Introduction
Conflicting tendencies have always characterized the relation between religion and democracy. Across generations, the major religious traditions have produced their own forms of extremism that have contradicted essential elements of constitutional democracies. Additionally, the connections between religious identity and authoritarian ideas have been so frequently replicated in the history of democracyFootnote 1 that the rule of law and the rule of God often appear to be an odd couple of sorts, and opposed in many respects.Footnote 2 At the same time, religion remains an integral part of democratic landscapes.Footnote 3 Religious organizations can act as agents of civic mobilization and networks of peaceable coexistence, thereby nurturing the civic skills required for democracy, such as cooperation, solidarity, accountability, consensus building, and public participation.Footnote 4
These diverging influences, far from being reduced, are even more accentuated in the current age of religious diversity and plurality, especially when combined with economic and political crises like the ones of the past two decades, including the 9/11 attacks and the subsequent war on terror, the 2007–2008 financial disaster, the 2009–2010 Arab Spring, the perennial turmoil in the Middle East and North Africa, and the ongoing COVID-19 global pandemic. Such crises tend to go hand in hand with other long-term issues, from immigration to religion-inspired terrorism, thus stirring a sense of fear and insecurity in many democratic states. This rising level of uncertainty often fuels anti-immigrant sentiments and suspicion toward some religious minorities: whether justified or not, these groups are considered not only as threats to political and social stability but also as undemocratic, if not unmodern, religions. For the same reasons, emergency scenarios complicate the equal application of the principle of secularism, which is fundamental to a functioning and pluralistic constitutional democracy. In a democratic state, secularism implies both the right of all persons to hold any religion or beliefs and the prohibition of discrimination based on religious or nonreligious affiliation.Footnote 5 Democracy thus protects minority rights, regardless of the party in power or the majority religion or belief in the state.Footnote 6
From these points of view, Italy represents an interesting case study of a state experiencing a form of religious pluralism that is new to it. Pluralism itself is not novel in the Italian context.Footnote 7 Various minority religions have long been part of the national scene and have often enjoyed a level of public consideration far out of proportion to their numerical constituency. Today in Italy, however, some religious organizations point to constitutional difficulties in light of the tradition of considering church-state relations only in terms of the Roman Catholic Church. In particular, this traditional method of understanding church-state relations has increasingly come to be seen in terms of “negative externalities”: while creating privileges for the Catholic Church and a few minority denominations, it produces unreasonable discrimination against all other religions.Footnote 8
In theory, the Italian method of state-church relations (also known as bilateralism) promotes rules that combine respect for general constitutional obligations and attention to specific religious claims. This method underscores the importance of religious denominations in society and, as such, seems suitable to govern religious diversity in a democratic and pluralistic state. However, the practical implementation of bilateralism is complicated by some political factors, including Parliament’s inability to implement a general law on religious freedom. Consequently, minority religions that do not have an understanding with the state (Article 8.3 of the Constitution) are still subjected to the 1929 law, no. 1159, on “admitted religions” (culti ammessi) which, having been approved during the Fascist regime, is not always congruent with the 1948 republican Constitution. Moreover, both the practice of state-church relations and the 1159/1929 law, combined with the highly discretionary powers granted to the government,Footnote 9 can lead to unreasonable and discriminatory distinctions between, on one hand, religions that benefit from bilateralism and, on the other hand, confessions that not only are excluded from this benefit but also are sometimes not even legally recognized as religions.
This is true of Muslim communities, which are often considered incapable of embracing democratic prerogatives,Footnote 10 including human rights and the principle of religion-state separation.Footnote 11 This opinion is also supported by references to the relations between some Islamic organizations in Italy and the governments of Muslim-majority countries in the Middle East and North Africa: for example, some Muslim organizations in Italy are funded by these governments.Footnote 12 Furthermore, in the context of recent problems of immigration and international terrorism, Islamic organizations are viewed with much more suspicion by some prominent political actors and parts of the Italian populace.Footnote 13 All of this describes how endogenous and exogenous political issues may muddle the interpretation of Italy’s constitutional rights, including those related to the principle of secularism, which implies the right of any religious groups to be equally free before the law.
