Academic journal article The George Washington International Law Review

The Changing Civil Religion of Secular Europe

Academic journal article The George Washington International Law Review

The Changing Civil Religion of Secular Europe

Article excerpt

In the last two decades, Europeans have grown increasingly exposed to the global market while they have experienced a rising degree of internal integration due to the creation of the European Union and the impact of the European Court of Human Rights' jurisdiction. This transformation has caused many, both within and outside of Europe, to question the identity of Europe and the very existence of a core of principles, values, and convictions likely to be considered as the European civil religion.1

Following World War II, Europe developed as a single market as well as a common political and legal space devoted to liberal democracy and human rights.2 Can this be considered the European civil religion? If so, what is the role of religion, particularly Christianity, in this civil religion?

The debate on European civil religion is dominated by two fundamental questions. First, if Christianity is to be considered a substantial part of the European civil religion, how was it possible for Christians to fight and kill each other in the name of God for centuries? Unless a simply moral explanation is accepted-that Christians slaughtered each other because they were bad Christians-a deep contradiction must be addressed: how could Christianity represent the principle of religious and civil unity beyond national borders yet be the reason why nations and peoples went to war with each other? In other words, how could Christianity simultaneously represent a divisive factor and a shared identity, both in the past as well as in contemporary Europe?3

The second question concerns how secularization, as a cultural and social process, led Europe to adopt the secular free market of ideas, faiths, goods, persons, and capital as its peculiar civil religion. 4 In the Liberal Age after the Enlightenment, religion was not given up in Europe, despite anti-religious and anti-clerical pressure. Instead, Christianity continued to be a substantial part of the European civil religion, but society, public policies, and to some extent religion itself became more secular. This raises the question: how could the civil religion of human rights and the single free market pull together the secular and the religious?5

This Article attempts to answer these questions. First, this Article analyzes the period in which developing nation-states established national churches. Second, it examines the Liberal Age, when rights and liberties were recognized as the basis of coexistence in a free democratic society without jettisoning the Christian legacy of Europe. Third, it discusses the transformation of post-World War II Europe into a secular market based on the free circulation of ideas, faiths, goods, persons, and capital.


From the fourth century to the nineteenth century, Europe underwent a fundamental transition from the original alliance between the Christian Church and the Roman Empire to a plural landscape featuring a multiplicity of churches and states that took shape after the Reformation.

During the first three centuries after the death of Jesus Christ, the Roman Empire fought Christians. Then Christianity was recognized in the Empire as possessing the legal status of religio licita, or "tolerated religion," by Constantine's Edict of Milan in 313 A.D. In 380 A.D., an edict of Emperor Flavius Theodosius made Christianity the Empire's sole legitimate religion. In this phase, the first ecumenical councils6 defined the Christian orthodoxy7 and celebrated the church's alliance with the Roman Emperor.8

Following the integration of Christianity into the Roman Empire, which was complete by the end of the fifth century, Pope Gelasius put the unity of Christianity under the dualist power of the Pope and the Emperor. As Gelasius explained to Emperor Anastasius: "There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power."9 Christianity had the ambition of presenting itself as a coherent and cohesive unit. One Christianity, one Church, one Empire: this formula was assumed as the summary of God's will for human society. No matter how richly articulated in local communities and customs, the church represented the uniqueness and unity of Christianity. Unity and homogeneity were assumed as the overwhelming ideal.10 The preservation of orthodoxy and the defense of a monolithic apparatus of ecclesiastical institutions came to be perceived as essential to the pursuit of that ideal. Alternative theories and practices could not coexist: to achieve the ideal of unity and homogeneity, one church had to prevail.11 Although Muslim and Jewish minorities could be tolerated as outsiders, the existence of alternative and competing Christian churches was theologically unthinkable and practically intolerable. The prevailing sentiment was that blood could and should be shed in order to force the reality into the ideal.12

After the Reformation, resistance to Christian plurality reached its climax.13 Wars of religion represented a huge price to pay in order for Europe to remain faithful to the ambition of shaping Christianity into one church.14 The Peace of Augsburg and the Peace of Westphalia led Europe from the first phase, dominated by the command of Christian unity, to a second phase in which Christians accepted, at least in practice, the multiplicity and competition of churches.15 Unity was still a powerful ideal, but tolerance certainly increased and toleration16 became a key word in politics. Europeans began to view the sword as an inappropriate means to cope with the internal diversity of Christianity. A plurality of churches emerged, which reshaped the European religious landscape. 17 It is unclear whether the plurality of churches led to greater tolerance, the proliferation of churches was the result of increased tolerance, or Western secularization led to both.18 What is clear is that a second phase started when different churches replaced the single church and when toleration gradually replaced intolerance and repression.19

As many churches developed from the sole church, modern nation-states developed in Europe from the split of the Roman and later Holy Roman Empire.20 The two processes took place simultaneously.

