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Battles Over Symbols: The “Religion” of the Minority Versus the “Culture” of the Majority

Abstract

Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.

A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.

In March, 2011, after five years of working its way through various levels of national and European courts, the Grand Chamber of the European Court of Human Rights decided that a crucifix hanging at the front of a classroom did not violate the right to religious freedom under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Specifically, Ms. Soile Lautsi had complained that the presence of the crucifix violated her and her children's right to religious freedom and that its presence amounted to an enforced religious regime. The Grand Chamber, reversing the lower Chamber's decision, held that while admittedly a religious symbol, the crucifix also represented the cultural heritage of Italians.

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1. Lautsi v. Italy (Eur. Ct. H. R. 2012) E.H.R.R. 3, ¶ 15.

2. Id. at ¶ 1.2 (Bonello, J., concurring).

3. A. Lautsi v. Italy (Eur. Ct. H. R. 2012) 54 E.H.R.R. 3 [hereinafter Lautsi II].

4. Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, Monaco, Romania and the Republic of San Marco acted as interveners on the case. Id. at ¶ 47-49.

5. Garelli Franco, The Public Relevance of the Church and Catholicism in Italy, 12 J. Mod. Italian Stud. 8 (2007).

6. See Introvigne Massimo, Italy's Surprisingly Favourable Environment for Religious Minorities, 4 Nova Religio 275 (2001); Introvigne Massimo, Religious Minorities in Italy: Legal and Political Problems, 2 Religion-Staat-Gesellschaft 127 (2001). See also Homer Michael W., New Religions in the Republic of Italy, in Regulating Religion: Case Studies from Around the Globe 203 (Richardson James T. ed., Kluwer Acad. 2004) who details the historical context in which Italy's openness to religious minorities has developed, particularly in relation to tax exemptions and official recognition of religious minorities.

7. Faitini Tiziana & Povino Alessandroantonio, Handling Religious Diversity: The Case of “Holy/Rest days” in Italy, 18 Hum. Aff. 23 (2008).

8. Giordan Giuseppe, Towards a Common Sense Religion? The Young and Religion in Italy 13 Implicit Religion 261, 269–71 (2010).

9. Frisina Annalisa, What Kind of Church? What Kind of Welfare? Conflicting Views in the Italian Case, in 1 Welfare and Religion In 21st Century Europe: Volume 1, at 147, 147 (Bäckström Anders, et al. eds., Ashgate 2010).

10. Italy School Crucifixes ‘Barred’: The European Court of Human Rights has Ruled Against the Use of Crucifixes in Classrooms, BBC News, (11 3, 2009), http://news.bbc.co.Uk/go/pr/fr/-/2/hi/europe/8340411.stm; Hooper John, Human Rights Ruling Against Classroom Crucifixes Angers Italy: European Court of Human Rights Rules Crucifixes That Hang in Classrooms Violate Religious and Educational Freedoms, The Guardian (11 3 2009) http://www.guardian.co.uk/world/2009/nov/03/italy-classroom-crucifixes-human-rights.

11. Quoted in Hooper, supra note 9.

12. Alessandro Iovino, On Europe, its Christian Heritage and Multiculturalism, Paper Presented at CESNUR 2010 Conference (2010), http://www.cesnur.org/2010/to_iovino.htm.

13. Massimo Introvigne, Threats to Religious Freedom in the 21st Century, Paper Presented at OSCE Representative on Combating Racism, Xenophobia, and Intolerance Against Christians and Members of Other Religions at the Joint Council of European Bishops' Conferences (CCEC) and Conference of European Churches (CEC) Meeting (Feb. 18, 2011), http://www.cesnur.org/2011/mi-bel-en.html.

14. A complicating historical fact is worth noting: the laws related to the placement of the crucifix in the classroom were instituted under the fascist regime of Mussolini, and thus for some people there is also a political connotation to the presence of the crucifixes that brings with it a reminder of an era of Italy's history that many would prefer to forget or to distance modern Italy from. The struggle over national identity is therefore not a simple matter of church or no church. Evans Malcolm D., From Cartoons to Crucifixes: Current Controversies Concerning the Freedom of Religion and the Freedom of Expression Before the European Court of Human Rights, 26 J.L. & Religion 345, 355 (2010).

