Secular Crosses and the Neutrality of Secularism: Reflections on the Demands of Neutrality and Its Consequences for Religious Symbols - the European Court of Human Rights in Lautsi and the U.S. Supreme Court in Salazar

By Roper, Marie Elizabeth | Vanderbilt Journal of Transnational Law, May 2012 | Go to article overview

Secular Crosses and the Neutrality of Secularism: Reflections on the Demands of Neutrality and Its Consequences for Religious Symbols - the European Court of Human Rights in Lautsi and the U.S. Supreme Court in Salazar


Roper, Marie Elizabeth, Vanderbilt Journal of Transnational Law


ABSTRACT

This Note discusses analogous themes in two religious public display cases, Lautsi v. Italy, recently decided by the Grand Chamber of the European Court of Human Rights (ECHR), and Salazar v. Buono, recently handed down by the U.S. Supreme Court. Broader critiques of ECHR religious jurisprudence are addressed in the context of the interpretation and application of the principle of neutrality and the argument that secularism is not a necessary postulate of this demand. It is this theme of the relationship between neutrality and secularism that is also prominent in the American discussion about the relationship between government and religion. Finally, this Note returns to Lautsi's themes as they are present in the American context to contend that applications of secularism and neutrality to the public square work against a preferable notion of constitutional pluralism that favors neither religious nor nonreligious public displays. The debate surrounding the Lautsi decision, particularly in its earlier iteration before the Grand Chamber's most recent decision, provides a valuable lens for scrutinizing U.S. neutrality. True pluralism maintains an equivocal demeanor with respect to both religious and nonreligious public displays. This Note offers the Lautsi case's context as a useful space in which to gain an outsider perspective with respect to how pluralism functions in U.S. religious display cases.

TABLE OF CONTENTS

  I. BACKGROUND: LAUTSI V. ITALY AND ANALOGOUS
     THEMES FROM SALAZAR V. BUONO
 II. LAUTSI V. ITALY
     A. Brief Background: The Principle of Laicite
        (Secularism) in Italy
     B. ECHR Chamber Ruling in Lautsi,
        November 3, 2009
     C. ECHR Grand Chamber Hearing in Lautsi,
        June 30, 2010
     D. Further Elaboration of Weiler's Arguments
        Based on the Published Text of His
        Oral Submission
     E. A Narrow Critique of Lautsi: The Margin
        of Appreciation Doctrine
     F. ECHR Grand Chamber Ruling in Lautsi,
         March 18, 2011
III. BROADER CRITIQUES OF ECHR RELIGIOUS
     JURISPRUDENCE (ARTICLE 9): PRINCIPLES
     APPLICABLE IN THE INTERPRETATION OF THE
     FIRST AMENDMENT BY THE U.S. SUPREME COURT
 IV. AMERICAN ANALOGUES: RELIGIOUS DISPLAY IN
     SALAZAR AND ITS PREDECESSORS
     A. Comparison of the Texts: Article 9 of the
        European Convention and the First Amendment
        of the U.S. Constitution
     B. Supreme Court Precedents Assessing
        the Constitutionality of Public Religious
        Displays
     C. The Salazar Decision
  V. FURTHER DISCUSSION OF PLURALISM, NEUTRALITY,
     AND SECULARISM IN THE AMERICAN CONTEXT
 VI. CONCLUSION

Religious display cases before the U.S. Supreme Court and the European Court of Human Rights (ECHR) invoke theoretical ideals, applied to particular complaints about the transgression of the state's neutrality with respect to religion. Secularism, pluralism, and neutrality are most profitably understood in context. This Note seeks to explore some particular contexts in order to comment on the desirability of accepting pluralism, an inclusive ideal, as an interpretive key, rather than secularism, often discussed as if it were a neutral ideal. (2)

I. BACKGROUND: LAUTSI V. ITALYAND ANALOGOUS THEMES FROM SALAZAR V. BUONO

On Wednesday, June 30, 2010, the Grand Chamber of the ECHR in Strasbourg (3) heard Italy's appeal of the November 3, 2009 Chamber ruling in favor of the applicant in Lautsi v. Italy. (4) In that opinion, the ECHR held the rights of Soile Lautsi, an Italian citizen, and the rights of her children had been violated by the presence of a crucifix in the children's classrooms at the state school they attended. (5) Ms. Lautsi believed that the crucifixes were a religious display that violated the principle of secularism that safeguarded her own desires for her children's education. (6) Ms. Lautsi had pursued the domestic resolution of her complaint before the Veneto Regional Administrative Court on July 23, 2002, claiming that the crucifix display violated the constitutional principles of secularism and impartiality.

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Secular Crosses and the Neutrality of Secularism: Reflections on the Demands of Neutrality and Its Consequences for Religious Symbols - the European Court of Human Rights in Lautsi and the U.S. Supreme Court in Salazar
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