAPTER NINE THE PUBLIC PRESENCE OF THE CROSS: LITHUANIAN PERSPECTIVE KAZIMIERAS MEILIUS AND JONAS JUŠKEVIýIUS

Introduction The present paper aims to analyse the legal environment for the display of religious symbols in public spaces in Lithuania. Even though such a display in state or municipal institutions is not commonplace and at the same time does not raise political or legal entanglements, Lithuania along with nine other countries intervened in the Lautsi case as amicus curiae, and submitted written observations to the Grand Chamber of the European Court of Human Rights (ECHR), inviting it to reverse the first judgment.1 Among the reasons that prompted the Lithuanian move was a concern as to whether the logical outcome of the Second Section’s judgment2 (known as the Lautsi 1 judgment) could lead to the removal of religious symbols from the entire public space.3 The Section’s argument that the State should refrain from imposing beliefs on institutions where individuals are dependent on it logically presupposes that the said State’s duty should be extended to all other public places. Moreover, the Lithuanian government officially drew in its observations a parallel between the Lautsi case and 1

The other nine countries included Armenia, Bulgaria, Cyprus, Greece, Malta, Monaco, Romania, Russian Federation, and San-Marino. 2 European Court of Human Rights, Lautsi v. Italy, App. No. 30814/06 (3 November 2009). 3 “Lietuva Ƴsitrauks Ƴ Nukryžiuotojo bylą treþiosios šalies teisơmis.” 2010. [Lithuania to intervene as a third part in the case of Crucifix] Lietuvos rytas. March 4. http://www.lrytas.lt/-12676957191267297652-lietuva-%C4%AFsitrauks%C4%AF-nukry%C5%BEiuotojo-byl%C4%85-tre%C4%8Diosios%C5%A1alies-teis%C4%97mis.htm (accessed June 28, 2016).

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the anti-religious policy Lithuania suffered under communism, which was manifested by, among other things, the prohibition of religious symbols.4 It also held that the use of crucifixes in public spaces in Catholic countries reflects the European Christian tradition and should not be regarded as a restriction on the freedom of religion. Notwithstanding the apparently calm public attitude, the issue of religious symbols in the public sphere is not completely extraneous to the public debate. For example, when the Foreign Affairs Committee of the Lithuanian Parliament approved the Government’s position to intervene in the Lautsi case,5 a minority of the Committee issued a concurrent opinion according to which Lithuania’s intervention was considered unconstitutional and so the Italian efforts to find allies in other EU Member States were assessed as applying pressure on ECHR.6 Another example that created media discussions is related to the action of activists from the controversial Femen movement, who cut down a cross in central Kyiv, Ukraine, in a gesture of solidarity with the members of the Russian feminist performance-art group following their religious hatred “punk prayer” at a Moscow cathedral church.7 4

Puppinck, Grégor. 2012. “The Case of Lautsi v. Italy: A Synthesis.” Brigham Young University Law Review 2012:873. 5 Lietuvos Respublikos Seimas. Užsienio reikalǐ komiteto pareiškimas Dơl Europos žmogaus teisiǐ teismo sprendimo dơl nukryžiuotojo atvaizdo Italijos mokyklose (2010 m. sausio 13 d.). http://www3.lrs.lt/pls/inter/w5_show?p_r=7116&p_k=1(accessed 28 June, 2016). 6 Seimo Užsienio reikalǐ komiteto nariǐ V. P. Andriukaiþio, J. Karoso, A. Valinsko, R. Žilinsko, A. Šedžiaus atskiroji nuomonơ dơl URK pareiškimo Dơl Europos žmogaus teisiǐ teismo sprendimo dơl nukryžiuotojo atvaizdo Italijos mokyklose. http://elta.lt/zinute_pr.php?inf_id=1139588 (accessed 28 June, 2016). Paradoxically, that the chief author of the minority opinion is Vytenis Povilas Andriukaitis, the current EU Commissioner for Health and Consumer Policy, who portrays himself publicly as a practising Catholic. 7 The debate presented polar views. See for example Saulius, Arlauskas. 2012. “Kryžius, laisvơ ir vergija” [The Cross, freedom and slavery]. Delfi, September 9. http://www.delfi.lt/news/ringas/lit/sarlauskas-kryzius-laisve-irvergija.d?id=59446657 (accessed 28 June 2016), where the author draws attention to the fact that the Soviets destroyed churches and crosses not in order to liberate a working class but quite the opposite – to subjugate their minds to a new ideology. For a contrary position, see Vasiliauskaitơ, Nida. 2012. “Nupjauti kryžiǐ ar gyventi jo šešơlyje” [To cut the cross or to live in the shadow of it]. Delfi, August 20. http://www.delfi.lt/news/ringas/lit/nvasiliauskaite-nupjauti-kryziu-ar-gyventi-joseselyje.d?id=59345103 (accessed June 28, 2016), where the author of the article claims that the cross on the Cathedral symbolically owns the central avenue of the capital city within its trajectory up to the Parliament House and at the same time demonstrates directly the Church’s political power.

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In spite of the apparent indifference to the issue, it is worth ascertaining the legitimacy of the assumptions behind the display of religious symbols in public spaces. The present paper presents the first attempt in Lithuanian legal literature to analyse an issue of this kind. For this purpose it is indispensable to analyse the constitutional principles that govern the relationship between Church and State in Lithuania. Another important question is what constitutes the content of such constitutional principles as secularity, the separation of State and Church and traditional religions, which in turn constitute a specific system of relations between the Church and State, while at the same time determining the legitimacy of the presence of religious symbols in public spaces. The Grand Chamber’s judgment in the Lautsi case8 (Lautsi 2) in that respect serves as an instructive example: ECHR refused to interfere in the constitutional regulation of the Member States regarding Church-State relations, and consequently to convert the constitutional principles regulating that field into human rights principles. The constitutional doctrines of each democratic state are, although sharing many common principles and concepts, nevertheless unique due to their unique historical, political, demographic, cultural, and religious contexts. Such a fact was recognized at the supranational level when Declaration no. 11 on the status of churches and non-confessional organizations to the Amsterdam Treaty of 1997 was adopted, which was later amended and incorporated into the Lisbon Treaty of 2007. It declares that “[t]he Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States”, thus preventing EU institutions from interfering with the particular arrangements of their Church-State relations.

Historical outline of religious freedom in Lithuania According to the 2011 population census, the predominant religion is Roman Catholicism, with about 77 per cent of the population. 6 per cent of the population do not affiliate themselves with any religion, while another 10 per cent prefer not to indicate their confessional membership.9

8

European Court of Human Rights, Lautsi v. Italy, App. No. 30814/06 (18 March 2011, Grand Chamber). 9 Department of Statistics. 2013. Gyventojai pagal tautybĊ, gimtąją kalbą ir tikybą [Population by Ethnicity, Native Language, and Faith]. https://osp.stat.gov.lt/documents/10180/217110/Gyv_kalba_tikyba.pdf/1d9dac9a3d45-4798-93f5-941fed00503f (accessed March 15, 2013).

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Notwithstanding the current quite homogeneous religious composition of the population, the freedom of religion has a long historical tradition in Lithuania.10 For example, the First Lithuanian Statute (1529) granted the same legal treatment to both the Catholic and the Orthodox populations, while the Third Lithuanian Statute (1588) included the declaration Pax inter dissidentes de religione of the so-called Warsaw Confederation (28 January 1573), which pronounced religious tolerance for all Christian denominations. Article 1 of the Constitution of the Polish-Lithuanian Commonwealth of 3 May 179111 combined the traditional recognition of the privileged position held by the “Holy Roman Catholic Faith” with tolerance as regards other creeds.12 After the partition of the PolishLithuanian Commonwealth in 1795, the Russian imperial authorities adopted a harsh restrictive policy towards the dominant Catholic Church in Lithuania: for example, it was prohibited for Catholics to independently appoint their bishops or to publish religious literature. After the uprising of 1863, the properties of the Catholic Church were confiscated; the movement of Catholic clergy outside their parishes was restricted and subject to the singular permissions of the authorities, etc.13 The Byzantine rite Catholic (Uniate) Church was dissolved in 1839, its property being transferred to

10

Ruškytơ, Ramutơ. 2008. “Legal aspects of religious freedom.” In Office of the Government of the Republic of Slovenia for Religious Communities/Bureau du Gouvernement de la République de Slovénie des communautés religièuses. Legal aspects of religious freedom/Les aspectes juridiques de la liberté confessionelle. International Conference, 15-18 September 2008, 149. Ljubljana. 11 Art. I. THE DOMINANT NATIONAL RELIGION “The Holy Roman Catholic Faith, with all its privileges and immunities, shall be the dominant national religion. The changing of it to any other faith is forbidden under penalties of apostasy: but as the same religion commands us to love our neighbours, we therefore owe to all people of whatever persuasion, peace in matters of faith, and the protection of the government; consequently we assure, to all persuasions and religions, freedom and liberty, according to the laws of the country, and in all dominions of the Republic.” See the English translation of the Constitution in Konstytucja 3 maja 1791 – 1791 gegužơs 3-sios Konstitucija – The Constitution of May 3, 1791, 199-222. Warszawa: Wydawnictwo Sejmowe, 2001. 12 Bardach, Juliusz. 2001. “The Third May Constitution and the Mutual Guarantee of Two Nations of 1791.” In Konstytucja 3 maja 1791 – 1791 gegužơs 3-sios Konstitucija – The Constitution of May 3, 1791, 177-9. Warszawa: Wydawnictwo Sejmowe, 2001. 13 Vaiþekonis, Pranas. 1999. Katalikǐ dvasininkijos juridinơ padơtis XIX a. Lietuvoje [Legal position of Lithuanian Catholic clergy in the XIX century]. Vilnius: Atkula.

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the state Orthodox Church, with its parishes reverting to Orthodoxy.14 In 1905 the imperial government of Russia issued an ukaz on religious toleration, which took religious freedom a significant step further: it was permissible for those officially registered as Orthodox to change their religion to another (Christian) denomination.15 After the restoration of independence in 1918, Lithuania followed its legal tradition and at the same time integrated modern guarantees of religious freedom. The 1922 Constitution of the State of Lithuania proclaimed that: “All citizens of Lithuania, man and woman alike, shall be equal before the law. No special privileges may be granted, or rights diminished, because of one’s origin, faith, or nationality” (Art. 10). The loss of statehood in 1940 radically affected religious life.16 Faithbased and other charitable organizations were closed down, except for freethinkers’ organizations: for the latter Soviet State had envisaged a transitional role for the future official introduction of an atheistic ideology.17 Stalin’s Constitution (1936) provided that: “[F]reedom of religious worship and freedom of antireligious propaganda is recognized for all citizens” (Art. 124); however, in practice, religious freedom was virtually annihilated by aggressive state-sponsored atheistic propaganda and by secret instructions18 aimed at limiting or destroying the organizational aspects of religious life. 14

La Rocca, Francesco. 2012. “At the Crossroads: The History of the GreekCatholic Church in Lithuania.” Occasional Papers on Religion in Eastern Europe vol. 31: Iss. 1, Article 1; http://digitalcommons.georgefox.edu/ree/vol31/iss1/1 (accessed January 10, 2016). 15 It was particularly important for ex-Uniate population who partly converted to Catholicism. See Bnjþys, Petras, 1936. “Rusai staþiatikiai ir sentikiai Lietuvoje.” Athenaeum VII:65-136. 16 Misinjnas, Romualdas J., and Reino Taagepera, 1991. The Baltic States. Years of Dependence 1940-1991. Berkeley: University of California Press. 17 Meilius, Kazimieras. 2010. “Švenþiant Lietuvos vardo paminơjimą: krikšþioniškos, pagoniškos ir ateistinơs pamokos” [Celebrating commemoration of Lithuania: Christian, pagan and atheistic lessons]. In Regnum est. Liber Amicorum Vytautui Landsbergiui, edited by Gediminas Mesonis, 427-455. Vilnius: Mykolo Romerio Universiteto Leidybos Centras. For a detailed account on the relationship between free-thinker organizations and Communist party in inter-war Lithuania, see Daulius, Juozas. 1936. Laisvamanybơ Lietuvoje [Free-thinking in Lithuania], Kaunas: Spindulys. 18 Secret instructions for executive authorities were collected in separate volumes under the title Zakonodatel’stvo o religioznykh kul’takh: Sbornik materialov i dokumentov dlya sluzhebnogo pol’zovaniya [Legislation on religious cults: The collection of materials and documents for internal use], 2nd amended edition,

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In 1990, Lithuania was able to restore its legal tradition of religious tolerance. Religious freedom is now broadly regulated at the constitutional level as distinct from other Baltic counterparts with whom Lithuania shares a common modern history: Estonia19 and Latvia.20 In that respect, the current Constitution of Lithuania21 follows the path of the pre-war Constitutions of 1922, 1928, and 1938, all of which are characterized by quite extensive regulation of religious freedom.22 Two such articles, Art. Moscow: Yuridicheskaya literatura, 1971; reprint: New York: Chalidze Publications, 1981. For a detailed account on these secret instructions that were not reflected in the formal legislation, see Codevilla, Giovanni. 2008. “La rilevanza delle leggi non scritte e dei provvedimenti extragiudiziari nelle relazioni tra Stato e Chiesa in Unione Sovietica negli anni Venti e Trenta.” In Libertà di coscienza e diversità di appartenenza religiosa nell’Est Europa, edited by Giovanni Cimbalo and Federica Botti, 217-242. Bologna: Bononia University Press. 19 For example, Art. 40 of the Estonian Constitution states that: “All persons shall have freedom of conscience, religion, and thought. All persons may freely belong to churches or religious associations. There shall be no state church. Every person shall have the freedom to practice his or her religion, either alone or in community with others and in public or in private, unless this endangers public order, health, or morals.” The Article contains freedoms and limitations to them and the wording is similar to those included in the European Convention on Human Rights or the International Covenant on Civil and Political Rights. The Estonian Constitution is the only Baltic constitution which explicitly recognises collective human rights, i.e. Art. 9(2) states that: “[T]he rights, liberties and duties listed in the Constitution, shall extend to legal persons, to the extent that this is in accordance with the general aims of the legal person, and with the nature of such rights, liberties, and duties”, see Juškeviþius, Jonas. 2008. “Religious freedom in the Baltic States.” In Libertà di coscienza e diversità di appartenenza religiosa nell’Est Europa, edited by Giovanni Cimbalo and Federica Botti, 181-2. Bologna: Bononia University Press. 20 According to Art. 99 of the Constitution of the Republic of Latvia (Satversme), “everyone has the right to freedom of thought, conscience and religion. The Church shall be separated from the State.” The Constitutional Law on Rights and Obligations of the Person and Citizen explains the content of human rights proclaimed in the Satversme. Among others, Art. 35 of the Law includes a provision that “religious or ideological causes shall not release anybody from the obligations to the state and the necessity to observe the laws.” See Juškeviþius, Jonas. 2008, 182-3. 21 Constitution of the Republic of Lithuania. Valstybơs žinios [Official Gazette]. 1992, No. 33-1014. 22 The final text of the Constitution of 1992 represents itself as a compromise between three drafts produced by the former Communist party, center-right Sąjnjdis and Liberal party. Former communists advocated soviet style separation of State and Church, while Sąjnjdis and Liberals advocated the restoration of the prominent

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26 (Freedom of thought, conscience, and religion)23 and Art. 43 (Churches and religious organizations)24 are wholly and Art. 40 (Teaching and education)25 is partially dedicated to religious freedom in the Constitution

constitutional status to the Roman Catholic Church. For example, the Liberals included provisions of the 1938 Constitution concerning State-Church relations almost verbatim in their draft. The final text of the 1992 Constitution ultimately contained the centre-right concept of the State-Church relationship; reproducing the provisions of the 1938 Constitution with some modifications, see Vaiþaitis, Vaidotas. 2007. “The Republic of Lithuania.” In Constitutional Law of 10 EU Member States. The 2004 Enlargement, edited by Constantijn Kortmann and others, 58-9. Deventer: Kluwer 2006. 23 “Freedom of thought, conscience and religion shall not be restricted. Each human being shall have the right to freely choose any religion or belief and, either alone or with others, in private or in public, to profess his religion, to perform religious practices, to practice, and to teach his belief. No one may compel another person or be compelled to choose or profess any religion or belief. Freedom of a human being to profess and spread his religion or belief may not be limited otherwise than by law and only when this is necessary to guarantee the security of society, public order, the health and morals of the people, as well as other basic rights and freedoms of the person. Parents and guardians shall, without restrictions, take care of the religious and moral education of their children and wards according to their own convictions.” 24 “The State shall recognise the churches and religious organizations that are traditional in Lithuania, whereas other churches and religious organizations shall be recognised provided that they have support in society and their teaching and practices are not in conflict with the law and public morals. The churches and religious organizations recognised by the State shall have the rights of a legal person. Churches and religious organizations shall be free to proclaim their teaching, perform their practices, and have houses of prayer, charity establishments, and schools for the training of the clergy. Churches and religious organizations shall conduct their affairs freely according to their canons and statutes. The status of churches and other religious organizations in the State shall be established by agreement or by law. The teaching proclaimed by churches and religious organizations, other religious activities and houses of prayer may not be used for purposes that are in conflict with the Constitution and laws. There shall not be a State religion in Lithuania.” 25 “State and municipal establishments of teaching and education shall be secular. At the request of parents, they shall provide religious instruction. Non-state establishments of teaching and education may be founded according to the procedure established by law. […]”

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of the Republic of Lithuania. Constitutional provisions are recapitulated and developed further in the Law on Religious Communities and Associations.26

Principles of separateness and secularity These constitutional principles are of high importance and their analysis should provide some important insights when dealing with the legal regime concerning the public display of religious symbols. Though the founders of the Lithuanian Constitution envisioned Lithuania as a democratic secular state, the Constitution does not define directly the State as “secular”, nor does it make any reference to the principle of separation of religion and the State. Lithuania, like other post-communist countries, avoided employing in its constitutional texts any separationist wording. The Constitution instead provides only that Lithuania has no state religion and that churches and religious organizations shall function freely according to their canons and statutes (Art. 43), while the term “secular” appears only in Article 40 when it states that: “[S]tate and municipal establishments of teaching and education shall be secular.”27 From these constitutional provisions the constitutional principle of the separateness of Church and State, which is “the basis of the secularity of the State of Lithuania, its institutions and their activities,” was drawn by the ruling of the Constitutional Court in 2000.28 They expressly defined the principle of separateness “along with the freedom of convictions, thought, religion, and conscience, which is established in the Constitution, together with the constitutional principle of equality of all persons and other constitutional provisions, determining the neutrality of the State in matters of world view and religion”. The Constitutional Court by using the term “separateness”, sought to highlight the difference between the actual constitutional regime and the traditional laicist concept of separation of Church and State.29 Although the separateness is construed as the non26 Religiniǐ bendruomeniǐ ir bendrijǐ Ƴstatymas [Law on Religious Associations and Communities]. Valstybơs žinios [Official Gazette]. 1995, No. 89-1985. 27 The transitional Provisional Basic Law, which preceded the present Constitution, defined the scope of secularity in broader terms, stating that: “State institutions, its teaching and education establishments shall be secular” (Art. 31). 28 Ruling of the Constitutional Court of the Republic of Lithuania of 13 June 2000. Valstybơs žinios [Official Gazette]. 2000, No. 49-1424. 29 Mesonis, Gediminas. 2008. “Kai kurie konstituciniai valstybơs ir bažnyþios santykiǐ aspektai” [On some constitutional aspects of State-Church relationship]. Konstitucinơ jurisprudencija 2(10):110-133 and 115.

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interference of churches and religious organizations with the activities of the State and of its institutions and vice versa, the other constitutional provision that “the status of churches and other religious organizations in the State shall be established by agreement or by law” in conjunction with other provisions implies rather a co-operational regime in the area of Church-State relations.30 This conclusion could be supported by the example of the Catholic Church, which took the opportunity to define its status by agreement: Lithuania and the Holy See concluded three international agreements in 2000. Specifically, the Agreement Concerning Juridical Aspects of the Relations between the Catholic Church and the State states that the “competent authorities of the Republic of Lithuania and the competent authorities of the Catholic Church shall co-operate in ways acceptable to both Parties on educational, cultural, family, and social issues and, in particular, in the field of protecting public morals and human dignity” [Art. 1(2)]. As was already mentioned, the Constitution expressly establishes the principle of secularism in the context of state and local educational institutions. However, the corollary principle of the secularity of the State is deduced only implicitly, even though the Court ambiguously assimilated it with neutrality of the State.31 Unfortunately, the Court did not proceed further to clarify the concept of secularity. For example, the Constitutional Court in its Decision of 2007 limited itself to recapitulating briefly its position outlined in the ruling of 2000 by stating that the “secular character of the State confirmed in the Constitution presupposes the noninterference of the State in the internal life of churches and religious organizations”. It is obvious that the Lithuanian constitutional doctrine on the principle of secularity is still underdeveloped, and this can be explained by the cautious approach adopted by interpreters of the Constitution: on the one hand, prior to the Lautsi 2 judgement the mainstream human rights doctrine often indiscriminately associated secularism with pluralism and democracy, on the other hand, our historical experience proves that the secularism of the Soviet regime had nothing to do with these values. The Lautsi 2 judgement in this respect could potentially be of great importance for the future development of the Lithuanian constitutional doctrine, as it signals a turning point: secularism does not have the value

30

For the same opinion see Ruškytơ, Ramutơ. 2008, 171. In the next phrase of the same ruling the Court seems to distinguish two terms when it warns “that the neutrality and secularity of the State may not serve as the grounds to discriminate the believers, to restrict their rights and freedoms”.

31

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of a general principle in the Council of Europe human rights system;32 moreover, secularism is “officially” downgraded to a “view” or a “philosophical conviction” in the same way as other convictions and beliefs worthy of respect within the meaning of Article 9 of the European Convention of Human Rights. Such a doctrinal shift will certainly contribute to the reappraisal of the concept of secularism where constitutional questions need to be delineated from human rights issues, i.e. the distinction should be made between secularism as a constitutional principle and secularism as a personal conviction or worldview that does not refer to the intuitive and spiritual as being above the empirical and material. However, the latter task is complicated. Philosophically, secularism stems from epistemological relativism, i.e. from scepticism of the idea that there is an absolute truth. From the point of view of political theory, however, secularism could be seen as an Enlightenment project that stems from the belief that a secular conscience represents an indispensable element of social cohesion.33 In other words, while the individual conception of secularism opposes itself to religious worldviews, the societal conception of secularism attempts to provide an answer to religious fragmentation in pluralistic societies.34 Influential liberal political philosopher John Rawls35 insists that liberal democracy, as it presently occurs in most western states, has to adhere to the distinction between the public forum, in which only secular, rationally constructed arguments are allowed, and the private sphere, where religious beliefs may be expressed in a language which would be otherwise inaccessible in the public space. A basic condition for the successful functioning of a democratic society is 32

Or, as Grégor Puppinck asserts, that this principle is “extraneous to the Convention system”, see Puppinck, Grégor. 2012, 873. 33 Judge Andras Sajó from Hungary, the member of the Chamber who decided Lautsi 1 case, is convinced that the secular state, in order to ensure the quality of its all citizens, should strictly delineate between the realm of Faith and that of Reason, thus entrusting its decisions and policies to the dictates of the realm of Reason, which are thus accessible to all, not only to the members of a particular faith; Sajó, András. 2008-2009. “Constitutionalism and Secularism: The Need for Public Reason.” Cardozo Law Review 30:2401-29. Following this reasoning, the principle of secularism coincides with the principle of democracy. However, this opinion would only be conceivable from a philosophical point of view, provided democracy is considered necessarily liberal by nature, as it is presently in most western states, see Puppinck, Grégor. 2012, 873. 34 Haarscher, Guy. 2008-2009. “Religious Revival and Pseudo-secularism.” Cardozo Law Review 30:2799-800. 35 Rawls, John. 1993. Political Liberalism. New York: Columbia University Press.

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a translation of the beliefs of religious citizens into secular language. Rawls’ requirement of translation is much more lenient compared with Leninist thesis, according to which the religious person is incapable in principle of developing a secular rational worldview;36 however, it could be seen as discriminatory as well. For example, religious citizens are required to divide their identity into the private, religiously motivated self and the public self whose acts are based primarily on public reasoning, whereby a person’s public reasoning can even run counter to the same person’s privately held beliefs about proper actions.37 In the latter sense, favouring secularism, even in its contemporary reconfigured version, would intrinsically mean an endorsement of a particular political position, which is not neutral, though that does not necessarily contrast with the democratic values of a modern state, even if it was adopted at the expense of dominating religious worldviews. ECHR never before explained the concept of secularism, though it accepted, for example, the Turkish conception of secularism, which entailed banning religious symbols from the entire public sphere to be consistent with the values underpinning the Convention.38 It recognized secularism as one of the fundamental principles of the Turkish State, which is “in harmony with the rule of law and respect for human rights”. Consequently, secularism cannot claim to embrace neutrality, and ECHR could not accept it as the default neutral stance for a modern pluralistic society. In this sense, a secular state is not more neutral than a denominational state. This position is also supported by the fact that when the Convention was drafted, many of its signatories designated an official religion or exclusively referred to its majority religion.39 To a certain extent this is still the case today and, as

36

ýertikovas, Aleksejus, and Viktoras Komarovas, 1978. Pokalbiai apie religiją ir ateizmą [Conversations on religion and atheism]. Kaunas: Šviesa. 37 For a detailed review of liberal critique, see Kratochvil, Petr. 2009. “The Religion-Politics Nexus in East-Central Europe: Church in Public Sphere of PostSecular Societies.” Perspectives 2:119-138. 38 See Refah Partisi (The Welfare Party) and Others v. Turkey, Applications 41340/98-41342/98-41343/98-41344/98 (13 February 2003); Leyla ùahin v. Turkey, Application 44774/98 (10 November 2005). However, the position of the Court in both Turkish cases has been criticized (the most prominent critique comes from Judge Françoise Tulkens in her dissenting opinion in the ùahin case) for its general and abstract appeal to secularism, and at the same time doubts have been raised as to whether the ban on wearing headscarves was proportionate. 39 Puppinck, Grégor. 2012, 896.

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Judge Bonello concluded in his concurring opinion, “[i]n Europe, secularism is optional, freedom of religion is not”.40 Thus the ECHR did not place secularism at the level of an over-arching meta-normative constitutional principle.41 In dealing with a multiplicity of constitutional orders, it becomes obvious that no uniform understanding of secularism could be reached. Even the most ardent proponents of constitutional secularism reluctantly admit that secularism is a “somewhat unfortunate term for use in constitutional theory” whose “inconclusiveness […] can be demonstrated by reference to innumerable concessions to religions and religious institutions in many areas of life in most countries”.42 Post-Lautsi debates on constitutional secularism seem to arrive at conceptual confusion: symptomatically voices arise for the renewal of the concept of secularism, that is to purify it from ideology, i.e. “aggressive secularism” or laïcité interpreted ideologically should be distinguished from “inclusive secularism”, the aim of which is to treat religious and non-religious citizens in a way that make them both feel part of the political society.43 Within such a doctrinal context, it is difficult to predict the way the Lithuanian Constitutional Court will develop the constitutional concept of secularity. Whatever doctrinal innovations will prevail in Europe in the future, there are reasonable grounds, including those enshrined in the Constitution, to assume that the jurisprudential doctrine will adopt a more neutral stance.

The concept of traditional religions The role of religion in the forming of the Lithuanian heritage is indisputable. Specifically, the Catholic Church possesses an immense moral authority for its contributions to Lithuanian history and culture and its consequent links with the very identity of the nation. Moreover, the Catholic Church played a special role during the communist regime, and used its moral power to oppose this regime. It is not surprising that Art. 43 40

European Court of Human Rights, Lautsi and Others v. Italy (18 March 2011), para. 2.5 (Bonello, concurring). 41 McGoldrick, Dominic. 2011. “Religion in European Public Square and in European Public Life – Crucifixes in the Classroom?” Human Rights Law Review 11:451-502 and 482. Accessed January 10, 2016. doi: 10.1093/hrlr/ngr024 42 Sajó, Andras. 2014. “Preliminaries to a Concept of Constitutional Secularism.” In Constitutional Secularism in the Age of Religious Revival, edited by Susanna Mancini and Michel Rosenfeld, 54-78 and 56-7. Oxford: OUP. 43 Zucca, Lorenzo. 2012. A Secular Europe. Law and Religion in the European Constitutional Landscape. Oxford: OUP.

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of the Lithuanian Constitution distinguished “traditional” and “other churches and religious organizations”. According to the official doctrine, the constitutional provision that the State shall recognise traditional churches and religious organizations presupposes the fact that the legislator may, in certain cases, name certain religious organizations as traditional in Lithuania. The constitutional differentiation of religions or religious organizations is not particularly exceptional in modern constitutional doctrine: some states such as the United Kingdom, Denmark, or Liechtenstein established state Churches, while others such as Greece or Bulgaria referred to its majority (respectively “dominating” and “traditional”) religion. The Law on Religious Communities and Associations develops the said constitutional provision, and as a distinctive feature contains a three-tier differentiation of religious organizations: traditional religious organizations, recognized religious organizations and other religious organizations.44 The law specifies nine traditional religious communities and associations45 (the notion of “church” is avoided in the law), “which are part of the historical, spiritual and social heritage of Lithuania”: Roman Catholic, Greek Rite Catholic, Evangelical Lutheran, Evangelical Reformed, Russian Orthodox, Old Believers, Judaist, Sunni Muslim, and Karaites. The list of traditional religions is primarily based on historical-legal criteria and reflects their impact on the development of Lithuanian society since the Grand Duchy of Lithuania, of which the modern Lithuanian State is a successor.46 Such 44 While there is no legal impediment to “another religious organization” being granted the status of a “recognized religious organization”, this may only occur following the elapse of a period of no less than 25 years from the date of their initial registration. 45 In structural terms the Law (Art. 4) distinguishes two types of religious organizations in Lithuania: religious communities which are comprised of a group of individuals seeking to implement the aims of the same religion (these could represent also a local subdivision of a corresponding religious association), and religious associations which “are unions of churches and uniform religious organizations, namely, communities striving to implement the aims of the same religion” (an association comprises no fewer than two religious communities who are subject to common leadership). 46 Unlike the superficial assertions claiming that the list of traditional religions is based exclusively on mere historical criteria, i.e. the religious composition of Grand Duchy, see Vaišvilaitơ, Irena. 2001. “Tradiciniǐ ir kitǐ religiniǐ bendruomeniǐ perskyra Lietuvoje.” In Religija ir teisơ pilietinơje visuomenơje. 127-128. Vilnius: Justicija. We are of the opinion that traditional religions enlisted in the Law on Religious Communities and Associations first of all reflect their legal continuity in terms of acquired rights and privileges.

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an impact of the said traditional religious communities correlates well with their legal continuity in terms of acquired rights, and to some extent of privileges that survived significant political changes over the history of the State. If their status or acquired rights were impaired during the imperial Russian or Soviet regimes, the restored Lithuanian State on both occasions (in 1918 and 1990) introduced restitution or compensation regulations.47 The detailed differentiation of religious organizations in the said law was upheld by the Constitutional Court in its ruling of 2000. The Court clarified that the constitutional norm providing foundations for traditional churches and religious organizations in Lithuania meant “that the tradition of religion is not to be identified with its belonging to the state system” and that should be read in conjunction with another constitutional provision that “[t]here shall not be a state religion in Lithuania”. In terms of rights, the Court recognized that the different status of traditional churches and organizations means that additional rights may also be granted to them by law; however, “without limiting the [constitutional] rights guaranteed for all churches and religious organizations”. In the same ruling the Court tried to draw a clear line between the establishment and recognition of traditional churches and organizations. The central point of the Court’s reasoning was the affirmation that: “[T]radition is neither created nor abolished by an act of the will of the legislator.” Consequently, the determination of churches and religious organizations as traditional “is not an act of their establishment as traditional organizations, but an act stating both their tradition and the status of their relations with society”; moreover, it is “a special way of recognition by the State”. Following the same logic, the constitutional institution of recognition of churches and religious organizations as traditional “means that such recognition by the State is irrevocable”. Taking into account that the Court was cautious on the legal content of the term “tradition” it was not surprising that this led to a discussion over the criteria to be applicable in public administration practice. The debate concentrated on the possible use of two criteria: the criterion of institutional 47

For example, after restoration of the independence in 1990, one of the first acts was the Law on Restitution of the Status of the Catholic Church (12 June, 1990). Later on the Law on the Procedure for the Restoration of the Rights of Religious Associations to the Existing Real Property (21 March 1995) and the Law on Restitution of Thora to Jewish Religious Communities or Associations (3 October, 2000) were adopted. For a detailed account on the restitution of the rights of religious organizations, see Laukaitytơ, Regina. 2009. “Bažnyþios padơties ir nuosavybơs restitucija Lietuvoje po 1990” [Restitution of Church status and its property]. Katalikǐ Mokslǐ Akademijos metraštis 32:135-146.

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succession and “socio-cultural” criterion, which would mean that seceded communities could claim traditional status. The Court’s Decision of 200748 declined to speak out in favour of one or another criterion, instead it clarified further the concept of the tradition of churches and religious organizations, which “does not appear even over several generations, but it is a long-term process progressing uninterrupted over the centuries, which is to be related with the long-lived spiritual and cultural development of Lithuanian society, and which has an essential impact on it”. According to the Court, “only those churches and religious organizations may be named as traditional in the law, the tradition of which does not raise any doubts, since they are part of the social, cultural, and spiritual heritage of the society formed in Lithuania historically over the centuries”. Currently many scholars in the area of Church-State research tend to consider the differential status of religions to be in contrast with human rights principles such as equal treatment and non-discrimination. In this respect, the official constitutional doctrine seems to respond to these objections by delineating boundaries between the constitutional discipline of Church-State relations and constitutional human rights doctrine. According to the Court, “[t]he establishment of such a differentiated legal regulation may not be interpreted, as it in itself negates the human constitutional right to freely choose any religion or belief and, either alone or with others, in private or in public, to profess his religion, to perform religious practices, to practice and teach his belief; in itself, it does not mean that some believers are discriminated while others are granted privileges”.

The meaning of the Cross as a legitimate argument for its public presence No one could argue with the fact that the Cross has a primarily religious meaning. According to a Christian theological interpretation, the Cross49 symbolizes the death of Christ that led to salvation and for that, as Paul wrote in his Letter to the Galatians,50 would represent the “very 48

Lietuvos Respublikos Konstitucinio teismo 2007 m. gruodžio 7 d. nutarimas [Decision of the Constitutional Court of the Republic of Lithuania of 7 December 2007]. Valstybơs žinios [Official Gazette]. 2007, No. 129-5246. 49 For the purposes of this paper, the terms “cross” and “crucifix” will be used as synonyms despite their difference: unlike the simple cross, the crucifix is the plastic representation of Jesus attached to the cross. 50 Galatians 6:14: “May I never boast except in the cross of our Lord Jesus Christ, through whom the world has been crucified to me, and I to the world.”

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image of redemption”. Does the public presence of the Cross or other religious symbols fit our secular reality? History demonstrates that the cross and other religious symbols may have a complex meaning beyond the expression of religion, and Lithuania is not an exception. For example, the national Coat of Arms depicts a knight on horseback, holding a sword and a shield with a golden double cross on it.51 Accordingly, the national coat of arms, with its double golden cross in a banner form, is displayed on the state (historical) flag for government use, along with the national tricolour flag.52 Another example is the folk tradition of making crosses, wayside shrines, and altars, which constitute an important part of Lithuanian culture. The stylized and mainly wooden crosses and shrines (each cross is typically carved with floral and geometric motifs, and adorned with statuettes of Christ or saints) are put up not only in cemeteries, but especially near houses and along roadsides. These small monuments were and still are a distinctive feature of the landscape. For example, before WW2, it was estimated that in Samogitia (the western part of Lithuania) there were 1.3 wayside shrines or crosses for every square kilometre.53 Lithuanian cross crafting (Kryždirbystơ) as a unique expression of historic, artistic, sociological, and ethnological value was enrolled into UNESCO Intangible Cultural Heritage List in 2008. The ornate cross, which in interwar Lithuania became a symbol of national identity, sustained its status as one of the forms of manifesting nationality54 in the Lithuanian diaspora abroad. Such a manifestation also

51

A golden double cross with equal bars, known in Poland as the Cross of Jagiellons, was introduced by Grand Duke of Lithuania and the King of Poland Wáadysáaw II Jagieááo after his conversion to Christianity in 1386. 52 The state flag, called the historical flag in the Law on the Lithuanian State Flag, was introduced in 2004. Historically, this flag was already used during the Battle of Grunwald in 1410, and this was one of the few flags considered to become the national flag during the drive for national independence. 53 Before the war, decayed wooden monuments were regularly repaired or replaced by new ones so that their total number remained approximately the same all over Lithuania. When building new crosses or shrines folk masters strove to keep the traditional artistic forms. After the war this natural continuity was broken as Soviet authorities forbade the repair of decayed crosses, or the building of new ones. After the restoration of Lithuanian statehood, the cross-crafting tradition was revived, though it did not reach its previous extent; see Lietuviǐ liaudies menas. Mažoji architektnjra [Lithuanian folk art. Small-scale architecture], 23-30. Vilnius: Vaga, 1990. 54 Skaidrơ, Urbonienơ. 2013. “Lietuviškas kryžius išeivijoje JAV: memorialinis paminklas, interjero atributas, dekoro elementas” [Lithuanian Cross in the USA

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helped to remind one of the cataclysms of the homeland’s history and support aspirations with regard to the freedom of the homeland. A special example of the complex meaning of the cross is demonstrated by the famous Hill of Crosses,55 which has about 100,000 wooden crosses. The site took on a special significance during the years 1944-1990, when it also became a symbol of communist oppression of religion and national identity. Continuing to travel to the Hill and leave their tributes and votive offerings, Lithuanians demonstrated their allegiance to their original identity, religion, and heritage, even though the Soviets worked hard to remove the crosses.56 Along with religious and cultural meanings, the cross also acquired a political one. According to a survey conducted in 2006, classical images of Lithuania are still important for Lithuanians, including the Hill of Crosses, along with other symbols, such as the historical castles in Vilnius and Trakai, amber, and the Lithuanian tricolour flag.57 To a lesser extent than traditional cross-crafting, the Pensive Christ (Rnjpintojơlis) is another Lithuanian object of national character, not to mention the fact that it also forms one of the most popular objects of fine and folk art. The Rnjpintojơlis can be found in homes, at crossroads, and in other public places. Statues and statuettes of the Pensive Christ are popular objects for gift exchange, even at the level of diplomatic relations. The Lithuanian example demonstrates that, along with the strictly religious meaning of the cross, a broader interpretation may be given in a specific national context. This pathway was followed by the Italian government in the Lautsi case when it explicitly relied on such an argument before the Grand Chamber, stating that the crucifix “could be perceived not only as a religious symbol, but also as a cultural and emigration: memorial monument, interior attribute and décor element]. Menotyra 20:50-66. 55 The beginnings of the fame of the Hill of Crosses are closely connected with the unsuccessful uprisings of 1830 and 1863: as families could not locate the bodies of perished rebels, they started putting up symbolic crosses on the site of a former hill fort. 56 The site was bulldozed and burned out several times. On September 7, 1993, Pope John Paul II visited the Hill of Crosses, declaring it a place for hope, peace, love, and sacrifice. See Vytenis, Rimkus. 2008. “Kryžiǐ kalnas: tradicijǐ ir naujoviǐ sankirtos” [Hill of Crosses: collisions of traditional and new fashioned things]. In Kryždirbystơs fenomenas liaudies kultnjroje – The phenomenon of cross crafting in folk culture, edited by Alơ Poþiulpaitơ, 124-132.Vilnius: LLKC. 57 Akstinaviþinjtơ, Ieva, and Daiva Petraitytơ. 2007. “Lietuviǐ tautinơs tapatybơs simboliniǐ komponentǐ konfignjracijos” [The configuration of symbols of Lithuanian national identity]. Filosofija. Sociologija 18:14-31.