In what follows, I focus on the system of relationships between the state and religions in Italy. While creating privileges for the Catholic Church and a few minority denominations, this system produces unreasonable discriminations against all other religions. This situation is even more evident for conspicuous religious groups, like Muslim ones, whose legal status is still regulated under more generic laws governing recognized and unrecognized associations. Islam also has become the discursive symbol of Italy’s current religious pluralism and tends to call attention to sensitive problems like immigration and religion-inspired terrorism. Looking at the example of Islam helps in analyzing how urgent domestic and external causes complicate the implementation of the Constitution, which includes the rights of all individuals and all religious denominations to be equal and equally free before the law without unreasonable distinctions—that is, without discrimination.
Relations between State and Religions in Italy: From Legal Benefits to Unreasonable Distinctions
Article 7 of the Italian Constitution establishes the mutual independence and sovereignty of both the state and the Roman Catholic Church. Less strongly, this principle is also affirmed in Article 8.2, which recognizes the right to self-organization for minority religions, defined as “denominations other than Catholicism” (confessioni diverse dalla Cattolica). At the same time, Articles 7.2 and 8.3 of the Constitution regulate state-church relations. Based on what scholars typically refer to as the bilateralism method (metodo della bilateralità pattizia), these articles promote legislative rules that combine respect for general constitutional obligations and attention to specific religious claims.Footnote 14
More specifically, Article 7.2 declares that the Lateran Pact of 1929Footnote 15 governs relations between the state and the Catholic Church. However, this article also affirms that any change to that pact, when accepted by the Holy See and the state, does not require constitutional amendment.Footnote 16 Both the Lateran Pact and Article 7.2 are thus seen as legal prototypes of the bilateralism principle, which is also incorporated into Article 8.3 of the Constitution.Footnote 17 Accordingly, only legislative acts can regulate relations between minority religions and the state.Footnote 18 Nevertheless, these acts must be based on intese, which can be translated as “understandings” between the state and confessions other than Catholicism.Footnote 19
In other words, once the Italian government has signed an agreement with the Catholic Church or an understanding with a minority religion, the respective documents need to be approved by specific legislative acts of the Parliament. Organizations without intese are in another category; they are subject to the 1159/1929 law on “admitted religions.”Footnote 20 Approved during the Fascist regime, this law is not always congruent with current constitutional provisions.Footnote 21 The 1929 law is still in force, however, as the Parliament has not been able to replace it with more constitutionally aligned legislation.Footnote 22
On February 18, 1984, the Holy See signed its current agreement with the state. Also known as the Villa Madama Accords, this legal document is similar to an international treaty and replaced the 1929 Lateran Pact, except for one part. In 1984, the Italian government also signed the first intesa with the Waldensian church. Since then, the government has signed at least fifteen different intese, thirteen of which have been approved by the Parliament to date.Footnote 23 In 1985, the Villa Madama Accords were ratified by the Parliament with the 121/1985 law, which can be amended only on the basis of a new agreement between the state and the Catholic Church.Footnote 24
This method of bilateral legislation, in affirming significant legal benefits for religious organizations, underscores the importance of the Catholic Church and other minority religions in society.Footnote 25 As such, the method seems suitable to govern the religious diversity in the framework of a democratic, pluralistic legal system. This method is even more relevant in light of the principle of laicità (secularism). Although laicità is not expressly enshrined in the 1948 Constitution, this has not prevented the Constitutional Court from specifying that, on the basis of a series of constitutional provisions,Footnote 26 secularism is one of the supreme principles (principi supremi)Footnote 27 of the Italian legal order.Footnote 28 Laicità does not imply indifference toward religions but acknowledges the special status of denominational religions while also affirming the impartiality of the state.Footnote 29 While recognizing the separation of state and religion, the principle of secularism takes a positive attitude toward confessions,Footnote 30 whose importance is precisely delineated through the so-called favor religionis (Articles 7, 8, and 20 of the Constitution),Footnote 31 which is strictly connected with the method of bilateral legislation.Footnote 32
It is important to note, however, that since 1984 the practical implementation of relations between the state and minority religions has been characterized by “copy-and-paste” production of law. As a result, all intese now in force have a very similar content. Even though the legal effects of the intese are quite different from those of the Villa Madama Accords, all intese more or less replicates matters from these Accords, at least concerning freedom of religion, spiritual assistance in hospital and prisons, religious teaching in schools, legal capacity of religious institutions, religious ministers, marriages, taxation, state funding to religions, and so on. Thus, the intese now in force have established a de facto common legislation of sorts.Footnote 33 This legislation refers exclusively to all religious denominations that have an intesa with the state. All other minority religions remain subject to the 1159/1929 law.