The European civil religion followed the same two phases. In the first phase, Christian civil religion meant ideal unity not only within the church but also between the Christian Church and the Empire.21 The Christian dualism theorized by Pope Gelasius22 was meant to express the fundamental unity of the two powers unified by the supreme civil religion of Christianity.23 In the second phase, Christian civil religion adjusted to the transformation, discovered the virtue of toleration, and endorsed the plurality of churches and states.

Through conflicts and tensions, states and churches took shape together in modern Europe. Each church could not conceive of itself without the complementary national venture. The same was true for the states. Sovereignty was understood in the perspective of the unity between the spiritual and the temporal, which meant between the nation-state and the corresponding nationally established church.24

Orthodox and Protestant national churches were the best example of this because they were structured as autonomous churches independent from any all-encompassing supra-national church. The Catholic Church also underwent the same process, but remained a supra-national, universal church. The allegiance to the king and to the nation was less problematic in predominantly Orthodox or Protestant countries.25 But for Catholics this was highly challenging, since they had to combine their allegiance to the king, representing the nation-state, with their allegiance to the Pope, a sovereign himself, representing the universal church.26 Catholic countries were constantly challenged to pull together the universal dimension represented by the Holy See27 and the activism of local Catholic churches to create national unity.28 In the legal system of Catholic canon law, national Catholic churches always remained subordinated to the Holy See. Contrary to what happened with Protestant and Orthodox established churches, the allegiance of national Catholic churches to kings was constantly in competition with their allegiance to the Pope and the Holy See within the legal framework of the universal Catholic Church. Protestant and Orthodox churches accepted their subordination to the king as a matter of theology.29 Subordination to national kings was resisted by the Catholic Church and accepted, in some cases, only as a matter of fact in the name of political realism.30

After the birth of nation-states, civil religion came to be a matter of mutual protection between the locally dominant church and the relevant state. The state was a confessional state, a state "confessing" a specific religious orthodoxy31; the church was an established church.32 Civil religion was made of both dimensions. Like the two sides of the coin, the confessional states and the established churches embodied the Christian civil religion in Europe.


The transition in Europe from the ideal of mono-church to multi-church Christianity brought with it the transition from religious intolerance to religious toleration. This transformation simultaneously involved both the practice and the theory of toleration. Ultimately, this led to religious liberty and to the full panoply of freedoms and rights of the Liberal Age.33 The Christian civil religion slowly neutralized religion as the cause of bloodshed and mutated into a new version of civil religion where the old aspects (confessional states allied with established churches) merged with the new aspects (toleration and liberty). Nineteenth-century Europe was still a Europe at war, but European wars ceased to be religious wars.34

Protestant churches played a special role in this transformation. They fought the other churches with no less intolerance and they repressed dissidence and heresy with the same ruthlessness and cruelty as the other churches. Nevertheless, the Protestant theology, more than the Catholic theology, made cultural and political modification possible. Free examination and the autonomy of the individual in the reading and interpretation of the Scripture-fundamental aspects of Protestant Christianity-were to be the very basis for individual freedoms and rights. In the Catholic teaching, the only acceptable version of religious freedom was the liberty of the Catholic Church itself, in latin Libertas Ecclesiae.35 Individuals had no rights; their only freedom was to embrace the truth, meaning of course the Catholic truth. This does not mean that toleration was achieved in Protestantism without conflicts. But the seed of religious freedom, at least in the sense of individual freedom, was predominantly a Protestant one and achievements in the field were mainly and more precociously in Protestant countries and churches.36

The transformation did not concern all of Christianity (or all of Protestantism) at the same time in the same way. New Protestant sects and churches arose, which challenged the unity of church and state in Protestant countries and regions. This pushed Protestant states to experience new patterns.37 In some areas and countries, states slowly started to be less confessional and churches gradually abandoned the ambition of cutting other churches out of the market.38 The European civil religion came to include toleration and religious liberty. Again, religious change corresponded with economic and political transformation, which accompanied the spread of liberalism in a large part of Europe. Did Christianity grow to include freedom because of the more general cultural, economic, and political mutation? Or did liberal Europe reflect the new Protestant theology? In all likelihood, both are true.

In some European areas and countries, political and legal modernity developed without passing through an intense and specific religious conflict.39 Religion was not the key factor of modernization. In northern Europe, in particular, churches and states faced the new context together. Each changed on its own, but a common process of transformation also took place where the state pushed the church to mutate and vice versa.40 This enabled the traditional link between dominant churches and the relevant states to survive. Political freedoms and rights were enacted with the collaboration of both.41

The situation was different in other parts of Europe. In predominantly Catholic countries, the anti-modern position of the Catholic Church made the transition to political and legal modernity impossible without a fight. Political conflict stemmed from the Catholic determination to refuse modern liberties. For instance, in 1864 the Syllabus of Errors, which was issued under Pius IX, included a proposition stating it is wrong to believe that "[e]very man is free to embrace and profess that religion, which, guided by the light of reason, he holds to be true."42