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identity-linked symbol, the symbol of the principles and values that formed the basis of democracy and western civilization”.58 From a legal point of view, such an idea is not new, and gained broader visibility in the judgement of the German Federal Constitutional Court of 1975 on the Bavarian requirement to place a cross in every public school. According to the German court, the display of the cross in the classroom should be evaluated in the context and should thus be considered as a cultural and educative factor, as the communication of “Christian-western values and ethical norms”.59 However, this extensive interpretation of the cross is being gradually abandoned by various national courts in the US, Italy, Switzerland, Austria, and even Germany: courts have accepted the interpretation of the cross as having a strictly religious meaning which, according to the applicants, makes them feel that their or their children’s religious freedom is being violated, especially in public schools where dissenters are obliged to confront this symbol.60 On the other hand, the majority of the US Supreme Court in the Salazar v. Buono decision considered that the cross could have a complex meaning beyond the expression of religious views.61 For Lithuania as an intervening party in the Lautsi case, such a strategy for securing a role for religious symbols in the public sphere by giving to them also a secular meaning, seemed to be an obvious option.62 In fact, that option endorses the idea of liberal democracy built on the Enlightenment principles, according to which the display of religious symbols in public spaces is hardly justified without the weakening or 58

European Court of Human Rights, Lautsi and Others v. Italy (18 March 2011), para. 36. 59 Cf. Einführung der einheitlichen konfessionsunabhängigen Schulform für die öffentlichen Volksschulen in Bayern. BVerfGE 41, 65 (84). 60 Blanke, Hermann-Josef. 2012. “I simboli religiosi nello spazio pubblico.” In Diritto e religione. Tra storia e politica, edited by Francesco D‘Agostino and Agata C. Amato Mangiameli, 157-195. Roma: Aracne. 61 Salazar v. Buono, 559 U.S. 700 (2010). 62 On January 13, 2010, the Committee on Foreign Affairs of Lithuanian Seimas adopted a statement regarding the Lautsi v. Italy decision and noted: “the use of the symbol, a cross, does not force any person to exercise any particular religion, but rather constitutes an integral part of the entire European Christian humanist tradition which by itself does not hurt non-believers or non-Christians and does not restrict children’s and their parents’ freedom of choice of a religion and belief, as well as the practice thereof”. See Press Release, Seimas Committee on Foreign Affairs, Statement On the Judgment by the European Court of Human Rights on the Display of the Crucifix in Italian Classrooms (January 13, 2010), available at http://www3.lrs.lt/pls/inter/w5_show?p_r=7071&p_d=94098&p_k=1

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neutralising of their religious significance.63 However, before the Grand Chamber, the intervening states disavowed this approach, because, as stressed by J. Weiller, even in the case of the victory of this argument, it would be a pyrrhic victory: it would imply that if a symbol still maintains its religious significance, it has no place in the public sphere.64 As a strategy it would be, in the end, destructive of religion.65 The abandoning of that strategy proved successful. It appears rationally justifiable even in a broader context, e.g. in terms of the protection of religious symbols from inappropriate use. The discredited use of religious symbols is already a hot political issue; consider the sad consequences that followed the publication of caricatures of Mohammed in the Danish newspaper Jylland-Posten in September 2005 and the series of strongly antireligious and obscene cartoons in the French newspaper Charlie Hebdo.66 It is clear that the search for equilibrium between freedom of thought, conscience and religion and freedom of expression should be a key task for human rights doctrine. Inappropriate use of religious symbols for commercial purposes is another issue to consider. For example, the regulations concerning trademarking religious symbols varies from country to country. US case law allows trademarking of a religious symbol so long as the mark does not consist of, or comprise, matter that may disparage, bring into contempt, or disrepute persons, institutions, beliefs, or national symbols.67 On the contrary, the Lithuanian Law on Trademarks 63

Mancini, Susanna. 2010. “The Crucifix Rage: Supranational Constitutionalism and Counter-Majoritarian Difficulty.” European Constitutional Law Review 6:13. 64 Weiler, Joseph. 2010. “Editorial: Lautsi: Crucifix in the Classroom Redux.” European Journal of International Law 21:1-6. 65 McGoldrick, Dominic. 2011, 480. 66 Gallup global survey from 2011 revealed alarming findings. Majorities of representative populations within majority-Muslim countries globally said how it is important to show respect to Muslim societies from the part of western societies. About 8 in 10 say it would be very important to them, personally, for western societies to abstain from desecrating the Qur'an and other Muslim religious symbols. About 6 in 10 say it would be very important to them for those in the West to treat Muslims fairly in the policies that affect them, protect the rights of Muslim minorities in these societies, accurately portray Muslims in western media, and work with Muslim societies as equal partners on issues of mutual interest. For a detailed account, see Islamophobia: Understanding Anti-Muslim Sentiment in the West. http://www.gallup.com/poll/157082/islamophobia-understanding-antimuslim-sentiment-west.aspx (accessed January 21, 2016). 67 However, in the US, religions frequently wage battles in court over the use of various religious trademarks. At the heart of these disputes is not acquiring traditional trademark rights, but struggling to protect religious identity because

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(2000)68 stipulates that a sign shall not be recognised as a mark and shall be refused registration or the registration of a registered mark shall be declared invalid if “it is a sign of high symbolic value, in particular a religious symbol” [Art. 6(10)]. This is another example of the secular marketplace regarding the use of religious symbols in advertising. Sensitivity should be shown in the use of symbols, especially when one could ask whether it is right to use religion to promote sales. Recent amendments to Lithuanian laws on advertising (2013)69 seek to regulate such activities, providing that advertising shall be prohibited when “it expresses disdain with regard to the religious symbols of the religious communities registered in Lithuania”.70 At the same time, the legislator took an opportunity to include in the text of the said law a definition of “religious symbol” as an “image, object, graphic or written sign, which is respected by a religious community as a reference to their deity or holiness.”

Public display of the cross in the context of competing rights As discussed earlier, the over-reliance on the cultural meaning of religious symbols in order to secure their presence in the public sphere may have a devastating effect on the religion. Fortunately, secularity was not established as a human rights principle, instead, secularity was among the key concepts of the Lautsi 1 judgment. However, the situation of the

there are no other viable legal means available. For a detailed account, see Simon, A. David. 2009. “Register Trademarks and Keep the Faith: Trademarks, Religion, and Identity.” IDEA: The Intellectual Property Law Review 49:233-312. 68 Prekiǐ ženklǐ Ƴstatymas [Law on Trademarks] (as amended by 19 February 2004 No. IX-2033). Valstybơs žinios [Official Gazette]. 2000, No. 92-2844. 69 Reklamos Ƴstatymas [Law on Advertising] (as amended by 16 February 2013 No. XII-315). Valstybơs žinios [Official Gazette]. 2000, No. 64-1937. 70 A controversy over the decision of the State Consumer Rights Protection Authority contributed largely to the abovementioned amendments. The competent Authority fined the designer Robert Kalinkin and his company for infringement of public and moral principles in a jeans advertisement featuring a man in jeans resembling Jesus and Mary. On 25 April 2014 the Supreme Administrative Court of Lithuania upheld the Authority’s decision. Recently, legal representatives of the designer announced that he submitted a petition before ECHR, see “Dizaineris Kalinkinas dơl savo kolekcijos reklamos kreipsis Ƴ Strasburą.” 2014. Alfa, October 27. Accessed 21 June 2016. http://www.alfa.lt/straipsnis/1060403/dizaineriskalinkinas-del-savo-kolekcijos-reklamos-kreipsis-i-strasbura

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public display of religious symbols involves competing human rights, and it is important to deal with the situation from that perspective. Article 9 of the ECHR distinguishes the freedom to have and change a religion or belief from the freedom to manifest it, and accords differing levels of protection to each. While the freedom to manifest one’s religion (forum externum) is a qualified right, as it is subject to the limitations listed in the second paragraph of Article 9,71 the freedom to have or not to have a religion (forum internum) is an absolute right, because a belief cannot be judged by human standards. This difference may prove particularly relevant in cases of conflicts between rights. For example, the religious majority has a “positive” right to manifest their religion, and dissenters have a “negative” right not to be confronted with other religious beliefs. In this case, the democratically elected legislator has to weigh both rights in the context and it would seem that the application of the principles of concordance, proportionality, and common sense should prevail. However, it becomes a complicated task to define at what point actions by the majority or the “active message” are so intrusive that they violate the forum internum of dissenters, which is an absolute right. For example, ECHR concluded that the obligation for the elected parliamentary representatives to take an oath swearing on the Gospels to perform their duties properly is contrary to the negative freedom of religion.72 On the other hand, it may be argued that in the absence of any effectively proved coercion or indoctrination (“proselytizing effect”), there could be no space for a genuine conflict. However, one may think that even the widespread forms of religious symbolism practiced in other areas (e.g. on flags or coat of arms) risk actual indoctrination,73 or that the State sends an active message when sanctioning the display of the crucifix,74 or that in the context of public 71

“Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 72 Buscarini v. San Marino, Application No. 24 645/95 (18 February 1999). 73 Temperman, Jeroen. 2012. “Religious Symbols in Public School Classroom.” In The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, edited by Jeroen Temperman, 167. Leiden: Martinus Nyjhoff Publishers. 74 Smet, Stijn. 2012. “Freedom of Religion v. Freedom from Religion: Putting Religious Dictates of Conscience (Back) on the Map.” In The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, edited by Jeroen Temperman, 138. Leiden: Martinus Nyjhoff

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education such a display is necessarily perceived as an integral part of the school environment, and by this the State signals its preference for Christianity to the exclusion of all other (non-)religious convictions.75 The Second Section of ECHR favoured the latter reasoning in the Lautsi 1 case and considered the display of a crucifix on the classroom wall as a “powerful external symbol” which may be also “emotionally disturbing” for non-adherent pupils, and therefore it “restricts the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe”.76 The Grand Chamber, in contrast to the Second Section, did not consider its role to include ruling on the Member States’ decisions on the place of religion in educational institutions,77 imposing only one clear limit on the margin of appreciation of the Member States – such decisions should not lead to a form of indoctrination.78 It did recognise that: “By prescribing the presence of crucifixes in state-school classrooms [...] the regulations confer on the country’s majority religion preponderant visibility in the school

Publishers. The author further asserts that: “[I]n doing so, the State can be regarded as exercising its power to effectively exclude atheists and adherents of other faiths than Christianity, while implicitly endorsing Christian authorities’ discriminatory views on, among others, homosexuality.” 75 Temperman, Jeroen. 2010. “State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle, the Right to Adequate Education, Children’s Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers.” Human Rights Quarterly 32:882. 76 European Court of Human Rights, Lautsi v. Italy (3 November 2009), paras 5455, 57. 77 European Court of Human Rights, Lautsi and Others v. Italy (18 March 2011), para. 69. This conclusion was met with hostility by some authors, among others J. Temperman, see Temperman, Jeroen. 2012, 17. He accuses the Grand Chamber of fraud for its “little exercise in comparative European state practice presented in the Grand Chamber judgement”, because according to him, in reality “[s]tate practice is not so divided as the Italian Government, third party interveners, and ultimately the Grand Chamber, want us to believe.” Such a claim seems a little bit bizarre for scholarly literature from a logical point of view: ten states intervened as amici curiae and another eleven states (Albania, Austria, Croatia, Hungary, Macedonia /FYRM/, Moldova, Norway, Poland, Serbia, Slovakia, and Ukraine) publicly questioned the first judgment of the Court, and requested that their national and religious identities and traditions be respected. Nearly half of the Member States of the Council of Europe, which, in an unprecedented move did not agree with the Lautsi 1 judgment, is not an irrelevant number to come to the conclusion that there is no consensus among the Member States. 78 European Court of Human Rights, Lautsi v. Italy (3 November 2009), para. 71.

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environment”.79 However, this was considered insufficient to “denote a process of indoctrination on the respondent State’s part”.80 Moreover, the Grand Chamber described the crucifix as “an essentially passive symbol” that “cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities”.81 The display of religious symbols in Lithuanian state institutions, including educational establishments, is not governed by any specific regulation, meaning that such a display in public institutions is neither obligatory nor prohibited. Certain of the abovementioned considerations that prevailed in the reasoning of Lautsi 1 judgment and were overturned by the Grand Chamber seem to be of no significant practical effect. However, it is unlikely that the presence of religious symbols in public institutions will become a commonplace phenomenon. The reasons for this may vary, from the broken tradition of that display in the atheistic period82 to a secular character of the State, as was construed by the Constitutional Court. On the other hand, the principle of the secularity of the State is still open for further development, and so far has resulted in a much more positive and accommodating approach to religion, and it seems likely that a certain period of time will pass before we know anything definite on that count. Ordinary judicial practice on the public presence of religious symbols is virtually non-existent and it is still unclear which path of reasoning it would follow.83 79

Ibid. Ibid. 81 European Court of Human Rights, Lautsi v. Italy (3 November 2009), para. 72. 82 During the Soviet period, the display of religious symbols in public institutions was forbidden by the instruction of the Commissariat of Justice (30 August 1918) on the implementation of the decree of the separation of Church and State and school and Church (para. 29b), in Zakonodatel’stvo o religioznykh kul’takh: Sbornik materialov i dokumentov dlya sluzhebnogo pol’zovaniya [Legislation on religious cults: The collection of materials and documents for internal use], 2nd amended edition, Moscow: Yuridicheskaya literatura. 83 However, it seems that Lithuanian courts would prefer to focus on procedural aspects instead of considering cases on their merits in that delicate area. An instructive example is the recent ruling of the Appellate Vilnius County Court of 7 January 2015. The appellant challenged the decision of the Prosecutor General’s Office not to initiate investigation on the legality of the acts adopted by the municipal councils of the Vilnius and Šalþininkai districts on the enthronement of Jesus the King in their respective territories. The appellate court upheld the ruling of the district court, which accepted that the public prosecutor’s office acted within its competences protecting public interest when it decided that the challenged acts affect neither the rights of individuals, nor public interest, see Vilniaus apygardos 80

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On the contrary, secularity is an explicitly governing principle of the state/municipal financed educational system, as Article 40(1) of the Constitution provides that state and municipal educational institutions are secular, and only on the request of parents do they provide religious education. According to the Constitutional Court, secular education means that all state and municipal educational establishments are tolerant, open, and available for people of all religions, as well as for non-religious people, and that the curriculum’s worldview content is secular. So far the presence of religious symbols in public educational establishments is limited to those rooms where the constitutional right of parents to provide classes in religious instruction is fulfilled or possibly to chapels/prayer rooms (more typical of higher education institutions). Would the displayed cross in Lithuanian public schools contravene the constitutional principle of the secularity of public education? It is clear that the Constitutional Court establishes a positive right to a “secular school curriculum” in the context of state or municipal education. However, it does not follow from the short passage of the ruling that such a right could be extended to the school environment. The Grand Chamber in the Lautsi 2 judgement reaffirms that Article 2 of Additional Protocol I to the European Convention on Human Rights84 is principally designated as a form of protection against “indoctrination” by the State and teachers. ECHR in its earlier judgments (Folgero85 and Zengin86) accepted that giving a “preponderant visibility” to the majority religion falls within the respective states’ margin of appreciation and does not in itself constitute indoctrination. Consequently, the potential display of crucifixes would not be associated with compulsory teaching about Christianity, nor would it be sufficient to indicate the fact of indoctrination.

teismo Civiliniǐ bylǐ skyriaus nutartis civilinơje byloje Nr. 2A-197-798/2015 (S). The enthronement acts of the said municipal councils received a harsh critique as contradicting the constitutional secularity principle from the part of Egidijus Knjris, former Chairman of the Constitutional Court and present Judge of ECHR, see Knjris, Egidijus. 2009. “Rekst & Co: Konstitucijos negerbimo tradicija” [Rekst & Co: the tradition of constitutional contempt]. Veidas 2009(26). 84 “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” 85 Folgerø and Others v. Norway, App. No. 15472/02 (29 June 2007), para. 89. 86 Hasan and Eylem Zengin v. Turkey, App. No. 1448/04 (9 October 2007), para. 63.

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Conclusions The display of religious symbols in the public sphere seems to be a minor issue in the current legal debates in Lithuania. This could largely be explained by historical experience, where the totalitarian regime erased the “preponderant visibility” of religion in public life. The interrupted tradition of the display of the cross was not revived: the state-sponsored atheistic propaganda lasting almost 50 years contributed very much to the intense secularization processes in Lithuanian society. Even though the collapse of the totalitarian regime re-generated the population’s religious feelings, the ideological vacuum in public discourse was soon filled with fashionable ideas from western liberal democracy. The dominating idea of the exclusion of religion from the political realm to the private one seems to determine in the society the lack of the need for the presence of the sacred in public spaces. Despite the fact that the display of religious symbols in state institutions is not regulated by any specific constitutional, ordinary, or administrative provision, it could be claimed that a tacit convention exists in society on the avoidance of such a debate.

References Akstinaviþinjtơ, Ieva, and Daiva Petraitytơ. “Lietuviǐ tautinơs tapatybơs simboliniǐ komponentǐ konfignjracijos” [The configuration of symbols of Lithuanian national identity]. Filosofija. Sociologija 18(2007):1431. Arlauskas, Saulius. “Kryžius, laisvơ ir vergija” [The Cross, freedom and slavery]. Delfi, 9 September 2012. http://www.delfi.lt/news/ringas/lit/sarlauskas-kryzius-laisve-irvergija.d?id=59446657 Bardach, Juliusz. “The Third May Constitution and the Mutual Guarantee of Two Nations of 1791.” In Konstytucja 3 maja 1791 – 1791 gegužơs 3-sios Konstitucija – The Constitution of May 3, 1791, 177-8. Warszawa: Wydawnictwo Sejmowe, 2001. Blanke, Hermann-Josef. “I simboli religiosi nello spazio pubblico.” In Diritto e religione. Tra storia e politica, 157-195. Edited by Francesco D‘Agostino and Agata C. Amato Mangiameli. Roma: Aracne, 2012. Bnjþys, Petras. “Rusai staþiatikiai ir sentikiai Lietuvoje.” Athenaeum VII(1936):65-136. ýertikovas, Aleksejus, and Viktoras Komarovas. Pokalbiai apie religiją ir ateizmą [Conversations on religion and atheism]. Kaunas: Šviesa, 1978.

152

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Codevilla, Giovanni. “La rilevanza delle leggi non scritte e dei provvedimenti extragiudiziari nelle relazioni tra Stato e Chiesa in Unione Sovietica negli anni Venti e Trenta.” In Libertà di coscienza e diversità di appartenenza religiosa nell’Est Europa, 217-242. Edited by Giovanni Cimbalo and Federica Botti. Bologna: Bononia University Press, 2008. Daulius, Juozas. Laisvamanybơ Lietuvoje [Free-thinking in Lithuania]. Kaunas: Spindulys, 1936. Haarscher, Guy. “Religious Revival and Pseudo-secularism.” Cardozo Law Review 30(2008–2009):2799-2819. Juškeviþius, Jonas. “Religious freedom in the Baltic States.” In Libertà di coscienza e diversità di appartenenza religiosa nell’Est Europa, 181182. Edited by Giovanni Cimbalo and Federica Botti. Bologna: Bononia University Press, 2008. Kratochvil, Petr. “The Religion-Politics Nexus in East-Central Europe: Church in Public Sphere of Post-Secular Societies.” Perspectives 17/2(2009):119-138. Knjris, Egidijus. “Rekst & Co: Konstitucijos negerbimo tradicija” [Rekst & Co: the tradition of constitutional contempt]. Veidas 2009(26). Laukaitytơ, Regina. “Bažnyþios padơties ir nuosavybơs restitucija Lietuvoje po 1990” [Restitution of Church status and its property]. Katalikǐ Mokslǐ Akademijos metraštis 32(2009):135-146. La Rocca, Francesco. “At the Crossroads: The History of the Greek – Catholic Church in Lithuania.” Occasional on Religion in Eastern Europe 2012, vol. 31: Iss. 1, Article 1. Mancini, Susanna. “The Crucifix Rage: Supranational Constitutionalism and Counter-Majoritarian Difficulty.” European Constitutional Law Review 6(2010):6–27. McGoldrick, Dominic. “Religion in European Public Sphere and in European Public Life – Crucifixes in the Classroom?” Human Rights Law Review 11/3(2011):451-502. Meilius, Kazimieras. “Švenþiant Lietuvos vardo paminơjimą: krikšþioniškos, pagoniškos ir ateistinơs pamokos” [Celebrating commemoration of Lithuania: Christian, pagan and atheistic lessons]. In Regnum est. Liber Amicorum Vytautui Landsbergiui, 427-455. Edited by Gediminas Mesonis. Vilnius: Mykolo Romerio Universiteto Leidybos Centras, 2010. Mesonis, Gediminas. “Kai kurie konstituciniai valstybơs ir bažnyþios santykiǐ aspektai” [On some constitutional aspects of State-Church relationship]. Konstitucinơ jurisprudencija 2/10(2008):110-133.

The Public Presence of the Cross: Lithuanian Perspective

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Misinjnas, Romualdas J., and Reino Taagepera. The Baltic States. Years of Dependence 1940-1991. Berkeley: University of California Press, 1991. Puppinck, Grégor. “The Case of Lautsi v. Italy: A Synthesis.” BYU Law Review (2012):873-927. Rawls, John. Political Liberalism. New York: Columbia University Press, 1993. Rimkus, Vytenis. “Kryžiǐ kalnas: tradicijǐ ir naujoviǐ sankirtos” [Hill of Crosses: collisions of traditional and new fashioned things]. In Kryždirbystơs fenomenas liaudies kultnjroje [The phenomenon of crosscrafting in folk culture], 124-132. Edited by Alơ Poþiulpaitơ. Vilnius: LLKC, 2008. Ruškytơ, Ramutơ. “Legal aspects of religious freedom.” In Office of the Government of the Republic of Slovenia for Religious Communities/Bureau du Gouvernement de la République de Slovénie des communautés religièuses, Legal aspects of religious freedom/Les aspectes juridiques de la liberté confessionelle. International Conference, 15-18 September 2008. Ljubljana, 2008. Sajó, András. “Preliminaries to a Concept of Constitutional Secularism.” In Constitutional Secularism in the Age of Religious Revival, 54-78. Edited by Susanna Mancini and Michel Rosenfeld. Oxford: OUP, 2014. —. “Constitutionalism and Secularism: The Need for Public Reason.” Cardozo Law Review 30(2008–2009):2401-29. Simon, A. David. “Register Trademarks and Keep the Faith: Trademarks, Religion, and Identity.” IDEA: The Intellectual Property Law Review 49/2(2009):233-312. Skaidrơ, Urbonienơ. “Lietuviškas kryžius išeivijoje JAV: memorialinis paminklas, interjero atributas, dekoro elementas” [Lithuanian Cross in the USA emigration: memorial monument, interior attribute and décor element]. Menotyra 20/1(2013):50-66. Smet, Stijn. “Freedom of Religion v. Freedom from Religion: Putting Religious Dictates of Conscience (Back) on the Map.” In The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, 113-142. Edited by Jeroen Temperman. Leiden: Martinus Nyjhoff Publishers, 2012. Temperman, Jeroen. “Religious Symbols in Public School Classroom.” In The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, 143-178. Edited by Jeroen Temperman. Leiden: Martinus Nyjhoff Publishers, 2012.

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—. “State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle, the Right to Adequate Education, Children’s Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers.” Human Rights Quarterly 32(2010):865-897. Vaiþaitis, Vaidotas. “The Republic of Lithuania.” In Constitutional Law of 10 EU Member States: The 2004 Enlargement, 58-59. Edited by Constantijn Kortmann, Joseph Fleuren and Wim Voermans. Deventer: Kluwer Law International, 2007. Vaiþekonis, Pranas. Katalikǐ dvasininkijos juridinơ padơtis XIX a. Lietuvoje [Legal position of Lithuanian Catholic clergy in the XIX century]. Vilnius: Atkula, 1999. Vaišvilaitơ, Irena. “Tradiciniǐ ir kitǐ religiniǐ bendruomeniǐ perskyra Lietuvoje.” In Religija ir teisơ pilietinơje visuomenơje, 127-128. Vilnius: Justicija, 2001. Vasiliauskaitơ, Nida. Nupjauti kryžiǐ ar gyventi jo šešơlyje [To cut the cross or to live in the shadow of it]. Delfi, 20 August 2012, http://www.delfi.lt/news/ringas/lit/nvasiliauskaite-nupjauti-kryziu-argyventi-jo-seselyje.d?id=59345103 Weiler, Joseph. “Editorial: Lautsi: Crucifix in the Classroom Redux.” European Journal of International Law 21(2010):1-6. Zucca, Lorenzo. A Secular Europe. Law and Religion in the European Constitutional Landscape. Oxford: OUP, 2012.

CHAPTER TEN THE PRESENCE OF THE CROSS IN PUBLIC SPACES IN THE CONTEXT OF THE FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION: A POLISH PERSPECTIVE PIOTR STANISZ

When attempting to determine whether or not the solutions concerning the presence of the cross or other religious symbols in public spaces are justified, one should pay particular attention to issues related to freedom of thought, conscience and religion. Respect for this freedom, though it is obviously not the only aspect of the matter in hand to be taken into consideration, is nowadays an indispensable characteristic feature of democratic states ruled by law. Legal provisions aimed at ensuring the protection of the freedom in question can also be found in the Polish legal system. The purpose of the analysis in this work is twofold. First of all, it addresses the question of the right of individuals, and the groups and communities that they form, to express their religious beliefs using signs and symbols, including, in particular, the cross. Secondly, it is concerned with the issue of whether or not the presence of the cross in public spaces infringes the “negative religious freedom” of people who do not believe in Jesus Christ, the Saviour. Before some answers to these questions are presented, the discussion will focus on the context and course of the contemporary debate regarding the presence of this Christian symbol in public spaces in Poland, as well as on the legal regulations pertaining to freedom of thought, conscience and religion.

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1. The context and course of the contemporary debate regarding the presence of the cross in Polish public spaces When examining the issue of the presence of the cross in public spaces in light of the principle of freedom of thought, conscience and religion, one should be aware of the broader context of the current debate. First of all, it should be noted that the dispute over the presence of crosses in Polish public spaces is not a new one; it is enough to recall, even without reaching too far back into history, that in the period of the Polish People’s Republic (1945-1989), the dispute was held in connection with the attempts on the part of the authorities of the communist party and the state to remove any religious elements from public life. In spite of the prevalent Polish tradition of the time, crosses were stripped, particularly from schools, and their removal went side by side with eliminating religious education from schools.1 In the ministerial circular of 4 August 1958 on observing the secularism of schooling, it was decided that: “There shall be no religious symbols in classrooms or other rooms in schools”.2 However, such measures applied by the authorities were not accepted by most Polish people, who expressed their disapproval by means of, among other things, the well-known protests in the mid-1980s in MiĊtne and Wáoszczowa.3 It can hardly be doubted that, at least during the period of the Polish People’s Republic, defending the right to display crosses in schools was closely connected with the social disapproval of the ideology, traditions, and ideals that the authorities were trying to impose on people. As a result, the democratic transformations undertaken in the late 1980s and early 1990s were accompanied by the return of crosses to schools, which can even be considered one of the symbols of the changes in progress.4 In the 1 The process of removing religious instruction from schools after the Second World War is discussed by Mezglewski, Artur. 2009. Polski model edukacji religijnej w szkoáach publicznych. Aspekty prawne [The Polish Model of Religious Education in Public Schools. Legal Aspects], 37-51. Lublin: Wydawnictwo KUL. 2 Dziennik UrzĊdowy Ministerstwa OĞwiaty [Official Journal of the Ministry of Education] 1958, no. 9, item 123. 3 The conflicts in MiĊtne and Wáoszczowa are discussed by Dudek, Antoni, and Ryszard Gryz. 2003. KomuniĞci i KoĞcióá w Polsce (1945-1989) [The Communists and the Church in Poland (1945-1989)], 405-410. Kraków: Znak; ĩaryn, Jan. 2003. Dzieje KoĞcioáa katolickiego w Polsce (1944-1989) [History of the Catholic Church in Poland (1945-1989)], 535-537. Warszawa: Neriton. 4 For similar opinions, see OĪóg, Krzysztof. 2010. “KrzyĪu, bądĨ pozdrowiony. KrzyĪ w przestrzeni publicznej i spoáecznej w dziejach Polski” [Praised be thy

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legal regulations adopted after 1989, the presence of crosses in schools was expressly permitted. For example, the instruction of 3 August 1990 on reinstating religious instruction in schools in the 1990/1991 school year contained the following: “A cross may be hung in those classrooms where most children take part in religious instruction, and it shall also be permitted to hold prayer before and after school classes. However, particular attention should be paid to the feelings of followers of other religions and non-believers” (point 11).5 Similar phrasing can be found in point 12 of the instruction of 24 August 1990 on reinstating religious instruction in schools in the 1990/1991 school year, defining rules for collaboration with churches and religious organizations other than the Catholic Church.6 The matter at hand was not affected by the regulation of the Minister of National Education of 14 April 1992 on the conditions and manner of conducting religious instruction in nurseries and other schools (which replaced the above-mentioned instructions). According to § 12 thereof (which has not been amended to date), “a cross may be placed in school rooms”.7 However, it should be pointed out that crosses did not reappear in Polish schools without controversy. The then Ombudsman applied to the Constitutional Tribunal that proceedings be initiated to examine whether or not the instructions of 1990, and then a number of provisions contained in the regulation of 1992, were consistent with the Constitution and the acts. Referring to § 12 of the regulation of 1992, the Ombudsman claimed that: “It makes it excessively possible to display a symbol of religious worship […] outside of the places and times assigned for teaching religion” and that the very presence of religious symbols in schools equals

name, Cross. The Cross Symbol in Public and Social Environments throughout Poland’s History]. In Adam Bujak, Krzysztof OĪóg, and Leszek Sosnowski. KrzyĪ Polski [Polish Cross], vol. 1: Przybytek PaĔski [God’s Temple], 55. Kraków: Biaáy Kruk. 5 Instrukcja dotycząca powrotu nauczania religii do szkoáy w roku szkolnym 1990/91 [Instruction on reinstating religious instruction in schools in the 1990/1991 school year], typewritten document. 6 Instrukcja dotycząca powrotu nauczania religii do szkoáy w roku szkolnym 1990/91, okreĞlająca zasady wspóádziaáania z KoĞcioáami i Związkami Wyznaniowymi poza KoĞcioáem Katolickim [Instruction on reinstating religious instruction in schools in the 1990/1991 school year, defining rules for collaboration with churches and religious organizations other than the Roman Catholic Church], typewritten document. 7 Dziennik Ustaw [Official Journal] 1992, no. 36, item 155, as amended.

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public worship, thus failing to comply with statutory provisions that prohibit forcing citizens to take part in religious activities and rites.8 The Constitutional Tribunal, in its rulings of 30 January 1991 (K 11/90)9 and 20 April 1993 (U 12/92),10 did not consider those charges as valid. The content of the first of the above-mentioned rulings makes it possible to conclude beyond reasonable doubt that both the Ombudsman and the Constitutional Tribunal were fully aware that the essence of the problem concerned not only the presence of the cross and religious instruction in schools, but also (and perhaps even more importantly) the attitude of the state towards the beliefs of its citizens in the newly formed and not yet solidified Polish democratic regime.11 As a result of the wave of democratic transformations and decisions spontaneously taken by various people and groups, the cross was displayed not only in schools but also in other public locations from which it had been removed after 1945 when the political system based on Soviet principles was instituted in Poland. It can be agreed that restoring the cross in such places was not only a token of attachment to Catholicism and Polish traditions, but also “a reaction to the concept of a faithless state which was very actively promoted by the authorities of the Polish People’s Republic”.12 Crosses were hung, especially in rooms used by local government bodies. In 1997, a cross was hung on the wall of the Plenary Session Room of the Polish Sejm. The same tendency also found its expression in the provisions of the regulation of the Minister of National Education of 3 July 1992 on the conditions for ensuring the right of children and young people in educational institutions and taking part in 8

See article 6 para. 2 of the Act of 17 May 1989 on the Guarantees of Freedom of Conscience and Religion; Dziennik Ustaw 2005, no. 231, item 1965, as amended. 9 Orzecznictwo Trybunaáu Konstytucyjnego [Judgements of the Constitutional Tribunal] 1986-1995, vol. 3 (1991-1992), item 5. 10 Orzecznictwo Trybunaáu Konstytucyjnego 1986-1995, vol. 4 (1993), item 17. 11 See àączkowski, Wojciech. 1991. “Stanowisko Trybunaáu Konstytucyjnego w sprawie legalnoĞci instrukcji MEN dotyczących powrotu nauczania religii do szkoáy w roku szkolnym 1990/91” [Standpoint of the Constitutional Tribunal on the lawfulness of the decision of the Minister of National Education to reinstate religious instruction in schools in the school year 1990/1991]. In Nauczanie religii w szkole w paĔstwie demokratycznym [Religious Instruction in Schools in a Democratic State], edited by Józef Krukowski, 70-71. Lublin: Towarzystwo Naukowe KUL. 12 See the justification of the judgment issued by the Court of Appeal in Szczecin of 25 November 2010, I ACa 363/10, Przegląd Prawa Wyznaniowego 4(2012):195-218 (quotation from p. 201).

