Religion & Law

The good folks at The Becket Fund have posted a discussion of the Lautsi case (about crucifixes in the classrooms of Italian schools), which features my colleague, and international-human-rights expert, Paolo Carozza.  A taste:

Professor Carozza points out that religious liberty ?has some institutional and communal aspects that cannot be separated from it, without emptying religious freedom of its meaning and substituting it with the secularism of the State.?  He adds that

we cannot disregard the importance of history. Every population is attached to its history as well as to its current state. As the Judge from Malta, Giovanni Bonello, stated in his concurring opinion, ? ?The European Convention does not oblige us to have a collective ?historical Alzheimer?s??. The aspects of a culture cannot be abstractly separated from the history of a people.

Professor Carozza?s observations build on the unstated reality that Lautsi and cases like it are in the end arguments about baselines: What is the ?neutral? position when it comes to relationships between religion and government? One view holds that the neutral position is the blank wall, a kind of tabula rasa. This view has something in common with the Hobbesian construct of an ahistoric ?state of nature? that often presupposes a positivist conception of the law. There is also an analogy here to John Rawls?s imaginary ?original position?. Both philosophies deliberately subtract history, contingency, and memory from the human situation in order to reach conclusions about the law.

The other view is that there can be no blank slate: Each nation, and even each community, has a history of interaction between religion and government against which any current government actions (in Lautsi, keeping or removing crucifixes) will be measured and will gain their meaning.  Cultural memory persists whether we want it to or not. In a real sense we cannot erase the slate and start over ? we can only write over what is already there, because the ?neutral? position is historically and culturally determined. Professor Joseph Weiler argued as much in his excellent presentation to the Grand Chamber in Lautsi.