The conflict between the old and the new civil religion took place mainly in France-first during the Revolution with the tentative creation of the Cult of Reason, an alternative secular religion, and then for the whole nineteenth century until the law of separation of 1905.43 The conflict also took place in Italy with the Risorgimento, 44 the takeover of the Pontifical states, and the achievement of Italian unity.45 In France and Italy, fighting the Catholic Church was seen as an indispensable step in order to build a modern community, which recognized and practiced those freedoms that the Pope condemned as incompatible with human nature. While a new European civil religion was taking shape in which Christianity merged with liberal freedoms, Catholics experienced a deep tension between their political sympathy for modernity and their reluctance to change their church. In some parts of Europe, anti-religious and anti-clerical sentiments became an ingredient of the new civil religion.46 In the most acute situations, secularism became a civil religion on its own.47

At the beginning of the twentieth century, European civil religion was a mixture of the past and the present. It combined traditional Christianity, which was still strongly embedded in national identities, and new political ideologies and cultures, including liberalism and secularism. During World War I, the Russian Revolution brought about a new civil religion, which replaced Christianity with the ideology of Marxism-Leninism and divided Europe for the next seventy years.48 Between the two world wars, Fascism and Nazism also erupted. They brought an alternative and concurrent ideology, which also resulted in a sort of civil religion. Unlike the Soviet experiment, Christianity in Nazi and Fascist regimes was not banned in the name of an atheistic state. In fact, Hitler, Mussolini, and Franco, each signed concordates with the reigning popes, which established an alliance between the regimes and the Catholic Church.49 German Lutherans also compromised with Nazism.50

The Fascist and Nazi civil religions attempted to couple the traditional pattern-national Christianity pulling together the established church and the confessional state-with modernity.51 In the case of liberal democracies, modernity meant civil and economic freedoms. In the case of Nazism and Fascism, modernity meant totalitarian dictatorships and racism, which led Europe and the whole world into the nightmare of the Shoah and World War II.


At the end of World War II, the division of Europe into two parts separated by the Berlin Wall and the Cold War deeply affected the pre-existing patterns of civil religion.52 The civil religion of Soviet Europe was Marxism-Leninism, an atheistic ideology, which fought all religions as incompatible with the goals and principles of socialist societies and states. On the other hand, liberal Western Europe turned towards the Atlantic and elaborated a new variation of the civil religion inherited from the nineteenth century and defended against Fascism and Nazism.53 Human rights were considered a possible bridge between the two sides of the world. In particular, the United Nations Universal Declaration of Human Rights54 represented the attempt to unify the bipolar world in the name of a shared vision of human dignity and rights.

Especially after the failure of the Hungarian Uprising,55 it became clear that Communist Eastern Europe was frozen and isolated by the Marxist-Leninist ideology. A huge portion of Europe was condemned to oppression in the name of an atheistic civil religion deeply conflicting with the Christian and liberal civil religion of the past. Western Europe opted for a unity built upon the free market, civil rights, and civil liberties. The European Convention on Human Rights (ECHR)56 expressed the shift towards a civil religion of human rights having the potential to develop a European common standard beyond national specificities. The ECHR did not mention Christianity as the source of rights; instead, what mattered was adherence to the specified rights regardless of the source of those rights. The civil religion of rights and freedoms fit better with an open society: secular faith in freedom and rights as the condition for growth and welfare had replaced religious faith in the transcendent meaning of worldly life.57

The constitution of the European Economic Community58 developed the liberal civil religion into a blueprint that aimed to increase European welfare beyond national borders through the construction of the single market.59 Free circulation of persons, goods, capital, and services accompanied Europe towards prosperity. It also fostered social and political unity leading to the birth of the European Union. This new and complex shared sovereignty included the nation-states and regions as well as both governmental and private actors60; the framework supported competition and social welfare. The religious market also opened and became less national.61

The civil religion of human rights and the free market was the new version of the Christian civil religion as it had been modernized throughout the Liberal Age. The ice of Christianity had melted into the water of the free market, human rights, democracy, and the rule of law. Although deeply grounded in Christianity, the new civil religion was also markedly secular.62 Secularization was its reason, its environment, and its outcome. Churches had no choice; no matter how strong the temptation to join forces with Marxists to protest against the inequalities engendered by the market, Christians-and all other religions-owed their freedom to the secular market and could not avoid supporting it.63 Thus, during the forty years of the bipolar West-East world, the civil religion of Western Europe transformed into the secular civil religion of the free market without giving up its liberal and Christian core.64

After the crumbling of the Berlin Wall and the September 11 terrorist attack on the World Trade Center in New York, the picture changed.65 The civil religion of the West spread and conquered all of Europe.66 Christianity and the market triumphed together. Yet, this was not the beginning of a stable era. No longer did the Communist enemy feed the inevitable alliance between capitalist countries and religion. An increasing multi-religious landscape made Europeans more aware of their Christian past and more concerned with its preservation.67 Global competition and tensions injected fear of other cultures and religions, namely Islam. Religious prioritization and the cultivation of religion as a singular categorization challenged Europe.68 The impact was heavy on the ideal of Europe as an open space, countering nationalistic protectionism and enhancing competition, including in the field of religion. 69 While suggesting that "God is Back," John Micklethwait and Adrian Wooldridge underlined the crisis of a European secular way to access modernity.70 The traditional alliance between secular Europe and religious Europe was in jeopardy.