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summer camps to practice their religion. According to § 4 of the said document, “crosses and other religious symbols, taking the religious beliefs of pupils of different faiths and religions into account, may be placed in such institutions”.13 As a result of the processes described above, crosses once more have become a rather common element of Polish public spaces, even though their presence is not required under any regulations.14 Louder protests over that state of affairs were rather rare during the initial period, although they did occur. Due to one such initiative, the Court of Appeal in àódĨ investigated the presence of a cross in a city council room in the proceedings initiated at the request of a inhabitant of àódĨ in relation to the protection of freedom of conscience as a personal interest. In its judgment of 28 October 1998 (I ACa 612/98), the court concluded that: “The presence of a religious symbol in a public authority building is not sufficient to declare that the freedom of conscience has been infringed”.15 The intensity of the argument following this decision is clearly demonstrated by a comparison of two commentaries published in a major legal journal. One of the commentators, in his concluding remarks, congratulated the judges of both instances presiding over the case on their “particularly apt decision […] and excellent knowledge of the new Polish Constitution and the European Convention”.16 Another, for his part, accused the judges of blatant ignorance of the provisions of the 13

Monitor Polski [Official Gazette] 1992, no. 25, item 181. The European Court of Human Rights, in the judgment of its Grand Chamber of 18 March 2011 in the case of Lautsi and Others v. Italy, mistakenly mentions Poland as one of the countries where the presence of the cross in schools is directly ordered by the law (§ 27). As was already mentioned above, the Polish regulations do not require the presence of crosses in schools. See Stanisz, Piotr. 2014. “Symbole religijne w szkole publicznej” [Religious Symbols in Public School]. In Religia i etyka w edukacji publicznej [Religion and Ethics in Public Education], edited by Józef Krukowski, Paweá Sobczyk and Michaá Poniatowski, 151-152. Warszawa: Wydawnictwo UKSW. 15 Wokanda 11(1999):47. See Stanisz, Piotr. 2013. “Relations between the State and Religious Organizations in Contemporary Poland from the Legal Perspective.” In Neuere Entwicklungen im Religionsrecht europäischer Staaten, edited by Wilhelm Rees, María Roca, and Balázs Schanda, 697-698. Berlin: Duncker & Humblot. 16 WiĞniewski, Leszek. 2000. “Glosa 1 do wyroku Sądu Apelacyjnego w àodzi z dnia 28 paĨdziernika 1998 r. (sygn. akt ACa 612/98)” [Note 1 to the judgment of the Court of Appeal in àódĨ of 28 October 1998 (ref. ACa 612/98)]. Przegląd Sejmowy 3(2000):105-108. 14

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Constitution and their erroneous interpretation, as well as “lack of objectivity and emotional involvement in favour of one particular religious option”.17 Discussions regarding the presence of the cross in public spaces intensified after the European Court of Human Rights issued the judgment of 3 November 2009 in the case of Lautsi v. Italy (application no. 30814/06).18 Let us recall that, in the ruling it was concluded that the mandatory displaying of crucifixes on the walls of Italian classrooms infringed the provisions of article 2 of Protocol 1 in conjunction with article 9 of the European Convention on Human Rights. The judgment of the European Court of Human Rights was widely commented on in Poland, and many different opinions were voiced.19 Taking the most typical opinions into account, it should be pointed out that some authors considered it “a simple judgment in an easy case” and approved of both the adjudication itself and the accompanying justification.20 Others, also accepting the judgment, maintained that it was “appropriate to the current situation in Europe”, adding that “the Court took the experiences, feelings, and fears of the individual into account” and its approach “is full of empathy for children belonging to religious minorities”.21 On the other hand, there were also authors who severely criticized the judgment issued in 2009, their reservations pertaining to the fact that the Court used too extended a definition of negative religious freedom and assigned more importance to it than to religious freedom in 17 Pietrzak, Michaá. 2000. “Glosa 2 do wyroku Sądu Apelacyjnego w àodzi z dnia 28 paĨdziernika 1998 r. (sygn. akt ACa 612/98)” [Note 2 to the judgment of the Court of Appeal in àódĨ of 28 October 1998 (ref. ACa 612/98)]. Przegląd Sejmowy 3(2000):108-113. 18 Polish translation of the judgment: Przegląd Prawa Wyznaniowego 2(2010):203218. 19 See Misztal, Henryk, and Piotr Stanisz. 2010. “WolnoĞü wyznania a symbole religijne w Īyciu publicznym "paĔstwa Ğwieckiego"” [Freedom of Faith in the Social Life of a "Secular State"]. Annales Canonici 6(2010):41-42. 20 KamiĔski, Ireneusz. 2010. “Nakaz obecnoĞci krzyĪa we wáoskiej szkole – glosa do wyroku ETPCz z 3.11.2009 r. w sprawie Lautsi przeciwko Wáochom” [Mandatory Presence of the Cross in Italian Schools – note to the judgment of the European Court of Human Rights of 3.11.2009 in the case of Lautsi v. Italy]. Europejski Przegląd Sądowy 3(2010):43-44. 21 Borecki, Paweá, and Dorota Pudzianowska. 2010. “Glosa do wyroku z 3 XI 2009 w sprawie Lautsi v. Wáochy, skarga nr 30814/06” [Note to the judgment of 3.11.2009 in the case of Lautsi v. Italy, application no. 30814/06]. PaĔstwo i Prawo 4(2010):124-129.

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its positive aspect.22 The critical opinions were motivated by an important observation that the Court did not refer in any way to the solutions adopted in other Member States of the Council of Europe, which would reveal the lack of European consensus with regard to displaying religious symbols in public schools.23 The judgment was also criticized for its insufficient justification, and it was even called arbitrary.24 There were also voices stating that the judgment of the European Court of Human Rights did not signify so much the end of the practice of displaying crosses in schools, but rather the end of the Court’s good standing.25 Before the judgment issued on 3 November 2009 was reviewed and adjusted by the Grand Chamber (which, in its ruling of 18 March 2011, asserted that “article 2 of Protocol 1 was not infringed and no conclusion to the contrary follows from article 9 of the Convention”),26 it was quoted in public debates in Poland as an argument in favour of removing crosses from public spaces. There was, for example, considerable publicity around a petition submitted by several students from a high school in Wrocáaw to its headmaster. The applicants demanded that symbols representing one outlook on the world be removed from the school. However, their initiative did not gain much support, neither did it result in the cross being removed from the school.27 In response to a parliamentary question asked 22

See Piechowiak, Marek. 2011. “Negatywna wolnoĞü religijna i przekonania sekularystyczne w Ğwietle sprawy Lautsi przeciwko Wáochom” [Negative Religious Freedom and Secular Convictions in the context of the case of Lautsi v. Italy]. Przegląd Sejmowy 5(2011):51-56. 23 Kowalski, Michaá. 2010. “Kolejny strasburski kamieĔ milowy? – komentarz do wyroku ETPCz w sprawie Lautsi v. Wáochom” [Another Strasbourg Milestone? Commentary to the judgment of the ECHR in the case of Lautsi v. Italy]. Europejski Przegląd Sądowy 3(2010):48-51. 24 See Derlatka, Marek. 2010. “KrzyĪ w szkole a prawo do wolnoĞci myĞli, sumienia i religii” [Crosses in Schools and the Right to the Freedom of Thought, Conscience and Religion]. Palestra 5-6(2010):113-116. 25 Baáa, Paweá, and Adam Wielomski. 2010. “Glosa do wyroku Europejskiego Trybunaáu Praw Czáowieka w Strasburgu w sprawie Lautsi v. Italy (apl. nr 30814/06)” [Note on the judgment of the European Court of Human Rights in Strasbourg in the case of Lautsi v. Italy, Application no. 30814/06]. Pro Fide, Rege et Lege 1(2010):28-42. 26 Text of the judgment translated into Polish: Przegląd Prawa Wyznaniowego 3(2011):157-210. 27 See Tryczyk, Mirosáaw, and Tomasz Chabinka. 2012. “"Szczeniacki bunt máodzieĪy" w XIV Liceum Ogólnoksztaácącym we Wrocáawiu czyli problem obecnoĞci religii w systemie oĞwiaty polskiej z perspektywy ucznia i nauczyciela

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in connection with that situation, on behalf of the Minister of National Education it was stated that: “The presence of religious symbols in public places results from the freedom of conscience and religion guaranteed under article 53 of the Constitution of the Republic of Poland”, and a decision regarding the presence of a cross in school rooms “should be made by the entire community of a given school and should be a sign of their social maturity and ability to take advantage of religious freedom”. It was emphasized that a school headmaster should ensure that “such a decision be taken responsibly and without causing tensions and conflicts within a school”.28 The judgment of the European Court of Human Rights of 3 November 2009 was also commented on and discussed in the Polish Parliament. The resolution passed by the Polish Sejm on 3 December 2009 expressed “concern over the decisions damaging religious freedom, ignoring the rights and feelings of religious people, and disturbing social peace”. The ruling issued by the Strasbourg Court was also assessed in decidedly negative terms. It was emphasized that: “The cross is not only a religious symbol and a token of God’s love for people, but in public spaces it is also reminiscent of the readiness to sacrifice oneself for the good of others, and expresses the values shaping respect for the dignity of every human being and his or her rights”.29 The Senate of the Republic of Poland commented on the matter in a similar vein. In its resolution of 4 February 2010, it emphasized the profound meaning behind the symbol of the cross (which was described as a symbol of “commonly accepted universal values, as well as striving towards truth, justice, and freedom of our Motherland”). It was concluded that: “Any attempts at banning the cross from schools,

widziany” ["Juvenile Rebellion" at XIV High School in Wrocáaw – the presence of religion in Polish education from the point of view of students and teachers]. In ObecnoĞü religii w publicznym systemie oĞwiaty w aspekcie prawnym [The Presence of Religion in Public Education – Legal Aspect], edited by Tadeusz J. ZieliĔski, 127-137. Warszawa: Wydawnictwo Naukowe ChAT. 28 OdpowiedĨ sekretarza stanu w Ministerstwie Edukacji Narodowej – z upowaĪnienia ministra – na interpelacjĊ nr 13598 w sprawie wiąĪącej interpretacji przepisów dotyczących obecnoĞci symboli religijnych w miejscach publicznych, w szczególnoĞci krzyĪy w szkoáach [A reply of the State Secretary, on behalf of the Minister of National Education, to parliamentary question no. 13598 regarding a binding interpretation of the provisions pertaining to the presence of religious symbols in public areas, in particular the presence of crosses in schools], www.sejm.gov.pl (accessed June 15, 2015). 29 Monitor Polski 2009, no. 78, item 962.

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hospitals, offices, and public spaces in Poland are to be perceived as harmful to our tradition, history, and national pride”.30 The standpoint taken by the European Court of Human Rights in 2009 encouraged a Polish citizen who, like an inhabitant of àódĨ more than 10 years before, filed a lawsuit demanding, on the basis of the regulations concerning the protection of personal interests, that a cross be removed from the rooms of the City Hall in ĝwinoujĞcie. However, the Court of Appeal in Szczecin, investigating that case as a second instance, was confident that the claim was not to be recognized.31 In 2011, a group of Members of Parliament from the political party Ruch Palikota (a short-lived political party that was extremely liberal and anticlerical in its opinions) questioned the presence of the cross in the Plenary Session Chamber of the Sejm. In a letter dated 9 November 2011, they requested that: “An order should be issued for the removal of the Latin cross located in the meeting room of the Polish Sejm”. Nevertheless, such a decision was not issued, and before settling the case, the then Speaker of the Sejm commissioned the preparation of four legal opinions whose authors represented different academic centres.32 Even though the said opinions emphasized different aspects of the issue, their authors unanimously concluded that the presence of the cross in the Plenary Session Chamber of the Polish Sejm did not violate the provisions of Polish law and, in particular, was not inconsistent with the regulations of the Constitution of the Republic of Poland.33 Another initiative aimed at removing the cross from the Sejm chamber was undertaken by several MPs from the above-mentioned party. They filed a lawsuit for the protection of their personal interests, claiming that those were infringed by the presence of the cross in the chamber. The Court of Appeal in Warsaw decided on 9 December 2013, just like in the 30

Monitor Polski 2010, no. 7, item 57. See the above-mentioned (footnote 12) judgment of the Court of Appeal in Szczecin of 25 November 2010 (ref. I ACa 363/10). A note of approval regarding the ruling was written by ZawiĞlak, Michaá. 2013. “Glosa [do wyroku Sądu Apelacyjnego w Szczecinie z dnia 25 listopada 2010 roku (I ACa 363/10)]” [Note to the judgment of the Court of Appeal in Szczecin of 25 November 2010 (ref. I ACa 363/10)]. Przegląd Prawa Wyznaniowego 5(2013):209-216. 32 Those authors were Roman Wieruszewski (Polish Academy of Sciences), Ryszard Piotrowski (University of Warsaw), Lech Morawski (Nicolaus Copernicus University in ToruĔ), Dariusz Dudek and Piotr Stanisz (John Paul II Catholic University of Lublin). 33 See Zeszyty Prawnicze Biura Analiz Sejmowych 4(2011):55-112. 31

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case of similar proceedings considered by the Courts of Appeal in àódĨ and Szczecin in earlier years, that the claim regarding an infringement of personal interests was groundless.34 The above-mentioned judgment made by the Court of Appeal in Warsaw could be considered the end of the contemporary stage of the legal dispute regarding the presence of the cross in Polish public spaces. Those who put into question the solutions that were developed after 1989 (and related to pre-war Polish traditions) were motivated and inspired by the first judgment of the European Court of Human Rights in the case of Lautsi v. Italy. It is, therefore, hardly surprising that when the Grand Chamber of that Court passed a radically different adjudication, the influence of such people and the social appeal of their arguments were considerably weakened.35 The standpoint taken by Polish public authorities also played a significant part, as they consistently and uniformly dismissed the claims for removing the cross from public spaces. However, taking the uncompromising nature of the accusations which were levelled claiming that the presence of the cross violated the principle of freedom of thought, conscience and religion, the arguments proposed by both parties to the dispute should be considered, starting with an analysis of the provisions of Polish law which guarantee this freedom.

2. Provisions guaranteeing freedom of thought, conscience and religion in the Republic of Poland Among the Polish provisions as far as freedom of outlook on the world is concerned, it is the Polish Constitution of 2 April 1997 that is of the 34

Lex 1428254. A note of approval: Stanisz, Piotr. 2014. “Glosa do wyroku Sądu Apelacyjnego w Warszawie z dnia 9 grudnia 2013 r. (sygn. akt I ACa 608/13)” [Note to the judgment of the Court of Appeal in Warsaw of 9 December 2013 (ref. I ACa 608/13)]. Przegląd Sejmowy 5(2014):152-158. 35 This does not mean that there were no critical voices regarding the judgment of the Grand Chamber. A critical note was written by Brzozowski, Wojciech. 2011. “Glosa do wyroku Wielkiej Izby z 18 III 2011 w sprawie Lautsi v. Wáochy, nr skargi 30814/06” [Note to the judgment of the Grand Chamber of 18.03.2011 in the case of Lautsi v. Italy, Application no. 30814/06]. PaĔstwo i Prawo 11(2011):121-126. On the other hand, a note of approval was written by Derlatka, Marek. 2011. “Glosa do wyroku Wielkiej Izby ETPCz w Strasburgu z 18 marca 2011 r. w sprawie Lautsi v. Italy” [Note to the judgment of the Grand Chamber of the ECHR in Strasbourg of 18.03.2011 in the case of Lautsi v. Italy]. Palestra 78(2011):119-122.

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utmost importance.36 In it, “the freedom of conscience and religion” is guaranteed for everyone (article 53), and “innate and inalienable human dignity” is considered the source of all freedoms and human and civil rights (article 30). This differs considerably from the approach adopted in the Constitution of the Polish People’s Republic of 22 July 1952,37 in which the said freedom was perceived in terms of civil rights whose content and even very existence depended on the decisions made by state authorities. The provisions of the 1997 Constitution were based on the concepts underlying the solutions introduced in international agreements pertaining to the protection of human rights, in which freedom of thought, conscience and religion is described as a right vested in “everyone”.38 The agreements in question, if subject to ratification and, if ratified by Poland (including, in particular, the International Covenant on Civil and Political Rights39 or the European Convention on Human Rights40), are not only a point of reference for making laws (with the legislator being obliged to ensure that the provisions of the law introduced are consistent with international standards), but also constitute part of the country’s legal system and are applied directly unless their application is dependent on passing a relevant act. Moreover, according to the hierarchy of the sources of law in Poland, such agreements, after they are ratified upon consent expressed in a relevant legal act, have priority even over the acts themselves, if statutory regulations of such acts cannot be reconciled with the provisions of these agreements (article 91 para. 1-2 of the Polish Constitution). In the context of protecting religious freedom in Poland, one should take into account also the Act of 17 May 1989 on the Guarantees of Freedom of Conscience and Religion,41 as well as acts governing the 36

Dziennik Ustaw 1997, no. 78, item 483, as amended. Dziennik Ustaw 1976, no. 7, item 36, as amended. 38 ZieliĔski, Tadeusz J. “Klauzule prawnowyznaniowe jednolitego projektu konstytucji RP (Uwagi de lege fundamentale ferenda)” [Clauses of the Consolidated Draft of the Polish Constitution Regarding Religion (Comments de lege fundamentale ferenda)]. PaĔstwo i Prawo 2(1997):83-84. 39 Dziennik Ustaw 1977, no. 38, item 167. 40 Dziennik Ustaw 1993, no. 61, item 284. 41 See ZieliĔski, Tadeusz J. 2009. “Ustawa o gwarancjach wolnoĞci sumienia i wyznania z 1989 r. jako "magna carta" swobód Ğwiatopoglądowych w Polsce” [The Act of 1989 on the Guarantees of Freedom of Conscience and Religion as the "magna carta" of Freedom of Outlook in Poland]. In Prawo wyznaniowe w Polsce (1989-2009). Analizy – dyskusje – postulaty [Polish Law Regarding Religion 37

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relations between the Republic of Poland and particular churches and other religious organizations42 (and in the case of the Catholic Church also the Concordat between the Holy See and the Republic of Poland, concluded on 28 July 199343). In addition, the freedom in question is also protected under certain provisions of criminal law. According to that law, offences against freedom of conscience and religion include religious discrimination, malicious disturbance of public religious activities (and malicious interference with funeral ceremonies and rites), and the offence of insulting religious feelings (see chapter XXIV of the Act of 6 June 1997 – Penal Code44). The freedom of conscience, interpreted as a personal interest, is also subject to protection under the provisions of civil law (see articles 23-24 of the Act of 23 April 1964 – Civil Code45). The subjective scope of the freedom guaranteed in article 53 of the Polish Constitution should be explained in reference to its components: freedom of conscience and freedom of religion. It should also be pointed out that the phrasing used in this regulation (“freedom of conscience and religion”) has a narrower meaning than the words used in similar contexts in international agreements (“freedom of thought, conscience and religion”). Even if this is considered a flaw of the Polish constitutional provisions and even if it is justified to claim that the terminology used in the constitutional regulations pertaining to the freedom in question is chaotic, it is difficult to agree that “in consequence, the constitutional definition of freedom of conscience and religion was limited to the freedom to choose and practise a religion”, which will necessarily have a (1989-2009): Analyses – discussions – proposals], edited by Dariusz Walencik, 53-65. Katowice – Bielsko-Biaáa: Wydawnictwo WyĪszej Szkoáy BankowoĞci i Finansów w Bielsku Biaáej. 42 As of 30 November 2015, it applies to 15 religious organizations, including – apart from the Catholic Church: Polish Autocephalous Orthodox Church, Evangelical Church of the Augsburg Confession, Evangelical Reformed Church, Evangelical Methodist Church, Christian Baptist Church, Seventh-day Adventist Church, Polish Catholic Church, Jewish religious communities, Catholic Mariavite Church, Old Catholic Mariavite Church, Pentacostal Church (the acts applicable to them were passed after 1989), and Eastern Old Believers Church which has no spiritual hierarchy, Muslim Religious Community, and Karaite Religious Community (which still function according to pre-war regulations). See Rynkowski, Michaá. 2005. “State and Church in Poland.” In State and Church in the European Union, edited by Gerhard Robbers, 427-428. Baden-Baden: Nomos. 43 Dziennik Ustaw 1998, no. 51, item 318. 44 Dziennik Ustaw 1997, no. 88, item 553, as amended. 45 Dziennik Ustaw 2016, item 380, as amended.

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negative impact on the legal situation of non-believers.46 The commonly accepted broad interpretation of “freedom of conscience” (as discussed below) and an analysis of the work regarding the provisions concerning the freedom in question performed by the Constitutional Commission of the National Assembly contradict such claims.47 Moreover, it should not be forgotten that the freedom to express non-religious opinions and beliefs is definitely covered by the guarantees of freedom to express opinions included in article 54 of the Polish Constitution.48 While “freedom of conscience” is guaranteed under the Polish Constitution, it is not defined there. In Polish literature on the subject, it is often assumed that freedom of conscience means internal freedom to choose one’s outlook on the world (whether religious or non-religious, whether already accepted as part of some already existing religious community or individual) and to make moral choices and assessments.49 However, due to the progress made in scientific reflection regarding the meaning of the constitutional provisions, the presented understanding of “freedom of conscience” needs to be extended to cover the freedom to act according to the rules dictated by one’s conscience (regardless of their origin).50 One should agree with the following opinion of the Constitutional Tribunal: “Freedom of conscience is not limited to the right to represent a certain outlook on the world, but first and foremost includes .

46

Cf. Pietrzak, Michaá. 1997. “Stosunki paĔstwo-koĞcióá w nowej Konstytucji” State-Church Relations in the New Constitution]. PaĔstwo i Prawo 1112(1997):182; more on the subject: Szymanek, Jarosáaw. 2006. “WolnoĞü sumienia i wyznania w Konstytucji RP” [Freedom of Conscience and Belief under Poland’s Constitution]. Przegląd Sejmowy 2(2006):49-53. 47 See Sobczyk, Paweá. 2001. “WolnoĞü sumienia i religii w art. 53 Konstytucji Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r.” [Freedom of Conscience and Religion in Article 53 of the Polish Constitution of 2 April 1997]. Prawo Kanoniczne 3-4(2001):212. 48 Misztal, Henryk. 2011. “Konstytucyjne gwarancje wolnoĞci sumienia i religii” [Constitutional Guarantees of the Freedom of Conscience and Religion]. In Artur Mezglewski, Henryk Misztal, and Piotr Stanisz, Prawo wyznaniowe [Law on Religion], 70. Warszawa: C. H. Beck. 49 See Krukowski, Józef. 2005. Polskie prawo wyznaniowe [Polish Law on Religion], 73. Warszawa: LexisNexis; Banaszak, Bogusáaw. 2009. Konstytucja Rzeczypospolitej Polskiej. Komentarz [Constitution of the Republic of Poland: A Commentary], 271. Warszawa: C. H. Beck. 50 See Szymanek, Jarosáaw. 2007. “Konstytucjonalizacja prawa do wolnoĞci myĞli, sumienia, religii i przekonaĔ” [Right to Freedom of Thought, Conscience, Religion and Beliefs in the Constitution]. Studia z Prawa Wyznaniowego 10(2007):110.

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the right to act according to one’s own conscience and the right not to be forced to act against one’s own conscience”.51 The Polish legislator paid more attention to “freedom of religion”, devoting to it a long passage in article 53 of the Constitution. According to para. 2 thereof, “freedom of religion” primarily includes “the freedom to profess or to accept a religion of one’s own choice, as well as to manifest one’s religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in rites, practising or teaching”, as well as “possession of sanctuaries and other places of worship depending on the needs of believers and the rights of individuals, wherever they may be, to benefit from religious services”. What also follows from the freedom of conscience and religion, as defined in the Constitution, is the right of parents to rear their children in accordance with their own convictions (article 48), as well as the right to teach the religion of a church or other legally recognized religious organization in schools (article 53 para. 4).52 It is an easily noticeable fact that the Polish constitutional provisions regarding the positive aspect of freedom of religion are more detailed than their international counterparts (such as, for example, article 9 para. 1 of the European Convention on Human Rights). Besides listing “prayer” among the ways of manifesting one’s religion, the Polish Constitution also enumerates such manifestations of freedom of religion as the right to possess temples and other places of worship, and the right to receive religious services wherever one may be. The unusually extensive character of the provisions pertaining to the extent of freedom of religion should be interpreted in the context of what people in Poland experienced during the time of the Polish People’s Republic, when such rights were not duly respected.53 A similar justification may be given to an extended (though still not exhaustive) list of rights following from the freedom in question, which can be found in the Act of 17 May 1989 on the Guarantees of 51

The judgment of the Constitutional Tribunal of 15 January 1991 (U 8/90). Orzecznictwo Trybunaáu Konstytucyjnego 1986-1995, vol. 3 (1991-1992), item 2; the judgment of the Constitutional Tribunal of 7 October 2015 (K 12/14). Orzecznictwo Trybunaáu Konstytucyjnego. Zbiór UrzĊdowy 2015 – A, no. 9, item 143. 52 See Winczorek, Piotr. 2015. “WolnoĞü wyznaniowa” [Freedom of Religion]. PaĔstwo i Prawo 4(2015):6-7. 53 See Stanisz, Piotr. 2004. “Chiesa cattolica e libertà religiosa in Polonia.” In Chiesa cattolica ed Europa centro-orientale. Libertà religiosa e processo di democratizzazione, edited by Antonio G. Chizzoniti, 34-35. Milano: Vita e Pensiero.

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Freedom of Conscience and Religion (article 2). Not all of those detailed rights are merely a (sometimes slightly more extended) repetition of the constitutional provisions or provisions of international agreements on human rights (e.g., the right to take part in religious activities and rites, the right to fulfil religious obligations and celebrate religious holidays according to the rules of one’s creed and the right to promote one’s religion or convictions). There are also rights which are conceptually based on these provisions (e.g., the right to form religious organizations and the right to join them or remain outside of their structures, the right to remain silent in matters pertaining to one’s religion or convictions, the right to enter the priesthood or to become a nun or a monk, and the right to be buried in accordance with one’s religious principles or convictions regarding religion). What is more, it is emphasized in article 4 of the aforementioned act that the right to take part in religious activities and rites, the right to fulfil religious duties, the right to celebrate religious holidays, and the right to possess and use objects necessary for practising one’s religion and for religious practices are also vested in people doing military service, remaining in healthcare institutions, and undergoing punishment in penal institutions.54 In addition to the above-mentioned regulations regarding the positive aspect of “freedom of religion”, article 53 of the Polish Constitution also contains provisions pertaining to the negative aspect of the freedom in question (that is, freedom from coercion in matters pertaining to religion or convictions). According to para. 6 of the said article, “no one shall be compelled to participate or not participate in religious practices”. Para. 7, in turn, states that: “No one may be compelled by organs of public authority to disclose their philosophy of life, religious convictions, or belief”. In article 53 para. 4, regulating the right to teach religion in schools, it is expressly stated that the exercise of this right cannot infringe other people’s freedom of conscience and religion.55 While enumerating the regulations of Polish law with regard to freedom from coercion in matters of religion and convictions, one should not omit article 18 para. 2 of the International Covenant on Civil and Political Rights (stating that: “No one shall be subject to coercion which would impair their freedom to have or adopt a religion, or convictions of 54

See Misztal, Henryk. 1993. “KoĞcielne pojĊcie wolnoĞci religijnej a ustawa o gwarancjach wolnoĞci sumienia i wyznania z 1989 r.” [Religious Freedom as Understood by the Church and the Act of 1989 on Guarantees of Freedom of Conscience and Religion]. KoĞcióá i Prawo 11(1993):110-111. 55 See Winczorek, Piotr. 2015, 7.

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their own choice”), and article 6 para. 2 of the Act of 17 May 1989 on the Guarantees of Freedom of Conscience and Religion (under which it is forbidden to compel people to take part or not take part in religious activities or rites). The freedom to manifest one’s religion is, obviously, not absolute, and in exceptional cases it may be subject to limitations. Such limitations have to meet the requirements expressly provided for in article 53 para. 5 of the Polish Constitution, and in the relevant provisions of international law (particularly in article 9 para. 2 of the European Convention on Human Rights).56 They can be regarded as permissible only when they are introduced on the basis of an act and they are justified by the necessity to protect state security, public order, health, morals or freedoms and rights of other people. According to article 233 of the Polish Constitution, further limitations are not justified, even under extraordinary circumstances (e.g., martial law, state of emergency, or state of natural disaster). It should be pointed out that when situations in which it is permitted to limit the right to manifest religion are defined in the Polish Constitution, no reference is made to article 31 para. 3, which pertains to “limitations upon the exercise of constitutional freedoms and rights” in genere (that is, also to limitations regarding exercising the right to the freedom of conscience); separate regulations were created instead. A comparison of the above-mentioned provisions leads to the conclusion that the freedom to express religion was given priority treatment. The catalogue of values whose protection justifies introducing limitations is narrower in the case of the freedom to express religion than in the case of other constitutional rights and freedoms. Environmental protection is not listed in article 53 para. 5, although it is taken into account in article 31 para. 3 of the Constitution. On the other hand, the catalogue presented in article 53 para. 5 of the Polish Constitution corresponds, in essence, to similar enumerations included in international agreements pertaining to the protection of human rights. There is only one doubt as to whether or not it was justified to include “state security” in article 53 para. 5 of the Polish Constitution. International agreements usually mention “public security”

56

Permissible limitations of the freedom to express one’s religion according to the provisions referred to in the main text are discussed by, inter alia: Evans, Carolyn. 2001. Freedom of Religion under the European Convention on Human Rights, 133-164. Oxford: Oxford University Press; Banaszak, Bogusáaw. 2009, 275-276.

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in similar contexts, which seems more appropriate.57 Finally, according to the Polish Constitution, limitations of the freedom to express religion shall not infringe the very essence of freedom of religion. This conclusion does not follow from article 53 para. 5 – it is to be derived from article 31 para. 3. As was rightly pointed out by the Constitutional Tribunal, the former provision “does not exclude applying the rule of proportionality expressed in article 31 para. 3 of the Constitution, at least to the extent in which the normative content of these two provisions does not overlap; this applies, in particular, to the criterion related to the very essence of rights and freedoms, which is crucial in determining permissible limitations”.58

3. Presence of the cross in public spaces in the context of the freedom to manifest religion Taking the wording of the above-mentioned regulations into account, one should not doubt that the right to manifest one’s religion also includes the right to do so using signs and symbols that signify one’s belonging to that religion and adherence to a certain set of convictions. For Catholics, this function is fulfilled by crosses (or scapulars or medallions with the image of Holy Mary and the saints) worn on fine chains around the neck. This behaviour can doubtlessly be classified as a way of exercising the right to the freedom to manifest religion. Even though it does not follow from any formal religious obligation, this behaviour is very closely associated with Catholicism (or, on a more general level, with Christianity). For Christians and, in particular, for Catholics, the cross (taking on many forms) is a fundamental symbol of their religion, a sign of redemption and salvation at the hands of Jesus Christ, as well as a symbol of God’s love and mercy; this is connected with the profundity of the different currents of the theology of the cross and the diverse forms of its worship.59 Wearing a cross (or a scapular or a medallion with the image of 57

Misztal, Henryk. 2011, 72; Winiarczyk-Kossakowska, Maágorzata. 2001. “WolnoĞü sumienia i religii” [Freedom of Conscience and Religion]. Studia Prawnicze 1(2001):37-38. 58 The judgment of the Constitutional Tribunal of 16 February 1999 (SK 11/98). Orzecznictwo Trybunaáu Konstytucyjnego 1999, no. 2, item 22. 59 See Gigilewicz, Edward, et al. 2004. “KrzyĪ.” [Cross] In Encyklopedia Katolicka [Catholic Encyclopaedia], vol. X, col. 11-55. Lublin: Towarzystwo Naukowe KUL.

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Holy Mary or the saints) is a tradition that is both well-rooted and carefully preserved in Poland, as well as in other countries. In the judgment of 15 January 2013 in the case of Eweida and Others v. the United Kingdom (Application no. 48420/10, 59842/10, 51671/10 and 36516/10), the European Court of Human Rights confirmed that wearing a cross in a visible place is a protected form of expressing one’s religious convictions (see §§ 89 and 97). The right to manifest one’s religion does not, however, only cover the behaviour of individuals, but it also applies to activities performed together with other people. Consequently, group behaviours that can be interpreted as “worshipping, praying, participating in rites, practising, and teaching” (article 53 para. 2 of the Polish Constitution) are also subject to protection. In Poland, like in many other European states, a range of such behaviours is connected with displaying the cross. They include: carrying a cross (especially a crucifix) at the front of a procession or a funeral cortège, bestowing blessings with the use of a cross, and placing or hanging a cross not only in churches or on top of them or in their vicinity, but also in apartments and other places where people habitually spend time, work, or study, as well as at many other places, such as for example road intersections.60 It should be emphasized here that placing a cross outside of a strictly sacred context, particularly in areas that are of pivotal importance for Poles as a nation or for smaller communities, or even for individual people, has been strongly rooted in Polish culture for centuries.61 The cultural aspect of the presence of the cross in Polish public space has already been taken into account in the literature. It has been emphasized that the presence of the cross in public spaces should not be interpreted exclusively in the context of provisions pertaining directly to issues connected with an outlook on the world (and, even less so, only in the context of provisions governing the relations between Church and State), because the presence of religious symbols in public spaces is “first 60

The long and strong presence of such practices in Poland was confirmed by what John Paul II said at the Wawel Castle on 10 June 1987 during his third pilgrimage to Poland: “Praised be thy name, the Cross, for wherever you are, in the fields, next to roads, in places where people suffer and die... where they work, study, and create... Everywhere, close to the bosom of every man [...]”. "Do koĔca ich umiáowaá". Jan Paweá II. Trzecia wizyta duszpasterska w Polsce 8-14 czerwca 1987 roku ["He loved them to the end". John Paul II. Third pastoral visit to Poland, 8-14 June 1987], 103. Watykan: Libreria Editrice Vaticana 1987. 61 See OĪóg 2010, 9-56.

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and foremost an element of political culture”. It was pointed out that the significance of a religious symbol may evolve and that such a symbol, when appearing outside of its sacred contexts, has the potential to acquire new meanings, becoming a token of belonging to certain social groups or indicating the acceptance of certain convictions. Consequently, many symbols known today (including the cross), in spite of their primary religious significance, are now perceived by society as symbolizing a certain cultural background or way of life; this in turn justifies their presence even in the public space of states that define themselves as secular.62 The conviction that the cross is associated with significance going beyond strictly religious matters and that it is connected with Polish identity has been expressed by, inter alia, the Polish parliament63 and courts. In its judgment of 28 October 1998, the Court of Appeal in àódĨ pointed out that “the paths Poles took to win their freedom were marked and measured with crosses, even though those paths did not always begin in the same place” and, in connection with this, that “as far as nonreligious collective activities are concerned, [...] the meaning of the cross as a token of respect for and connection with those who liberated the Motherland is even of the utmost importance”. The Court of Appeal in Szczecin voiced a similar opinion in its judgment of 23 November 2010, stating that: “The cross is perceived by Polish society not only as a symbol of the Catholic religion, but also as a sign of universal values derived from the Christian tradition, which have become part of Polish material and spiritual culture”. Owing to this significance, following from the ties Polish culture has with Christianity, the presence of the cross is to be allowed not only in the classrooms of public schools, but also in other rooms used by public authorities.64

62

See Szymanek, Jarosáaw. 2012. “ObecnoĞü symboli religijnych w przestrzeni publicznej” [The Presence of Religious Symbols in Public Space]. In Prawne granice wolnoĞci sumienia i wyznania [Legal Limits of Freedom of Conscience and Religion], edited by Roman Wieruszewski, Mirosáaw Wyrzykowski and Lena Kondratiewa-Bryzik, 33-46.Warszawa: Wolters Kluwer. 63 See the quotation from the resolutions of the Chambers of the Polish Parliament in the first part of the present article. 64 Such an opinion was voiced by the following authors with regard to the cross in the Sejm meeting room: Roman Piotrowski, Lech Morawski, Dariusz Dudek and Piotr Stanisz (pp. 58-67, 99-104, and 108). See footnote 33 above.

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Without undermining the validity of the foregoing findings,65 it should be pointed out that there is another important aspect of the issue in question, namely, the consequences of the natural right of national and ethnic groups (and, consequently, also their individual members) to perform activities and practise the traditions shaped within these groups.66 This issue has attracted very little attention in the discussion regarding the presence of the cross in Polish public spaces. Nevertheless, the Constitution of the Republic of Poland clearly defines an obligation to “safeguard the national heritage” (article 5), such heritage being perceived as “the source of the Nation’s identity, continuity, and development” (article 6, para. 1). This obligation doubtlessly pertains to the material and spiritual legacy of the past, which also includes traditions and customs. Such an understanding of the heritage under discussion is indirectly confirmed by article 35 of the Constitution. The article implicitly refers to the heritage of national and ethnic minorities, while the Polish citizens who belong to them are ensured “the freedom to maintain and develop their own language, to maintain customs and traditions, and to develop their own culture”. There do not seem to be any grounds for drawing different conclusions with regard to respect for the heritage of the majority of society, just as there are no grounds for excluding from the scope of the freedom in question the right to cultivate customs or traditions having religious connotations, entailing the use of religious terminology, or referring to religious symbolism. This, in turn, indicates that the obligation to safeguard the national heritage established under article 5 of the Polish Constitution is in concreto connected with an obligation to respect the customs and traditions that have been forming on Polish soil for centuries; one such custom is hanging a cross as a religious symbol in places such as homes, workplaces, and schools by religious people. It should nevertheless be repeated that Polish law does not require that a cross be present in any place. Leaving aside the separate issue of objects protected under regulations on the protection of monuments, it can be concluded that displaying a cross (or other religious symbols) should be guided by the will of the relevant authorized subjects. As far as the scope of the issue under analysis in this paper is concerned, there are no major 65 That was clearly assumed by the author in earlier publications. See Misztal, Henryk, and Piotr Stanisz. 2010, 53-4; Dudek, Dariusz, and Piotr Stanisz. 2011, 99-103; Stanisz, Piotr. 2014, 164-6. 66 Piotr Winczorek pointed out the need to take the customs into account when analysing matters related to the presence of the cross in public space, see Winczorek, Piotr. 2015, 9-10.

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doubts regarding individuals wearing a cross, hanging a cross on the walls of their apartments, or placing it on their private property. Much more complex is undoubtedly the question of the manner of taking decisions regarding the permanent presence of this symbol in places whose character is defined by their usage by public authorities or other public institutions (which, nevertheless, are also workplaces). It seems clear that attempting to solve this problem with the use of legal instruments betrays an inability to reach a mature compromise in which no one is forced to resign from his or her identity, but should be able to accept the views of others, especially if they belong to the majority. Returning to the discussion of the legal regulations, it should once more be emphasized that crosses reappeared in schools, hospitals, and some offices as a result of grassroots initiatives widely supported by the general public during the period of democratic transformations. It follows from the generally accepted principles that the existing situation does not need to be justified; it is the will to change this that should be substantiated. In the case of newly decorated or created rooms and places, the decision of whether or not to display a cross should be responsibly taken by people who are going to use them. It may be accepted that no one has the right to appropriate public space; however, when defining appropriation, one cannot ignore well-established customs and traditions. When these are taken into account, one is led to conclude that such an appropriation of public space would take place if a religious symbol was displayed, without regard for the opinions of others in a manner inconsistent with the established custom, and also if displaying crosses in a customarily accepted manner was completely banned from workplaces. One should remember the judgment of the Supreme Court of 6 September 1990 (I PRN 38/90), in which it was concluded that the employee of a healthcare clinic who refused to take down a cross (which she had previously hung) from a wall in her office did not infringe any employee duties. Consequently, the sanction applied by the employer, consisting of the termination of the employment relationship, was declared inconsistent with the commonly accepted principles of social co-existence.67 Likewise, one cannot agree with the claim that the presence of religious symbols in rooms used by public authorities ex definitione violates the constitutional principle of the impartiality of public authorities in matters of personal convictions (article 25 para. 2 of the Polish 67

Orzecznictwo Sądu NajwyĪszego. Izba Cywilna i Pracy 1991, nos. 10-12, item 126.

