Monday, March 28, 2011

Church and State: Religious Imagery in Public Spaces

The European Court of Human Rights this week upheld a decision supporting Italy's policy of displaying crucifixes in the classrooms of Italian public school. The policy had been challenged by Mrs. Soile Tuulikki Lautsi, an atheist and mother of two, who argued that the presence of the crucifixes in public school classrooms violated her and her childrens' rights to religious freedom.

While recognizing atheism as a protected system of belief and acknowledging the crosses displayed in Italian classrooms as religious symbols, the Court maintained that the "passive display" of such symbols do not violate the prerogative of religious neutrality. The Court suggested instead that the crucifixes represent an "acceptable reflection" of the values of Italy's majoritarian Catholic culture, and also noted that students of other faiths are permitted to wear symbols of their faiths in classrooms as well.

In response to the decision, scholar John Witte, Jr., author of Religion and the American Constitutional Experiment, offered a six-point reflection on the parallels between the Italian case and the on-going issue of religious symbolism in public classrooms in the US. Please do forgive the exceptionally long block quote, but given Witte's expertise in teasing out the fine distinctions used by the Supreme Court over the years to define the Establishment and Free Exercise clauses of the First Amendment, it seems prudent to defer to Witte's expertise on the subject:
First, tradition counts in these cases. In American courts, older religious displays tend to fare better than newer displays. The longstanding customary presence of a religious symbol in public life eventually renders it not only acceptable but indispensable to defining who we are as a people. In Lautsi, Judge Bonello put this argument strongly in his concurrence: "A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people."

Second, religious symbols often have redeeming cultural value. American courts have long recognized that a Decalogue is not only a religious commandment but also a common moral code, that a cross is not only a Christian symbol, but also a poignant memorial to military sacrifice. When passively and properly displayed, the meaning of a symbol can be left in the eye of the beholder -- a sort of free market hermeneutic. The Lautsi court echoed this logic. While recognizing the crucifix as religious in origin, the Court accepted Italy's argument that "the crucifix also symbolized the principles and values" of liberty, equality and fraternity that "formed the foundation of democracy" and human rights in Italy and well beyond.

Third, local values deserve some deference. In America, the doctrine of federalism requires federal courts to defer to the practices and policies of individual states, unless there are clear violations of federal constitutional rights to free exercise and no establishment of religion. The Supreme Court has used this doctrine to uphold the passive display of crosses and Decalogues on state capitol grounds. The Lautsi Court uses the European "margin of appreciation" doctrine in much the same way. Lacking European consensus on public displays of religion and finding no coerced religious practice or indoctrination in this case, the Court left Italy to decide for itself how to balance the religious symbolism of its Catholic majority and the religious freedom and education rights of its atheistic minorities.

Fourth, religious freedom does not require the secularization of society. The United States Supreme Court became famous for its image of a "high and impregnable wall of separation between church and state," that left religion hermetically sealed from political life and public institutions. But the reality today is that the Court has abandoned much of its strict separatism and now allows religious and non-religious parties alike to engage in peaceable public activities, even in public schools. The European Court of Human Rights likewise became famous for promoting French-style laïcité in public schools and public life, striking down Muslim headscarves and other religious symbols as contrary to the democratic "message of tolerance, respect for others, and equality and non-discrimination." Lautsi suggests a new policy that respects the rights of private religious and secular groups alike to express their views, but allows government to reflect democratically the traditional religious views of its majority.

Fifth, religious freedom does not give a minority a heckler's veto over majoritarian policies. Until recently, American courts allowed taxpayers to challenge any law touching religion even if it caused them no real personal injury. This effectively gave secularists a "veto" over sundry laws and policies on religion -- however old, common or popular those laws might be. The Supreme Court has now tightened its standing rules considerably, forcing parties to make their cases for legal reform in the legislatures and to seek individual exemptions from policies that violate their beliefs. Lautsi holds similarly. It recognizes that while the crucifix may cause offense to Ms. Lautsi, it represents the cherished cultural values of millions of others, who in turn are offended by her views. But personal offense cannot be a ground for censorship. Freedom of religion and expression requires that all views be heard in public life.

Finally, religious symbolism cases are serious business. It's easy to be cynical about these cases -- treating them as much ado about nothing, or as expensive hobbyhorses for cultural killjoys or public interest litigants to ride. But that view underestimates the extraordinary luxury we now enjoy in the West to be able to fight our cultural contests over religious symbols in our courts and academies, rather than on our streets and battlefields. In centuries past in the West -- and in many regions of the world still today -- disputes over religious symbols often lead to violence, sometimes to all-out warfare. Far more is at stake in these cases than the fate of a couple of pieces of wood nailed together. These cases are essential forums to work through our deep cultural differences and to sort out peaceably which traditions and practices should continue and which should change.
Perhaps the most relevant part of Witte's analysis, at least for religious progressives, is to be found in his fourth point, in which Witte admonishes the reader that "religious freedom does not require the secularization of society." In the US, where overt religiosity and political conservatism are often considered to go hand in hand, the opposite is often held true as well, in that challenges to public religious expression are often viewed as emerging primarily from the political left. Based on my own experiences and observations, there does indeed seem to be an almost pharisaical eagerness among many liberals and progressives to carry First Amendment protections to the extreme of demanding an absence of religion not only in terms of laws and policies, but in the ways in which we talk about these things as well.

Granted, demands to exclude religion from public discourse are of a categorically different sort than concerns about religious symbols in public schools, with the latter concern deserving a discussion much more nuanced than I can provide here (although Witte's above-mentioned book offers a terrifically comprehensive introduction to the subject). But on the whole, I would argue that pervasive liberal hypersensitivity to religious concepts and language is in part to blame for the virtual conservative monopoly on public discourse about religion in this country. This is an unfortunate and likely self-reinforcing reality, in that I suspect the exclusionary and often bigoted conservative perspectives that define public discourse about religion directly contribute to the hesitancy many leftists feel toward religion.

Members of the religious left must find ways to make common cause with non-religious groups and individuals also laboring for social justice, and both groups must recognize that their collective voices can only be amplified when a diversity of moral, ethical, and theological means are used to justify similar political ends. The religious left ignores the very real concerns of our non-religious comrades at our own peril. In addition to jeopardizing our commitment to cultivating a healthy domestic pluralism, ignoring the rights of non-religious individuals can only weaken the internal cohesion of the left as a whole. That being said, it is also less than helpful to have non-religious leftists respond to religious and theological arguments about social and political concerns with shouts of "Church and State, Church and State."

As we have discussed previously (and as social philosopher John Rawls so expertly explained), groups with dramatically divergent means of understanding and justification can still develop a layered 'overlapping consensus' when they rally around common issues. It should be the prerogative of all members of the religious left to seek out such consensus not only with members of other faiths, but with individuals who ascribe to no faith as well.

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