Moreover, there is no law outlining the procedure for implementing Article 8.3 of the Constitution. In practice, this means that the decision on whether to start negotiations to sign intese is a matter for the Italian government. Under the 1159/1929 law on admitted religions, the government—particularly the Ministry of the Interior—also plays a significant and unique role in determining whether an organization can be legally recognized as a religious denomination. Legal recognition under the 1159/1929 law is the first, although not decisive, step toward achieving an intesa.
Hence, the discretionary power of the government can become discriminatory between religions with intese and those without.Footnote 34 Furthermore, based on the government’s attention and support, the bilateralism method leads many minority religions to consider the state-church relation not only as an opportunity to exercise constitutional prerogatives but also, and above all, as an instrument of public legitimacy. This is even more evident in reference to conspicuous religious groups, like Islamic ones, whose legal status is still regulated under more generic laws governing recognized and unrecognized associations.Footnote 35 These groups are not only excluded from the benefits of intese but also impeded from being legally recognized under the 1159/1929 law on admitted religions.Footnote 36
The current legal framework does not prevent legal recognition of Muslim communities. The most important obstacle in this regard is the influence of politics and the predominant (political) role of the government. This influence means that the bilateral state-church legislation functions in a way contrary to fundamental rights and freedoms, including those related to both favor libertatis (Articles 2, 3, and 19) and favor religionis (Articles 7, 8, and 20)Footnote 37 of the Constitution—which not by chance but rather by necessity are integral parts of the supreme principle of secularism.Footnote 38 Indeed, the Constitution recognizes all persons as equal before the law and entitled to freely profess, practice, and propagate religion in any form, individually or with others (favor libertatis). The Constitution also guarantees to all religious denominations and associated organizations equal freedom before the law, without discriminations on the basis of their religious nature or aims (favor religionis).
This point of discussion becomes more pertinent when in the context of the jurisprudence of the European Court of Human Rights, which has held that the European Convention on Human Rights does not require a member state to create a particular legal framework in order to grant religious communities a special status. Yet a state that has created such a status through specific bilateral state-church legislation must comply with its duty of neutrality and impartiality. In particular, the state should ensure that any group has a fair opportunity to apply for special status, and that the criteria established are in accordance with the principles of proportionality and nondiscrimination.Footnote 39 This requirement is even more relevant when referring to Article 117.1 of the Italian Constitution, which provides that legislative (state and regional) powers shall be “in compliance with the constraints deriving from EU legislation and international obligations,” including those referring to the European Convention on Human Rights.Footnote 40
The European Convention on Human Rights leaves to each contracting state the task of securing the rights and liberties it enshrines. By reason of their direct and continuous contact with the populace of their countries, state authorities are in a better position than the European Court of Human Rights to opine on the exact content of those rights and freedoms as well as on the “necessity” of “restrictions” on them. This is especially the case for the individual and collective aspects relating to the right to freedom of religion (Article 9 of the European Convention on Human Rights). Here the machinery of protection established by the European Convention on Human Rights is subsidiary to the national systems.Footnote 41 This means that member states have an obligation to secure the rights within their domestic sphere before they are brought before the European Court of Human Rights. The principle of subsidiarity is often connected with the balancing principle and a proportionality test,Footnote 42 which must be conducted in order to check whether the legal restrictions imposed at the national level on rights and freedoms are proportionate and reasonable.Footnote 43 The outcomes of the test also depend on the European consensus standard,Footnote 44 which is a generic label used to describe the inquiry of the European Court of Human Rights into the existence or nonexistence of a common ground, mostly in the law and practice of the member states. The principle of subsidiarity has given this standard a key role in the application of margin of appreciation—the space for manoeuver that the European Court of Human Rights is willing to grant national authorities in fulfilling their obligations under the European Convention on Human Rights, including those related to freedom of religion. The main argument is that, because there is no European consensus on the issue, national authorities have a margin of appreciation in interfering with the rights enshrined in the Convention, while the European Court of Human Rights is required to consider whether domestic interferences are reasonable and necessary in a democratic society.Footnote 45