15. The goals have been summarized from a rough English translation on the website of the International League of Non-Religious and Atheists by Gallo Lorenze Lozzi, translator. Presentation of Unione degli Athei e degli Agnostici Razionalisti (UAAR), Italy. Int'L League of Non-Religious & Atheists, http://www.ibka.org/en/articles/ag02/uaar.html (last visited 06 25, 2012). See also the website for the Unione deglli Atei e degli Agnostici Razionalisti (Union of Atheists and Rational Agnostics) in Italian only: http://www.uaar.it/.

16. Bouchard Gerard & Taylor Charles, Building the Future: A Time for Reconciliation (Commission de Consultation sur les Pratiques d'Accommodement Reliées aux Différences Culturelles 2008).

17. Officiai Translation from original French:

Que l'Assemblée nationale réitère sa volonté de promouvoir la langue, l'histoire, la culture et les valeurs de la nation québécoise, favorise l'intégration de chacun à notre nation dans un esprit d'ouverture et de réciprocité et témoigne de son attachement à notre patrimoine religieux et historique représenté notamment par le crucifix de notre salon bleu et nos armoiries ornant nos institutions.

Then Premier Charest Jean said, “Réitérer la volonté de l'Assemblée de promouvoir la langue, l'histoire, la culture et les valeurs de la nation québécoise, de favoriser l'intégration de chacun et de témoigner de son attachement au patrimoine religieux et historique,” in the Québec Assemblée nationale. Journal des débats (Hansard) of the National Assembly. 38th legislature, 1st sess. (05 22, 2008).

18. Quoted in Québec Garde le Crucifix, Radio-Canada, 05 22, 2008, http://www.radio-canada.ca/nouvelles/National/2008/05/22/003-reax-BT-politique.shtml. Translated by Karine Henrie, original French: C'est notre histoire, on ne peut écrire l'histoire à l'envers, a-t-il dit. L'Église a joué un rôle important dans l'histoire du Québec et le crucifix est le symbole de cette histoire.

19. Woodhead Linda, “What Do You Get When You Spend Millions on Collaborative Research on Religion?” Paper Presented at the Society for the Scientific Study of Religion Annual Meeting (10 29, 2011).

20. A number of similar reports have been produced in other countries, including France, Rapport au president de la République: Commission de réflexion sur l'application du principe de laïcité dans la République, called the Stasi report after the commission chair; in Belgium, Les Assises de l'Interculturalité 2010; and in the United Kingdom The Future of Multi-Ethnic Britain, known as the Parekh report.

21. See Côté Pauline, Quebec and Reasonable Accommodation: Uses and Misuses of Public Consultation, in Religion and Diversity in Canada 41, 46 (Beaman Lori G. & Beyer Peter eds., Brill 2008); Lefebvre Solange, Between Law and Public Opinion: The Case of Quebec, in Religion and Diversity in Canada, supra, at 175,177–80.

22. This included the Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256 (Can.) and Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 (Can.) decisions, as well as decisions in favor of granting prayer space to Muslims. See Lefebvre, supra note 20, at 179.

23. Lefebvre Solange, Sanctuaires catholiques au Québec, 141 Archives de Sciences Sociales des Religions 33 (2008).

24. Roy Olivier, Holy Ignorance: When Religion and Culture Part Ways 67 (Schwartz Ros trans., Colum. Univ. Press 2010).

25. The idea of laïcité ouverte was introduced in Proulx Jean-Pierre, Et Al., Religion In Secular Schools: A New Perspective for Quebec, at vii (Ministère de l'éducation, Gouvernement du Québec 1999.)

26. Bouchard & Taylor, supra note 15, at 140.

27. Id. at 141.

28. Id. at 260.

29. Id. at 152. This reference to Duplessis raises an intriguing parallel between the circumstances of the institution of the crucifix on Italian classroom walls and the installation of the crucifix in the National Assembly. For many Québecers Duplessis is associated with a time in the history of Québec which saw a too-close association between the church and the state. Duplessis was the premier of Québec and was seen by some to work hand in hand with the church to oppress the people of Québec. Although comparing the Duplessis era with that of Mussolini in Italy is overstating the case, in the narrative of the Québec nation the Duplessis era has come to represent a similar oppressive time from which Québecers wish to distance themselves and are determined never to repeat. See Seljak David, Why the Quiet Revolution was “Quiet”: The Catholic Church's Reaction to the Secularization of Nationalism in Quebec After 1960, 62 Hist. Stud. 109 (1996); Baum Gregory, Catholicism and Secularization in Quebec, in Rethinking Church, State, and Modernity: Canada Between Europe and America 149 (Lyon David & Die Marguerite Van eds., Univ. Toronto Press 2000). See also Milot Micheline, When Religion Disturbs. The Debate Over Secularism in Quebec, 7 Our Diverse Cities 84 (2010). Milot makes the following comment about the crucifix:

Yet this crucifix is a recent addition to the premises of the Quebec National Assembly. It was put there in 1936 by the government of Maurice Duplessis. For decades, Quebeckers have referred to the Duplessis years as, from a political and religious standpoint, the “Great Darkness.” What an ironic twist to suddenly make “Duplessis' crucifix” a symbol of Quebec's heritage to which all citizens should show their attachment!

Id. at 86.

30. Bouchard & Taylor, supra note 15, at 152.

31. Id. at 153.

32. The Oratoire Saint-Joseph is a large Basilica on the side of Mont Royal. The location gained notoriety as a pilgrimage site due to the miraculous healings of Frère (now Saint) André Bessette at the turn of the last century. For more information on Montreal's Oratoire Saint-Joseph, see Saint Joseph's Oratory http://www.saint-joseph.org/en (last visited Oct. 13, 2012).

33. Côté Gaston, L'Érection de la croix du Mont Royal, 7 Mens 47 (2006); Ville de Montréal, http://ville.montreal.qc.ca/portal/page?_pageid=175,4878067&_dad=portal&_schema=PORTAL&nomPage=bt+parc_01 (last visited Oct. 13,2012).

34. The spatial aspects of religion are an important and often ignored dimension of the study of religion and society. For an exceptionally good analytical guide, see Knott Kim, The Location of Religion: A Spatial Analysis (Beacon Press 2005).

35. Bouchard & Taylor, supra note 15, at 152.

36. Minority here implies a certain reliance on standard measures of affiliation or devotion. It is difficult to find an accurate way to talk about the “devout” in Québec as the majority still affiliates with Roman Catholicism but supports only limited function for the church in the public sphere. To describe the group of people who call for the continued presence of religious rituals and symbols in the public sphere as a minority is not especially accurate, since there is no real way to determine what percentage they make up of the population of those who self identity as Roman Catholic.

37. Interestingly, as in the Italian situation, it is an atheist complainant who has been the driving force behind the objection to the presence of the crucifix and the prayers in the municipal context.

38. Quoted in Prayer Ban to be Appealed by Quebec Mayor, CBC News (02 16, 2011), http://www.cbc.ca/news/canada/montreal/story/2011/02/16/quebec-sageunay-mayor-religion.html.

39. Quoted in Bergeron Patrice, Quebec Appeals Court Will Hear Bid by Mayor who Wants Prayer Before Council, News1130 (03 29, 2011), http://www.news1130.com/news/national/article/204733.

40. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS 5, http://www.unhcr.org/refworld/docioV3ae6b3b04.html.

41. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

42. Charter of human rights and freedoms, RSQ, c C-12.

43. This is not to say that there is not valuable and important criticism and insight to be had from some of this literature. See especially Woodhead Linda, Five Concepts of Religion, 21 Int'L Rev. Soc. 121 (2011) for her clear discussion of the definitional problem.

44. Sullivan says “I use ‘protestant’ not in a narrow churchy sense, but rather loosely to describe a set of political ideas and cultural practices that emerged in early modern Europe in and after the Reformation; that is, I refer to ‘protestant,’ as opposed to ‘catholic,’ models of church/state relations.” Winnifred Fallers Sullivan, The Impossibility of Religious Freedom 78 (Princeton Univ. Press 2005).

45. von Stuckrad Kocku, Reflections on the Limits of Reflection: An Invitation to the Discursive Study of Religion, 22 Method & Theory Study Religion 156, 158–59 (2010).

46. Beckford James A., Social Theory And Religion (Cambridge Univ. Press 2003).

47. Id. at 7.

48. See Baumann Gerd, Contesting Culture: Discourses of Identity in Multi-Ethnic London (Cambridge Univ. Press 1996) for a complex review of the problems of culture in the specific context of one London community.