After World War II, a European civil religion developed in the sense of an alliance between states and religions in the name of religious and socioeconomic freedom. The present tensions and conflicts do not have the potential to desecularize Europe. Instead, they should be seen as challenging the alliance between religious liberty and socioeconomic freedom, an alliance which lies at the core of European civil religion as it has developed until now.

1. Since Robert Bellah's article Civil Religion in America, 96 Dæ DALUS 1 (1967), available at, which opened the discussion in the late 1960s, the concept of "civil religion" has changed from the original meaning given by Rousseau and has come to designate the religion, with its rituals and beliefs, shared by one people (or nation, or state) beyond its allegiance to a given church or faith. This Article will refer to the interaction between the European experience of religion as a whole and the shared individual principles and values that have come to represent Europeans' common heritage and identity.

2. This concerned Western Europe first, and then former Communist Central and Eastern Europe after the crumbling of the Berlin Wall in 1989. See generally Joseph Weiler, The Transformation of Europe, 100 YALE L.J. 2403 (1991) (describing the development of European nations into a single community).

3. Recent European history is rife with divisions among Christians and Christian churches. Northern Ireland and the former Yugoslavia are the most visible examples of inter-Christian violence. In a more subtle manner, different views and opinions divided and still divide European Christians on social issues and public policies. For a detailed look at contemporary Christian divisions, especially in the areas of national identities and political strategies, see STEVE BRUCE, POLITICS AND RELIGION 41-125 (2003).

4. This process of secularization is reflected in the emergence of the European single market, which was constructed through the creation of the European Community in 1957 and the European Union's establishment as a peculiar legal system. See generally MARCO VENTURA, LA LAICITÀ DELL'UNIONE EUROPEA: DIRITTI, MERCATO, RELIGIONE (2001).

5. Underlying this question is the fact that European society became more secular without becoming less religious. See Philip S. Gorski, Historicizing the Secularization Debate: Church, State, and Society in Late Medieval and Early Modern Europe, ca. 1300 to 1700, 65 AM. SOC. REV. 138, 138-67 (2000).

6. The ecumenical councils were general meetings of bishops from all of the communities belonging to the Christian Church. The councils discussed and deliberated on doctrinal or practical issues pertaining to the life and mission of the church. The first ecumenical councils were characterized by the tensions between three sets of actors: the Emperor, the Pope, and the bishops. See THOMAS S. DOLAN, THE PAPACY AND THE FIRST COUNCILS OF THE CHURCH, at vii-xi (Kessinger 2007) (1910).

7. The expression "Christian orthodoxy" refers to the official set of doctrines professed by the Christian Church and later by the different Christian churches and denominations. See, e.g., J. Timothy Fullerton & Bruce Hunsberger, A Unidimensional Measure of Christian Orthodoxy, 21 J. SCI. STUDY RELIGION 317, 318 (1982) (defining orthodox Christianity and by extension Christian orthodoxy as "the acceptance of well-defined, central tenets of the Christian religion").

8. The simultaneous competition and alliance between the Pope and the Emperor is the starting point for the understanding of the "Western legal tradition" according to Harold J. Berman, whose overview of both the "papal revolution" and the later "secular legalism" is essential to this Article. See PAUL VEYNE, WHEN OUR WORLD BECAME CHRISTIAN 312- 94 (Janet Lloyd trans., Polity Press 2010) (2007). See generally HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION (1983).

9. Pope Gelasius on the Superiority of the Spiritual Power in Ad Anastasium Imperatorem, in READINGS IN EUROPEAN HISTORY 72 (James Harvey Robinson ed., 1994); see also GIUSEPPE CAPUTO, 1 INTRODUZIONE ALLO STUDIO DEL DIRITTO CANONICO MODERNO (2d ed. 1987) (explaining the Gelasian formula as the principle of both distinction and unity of the two powers). For an insightful study of the Gelasian formula, see Thomas T. Love, Roman Catholic Theories of "Indirect Power", 9 J. CHURCH & ST. 5, 71-86 (1967), and John Witte, Jr., Facts and Fictions About the History of Separation of Church and State, 48 J. CHURCH & ST. 5, 19 (2006) (discussing the Gelasian formula).

10. This was particularly true and problematic in the context of the Byzantine Empire because of the divide between Western and Eastern Christians. See generally JOHN MEYENDORF, 2 IMPERIAL UNITY AND CHRISTIAN DIVISIONS: THE CHURCH FROM 450-680 A.D. (1989) (discussing the tensions between the Eastern and Western branches of Christianity).