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Constitution), which would justify limiting the freedom to manifest religion in order to maintain public order. Without delving too deeply into matters which are discussed extensively elsewhere in this publication, let us take note of the fact that the said provision of the Constitution not only pertains to an obligation on the part of public authorities to retain impartiality in matters of personal convictions, but also expressly obliges them to ensure that convictions can be freely expressed in public life. It should be noted that the constitutional legislator, who is, after all, the public authority par excellence, while not declaring Catholicism the official religion of the state and not making the law in force subject to this religion, decided to symbolically emphasize the religious origin of the values representing the core of Polish culture, which was clearly asserted to be inextricably connected to “the Christian heritage of the Nation” (see the preamble to the Polish Constitution). The standard of applying the principle of impartiality provided in this way doubtlessly includes a prohibition against following one’s religious sympathies and antipathies while making administrative decisions. It does not, however, oblige public officials to completely forget about their religion, it does not forbid them to look for religious motivation for properly fulfilling their obligations, and it does not oblige them to resign from any references to religion (even though they should, obviously, refrain from officially promoting specific convictions).68 Consequently, while one could agree with the statement that “the legal status of an individual is modified if they start performing public functions” (without automatically assigning priority to the negative aspect of religious freedom and acknowledging that it is very difficult, in practice, to exactly define the scope of relevant limitations), it is rather disputable to claim that: “If there is doubt, contentious behaviour should 68 Piotr Winczorek wrote: “The Constitution does not force people holding offices in public administration bodies to disavow or hide their religious convictions, their outlook on life, or their philosophical opinions”. Like everyone else, they have “the right to adhere to ideals and voice them (see article 53 para. 1-2, 5-7, article 54 para. 1, article 73). However, when taking certain types of decisions (legislative, administrative, judicial, etc.), public authorities should act according to the law in force, having the common good and public interests in mind, and not according to religious beliefs or their outlook on life, or their philosophical opinions, whatever those may be. While addressing the general public and while representing the Republic of Poland, public officials should refrain from promoting any such beliefs, convictions, or opinions”. Winczorek, Piotr. 2008. Komentarz do Konstytucji Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 roku [Commentary to the Polish Constitution of 2 April 1997], 67. Warszawa: Liber.

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be ascribed to the state” (which would justify limitations), because the “impartiality of public authorities in matters of convictions and its guarantees [...] are of greater importance than the freedom to express one’s convictions, religious or otherwise”.69 Contrary to the critical opinion expressed in the doctrine (and with all due respect for the academic authority of the author of this opinion), I believe that, in a state based on respect for human rights and freedoms stemming from the innate and inalienable dignity of the human being (see article 30 of the Polish Constitution), it would rather be justified in this context to refer to the maxim of in dubio pro libertate.70 According to the constructs that are commonly accepted in the democratic world, exercising a legally guaranteed freedom does not need to be justified. What needs to be justified is limiting that freedom. Limitations are possible when they fulfil some clearly defined requirements. Pursuant to the Polish Constitution, constitutional rights and freedoms may be limited, in particular if there are clear reasons for introducing such limitations in the provisions of the Constitution itself or in relevant acts. The provision of the Constitution obliging public authorities to remain impartial in matters of convictions and, at the same time, obliging them to ensure the freedom to express convictions in public life (article 25 para. 2) and to be aware of the fact that Polish culture is inextricably connected with the Christian heritage of the nation (preamble), associated with a duty to safeguard the national heritage (article 5), cannot be interpreted as the constitutional legislator’s intention to limit the rights of individuals holding public offices to symbolically manifest their religious convictions, particularly in a manner deeply rooted in tradition. To conclude the discussion on the permissibility of limitations regarding the freedom to manifest religion indicated in article 53 para. 5 of the Polish Constitution, and article 9 para. 2 of the European Convention on Human Rights, it should be remarked that using religious symbols by individuals could pose a threat to public safety, security, health, or morality only under extraordinary circumstances. In Poland, this issue, 69 Cf. Brzozowski, Wojciech. 2011. BezstronnoĞü Ğwiatopoglądowa wáadz publicznych w Konstytucji RP [Impartiality of Public Authorities in Matters of Conviction in the Polish Constitution], 199-209. Warszawa: Wolters Kluwer. 70 Cf. Brzozowski, Wojciech. 2012. “UzewnĊtrznianie przynaleĪnoĞci religijnej. Zagadnienia systemowe” [Expression of Religion: Systemic Issues]. In Prawne granice wolnoĞci sumienia i wyznania [Legal Limits of Freedom of Conscience and Religion], edited by Roman Wieruszewski, Mirosáaw Wyrzykowski and Lena Kondratiewa-Bryzik, 274-275. Warszawa: Wolters Kluwer.

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apart from its aspects discussed above, is not connected with any serious practical controversy. Due to this, it is given little attention in the literature of the subject, and the fact that limitations regarding the freedom to manifest religion may be introduced under special circumstances, e.g. for occupational health and safety reasons at one’s workplace, tends to be mentioned only in passing.71 What deserves a more thorough consideration is the question of the possibility of introducing such limitations in view of the rights and freedoms of other people, and particularly due to the right, vested in everyone, to religious freedom in the negative aspect.

4. Presence of the cross in public spaces versus freedom from coercion in religious matters In Poland, the question about the relationship between the presence of the cross in public spaces and the “negative religious freedom” of people remaining in those spaces assumes, for the most part, the form of controversy surrounding the alleged infringement of freedom of conscience understood as a personal interest. This is probably largely due to the general efficiency with which personal interests are protected under civil law. In this context, it is an important fact that, according to the relevant regulations, freedom of conscience is understood in a broad sense, and includes the wide range of freedoms of conviction guaranteed to everyone under the Polish Constitution and the provisions of international agreements. It is a well-established interpretation that freedom of conscience, perceived as a personal interest, means more than just the freedom to choose an outlook on the world (whether a religious or a non-religious one). For people who practise a specific religion, this freedom also includes the freedom “to express their religious convictions and perform religious practices”.72 Based upon the above-mentioned findings,73 it should be assumed that freedom of conscience also includes freedom to 71

See Mielczarek, Marcin. 2013. Realizacja wolnoĞci religijnej w zatrudnieniu pracowniczym [Religious Freedom at Work], 186-188. Warszawa: Difin. 72 The judgment of the Supreme Court of 12 June 2002 (III CKN 618/00). Orzecznictwo Sądu NajwyĪszego. Izba Cywilna i Pracy 2003, no. 6, item 84. Similarly: the judgment of the Supreme Court of 20 September 2013 (II CSK 1/13). LEX nr 1388592 (in which it was stated, inter alia, that “the personal interest known as the freedom of conscience also includes the freedom of religion”). 73 See part 2 of the present study.

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act in line with the rules dictated by one’s own conscience and, closely connected to it, freedom from being forced to act against these rules (including freedom from being forced to adopt a certain outlook on the world and take part in religious practices). Consequently, one might say that a person’s religious freedom in its negative aspect is infringed if a certain outlook on the world is imposed on them (by means of physical or moral duress or taking advantage of their naivety or lack of experience), and when a person is forced to take up religious practices or perform actions that are against their conscience. However, the claim that the negative aspect of religious freedom also includes the right to live and function in an environment without any religiously-motivated actions and completely purged of any references to sacrum, even if their presence is subjectively perceived by some people as religious pressure, is groundless. One of the consequences of respecting pluralism is the necessity to accept the presence of conflicting outlooks on the world, together with opinions, behaviours, and symbols connected with them, in public life. “A person claiming to be a non-believer should not […] expect to have no contact whatsoever with religious people, their practices, and their religious symbols”.74 A different perception of the freedom from coercion in religious matters would result in the destruction of the protection of the positive aspect of religious freedom, which is expressly and by no means coincidentally emphasized in the regulations pertaining to this matter.75 It should not be surprising that no Polish court has been, in any (known) case, convinced by the claimant that the presence of a cross in rooms used by public authorities (particularly in meeting rooms of the Sejm and city councils) infringed their freedom of conscience understood as a personal interest.76 Lastly, when discussing this issue one ought to take into account the judgment of the Grand Chamber of the European Court of Human Rights of 18 March 2011 in the case of Lautsi v. Italy. It would stand in contradiction with the judgment to claim that the presence of a cross in a given room which is against the will of a person infringes their freedom of thought, conscience and religion. In the justification of the judgment, it was concluded that a crucifix placed on a wall is “an essentially passive symbol” (§ 72). This was a clear departure from the previous ruling made with regard to the same case on 3 November 2009, in which it was 74

The judgment of the Supreme Court of 20 September 2013 (II CSK 1/13). See Piechowiak, Marek. 2011, 47-56. 76 See Stanisz, Piotr. 2014. “Glosa…”, 152-158. 75

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concluded, inter alia, that a crucifix hanging on a wall in a classroom may be considered a “powerful external symbol” (§ 54).77 The Grand Chamber reasonably concluded that: “A crucifix hanging on a wall cannot be said to have the same impact on pupils as instruction lessons regarding morality or as participation in religious practices” (§ 72 of the judgment of 2011). Consequently, since the presence of a crucifix does not infringe the negative religious freedom of young people whose convictions have not yet been fully formed, it would be unreasonable to conclude that it infringes the same freedom of adult people with a mature outlook on the world.

Conclusions Taking into account what Polish people experienced during the period of the Polish People’s Republic, it should not come as a surprise that attempts at limiting the presence of the cross in public spaces made on the basis of weak legal arguments were viewed by a considerable majority of Poles as an attempt to limit their freedom. Such opinions are, in fact, not entirely groundless. The freedom to manifest one’s religion is one of the fundamental consequences of freedom of thought, conscience and religion, respecting which is – under international agreements and constitutional provisions – a common feature of all democratic states, including the Republic of Poland. Proposals to limit the right to express one's faith in Jesus Christ using the cross are not sufficiently justified. They are inconsistent with the (commonly accepted) requirements, which need to be 77

Even though the judgement issued by the Grand Chamber should be accepted, it should be pointed out that it is not justified to draw conclusions from the actual distinction between a “passive symbol” and a “powerful external symbol”. As a matter of fact, these expressions (attractive though they may seem) may be used to hide the weaknesses in the justification of the decisions made. See Ciravegna, Monia. 2012. “La nozione di "segno esteriore forte" tra problemi di definizione e presunzione di lesività: la sentenza "Dahlab c. Svizzera".” In Diritto e religione in Europa. Rapporto sulla giurisprudenza della Corte europea dei diritti dell’uomo in materia di libertà religiosa, edited by Roberto Mazzola. 141-145. Bologna: Il Mulino; Kowalski, Michaá. 2012. “Symbole religijne w przestrzeni publicznej – w poszukiwaniu standardów europejskich” [Religious Symbols in Public Space: Searching for European Standards]. In Prawne granice wolnoĞci sumienia i wyznania [Legal Limits of Freedom of Conscience and Religion], edited by Roman Wieruszewski, Mirosáaw Wyrzykowski and Lena Kondratiewa-Bryzik, 63. Warszawa: Wolters Kluwer.

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met before the freedom to express religion is limited in any way. In particular, they are not justified by the need to protect the negative religious freedom of people not sharing that faith, because the legal concept of this religious freedom does not include a general right to function in an environment entirely devoid of unaccepted behaviours, contents, and symbols. It should be emphasized in connection with the foregoing that, in spite of the presence of the cross in public spaces, under Polish law, everyone is ensured the freedom from being obliged to adopt any specific outlook on the world or to take part in specific rites or acts of worship. Lastly, any discussion regarding the presence of the cross in public spaces should not ignore the fact that displaying a cross in places of living, working, or suffering is a long-standing tradition in Poland. It would be difficult to find any reasonable reasons to authoritatively restrict the possibility of preserving such customs, unless one believes that an ideal society is one “in which everything is permitted, except for publicly declaring one’s adherence to the rules of natural and Christian order”.78

References Banaszak, Bogusáaw. Konstytucja Rzeczypospolitej Polskiej. Komentarz [Constitution of the Republic of Poland: A Commentary]. Warszawa: C. H. Beck, 2009. Baáa, Paweá, and Adam Wielomski. “Glosa do wyroku Europejskiego Trybunaáu Praw Czáowieka w Strasburgu w sprawie Lautsi v. Italy (apl. no. 30814/06)” [Note on the judgment of the European Court of Human Rights in Strasbourg in the case of Lautsi v. Italy, Application no. 30814/06]. Pro Fide, Rege et Lege 1(2010):28-42. Borecki, Paweá, and Dorota Pudzianowska. “Glosa do wyroku z 3 XI 2009 w sprawie Lautsi v. Wáochy, skarga nr 30814/06.” [Note to the judgment of 3.11.2009 in the case of Lautsi v. Italy, application no. 30814/06] PaĔstwo i Prawo 4(2010):124-129. Brzozowski, Wojciech. BezstronnoĞü Ğwiatopoglądowa wáadz publicznych w Konstytucji RP [Impartiality of Public Authorities in Matters of Conviction in the Polish Constitution]. Warszawa: Wolters Kluwer, 2011. —. “Glosa do wyroku Wielkiej Izby z 18 III 2011 w sprawie Lautsi v. Wáochy, nr skargi 30814/06” [Note to the judgment of the Grand

78

Cf. De Mattei, Roberto. 2007. La dittatura del relativismo, 43. Chieti: Solfanelli.

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Chamber of 18.03.2011 in the case of Lautsi v. Italy, Application no. 30814/06]. PaĔstwo i Prawo 11(2011):121-126. —. “UzewnĊtrznianie przynaleĪnoĞci religijnej. Zagadnienia systemowe” [Expression of Religion: Systemic Issues]. In Prawne granice wolnoĞci sumienia i wyznania [Legal Limits of Freedom of Conscience and Religion], 271-286. Edited by Roman Wieruszewski, Mirosáaw Wyrzykowski and Lena Kondratiewa-Bryzik. Warszawa: Wolters Kluwer, 2012. Ciravegna, Monia. “La nozione di "segno esteriore forte" tra problemi di definizione e presunzione di lesività: la sentenza "Dahlab c. Svizzera".” In: Diritto e religione in Europa. Rapporto sulla giurisprudenza della Corte europea dei diritti dell’uomo in materia di libertà religiosa, 141-145. Edited by Roberto Mazzola. Bologna: Il Mulino, 2012. De Mattei, Roberto. La dittatura del relativismo. Chieti: Solfanelli, 2007. Derlatka, Marek. “KrzyĪ w szkole a prawo do wolnoĞci myĞli, sumienia i religii” [Crosses in Schools and the Right to the Freedom of Thought, Conscience and Religion]. Palestra 5-6(2010):113-116. —. “Glosa do wyroku Wielkiej Izby ETPCz w Strasburgu z 18 marca 2011 r. w sprawie Lautsi v. Italy” [Note to the judgment of the Grand Chamber of the ECHR in Strasbourg of 18.03.2011 in the case of Lautsi v. Italy]. Palestra 7-8(2011):119-122. Dudek, Antoni, and Ryszard Gryz. KomuniĞci i KoĞcióá w Polsce (19451989) [The Communists and the Church in Poland (1945-1989)]. Kraków: Znak, 2003. Dudek, Dariusz, and Piotr Stanisz. “Opinia prawna w sprawie wniosku grupy posáów o usuniĊcie krzyĪa z sali posiedzeĔ plenarnych Sejmu RP” [Legal opinion regarding a motion of a group of MPs that the cross be removed from the Plenary Session Room of the Polish Sejm]. Zeszyty Prawnicze Biura Analiz Sejmowych 4(2011):88-104. Evans, Carolyn. Freedom of Religion under the European Convention on Human Rights. Oxford: Oxford University Press, 2001. Gigilewicz, Edward, et al. “KrzyĪ” [Cross]. In Encyklopedia Katolicka [Catholic Encyclopaedia], vol. X, col. 11-55. Lublin: Towarzystwo Naukowe KUL, 2004. KamiĔski, Ireneusz. “Nakaz obecnoĞci krzyĪa we wáoskiej szkole – glosa do wyroku ETPCz z 3.11.2009 r. w sprawie Lautsi przeciwko Wáochom” [Mandatory Presence of the Cross in Italian Schools – note to the judgment of the European Court of Human Rights of 3.11.2009 in the case of Lautsi v. Italy]. Europejski Przegląd Sądowy 3(2010):4344.

The Presence of the Cross in Public Spaces: A Polish Perspective

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Kowalski, Michaá. “Kolejny strasburski kamieĔ milowy? – komentarz do wyroku ETPCz w sprawie Lautsi v. Wáochom” [Another Strasbourg Milestone? Commentary to the judgment of the ECHR in the case of Lautsi v. Italy]. Europejski Przegląd Sądowy 3(2010):48-51. —. “Symbole religijne w przestrzeni publicznej – w poszukiwaniu standardów europejskich” [Religious Symbols in Public Space: Searching for European Standards]. In Prawne granice wolnoĞci sumienia i wyznania [Legal Limits of Freedom of Conscience and Religion], 47-64. Edited by Roman Wieruszewski, Mirosáaw Wyrzykowski and Lena Kondratiewa-Bryzik. Warszawa: Wolters Kluwer, 2011. Krukowski, Józef. Polskie prawo wyznaniowe [Polish Law on Religion]. Warszawa: LexisNexis, 2005. àączkowski, Wojciech. “Stanowisko Trybunaáu Konstytucyjnego w sprawie legalnoĞci instrukcji MEN dotyczących powrotu nauczania religii do szkoáy w roku szkolnym 1990/91” [Standpoint of the Constitutional Tribunal on the lawfulness of the decision of the Minister of National Education to reinstate religious instruction in schools in the school year 1990/1991]. In Nauczanie religii w szkole w paĔstwie demokratycznym [Religious Instruction in Schools in a Democratic State], 69-77. Edited by Józef Krukowski. Lublin: Towarzystwo Naukowe KUL, 1991. Mezglewski, Artur. Polski model edukacji religijnej w szkoáach publicznych. Aspekty prawne [The Polish Model of Religious Education in Public Schools. Legal Aspects]. Lublin: Wydawnictwo KUL, 2009. Mielczarek, Marcin. Realizacja wolnoĞci religijnej w zatrudnieniu pracowniczym [Religious Freedom at Work]. Warszawa: Difin, 2013. Misztal, Henryk. “KoĞcielne pojĊcie wolnoĞci religijnej a ustawa o gwarancjach wolnoĞci sumienia i wyznania z 1989 r.” [Religious Freedom as Understood by the Church and the Act of 1989 on Guarantees of Freedom of Conscience and Religion]. KoĞcióá i Prawo 11(1993):103-122. —. “Konstytucyjne gwarancje wolnoĞci sumienia i religii” [Constitutional Guarantees of the Freedom of Conscience and Religion]. In Artur Mezglewski, Henryk Misztal, and Piotr Stanisz, Prawo wyznaniowe [Law on Religion], 66-73. Warszawa: C. H. Beck, 2011. Misztal, Henryk, and Piotr Stanisz. “WolnoĞü wyznania a symbole religijne w Īyciu publicznym "paĔstwa Ğwieckiego"” [Freedom of Faith in the Social Life of a "Secular State"]. Annales Canonici 6(2010):37-55.

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Morawski, Lech. “Opinia w sprawie wniosku grupy posáów o wydanie zarządzenia nakazującego usuniĊcie krzyĪa áaciĔskiego znajdującego siĊ w sali posiedzeĔ Sejmu RP” [Opinion regarding a motion of a group of MPs that the Latin cross be removed from the Plenary Session Room of the Polish Sejm]. Zeszyty Prawnicze Biura Analiz Sejmowych 4(2011):105-112. OĪóg, Krzysztof. “KrzyĪu, bądĨ pozdrowiony. KrzyĪ w przestrzeni publicznej i spoáecznej w dziejach Polski” [Praised be thy name, Cross. The Cross Symbol in Public and Social Environments throughout Poland’s History]. In: Adam Bujak, Krzysztof OĪóg, and Leszek Sosnowski. KrzyĪ Polski [Polish Cross], vol. 1: Przybytek PaĔski [God’s Temple], 9-56. Kraków: Biaáy Kruk, 2010. Piechowiak, Marek. “Negatywna wolnoĞü religijna i przekonania sekularystyczne w Ğwietle sprawy Lautsi przeciwko Wáochom” [Negative Religious Freedom and Secular Convictions in the context of the case of Lautsi v. Italy]. Przegląd Sejmowy 5(2011):37-68. Pietrzak, Michaá. “Stosunki paĔstwo – koĞcióá w nowej Konstytucji” [State-Church Relations in the New Constitution]. PaĔstwo i Prawo 11-12(1997):172-184. —. “Glosa 2 do wyroku Sądu Apelacyjnego w àodzi z dnia 28 paĨdziernika 1998 r. (sygn. akt ACa 612/98)” [Note 2 to the judgment of the Court of Appeal in àódĨ of 28 October 1998 (ref. ACa 612/98)]. Przegląd Sejmowy 3(2000):108-113. Piotrowski, Ryszard. “Opinia na temat wniosku dotyczącego wydania zarządzenia nakazującego usuniĊcie krzyĪa áaciĔskiego, znajdującego siĊ w sali posiedzeĔ Sejmu RP” [Opinion regarding a motion that the Latin cross be removed from the Plenary Session Room of the Polish Sejm]. Zeszyty Prawnicze Biura Analiz Sejmowych 4(2011):55-77. Rynkowski, Michaá. “State and Church in Poland.” In State and Church in the European Union, 419-438. Edited by Gerhard Robbers. BadenBaden: Nomos, 2005. Sobczyk, Paweá. “WolnoĞü sumienia i religii w art. 53 Konstytucji Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r.” [Freedom of Conscience and Religion in Article 53 of the Polish Constitution of 2 April 1997]. Prawo Kanoniczne 3-4(2001):207-223. Stanisz, Piotr. “Chiesa cattolica e libertà religiosa in Polonia.” In Chiesa cattolica ed Europa centro-orientale. Libertà religiosa e processo di democratizzazione, 3-44. Edited by Antonio G. Chizzoniti. Milano: Vita e Pensiero, 2004. —. “Relations between the State and Religious Organizations in Contemporary Poland from Legal Perspective.” In Neuere

The Presence of the Cross in Public Spaces: A Polish Perspective

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Entwicklungen im Religionsrecht europäischer Staaten, 687-704. Edited by Wilhelm Rees, María Roca and Balázs Schanda. Berlin: Duncker & Humblot, 2013. —. “Glosa do wyroku Sądu Apelacyjnego w Warszawie z dnia 9 grudnia 2013 r. (sygn. akt I ACa 608/13)” [Note to the judgment of the Court of Appeal in Warsaw of 09 December 2013 (ref. I ACa 608/13)]. Przegląd Sejmowy 5(2014):152-158. —. “Symbole religijne w szkole publicznej” [Religious Symbols in Public Schools]. In Religia i etyka w edukacji publicznej [Religion and Ethics in Public Education], 143-167. Edited by Józef Krukowski, Paweá Sobczyk and Michaá Poniatowski. Warszawa: Wydawnictwo UKSW, 2014. Szymanek, Jarosáaw. “WolnoĞü sumienia i wyznania w Konstytucji RP.” [Freedom of Conscience and Belief under Poland’s Constitution] Przegląd Sejmowy 2(2006):39-60. —. “Konstytucjonalizacja prawa do wolnoĞci myĞli, sumienia, religii i przekonaĔ” [Right to Freedom of Thought, Conscience, Religion and Beliefs in the Constitution]. Studia z Prawa Wyznaniowego 10(2007):89-114. —. “ObecnoĞü symboli religijnych w przestrzeni publicznej” [The Presence of Religious Symbols in Public Space]. In Prawne granice wolnoĞci sumienia i wyznania [Legal Limits of Freedom of Conscience and Religion], 33-46. Edited by Roman Wieruszewski, Mirosáaw Wyrzykowski and Lena Kondratiewa-Bryzik. Warszawa: Wolters Kluwer, 2012. Tryczyk, Mirosáaw, and Tomasz Chabinka. “"Szczeniacki bunt máodzieĪy" w XIV Liceum Ogólnoksztaácącym we Wrocáawiu czyli problem obecnoĞci religii w systemie oĞwiaty polskiej z perspektywy ucznia i nauczyciela widziany” ["Juvenile Rebellion" at XIV High School in Wrocáaw – the presence of religion in Polish education from the point of view of students and teachers]. In ObecnoĞü religii w publicznym systemie oĞwiaty w aspekcie prawnym [The Presence of Religion in Public Education – Legal Aspect], 127-137. Edited by Tadeusz J. ZieliĔski. Warszawa: Wydawnictwo Naukowe ChAT, 2012. Wieruszewski, Roman. “Opinia na temat wniosku Klubu Poselskiego Ruchu Palikota o wydanie zarządzenia nakazującego usuniĊcie krzyĪa áaciĔskiego, znajdującego siĊ w sali posiedzeĔ Sejmu RP” [Opinion regarding a motion of the Parliamentary Grouping of Ruch Palikota that the Latin cross be removed from the Plenary Session Room of the

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Chapter Ten

Polish Sejm]. Zeszyty Prawnicze Biura Analiz Sejmowych 4(2011):7887. Winczorek, Piotr. Komentarz do Konstytucji Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 roku [Commentary to the Polish Constitution of 2 April 1997]. Warszawa: Liber, 2008. —. “WolnoĞü wyznaniowa” [Freedom of Religion]. PaĔstwo i Prawo 4(2015):3-11. WiĞniewski, Leszek. “Glosa 1 do wyroku Sądu Apelacyjnego w àodzi z dnia 28 paĨdziernika 1998 r. (sygn. akt ACa 612/98)” [Note 1 to the judgment of the Court of Appeal in àódĨ of 28 October 1998 (ref. ACa 612/98)]. Przegląd Sejmowy 3(2000):105-108. Winiarczyk-Kossakowska, Maágorzata. “WolnoĞü sumienia i religii” [Freedom of Conscience and Religion]. Studia Prawnicze 1(2001):2343. ZawiĞlak, Michaá. “Glosa [do wyroku Sądu Apelacyjnego w Szczecinie z dnia 25 listopada 2010 roku (I ACa 363/10)]” [Note to the judgment of the Court of Appeal in Szczecin of 25 November 2010 (ref. I ACa 363/10)]. Przegląd Prawa Wyznaniowego 5(2013):209-216. ZieliĔski, Tadeusz J. “Klauzule prawnowyznaniowe jednolitego projektu konstytucji RP (Uwagi de lege fundamentale ferenda)” [Clauses of the Consolidated Draft of the Polish Constitution Regarding Religion (Comments de lege fundamentale ferenda)]. PaĔstwo i Prawo 2(1997):81-98. —. “Ustawa o gwarancjach wolnoĞci sumienia i wyznania z 1989 r. jako "magna charta" swobód Ğwiatopoglądowych w Polsce” [The Act of 1989 on the Guarantees of Freedom of Conscience and Religion as the "magna carta" of Freedom of Outlook in Poland]. In Prawo wyznaniowe w Polsce (1989-2009). Analizy – dyskusje – postulaty [Polish Law Regarding Religion (1989-2009): Analyses – discussions – proposals] 53-65. Edited by Dariusz Walencik. Katowice – BielskoBiaáa: Wydawnictwo WyĪszej Szkoáy BankowoĞci i Finansów w Bielsku Biaáej, 2009. ĩaryn, Jan. Dzieje KoĞcioáa katolickiego w Polsce (1944-1989) [History of the Catholic Church in Poland (1945-1989)]. Warszawa: Neriton, 2003.

CHAPTER ELEVEN POLAND: THE PRESENCE OF THE CROSS IN THE PUBLIC SPACE AND THE PRINCIPLE OF IMPARTIALITY OF PUBLIC AUTHORITIES DARIUSZ DUDEK

The principle of the public authorities’ impartiality in matters of personal conviction enjoys constitutional status in Poland. Article 25(2) of the Constitution of the Republic of Poland of 2 April 19971 provides that: Public authorities in the Republic of Poland shall be impartial in matters of personal conviction, whether religious or philosophical, or in relation to outlooks on life, and shall ensure freedom of their expression within public life.

Resolving the problem addressed in the title is contingent on analysing several issues and answering the following questions: A. In what country and in what historical and cultural context does the invoked provision of the Constitution apply? B. What is its normative value? C. Who does it address and what rights and obligations does it cover? D. What legal consequences does it entail as regards the issue of the presence of the cross in public spaces?

1

Dziennik Ustaw (Official Journal) 1997, no. 78, item 483, as amended.

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The country and the historical and cultural context in which the invoked provision of the Constitution applies The Constitution of the Republic of Poland of 1997 is not a constitution of a newly-formed state, but rather of a state with a history of over 1000 years and a complicated past encompassing various political systems and even periods of non-existence or limited sovereignty of the state. The origins of the Polish state date back to the year 966, namely to the adoption of Christianity by the first historical (i.e., not legendary) monarch – Mieszko I. Since then and throughout the history of Poland, Christianity and the institution of the Catholic Church have become increasingly and permanently linked to the history of the Polish nation, its identity, language, culture, and even civilizational development. It was not inherent in our tradition to wage religious wars, embark on crusades or engage in other forms of religious dominance. Quite the contrary: the achievement of our thought in the sphere of public law and interpersonal relations has long encompassed religious tolerance, and respect for the diversity of convictions and opinions, even in the society so varied in terms of nationalities, politics, and religion. As opposed to the state religion and sovereignty of the monarch over the Church (16th century England), the fratricidal and bloody religious wars leading to utter intolerance, and the resultant secularization (France of the 16th-18th centuries) or the adoption of the cuius regio, eius religio principle (Germany, 1555), in Poland the first acts in recognition of the rights of dissidentes were adopted as early as in the 14th century (the privileges of King Casimir III the Great of 1341 and 1356). The 16th century saw, in turn, the development of the institutional foundations for religious tolerance, namely the guarantees of equality in the public and private sphere, irrespective of religious belief, granted to noblemen, royal townsmen, and other free people.2 Those rules were not infringed by the Constitution of 3 May 1791, which was one of the first constitutions in the world. Although it adopted a dominant national religion (“the holy Roman Catholic faith with all its associated rights”) and deemed apostasy punishable, it nevertheless ensured true tolerance.3 2

Resolution of the Sejm of 28 January 1573, the so-called Warsaw Confederation Act, ensuring unconditional and everlasting peace between all who differed in faith; in 2003 entered by UNESCO into the Memory of the World International Register. 3 “Since the same holy faith commands us to love our neighbours, we owe to all people, of whatever denomination, peace in their faith and government protection.

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In the period of no independent Polish state, which lasted over 100 years (1795-1918), the Catholic Church and Christians assumed the role of active depositaries of Polish identity, the aspirations to restore the independence of the state and the unexpired longing for personal liberty. In the period of Polonia Restitua (1918-1939), in the complex social and legal situation at the time (multinational and multi-faith society, reconstruction of the state structures, polonization and unification of law), attempts were made to work out compromise solutions. In one solution of this kind, adopted in the March Constitution of 1921,4 the Republic of Poland ensured full protection of life, liberty, and property on its territory, to all, irrespective of origin, nationality, language, race, or religion (Article 95). Besides, the Constitution also included the guarantee of the freedom of conscience and religion, along with its attributes (Article 111)5 and with certain limitations (Article 112),6 and the guarantee of the independence of all religious communities recognized by the state, and conducting activities in compliance with the law of the state (Article 113). The regulations were accompanied by the rule that the Roman Catholic religion, being the religion of the preponderant majority of the nation, occupies in the state “the chief position among enfranchised religions” (Article 114). Moreover, the Constitution also defined the forms of the legal regulation concerning the relation of the state to the Church and religious minorities and other legally recognized religious organizations and new denominations (Articles 114–116). The year 1939 saw the attack of two allied totalitarian aggressors on Poland and began the commonly known barbarities of World War II. The totalitarian regimes, both in direct contradiction to the tradition and culture of Christian Europe, were in fact godless and atheistic, despite the differences in the ideological slogans proclaimed, i.e. the false Gott mit uns or its verbal opposite Boga niet. From 1944, and for the next 55 years, the political system enforced in Therefore, we guarantee freedom to all rites and religions in the Polish lands, in accordance with the laws of the state.” 4 The Act of 17 March 1921 – the Constitution of the Republic of Poland, Dziennik Ustaw 1921, no. 44, item 267, as amended. 5 “The right to freely profess one’s religion in public as well as in private, and to perform the commands of one’s religion or rite, insofar as this is not contrary to public order or public morality.” 6 “Religious freedom may not be used in a way contrary to parliamentary acts. No one may evade the performance of public duties by reason of his or her religious beliefs.”

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Poland was based on atheism, ruthless or thinly-veiled battles with the institutional Church, repressions of religious denominations and discrimination against them, as well as the promotion and privileged treatment of people declaring (frequently falsely) atheistic beliefs, called “scientific” at the time, despite the primitive basis and methods, and inhumane goals. Needless to say, the scale and intensity of those repressive activities varied; at the peak moments they even included murders or imprisonment of the clergy and members of hierarchy of the Church, and plundering of property and liquidation of church institutions, including educational and charity institutions. The situation used to change slightly during the periods of political “thaw”, for example after 1956 and 1980, when religious people and symbols partially regained their right to be present in public spaces. The Constitution of the Republic of Poland of 1997 was adopted in the period of systemic transformations and profound changes in the political sphere, including the geopolitical, commercial, economic, and also cultural sphere, affecting the shift in understanding of the concept of public authority and of the respect for human rights. One important aspect of the transformations in question pertained to the rejection of the communist ideology and its impact on the religious and ideological sphere, both as far public authorities and individuals are concerned. It is beyond the scope of this article to analyse the complex underpinnings of those processes and their participants, although it may be assumed, somewhat simplistically, that the aforementioned changes were the result of the pressure and demands of the society and the concessions and compromises on the part of the Communist establishment in power at that time. Adopted on the basis of an undoubtedly democratic procedure, the Constitution of 1997, whose content was to a large extent influenced by left-wing politicians, was one of the outcomes of the compromise. In analysing the content of the specific solutions offered by the Polish Constitution, one should take these facts into account. I take the view that Article 25 of the Constitution of the Republic of Poland, tantamount to a radical rejection of the practices typical of the former, communist political system, serves as a guarantee, has a protective nature and is focused on the person and religious communities (such as churches and religious organizations). The beneficiary, if one may venture such a term, of the regulation is not so much the state as a political organization of the society, but rather members of the state community. However, bearing in mind that the state, the Republic of Poland, is the common good of all citizens – this juxtaposition loses its sharpness and reasonable justification. Poland and its public authorities are not “alien” to

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Polish people, but “their own”.

The normative value The normative value of Article 25(2) of the Constitution is based on three grounds: first, the constitutional status of the regulation; second, the general scheme, namely its placement in Chapter I entitled “The Republic” and its immediate context; and third, the content of the provision. The provision in question lays down a significant rule of law within the act with the highest legal force in the Polish legal system, with primacy over other sources of national law, as well as over international law and the law of the European Union.7 The status of the Constitution in the hierarchy stems from its very nature (the basic law), and is clearly confirmed in its provisions. The Preamble to this act defines the Constitution as “the basic law for the state”, whereas in the normative part it states that the Constitution is the supreme law of the Republic of Poland, and the provisions thereof shall apply directly, unless the Constitution provides otherwise [Articles 8(1-2)]. As regards the analysed provision, the Constitution neither excludes its primacy, nor envisages (as is the case in numerous constitutional regulations) its statutory specification or development. Thus, it contains an absolute and sufficient norm, appropriate for application and execution. Not without significance is the fact that Article 25 is included in Chapter I of the Constitution, which covers a range of important principles concerning the political system: the common good, the rule of law, the supreme power vested in the nation, the separation and balance of powers, etc. (Articles 1, 2, 4, 10), regulating the major duties and goals of the state (Articles 5, 6, 11, 12, 14, 18, 19, 21) or the principles governing the functioning of authorities and bodies – the legality principle (Article 7). Therefore, such a placement of Article 25 confirms its principal nature. A proper reconstruction of the normative content of this provision should also acknowledge the broader constitutional context, including the sentences from the Preamble (lacking the traditional invocatio Dei) about our “over one thousand years’ heritage” and “culture rooted in the Christian heritage of the nation and in universal human values”. The value 7

The latter statement may raise doubts owing to the familiar problem of the relation of the European law to the laws of the member states of the EU; cf. an indepth analysis in Dobrowolski, Marek. 2014. Zasada suwerennoĞci narodu w warunkach integracji Polski z Unią Europejską, 178 et seq. Lublin: Wydawnictwo KUL.

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of the aforementioned culture is then emphasized as “the source of the nation’s identity, continuity, and development” [Article 6(1)]. There are also regulations pertaining to the freedom of conscience and religion, along with its attributes (Article 53), taking into account the principle of the freedom of the person [Article 31(1-2)], and the general provision on the limitations to the freedoms and the rights of the person and citizen [Article 31(3)]. No proof is required in order to conclude that although Article 25(2) is worded in the present tense and the indicative mood, it does not constitute a simple account of the reality or institutional practice, i.e. the manner of behaviour or action of public authorities, but rather it contains a futureoriented norm determining the obligations of the addressees and the correlated rights of other entities.