The rules and principles of the European Convention on Human Rights have already called into question some aspects of the 1984 Villa Madama Accords regulating the relations between the Catholic Church and the Italian state. The most remarkable examples are the European Court of Human Rights’s decisions of Pellegrini v. Italy and Lombardi Vallauri v. Italy, delivered respectively on July 20, 2001,Footnote 46 and October 20, 2009.Footnote 47 This jurisprudence is important because it marks the point of rupture between the historical system of relationship between the Catholic Church and the Italian state, which impaired the very substance of the some fundamental rights provided by the European Convention, such as those in Article 6.Footnote 48
All of this means that in Italy, the obligations stemming from the European Convention on Human Rights cannot result in a protection of fundamental rights inferior to those ensured by the jurisprudence of the European Court of Human Rights,Footnote 49 and that the violation of European Convention on Human Rights’s rules and principles may also result in a violation of Article 117.1 of the Italian Constitution.Footnote 50
For these reasons, the way in which the government and the Parliament have used the bilateral legislation could conflict not only with Articles 2, 3, 8, 19, and 20 but also with Article 117.1 of the Constitution. More specifically, in the light of both Italy’s Constitution and the European Convention on Human Rights, the benefits of bilateralism could be viewed as “negative externalities”: these benefits, while creating privileges for the Catholic Church and for a few minority denominations, produce unreasonable discriminations against all other religions, including Islam, which is now the largest religion in Italy after Catholicism.Footnote 51
In fact, under current legislative and governmental practice, the method of bilateral legislation ends up having an impact on the rules and principles of both the Constitution and the European Convention on Human Rights, including those pertaining both to the duty of neutrality and impartiality and to the right of minorities to be equal and equally free before the law. The negative externalities are such that the implementation of these rules and principles is impeded by unreasonable distinctions, the origins of which lie in long-standing political tendencies.
Relations between Islam and Italy’s Democracy
Under the Italian Constitution, all individuals and communities with religious aims are equal and equally free before the law. They can operate without authorization or prior registration. The only limit is based on the protection of public order and common decency. This means that, under the 1948 Constitution, fundamental rights, including the right to religious freedom, are not absolute. As the Constitutional Court has stated, there is no doubt that the practice of religion, where it contrasts with public morality, falls outside constitutional protection; it is equally clear that, if the members of a denomination organize themselves in a way that is incompatible with the state’s legal order, they cannot invoke the protection of the Constitution. All constitutionally protected rights are subject to necessary balancing to ensure a unified and not fragmentary protection of all constitutional interests, in such a way that none of these rights enjoys unlimited protection.Footnote 52 Thus, among the constitutional interests that must be adequately considered in protecting the freedom of religion are those concerning safety, public order, and peaceful coexistence.Footnote 53
In light of these considerations, Muslims have in theory the right to profess freely and propagate their religion in any form, including that of religious denomination.Footnote 54 In practice, however, apart from the Islamic Cultural Centre of Italy,Footnote 55 the vast majority of Muslim groups constitute themselves as unrecognized associations with a very weak legal capacity.Footnote 56 Through registration at the local prefecture, Muslim organizations can also choose the form of recognized associations that have legal personality. But these associations are not comparable to religious denominations with intese under Article 8.3 of the Constitution.Footnote 57 Moreover, Islamic communities are normally prevented from being legally recognized even under the 1159/1929 law on admitted religions.Footnote 58 Hence, some Muslims groups have sought to bypass this law, encouraging forms of cooperation with the government in order to sign an intesa. Footnote 59
In 1990, two years after its establishment, the Union of Islamic Communities and Organizations in Italy publicly stated its intention to issue a draft understanding (intesa) and send it to the government. Similar attempts have been made by other groups, such as the Association of Italian Muslims (1994) and the Islamic Italian Community (1996).Footnote 60 Yet this approach has not been followed by public authorities, who have most often opted for informal mechanisms over Article 8.3 of the Constitution or the 1159/1929 law.Footnote 61
For example, in 2005 the Minister of the Interior established the Council for Islam in Italy (Consulta per l’Islam italiano),Footnote 62 which supplied documentsFootnote 63 aimed at both reaffirming the “values” of the Italian Constitution and encouraging the creation of an Italian federation of Islamic groups.Footnote 64 Three years later, this council issued the Carta dei valori della cittadinanza e dell’integrazione (Charter of Values for Citizenship and Integration), conceived as the basis for a future understanding between the state and Islam(s);Footnote 65 the Scientific Committee with the same composition as the council was responsible for disseminating and promoting the content of the charter within both public authorities and the Islamic community in Italy.Footnote 66
In 2010, the Minister of the Interior also established the Comitato per l’Islam Italiano (Committee for Islam in Italy), which was made up of nineteen members, including not only Muslim representatives but also non-Muslim academic experts on Islam and even anti-Muslim prominent figures in journalism: the composition of the committee was intended to correct the vague attempt of representativeness of the previous council.