11. For an investigation of the scandal of divisions within Christendom as a crucial part of the Middle Ages, see generally RICHARD WILLIAM SOUTHERN, WESTERN SOCIETY AND THE CHURCH IN THE MIDDLE AGES (Owen Chadwick ed., Penguin Books 1990) (1970).

12. For a reconstruction of the tension between unity and diversity in Christianity from the early Councils to modernity, see generally F. DONALD LOGAN, A HISTORY OF THE CHURCH IN THE MIDDLE AGES (2002). This is also supported by the history of canonical law. See generally CARLO FANTAPPIE, INTRODUZIONE STORICA AL DIRITTO CANONICO (2003); CONSTANT VAN DE WIEL, HISTORY OF CANON LAW (1992).

13. See generally BERNARD HAMILTON, THE CHRISTIAN WORLD OF THE MIDDLE AGES (2003) (examining in detail the period of Western religious dominance).

14. For an overview of religious wars in the context of the formation of modern Europe, see RICHARD S. DUNN, THE AGE OF RELIGIOUS WARS 1559-1689 (1970). Of course religious wars were accompanied by the rising status of states as autonomous actors whose political raison d'être did not depend on any superior entity or factor. In this phase, the mutual exploitation of states and churches came to depend more on politics and less on faith. See MARCEL GAUCHET, THE DISENCHANTMENT OF THE WORLD: A POLITICAL HISTORY OF RELIGION (Oscar Burge trans., 1997) (advancing the proposition that Western history shows movement away from religious society and towards the rise of the political state).

15. According to the Peace of Augsburg of 1555, each prince was entitled to determine the religion of his own subjects (this principle came to be known as the principle of "cuius regio, eius religio," literally "whose realm, his religion"). In 1648, the Peace of Westphalia acknowledged that Europe was divided in sovereign states with established churches and granted a minimum degree of religious freedom to Christians who did not belong to the local established church. See generally DEREK CROXTON & ANUSCHKA TISCHER, THE PEACE OF WESTPHALIA: A HISTORICAL DICTIONARY (2002); JOHN MERRIMAN, A HISTORY OF MODERN EUROPE (2004). For a more specific analysis of the religious issue, see generally BENJAMIN J. KAPLAN, DIVIDED BY FAITH: RELIGIOUS CONFLICT AND THE PRACTICE OF TOLERATION IN EARLY MODERN EUROPE (2007).

16. Whenever "toleration" is used in this Article instead of the term "tolerance," it does not refer to the general concept of tolerance, but to the specific history of religious toleration. For the development of the concept of toleration, see generally PEREZ ZAGORIN, HOW THE IDEA OF RELIGIOUS TOLERATION CAME TO THE WEST (2003).

17. Although Europe did not stop fighting wars, religious conflict between Christians was no longer the reason why wars were declared and fought. See DAVID ONNEKINK, WAR AND RELIGION AFTER WESTPHALIA, 1648-1713, at 2 (David Onnekink ed., 2009).

18. See generally CHARLES TAYLOR, A SECULAR AGE (2007) (discussing the problematic application of the cause-effect pattern to secularization).

19. This can be observed in the gradual emergence of religious tolerance in the lives of the pioneers of religious liberty. See ZAGORIN, supra note 16, at 3. See generally ROLAND H. R BAINTON, THE TRAVAIL OF RELIGIOUS LIBERTY: NINE BIOGRAPHICAL STUDIES (1951).

20. The simultaneous development of nation-states and churches is well documented in THE CHURCH AND STATE IN THE MODERN AGE: A DOCUMENTARY HISTORY (J.F. Maclear ed., 1995). For an explanation of the features of the nation-state in its historical context, see generally CHRISTOPHER PIERSON, THE MODERN STATE (1996). European nation states also developed out of the split of the Byzantine Empire and, later, the split of the Ottoman Empire.

21. The term "Empire" as used here includes the Roman Empire, but also more specifically the Byzantine Empire and Holy Roman Empire.

22. See Gelasius, supra note 9, at 72-73. R

23. It also incorporated the distinction between legal norms and moral norms and between crime and sin. See generally PAOLO PRODI, UNA STORIA DELLA GIUSTIZIA: DAL PLURALISMO DEI FORI AL MODERNO DUALISMO TRA COSCIENZA E DIRITTO (2000).

24. See FRANCIS H. HINSLEY, SOVEREIGNTY 54-55 (Cambridge University Press 1986) (1966) (discussing that the Pope's sovereignty extended to the canon law, which "was not a law but a morality," and that such sovereignty did not displace that of the temporal ruler). Of particular importance is his analysis of the "modern theory of sovereignty." Id. at 45.