The addressee and the rights and obligations covered Article 25(2) contains a relatively clear indication of an obliged entities, namely “public authorities”. It is not difficult to determine of the designatum of this concept, namely a group of entities meeting the identification criteria. An identical or similar term is used on numerous occasions throughout the Constitution, e.g. in the formulation of the legality principle: “the bodies of public authority shall function on the basis of and within the limits of the law” (Article 7), the principle of separation and balance of powers (Article 10), as well as in a range of the so-called program norms, specifying certain political principles constituting the duties of public authorities in the social sphere, such as: promotion and protection of employment [Article 65(5)], protection of health [Article 68(3-5)], protection of disabled persons (Article 69), access to education [Article 70(4)], protection of the rights of children [Article 72(1)], ecological security (Article 74), housing needs (Article 75), or protection of consumers, users or lessees (Article 76). Due to the fact that the system of public authority bodies covers state authorities and local government authorities, given the lack of subjective limitations in Article 25(2), one should assume that it is addressed to any authority, i.e. bodies and office holders, as well as state and local government officers. Indeed, the provision in question refers to public authorities “in the Republic of Poland”, not the authorities of the Republic of Poland. Thus, the Parliament: the Sejm and the Senate, the executive power: the President, the Council of Ministers, and state administration, courts and tribunals, the bodies of state control and defence of the law, as well as all units of local government, are subject to the rule laid down in

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Article 25(2) of the Constitution of the Republic of Poland. Moreover, the rule pertains not only to the institutions expressly named in the Constitution, but also to those determined by type (state administration, common and administrative courts), and even to bodies which are not assigned a constitutional, but only a statutory, status.8 The constitutional obligation of these entities consists in “maintaining impartiality” in matters pertaining to certain personal convictions, as well as ensuring freedom of their expression in public life. In analysing the meaning of these obligations, one should underline that the Constitution does not define them, as these are not new and original phenomena unknown in the law. Quite the contrary: they are clear both in legal and common language, which does not mean that they raise no doubt as to their interpretation and the determination of particular legal consequences.9 The Constitution makes further reference to the key concept of “impartiality” [apart from Article 25(2)] in a two-fold context: 1) in Article 45(1), deeming impartiality as a fundamental attribute of everyone’s right to a fair and public hearing of their case, and at the same time as a constitutional indicator of the system of the judiciary and the personal status of the office of a judge; 2) in Article 153(1), providing for the corps of civil servants operating in the bodies of government administration in order to ensure the professional, diligent, impartial, and politically neutral fulfilment of the state’s obligations. What is impartiality then? In simple terms, it is an objectivized and unbiased action, ensuring equal treatment, respecting the rule of 8

E.g., the Inspector General for Personal Data Protection, the Inspector General for Financial Information, units of the Prosecutor’s Office. 9 Cf. to that effect, inter alia: Brzozowski, Wojciech. 2011. BezstronnoĞü Ğwiatopoglądowa wáadz publicznych w Konstytucji Rzeczypospolitej Polskiej. Warszawa: Wolters Kluwer; Krukowski, Józef. 1997. “PaĔstwo Ğwiatopoglądowo neutralne?” In Problemy wspóáczesnego KoĞcioáa, 29-34. Lublin: Redakcja Wydawnictw KUL; àączkowski, Wojciech. “BezstronnoĞü wáadz publicznych.” Ruch Prawniczy, Ekonomiczny i Socjologiczny 2(2006):209-219; Stanisz, Piotr. 2008. “Naczelne zasady instytucjonalnych relacji paĔstwo – koĞcióá.” In Artur Mezglewski, Henryk Misztal and Piotr Stanisz, Prawo wyznaniowe, 74-88. Warszawa: C.H. Beck; Szymanek, Jarosáaw. 2004. “BezstronnoĞü czy neutralnoĞü Ğwiatopoglądowa paĔstwa (Uwagi na tle art. 25 ust. 2 Konstytucji RP).” PaĔstwo i Prawo 5:32-48; Nowicka-Wáodarczyk, Ewa, editor. 1998. NeutralnoĞü Ğwiatopoglądowa paĔstwa. Kraków: Fundacja „MiĊdzynarodowe Centrum Rozwoju Demokracji”; ZieliĔski, Tadeusz J., editor. 2009. BezstronnoĞü religijna, Ğwiatopoglądowa i filozoficzna wáadz Rzeczypospolitej Polskiej. Warszawa: ChrzeĞcijaĔska Akademia Teologiczna.

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egalitarianism and objective justice, without favouritism and discrimination. The opposite of impartiality is not just any differentiation, but the one that is rooted in bias, in other words a priori preferences or prejudice. Failure to maintain impartiality may occur for purely subjective reasons on the part of an entity obliged to respect this principle, as well as from deliberate actions of external entities expressed in the form of a request, persuasion, threat, or corruption. A good illustration of this issue is the problem of the independence and impartiality of a judge, which are interrelated, yet not equivalent, requirements and values. Whereas judicial independence constitutes an absolute, non-gradable freedom and independence of any external factors apart from the binding law, conclusions and evidence submitted to the court in the course of proceedings, impartiality is a matter of an internal attitude of a judge acting in the capacity of an unbiased arbitrator rather than a speaker for any of the parties. The judge does not participate in disputes but resolves them, usually categorically and in a way that is not satisfactory to one, or sometimes, both of the parties. Compromising the principle of judicial independence by the judge always entails violation of the requirement of impartiality, but not the other way round, since the source of “prejudice” of the judge may not only be the relations with the party or hitherto exercised functions in the proceedings, but also internal factors, such as personal experiences of the judge who may even have been harmed as a result of an act analogous to the one now subject to his judgment. In order to relate the above considerations to the topic at hand, we should state that matters of religious, ideological, and philosophical convictions of persons subject to the competence (cognition) of public authorities should not constitute a criterion for decisions made within the scope of that power. If personal convictions, beliefs, and attitudes conditioned upon such convictions cannot on their own constitute sufficient grounds for acts within the competence of power, the legislator is not in the position to evaluate or grade the subjective rights of the person on the basis of criteria pertaining to any specific religious, ideological, and philosophical convictions. Administrative bodies cannot base their decisions solely on such criteria, and courts cannot do so as regards judgments they issue. No office holder can assume that particular convictions deserve approval or disapproval depending on whether they are consistent or not with the personal convictions and beliefs or attitudes demonstrated by a person holding a given public office. To illustrate, a judge may in his private life be a person of strong faith and religious

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convictions, which, once that person puts on the judicial robes, shall in no way affect the manner and the content of the decision concerning the legal liability of a declared atheist. However, certain important questions arise: must the established law and actions of public authorities be completely indifferent to religious, ideological and philosophical matters, which are usually intrinsically linked with one another and, significantly, also with a particular ethical system or evaluation of human conduct in terms of right and wrong? Not at all – such an understanding of the impartiality requirement would be false and wrong, leading, first of all, to relativism and axiological nihilism of the state, and, second of all, to the complete exclusion of, for instance, religious matters from the sphere of decisions made by authorities or from the sphere of jurisdiction. On the contrary, it is in fact obvious that norms, both constitutional and statutory are characterized by a clear ethical basis (for instance the well-known definition of criminal law as the “moral minimum”). Furthermore, as already mentioned, the Constitution itself provides for regulations on the freedom of conscience and religion (Article 53) or the related right of parents to raise their children in accordance with their own convictions, while respecting the degree of maturity of a child, as well as his or her freedom of conscience and belief and his or her convictions [Article 48(1)]. Thus, for instance, the Penal Code penalizes offences against freedom of conscience and belief10 and so the fact that a person accused of offending religious feelings of others by publicly outraging an object of religious worship or a place dedicated to the public performance of religious rites invokes his or her atheistic beliefs can neither exculpate this person nor contribute to increasing his or her criminal liability. Any other attitude of a judge would amount to a blatant violation of the principle of impartiality. The point is that religious, ideological, and philosophical convictions cannot be constrained in the sense that the public authority body, at its own initiative, determines the said convictions of an individual or a group of people, and then imposes some legal consequences on the basis of those circumstances in the sphere of power: legislative, decisive, or jurisdictional. The foregoing, however, does not preclude a reverse dependence, namely a situation in which a given person demands a particular resolution because of specific convictions of that person, or with account being taken 10 Cf. Chapter XXIV, Articles 194-196 of the Act of 6 June 1997 – the Penal Code, Dziennik Ustaw 1997, no. 88, item 553, as amended.

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of those convictions. Therefore, for instance, the Constitution provides for the right of any citizen whose religious convictions or moral principles do not allow him to perform military service to refuse to do it and perform substitute service in accordance with the principles specified by statute [Article 85(3) of the Constitution], or the right of parents to ensure their children a moral and religious upbringing and teaching in accordance with their convictions [Article 53(3), in connection with Article 48(1)], as well as the rule that the religion of a church or other legally recognized religious organization may be taught in schools, but other peoples’ freedom of conscience and religion shall not be infringed thereby (para. 4). Thus, the right to worship and participate in religious practices is respected even in the case of incarceration, forced hospitalization, or an organized summer holiday for children. Another well-known example, frequently observed in practice, is the so-called concordat marriage, contracted in a sacramental form on the basis of canon law with civil law consequences determined by state law. There is another aspect of the impartiality principle related to the above: the freedom to express convictions concerning religion, worldview and philosophy in public life [second sentence of Article 25(2) of the Constitution]. Here, the question arises about the subject of the said freedom, which is after all not directly specified in the analysed provision. Just like in the case of all freedoms and human rights, that subject is the person, and various communities, following from the freedom of association. From the objective point of view, the Constitution specifies the freedom of religion by openly stating that it encompasses several attributes and manifestations, such as the freedom to profess or to accept a religion by personal choice, as well as to manifest such a religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in rites, practising or teaching [Article 53(2)]. At the same time, the freedom to manifest religion is a demonstration of the freedom to express convictions, referred to in Article 25(2), but not limited, however, only to those convictions. Although it is understandable that people may naturally present their convictions in public spaces, not only as part of a public debate on a given issue, but also by wearing religious symbols in public places on a daily basis (which gives rise to familiar problems in the practice of western states and Strasbourg case-law), the question arises as to whether persons holding public offices are allowed to behave in the same way and to the same extent. Without elaborating on these considerations (as they are beyond the

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scope of this paper), it is worth pointing out that the Constitution provides for an element somewhat connecting both dimensions of religion, the private and the public, inter alia in the wording of the oath taken by the members of parliament, deputies and senators, which may finish with the words “so help me, God” [Article 104(2)] in a similar way to the oath of the President of the Republic of Poland (Article 130), or the oath taken by the members of the Council of Ministers (Article 151), let alone other public functions whose oath is regulated on a statutory level. The Constitution does not contain any other alternative wording for the acts of taking an oath or making a pledge that would invoke (the name of) God present in other religions, which does not, however, bring about allegations of the privileged treatment of followers of some religions and discrimination against followers of other religions. At this point, the discussion is only one step away from the fundamental question of legal consequences defined by the Constitution as regards the presence of the cross in public spaces.

The legal consequences regarding the presence of the cross in public spaces In light of the above considerations, it is justified to conclude that at the heart of the obligation of impartiality, binding upon all public authorities, lies maintaining an equal distance and perspective while facing any convictions that respect the foundations of the legal order of the Republic of Poland. The constitutional impartiality model is not, however, tantamount to “closed neutrality”, precluding manifestation of religious and other convictions in public life, or the “privatization of religion” and absolute secularization, especially the one eliminating religious symbols from public spaces. What is more, the constitutional principle of impartiality should be interpreted in light of the regulations related to shaping the relationship between the state and churches and other religious organizations, subject to the principle of cooperation for the individual and the common good, as well as consensual regulation of their mutual relations or organizing religious classes in public schools. Thus, our Constitution provides for the “active neutrality” of the state, aimed at the promotion and equally attentive treatment, as opposed to indifference, of the diverse values adopted in the conscience of the citizens, yet without identifying with any particular ideology. In that context, Article 25(2) of the Constitution of the Republic of Poland “allows positive involvement aimed at ensuring the broadest possible freedom of conscience and religion for everyone within

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a democratic and pluralistic society”.11 A fundamental dispute has recently arisen in our reality regarding this issue, stirred by a motion of 9 November 2011 put forward to the Speaker of the Sejm of the Republic of Poland by a group of deputies demanding that the cross be removed from the assembly hall of the Sejm, invoking the provisions of the Constitution of the Republic of Poland, the Convention for the Protection of Human Rights and Fundamental Freedoms,12 the Concordat between the Holy See and the Republic of Poland,13 and the Act on the Guarantees of the Freedoms of Conscience and Belief.14 As I had the honour to prepare a legal opinion on this matter15 with Fr. Prof. Piotr Stanisz at the request of the Sejm Analysis Bureau, I would like to refer to the conclusions while leaving aside the detailed argumentation. The view taken at the time and still upheld is as follows: 1) The (Latin) cross constitutes a symbol of Christian religions, at the same time symbolizing the fundamental and traditional values of culture, democracy, and European, including Polish, civilization, confirmed in our legal system and case-law, pertaining to the dignity of the person, the freedoms and rights of the person, guided by the spirit of solidarity, equality and non-discrimination, tolerance, and mutual respect for everyone. 2) The presence of the Latin cross in the assembly hall of the Sejm is not an expression of proselytism or discrimination, and does not violate any legal provisions invoked by the applicants, in particular with the axiology, principles, and specific norms following from the Constitution, the Concordat, the European Convention, and the Act on the Guarantees of the Freedoms of Conscience and Belief. 3) The well-established, long-term compromise and legal convention brought about by deputies of several terms of office, consisting in the acceptance of the presence of the cross in the assembly hall of the Sejm dating back to 1997, exemplifies the embodiment of 11 See the judgment of the Constitutional Tribunal of 14 December 2009 (K 55/07). Orzecznictwo Trybunaáu Konstytucyjnego. Zbiór UrzĊdowy 2009, no. 11A, item 167. 12 Dziennik Ustaw 1993, no. 61, item 284, as amended. 13 Dziennik Ustaw 1998, no. 51, item 318, as amended. 14 Dziennik Ustaw 2005, no. 231, item 1965, as amended. 15 Dudek, Dariusz and Piotr Stanisz. 2011. “Opinia prawna w sprawie wniosku grupy posáów o usuniĊcie krzyĪa z Sali posiedzeĔ plenarnych Sejmu RP.” Zeszyty Prawnicze Biura Analiz Sejmowych 4(32):88-104.

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constitutional values and principles in the Polish parliamentary practice. 4) The resolution of the Republic of Poland of 3 December 2009 confirmed the acceptance of the presence of the cross in public spaces, including the assembly hall of the Sejm, on the basis of the values and norms adopted in the Constitution, with full respect for the constitutional principles governing the relationships between the state and the Church and other religious organizations. 5) The demand voiced in the motion that the Speaker of the Sejm of the Republic of Poland should issue an order to remove the Latin cross from the assembly hall of the Sejm of the Republic of Poland, or to ensure that effect “in another way” – lacks legal basis, both formal and substantive, and as such shall be deemed as unfounded. One should add that although the cited motion was not acknowledged in the Sejm, the case was brought to a conclusion as late as in 2013, in the judicial proceedings initiated by a group of deputies against the Sejm (to be precise: the State Treasury) demanding that the cross be removed from the assembly hall of the Sejm as it is a symbol infringing their personal rights, i.e. freedom of religion. Initially, the Regional Court in Warsaw dismissed the action,16 and then the Court of Appeal in Warsaw dismissed the appeal filed in that case,17 holding that the display of the cross remains within the ambit of the right to publicly manifest a religious belief. Placement of a religious symbol in a public space does not cause any “damage”; it is also not a way to exert pressure by transmitting religious content in a form that might be unwanted by the recipient. In passing the judgment, the court emphasized that in that case, one should not be driven solely by the subjective feelings of the claimants, but that objectivity in conclusions was required by taking account of the customs, traditions, culture, and historical experiences of the community. The cross is a religious symbol in Poland, yet one must not disregard its meaning as a symbol of culture and national identity. The judgments were consistent with the hitherto observed case law of the Polish courts, including the Supreme Court and common courts. The Supreme Court found that “not without significance is also the commonly understood symbolism of the cross, with positive underpinnings for 16

The judgment of the Regional Court in Warsaw of 14 January 2013 (IC 716/12). The judgment of the Court of Appeal in Warsaw of 9 December 2013 (IACa 608/13). Stanisz, Piotr. 2014. “Glosa do wyroku Sądu Apelacyjnego w Warszawie z dnia 9 grudnia 2013 r. (sygn. akt I ACa 608/13).” Przegląd Sejmowy 5:152-58. 17

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culture, not only Christian but even universally human culture”.18 The Court of Appeal in àódĨ expressed the view that: “The mere fact of displaying a religious symbol in a public building is not sufficient to assume violation of the freedom of conscience” and “the symbol of the cross in the assembly hall of a City Council as a unit of local government does not limit the freedom of thoughts, their expression and ideological dialogue between individuals or communities”.19 The Court of Appeal in Szczecin held that “apart from the strictly religious meaning, the Christian cross symbolizes over a thousand years of civilizational heritage of not only Poland, but all Western civilization”, and also that “the cross in Polish society is perceived not only as a symbol of the Catholic religion, but it also embodies universal values, derived from the Christian tradition which, at the same time, is part of the Polish material and spiritual culture”.20 In conclusion, one should emphasize one more important aspect. Justification for the presence of the cross (and other religious symbols) in public spaces may be based not only on juridical analysis. For religious people, that is a problem of secondary importance anyway; they demand the presence of and respect for the symbols of their religion neither because of the statutory law on a national or other level, nor because state courts and international tribunals allow or at least tolerate it. Whilst maintaining the highest possible degree of scientific impartiality, and notwithstanding the above legal considerations, it is worth remembering the words of Pope John Paul II – in a great way related to the issue at hand – in which the symbol of the cross is not detached from the proper source, namely the Church understood as a community of religious followers, and does not replace the proper name of God: The Church brought Christ to Poland, the key to understanding that great and fundamental reality that man is. For man cannot be fully understood without Christ. (...) Without Christ it is impossible to understand the history of Poland. (…) The history of the nation deserves to be adequately appraised in the light of its contribution to the development of man and humanity, to intellect, heart and conscience. This is the deepest stream of 18

The judgment of the Supreme Court of 6 September 1990 (I PRN 38/90). Orzecznictwo Sądu NajwyĪszego. Izba Cywilna i Pracy 10-12(1991):126. 19 The judgment of the Court of Appeal in àódĨ of 28 October 1998 (I ACa 612/98). Wokanda 11(2009):45. 20 The judgment of the Court of Appeal in Szczecin of 25 November 2010 (I ACa 363/10). Przegląd Prawa Wyznaniowego 5(2013):209-16.

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culture. It is culture’s firmest support, its core, its strength. Without Christ, it is impossible to understand and appraise the contribution of the Polish nation to the development of man and his humanity in the past and also its contribution today. (...) Without Christ, it is impossible to understand the history of the Polish nation – this great thousand-year-old community – that so profoundly defines me and each one of us. (...) Jesus Christ does not cease to be an open book on the teaching about man, his dignity, and his rights, and also a book of knowledge on the dignity and rights of the nation.21

References BezstronnoĞü religijna, Ğwiatopoglądowa i filozoficzna wáadz Rzeczypospolitej Polskiej. Edited by Tadeusz J. ZieliĔski, Warszawa: ChrzeĞcijaĔska Akademia Teologiczna, 2009. Brzozowski, Wojciech. BezstronnoĞü Ğwiatopoglądowa wáadz publicznych w Konstytucji Rzeczypospolitej Polskiej. Warszawa: Wolters Kluwer, 2011. Dobrowolski, Marek. Zasada suwerennoĞci narodu w warunkach integracji Polski z Unią Europejską. Lublin: Wydawnictwo KUL, 2014. Dudek, Dariusz and Piotr Stanisz. “Opinia prawna w sprawie wniosku grupy posáów o usuniĊcie krzyĪa z Sali posiedzeĔ plenarnych Sejmu RP.” Zeszyty Prawnicze Biura Analiz Sejmowych 4/32(2011):88-104. Krukowski, Józef. “PaĔstwo Ğwiatopoglądowo neutralne?” In Problemy wspóáczesnego KoĞcioáa, 29-34. Edited by Marian Rusecki. Lublin: Redakcja Wydawnictw KUL, 1997. àączkowski, Wojciech. “BezstronnoĞü wáadz publicznych.” Ruch Prawniczy, Ekonomiczny i Socjologiczny 2(2006):209-219. NeutralnoĞü Ğwiatopoglądowa paĔstwa. Edited by Ewa NowickaWáodarczyk. Kraków: Fundacja “MiĊdzynarodowe Centrum Rozwoju Demokracji”, 1998. Stanisz, Piotr. “Glosa do wyroku Sądu Apelacyjnego w Warszawie z dnia 9 grudnia 2013 r. (sygn. akt I ACa 608/13).” Przegląd Sejmowy 5(2014):152-58. —. “Naczelne zasady instytucjonalnych relacji paĔstwo – koĞcióá.” In Artur Mezglewski, Henryk Misztal and Piotr Stanisz. Prawo wyznaniowe, 74-88. Warszawa: C.H. Beck, 2008. 21 Homily of Pope John Paul II delivered on 2 June 1979 during the Holy Mass at Plac ZwyciĊstwa [Victory Square] in Warsaw.

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Szymanek, Jarosáaw. “BezstronnoĞü czy neutralnoĞü Ğwiatopoglądowa paĔstwa (Uwagi na tle art. 25 ust. 2 Konstytucji RP).” PaĔstwo i Prawo 5(2004):32-48.

CHAPTER TWELVE POLAND: THE PRESENCE OF THE CROSS IN THE PUBLIC SPACE AND THE RIGHT OF PARENTS TO EDUCATE THEIR CHILDREN IN CONFORMITY WITH THEIR CONVICTIONS PAWEà SOBCZYK

1. Introductory issues The presence of the cross in public spaces of democratic countries governed by the rule of law is usually justified by invoking international and constitutional guarantees concerning the freedom of conscience and religion, as well as the principles of the relations between the state and religious organizations.1 In this context, it is far less frequent that the focus 1

See, for example, legal opinions pertaining to the motion of a group of Sejm deputies to remove the Latin cross from the Sejm assembly hall: Piotrowski, Ryszard. 2011. “Opinia na temat wniosku dotyczącego "wydania zarządzenia nakazującego usuniĊcie krzyĪa áaciĔskiego, znajdującego siĊ w sali posiedzeĔ Sejmu RP".” Zeszyty Prawnicze Biura Analiz Sejmowych 4(32):55-77; Wieruszewski, Roman. 2011. “Opinia na temat wniosku Klubu Poselskiego Ruch Palikota o wydanie zarządzenia nakazującego usuniĊcie krzyĪa áaciĔskiego, znajdującego siĊ w Sali posiedzeĔ Sejmu RP.” Zeszyty Prawnicze Biura Analiz Sejmowych 4(32):78-87; Dudek, Dariusz, and Piotr Stanisz. 2011. “Opinia prawna w sprawie wniosku grupy posáów o usuniĊcie krzyĪa z Sali posiedzeĔ plenarnych Sejmu RP,” Zeszyty Prawnicze Biura Analiz Sejmowych 4(32):88-104; Morawski, Lech. 2011. “Opinia w sprawie wniosku grupy posáów o wydanie zarządzenia nakazującego usuniĊcie krzyĪa áaciĔskiego znajdującego siĊ w sali posiedzeĔ Sejmu RP.” Zeszyty Prawnicze Biura Analiz Sejmowych 4(32):105-112. See also Stanisz, Piotr. 2014. “Symbole religijne w szkole publicznej.” In Religia i etyka w

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is made on the right of parents to raise children in accordance with their own convictions.2 If the issue constitutes the subject of analyses, it is usually treated as an element of the freedom of conscience and religion. Thus, it should be emphasized from the outset that answering the fundamental questions concerning the dyad included in the title: the presence of the cross in public spaces and the right of parents to raise their children in accordance with their own convictions is not an easy task – not only because of the lack of relevant literature.3 The Constitution of the Republic of Poland of 2 April 1997 provides for the right to raise children in two not completely consistent Articles [Article 48 and Article 53(3)], which further complicates decoding the positivised content of this natural right.4 Furthermore, the legislator neither defined nor specified the concept edukacji publicznej, edited by Józef Krukowski, Paweá Sobczyk and Michaá Poniatowski, 143-167. Warszawa: Wydawnictwo Stefana Kardynaáa WyszyĔskiego. 2 In encyclopaedic terms, “upbringing” broadly encompasses “any phenomena that relate to the impact of social and natural environments on a human being, shaping his identity, personality, and attitudes. In a narrower sense, upbringing consists in deliberate impacts aimed at evoking desired changes in the functioning of individuals and groups.” See “Wychowanie.” In Encyklopedia PWN. http://encyklopedia.pwn.pl/haslo/wychowanie;3998683.html (accessed November 11, 2016). 3 That does not mean that the issues of the right of parents to raise their children in accordance with their own convictions and the freedom of conscience and religion are not present in scientific reflection in Poland. Nevertheless, the Authors fail to associate the right mentioned in the title with the presence of the cross in public space. At this point, one should mention the study by Misztal, Henryk. 2009. “Prawo rodziców do wychowania dzieci wedáug wáasnych przekonaĔ.” Teka Komisji Prawniczej, 64-75. Lublin: Polska Akademia Nauk. Cf. Stanisz, Piotr. 2014, 158-162. 4 The natural-law character of the right of parents to raise their children in accordance with their own convictions was confirmed, inter alia, by the Charter of the Rights of the Family of 1980, issued by the Holy See. Article 5 includes the following guarantees: “Since they have conferred life on their children, parents have the original, primary, and inalienable right to educate them; hence they must be acknowledged as the first and foremost educators of their children. Parents have the right to educate their children in conformity with their moral and religious convictions. Parents have the right to freely choose schools.” The European Court of Human Rights, in turn, held in the judgment of 27 November 1996 in Efstratiou v. Greece that the role of the parents is “to enlighten and advise their children, to exercise, with regard to their children, natural parental functions as educators, which is guiding their children on a path in line with the parents’ own religious or philosophical convictions” (para. 32 of the judgment).

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of upbringing, unlike in the case of teaching. As for the latter, Article 53(3) indicates that parents have the right to ensure their children moral and religious teaching. The Constitution does not at any point make any direct references to the interdependence between the right of parents to raise children and the presence of the cross in public spaces. I assume that as regards the exercise of parents’ rights following from the right to raise their children in accordance with their own convictions, it applies equally to people who substitute for parents incapable of raising their own children.5 The obligation of the Republic of Poland to respect international law binding upon it, as referred to in Article 9 of the Polish Constitution, as well as methodological appropriateness would imply taking into account the universal and regional acts of international law binding upon Poland, as well as the case-law concerning human rights. However, having regard to other studies touching upon this issue and the commitment to present the Polish perspective, I shall deliberately leave this important aspect aside.6 I shall not make any direct reference to the limitations on the exercise of the right to raise children in accordance with parents’ own convictions. It should be noted that in this context the general principles shall apply following primarily from Article 31 of the Constitution of the Republic of Poland and also from its Article 48 pertaining to the need to respect the degree of maturity of a child, as well as his or her freedom of conscience and belief (para. 1), and limitation and deprivation of parental rights (para. 2). The above remarks serve to justify and require a systemic approach to the provisions of the Polish Constitution.

5

Cf. Krukowski, Józef. 2000. KoĞcióá i PaĔstwo: Podstawy relacji prawnych, 9596. Lublin: Wydawnictwo KUL. 6 The issue was covered by, inter alia, Misztal, Henryk. 2000. “Gwarancje prawa miĊdzynarodowego i polskiego w zakresie uprawnieĔ rodziców do religijnego wychowania dzieci.” Studia z Prawa Wyznaniowego 1(2000):5-20; Warchaáowski, Krzysztof. 2007. “Gwarancje prawa do wychowania religijno-moralnego w umowach miĊdzynarodowych.” Studia z Prawa Wyznaniowego 10(2007):201-208.

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2. The dignity of the person as a source of the right of parents to raise their children in accordance with their own convictions In my view, of key importance to the analysis addressed in the title is the section of Article 30 of the Constitution of the Republic of Poland – unfortunately often overlooked in case-law and scientific analyses – which indicates that: “The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens.”7 The dignity of the person so conceived, which is the source of, among other things, the right of parents to raise their children in accordance with their own convictions, confirms and strengthens the subjective nature of the freedom and rights of an individual.8 The formulation of the right in question in Article 48 and Article 53(3) constitutes an expression of the positivisation of human rights, which consists in providing guarantees related to the respect of freedoms and rights derived from the dignity of a human being in the acts of international law, as well as the constitutions of many modern states. Thus, the legislator does not confer particular freedoms and rights, but rather confirms their existence and guarantees their observance. The perception of dignity as the source of freedoms and rights is of paramount importance for the analysis of the dyad addressed in the title for at least three reasons. First of all, dignity as a source of freedoms and rights reflects the primary nature of dignity in relation to freedoms and rights. Dignity is the reference plane for the system of values constituting the core of the Constitution and the foundation of the entire legal order. A conclusion of this kind entails the need on the part of public authorities to acknowledge a certain sphere of autonomy in allowing a person to fully express himself or herself – in the case in question it pertains to raising children in accordance with the convictions of parents; on the other hand, the actions 7

The Polish legislator did not define the dignity of the person. Only the fundamental features of dignity are indicated in the Constitution: “inherent”, “inalienable”, “inviolable”; it is also referred to as “a source of freedoms and rights”. The significance of the dignity of the person in the jurisprudence of the Constitutional Tribunal was recently addressed by, inter alia, Granat, Mirosáaw. 2014. “GodnoĞü czáowieka z art. 30 Konstytucji RP jako wartoĞü i norma prawna.” PaĔstwo i Prawo 8(2014):3-22. 8 JabáoĔski, Mariusz. 2002. “RozwaĪania na temat godnoĞci czáowieka w polskim porządku konstytucyjnym.” In Prawa i wolnoĞci obywatelskie w Konstytucji RP, edited by Bogusáaw Banaszak and Artur Preisner, 94. Warszawa: C.H. Beck.

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of public authorities cannot lead to legal or factual circumstances that deprive an individual of their sense of dignity.9 Secondly, “as a source of rights and freedoms of an individual, the concept of dignity determines the way in which they are understood and exercised”.10 Therefore, the right of parents to raise their children and the right of children to be raised shall be viewed in the light of the dignity of parents and children. It also clearly follows from referring to dignity as a source that freedoms and rights are separate from it and thus enjoy their own status, which means that their infringement does not destroy the foundation – namely dignity. In that sense, dignity is inviolable.11

3. Constitutional guarantees of the right of parents to raise their children The right of parents to raise their children in accordance with their own convictions, as referred to in the title, has been laid down in the Constitution of the Republic of Poland as “the right to rear their children in accordance with their own convictions” [Article 48(1)] and “the right to ensure their children a moral and religious upbringing and teaching in accordance with their convictions” [Article 53(3)].12 Are we dealing with 9

See the judgment of the Constitutional Tribunal of 4 April 2001 (K 11/00). Orzecznictwo Trybunaáu Konstytucyjnego. Zbiór UrzĊdowy 2001, no. 3, item 54. See also Banaszak, Bogusáaw. 2009. Konstytucja Rzeczypospolitej Polskiej: Komentarz, 169-174. Warszawa: C.H. Beck. 10 The judgment of the Constitutional Tribunal of 4 April 2001 (K 11/00). 11 As confirmed by the Constitutional Tribunal in the justification to the judgment cited above, “the prohibition to infringe on the dignity is of absolute nature and concerns everybody”. 12 The vague wording of Article 48(1), which the legislator invokes in the second sentence of Article 53(3), poses numerous interpretative difficulties, as well as contributes to diminishing parental authority. Article 48(1) is worded as follows: “Parents shall have the right to rear their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of a child, as well as his freedom of conscience and belief, and also his convictions”, which does not resolve conflicts following from different convictions of parents and children. It should be assumed, therefore, that conflicts between parents and children concerning freedom of conscience and religion should be resolved “at home”. In the event of a lack of agreement, the decision on the religious freedom of a child and its limits shall rest with the court. Cf. Pietrzak, Michaá. 2010. Prawo wyznaniowe, 37. Warszawa: Lexis Nexis. Furthermore, both articles contain

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two separate rights, if raising children and the related right are mentioned in two separate articles of the Constitution, each in a different way? A detailed analysis conducted on the basis of the rules of the legislative technique, which I shall leave aside for reasons of the subject-matter of this study, permits the conclusion that the constitutional right to raise children is a subjective right, whose specific dimensions are upbringing and moral and religious teaching, which constitute the exercise of freedom of conscience and religion. The invoked right to raise children should be understood as “instilling in children and strengthening a certain viewpoint, convictions, a system of values, as well as social, moral and ethical rules”.13 Upbringing understood in such terms also covers the concern of parents for the proper spiritual and physical development of a child.14 It is of great importance to distinguish between the internal and external dimensions of upbringing. The internal dimension of upbringing encompasses various actions undertaken by parents within the family, consistent with their own convictions, aimed at shaping the child in, among other things, spiritual, aesthetic, intellectual, moral, and ideological terms.15 Therefore, the internal aspect covers any relations between parents and children, but also between grandparents and grandchildren and between siblings. A special importance, but always a secondary one, in the upbringing of children in accordance with the convictions of their parents, is assigned to various institutions in the sphere of public life. Among those, one should mention first of all kindergartens and schools16, not forgetting the vital role different terms to describe religious freedom. Article 53(1) refers to “freedom of conscience and religion” (own emphasis), whereas Article 48(1) refers to “freedom of conscience and belief” (own emphasis). The provisions cited stirred the biggest debate at the final stage of the work on the Constitution, and proposals for changes were not accepted. 13 Sarnecki, Paweá. 2003. “Artykuá 48: Komentarz.” In Konstytucja Rzeczypospolitej Polskiej: Komentarz III, 1. Warszawa: Wydawnictwo Sejmowe. 14 According to the doctrine, spiritual upbringing means consolidating moral rules, instilling a sense of personal dignity in a child, as well as respect for self and others. Physical upbringing, in turn, concerns care for the life and health of a child and his or her physical fitness. Cf. Winiarz, Jan. 1996. Prawo rodzinne, 228-229. Warszawa: Wydawnictwo Prawnicze. For a different view on the matter, see Sarnecki, Paweá. 2003, 2. 15 Cf. Banaszak, Bogusáaw. 2009, 250. 16 Pursuant to Article 1(2) of the Act on the System of Education, schools support the educational role of the family. It is therefore difficult to share the opinion of the

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of religious organizations and other institutions. Their involvement in the upbringing of children should take place within the scope of the right of parents and with respect for the principle of subsidiarity “strengthening the powers of citizens and their communities”.17 In this context, one should mention the external dimension of upbringing. Some authors, referring to Articles 70-72 of the Constitution of the Republic of Poland, distinguish the right of parents to choose schools other than public ones and the possibility of setting up non-public schools from the right to raise children. In my view, however, all these rights are strictly connected.18 Owing to the freedom to choose schools, no undue burdens may be imposed on parents, whether directly or indirectly. The respect of the right of parents to raise their children in accordance with their own convictions is reflected in public authorities refraining from forcing children to attend school classes that do not correspond to the convictions of their parents. By actions inconsistent with the idea of respecting the rights of parents and their children, one should understand a situation when only one model of upbringing is imposed on families and parents, excluding religious formation entirely, or imposing a particular model of sexual education.19 As regards the presence of the cross in public spaces, it seems that the external aspect is of key importance, since the issue concerns public spaces. Nevertheless, I take the view that both aspects should be treated integrally. Indeed, upbringing understood integrally – encompassing the internal and the external dimension – aims to shape and prepare a young person for an independent life within the society. Any dichotomy, difficult Ombudsman that Article 70(1) of the Constitution limits the rights of parents by allowing upbringing of children in accordance with their own convictions only after school and at weekends. Similarly inconceivable is the position of the Ombudsman implying that Article 70(1) of the Constitution has priority over the right of parents (limiting that right) to raise their children in accordance with their own convictions conferred upon them under Article 53(3) of the Constitution in connection with Article 48(1) of the Constitution. Cf. the address of the Ombudsman to the Minister of National Education on anti-discrimination education in kindergartens of 24 April 2014 (I.800.1.2014.AM). http://rpo.gov.pl/sites/default/files/Do_MEN_ws_edukacji_antydyskryminacyjnej_ w_przedszkolach.pdf (accessed November 11, 2014). 17 See the Preamble to the Constitution of the Republic of Poland. 18 Article 70(3) of the Constitution of the Republic of Poland. 19 Cf. Sobór WatykaĔski II. “Deklaracja o wolnoĞci religijnej Dignitatis humanae”, no. 5. In Sobór WatykaĔski II: Konstytucje, dekrety, deklaracje, 410-421. PoznaĔ: Pallotinum, 2002.

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to avoid in a pluralist civil society, cannot infringe on the natural right of parents and their children. Inasmuch as the parents hold the natural right to raise their children, children also have the right to an upbringing (the right to be raised), which should be ensured first and foremost by the parents.20 Currently, practically nobody questions this right, although its interpretations tend to vary, and its limits are determined in different ways.21 Problems and discrepancies arise also in connection with the respect of the degree of maturity of a child, as well as his or her freedom of conscience and belief.22 It follows from the analysed constitutional provisions that in the upbringing of children, parents should take into account their degree of maturity, including their ability to comprehend the transmitted values and rules. The maturity of a child, referred to in Article 48(2), is an assessment-based concept, incorporating many different factors to be accounted for by parents whilst exercising their right to raise children.23 It is a potentially conflict-generating area disregarded completely by the legislator. These conflicts could pertain to, among other things, ideological and belief-related issues, including those concerning the presence of the cross at home or in public places. In summing up this part of the discussion, it should be stated that the right of parents to raise children is provided for in the Constitution of the Republic of Poland in a double meaning: as an independent personal right 20

Cf. Krukowski, Józef. 2000, 94-96. Marian Balcerek defines the right to be raised in a family as “the right of any child to have a family who organizes proper care and educational environment for the child, ensures the best possible conditions for psychological and physical development and for social and moral upbringing”. Balcerek, Marian. 1986. Prawa dziecka, 405. Warszawa: PWN. 22 Cf. Pietrzak, Michaá. 2010, 37. Contemporary constitutional regulations of democratic countries governed by the rule of law transfer the rights to exercise this right onto parents or legal guardians, or confer the right to independently exercise freedom of conscience and religion on minors aged 10-18. The Constitution of the Republic of Poland limits the right of parents as regards the religious and moral upbringing of their children in the internal dimension (e.g., family) and the external dimension (e.g., school) for the benefit of the minors. However, it is done in a vague manner that may lead to numerous misunderstandings and conflicts, mostly in the event of a difference of opinions between parents or legal guardians and children. 23 Cf. Grzejdziak, Agnieszka. 2002. “Prawo do wychowania w rodzinie.” In Prawa i wolnoĞci obywatelskie w Konstytucji RP, edited by Bogusáaw Banaszak and Artur Preisner, 486-469. Warszawa: C.H. Beck. 21

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of parents and their children, and as lex specialis of the freedom of conscience and religion.24 The Polish legislator does not make any direct reference to the right to decide about the presence of the cross in public spaces following from the right of parents to raise their children. The foregoing does not entail a prohibition to display the cross, however, as one should bear in mind the general principle laid down in Article 31 of the Constitution, from which it follows that freedom includes the possibility of doing anything that is not forbidden by law.