49. La ministre Christine St-Pierre accorde 18,6 M$ pour la restauration de 100 bâtiments religieux, Culture, Communication et Condition Feminine 2010, http://www.mcccf.gouv.qc.ca/index.php?id=2328&tx_ttnews[tt_news]=5622&cHash=l. Translated by Karine Henrie from original French:

Les édifices religieux sont, sans contredit, des joyaux de notre culture et des repères identitaires forts au cœur des villes et des villages. D'une grande valeur historique, architecturale et symbolique, les églises font partie intégrante du paysage québécois. Il est de notre responsabilité de poursuivre nos efforts afin d'assurer la pérennité de ces lieux de culte pour les générations présentes et futures.

50. Gunn Jeremy, Religion and Law in France: Secularism, Separation, and State Intervention, 57 Drake L. Rev. 949, 959 (2009).

51. Bouchard & Taylor, supra note 15, at 152.

52. Lautsi v. Italy, (2010) 50 E.H.R.R. 42, ¶ 35 [hereinafter Lautsi I].

53. Ole Rns & Linda Woodhead, A Sociology of Religious Emotion (Oxford Univ. Press 2010).

54. Id. at 69–70.

55. Id.

56. A similar strategy was used in the United States in Lynch v. Donnelly, 465 U.S. 668, 680 (1984), in which the Supreme Court found that a crèche was not really a religious symbol. Or, more specifically, that the overall effect of a crèche combined with other decorations in a public display set up for Christmas was not “religious” (but cultural). Id. More recently, an almost Lautsi-like reiteration occurred in oral arguments between Justice Antonin Scalia and American Civil Liberties Union Lawyer Peter J. Eliasberg, in the case of Salazar v. Buono, 130 S. Ct. 1803 (2010), on Oct. 7, 2009. In comments about a cross erected in the Mojave National Reserve to honor those who died in WWI, Justice Scalia noted that the cross is the most common symbol of the resting place of the dead and that it was wrong to assume “that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.” Transcript of Oral Argument at 39, Salazar v. Buono, 130 S. Ct. 1803 (2010) (No. 08-472). As I have argued elsewhere, Beaman Lori G., The Courts and the Definition of Religion: Preserving the Status Quo Through Exclusion, in Defining Religion: Investigating the Boundaries Between the Sacred and Secular 203, 210 (Greil Arthur L. & Bromley David G. eds., Elsevier Sci. 2003), this blurring of boundaries enables the exclusion of minority religions by majority religious groups. Winnifred Fallers Sullivan, The Impossibility of Religious Freedom 78 (Princeton Univ. Press 2005), argues that law (at least in the United States) can only frame religion in protestant terms. I have considered Sullivan's argument carefully in the Canadian context and argue that the tripartite religious history of Canada, which includes Roman Catholicism, Protestantism and First Nations Spiritualities, may mean that the Canadian legal system has a broader interpretation of religious freedom. See Beaman Lori G., The Myth of Pluralism, Diversity, and Vigor: The Constitutional Privilege of Protestantism in the United States and Canada, 42 J. Sci. Stud. Religion 311 (2003); Beaman Lori G., Defining Harm (UBC Press 2008); Beaman Lori G., Is Religious Freedom Impossible in Canada? 8 Law, Culture & Human. 266, 267 (2010).

57. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (Can.).

58. Id. at ¶ 96.

59. Id. at ¶ 97.

60. R. v. Edwards Books & Art Ltd. [1986] 2 S.C.R. 713.

61. Id at ¶ 97.

62. For detailed discussion of viewer-artifact/symbol interaction, see Morgan David, Visual Piety: A History and Theory of Popular Religious Images (Univ. Cal. Press 1999); Morgan David, The Sacred Gaze: Religious Visual Culture in Theory and Practice (Univ. Cal. Press 2005).

63. Lautsi II, 54 E.H.R.R. at ¶ 55.

64. Id. at ¶ 72.

65. Id. at ¶ 2.10 (Bonello, J., concurring).

66. Id. at ¶ 3.2 (Bonello, J., concurring).

67. Id. at ¶ 42. The intervening non-governmental organizations Zentralkomitee der deutschen katholiken, Semaines sociales de France and Associazioni cristiane lavoratori italiani submitted that:

they agreed with the Chamber that, whilst the crucifix had a plural meaning, it was primarily the central symbol of Christianity. They added, however, that they disagreed with its conclusion, and found it difficult to understand how the presence of crucifixes in classrooms could be “emotionally disturbing” for some pupils or hinder the development of their critical thinking.