25. See generally GILBERT DAGRON, EMPEREUR ET PRÊTRE: ÉTUDE SUR LE CÉSAROPAPISME BYZANTIN (Gallimard 1996) (for the development of church and state relationships in Orthodox countries); CLARENCE GALLAGHER, CHURCH LAW AND CHURCH ORDER IN ROME AND BYZANTIUM: A COMPARATIVE STUDY (2002) (for the fundamental difference between Rome and Byzantium in the understanding of church law and its impact on church and state relationships); JOHN ANTHONY MCGUCKIN, THE ORTHODOX CHURCH: AN INTRODUCTION TO ITS HISTORY, DOCTRINE, AND SPIRITUAL CULTURE (2008) (for an overview on the organization of Orthodox churches in modern times); JOHN WITTE JR., LAW AND PROTESTANTISM: THE LEGAL TEACHINGS OF THE LUTHERAN REFORMATION (2002) (discussing the understanding of church and state relationships in Protestantism); LEGAL POSITION OF CHURCHES AND CHURCH AUTONOMY (Hildegard Warnink ed., 2001) (for a comparative overview of Catholic and Protestant Churches in European states).

26. See generally THE CATHOLIC CHURCH AND THE NATION-STATE: COMPARATIVE PERSPECTIVES (Paul Christopher Manuel et al. eds., 2006) (providing a comparative analysis of the issue, reaching beyond Europe).

27. The uniqueness of the Catholic Church came to be its legal construction as an international entity enjoying full sovereignty. This was achieved by two means: first, through the sovereignty and the temporal power of the popes embodied in the fictional entity known as the "Holy See"; and second, through the Pontifical States as the symbols of the full temporal and spiritual power of the Holy See. See Robert John Araujo, The International Personality and Sovereignty of the Holy See, 50 CATH. U. L. REV. 291, 293-94 (2001) (describing the "unique nature of the Holy See"). See generally GIOVANNI BARBERINI, CHIESA E SANTA SEDE NELL'ORDINAMENTO INTERNAZIONALE: ESAME DELLE NORME CANONICHE (2003).

28. Poland and Ireland are two examples of national Catholic churches that substantially contributed to the national struggle while remaining faithful to the Holy See. Steve Bruce refers to these two cases in terms of "nationalists mobilizing strong religious identities." BRUCE, supra note 3, at 43. The experience of French "Gallicanism" is another exam- R ple of the Catholic struggle to combine allegiance to the nation and allegiance to the universal church. Gallicanism is a seventeenth-century expression for the political doctrine of limiting the power of the Pope and separating the spiritual from the temporal. See Gallicanism, in 1 ENCYCLOPEDIA OF CHRISTIAN THEOLOGY 603-06 (Jean-Yves Lacoste ed., 1990). See generally JOTHAM PARSONS, THE CHURCH IN THE REPUBLIC: GALLICANISM & POLITICAL IDEOLOGY IN RENAISSANCE FRANCE (2004) (for a broader study of Gallicanism).

29. See generally DAGRON, supra note 25. R

30. This fundamental difference is developed in Marco Ventura, Diritto ecclesiastico, in DIZIONARIO DEL SAPERE SOCIO RELIGIOSO DEL NOVECENTO 719 (Alberto Melloni ed., 2010).

31. The expression "confessional state" refers to a state that, in recognizing a specific religious orthodoxy, thus establishes the church representing that orthodoxy. In Protestant history, "confessing" meant professing or acknowledging a specific faith or version of Christianity. In addition, Christian denominations were also referred to as "confessions." The use of the expression varies throughout Europe according to the specific local experience. See generally STATE AND CHURCH IN THE EUROPEAN UNION (Gerhard Robbers ed., 2005).

32. Due to its different structure, as compared to the Protestant and Orthodox churches, Catholic churches were never established as national churches since this implied subordination to the local king. Instead, Catholic states established Catholicism as the religion of the state and acknowledged privileged relationships with Catholic bishops on the internal scale and with the Holy See on the external. See generally Marco Ventura, Diritto ecclesiastico, supra note 30. R

33. See FRANCESCO RUFFINI, RELIGIOUS LIBERTY, at vi (J. Parker Heyes trans., Kessinger 2006) (1901).

34. See id.

35. See 4 THE ENCYCLOPEDIA OF CHRISTIANITY 703 (Fahlbusch et al. eds., 2005). See generally LORENZO SPINELLI, LIBERTAS ECCLESIAE: LEZIONI DI DIRITTO CANONICO (1979) (for an illustration of this concept).

36. See Harold J. Berman, Conscience and Law: The Lutheran Reformation and the Western Legal Tradition, 5 J. L. & RELIGION 177, 177-202 (1987).

37. Switzerland turned out to be a crucial laboratory. A Swiss Protestant minister, Alexandre Vinet, argued in Mémoire en faveur de la liberté des cultes, his fundamental dissertation in 1826, that complete religious freedom was the necessary consequence of Christianity in the civil sphere. He contended that free competition between churches guaranteed that the best would prevail for the benefit of society. See generally ALEXANDRE R. VINET, AN ESSAY ON THE PROFESSION OF PERSONAL RELIGIOUS CONVICTION, AND UPON THE SEPARATION OF CHURCH AND STATE, CONSIDERED WITH REFERENCE TO THE FULFILLMENT OF THAT DUTY (Charles Theodore Jones trans., Kessinger 2010) (1843).