4. Specific guarantees The right of parents to raise their children, guaranteed by the Constitution, has been further specified in a range of legal acts, of which particular importance is accorded to the Act of 25 February 1964 – The Family and Guardianship Code,25 and the Act of 7 September 1991 on the System of Education,26 acts concerning the legal status of religious organizations and regulations adopted by the Minister of National Education. Article 95(1) of the Family and Guardianship Code provides that: “Parental authority covers, in particular, the obligation and the right of parents to exercise custody over the person and property of a child and to raise the child while respecting his dignity”.27 Under Article 96(1), “parents raise a child remaining under their parental authority and offer guidance. They shall take care of the physical and spiritual development of the child and prepare it properly to work for the benefit of society according to its aptitude”. It is important for the purposes of this paper to acknowledge the provisions of the Act on the System of Education pertaining to the issue of teaching religion. Article 12 provides that: 24

Similar guarantees are included in the Additional Protocol no. 1 of 20 March 1953 to the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the International Covenants on Human Rights of 16 December 1966. 25 Dziennik Ustaw [Official Journal] 2012, item 788, as amended. 26 Dziennik Ustaw 2004, no. 256, item 2572, as amended. 27 It follows from the resolution of the Supreme Court that parental authority – pursuant to the provisions of the Family and Guardianship Code – constitutes, first and foremost, a set of obligations that are binding upon parents towards a child. Rights are of secondary nature and are a component of the said authority. See the resolution of the Supreme Court of 9 June 1976 (III CZP 46/75).

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Chapter Twelve 1. Public kindergartens, primary schools and lower-secondary schools organize the teaching of religion at the request of parents, public higher secondary schools – either at the request of parents or the students themselves; upon reaching adulthood, students decide whether to attend religion classes. 2. The Minister of National Education, in cooperation with the authorities of the Catholic Church and the Polish Autocephalous Orthodox Church, and other churches and religious organizations, determines, by regulation, the conditions and manner of exercising the tasks referred to in para. 1 by schools.

Furthermore, in Article 13(1) the legislator guarantees that “a school and a public institution renders it possible for students to maintain a sense of national, ethical, and religious identity, in particular to learn the language, as well as their own history and culture.” At the request of parents, the teaching referred to above may be conducted in separate groups, divisions, or schools – with additional teaching of language and their own history and culture, and in inter-school teaching groups. Both cited articles – Article 12(2) and Article 13(3), respectively – provide for the duty to determine, by means of a regulation, the conditions and manner of exercising the statutory tasks by schools. Furthermore, as regards the teaching of religion, the legislator demanded that the Minister of National Education act in cooperation with authorities of churches and other religious organizations when regulating the conditions and manner of exercising tasks following from the organization of the teaching of religion. Of the highest significance for the analysis of the dyad addressed in the title is Article 12 of the Regulation of the Minister of National Education of 14 April 1992 on the Conditions and Manner of Organizing Teaching of Religion in Public Schools,28 which allows for displaying the cross and saying a prayer before and after class. At the same time, the legislator indicated that: “Saying a prayer at school should be an expression of the common will of students, as well as involve tact and delicacy on the part of teachers and educators”. It is the only provision of the currently binding law that provides for guarantees directly related to the display of the cross in a public place. In its ruling of 20 April 1993, the Constitutional Tribunal held that Article 12 of the Regulation “only indicates a possibility, not an obligation, to display the cross and say a prayer”.29 Moreover, the Tribunal 28

Dziennik Ustaw 1992, no. 36, item 155, as amended. Ruling of the Constitutional Tribunal of 20 April 1993 (U. 12/92). Orzecznictwo Trybunaáu Konstytucyjnego. Zbiór UrzĊdowy 1993, item 9. 29

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explained that inserting the provision in the Regulation “is justified in the context of the Preamble to the Act on the System of Education, and is connected to Article 13 imposing an obligation on a school to render it possible for students to, among other things, maintain their religious identity. Para. 3 of the said Article requires the Minister of National Education to lay down the rules, by means of a regulation, concerning the conditions and manner of exercising the aforesaid duty by schools”. Notwithstanding the ruling of the Constitutional Tribunal, the issue of displaying religious symbols still raises numerous doubts in Poland, about, among other things, the issue of displaying symbols other than the cross.30 The analysis of the education-related provisions currently in force in Poland may seemingly lead to the conclusion that public authorities notice the need for cooperation between parents and school in terms of establishing and executing a “school educational program”. Pursuant to Article 53(1) of the Act of 7 September 1991 on the System of Education, parents’ councils currently enjoy the status of obligatory school bodies. The parents’ council has the right to address the body running the school, the body exercising educational supervision, the headmaster, the teachers’ council, and the school council with applications and opinions on any school-related matters. Such an address shall be initiated by the council itself and without the need to obtain the consent of the other school bodies.31 The competence of the parents’ council has been generally determined in Article 54(2) of the Act, whilst the details shall be regulated by school statutes. Thus, the council may also address the issue of the presence of the cross in public schools. Following from the Regulation of the Minister of National Education of 21 May 2001 on the Framework Statutes of Public Kindergartens and Public Schools,32 a school educational program shall take account of the needs of parents in the scope of raising their children. Parents should be 30

Paweá Borecki deems it reasonable and possible to conduct a subsequent analysis of the constitutionality of certain provisions of the Regulation due to new control standards, such as the provisions of the Constitution of the Republic of Poland of 2 April 1997 and of the Concordat between the Holy See and the Republic of Poland of 28 July 1993. He points out the need to control Article 1(2), Article 2(1-2), Article 3(2) in connection with Article 2, Article 6, Article 10(1), and the first sentence of Article 12 of the Regulation. Borecki, Paweá. 2008. “KonstytucyjnoĞü regulacji szkolnej nauki religii (gáos w dyskusji).” Studia Prawnicze 2(176):31-40. 31 Cf. Pilich, Mateusz. 2009. Ustawa o systemie oĞwiaty: Komentarz, 541-547. Warszawa: Wolters Kluwer. 32 Dziennik Ustaw 2001, no. 61, item 624.

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included in the process of establishing the educational program and should be granted an opportunity to express their opinions on the plan proposed by the school, and express their views on what content they approve of or what they would like to see implemented. The existence of the parents’ council seems extremely important and desirable. Through councils of this kind, parents can indeed participate in current and long-term programming of school work, can help to improve its organization and conditions, can contribute to the execution of teaching and educational curricula, as well as performance of tasks related to the school by organizing activities aimed at raising educational culture within the family, at school, and in the local community.33 Apart from what has been discussed above, the guarantees for ensuring the exercise of the parents’ right to raise their children in accordance with their own convictions may include the following specific rights: the right to home schooling and the right to exempt a child from preparation for family life classes, if they believe the curriculum proposed by the school is not appropriate and they prefer to take on the responsibility for that aspect of their child’s education, the right to learn a language spoken by a minority or to learn a regional language. Furthermore, the guarantees related to upbringing and education have been included in acts concerning the legal status of religious organizations. In Article 2(2) of the Act of 17 May 1989 on the Guarantees of the Freedom of Conscience and Religion34 the legislator confirmed that “citizens may raise their children in accordance with their own convictions on religious matters”, whereas in Article 18(1) of the Act of 17 May 1989 on the Relations between the State and the Catholic Church in Poland35 similar guarantees are made with respect to parents and legal guardians, and subsequently reiterated in acts regulating the relations between the state and other particular religious organizations. It may seem from the acts and regulations invoked above that the right of parents to raise their children in accordance with their own convictions, in the context of the presence of the cross in public spaces, is limited to 33

Cf. Król, Ireneusz, and Józef Pielachowski. 1992. Organizacja i kierowanie szkoáą, 65. Warszawa-PoznaĔ: àawica; Krzywkowska, Justyna, and Monika Krzywkowska. 2013. “Prawo rodziców do religijnego wychowania dzieci.” In Wychowanie: czy moĪe “obejĞü siĊ” bez duchowoĞci?, edited by Jakub Bartoszewski, Joanna SwĊdrak and Ewa Struzik, 228-241. Kraków: WyĪsza Szkoáa Humanistyczno-Ekonomiczna. 34 Dziennik Ustaw 2005, no. 231, item 1965, as amended. 35 Dziennik Ustaw 1989, no. 29, item 154, as amended.

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teaching at school. There is no doubt that it is true from the legal perspective, and it may be explained by acknowledging the seriousness of the issue and the space for possible conflicts concerning the model of education and the presence of the cross and other religious symbols. Nevertheless, considering upbringing holistically and integrating its two dimensions, the right of parents to raise children may be linked to the presence of the cross in other public places, such as public offices, hospitals, crossroads, etc.

5. Conclusion The analysis of the issues pertaining to the dyad addressed in the title – the right of parents to raise their children in accordance with their own convictions and the presence of the cross in public spaces – makes it possible to formulate the following conclusions. The natural, positivised right of parents to raise their children in accordance with their own convictions is not confined to the internal dimension, that is, to relations within the family and in the home space. It also transpires from the right of parents to shape the public space where, in the context of upbringing as evidenced by the analyses, both the kindergarten and school play a dominant role. Article 18 of the Constitution of the Republic of Poland clearly provides that family, motherhood, and parenthood are placed under the protection and care of the Republic of Poland. One could hardly conceive of a better statutory guarantee for the exercise of parents’ rights to raise their children in accordance with their own convictions. It is equally difficult, from a constitutional perspective, to overestimate the importance of Article 30 of the Constitution of the Republic of Poland in the analysis of the issue at hand, as it confirms that freedoms and rights are derived from the inherent, inalienable, and inviolable dignity of the person, the respect and protection of which shall be the obligation of public authorities. A considerable part of the argumentation has been dominated by the issue of teaching in public schools and kindergartens, in spite of, and actually because of, the fact that some of representatives of the doctrine emphasize that in the Constitution the right to raise children is distinguished from the right to education, and even the Ombudsman seems to deprecate the right to upbringing as opposed to the right to education, which I consider unjustified. Of the provisions currently in force in Poland, referring directly to the right of parents to raise their children and to the freedom of conscience

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and religion, only Article 12 of the Regulation of the Minister of National Education of 14 April 1992 on the Conditions and Manner of Organizing Teaching of Religion in Public Schools provides for a straightforward guarantee of the possibility of displaying the cross in public spaces: “The cross may be displayed in school classrooms”. A separate study should be conducted, especially in the context of the judgment in the case of Lautsi v. Italy, widely commented on, with respect to the limitations to the exercising of the right to raise children by parents.36 Considering the fact that the presence of the cross in public spaces constitutes one of the ways to exercise the subjective right of parents to raise children, I strongly support the positive aspect of this right entailing the display of religious symbols. One should expect that the lack of specific regulations concerning the presence of the cross in public spaces, not only in the context of the analysed right, will favour the intensification of actions aimed at removing the cross from public spaces. Thus, a mobilization of Catholic political and scientific circles is required in order to create good law and good practice in applying it.

References Balcerek, Marian. Prawa dziecka. Warszawa: PWN, 1986. Banaszak, Bogusáaw. Konstytucja Rzeczypospolitej Polskiej: Komentarz. Warszawa: Wydawnictwo C. H. Beck, 2009. Borecki, Paweá. “KonstytucyjnoĞü regulacji szkolnej nauki religii (gáos w dyskusji).” Studia Prawnicze 2(2008):31-40. Dudek, Dariusz, and Piotr Stanisz. “Opinia prawna w sprawie wniosku grupy posáów o usuniĊcie krzyĪa z Sali posiedzeĔ plenarnych Sejmu RP.” Zeszyty Prawnicze Biura Analiz Sejmowych 4/32(2011):88-104. 36

One should recall that upon hearing the case by the Grand Chamber of the Court of Human Rights in Strasbourg, the panel of 17 judges held that the cross displayed in a classroom cannot be viewed as breaching Article 2 of the Additional Protocol no. 1 to the ECHR whatsoever. The Court further stated that no infringement of any of the Articles of the Convention invoked actually took place. The Grand Chamber decided that the cross hanging on the wall was only a passive religious symbol, whose impact cannot be compared with the obligatory teaching of religion or exercising religious practices. At the same time, the Court held that the presence of religious symbols in public spaces is related to the traditions and values in relation to which the Convention affords a significant margin of appreciation to particular countries.

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Granat, Mirosáaw. “GodnoĞü czáowieka z art. 30 Konstytucji RP jako wartoĞü i norma prawna.” PaĔstwo i Prawo 8(2014):3-22. Grzejdziak, Agnieszka. “Prawo do wychowania w rodzinie.” In Prawa i wolnoĞci obywatelskie w Konstytucji RP. Edited by Bogusáaw Banaszak and Artur Preisner, 486-496. Warszawa: C.H. Beck, 2002. JabáoĔski, Mariusz. “RozwaĪania na temat godnoĞci czáowieka w polskim porządku konstytucyjnym.” In Prawa i wolnoĞci obywatelskie w Konstytucji RP. Edited by Bogusáaw Banaszak and Artur Preisner, 8196. Warszawa: C.H. Beck, 2002. Król, Ireneusz, and Józef Pielachowski. Organizacja i kierowanie szkoáą. Warszawa-PoznaĔ: àawica, 1992. Krukowski, Józef. KoĞcióá i PaĔstwo: Podstawy relacji prawnych. Lublin: Wydawnictwo KUL, 2000. Krzywkowska, Justyna, and Monika Krzywkowska. “Prawo rodziców do religijnego wychowania dzieci.” In Wychowanie: czy moĪe “obejĞü siĊ” bez duchowoĞci? Edited by Jakub Bartoszewski, Joanna SwĊdrak and Ewa Struzik, 228-241. Kraków: Wydawnictwo WyĪszej Szkoáy Humanistyczno-Ekonomicznej w Sieradzu, 2013. Misztal, Henryk. “Gwarancje prawa miĊdzynarodowego i polskiego w zakresie uprawnieĔ rodziców do religijnego wychowania dzieci.” Studia z Prawa Wyznaniowego 1(2000):5-20. —. “Prawo rodziców do wychowania dzieci wedáug wáasnych przekonaĔ.” Teka Komisji Prawniczej, 64-75. Lublin: Polska Akademia Nauk, 2009. Morawski, Lech. “Opinia w sprawie wniosku grupy posáów o wydanie zarządzenia nakazującego usuniĊcie krzyĪa áaciĔskiego znajdującego siĊ w sali posiedzeĔ Sejmu RP.” Zeszyty Prawnicze Biura Analiz Sejmowych 4/32(2011):105-112. Pietrzak, Michaá. Prawo wyznaniowe, Warszawa: LexisNexis, 2010. Pilich, Mateusz. Ustawa o systemie oĞwiaty: Komentarz. Warszawa: Wolters Kluwer, 2009. Piotrowski, Ryszard. “Opinia na temat wniosku dotyczącego "wydania zarządzenia nakazującego usuniĊcie krzyĪa áaciĔskiego, znajdującego siĊ w sali posiedzeĔ Sejmu RP".” Zeszyty Prawnicze Biura Analiz Sejmowych 4/32(2011):55-77. Sarnecki, Paweá. “Artykuá 48: Komentarz.” In Konstytucja Rzeczypospolitej Polskiej: Komentarz III. Warszawa: C.H. Beck, 2003. Stanisz, Piotr. “Symbole religijne w szkole publicznej.” In Religia i etyka w edukacji publicznej. Edited by Józef Krukowski, Paweá Sobczyk and Michaá Poniatowski, 143-167. Warszawa: Wydawnictwo UKSW, 2014.

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Warchaáowski, Krzysztof. “Gwarancje prawa do wychowania religijnomoralnego w umowach miĊdzynarodowych.” Studia z Prawa Wyznaniowego 10(2007):201-208. Wieruszewski, Roman. “Opinia na temat wniosku Klubu Poselskiego Ruch Palikota o wydanie zarządzenia nakazującego usuniĊcie krzyĪa áaciĔskiego, znajdującego siĊ w Sali posiedzeĔ Sejmu RP.” Zeszyty Prawnicze Biura Analiz Sejmowych 4/32(2011):78-87. Winiarz, Jan. Prawo rodzinne. Warszawa: Wydawnictwo Prawnicze, 1996.

CHAPTER THIRTEEN THE CROSS IN PUBLIC SPACES: ROMANIAN CASE LAURENTIU D. TĂNASE

Introduction The subject of our study, the presence of the cross in public spaces, is a provocative and interesting theme, because in the culture and the spirituality of the Romanian people the cross is very important. The cross forms part of official symbols, being found in the coat of arms of the country and also in the text of the national anthem “Wake up, Romanian”, written in 1848 and adopted as the national anthem of Romania after the Anti-Communist Revolution in December 1989: “Priests, lead with your crucifixes, because the army is Christian; the motto is Liberty and its goal is holy!”1 The cross is often present in Romanian literature, and is as highly respected in our times as it was in the past. I remember during the communist period that it was an act of courage for a Christian to make the sign of the cross with his tongue while his mouth was closed as he said a personal prayer or when he passed a church. This gesture, practically unnoticed, expressed a form of public resistance and the underground fight against the atheist, communist and totalitarian regime. This gesture was recommended to children by their parents when they left in the morning, but also when they passed a church or a crossroads. I confess that this little gesture from childhood has become a reflex that is still manifested with the same intensity. Nowadays, when nobody ideologically accuses anyone of using the sign of the cross on the street, unlike in the communist past, 1

The National Anthem “Wake up, Romanian”, written in 1848; the lyrics were composed by Andrei Muresanu (1816–1863) and set to a popular melody, cf. Nicolăiasa, Victor, Anca Nicolescu and Anca Oprea. 2008. Imnurile terrei – Uniunea Europeană, 94-98. Bucuresti: Stefan.

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you can see this gesture made by students and by elders as they pass a church. By studying the presence of the holy cross in public spaces in Romania I have addressed a series of questions to myself: -

Why is the cross so important to the spirituality and the culture of the Romanian people? In the competition between religions – Christianity and modernity – secularization, does the cross, as a Christian symbol, lose its intensity? Can we consider the varied presence of the cross in public spaces as a sign of religious vitality? How do the secular institutions of the state position themselves in relation to this defining symbol of Romanian Christian-Orthodox ethno-identity? Has there been any publicly expressed dissent to the presence of the cross in public spaces?

-

-

-

Our analysis was based on a legal and socio-historical approach. As a research methodology we tried to achieve a typology of the presence of the cross in contemporary Romanian public spaces by forming working groups. We also studied an important theological, historical, legal, and sociological bibliography, and we appealed to media research for a current analysis of certain public events. We went out into the field and we observed the cross in various public spaces, in schools, in Parliament, in hospitals, on the streets, and we interviewed people who could bring us additional information.

A) Typology of the use of the holy cross in Romania (as purpose of use) 1. 2.

3. 4.

The holy cross as a liturgical object and a symbol of Christian identity (ecclesial pastoral dimension); The holy cross as an expression of homage to one’s ancestors and the historical past (symbolic historical-identity dimension of the cross); The holy cross in public institutions (institutional dimension); The holy cross in personal concerns; the cross as a popular symbol of faith (popular dimension).

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In each category, it is possible to distinguish different contexts and uses of the cross, as specified below. 1) The holy cross as a liturgical and pastoral object: -

on church steeples, engraved on liturgical vessels, sewn or printed on priestly vestments, or on religious books, in the architecture of the construction of churches (Orthodox churches are mostly built as a cross), as a distinct liturgical object, as a sign and blessing ritual in all church services, in the stone cross used in Dobrogea by Saint Andrew – as a symbol of Christian initiation.

2) The holy cross as an expression of homage to ancestors and the historical past: -

-

mentioned in the text of the national anthem, on the national coat of arms, as a commemorative cross for Romanian soldiers in the First and Second World War – the monument of Marasesti, as tribute monument crosses, especially made of rock or marble, but also of wood, for the remembrance of deceased local heroes in wars – in towns and villages, usually located near the village church or the Town Hall, on regional flags (e.g., Constanta).

3) The holy cross in the institutional dimension: -

in the Romanian Parliament and in governmental institutions, in public schools, in fixed or mobile military units in conflict zones (Kosovo, Afghanistan, Iraq), in prisons, in hospitals and social care institutions.

4) The holy cross and the popular dimension of its use: -

as an ornament – for both women and men, and especially for children,

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-

-

-

as an object of witchcraft ritual, used especially by female witches (in Romania, witchcraft practiced by men seldom occurs), in pagan rituals of exorcism against ghosts and phantoms – pagan practices – pre-Christian, but with specific rituals of Christianity, in the south of Romania (Oltenia), for blessing and protection: a. when starting to build a house – on the highest point of the wooden framework a cross is placed and the Orthodox priest blesses the start of construction, b. in stables, especially in dairy barns, c. in houses, usually in bedrooms near the icons and candles, on the east wall, on the road sides – as a reminder of and remembrance for the deceased in a car accident, or as a blessing for travellers.

B) The use of the holy cross and religious vitality in contemporary Romania Seeing this rich and varied typology regarding the use and presence of the holy cross in Romania, both in public and in private spaces, without talking about its use in the specific area of Christian Orthodox religious life, we may naturally wonder: how can we explain the motivation of such diverse uses of the holy cross in Romania? An obvious response, taking into account the cultural and religious structure of the Romanian nation, which is influenced by the apostolic origin of Christianity through the missionary activity of St. Andrew in Dobrogea, the former Roman province of Scythia Minor some 2,000 years ago, is that we understand the great importance of Christianity and thus the holy cross for contemporary history and religious life. Although the accents of secularization in the contemporary Western European space are particularly clear, European religious secularization is being manifested especially by decreasing numbers of Christians who go to church, yet in Romania we can see real religious vitality of the Romanian Orthodox Church in all spheres of existence in society. Regular attendance at church and the declaration of belonging to the Orthodox Church represent other interesting indicators in defining the low degree of secularization in contemporary Romanian society. Regular statistical analyses show that during the 25 years that have passed since the removal of the totalitarian communist regime, the Orthodox Church and the Romanian Army remain the most trusted institutions: Romanians have the most confidence in the Church and

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Army, while confidence in the administrative institutions of the state and politicians is the lowest.

C) Construction of churches – an indicator of religious vitality in Romania One interesting indicator of the vitality of religious life in Romania is the construction of new churches since the fall of communism. When we speak of new churches, we include Orthodox Christian churches, Catholic and Protestant churches, as well as neo-protestant houses of worship and Muslim mosques. During the 50-year communist period, although the population increased numerically, and many working-class neighbourhoods were developed and built, there were, however, no churches built for the spiritual needs of the citizens, as ideologically the communist regime was an atheist one. Moreover, the tendency of the totalitarian regime was to demolish churches, often argued under the consideration for organization and urban development. For these reasons, dozens of historic churches and monumental houses were demolished in Bucharest alone.2 From the information dating back to 1987, in a population of 17,985,000 there were 17,881 places of worship. Of these, only 420 churches, representing 2% of all existing churches, were built during the 1975-1986 period, which represents an average of 40 new churches per year.3 See the following table:

2

Following the urban systematization of Bucharest, during 1980-1989, by order of Nicolae Ceausescu, 20 Orthodox churches were demolished and 7 others were moved from where they stood since ancient times. The demolishing of churches occurred mainly in the centre of Bucharest. Stoica, Lucian, and others. 1999. AtlasGhid. Istoria úi arhitectura lăcaúurilor de cult din Bucureúti din cele mai vechi timpuri până astăzi [Atlas-guide – history and architecture of the churches in Bucharest], 18. Bucure‫܈‬ti: Ergonom 79. 3 Consultative Council of Religious Affairs of the Socialist Republic of Romania. 1987. Viata religioasa in Romania, prezentare sintetica [The religious life in Romania], 48. Bucure‫܈‬ti.

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Table 1. Statistics regarding the number of places of worship built or repaired between 1975 and 1986 Name of religious group(s) Romanian Orthodox Church Roman Catholic Church Protestant Churches (Reformed Church, Unified Evangelical Church) Old Orthodox Ritual Church (Russians, Ukrainians) Neo-Protestant Churches (Adventist, Baptist, Pentecostal) Muslims Total

Number of places of worship 308 19 34 4 52 3 420

Source: Consultative Council of Religious Affairs of the Socialist Republic of Romania. 1987. Viata religioasa in Romania, prezentare sintetica [The religious life in Romania], 48. Bucure‫܈‬ti.

After the fall of the communist regime in 1989, a total of 3,418 churches were built during the 1990-2004 period, which means an increase of 19.29% in the total number of churches and mosques in Romania.4 These statistical figures show the vitality regained by religious life in Romania after 1989, following 50 years of the totalitarian atheist regime. The analysis of the issues related to building new churches made it possible to come up with some relevant observations concerning the presence of the holy cross in public spaces. Namely, I was able to notice a very interesting detail in the analysis of the central celebration marking the patrons of Orthodox churches built after 1990. In the Orthodox tradition, every church has a religious celebration for a saint who becomes the patron of the church. Thus, for over 1,679 Orthodox churches built during this time, the following ranking could be made of the most important holy patrons:

4 Tanăse, Laurentiu. 2008. Pluralization religieuse et societé en Roumanie, 238. Berne-Suisse: Peter Lang.

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Table 2. The names of the patrons of the Orthodox churches built during 1990-2003 No. 1 2 3 4 5

Patron Saints Constantine and Elena Ascension of Jesus Christ Saint John the Baptist Holy Trinity Saints Peter and Paul

Ranking I II III IV V

Source: Ana UNCU architect, Database 1990-2003 – CALC. 2004. Bucure‫܈‬ti: Secretariatul de Stat pentru Culte.

The fact that the feast of Saints Constantine and Elena, celebrated annually on 21 May, is ranked as the first leads us to assume that the victorious message of the two emperors is very important in Romania, and particularly appreciated by popular piety. These two byzantine emperors of the fourth century discovered the cross on which Jesus was crucified, and from then on the cross of Jesus became a liturgical object of public veneration. However, Constantine is also known as a symbol of the military victory (In hoc signo vinces) against Maxentius at Pons Milvius in 312, the cross being used by Constantine as an incentive and a sign of the Christian victory against pagan military opponents.5 Since then, as a sign of a victory and a symbol of encouragement has been observed with great reverence in the Orthodox Church in Romania. Perhaps such an interpretation of popular piety led to the election of the feast of Saints Constantine and Elena – the discoverers of the cross – as the most important feast for churches built after 1989 in Romania. In continuing to analyse the relationship between this large and varied presence of the cross in public spaces and the concept of secularization in Romania, as a tool of research we used the statistics on the declared religious identity of every Romanian citizen in the last three national censuses: 1992, 2002, and 2011.

5

Forlin Patrucco, Marcela. 1990. “Constantin I-er, Empereur.” In Dictionnaire encyclopedique du christianisme ancien, edited by Angelo Di Berardino, vol. 1, 546. Paris: Les Editions du Cerf.

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D) The religious structure of Romanian society; religious tri-polarity Using the national census data from 1992, 2002, and 2011 we can see the religious structure of the society today and its dynamics, as well as the ratio between the Orthodox majority and other Christian denominations and non-Christian religious minorities. As we can see from Table 3 below, the traditional Churches (Orthodox, Catholic, Greek Catholic, and Protestant) showed a decrease in the number of believers in the 20-year period covered by the censuses. The religious structure of Romanian society in 2011, for a population of 19,043,767, is presented below: Diagram 1. Three-dimensional religious structure of Romania 90.00% 80.00% 70.00% 60.00% 50.00% 40.00% 30.00% 20.00% 10.00% 0.00%

85.94 %

12.32 %

Romanian Orthodox Church

Roman and Greek Catholics, Muslims, Protestants and members of neo-Protestant recognized denominations

1.74 %

Atheists, non-religious, new religious movements and non-declared

Source: Recensământul populaĠiei úi al locuinĠelor din 2011 [Census of Population and Housing of 2011]. Institutul National de Statistica: Bucuresti 2011. http://www.recensamantromania.ro

From the graphical representation above we can see that the religious majority of Romania is Orthodox Christian, at 85.94% in the last census in 2011. Most of those stating they were Orthodox had Romanian ethnicity. All the other minority religions are in fact expressions of ethnic identity. For example Hungarians declared the Lutheran religion, the Catholic religion, or, in a small percentage of cases, the Unitarian religion, Germans declared the Catholic religion, the Jewish community declared a Mosaic religious identity, and the Turkish-Tatar community declared Islam.

19,802,389

Orthodox religion

1,845,704

7.1%

6.1%

86.8%

100.00%

% 1992

1,645,014

1,217,985

18,817,975

21,680,974

2002

7.6%

5.61%

86.79%

100.00%

% 2002

- 200,690 = - 10.87%

- 167,284 = - 12.07%

- 984,414 = - 4.97%

- 1,129,061 = - 4.94%

2002 vs. 1992

1,646,979

1,029,521

16,367,267

19,043,767

2011

8.66%

5.4%

85.94%

100.00%

% 2011

+ 1,965 = + 0.11%

- 188,464 = - 15.47%

- 2,450,708 = - 13.02%

-2,637,207 = -12.16%

2011 vs. 2002

- 198,725 = - 10.76%

- 355,748 = - 25.68%

- 3,435,122 = - 17.35%

- 3,766,268 = - 16.51%

2011 vs. 1992

227

Source: Comparative table based on the official data from the National Census of Population in 1992 (I.N.S., Bucuresti, 1995, p. 296), the National Census of Population in 2002 (I.N.S., vol. I, Bucuresti, 2003, pp. 802-803) and the National Census of Population in October 2011 – http://www.recensamantromania.ro

Other religions and nondeclared

1,385,269

22,810,035

Total

Catholic religion (Roman and Greek Catholics)

1992

Religion

Table 3. The changes in religious affiliation in Romania (1992-2011): the national censuses of 1992, 2002 and 2011

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E) Legal issues and conflict situations regarding the presence of the cross in public spaces We would like to mention a very important legal issue for our research regarding the presence of the cross in public spaces, namely that in Romania this issue is not legally regulated, although we often encounter situations in which the cross and other religious symbols, such as icons, are present in schools, in public administration institutions of the state, in Parliament, in military units, in hospitals or in other medical and social assistance units. Only in the courts of law is there a clear procedure for the use of the cross. Specifically, a witness called to court, before being heard, takes an oath with his or her hand on a cross or a Bible. It does not concern, however, witnesses without a religion or with a religion other than Christianity.6

Case study: Emil Moise v. the Ministry of Education Regarding conflicts related to the presence of the cross in public spaces, I want to present an example of a protest that began in 2005. This legal case is known as Emil Moise v. the Ministry of Education. In 2005, Emil Moise, a philosophy teacher at a high school in Buzau, about 120 kilometres from Bucharest, sued the School Inspectorate of Buzau. He expressed his dissatisfaction with the presence of Romanian Orthodox icons in the elementary school where his daughter was studying, the Margareta Sterian School of Arts in Buzau. He argued that the presence of religious symbols in a state institution is a violation of

6

Art. 319 of Codul de procedură civilă al României, Monitorul Oficial din 10 aprilie 2015 nr 247/2015 [Code of Civil Procedure, Official Journal of 10 April 2015 no. 247/2015]. Taking the oath: (1) Before being heard, the witness takes the following oath: “I swear to tell the truth and I will not hide anything from what I know. So help me God!” (2) While he takes the oath, the witness holds his hand on a cross or the Bible. (3) The reference to the divinity in the oath changes according to the religion of the witness. (4) The witness of other religion does not abide to the provisions of point 2. The witness without a religion will take the following oath: “I swear that in honour and conscience I will speak the truth and I will not hide anything from what I know”.

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freedom of conscience and religion, guaranteed by the Constitution of Romania. The County Court of Buzau dismissed the complaint, stating that: The presence of religious symbols on the walls of chancelleries, hallways, and classrooms of the school does not violate the fundamental rights to freedom of conscience, thought, and religious beliefs, analysed in connection with the equal rights of students, and it is not a discriminatory situation for the complainant’s daughter, a student at the Margareta Sterian School of Arts in Buzau, who attends the religion classes taught there. It is noted that in this school there is a special situation compared to other schools in Buzau, as most of the icons displayed in this institution are works developed by high school students under the guidance of specialist teachers, being considered works of art.7

Thus, the County Court argued for maintaining religious symbols at the School of Arts in Buzau and implicitly in other public schools. It was the first time since the fall of the communism that such a public trial had occurred. The teacher was accused by public opinion that his philosophical education was highly influenced by Marxist-Leninist ideology. The teacher, Emil Moise, used his right to address a higher court and he appealed to the Appellate Court in Ploiesti, who confirmed the decision of the County Court in Buzau.8 Also in 2006, Emil Moise filed a complaint with Consiliul Naаional pentru Combaterea Discriminării (the National Council for Combating Discrimination), arguing the discrimination on the basis of personal convictions and asking for the removal of religious symbols from all Romanian public education institutions. In his motivation for the request, he stated that the display of religious symbols on the walls of public education institutions “constitutes discrimination against atheists,

7

Judgment no. 157 of 27 March 2005. In Cioroabă, Marinela and Claudiu Dragusin. 2011. “Simbolurile religioase in scoli – discriminare sau normalitate? Lautsi vs. Italia si Emil Moise vs. Romania.” http://www.juridice.ro/141592/simbolurile-religioase-in-scoli-discriminare-saunormalitate-lautsi-vs-italia-si-emil-moise-vs-romania.html (accessed 10 October 2016). 8 Ruling no. 1917 of 20 July 2006. In Cioroabă, Marinela and Claudiu Dragusin. 2011. “Simbolurile religioase in scoli – discriminare sau normalitate? Lautsi vs. Italia si Emil Moise vs. Romania.” http://www.juridice.ro/141592/simbolurilereligioase-in-scoli-discriminare-sau-normalitate-lautsi-vs-italia-si-emil-moise-vsromania.html (accessed 10 October 2016).

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agnostics, indifferent persons, or those of other religions than the one to which the religious symbols belong”.9 On 21 November 2006, the National Council for Combating Discrimination followed the request of Emil Moise and recommended that the Ministry of Education and Research should develop and deliver to school educational institutions internal rules covering the presence of religious symbols in public schools. The recommendation provided that: The Ministry of Education should develop and implement, during a reasonable amount of time, internal rules to govern the presence of religious symbols in public schools. These internal rules must be based on the following principles: - It must ensure the right to education and access to culture based on equality; - It must respect the right of parents to educate their children based on their religious and philosophical beliefs; - It must respect the secular nature of the state and the autonomy of religions; - It must ensure the freedom of religion, conscience, and belief to all children on an equal basis; - Religious symbols may be displayed during religious education classes and in areas designated exclusively for religious education.10

The Ministry of Education refused to comply with the recommendation, arguing that it was without normative force. The Romanian Orthodox Church Patriarchate criticized the recommendation, taking it as an attack on the “freedom of religion”. The Church’s communiqué indicated that: “the presence of religious symbols in schools does not follow from any formal obligation, but it is the result of the desire and consent of parents, teachers, and students, according to religious and cultural values they have in common”. 11 The same attitude was shown by the representatives of other churches and religions: the Roman Catholic Archdiocese of Bucharest (who stated that the recommendation was “unfair and discriminatory”), the Armenian Orthodox Church of Romania, Yusuf Murat, Grand Mufti of the 9

Tapalaga, Dan. “Războiul crucifixului: compromisul german pe tema interzicerii simbolurilor religioase in scoli.” http://www.hotnews.ro/stiri-esential-2474187razboiul-crucifixului-compromisul-german-tema-interzicerii-simbolurilorreligioase-scoli.htm (accessed 10 October 2016). 10 BBC – Romanian.com. 2006. “ùcoala – cu sau fără simboluri religioase?” http://www.bbc.co.uk/romanian/news/story/2006/11/061122_simboluri_religioase _romania.shtml (accessed 10 October 2016). 11 Press release of Biserica Ortodoxă Română [Romanian Orthodox Church]. “Icoanele in scoli.” Lumina (Bucuresti), 23 November 2006.

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Islamic Community in Romania, the Hebrew Community in Romania, and also by parliamentarians, intellectuals (e.g., members of the Romanian Academy), etc. On the initiative of the Ministry of Education and Research, the validity of the recommendation of the National Council for Combating Discrimination was assessed by courts. In 2008 and 2009, two decisions of the High Court of Cassation and Justice, no. 2393/2008 (PRO VITA Bucharest, as an intervener in favour of the Ministry of Education) and no. 2794/2009 (PRO VITA Bucharest as a complainant), confirmed that the recommendation of elimination of all religious symbols in public schools was invalid.