In 2015, it was the turn of another body, called the Council for the Relations between Italy and Islam, consisting of university professors and experts. This council set up a common agenda with representatives of the major national Muslim associations: the Islamic Cultural Centre of Italy, the Union of Islamic Communities and Organizations of Italy, the Italian Islamic Religious Community, the Union of Muslim Albanians in Italy, the Association of Muslim Women in Italy, the Sheikh Ahmadou Bamba Association, the Association of Somali Mothers and Children, the Islamic Association of Imams and Religious Leaders, and the Pakistani Islamic Association “Muhammadiah.” In 2016, the council issued the National Pact for an Italian Islam Expression of an Open Community.
This pact has three parts. The first part refers to the constitutional rules concerning religious freedom. The second and third contain two “decalogues” calling on representatives of Muslim communities and the Ministry of the Interior to support the establishment of an Italian federation of Islamic communities, which, among other things, should help to prevent and oppose religion-inspired violent radicalization. Most important, the pact aimed to begin the process of legal recognition of Muslim communities, which is the preliminary condition to start negotiations related to Article 8.3 of the Constitution. The pact also underscores the necessity to “train imams and religious leaders who can act as effective mediators to ensure full implementation of the civil principles of coexistence, state secularism, legality, and equality of rights between men and women.” Finally, the pact supports Muslim organizations that ensure the utmost transparency in funding they receive from Italy or abroad and that deliver the Friday sermons in Italian.Footnote 67
The content of all these documents helps to gain a better appreciation of how the Ministry of the Interior is trying to create administrative channels of communication that support a better collaboration between the state and Muslim groups. Similar approaches have been followed by other branches of the public administration, as demonstrated at local levels by consultative forums with representatives of Muslim communities and experts in religion.Footnote 68
More significantly, in recent years, mini-understandings (mini intese) have been signed between national representatives of the public sector and minority religions, including Muslim ones.Footnote 69 Thus, following the example of the mini-understandings between the Italian Department of Penitentiary Administration and the Jehovah’s Witnesses and Protestant churches, on November 5, 2015, the Department of Penitentiary Administration and the Union of Islamic Communities and Organizations in Italy signed a protocol allowing Muslim religious ministers to enter prisons; this protocol was renewed on January 8, 2020, and, in October of the same year, extended to the Italian Islamic Conference.Footnote 70
Other initiatives of this kind have been taken during the global emergency of the COVID-19 pandemic. Attention has focused on the protocol concerning the resumption of public Masses, which was first signed on May 7, 2020, by the president of the Council of Ministers (Giuseppe Conte), the minister of the interior (Luciana Lamorgese), and the president of the Italian Episcopal Conference (Cardinal Gualtiero Bassetti).Footnote 71 A few days later, very similar—“copy-and-paste”—documents were signed by other religious representatives, including those representing groups without intese or even without legal recognition as religions, as is the case of Muslim communities.Footnote 72
These protocols have nothing to do with the bilateralism method, given that they fall under neither Article 7.2 nor Article 8.3 of the Constitution. On the contrary, the protocols are part of the unilateral law that regulates public administrative procedure, according to which associations or private committees (that have concrete interest for the defense of legally important situations and that could be prejudiced by the measure taken by public authorities) have the right to intervene during rule-making, administrative proceedings.Footnote 73 The administrative nature of the 2020 protocols is also confirmed by the Comitato Tecnico Scientifico (Technical Scientific Committee),Footnote 74 which approved the documents before going to the state authorities and the religious representatives for their signature.Footnote 75
All of this also explains why, in December 2020, Minister Lamorgese appointed the Council for the Relations between the State and Islam in Italy. This was not only to favor a better implementation of the 2017 national pact but also to support a process leading to more effective and formal recognition of Muslim communities within the Italian legal system.Footnote 76