Id. at ¶ 55.

68. Zylberberg v. Sudbury Board of Ed., 1988 CanLII 189 (ON CA).

69. Id. at 23-24.

70. They note: “To try to study religion without taking seriously its own scheme of signification, its sacred codes, its God(s) and scriptures, its legal, theological and aesthetic traditions is to adopt the narrow view that only immediate human relations can shape social action.” Riis & Woodhead, supra note 52, at 215.

71. Id. at 91.

72. Id.

73. I am careful here to be mindful of the statement of Riis & Woodhead, supra note 52, at 208 that “emotion is not a ‘thing’ but an embodied stance within the world.”

74. The importance of the individual register is beautifully illustrated by William E Connolly, Neuropolitics: Thinking, Culture, Speed (Univ. Minn. 2002). There Connolly draws on neuroscience, political philosophy and communication theory to construct a complex theory of reaction and interaction, describing neuropolitics as “the politics through which cultural life mixes into the composition of body/brain processes.” Id. at xiii. A more specific focus on the individual and reaction mixed with emotion is found in Gladwell Malcolm, Blink: The Power of Thinking Without Thinking (Little, Brown & Co. 2005) which may equate with Connolly's idea of “memory traces.” These ideas are considered at the group level by Hervieu-Léger Danièle, Religion as a Chain of Memory (Lee Simon trans., Rutgers Univ. Press 2000).

75. Lautsi II, 54 E.H.R.R. at 98-99 (Power, J., concurring).

76. Id. at ¶ 15 (quoting the Administrative Court decision). Lautsi I held differently. The Chamber found that, in the context of public education, crucifixes, which are impossible not to notice in classrooms, were necessarily perceived as an integral part of the school environment and could therefore be considered “powerful external symbols.” Lautsi I, 50 E.H.R.R. at ¶ 54.

77. Quoted in Bergeron, supra note 38.

78. Ogilvie Margaret H., And Then There Was One: Freedom of Religion in Canada—the Incredible Shrinking Concept, 10 Ecclesiastical L.J. 197 (2008).

79. Another variation on this argument is the frequent Christian response to atheism and to the diminished authority of Christianity in modern societies that morality is not possible without religion. See Sinnott-Armstrong Walter, Morality Without God? (Oxford Univ. Press 2009); Beit-Hallahmi Benjamin, Morality and Immorality Among the Irreligious, in 1 Atheism and Secularity: Issues, Concepts, and Definitions 113 (Zuckerman Phil ed., ABC-CLIO, LLC 2010).

80. Lautsi II, 54 E.H.R.R. at ¶ 15 (quoting the Administrative Court decision).

81. Orsi Robert, Is the Study of Lived Religion Irrelevant to the World We Live In? Special Presidential Plenary Address, Society for the Scientific Study of Religion, Salt Lake City, November 2, 2002, 42 J. For Sci. Study Religion 169, 173 (2003).

82. McGuire Meredith B., Lived Religion: Faith and Practice in Everyday Life (Oxford Univ. Press, 2008).

83. Jakobsen Janet R. & Pellegrini Ann, Love the Sin: Sexual Regulation and the Limits of Religious Tolerance (Beacon Press 2004).

84. Bellamy Richard, Rethinking Liberalism (Continuum 2005).

85. Martin David, Canada in Comparative Perspective, in Rethinking Church, State, and Modernity: Canada Between Europe and America 23 (Lyon David & Die Marguerite Van eds., Univ. Toronto Press 2000).

86. Beaman Lori G., Tolerance and Accommodation as Vestiges of Empire, in Secularism, the Secular State and Religious Diversity (Laliberté André, Bhargava Rajeev & Berman Bruce eds., UBC Press 2013, in press); Beaman, Defining Harm, supra note 55, at 321; Beaman, Law, Culture & Human, supra note 55, at 279.

87. Roy, supra note 23, at 65.

88. Id. at 67. Roy is one of a number of theorists who make this argument. Asad Talal, Formations of the Secular: Christianity, Islam, Modernity (Stan. Univ. Press 2003) also emphasizes the link between religion and the imagination of culture in Orientalism. Pippa Norris & Ronald Inglehart, Sacred and Secular: Religion and Politics Worldwide 17 (Cambridge Univ. Press 2004), state: “Even in highly secular societies, the historical legacy of given religions continues to shape worldviews and to define cultural zones.” Jakobsen & Pellegrini, supra note 81 also link the sacred and the secular. See also Eve Darian-Smith, Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law (Hart Publishers 2010) for an analysis of the reshaping of the religious landscape to a language of Judeo-Christianity.