Conclusions The presence of crosses and icons in public spaces, especially in public institutions, is often justified by the fact that these items are appreciated by Romanian culture and spirituality, and they often have not only Orthodox religious significance but also carry an important artistic, cultural, and national message. They are part of the Romanian national religious identity, often being offered as a gift in the form of handmade crafts, accompanied by a tricolour scarf in the colours of the Romanian flag: red, yellow, and blue. Such an approach based on Orthodox and Romanian identity was used in 2014 by one of the candidates for the President of Romania, Victor Ponta. He represented the Social Democratic Party and he explicitly used two themes with a strong national identity implication in his election campaign: being Romanian and Orthodox. In preparing for his election campaign, he attended numerous religious celebrations with a public impact, such as the Orthodox religious pilgrimage in October in Iasi on the occasion of the day St. Paraschiva. On his banners he used a stylized form of these two electoral concepts: a national artistic popular pattern with the national colours of red, yellow and blue, and in the centre of each colour there was a cross with equal parts, emphasizing the Christian-Orthodox identity of the candidate. It was for the first time since the fall of communism that such an identity, based on national religious themes, had been shown so clearly by a political candidate for presidency. The people, especially in the rural areas of Eastern and South-Eastern Romania, appreciated Victor Ponta’s election campaign. Moreover, during the various election rallies in support of the campaign, diverse flyers were distributed with the image of some highly respected saints. In other election campaigns in the last 25 years,

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religious themes have been used in campaigns for parliamentary elections, but never with such intensity and duration over time. His opponent, Klaus Johannis, supported by a coalition of the forces of the right, known as the Christian Liberal Alliance, was German and of the Protestant-Lutheran religion. His designation as a candidate in the presidential election was motivated by the fact that in the last 10 years the president of Romania was elected from the right-wing political forces and in European politics the dominant position is taken by the European People’s Party, which influences the political scene in Romania, with the support declared by the German Chancellor, Angela Merkel. Although a strategy based on the cultural and religious mentality of the Romanian Orthodox Christian majority was used excessively in the campaign, the election result was in favour of the liberal Alliance candidate, Klaus Johannes. This result leads us to believe that the aspects of religious influences are an important component of cultural identity, but religion cannot be so easily used as a political election slogan, and the society can distinguish between ephemeral political interests and culturalhistorical religious values. However, at the same time, we believe the election result shows accelerated secularization in Romanian society, a stage characteristic of European society as a whole. Romanian society, given that Romania is a member of the European Union, is influenced by the secularizing processes and by the European modern secular mentalities pushing religion toward a marginal area of historical existence. However, leaving aside the question of how important is ethnic-religious identity in the political sphere in Romania, we wish to emphasize that the presence of the cross in various public spaces highlights not only the high degree of respect for religious and moral values, but also the important vitality of religious life. The Orthodox Church remains a very important and highly respected social actor in contemporary society. The dimension of religious vitality, as expressed by Orthodox religious affiliation, remains constantly very high (over 85% of the total population), and emphasizes the low degree of secularization in Romanian society. It may seem paradoxical to see such a low degree of secularization in Romania in the context of the growing secularization of Western Europe, but could it be just a superficial form of religiousness, which might change with the spread of real modern Western influences, especially economic influences, in Eastern Europe?

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References Cioroabă, Marinela and Claudiu Dragusin. “Simbolurile religioase in scoli – discriminare sau normalitate? Lautsi vs. Italia si Emil Moise vs. Romania.” http://www.juridice.ro/141592/simbolurile-religioase-inscoli-discriminare-sau-normalitate-lautsi-vs-italia-si-emil-moise-vsromania.html (accessed October 10, 2016). Forlin Patrucco, Marcela. “Constantin I-er, Empereur.” In Dictionnaire encyclopedique du christianisme ancien, 546. Edited by Angelo Di Berardino, vol. 1. Paris: Les Editions du Cerf, 1990. Nicolăiasa, Victor, Anca Nicolescu, and Anca Oprea. Imnurile terrei – Uniunea Europeană. Bucuresti: Stefan, 2008. Stoica, Lucian, and others. Atlas-Ghid. Istoria úi arhitectura lăcaúurilor de cult din Bucureúti din cele mai vechi timpuri până astăzi. Bucuresti: Ergonom, 1999. Tanăse, Laurentiu. Pluralization religieuse et societé en Roumanie. BerneSuisse: Peter Lang, 2008. Tapalaga, Dan. “Războiul crucifixului: compromisul german pe tema interzicerii simbolurilor religioase in scoli.” http://www.hotnews.ro/stiri-esential-2474187-razboiul-crucifixuluicompromisul-german-tema-interzicerii-simbolurilor-religioasescoli.htm (accessed October 10, 2016).

CHAPTER FOURTEEN THE NOTION OF THE STATE RELIGIOUS NEUTRALITY APPLIED TO THE PRESENCE OF THE CRUCIFIX IN THE PUBLIC SPACE IN SPAIN JAVIER MARTINEZ-TORRÓN

1. Presence and visibility of religion in Spanish social life Spain is a country with an ancient Catholic tradition, and a social life full of diverse Christian symbols. The presence of the history of the Catholic religion in Spain is continuous and overwhelming. In addition to the very visible Catholic temples in even small towns or villages, representations of the crucifix, the Holy Virgin, and many saints can be found everywhere, in the streets, public buildings, or schools, on roads, mountains, etc. It is difficult to go anywhere in Spain, in urban or rural areas, without finding multiple signs of Christianity. A similar presence of the Catholic religion can be found in social customs. The names of the advocations of Jesus Christ, the Virgin, and saints are given to towns, streets, schools, hospitals, etc. Usually all Spanish towns, and many public institutions (universities and their faculties, professional associations, royal academies, etc.), have their own patron saint and publicly celebrate their festival. Spain, as a nation, has a patron saint, Saint James, whose festival on 25 July is a non-working day in several regions (it was a national public holiday until recently). Most often, new-born children are named in accordance with the Christian tradition. During some periods of the year, especially during Holy Week and Christmas, and on specific festive days such as Corpus Christi, religious processions, ceremonies, and celebrations are held all over Spain, with the, sometimes very active, participation of the majority of the population.

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Catholic institutions and their activities are deeply embedded in many diverse aspects of Spanish social life. Indeed, numerous initiatives of civil society have direct or indirect Catholic inspiration, especially in the areas of education, healthcare, and charities. There are ecclesiastical orders or congregations that have traditionally focused their activity on these areas. Some associations that have worship as their main purpose, such as fraternities constituted for the veneration of and the dissemination of the devotion to a sacred image in a temple (hermandades or cofradías), have a dimension of service to the community, for instance through pro bono work for disadvantaged people. A high number of NGOs are inspired by Catholic ideas or even in close connection with the Catholic Church’s authorities: Caritas is the best example, and is probably the most appreciated NGO in Spain. These NGOs can apply for the subsidies that the government distributes with the money collected through 0.7% of income tax that taxpayers can destine to “activities of social interest”.1 There is normally a high social appreciation of the social work done by these institutions. To a lesser extent, there are also architectural or physical remnants of the historical presence of Islam and Judaism, which are more visible in southern Spain. Muslim and Jewish influences have been important in many other aspects of Spanish social, economic, or cultural life, but curiously, have been insignificant when it comes to religion or morals. At the same time, at the personal level, Spanish society has become increasingly secularized in recent decades, and many people often live their lives without strict compliance with religious rules, either moral or ritual. However, it is interesting to note that, save for the few cases mentioned below in this paper, the visible and symbolic presence of Catholicism is commonly accepted as a fact, even by non-Christians or by people of atheistic or agnostic beliefs.

2. Case law on the presence of the crucifix in public spaces In Spain there is no general legislation governing the use of religious symbols in State schools and other public institutions, either to make their display mandatory or to prohibit the display.2 The closest laws relating to 1

See Martínez-Torrón, Javier. 2014. Religion and Law in Spain, paras. 488-491. The Netherlands: Wolters-Kluwer. 2 Among the legal literature about religious symbols and ceremonies in public space in Spain, see Botella, Gloria Moreno. 2003. “Crucifijo y escuela en España.” Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 2:1-34; Arribas, Santiago Cañamares. 2009. “Tratamiento de la simbología religiosa en el

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that area involve the legislation and regulations that give public officials the choice between taking an oath or a promise on one’s conscience and honour when taking office;3 and the 2010 royal decree on military honours.4 There is, however, case law related to this issue. As in other European countries, in recent years Spanish courts have adjudicated on claims against the visibility of Christian symbols present in some public institutions out of a long-standing tradition. Often, these claims have been presented formally as individual objections inspired by a “secular conscience” (conciencia laica), arguing that the freedom of conscience of atheists is violated by having to bear the presence of a religious symbol that they consider “offensive” to their convictions. Such a claim is usually accompanied by additional reasoning aimed at obtaining from the courts a particular interpretation of the consequences of the constitutional principle of State secular neutrality vis-à-vis certain popular and old expressions of Christian religiosity, where in the plaintiffs’ view that principle would veto the presence of any religious symbol in public institutions. With specific reference to the crucifix, neither the Constitutional Court nor the Supreme Court has had the occasion to adjudicate in this type of conflict. There have been, however, some interesting judgments by those courts on other religious symbols, which I examine in the next section of this chapter, as well as some interesting judgments by other courts on the issue of the crucifix in public spaces. In the educational environment there was a case that attracted considerable media attention and was resolved by a decision of the Derecho español: propuestas ante la reforma de la Ley orgánica de libertad religiosa.” Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 19:1-29; Ibáñez, Alejandro González-Varas. 2009. “Los actos religiosos en las escuelas públicas en el derecho español y comparado.” Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 19:1-28; Martínez, Fernando Rey. 2012. “¿Es constitucional la presencia del crucifijo en las escuelas públicas?” Revista Jurídica de Castilla y León 27:1-32; Antón, María Moreno. 2013. “La simbología religiosa estática en la jurisprudencia: no sólo cuestión de principios.” Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 32:1-62; Álvarez, Tomás Prieto. 2013. “La presencia del crucifijo en las escuelas públicas es compatible con la Constitución.” Revista Jurídica de Castilla y León 31:1-39; Naranjo, Rafael. 2013. “Margen de apreciación estatal, libertad religiosa y crucifijos (o las consecuencias de un deficiente diálogo entre jurisdicciones).” Revista de Derecho Político 86:81-128. 3 See Martínez-Torrón, Javier. 2014, paras. 234-239. 4 Real Decreto 684/2010, 20 May 2010, por el que se aprueba el Reglamento de Honores Militares.

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Superior Court of Castile and León in 2009.5 The case originated in a complaint about crucifixes hanging in the classrooms of a public school in Valladolid. A cultural association, following the unsuccessful request of the parents of some students to the school board, demanded that the crucifixes were removed from the classrooms and all common spaces of the school. The court of first instance decided in favour of the plaintiffs and ordered the immediate removal of all the crucifixes, on the ground that the display of religious symbols in an educational centre could generate in young students the “feeling” that the State was “closer” to the Christian religions than to other worldviews.6 On appeal, the Superior Court partially overruled the first instance decision, with a rationale that pivoted on two main elements. On the one hand, the Court rejected, as contrary to Article 16 of the Spanish Constitution and to the case law of the Constitutional Court, any maximalist or extreme interpretation of the constitutional principle of neutrality or secularity (laicidad) that required necessarily erasing all traces of religion from public life, even in a public school environment. On the other hand, the Court held that State neutrality obliged to take away from school those religious symbols whose presence could be “emotionally perturbing” for students and contrary to the parents’ rights to have their children educated in accordance with their convictions. Trying to find a balance between those two elements, the Court, in a form of Solomonic judgment, decreed that crucifixes should be removed only from the school common areas and from those classrooms attended by the students whose parents had explicitly complained about their presence; they could, however, remain in all the other rooms if the school board so determined. It is interesting to note that the Superior Court’s judgment was openly grounded on the ECtHR’s decision in Lautsi I, which held that the display of the Catholic crucifix in a public school violated Article 9 ECHR. Had Lautsi II already been rendered, overruling the chamber’s decision, we may conjecture that the Court might have decided differently.7 Indeed, it is possible to read the Spanish court’s decision as a way of mitigating the 5

STSJ Castilla y León 3250/2009 (Sala de lo Contencioso-Administrativo, Sección 3ª), 14 December 2009. 6 See Juzgado de lo Contencioso-Administrativo Nr. 2 of Valladolid, Judgment Nr. 288/2008, 14 November 2008, FJ 4. 7 The case of Lautsi v. Italy, 3 November 2009 (Chamber’s decision) and 18 March 2011 (Grand Chamber’s decision), originated in the application of the mother of two students of a public school in Italy, where the law provides that the crucifix must be displayed on the walls of the classrooms of all public schools.

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effects of the first Lautsi judgment without explicitly contradicting the doctrine of the Strasbourg Court. In a different context, the display of religious symbols intrinsically connected with Jesus Christ in a public school had already been declared constitutional by a judgment of the Superior Court of Justice of Murcia in 2008.8 On that occasion, no student or student’s parent was involved. The claim came from a teacher of a public school that demanded the removal of a Christmas crèche placed in the hall of the school, alleging its incompatibility with the State’s obligation of religious neutrality. The Court dismissed the appeal, noting that State neutrality should be interpreted as compatible with the free manifestation of religious ideas. In addition, the Court held that, in the particular case, the students’ participation in the school’s Christmas decoration was voluntary, no person of any religion was prevented from expressing his or her religious beliefs, and therefore it could find no imposition of religious beliefs or practices on anyone. Out of the school environment, the presence of the crucifix in a public space, and more precisely in the city hall of Saragossa, originated another interesting case, widely spread by the media. A group of left-wing councillors demanded that the mayor order the removal of an old crucifix from the plenary hall, where the city council meetings were usually held. The mayor, who was from the Socialist Party9, refused to remove the crucifix, making reference to its historical and artistic value, as well as to the significance of respect for tradition; in particular he referred to the fact that the crucifix had been linked to the life of Saragossa’s city council since the seventeenth century. The issue was put to the vote and the majority of the council decided in favour of keeping the crucifix. A court of first instance reviewed the case on judicial appeal and confirmed in 2010 the legitimacy of the council’s decision.10 Interestingly, the court analysed the issue from the perspective of judicial self-restraint. For the court, the right question was not how or if the council could justify the display of a historic crucifix in the plenary hall but, on the contrary, to 8

STSJ Murcia 2269/2009 (Sala de lo Contencioso-Administrativo, Sección 2ª), 30 September 2009. 9 To understand better the significance of the mayor’s attitude, it must be noted that in Spain the Socialist Party is characterized by a clearly secularist and separationist view of the relations between the State and religion. Many of its leaders openly express their atheism or agnosticism, as well as their position favourable to achieving a public sphere free from the visibility of religion. 10 Juzgado de lo Contencioso-Administrativo Nr. 3 of Saragossa, Judgment Nr. 156/10, 30 April 2010.

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elucidate if there was any reason why a court must prohibit the council from having that crucifix in its plenary hall. Indeed, one thing is to display a religious symbol ex novo, and with the intention to publicly support a certain religion; and another thing is to preserve those religious symbols that form part of the historical evolution of a given society and a given institution. After analysing the particular circumstances of the crucifix in the town hall, in the context of other social expressions of religiosity in Spanish society, the court did not find any reason for the prohibition. The court considered that the principle of secularity does not entail erasing the visibility of religion from public life, and noted that the display of the crucifix was not aimed at imposing a particular religion over other religions or beliefs; it simply reflected the history of a city council that was more than nine centuries old. In addition, the judgment underlined that this case was not comparable to the display of symbols in public schools, because neither the protection of minors nor the parents’ rights over the education of their children were at issue. An analogous position was adopted in 2011 by the judgments of two superior courts of justice, in two different regions.11 The first judgment referred to the claim of a pro-secular association (“Preeminencia del derecho”) aimed at removing a statue known as the “Christ of Monteagudo”, a symbol of the Sacred Heart, from an old Muslim castle that was the property of the State. The Superior Court of Justice of Madrid12 rejected the claim, holding that the State’s neutrality and impartiality does not require eliminating the visibility of religion from the public sphere. Indeed, those principles are compatible with the presence of religious symbols in public places when these are expressions of Spanish history and culture. Also in 2011, the same pro-secular association, very active in this type of issue over the last few years, demanded the removal of a huge cross (“Cruz de la Muela”) that had been located on a mountain since the eighteenth century and rebuilt several times by popular initiative. The Superior Court of Justice of Valencia13 also rejected the plaintiff’s claim 11

See Antón, María Moreno. 2013, 48 et seq. STSJ Madrid 405/2011 (Sala de lo Contencioso-Administrativo, Sección 7ª), 20 May 2011. For a comment on this judgment, see Rodríguez, Antonio Escudero. 2012. “Comentario a la STSJ de Madrid 405/2011 (Cristo de Monteagudo) y STC 34/2011 (Inmaculada Patrona del Colegio de Abogados de Sevilla).” Anuario de Derecho Eclesiástico del Estado 28:831 et seq. 13 STSJ Valencia 648/2011 (Sala de lo Contencioso-Administrativo, Sección 5ª), 6 September 2011. 12

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with very similar reasoning. Among other things, the Court declared that “in our country, as in many others of similar cultural and religious traditions …, there is a visible presence of religious symbols in public places …; their maintenance is just a manifestation of respect for those traditions, and not an imposition of particular religious beliefs, and therefore they cannot be understood as expressing intolerance for non-believers”.14

3. Meaning of the constitutional principle of State neutrality in Spanish law The issue of the display of the crucifix in public spaces is obviously connected with the understanding of one of the constitutional principles of Spanish law on religion: the secularity or neutrality of the State. Indeed, references to State neutrality are common in the plaintiffs’ pleas in the cases cited above. For this reason, and although I will not elaborate here on the meaning of that constitutional principle,15 it is useful to note some of its essential aspects. In the first place, it is important to underline that, in Spain, neutrality cannot be understood as synonymous with strict separation between State and religion. The meaning of neutrality is necessarily complemented by another constitutional principle: State cooperation with religion. Cooperation with religion is not a choice, it is a constitutional mandate to the public authorities, which are free to decide about the channels of cooperation they consider most appropriate, but cannot transform the Spanish State, either de iure or de facto, into a separationist State. Two other coordinates define the meaning of State neutrality. One is impartiality vis-à-vis religions or beliefs, which is moreover a consequence of another constitutional principle: equality. This applies not only to religious differences or disputes, as the European Court of Human Rights has done,16 but also to a variety of subjects. When dealing with the

14

Ibid., FJ 9. For a more detailed explanation of the ideas expressed in the next paragraphs, see Martínez-Torrón, Javier. 1999. Religión, derecho y sociedad, 177 et seq. Granada: Comares. 16 See, especially, Serif v. Greece, 14 December 1999; Hasan and Chaush v. Bulgaria, 26 October 2000; Agga v. Greece, 17 October 2002; Supreme Holy Council of the Muslim Community v. Bulgaria, 16 December 2004 (which refer to public authorities’ intervention in leadership disputes within Muslim communities); and Metropolitan Church of Bessarabia v. Moldova, 13 December 2001; Svyato-Mykhaylivska Parafiya v. Ukraine, 14 September 2007 (which refer 15

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plurality of religious and belief ideas and organizations, the State cannot take sides; the role of national authorities is to organize religious pluralism in a way that ensures that all individuals are free to practice their religion, that diverging groups respect each other, and that all groups are as autonomous as possible to take care of their own internal affairs without undue external interferences. However, formal impartiality is not sufficient. Deeply understood, State impartiality must be based on a second coordinate: the incompetence of the State to judge the truth or falsity of religious doctrines, and more generally to have any judgment on strictly religious issues. The State’s incompetence on religious matters must be conceived stricto sensu, i.e., implying that strictly religious issues are not part of its legitimate competences, and therefore any interference in such issues would be, ipso facto and ipso iure, an unjustified limitation on the religious freedom of individuals and groups. This leads to a final consideration with regard to neutrality: its instrumental nature. It would be inappropriate to view State neutrality, or secularity, as an end in itself, because it is merely an instrument for a better guarantee of freedom of religion or belief. In other words, the function and purpose of State neutrality is to facilitate that all individuals and groups enjoy a high level of freedom of religion or belief on equal grounds, irrespective of what their positions are, i.e., traditional or nontraditional, typical or atypical, popular or unpopular, theistic or atheistic. It is of the utmost importance to keep in mind such a notion of neutrality when evaluating State norms or acts that are presented as expressions of neutrality or secularity, especially when they enter into conflict with traditional manifestations of religiosity. If the effect of such norms or acts is to restrict the religious freedom of citizens, its legitimacy is likely questionable.

4. Case law of the Constitutional Court and the Supreme Court on other issues relating to the presence of religious symbols in public spaces The case law of the Spanish courts on the display of the crucifix in public places is consistent with the foregoing concept of neutrality and is consistent with, and inspired by, the case law of the Constitutional Court on a variety of issues relating to local religious traditions. In all cases, the to public authorities’ refusal to register Orthodox religious communities formed out of split from another Orthodox church).

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Constitutional Court’s position has been open to the maintenance of religious traditions in public places or institutions, and at the same time very firm in proclaiming that no person can be obliged to take an active part in those traditions.17 Thus, the Court has found nothing unconstitutional in the fact that a military garrison organized a solemn parade in honour of the local advocation of the Holy Virgin,18 or in the fact that a unit of the National Police participated in a religious procession during the celebration of the Catholic Holy Week. The Court held that such participation of the military and polices forces was compatible with the State secularity (laicidad) even though it was not aimed at guaranteeing the safety of the event but took place in its quality of a member of the relevant religious fraternity, with police officers wearing their gala uniforms.19 However, the Court made it clear that no officer can be obliged to be present in those religious ceremonies against his personal convictions, for public events reflecting a religious tradition must be reconciled with the individuals’ freedom of conscience. Based on this case law, the Supreme Court adopted the same position in a more recent judgment20 that decided the claim of a military association of pro-secular orientation, which challenged two provisions of the 2010 Regulations on Military Honours. One of those provisions foresees and permits the participation of the military in traditional religious celebrations, but makes it clear that personal participation is voluntary, in accordance with the right to religious freedom.21 The other one establishes that funeral services can include a ceremony that is Catholic or from another religion if such was the deceased’s or his relatives’ will; in this case, however, personal participation of the soldiers or officers is considered an act of service and is therefore mandatory.22 Both provisions were considered legitimate and constitutional by the Supreme Court. In the latter case, the mandatory participation of military 17

See Martínez-Torrón, Javier. 2001. “Freedom of Religion in the Case Law of the Spanish Constitutional Court.” Brigham Young University Law Review (2001):720 et seq.; Arribas, Santiago Cañamares. 2009. “Religious Symbols in Spain: A Legal Perspective.” Ecclesiastical Law Journal 11:189-191. 18 See STC 177/1996, 11 November 1996. 19 See STC 101/2004, 2 June 2004. 20 STS 4438/2012 (Sala de lo Contencioso-Administrativo, Sección 4ª), 12 June 2012. 21 See Real Decreto 684/2010, 20 May 2010, por el que se aprueba el Reglamento de Honores Militares, para 2d of Additional Provision 4th. 22 See ibid., 1st para. of Additional Provision 4th.

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personnel was justified by the fact that military funerals were an official act of the Armed Forces, even if it included a religious element by the explicit desire of the deceased or his family. The Constitutional Court has followed an analogous approach, reconciling the State's secularity and religious traditions, in two cases relating to the physical or moral use of religious symbols by public institutions. In one of them, which dates back to 1991, the Court held that it would have been legitimate for the University of Valencia, a State University, to keep an image of the Holy Virgin that had been traditionally present in its coat of arms, if the University governing bodies had so decided, as respect for tradition is an important and valid criterion when choosing the emblem of a public institution.23 More recently, the Court has sustained the constitutionality of the statutes of the Bar Association of Seville, which have kept, as “a secular tradition”, the Immaculate Conception of the Holy Virgin as its honorary patron.24 The Court noted that, as the bar association itself is confessional, preserving this tradition does not infringe either the neutrality of public institutions or the religious freedom of non-Christians. The Court added that symbols reflect the history of institutions and it is natural to find in Spanish culture plenty of symbols having religious connotations used to represent public institutions. Furthermore, the Court observed that in contemporary societies passive symbols have virtually no influence on people’s beliefs and, therefore, the religious freedom of individuals is safe, provided that no one is compelled to participate in rites or ceremonies in honour of those symbols. In the absence of such coercion, the Court concluded, the mere subjective perception of offense is not sufficient to appreciate that freedom of ideology or religion has been violated.

5. Concluding remarks Together with the meaning of the religious neutrality of the State, the main question present in the crucifix and similar cases is if the feeling of offence that some people claim to experience in the presence of a religious symbol is sufficient in itself to impel the courts to decide that their right to freedom of religion has been violated, and, in the case of religious 23

See STC 130/1991, 6 June 1991. In this case, the supreme governing body of the University had decided the opposite, i.e., to remove the image of the Virgin from the coat of arms. 24 See STC 34/2011, 28 March 2011.

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symbols in public schools, that parents’ rights over their children’s education have being infringed upon. Ultimately, the question can be formulated in this manner: whether religious minorities, or individuals, have the right to re-shape the public sphere when they feel offended by the display of symbols that express the beliefs (or just the traditions) of the religious majority, with which they profoundly disagree. An adequate response to this question implies taking into account several factors. In the first place, we must keep in mind that in the democratic process the courts are not per se the place to design the (allegedly) most appropriate public policies. This is the competence of legislatures and governments. The role of the courts is circumscribed to apply the law of the land, which essentially means, in the area of religious symbols, to adjudicate on fundamental rights, i.e., to decide if certain policies or practices concerning religious symbols impinge upon the freedom of religion and belief, or other fundamental rights of citizens. Certainly, in a country like Spain, the courts must take into account also the constitutional principle of State religious neutrality, but without forgetting that the aim of this principle, and its raison d’être, is to guarantee a higher protection of the religious freedom of all individuals and groups on equal conditions. Again, the fundamental rights analysed in the particular circumstances of a case, and not abstract principles, should be the point of reference for court decisions. Such a limited role implies self-restraint on the part of the courts. In a specific case, the judges may be convinced that a certain policy or practice concerning religious symbols is not the most appropriate one, but nonetheless their function consists strictly in determining if such policy or practice is acceptable within the legal framework for which they are responsible, especially the constitutional framework. The courts are not asked to say whether they agree or not with the choices taken by the legislator or the government. They are only asked to state if the legislator or the government have acted within the limits derived from constitutional rights or principles. In the second place, it is normally a mistake to take for granted that the presence of the crucifix, or any other traditional religious symbol, can objectively cause “emotional disturbance” on the people that do not share the belief of the majority. The reality is that each person has, towards religious symbols, diverse (and mutable) feelings and reactions. Indeed, the vast majority of people with atheistic or agnostic beliefs do not express any objection against religious symbols. Such a lack of explicit objection leads us to presume that their usual reaction is indifference, which

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sometimes may be accompanied by their respect for the beliefs of others and by their realization that they are often a minority in a place in which the majority belief is different (which is not a negative fact in itself, provided that public authorities ensure that minorities are not discriminated in practice). Only rarely do people articulate their atheism or agnosticism as intolerance of the presence of visible objects that symbolize the religious ideas that they hate, despise, or simply consider false. In the third place, we should apply to the issue of the crucifix the same criteria that are applicable to those cases in which people, in use of their freedom of expression, use language that is offensive to the religious sentiments of other people.25 The law does not immunize individuals against mere offence: the law protects freedoms and rights, but not feelings or emotions. Law must be based on facts and on objective criteria; and feelings are, by nature, subjective and variable. Therefore, in order to determine whether the display of a religious symbol violates the religious freedom of those opposing the symbol, the test should be aimed at identifying the possible existence of coercion or indoctrination, which is another form of coercion, and not on a subjective feeling of offence as alleged by dissenters.26 If a court could grant the opponents of a religious symbol, having majority support, the right to eliminate the visibility of such a symbol, then it would be empowering those people to impose their will, and their notion of public or educational habitat, on the majority. Does the foregoing entail, from the perspective of the Spanish Constitution, or for that matter the European Convention on Human Rights, that minorities or individuals are bound to respect the majority 25

For a more detailed study of this topic, see Martínez-Torrón, Javier. 2007. “Freedom of Expression versus Freedom of Religion in the European Court of human Rights.” In Censorial Sensitivities: Free Speech and Religion in a Fundamentalist World, edited by Andras Sajó, 233-269. The Netherlands: Eleven; Martínez-Torrón, Javier and Santiago Cañamares Arribas, editors. 2014. Tensiones entre libertad de expresión y libertad religiosa. Valencia: Tirant Lo Blanch. 26 As the concurring opinion of Judge Power in Lautsi II put it: “The test of a violation under Article 9 is not ‘offence’ but ‘coercion’. That article does not create a right not to be offended by the manifestation of the religious beliefs of others even where those beliefs are given ‘preponderant visibility’ by the State. The display of a religious symbol does not compel or coerce an individual to do or to refrain from doing anything. It does not require engagement in any activity though it may, conceivably, invite or stimulate discussion and an open exchange of views. It does not prevent an individual from following his or her own conscience nor does it make it unfeasible for such a person to manifest his or her own religious beliefs and ideas”.

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decisions concerning the display of religious symbols in public places? My answer is definitely affirmative, as far as there is no coercion or indoctrination attached to such a display. Such would be the case, for instance, when a specific act of reverence or worship is required;27 when the secular character of the State is endangered;28 or when those religious symbols are used to promote intolerance or discrimination of dissenters, be they atheists, agnostics, or believers in other religions. Religion, and its symbols, are part of the culture and should be treated as such – which is not the same as affirming that the crucifix is a cultural symbol, as the Italian Council of State did.29 In essence, two basic approaches are possible in this matter. One is based on an exclusive notion of State neutrality, which leads to prohibition of religious symbols in public spaces with the aim of eliminating the visibility of religion.30 The other is based on an inclusive notion of neutrality, and allows for a variety 27

Such was the situation in Buscarini et al. v. San Marino, 18 February 1999. For example, the presence of a crucifix in a public hospital or a school is not the same as that in a legislature or a courtroom. In the latter cases, it would imply having a distinctive religious symbol in the places where laws are made and justice is administered, which might create in the citizens the confusion that the State power was unduly influenced by a particular religion or church. Such confusion would be even more serious in the case of courtrooms, due to the significance of the impartiality (and appearance of impartiality) of judges. 29 See Consiglio di Stato - Sez. VI. Sentenza n. 556/2006, 13 February 2006. 30 An extreme conception of this kind is followed by France, whose law excludes even noticeable personal garments that reveal the students’ religion: Loi n.º 2004228, du 15 mars 2004, encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics. This law and its conception of State neutrality have been recently ratified by the Charte de la laïcité à l'École, produced by the French Ministry of Education (circulaire nº 2013-144 du 6-9-2013); text available in: http://www.education.gouv.fr/pid25535/bulletin_officiel.html?cid_bo=73659 (accessed October 26, 2013). For a critical comment on the 2004 French law, see Garay, Alain. 2012. “Secularism, Schools and Religious Affiliation: For a Demanding Account of Law no. 2004-228 of March 15, 2004.” In Islam and Political-Cultural Europe, edited by W. Cole Durham Jr., David M. Kirkham and Tor Lindholm, 117-145. Aldershot: Ashgate. In the broader context of relations between State and religion in France, see Chelini-Pont, Blandine, and Jeremy Gunn. 2005. Dieu en France et aux Etat-Unis. Quand les mythes font la loi. Paris: Berg. In Spain, see Arribas, Santiago Cañamares. 2005. Libertad religiosa, simbología y laicidad del Estado, 70 et seq. Pamplona: Aranzadi; Ibáñez, Alejandro González-Varas. 2005. Confessioni religiose, diritto e scuola pubblica in Italia. Insegnamento, culto e simbologia religiosa nelle scuole pubbliche, 229 et seq. Bologna: CLUEB. 28

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of symbols, institutional and personal, that can coexist and are part of the ordinary landscape of the public space.31 Although both approaches are legitimate from the perspective of the Spanish Constitution and in general from the perspective of international standards on religious freedom, I certainly prefer the one based on an inclusive concept of neutrality, among other things, because it is more realistic than creating an artificial school atmosphere characterized by the absence of religion. This is also applicable to the environment of public educational institutions. When some people, and countries, insist on erasing all visible institutional as well as personal religious symbols in public schools, they forget that allowing spontaneous expressions of religious pluralism is more consistent with a neutral attitude of the State, and probably also more educative for students, than imposing the fictitious absence of religion. Unless there is a specific risk for public order or social peace, or unless the presence of religious symbols actually puts pressure on people disagreeing with them, a strict prohibition of external signs of religion – institutional or personal, Christian or of other religions – is not necessary either to preserve State neutrality or to protect the freedom of choice of citizens (and, in the case of educational institutions, members of the school community) in matters of belief.

References Cañamares Arribas, Santiago. “Religious Symbols in Spain: A Legal Perspective.” Ecclesiastical Law Journal 11(2009):181-193. —. “Tratamiento de la simbología religiosa en el Derecho español: propuestas ante la reforma de la Ley orgánica de libertad religiosa.” Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 19(2009):1-29. —. Libertad religiosa, simbología y laicidad del Estado, Pamplona: Aranzadi, 2005. Chelini-Pont, Blandine, and Jeremy Gunn. Dieu en France et aux EtatUnis. Quand les mythes font la loi. Paris: Berg, 2005. Garay, Alain. Secularism, “Schools and Religious Affiliation: For a Demanding Account of Law no. 2004-228 of March 15, 2004.” In 31

This is the line that seems to be suggested by the recent EU Guidelines on the Promotion and Protection of Freedom of Religion or Belief, approved by the Council of the European Union on 24 June 2013 (see especially §§ 34, 37 & 46). Accessed November 22, 2016. http://consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/137585.pdf.

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Islam and Political-Cultural Europe, 117-145. Edited by W. Cole Durham, David M. Kirkham and Tore Lindholm. Aldershot: Ashgate, 2012. González-Varas Ibáñez, Alejandro. Confessioni religiose, diritto e scuola pubblica in Italia. Insegnamento, culto e simbologia religiosa nelle scuole pubbliche. Bologna: CLUEB, 2005. —. “Los actos religiosos en las escuelas públicas en el derecho español y comparado.” Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 19(2009):1-28. Martínez-Torrón, Javier, and Santiago Cañamares Arribas. Tensiones entre libertad de expresión y libertad religiosa (coords.), Valencia: Tirant Lo Blanch, 2014. Martínez-Torrón, Javier. “Freedom of Religion in the Case Law of the Spanish Constitutional Court.” Brigham Young University Law Review (2001):713-753. —. “Freedom of Expression versus Freedom of Religion in the European Court of human Rights.“ In Censorial Sensitivities: Free Speech and Religion in a Fundamentalist World, 233-269. Edited by A. Sajó. The Netherlands: Eleven, 2007. —. Religion and Law in Spain. The Netherlands: Wolters-Kluwer, 2014. Moreno Antón, María. “La simbología religiosa estática en la jurisprudencia: no sólo cuestión de principios.“ Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 32(2013):1-62. Moreno Botella, Gloria. “Crucifijo y escuela en España.” Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 2(2003):1-34. Naranjo, Rafael. “Margen de apreciación estatal, libertad religiosa y crucifijos (o las consecuencias de un deficiente diálogo entre jurisdicciones).” Revista de Derecho Político 86(2013):81-128. Prieto Álvarez, Tomás. “La presencia del crucifijo en las escuelas públicas es compatible con la Constitución.” Revista Jurídica de Castilla y León 31(2013):1-39. Rey Martínez, Fernando. “¿Es constitucional la presencia del crucifijo en las escuelas públicas?” Revista Jurídica de Castilla y León 27(2012):132.

CHAPTER FIFTEEN THE CROSS IN PUBLIC PLACES: THE LEGAL SITUATION IN SWITZERLAND RENE PAHUD DE MORTANGES

1. Introduction1 Switzerland is, like many other countries in Western Europe, a land full of churches. The Catholic churches are easily recognised as such because of the cross on the top of their roofs. An observant visitor to Bern, the capital of Switzerland, may also discover that the Capitol2 has its own cross on the dome of its building, and hikers may find crosses even on the top of the many mountains in this country. It has to be explained that in Switzerland there are cantons that are traditionally Catholic and others that are traditionally Protestant. In some traditionally Catholic cantons, you may find crosses in state buildings, such as in the hall of the cantonal parliament or the local court hall, in public schools, in hospitals, or in homes for the elderly. At the University of Fribourg, which was founded 125 years ago for the Catholic people in this country, crucifixes can still be found here and there. The presence of a cross or crucifix in a public place can nowadays be highly controversial. In general it can be observed that religious symbols gave reason to public discussions during recent years in Switzerland. What mostly led to discussions, however, were the religious symbols from religions that are “strange” in the eyes of the ancestral population. This 1

This article is a translated and revised edition of: de Mortanges, René Pahud, and Raimund Süess. 2012. “Religiöse Symbole in der Schule.” In Zwischen Kruzifix und Kreuz. Religion im Fokus der Öffentlichkeit, edited by Christian Danz and André Ritter, 75-94. Münster: Waxmann. 2 “Bundeshaus”, the Federal Palace of Switzerland, is the seat of the Federal Parliament and the Federal Council.

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fact can clearly be seen by the results of the popular vote regarding the current Constitution-anchored prohibition to construct minarets. Nowadays there is a heated discussion about the question as to whether Muslim pupils should be allowed to wear their headscarf in public schools; moreover, there are discussions related to a need for a Burka-prohibition in public. Even traditional Christian symbols in public places are increasingly questioned, especially from laic circles. Namely the representatives of the movement of freethinkers are concerned by crosses and other symbols of Christianity, even though this is the traditional religion and culture in Switzerland. The trigger for such discussions was two contrary social trends that happened at the same time: religious pluralisation on the one hand, and increasing secularisation on the other. The conflict over religious symbols is really a conflict about the visibility of religion and, behind this, there may also be the question about what the “leading culture” should be in Swiss society. Local conflicts are eagerly collected and exploited by the media, leading to special drama regarding this topic, and complicating any possible solution to the problem. Many conflicts can be resolved consensually, while others, however, become the task of a court to resolve. This article first portrays the most recent discussions concerning the cross and its sociological and historic setting (chapters 2 and 3). Secondly, I will concentrate on the relevant legal sources, as well as on essential decisions of the Swiss Supreme Court (chapters 4 and 5). Thirdly and lastly, I shall extract some consequences with regard to the crucifixdecision of the ECHR (chapter 6).

