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
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. …