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Emile Noël Fellow
Academic Year 2010-2011
Diletta Tega is a researcher of Constitutional Law at the University of Milan - Bicocca, School of Law. She is lecturer of Public Law and Protection of Fundamental Rights, at the University of Bologna, graduate degree in International cooperation, regulation and protection of fundamental rights and etno-cultural inheritance. She received a J.S.D. in Constitutional Law from the University of Bologna, School of Law in 1998. She obtained a PhD in Constitutional Law from the University of Bologna, School of Law and the University of Paris X Nanterre in 2003. She is also Junior expert for the European Union Agency for Fundamental Rights (FRA).
Her research interests fall broadly in the field of fundamental rights and the so called multilevel protection of rights. She studies in particular the ECHR and the Italian Constitutional Court jurisprudence on religious freedom and the so called new rights. She has published studies in many different fields of constitutional, comparative and European Union law.
Religion in the Public Educational Sphere: how to keep together neutrality and pluralism?
In the last ten years or so the theme of secularism of contemporary European legal systems has been a topical subject. In particular the issue of religious symbols in the public space has given rise to widespread debate on the scope of the state’s neutrality. Indeed before that freedom of religion was not considered among the most controversial fundamental rights, at least not in Europe. As we all know a huge amount of literature, not only legal, has been written on this theme, becoming over the years a source of vigorous legal and political controversy.
Needless to say this is a complex and slippery theme, however, I believe that, above all with regard to Europe and Italy, there is a need to re-address this topic, focusing on the conflicts that have arisen in relation to "the place" of religious symbols in the public sphere, and, specifically, in State schools. The strong reactions to the ECtHR decision Lautsi v. Italy demonstrate that the matter is highly controversial in the context of contemporary constitutionalism. The national judges have not only given different answers to the same questions, in accordance with the different concepts of secularism at national level, but also conflicting solutions to the same problem. Thus there is a kind of fragmentation of the issue.
Furthermore, the existence in Europe of a supranational Court of rights makes this topic a supranational issue, increasing its complexity and contradictions.
The basic questions underlying my project are:
- What is the meaning of secularism concerning religious symbols?;
- How can the State be neutral? In the sense of not imposing an orthodox option on citizens, concerning religious symbols. If the State removes religious symbols from the public sphere can it be defined as neutral or on the contrary as imposing a “militant secularism”? Once we have elaborated a clear constitutional definition of these terms we have to verify whether it is possible to apply it in a uniform manner not only to religious symbols, but also to religious precepts. For example Switzerland bans crucifixes and Muslim scarves (for teachers) but exempts Muslim girls from compulsory swimming lessons at school. Where is the uniformity?
At this point a crucial issue emerges. One of the difficulties that I met in applying the principle of uniformity to each case is, for example, linked to the different kinds of symbols we have to deal with, like hijab, burqa or niqab, and crucifix. I believe that banning hijab (the Muslim scarf that covers only the nape of the neck and the neck) would be an unacceptable violation of religious freedom. On the contrary I think that banning burqa or niqab (they completely cover the body, burqa even the eyes) would not be a violation of that freedom.
These two last symbols provoke, at least in Western societies, a deep emotional crash. It have to be stressed the importance of the political, legal and social context, in which we place the reflection on religious symbols. Part of doctrine believes that it would be wrong to eliminate the crucifix from the schoolrooms of traditional Catholic States (Italy, Poland, Spain, Ireland, etc.) because, again, it would be an unacceptable violation of religious freedom. At the same time several scholars have proposed that those legal systems should allow those who are not religious or practice a different faith to put their symbols alongside the crucifix. My purpose in the paper is to show that freedom of religion and the general principles of non discrimination and pluralism have to be re-read together in order to get a more effective balance, and a reconciliation among constitutionalism, secularism and religion in the era of globalization and religious revival.
In the paper I will refer to the positive law (both case law and legislation) of several European countries with the purpose of drafting a new proposal for Italy concerning in particular the issue of religious symbols and school education.