2. Discussions about the crucifix in autumn 2010 The autumn of 2010 saw a heavy debate regarding the admissibility of the crucifix in public spaces. This was triggered by two simultaneous and similarly laid cases. In both cases, the issue was a crucifix hanging in a classroom, which bothered some people closely related to the freethinkers.

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2.1. The Wallis canton case3 A teacher at a public school in the small village of Stalden in the Wallis canton received a dismissal with immediate effect from the beginning of October 2010. The reason for this action was anchored in the failed relation of mutual trust, according to an official statement. About a year and a half before this happened, the teacher decided to remove the crucifix from the wall of the classroom. At first there was no reaction to his action, and the school administration did not act before the teacher in question became the president of the freethinker society. In this function, he demanded that the school administration inform all schools in the canton of “their” duty to remove the crucifixes if so desired by the parents. He justified his demand by a decision of the Swiss Supreme Court in 1990 (see chapter 5); moreover, he criticised the too great influence of the Catholic Church in school subjects such as handicrafts, music (singing) and German. It has to be said at this point that the upper part of the Wallis canton is still very strongly influenced by the Catholic Church. His demand consisted of the consequent respect of the principle of a laic school system. His initiative, however, was too much for the commune of Stalden: he was dismissed with immediate effect.

2.2. The Luzern canton case In the summer of 2010 in the village of Triengen in the Lucerne canton, a father of two girls demanded that their school remove the crucifixes in their classrooms. The rector of the school, however, did not follow his request and explained this decision using the Christian and occidental traditions of Switzerland. The cantonal school administration, however, advised the commune of Triengen to follow the request of the father. The answer of the commune administration was the following: they took the crucifixes away and replaced them with simple crosses instead. This case was not taken to a judiciary because the family, who was originally from Germany, suddenly moved back to Germany in the middle of the process following the receipt of a death threat.

3

Switzerland is divided into 26 cantons, with the Wallis (in German) or Valais (in French) canton being one of them. A canton is a member state of the federal state of Switzerland. A canton is mainly sovereign with its own constitution, which, however, needs the acceptance of the federal state in order to enter into force. More information in chapter 3.

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2.3. Legal political initiatives As a direct answer to these events in the upper part of the Wallis canton and in the Lucerne canton, some moderate right politicians launched a petition under the banner “the crucifixes stay”. The reason behind this action was to save the crucifix in public places, and within a few months a petition was handed to the government of the Lucerne canton. Similar steps were taken also at a federal level, with an initiative being brought before the Swiss Parliament to add the following passage to the Swiss Constitution: “Symbols of the Christian-occidental culture are allowed in public places”.4 The competent commission of the parliament, however, decided not to pursue this project. These cases show that there has been much fuss about the topic, although in the end there was only a small factual change.

3. Some basic information regarding Switzerland 3.1. Social Facts When it comes to the preservation of crucifixes by politicians and the people, we have to ask one question: how “Christian” is the Swiss population of today? The federal census of 2010 records the following religious affiliations among the Swiss population: 38.6% Roman Catholic Church; 28% Swiss Protestant Church; 5.5% other Christian Churches; approx. 0.2% Jewish; 4.5% Islamic Communities and 1.1% non-Western beliefs (Hindu, Buddhist), while 20.1% of the population do not belong to any religious denomination and the religious or denominational affiliation of the remaining 2% of the population is not known. The numbers concerning religion and denominations remained relatively unchanged for a long time, and only in the decades since World War II has the religious landscape evolved. Due to the migration of workers from the traditionally Catholic countries of Italy and Spain, the number of Catholics in the population rose considerably until 1970. Since the mid-1970s, foreign workers have been increasingly recruited from the traditionally Christian Orthodox and Muslim areas of Southern Europe. During the Balkan wars in the 1990s, 4

German equivalent: “Symbole der christlich-abendländischen Kultur sind im öffentlichen Raum zugelassen.”

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Switzerland took in many refugees from the former Yugoslavia. The number of Muslims has multiplied by a factor of fifteen since 1970, and today constitutes the third largest religious community in Switzerland. Simultaneously to the religious multiplication, the percentage of people without a religious denomination rose from 1.5% in 1970 to 20.1% in 2010. Particularly in the urban centres of Switzerland, such as Zurich, Basel, and Geneva, the importance of churches within society has been on the wane. In the cantons of Basel-Stadt and Geneva, the Roman Catholic Church and the Protestant Church have to contend with a dramatic loss of members. In the more rural regions of Switzerland, the decrease is smaller, but even there the tie between members and their churches is becoming more of a formality, and services at churches are increasingly only sought for baptisms, funerals, and weddings. On the other hand, it is remarkable that most Swiss people remain members of their churches despite considerable church taxes. They consider that their church still does something useful, even though they do not need it for their own purposes.

3.2. Historical and constitutional backgrounds As the introduction explained, there are traditionally Catholic and traditionally Protestant cantons in Switzerland. The debate about crucifixes in public spaces is only, if at all, a debate of some Catholic cantons. These cantonal differences shall be explored below: At the beginning of the 16th century, the Swiss Confederation consisted of a conglomerate of autonomous States (Stände), which were connected by a network of alliances. Depending on their positions, these States were either full members of the Confederation, or simply associates. Other parts of today’s Switzerland were subject territories of one or several of these States. Since Catholicism was the only denomination in the area until the end of the Middle Ages, the Christians in the States naturally identified with the Roman Catholic Church. The splitting of belief of the Churches in the wake of the Reformation was an important test for the system of alliances of the Confederation. Some of the States turned to the Reformation, whereas others stayed with the old belief. In the fully autonomous States, the denominational exclusivity remained until the end of the old Confederation in 1798. Whoever did not want to be part of the official religion could move away, but had to leave their possessions. Only a few Protestant States mercifully granted an ius emigrandi. After the States had held church sovereignty during the Ancien Régime, the framers of the federal State of 1848 abstained from stipulating a federal competence in this field. According to the current Federal

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Constitution (hereafter: Constitution), which entered into force in 2000, the following applies: “The regulation of the relationship between church and state shall be the responsibility of the Cantons” (article 72 section 1). The federal State itself does not have a religious affiliation and does not favour any religion. On this level, state and religion are, in principle, separated. The preamble of the Constitution starts, however, with the invocation of God (“In the name of Almighty God!”). This is supposed to underline the existence of a higher power besides the people and the state. The invoked God must not only be understood in its Christian meaning; nor should this indicate the founding of a Christian State. The separation of state and religion is not explicitly mentioned in the Constitution, but is derived from the freedom of religion, which is protected directly on the level of the Constitution, together with other fundamental rights (see chapter 4). In Switzerland, apart from freedom of religion, the majority of the state-church law is cantonal law. Therefore, with 26 cantons, we have 26 different systems of state-church law. Politicians and the population adhere to the cantonal sovereignty in this matter; this policy finds its justification in the small-area spaces and the considerable linguistic and cultural differences between the cantons.

4. Further relevant principles of the Swiss constitution 4.1. Freedom of religion and conscience (Art. 15)5 The first paragraph of article 15 of the Swiss Constitution states the following: “The freedom of religion and conscience is guaranteed.” The second paragraph then explains that: “Every person has the right to choose freely their religion or their philosophical convictions, and to profess them alone or in community with others.” Paragraphs 3 and 4 treat the aspect of the positive and negative freedom of religion more closely.6 In general, it can be said that every use of a religious symbol, and therefore also the hanging of a cross or a 5

For an official translation of the Federal Constitution of the Swiss Confederation: . 6 Art. 15, paragraph 3: “Every person has the right to join or to belong to a religious community, and to follow religious teachings.” Art. 15, paragraph 4: “No person may be forced to join or belong to a religious community, to participate in a religious act, or to follow religious teachings.”

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crucifix, or the wearing of a headscarf, is included in this article 15 of the Swiss Constitution.7

4.2. Cantonal competency in school matters (Art. 62) According to article 62 of the Swiss Constitution, the competency of school matters is given to the cantons (para. 1). It is therefore the obligation of the cantons to provide primary education that is sufficient and accessible for everybody. Furthermore, they have to set the relevant guidelines and the necessary surveillance of primary education (para. 2). This therefore also implicates the guarantee of the cantons to religious neutrality of these schools. Every school has to provide schooling that is accessible for every child, no matter the religious affiliation.8 This religious neutrality will be examined closer in the following chapter.

4.3. Principle of religious neutrality The principle of religious neutrality prevents the state identifying with or preferring a certain religious community or a certain ideology.9 This principle has constitutional value and forms a part of the religious freedom, stated in art. 15 of the Swiss Constitution, even though this is not mentioned explicitly in the Constitution.10 The state principle of neutrality is however not an absolute one. The Swiss Supreme Court explained that neutrality should not be seen equal to irreligious laicism. Religious and metaphysical elements shall be given a place in state acting. This is simply 7

Cavelti, Urs Josef, and Andreas Kley. 2014. “Art. 15, n. 10.” In Die schweizerische Bundesverfassung: St. Galler Kommentar, 3rd ed., edited by Bernhard Ehrenzeller, Benjamin Schindler, Rainer J. Schweizer and Klaus A. Vallender, 354. Zürich – St. Gallen: Dike/Schulthess Juristische Medien AG. 8 Ehrenzeller, Bernhard, and Markus Schott. 2008. “Kommentar art. 62, n. 19”. In Die schweizerische Bundesverfassung: St. Galler Kommentar zu Art. 62 BV, edited by Phillippe Mastronardi, Klaus A. Vallender, Rainer J. Schweizer and Bernhard Ehrenzeller, 1143. Zürich – St. Gallen: Dike/Schulthess Juristische Medien AG.; Häfelin Ulrich, Walter Haller, and Helen Keller. 2012. Schweizerisches Bundesstaatsrecht. 8. vollständig überarbeitete und erweiterte Auflage, n. 423. Zurich: Schulthess Verlag. 9 Winzeler, Christoph. 2009. Einführung in das Religionsverfassungsrecht der Schweiz Einführung in das Religionsverfassungsrecht der Schweiz, 2nd ed. (= Freiburger Veröffentlichungen zum Religionsrecht, vol. 16), 59. Zurich: Schulthess Verlag. 10 Ibid., 60.

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a “conflict-solution principle” to avoid people being disrespected in their own religion or ideology. The ideological principle of neutrality is of special value when it comes to a school environment.11 This is a very sensitive part, because a public school is a meeting point for many different ideologies and religions. Therefore, it seems impossible to define the ideological principle of neutrality in a school environment. The different demands and interests of all participants have to be respected in a moment of decision.12 Therefore, the question of whether a crucifix or a headscarf in a public school violates the principle of neutrality cannot be answered abstractly; it has to be decided based on the concrete elements of this particular situation.13

4.4. Limitations of fundamental rights (Art. 36)14 Restrictions of human rights are in general possible according to art. 36 of the Swiss Constitution, if the following three conditions are respected: a legal basis expressly foreseen by statute, public interest, and proportionality with the goals pursued. Furthermore, the essence of the fundamental right is inviolable. Regarding the freedom of religion, the Swiss Supreme Court defined the essence in the so-called “forum internum”, in other words: the freedom to believe or not to believe, and to be allowed to change one's own opinion at every possible moment.15

11

Regarding the religious neutrality in schools for example. See de Mortanges, René Pahud. 2015. “Art. 15, n. 44-53”. In Basler Kommentar zur Bundesverfassung, edited by Bernhard Waldmann, Eva Maria Belser and Astrid Epiney, 339-40. Basel: Helbing Lichtenhahn. 12 See Tappenbeck, Christian R., and René Pahud de Mortanges. 2008. “Religionsfreiheit und religiöse Neutralität in der Schule.” In Religiöse Neutralität, edited by René Pahud de Mortanges, 118. Zurich – Basel – Genf: Schulthess. 13 See for a closer view chapter 5. 14 See René Pahud de Mortanges. 2015. „Art. 15 n. 78”. In Basler Kommentar zur Bundesverfassung, edited by Bernhard Waldmann, Eva Maria Belser and Astrid Epiney, 346-56. Basel: Helbing Lichtenhahn. 15 Cavelti, Urs Joseph, and Andreas Kley. 2014. “Art. 15, n. 32.” In Die schweizerische Bundesverfassung: St. Galler Kommentar, 3rd ed., edited by Bernhard Ehrenzeller, Benjamin Schindler, Rainer J. Schweizer and Klaus A. Vallender, 362. Zürich – St. Gallen: Dike/Schulthess Juristische Medien AG, with a closer glance at the practice of the Swiss Supreme Court.

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5. The case of the crucifix in 199016 5.1. The decision in its different elements Already in 1990 the Swiss Supreme Court had to decide a case very similar to those in 2010 (see Chapter 2.1). A teacher and three inhabitants of the village of Cadro in the canton of Tessin opposed themselves to a decision of the government of the village (Gemeinderat), to decorate the classrooms of the new primary school with crucifixes. The Swiss Supreme Court, as the final legal instance in Switzerland, concluded that the hanging of crucifixes in classrooms of a primary school violates the religious neutrality of the state guaranteed by the Constitution. The state as guarantor of the confessional neutrality of public schools shall not be allowed to show its identification with a particular confession in such a strong way. The freedom of religion of these people who may feel intimidated or offended by the presence of crucifixes has to be respected. Religious symbols that are visibly placed may influence the pupils in their own spiritual development and in their religious convictions.17 In the same decision, however, the Supreme Court put into perspective that this decision was based on these particular circumstances and only valuable for this concrete situation, namely the classrooms of a primary school. The Court then explained explicitly that crucifixes placed in an entrance hall, in a hallway or in the cafeteria may be compatible with the religious neutrality of a school.18

5.2. Evaluation of this decision by doctrine The crucifix-decision of the Swiss Supreme Court in 1990 was taken negatively by parts of the legal doctrine. It was criticised that the Supreme Court did not respect all the relevant facts. The Court did assume a theoretic interference of third persons by crucifixes, but did not at the same time take into account the concrete lifestyle of the pupils and their parents in the Tessin canton and in other traditionally Catholic regions in Switzerland.19 Furthermore, the contradictory argumentation in the 16

Decision of the Swiss Supreme Court: BGE 116 Ia 252. E. 6a and 7b. 18 E. 7a and 7c. 19 Gut, Walter. 1997. Kreuz und Kruzifixe in öffentlichen Räumen. Eine Auseinandersetzung mit Gerichtsentscheiden über Kreuze und Kruzifixe in kommunalen Schulzimmern, 44. Zurich: Buchverlag. 17

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decision of the Supreme Court was criticized: on the one hand, the Court states that confessional neutrality cannot be understood in an absolute manner, while on the other hand, the Supreme Court resumed its decision on the basis of the principle of laicism,20 which is not pertinent in Switzerland. However, there were also positive reactions within the doctrine.21

6. Meaning for Switzerland of the ECHR crucifix decision 6.1. Generalities In 2011 the Grand Chamber of the European Court of Human Rights (ECHR) supported a decision of the Italian government. The latter insisted that crucifixes should be allowed in the public schools of Italy. Without doubt, the European Court wanted to create a precedence, and the appearance of religious neutrality shall be in the margin of appreciation of the state whenever possible. Only in clear cases of religious indoctrination by the state has the European Court a duty to act. In the case of Italy, however, the Grand Chamber decided that there was no such duty because the public schools in Italy are very tolerant when it comes to (nonChristian) religious communities.22

20

Decision of the Swiss Supreme Court: BGE 116 Ia 252 E. 5e. Häfelin, Ulrich, Walter Haller, and Helen Keller. 2012. “n. 423.” In Schweizerisches Bundesstaatsrecht. 8., vollständig überarbeitete und erweiterte Auflage, 129. Zurich: Schulthess Verlag; Kraus, Dieter. Schweizerisches Staatskirchenrecht: Hauptlinien des Verhältnisses von Staat und Kirche auf eidgenössischer und kantonaler Ebene. Jus ecclesiasticum, 351. Tübingen: Mohr; Winzeler, Christoph. 2010. Die öffentliche Schule als Werkstatt der Integration, 154. Zürich: Schulthess; Plotke, Herbert. 2003. Schweizerisches Schulrecht, 202. Zurich: Haupt Verlag; Schwarzenberger, Scarlett. 2011. Die Glaubens- und Gewissensfreiheit im Kontext der öffentlichen Schule. Rechtliche Leitplanken zu religiöser und weltanschaulicher Identität, Toleranz und Neutralität, 55. Zurich: Schulthess Verlag. 22 (Grand Chamber) European Court of Human Rights Lautsi and others v. Italy (18 March 2011); press release of the chancellor in English: (accessed October 18, 2014). 21

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6.2. No direct impact for Switzerland The decision of the Great Chamber has no direct legal consequences on Switzerland as signatory state of the European Convention on Human Rights. The crucifix decision of the Swiss Supreme Court in 1990 is therefore not invalidated by this. From the point of view of the Swiss lawyer Giusep Nay, however, the Swiss Supreme Court should re-evaluate its decision of 1990 and follow the decision of the Grand Chamber.23 In one way or another, the crucifix decision of the Supreme Court was an answer to a concrete case and even in the view of this decision of the European Court, the Swiss Supreme Court may conclude a different answer in a Swiss case. In the same way as there was no general and Swiss-wide order to take away all crucifixes in every classroom, there is nowadays no free pass in favour of them. It remains a decision that has to include all factors, such as the religious environment and the sensitivity of the particular region. When there is no one who feels disturbed by the presence of a crucifix, there is certainly no need to take them down. However, where there are people who feel disturbed, a solution should be found that is acceptable to everyone.

6.3. Delicate appreciation in each particular case When it comes to a decision regarding a possible interference of a fundamental right, the judiciary finds itself in a delicate situation. It must decide whether the public interests have to be given higher importance than the fundamental right of the particular person. Without question, this balancing of interests is especially difficult when it comes to the education sector. In a school situation, a multiplicity of interests has to be respected, such as the interests of the state, those of the teachers, and those of the parents and their children, especially if there is a discussion on religious freedom. Therefore, a decision ought to be taken only in concrete situations.24 It seems almost impossible that religious neutrality can be 23

See Nay, Giusep. 2011. “Kruzifixe in staatlichen Schulen. Keine Verletzung der Europäischen Menschenrechtskonvention.” Schweizerische Kirchenzeitung 22:377. 24 Epiney, Astrid, Robert Mosters, and Dominique Gross. 2002. “Islamisches Kopftuch und religiöse Neutralität an der öffentlichen Schule” [regarding the headscarf-case] In Muslime und schweizerische Rechtsordnung, edited by René Pahud de Mortanges and Erwin Tanner, 129 and 139. Freiburg; Karlen, Peter. 1989. “Religiöse Symbole in öffentlichen Räumen. Zum Kruzifix-Entscheid des Bundesrates vom 29. Juni 1988.” Schweizerisches Zentralblatt für Staats- und

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preserved by applying an abstract principle of the state.25 The case-by-case decisions have, however, a lack of judiciary security.26

References Cavelti, Urs Josef, and Andreas Kley. “Art. 15, n. 10.” In Die schweizerische Bundesverfassung: St. Galler Kommentar, 3rd ed. Edited by Bernhard Ehrenzeller, Benjamin Schindler, Rainer J. Schweizer and Klaus A. Vallender. Zürich – St. Gallen: Dike/Schulthess Juristische Medien AG, 2014. Ehrenzeller, Bernhard, and Markus Schott. “Kommentar art. 62, n. 19.” In Die schweizerische Bundesverfassung: St. Galler Kommentar zu Art. 62 BV. Edited by Philippe Mastronardi, Klaus A. Vallender, Rainer J. Schweizer and Bernhard Ehrenzeller. Zürich – St. Gallen: Dike/Schulthess Juristische Medien AG, 2008. Epiney, Astrid, Robert Mosters, and Dominique Gross. “Islamisches Kopftuch und religiöse Neutralität an der öffentlichen Schule.” In Muslime und schweizerische Rechtsordnung. Edited by René Pahud de Mortanges and Erwin Tanner, 129-165. Freiburg, 2002. Häfelin, Ulrich, Walter Haller, and Helen Keller. Schweizerisches Bundesstaatsrecht. 8. vollständig überarbeitete und erweiterte Auflage. Zurich: Schulthess Verlag, 2012. Karlen, Peter. “Religiöse Symbole in öffentlichen Räumen. Zum KruzifixEntscheid des Bundesrates vom 29. Juni 1988.” Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht (ZBI), bd. 92. 2(1989):12.

Verwaltungsrecht (ZBI), bd. 92(2):12; Müller, Jörg Paul, and Markus Schefer. 2008. Grundrechte in der Schweiz. Im Rahmen der Bundesverfassung, der EMRK und der UNO-Pakte, 275. Bern: Stämpfli [regarding the headscarf-case]; Tappenbeck, Christian R., and René Pahud de Mortanges. 2008, 112; Wyttenbach, Judith, and Walter Kälin. 2005. “Schulischer Bildungsauftrag und Grund- und Menschenrechte von Angehörigen religiös-kultureller Minderheiten.” Aktuelle juristische Praxis 14(2005):315. 25 Tappenbeck, Christian R., and René Pahud de Mortanges. 2008, 120. 26 For a similar opinion, see Winzeler, Christoph. 2010. “Die öffentliche Schule als Werkstatt der Integration (am Beispiel der Rechtsprechung zur Religionsfreiheit).” In Religion und Integration aus der Sicht des Rechts, edited by René Pahud de Mortanges, 154. Zürich: Schulthess.

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Kraus, Dieter. Schweizerisches Staatskirchenrecht: Hauptlinien des Verhältnisses von Staat und Kirche auf eidgenössischer und kantonaler Ebene. Jus ecclesiasticum. Tübingen: Mohr, 1993. de Mortanges, René Pahud, and Raimund Süess. “Religiöse Symbole in der Schule.” In Zwischen Kruzifix und Kreuz. Religion im Fokus der Öffentlichkeit. Edited by Christian Danz and André Ritter, 75-94. Münster: Waxmann Verlag, 2012. Müller, Jörg Paul, and Markus Schefer. Grundrechte in der Schweiz. Im Rahmen der Bundesverfassung, der EMRK und der UNO-Pakte. Bern: Stämpfli, 2008. Plotke, Herbert. Schweizerisches Schulrecht. Zurich: Haupt Verlag, 2003. Schwarzenberger, Scarlett. Die Glaubens- und Gewissensfreiheit im Kontext der öffentlichen Schule. Rechtliche Leitplanken zu religiöser und weltanschaulicher Identität, Toleranz und Neutralität. Zurich: Schulthess Verlag, 2011. Tappenbeck, Christian R., and René Pahud de Mortanges. “Religionsfreiheit und religiöse Neutralität in der Schule”. In Religiöse Neutralität. Edited by René Pahud de Mortanges, 105-136. Zurich – Basel – Genf: Schulthess, 2008. Walter, Gut. Kreuz und Kruzifixe in öffentlichen Räumen. Eine Auseinandersetzung mit Gerichtsentscheiden über Kreuze und Kruzifixe in kommunalen Schulzimmern. Zurich: Buchverlag, 1997. Winzeler, Christoph. “Die öffentliche Schule als Werkstatt der Integration (am Beispiel der Rechtsprechung zur Religionsfreiheit).” In Religion und Integration aus der Sicht des Rechts. Grundlagen – Problemfelder – Perspectiven. Edited by René Pahud de Mortanges, 149-172. Zürich: Schulthess, 2010. —. Einführung in das Religionsverfassungsrecht der Schweiz Einführung in das Religionsverfassungsrecht der Schweiz, 2nd ed. (=Freiburger Veröffentlichungen zum Religionsrecht, vol. 16). Zurich: Schulthess Verlag, 2009. Wyttenbach, Judith, and Walter Kälin. “Schulischer Bildungsauftrag und Grund- und Menschenrechte von Angehörigen religiös-kultureller Minderheiten.” Aktuelle juristische Praxis 14(2005):315-323.

CONTRIBUTORS

Brian Conway is a lecturer in Sociology at Maynooth University, Ireland. He received his PhD in sociology from the University of Notre Dame. Previously, he was a lecturer in the School of Applied Social Studies at Robert Gordon University, Scotland. During the course of his research, he has held visiting research positions at the universities of Cambridge, Essex, and Oxford. Most recently, he was a visiting scholar in the Institute of Sociology at John Paul II Catholic University of Lublin, Poland. His main research interest is the sociology of religion, especially Catholicism. He is editor of the Irish Journal of Sociology. He is the author of Commemoration and Bloody Sunday: Pathways of Memory (Palgrave Macmillan, 2010) and (as co-author) Sociology of Ireland (Gill & Macmillan, 2012). Dariusz Dudek is a Professor of Law at Faculty of Law, Canon Law and Administration at John Paul II Catholic University of Lublin and head of the Department of Constitutional Law. He is the author of: Trybunaá Konstytucyjny w Polsce - táo historyczne i porównawcze, analiza instytucji, uwarunkowania i przeobraĪenia systemowe (Lublin 1988); Konstytucyjna wolnoĞü czáowieka a tymczasowe aresztowanie (Lublin 2000); Autorytet Prezydenta a Konstytucja Rzeczypospolitej Polskiej (Lublin 2013). He has edited Zasady ustroju III Rzeczypospolitej Polskiej (Warszawa, 2009). Giorgio Feliciani is a Professor of Law, currently a lecturer in the Faculty of Canon Law Saint Pius X of Venice. He previously taught at the University of Sassari, Parma and Pavia – where he was also Dean of the Faculty of Law – and at the Università Cattolica del Sacro Cuore of Milan from 1987 until 2013. He was often a visiting professor at the universities of Strasbourg and Paris XI. At the Università Cattolica del Sacro Cuore he is a member of the Governing Council of the CESEN (Centro Studi sugli Enti Ecclesiastici), which he founded and led for more than twenty years. He is a member of the scientific board of many journals: “Apollinaris” (Città del Vaticano), “Ephemerides iuris canonici” (Venezia), “Daimon” (Bologna), “Folia Theologica et Canonica” (Budapest), “Studia z Prawa Wyznaniowego” (Lublin). He participated in the works of Haut Conseil de l’Agence Internationale Diplomatie et

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Opinion Publique (AIDOP, Paris). He was also an honorary member of the Governing Council of the international association of canon law scholars Consociatio Internationalis Studio Iuris Canonici Promovendo of which he was President from 1995 to 2001. He is an expert of the Pontifical Council for the Interpretation of Legislative Texts, the Pontifical Council for Laity and Congregation of the Clergy. He was an expert of the Holy See for preparation of the new legislation concerning the ecclesiastical goods (Law 222/1985). He was also a member on behalf of the Holy See and Italian Bishops Conference of the various commissions for implementing the provisions of agreements between Italian State and Holy See (1984). He has written: Le conferenze episcopali (Il Mulino, 1974), Il Popolo di Dio (Il Mulino, 2005), Le basi del diritto canonico (Il Mulino, 2011), Le pietre, il ponte, l’arco. Scritti scelti (Vita e Pensiero, 2012). Stephan Bernhard Haering (OSB) is a Professor of Canon Law at the Ludwig Maximilian University of Munich. He is a judge at the Archbishop's Consistory and Metropolitan Court Munich and advisor of Commission for Ecumenism of the German Bishops Conference. He has published numerous articles in journals and books. His major publications are: Die Bayerische Benediktinerkongregation 1684–1803. Eine rechtsgeschichtliche Untersuchung der Verfassung eines benediktinischen Klösterverbandes unter Berücksichtigung rechtlicher Vorformen und rechtssprachlicher Grundbegriffe (St. Ottilien: EOS, 1989); Rezeption weltlichen Rechts im kanonischen Recht. Studien zur kanonischen Rezeption, Anerkennung und Berücksichtigung des weltlichen Rechts im kirchlichen Rechtsbereich aufgrund des Codex Iuris Canonici von 1983 (St. Ottilien: EOS, 1998); Handbuch des katholischen Kirchenrechts. 3rd ed. (Regensburg: Pustet, 2015). Mark Hill QC is a barrister specializing in ecclesiastical law and religious liberty. He is an Honorary Professor of Law at Cardiff University, Extraordinary Professor at the University of Pretoria, Visiting Professor at the Dickson Poon School of Law at King’s College, London, and Adjunct Professor at Notre Dame University Law School, Sydney, Australia. He is a former President of the European Consortium for Church and State Research. His publications include Magna Carta, Religion and the Rule of Law (2015), Religion and Law in the United Kingdom (2014), Religion and Discrimination Law in the European Union (2012), Ecclesiastical Law (2007), Religious Liberty and Human Rights (2002), and English Canon Law (1998). He is Consultant Editor of the Ecclesiastical Law Journal and a member of the Editorial Board of the Oxford Journal of Law

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and Religion. He is a part-time Judge in the civil courts in England sitting in criminal, civil, and family cases and Chancellor of the Anglican Dioceses of Chichester, Leeds, and Europe. In 2016 he was elected Vice President of the International Consortium for Law and Religion Studies. Jonas Juškeviþius is a Professor of Law at the Faculty of Law of Mykolas Romeris University in Vilnius and at the Faculty of Law of Riga StradiƼš University, as well as a member of the Lithuanian National Bioethics Committee. Research interests: health law, human rights, State-Church relations. Javier Martínez-Torrón is a Professor of Law and Director of the Department of Law and Religion of Complutense University. He is also Vice-President of the Section of Canon Law and Church-State Relations of the Spanish Royal Academy of Jurisprudence and Legislation, as well as being an honorary foreign member of the National Academy of Law and Social Sciences of Cordoba (Argentina), and of the Latin-American Consortium of Religious Freedom. Doctor of Law and of Canon Law, he has been a member, as an independent expert, of the OSCE/ODIHR Advisory Council for Freedom of Religion or Belief (2005-2013), and of the Spanish Advisory Commission for Religious Freedom within the Ministry of Justice (2002-2014). He has been a visiting professor or researcher in numerous Universities of Spain, Europe, North America, and Latin America (among them Cambridge, Chicago, Columbia, Berkeley, Harvard, Stanford, Saint-Louis, Ottawa, Freiburg im Breisgau, Turin, Messina, UNAM /Mexico/, and Universidad Católica de Chile). He is coeditor of the first Spanish electronic legal periodical specifically focused on law and religion studies (Revista General de Derecho Canónico y Derecho Eclesiástico del Estado, 2003). He is also a member of the Editorial Board of the Ecclesiastical Law Journal, published by Cambridge University Press (2006), and of the Oxford Journal of Law and Religion, published by Oxford University Press (2012). Among his recent books are Religion and Law in Spain (Wolters-Kluwer: The Netherlands, 2014); coeditor, with W. Cole Durham, Jr., Religion and the Secular State – La religion et l’Etat laïque (Servicio de Publicaciones de la Facultad de Derecho de la Universidad Complutense, Madrid 2015); co-editor, with Santiago Cañamares, Tensiones entre libertad de expresión y libertad religiosa (Tirant Lo Blanch, Valencia 2014); co-author, with Rafael Navarro-Valls, Conflictos entre conciencia y ley. Las objeciones de conciencia (Iustel, Madrid 2011 and Iustel and Porrúa, Mexico 2012).

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Kazimieras Meilius is Professor of Law at the Faculty of Law of Mykolas Romeris University in Vilnius; vice-official of Vilnius Archdiocesan Tribunal; co-founder and member of the Committee of the Lithuanian Association of Transcultural Psychiatry. His specialist research interests include: canon law, State-Church relations, and legal ethics. René Pahud de Mortanges has been Professor at the Faculty of Law at the University of Fribourg, Switzerland, where he teaches legal history, state-religion relations, religious laws, and constitutional law, since 1992. He also serves as Director of the Institute of Law and Religion, Fribourg. He was (2007-2011) a member of the steering committee of the National Research Program, and serves as a counselor of state authorities and churches. In his around 100 publications he deals with a large variety of historical topics, state-religion questions in Switzerland and in Europe, and with internal catholic and protestant law. He is editor of the collections Freiburger Veröffentlichungen zum Religionsrecht and Europäische Rechtsund Regionalgeschichte. His latest publications include Religiöse Neutralität. Ein Rechtsprinzip in der multireligösen Gesellschaft (2008), Religionsrecht: Eine Einführung in das Jüdische, Christliche und Islamische Recht (with Petra Bleisch, David Bollag, and Christian Tappenbeck, 2010); Eglise Catholique et Etat en Suisse (with Libero Gerosa, 2010); Religion und Integration aus der Sicht des Rechts (2010), Die Kirchensteuern juristischer Personen in der Schweiz (with Raimund Süess and Christian R. Tappenbeck, 2012) and Mitgestaltungsmöglichkeiten für Laien in der katholischen Kirche. Rechtslage und pastorale Perspektiven (2013). Philippe Nelidoff has been Professor of History of Law at the University Toulouse 1 Capitole since 2001. He has been Director of Master 2 (research) History of Law at the University Toulouse 1 Capitole since 2009. He has been an elected member of the National Council of Universities since 2011, and is a member of the European Public Law Group (Athens-Greece). His major area of research are the history of religious institutions, history of law on religion, and history of the relations between the state and religions. His recent works apply the study of Archbishops of Albi in his forthcoming book Les archevêques d’Albi depuis la création de l'archevêché (1678) jusqu’à nos jours. He has published numerous articles focused on Law on Religion. Konstantinos Papastathis is currently a Research Fellow at the University of Luxembourg (IPSE Research Unit). He has worked as a fellow at the Hebrew University of Jerusalem (2011-2013; School of Social Sciences), as well as adjunct lecturer at the Aristotle University of

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Thessaloniki (2008-2013; Department of Political Science). His main research interests involve politics and religion, and discourse analysis, as well as Middle Eastern politics. He has published his work in peerreviewed journals (e.g. Middle Eastern Studies; Politics Religion & Ideology; Religion, State and Society). Michaá Rynkowski Dr. iur. habil. (University of Wrocáaw). Former assistant professor at the Department of International and European Law of the University of Wrocáaw, specialised in ecclesiastical law and in statechurch relations in Poland and in various Member States of the EU. He completed postgraduate studies of European Integration at Europa – Institut in Saarbrücken (2000). Between 2004 and 2014 he participated in the works of the European Consortium for the Study of State and Church Relations. Since 2005, he has been an Academic Associate Member of the Cardiff Center of Law and Religion. He is the author of numerous works on Law on Religion. He has written two books on Law and Religion: Sądy wyznaniowe we wspóáczesnym europejskim porządku prawnym (Wrocáaw: Prawnicza i Ekonomiczna Biblioteka Cyfrowa, 2013) and Status prawny koĞcioáów i związków wyznaniowych w Unii Europejskiej (Wrocáaw: Prawo i Praktyka Gospodarcza, 2004). Since 2006 official of the European Commission. Disclaimer: The views and opinions presented in the paper are solely those of the author and do not represent those of the European Commission. Paweá Sobczyk is a Professor of Law at Faculty of Law and Administration in Opole University. Much of his research is focused on Constitutional Law, Law on Religion, and the State – Church relations. He is a President of the PTPW (Polish Society of Law on Religion). Recent publications include: Konstytucyjna zasada konsensualnego okreĞlania stosunków miĊdzy Rzecząpospolitą Polską a KoĞcioáem katolickim (Warszawa: Wydawnictwo ASPRA-JR, 2013); KoĞcióá a wspólnoty polityczne (Warszawa: Wydawnictwo Santiago, 2005). He was co-editor of many books: Finansowanie koĞcioáów i innych związków wyznaniowych (Warszawa 2013); Polskie prawo wyznaniowe. Wybór Ĩródeá (Lublin 2012); Akty normatywne i administracyjne (Warszawa 2009), as well as many articles in a range of academic journals dedicated to Law on Religion. Piotr Stanisz is a Polish Roman Catholic priest, Professor of Law, Head of the Department of Law on Religion (since 2008) and Dean of the Faculty of Law, Canon Law and Administration (2012-2016) at John Paul

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II Catholic University of Lublin. He is a member of a number of scientific associations (inter alia the International Consortium for Law and Religion Studies and Consociatio Internationalis Studio Iuris Canonici Promovendo) and vice-President of the PTPW (Polish Society of Law on Religion) and is the author of numerous publications on law on religion, with a special focus on Polish, Italian, and EU law. His specific research interests include such topics as agreements between states and churches and other religious organizations, financing of ecclesiastical entities, religious symbols in the public sphere, autonomy of religious organizations, conscientious objection, and status of the clergy. Laurentiu D. Tănase is a lecturer of Sociology of Religions at the Faculty of Orthodox Theology, University of Bucharest, in Romania. He received his Ph.D. from the University of Strasbourg, France. He was State Secretary for Religious Affairs for the Government of Romania (20012004). Currently he is a member of the Parliamentary Commission for the Research of the Communist Period in Romania – CNSAS. He is a member of the International Society for the Sociology of Religion and of the French Association of Religious Sociology. He is the founder, and leads as a director, of the Center for Studies “Society, Law and Religion” in Bucharest, Romania. He has authored many articles focused on the evolution of the field of religious studies, secularization, pluralism, globalization, new religious movements, and Islam. He is the author of Pluralisation religieuse et société en Roumanie (Bern: Peter Lang, 2008). Rik Torfs is a Professor of Law, and currently Rector of the Catholic University of Leuven (Belgium). He is a former Senator for the Christian Democratic party in the Belgian Federal Parliament. He is a visiting professor at the University of Stellenbosch, University of Paris, University of Nijmegen, and University of Strasbourg. He has been a member of the Commission for Intercultural Dialogue since 2005. He is the author of more than 300 scientific publications.