38. See generally RÉNE RÉMOND, RELIGION AND SOCIETY IN MODERN EUROPE (1999) (providing a general overview of these developments).

39. The role of the Church of England in modernization of Great Britain is the best example. See MAURICE COWLING, RELIGION AND PUBLIC DOCTRINE IN MODERN ENGLAND, at xiii-xxi (1980). See generally GRACE DAVIE, RELIGION IN BRITAIN SINCE 1945: BELIEVING WITHOUT BELONGING (1994) (for post-World War II developments). The established churches of the Nordic countries are good examples as well. See Marco Ventura, States and Churches in Northern Europe: Achieving Freedom and Equality through Establishment, in LAW AND RELIGION IN THE 21ST CENTURY: RELATIONS BETWEEN STATES AND RELIGIOUS COMMUNITIES 183, 184 (Silvio Ferrari & Rinaldo Cristofori eds., 2010).

40. See COWLING, supra note 39, at xii (noting, for instance, that "the [modern] academic university is a fragment from a larger culture in which learning was inseparable from religion.").

41. This can be easily observed in the history of the Church of England and in the development of English ecclesiastical law. See generally MARK HILL, ECCLESIASTICAL LAW (3d ed. 2007).

42. The Encyclical Letter of Pope Pius IX and the Syllabus of Modern Errors para. 15 (Dec. 8, 1864).


44. Risorgimento, or "resurgence," is the term that designated the Italian struggle for political unity and independence in the nineteenth century. See DEREK BEALS & EUGENIO F. BIAGINI, THE RISORGIMENTO AND THE UNIFICATION OF ITALY 15-16 (2002).

45. See ARTURO CARLO JEMOLO, CHURCH AND STATE IN ITALY: 1850-1950, at v (1960); Marco Ventura, The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in Italy, 19 EMORY INT'L L. REV. 913, 915, 924 (2005) (for the impact of the historical conflict between the state and the Catholic Church on the structure of religious freedom in Italy).


47. French separatism can be understood as an anti-religious and anti-clerical civil religion. For this discussion, see generally JEAN BAUBÉROT, LAÏCITÉ 1905-2005, ENTRE PASSION ET RAISON (2004), and RÉMOND, supra note 38. The simplistic connotation of France R as "secularist" betrays the complexity of the French case. The general constitutional principle (laïcité) is often confused with public policies aimed at reducing the influence of religion in the public sphere (laïcisation). See Jeremy Gunn, Religious Freedom and Laïcité: A Comparison of the United States and France, 2004 BYU L. REV. 419, 419 (2004). See generally BLANDINE CHELINI-PONT & JEREMY GUNN, DIEU EN FRANCE ET AUX ÉTATS-UNIS: QUAND LES MYTHES FONT LA LOI (2005).

48. See generally JAMES THROWER, MARXISM-LENINISM AS THE CIVIL RELIGION OF SOVIET SOCIETY: GOD'S COMMISSAR (1992) (examining the phenomenon of Marxism-Leninism from a historical/religious perspective).

49. Of course, the debate is still ongoing on the implications of those concordates. It is only necessary to note here that the Holy See did not opt for a confrontational strategy, but preferred to settle. For more on the Italian Lateran Pacts of 1929 between the Fascist government and the Holy See and their long-lasting impact on church and state issues in Italy, see Marco Ventura, Religion and Law in Dialogue: Covenantal and Non-covenantal Cooperation of State and Religions in Italy, in RELIGION AND LAW IN DIALOGUE: COVENANTAL AND NONCOVENANTAL COOPERATION BETWEEN STATE AND RELIGION IN EUROPE 115, 116-17 (Richard Puza & Norman Doe eds., 2006).

50. See Hans Tiefel, The German Lutheran Church and the Rise of National Socialism, 41 CHURCH HISTORY 326, 326 (1972). See generally JOHN S. CONWAY, THE NAZI PERSECUTION OF THE CHURCHES, 1933-45 (1968) (for a more comprehensive analysis).

51. See generally EMILIO GENTILE, THE SACRALIZATION OF POLITICS IN FASCIST ITALY (1996) (for a discussion on Italian Fascism as civil religion).

52. There is a connection between the creation of U.S. civil religion during the Cold War and the development of a new version of civil religion in Europe which was also linked to the anti-Communist struggle. See generally EMILIO GENTILE, GOD'S DEMOCRACY: AMERICAN RELIGION AFTER SEPTEMBER 11 (Jennifer Pudney & Suzanne D. Jaus trans., Praeger Publishers 2008) (2006) (discussing the American case on the topic of the difference between U.S. and European civil religion).

53. Winston Churchill referred to the clash between Nazism and the Christian civilization in his speech anticipating the Battle of England before the House of Commons on June 4, 1940. "Upon this battle," Churchill declared, "depends the survival of Christian civilization." WINSTON CHURCHILL, BLOOD, TOIL, TEARS AND SWEAT: THE SPEECHES OF WINSTON CHURCHILL (David Cannadine ed., 1990).