The Influence of Immigration Issues
Changes within Italy’s religious landscape are due not only to Islamic groups.Footnote 77 Given the peculiarity of Islam, however—especially when compared with Jewish and Christian traditions—Muslim communities have become the discursive symbol of the country’s current plurality and diversity.Footnote 78 This focus tends to highlight sensitive problems like immigration and religion-inspired terrorism that, rightly or wrongly, are often correlated to religion.Footnote 79
It is interesting to note that many legislative acts deal with immigration. None of them, however, contains explicit reference to the cultural and religious impact of Muslim immigrants, which is perhaps indicative of the “deafening silence” for which these laws are notable.Footnote 80 In fact, when considering the larger political context and the media influence, one can appreciate how these legal documents are the result of the impact of the social alarm generated by the presence of immigrants, grossly associated with both an increase in crime rates and the number of foreign citizens residing in the country.Footnote 81 To a significant extent, the inflow of migrants to Italy has been represented as a threat to national security and a menace to Italian identity and national values, while critics blast the commitment to save migrants with what is called an “Islamic pedigree”—especially while disregarding persecution of Christians in remote countries—as an act against Italy, if not Western civilization as a whole.Footnote 82
This attitude is even more evident in view of the fact that in the past two decades the debate on Islam has been marked by violence, politically exploited, and covered extensively by the media,Footnote 83 even though the presence of Muslims and Islamic groups in Italy is not as significant as it is in other European states.Footnote 84 For example, the discussion about places of Islamic worship, namely mosques and minarets, is vividly present in the Italian media, urban laws,Footnote 85 and judicial disputes,Footnote 86 even though few mosques and no minarets have been built in the country.Footnote 87 In some local contexts, genital mutilation of girls has been described as a health emergency, long before concrete and significant cases have been recorded and investigated by competent authorities. The use of hijabs is fiercely debated even though few women wear them in Italian cities. The debate about full-face veils (niqab and burqa) has led to proposals to ban them in schools, even though no pupils have worn such veils to date. Some 60 per cent of the population believes that incoming refugees increase the likelihood of terrorism in the country,Footnote 88 even though Italy has remained largely unscathed by deadly Islamist attacks.Footnote 89
All of these issues are in effect imported from other Western democracies, where the presence of Islam has been more long-standing and influential than in Italy.Footnote 90 Together with the climate of fear and insecurity,Footnote 91 these issues have in any case produced epistemological obstacles upon which media, politicians, and public actors tend to consider Islam as something other than a “religion.”Footnote 92 This is because Muslim communities do not align as thoroughly as required with the traditional category of religious belief, as defined during the history of relations between the Italian state and the church. Even if Muslim groups pass the “denomination test” to be deemed religions, they must prove that they satisfy the requirements of national law and tradition. This makes the collaboration and interaction between the state legal system and Islam very difficult.Footnote 93
In other words, Islam and its related groups are often suspected of being potentially undemocratic religions that, for instance, do not accept the separation of church and state and, further, drive believers to illicit practices and conducts. As such, these communities are constantly subject to at least two kinds of tests: the test of being a religion under Article 8 of the Constitution, and the test of being a religious organization that is compatible with Italy’s constitutional democracy. It should not be forgotten that this happens at the same time that Italian political rhetoric increasingly suggests combining security policies, economic strategies, and immigration concerns with religion-orientated values of democracy and popular sovereignty, reinforcing the idea that Muslims are “the others.” Evidence of this phenomenon can be seen when considering other problematic issues, such as those related to religion-inspired extremism, upon which Islam and the related groups are often judged as a potential war-like religion that pushes believers into the spiral of violent radicalization, if not terrorism.