89. For a detailed discussion and criticism of the separation of the religious from the secular in India, see Sikka Sonia, The Perils of Indian Secularism, 19 Constellations 2 288304 (2012).

90. Lautsi II, 54 E.H.R.R. at ¶ 15 (quoting the Administrative Court decision).

91. Id.

92. Bouchard & Taylor, supra note 15, at 152.

93. Sullivan Winnifred Fallers, Prison Religion: Faith-Based Reform and the Constitution (Princeton Univ. Press 2009).

94. The idea of disestablishment is analyzed, reasonably, from an American perspective in Sullivan's book. The language of disestablishment frames the discussion in ways that are often largely irrelevant to the international community, who may or may not have a formal establishment arrangement with churches, who may have legally established churches that are largely disestablished, or legal disestablishment with de facto established churches. It becomes debatable whether the framework invoked in the ‘disestablishment’ language has much analytical value given the complexity of the issues involved here.

95. Sullivan, supra note 91, at 2.

96. Id. at 11.

97. Sullivan argues that disestablishment may be anachronistic as a legal project. She argues that legal tools have been designed for a different kind of religion, one which is premodern, hierarchical and institutionalized. She concludes that “when religious authority resides in the individual, not in religious leaders and institutions, it is virtually unreachable by law.” Id. at 181. This reasoning is questionable in the Italian case, which still sees a high participation in institutional religion. But the issue is not disestablishment in Italy. The importance of Sullivan's argument in relation to this article is her observation about the transformation of the religious into the universal.

98. Lautsi II, 54 E.H.R.R. at ¶ 19 (quoting Art. 118 of Royal Decree no. 965).

99. Roy, supra note 23, at 111.

100. Conseil du statut de la femmes, la Laïcite Avis Affirmer, Un Pas de Plus Vers l'Egalite Reelle Entre Les Femmes et Les Hommes 128 (Québec, 2011). Translated by Karine Henrie from original French:

La laïcité ne naît pas naturellement au sein d'un État, elle se bâtit. Le Québec est à l'heure des choix.

Nous avons démontré que l'affirmation solennelle que l'État est areligieux est un exercice urgent à faire, absolument nécessaire, comme en témoignent les crises, les revendications citoyennes et les recours aux tribunaux, et qui doit être mené collectivement. On ne peut laisser les tribunaux—et la Commission des droits—définir chaque cas individuellement, en n'ayant que la protection des droits individuels enchâssés dans les chartes à interpréter. Ne pas agir, c'est continuer de s'avancer vers la ≪laïcité ouverte≫ aux violations des droits des femmes.

101. Lautsi II, 54 E.H.R.R. at ¶ 19.

102. Id. at ¶ 1.5 (Bonello, J., concurring).

103. Martin David, On Secularization: Towards a Revised General Theory 131 (Ashgate 2005).

104. Id. at 133. Martin makes an important observation about multiculturalism and the difficulty of sustaining it in the face of majority opposition to it. Id. at 132.

105. Benvenisti Eyal, Margin of Appreciation, Consensus and Universal Standards, 31 N.Y.U.J. Int'l L. & Pol. 843, 843–44 (1999).

106. Lautsi II, 54 E.H.R.R. at ¶ 68.

107. Id. at ¶ 70.

108. Id. at ¶ 76.

109. Andreescu Gabriel & Andreescu Liviu, The European Court of Human Rights' Lautsi Decision: Context, Contents, Consequences, 9 J. for Study Religions & Ideologies 47, 60 (2010).

110. Lautsi II, 54 E.H.R.R. at ¶ 47.

111. Taylor Both Charles, A Secular Age (Harv. Univ. Press 2007) and Anderson Benedict, Imagined Communities (rev. ed., Verso 2006) use the concept of imagined communities to discuss aspects of social solidarity. Anderson also notes the importance of the museum in the creation of the national imaginary. If we regard the preservation of “historical and cultural artifacts” such as churches, crucifixes and crosses in this light we can then see even more clearly their importance to the project of nation building and maintenance.