54. The General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights on December 10, 1948. See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

55. The anti-Soviet uprising of Hungarians in 1956 and the ensuing repression by Communists marked a fundamental step in the history of Communist Europe. See generally GIOVANNI BARBERINI, STATI SOCIALISTI E CONFESSIONI RELIGIOSE (1973) (explaining the impact of the Hungarian uprising on church and state relationships in Soviet countries); JOHN P. C. MATTHEWS, EXPLOSION: THE HUNGARIAN REVOLUTION OF 1956 (2007) (for a more detailed account of the Hungarian uprising).

56. The European Convention on Human Rights was signed by the members of the Council of Europe in Rome on November 4, 1950. See generally Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, available at

57. See generally T. JEREMY GUNN, SPIRITUAL WEAPONS: THE COLD WAR AND THE FORGING OF AN AMERICAN NATIONAL RELIGION (2009) (for a useful view into the U.S. approach).

58. The European Economic Community was established by the Treaty of Rome, which was signed on March 25, 1957, by Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany. See generally Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11.

59. See generally Marco Ventura, Religious Pluralism and Human Rights in Europe: Equality in the Regulation of Religion, in RELIGIOUS PLURALISM AND HUMAN RIGHTS IN EUROPE: WHERE TO DRAW THE LINE? 119 (M.L.P. Loenen & J.E. Goldschmidt eds., 2007) (for an illustration of the impact of the European single market on religion).

60. See generally SOVEREIGNTY IN TRANSITION (Neil Walker ed., 2003) (for the innovative concept of sovereignty in the construction of the European Union); SOPHIE VAN BIJSTERVELD, THE EMPTY THRONE: DEMOCRACY AND THE RULE OF LAW IN TRANSITION (2002) (for its implications for state and churches relationships in Europe).

61. See Marco Ventura, La liberté de conscience dans la régulation publique de la religion: La compétition Européenne, in UN NOEUD DE LIBERTÉS 133, 133-157 (J.B. Marie & Patrice Meyer- Bisch eds., 2005).

62. European religiosity is an exception compared to the religious landscape of the world in this regard. See generally GRACIE DAVIE, EUROPE: THE EXCEPTIONAL CASE: PARAMETERS OF FAITH IN THE MODERN WORLD (2002). This is the context for the opposition between religious America and secular Europe. See generally PETER BERGER, GRACE DAVIE & EFFIE FOKAS, RELIGIOUS AMERICA, SECULAR EUROPE? (2008).

63. This started from the alliance between religion and free enterprise in the United States as well as in Europe. See generally BETHANY MORETON, TO SERVE GOD AND WAL-MART: THE MAKING OF CHRISTIAN FREE ENTERPRISE (2009).

64. See Marco Ventura, Wie wirkt sich die Europäische Integration auf die Religion aus?, in DER SÄKULARISIERTE STAAT IN POSTSÄKULAREN ZEITALTER 281, 281-290 (Gian Enrico Rusconi ed., 2010).

65. See Rik Torfs, Religious Freedom and Church and State Relationships After 11 September 2001, 10 EUR. J. CHURCH & ST. RES., 2003, at 1-12.

66. The extension to Central and Eastern Europe, however, was not unproblematic. See generally LAW AND RELIGION IN POST-COMMUNIST EUROPE (Silvio Ferrari & W. Cole Durham eds., 2003) (providing a comprehensive description of the church-state systems in place in post-Communist countries).

67. At the very least, this increasingly multi-religious landscape prompted conservative Christian and political leaders to emphasize the need for such a shift. See TONY BLANKEY, THE WEST'S LAST CHANCE: WILL WE WIN THE CLASH OF CIVILIZATIONS? 9 (2005). See generally JOSEPH RATZINGER & MARCELLO PERA, WITHOUT ROOTS: THE WEST, RELATIVISM, CHRISTIANITY, ISLAM, at ix (2007).

68. Amartya Sen studied in particular the case of multi-ethnic Britain and concluded that "the people of the world cannot be seen merely in terms of their religious affiliation- as a federation of religions." See AMARTYA SEN, IDENTITY AND VIOLENCE: THE ILLUSION OF DESTINY 158 (2006).

69. This presented a challenge to neutrality as the cherished ideal for church and state relationships. See generally CHURCH AND STATE IN CONTEMPORARY EUROPE: THE CHIMERA OF NEUTRALITY (John T.S. Madeley & Zsolt Enyedi eds., 2003).


[Author Affiliation]


* Full Professor, Faculty of Law, University of Siena, Italy; International Chair, Université Libre de Bruxelles (2007); Visiting Scholar, University of Oxford (2004); Visiting Scholar, University College of London (2002). Ph.D. 1992, University of Strasbourg, France; J.D. 1989, University of Perugia, Italy.

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