The Influence of Religion-Inspired Terrorism
The vast majority of Western democracies usually refer to various forms of religion-inspired extremism as jihadist terrorism. Footnote 94 This kind of terrorism involves groups of persons who, allegedly, recruit, indoctrinate, finance, or facilitate individuals traveling to join ISIS, al-Qaeda, or other radical movements in the Middle East and North Africa. Cells preparing attacks in the West have also been taken into account by legislators, judicial proceedings, and police forces. Despite vast data and decades of relevant experience in this field, however, there is no clear comprehension of the phenomenon. Particularly, there is no consensus on the relation between jihadist terrorism and Islam: in this matter, it is very difficult to distinguish what is real from what is only a perception of reality.Footnote 95
In any case, states tend to emphasize that the prevention of jihadist terrorism implies additional and extraordinary legal measures under which, for example, even the dissemination of messages or images, whether online or offline, may be considered part of terrorist activities and therefore legally punishable.Footnote 96 This approach reflects many provisions of state criminal codes, including the Italian one. Several articles of Italy’s penal codeFootnote 97 have entered into force after attacks or planned attacks by terrorist groups in the West since 9/11.Footnote 98 In order to prevent terrorist attacks, these rules give judicial courts and security forces considerable powers, which many times justify significant restrictions on the fundamental freedoms, especially when referring to Muslims and Islamic communities. These restrictions, in turn, reinforce and reinvigorate public prejudices toward Islam.Footnote 99
Given its long and intense history of struggle against both domestic terrorism (for example, the so-called anni di piombo, or years of lead in the 1970s) and criminal organizations (mafia, ’ndrangheta, and camorra),Footnote 100 Italy has developed a highly efficient system of preventive measures: a system that, after the Italian Parliament approved the 2015 antiterrorism decree,Footnote 101 can also be applied to prevent current forms of international terrorism, including religion-inspired ones.Footnote 102
In particular, the preventive measures include the mechanisms and procedures of the antimafia code,Footnote 103 whose application is based on “symptoms of social dangerousness” (indizi di pericolosità sociale). In cases like these, judicial authorities can authorize preventive measures not just when persons have committed a crime but also when there is reasonable evidence to consider them “socially dangerous” (socialmente pericolosi). Specifically, judicial authority can order dangerous people to maintain lawful conduct, not to give cause for suspicion, not to associate with persons convicted of criminal offences or subject to preventive measures, not to own or carry firearms, not to enter bars or nightclubs, not to take part in religious meetings, and not to use telephones and the internet without specific authorization. If necessary, these measures may be combined either with the prohibition of residence in some cities (divieto di soggiorno) or, in the case of particularly dangerous persons (persona di particolare pericolosità), with an order for compulsory residence in a specified municipality (obbligo di soggiorno in un determinato comune). The violation of these conditions is punishable by criminal laws.Footnote 104
As some relatively recent experiences have demonstrated, on the basis of Article 8 of the anti-mafia code regulating atypical preventive measures (misure atipiche di prevenzione), judicial authority can order a person to attend a deradicalization program. This program can be elaborated in collaboration with public and private institutions and implemented under the control of the court, which also guarantees that individuals’ freedom of religion and the state’s principle of secularism will be respected.Footnote 105
While both penal laws and preventive measures may diminish the probability of terrorist attacks, these provisions restrict fundamental rights. In particular, due to the nature of current forms of terrorism, these provisions tend to limit the right of Muslims and Islamic groups to practice their faith openly.Footnote 106 Concerns about terrorism also explain the debate on the boundaries of freedom of expression, especially when related to hate speech, which may involve Muslim groups both as perpetrators and as victims.Footnote 107 In this way, the state’s efforts to prevent religion-inspired terrorism intermingle not only with human rights and public orderFootnote 108 but also with the securitization of religious freedom, under which sometimes the right to freedom of religion of Muslims and related organizations is subordinated to security concerns.Footnote 109 That intermingling, in turn, helps one to understand how immigration emergencies and the prevention of international terrorism could have an impact on the interpretation of constitutional rules, including those governing relations between the state and Islam.Footnote 110 The 2016 decision (no. 52) of the Italian Constitutional Court is a clear example.Footnote 111
A Changing and Unpredictable Reality
The 52/2016 decision concerned the request of the Italian Union of Atheists and Rationalist Agnostics, also known as UAAR, to start negotiations with the government to sign an intesa under Article 8.3 of the Constitution. The Constitutional Court held that this article is no longer tied to the right of all religions to be equally free before the law.Footnote 112 The real function and meaning of Article 8.3 consists in its extension of the bilateralism method from the Catholic Church to non-Catholic religions. This is possible where that method reflects the common intention of both the minority religion and the government not only to sign an intesa but also to initiate negotiations under Article 8.3.Footnote 113
The Court also affirmed that the legal instrument of intese does not involve the right to profess religious belief. This right, they clarified, is protected overall by other provisions,Footnote 114 including those related to Article 19, in conjunction with Article 8.1, of the Constitution. These provisions recognize all persons as free and equal before the law and entitled to freely practice and propagate religion in any form, individually or with others.Footnote 115 Concerning the bilateralism method, the Court stated that the government holds a broad margin of political discretion in the matter. This implies the power to legally recognize a group as a religious denomination, as well as the power to assess whether it is appropriate to launch negotiations with a particular association and, upon conclusion thereof, sign an intesa. In this case, the government may be held responsible before the Parliament but not before judicial courts. In other words, the government’s decision has only political (not legal) implications and, as such, is not justiciable—meaning that the decision is not subject to the right to a fair trial.Footnote 116
It is important to note that the Constitutional Court supported the 52/2016 judgment with a significant obiter dictum, underscoring
the changing and unpredictable reality of national and international political relations, which may lead the government to conclude that it is not appropriate to allow an association that requests it [an intesa] to launch negotiations. When confronted with this considerable variety of situations, which by definition does not lend itself well to classification, the government is vested with a broad discretion, the only limit to which may be found in principles of constitutional law, which could induce it to refrain from granting even the implicit de facto “legitimizing” effect that the association could obtain from the mere launch of negotiations. Due to the reasons that justify them, choices of this type cannot be subject to review by the courts.Footnote 117
Strangely enough, this dictum has nothing to do with UAAR. In fact, it has to do with specific and conspicuous groups that in the future will seek to launch negotiation under Article 8.3 of the Constitution.
