In an essay contributed to Christianity, Democracy, and the Shadow of Constantine, Capodistrias Hammerli looks at and through the Lautsi case to expose the rift between Eastern and Western Europe. The case began when Mrs. Soile Lautsi filed suit against the Italian government for putting crucifixes on the walls of public schools. She claimed that the crucifixes violated the principle of laicite, which requires the state to maintain religious neutrality.
The Italian courts rejected her claim, but in 2009, the Chamber of the Second Section of the European Commission of Human Rights agreed with Lautsi, arguing that neutrality was necessary in order to advance the social good of pluralism: “The State’s duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the ways of expressing those convictions. In the context of teaching, neutrality should guarantee pluralism” (quoted, 33).
Ten nations of the Council of Europe wrote to object to the decision, and another ten made public declarations in favor of the Italian government. These twenty countries represent nearly half of the population of the European Union. Hammerli points out that many of these interventions came from post-Communist countries, of which many have a long history of strong ties with the Orthodox church. Eventually, in 2011, the Grand Chamber gave a final decision, in favor of the Italian government: The crucifixes could stay. Hammerli is interested in what this case shows about the different conceptions of church-state relations, and of democracy itself, in East and West, and interested too in the way that memory of Communism’s forced secularization affects Eastern European views on these matters.
Along the way, he makes the crucial point that the Second Section decision was a decision against the will of the majority of people of Italy, and even a large proportion of the citizens of the Europe as a whole. The Italian court claimed it was “motivated by the distinctive national characteristic expressed by the close relation between state and the people, and Catholicism, at the historical, traditional, cultural, and territorial level, as well as by the fact that Catholic values have always been deeply rooted in the feelings of the majority of the population” (quoted, 34). To decide against this tradition was to decide against the people and their heritage. It was to form law without attention to the habits and ways of the people governed by the law. Ironically, the complaint against the Italian government was framed in terms of “democracy,” understood as neutrality and equality, of religious expression in particular. But this form of democratic appeal trampled on the tradition of the demos it claimed to represent.
What is at stake in religious freedom cases is not the persistence of Christendom or the domination of Christianity over its rivals. What is at stake is the question of whether the state will be attuned to the history and habits of the people it rules or will instead operate by principles that have little or nothing to do with history or tradition or nation. What is at stake is whether or not Europe will become a collection of “nationless states.” In Hammerli’s words, “to say that states should be religiously neutral implies that they should be detached from the nation they govern. In order to be perfectly neutral, a state should become nationless, disconnected from its history and culture, supremely indifferent to the religious feelings of the majority of its own people.” A nationless state would enforce individual rights only. For many, this is precisely what democracy is, but Hammerli rightly asks: “if individual rights are permitted to overrule the will of the people, can the society still properly be called ‘democratic’” (42-3).
Assaults on religious freedom undermine democracy in the name of democracy.