112. Charest, supra note 16.

113. I am grateful to Nacira Guénif-Souilamas for raising the possibility that the turn to culture regarding religious symbols could also be used as a resistance strategy for religious minorities. Although I do not share her optimism, the possibility of minority use of culture remains.

114. See Williams Rhys H. & Vashi Gira, Hijab and American Muslim Women: Creating the Space for Autonomous Selves, 68 Soc. Religion 269 (2007); Caitlin Downie, Renegotiating Islam: The Challenges and Coping Strategies of Immigrant Women. Unpublished honors paper, Dalhousie University, 2011. In her research with Muslim women Downie found that they used the separation of religion and culture as distancing strategies from practices that were negatively viewed, particularly by non-Muslim westerners.

115. Kurien Prema A., A Place at the Multicultural Table: The Development of an American Hinduism (Rutgers Univ. Press 2007).

116. von Stuckrad, supra note 44, at 159.

117. ROY, supra note 23, at 211. Roy makes this point in relation to his argument that religious markers become identity markers within a standardized range. Id. This point has been made by others in relation to the Christianization of Judaism in the United States. See Mart Michelle, The “Christianization” of Israel and Jews in 1950s America, 14 Religion & Am. Culture: J. Interpretation 109 (2004); Feldman Stephen M., Please Don't wish me Merry Christmas: A Critical History of the Separation of Church and State (N.Y. Univ. Press 1998); Sullivan, supra note 55.

118. Roy defines “otherness” as “foreignness in the sense of barbarity, weirdness, eccentricity or the unthinkable.” Roy, supra note 23, at 191.

119. Jasvir Singh v. France App. no. 25463/08, Eur. Ct. H.R. 2009 at p. 4. Translated by Karine Henrie from original French: Dans les écoles, les collèges et les lycées publics, le port de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse est interdit.

120. Interestingly we might assume that a young woman could wrap her head in a colorful piece of cloth for the sake of fashion, but it is the religious significance of the cloth that invokes the ban.

121. Lautsi II, 54 E.H.R.R. at ¶ 15 (quoting the Administrative Court decision).

122. Thanks to Linda Woodhead for pointing out that this is not always the case. In Eweida v British Airways Pic [2010] Ewca Civ 80, for example (now on its way to the European Court of Human Rights) a cross has been characterized as a cultural symbol and thus not required by an employee's religion. Culture in this case has worked against the protection of a Christian symbol. It is a matter of debate whether Europe is “Christian,” but certainly Lautsi II would suggest that it is. See Berger Peter L., Grace Davie & Effie Fokas, Religious America, Secular Europe?: A Theme and Variations (Ashgate 2008) for a careful consideration of this debate.

123. This position is made even more complicated by the fact that it is often religious groups themselves who engage in these sorts of analyses of belonging. This in turn often relates to orthodoxy or fundamentalism as well as the intertwining of culture and religion and the social imaginary of state leaders. In Turkey, and Tunisia, to name two examples, the hijab has been associated with a commitment to orthodoxy and a lack of modernity.

124. Woodhead Linda, The Muslim Veil Controversy and European Values, 97 Swedish Missiological Themes 89 (2009).

125. The secularization debate has been well mapped and I do not want to engage with it here, save to note that what the future looks like for the religiously engaged may be reflected in Heelas Paul, et al., The Spiritual Revolution: Why Religion is Giving Way to Spirituality (Blackwell 2005).

126. Thanks to Linda Woodhead for the observation that symbols are never just about symbols, but also about power and the upholding of particular class, gender, race and sexuality relations.

127. Bouchard & Taylor, supra note 15, at 152.

128. Riis & Woodhead, supra note 52.

* Canada Research Chair in the Contextualization of Religion in a Diverse Canada at the University of Ottawa, director of the Religion and Diversity Project. Thank you to the Social Science and Humanities Research Council of Canada who provided funding for this research. I would also like to thank Adele Reinhartz, who offered encouragement and inspiration during the writing process. Thank you also to Solange Lefebvre, Heather Shipley, Winnifred Sullivan, Louise Tardif, and Leo Van Arragon for reading and commenting on an earlier draft of the article. I am grateful for the comments and suggestions made by Linda Woodhead. Thank you to Morgan Hunter for her editorial assistance.

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Journal of Law and Religion
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  • EISSN: 2163-3088
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