The obiter dictum supports the idea that the legal implication of the relations between state and minority religions should be described in light of the reality that is changing in unpredictable ways. That is because—as the Constitutional Court seems to affirm—this reality is affected by ongoing emergencies, from immigration to international terrorism. In turn, these emergencies are related to both religion and national contexts where there is no separation of state and religion. This explains the Constitutional Court’s reference to the “national and international political relations, which may lead the government to conclude that it is not appropriate to allow an association that asks it to launch negotiations.”
In sum, the Constitutional Court, while deciding about the request of the UAAR to start negotiation under Article 8.3 of the Constitution, intended to deal with similar requests put forward by Muslim groups. The fact that the Court did not explicitly mention Islam is very significant. This case, too (the 52/2016 constitutional decision), is notable for its silence.
Conclusion
In constitutional democracies, religion establishes itself as a complex subject involving belief, behavior, and belonging.Footnote 118 This complexity reflects a conception of religious freedom that, in conjunction with the principle of equality, is rooted not in the quest for uniformity but rather in the recognition of diversity and plurality. Here the conceptual boundary of democracy expands to such an extent that it includes not only the self-determination of the individual with regard to religion but also the protection of religious identity through which people share lifestyles and collective worship. For these reasons, constitutional democracies, while underscoring the universality of human rights discourse, have to deal with religious organizations. They have to do so in such a way that the presence of major religions does not infringe not only upon the principle of nondiscrimination against those who do not adhere to them, but also upon the right of all (theistic, nontheistic, and atheistic) minority groups to be equally free before the law.
Freedom of religion is not limited in its application to large religions, nor is the principle of equality limited to religions with institutional characteristics or practices analogous to traditional views. However, the real or perceived concerns related to the current emergencies, from immigration to terrorism, lead to suggestions that some aspects of this freedom should be sacrificed for better security. That sacrifice would complicate the implementation of constitutional rules surrounding religious issues, including state-church relations, which in some contexts are still framed with regard to traditional denominations.
An illustrative example of the challenge comes from Italy. In particular, the example resides in the very historical forms of the bilateral legislative method for determining relations between the state and religious confessions, a method that does not fit in easily with today’s religious landscape. This method seems to be trapped in the twentieth century, in old ways of governing religious pluralism strictly connected with the traditions of the Catholic Church and a small number of minority confessions. Because the Italian Parliament has not been able to implement generally applicable law on religious freedom, this bilateralism method must coexist with both the 1159/1929 law on admitted religions and the discretionary power of the government, under which the system of state-church bilateral legislation is characterized by a practice of copy-and-paste understandings. The bilateralism method, while granting Catholicism and a few other religions access to important state benefits, thus prevents wider implementation of constitutional rights that recognize all individuals and all denominations as equal and equally free before the law. This restriction is even more evident when referring to Muslims and Islamic groups, whose relation with the Italian legal order is now strongly influenced by other emergency-related issues, such as immigration and religion-inspired terrorism.
For many years, a sort of cold peace has marked the relationship between the Italian state and Islam. Under the pressure of domestic and external political factors, this peace is now not much more than an armistice. Far from supporting the pillars of constitutional democracies, this armistice seems to be dictated by unreasonable distinctions, reciprocal suspicion, rampant insecurity, and emotional and irrational perceptions.
Acknowledgments
I thank Professor Nicola Colaianni for his thoughtful and detailed comments and for always inspiring me to be better. I thank Marco Piotti for his help and for his long-standing friendship. I dedicate this article to the memory of Michele Sampaolo: he was simply an inspiration, exuding warmth and humility with a heart as big as his culture.
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