A Brief Introduction to the Religious Symbols Debate in Italy and the United States
In Western democracies the issue of religious symbols has recently become the testing ground of the difficult balance between the principles of State secularism and religious freedom.
In the USA, as in European countries, adherence to a secular State model implies the exclusion of religion from the public field and its restriction within the private sphere. This trend is emphasized by the self-assertion of new religious groups: the need for their integration in the USA, as in other systems that present themselves as secular, requires the identification of the most suitable means to respond to the demands of religious pluralism. All this means an evolution of the very idea of secularism, and a national identity connected with the symbols of the Judaeo-Christian tradition is no longer acceptable.
Religious displays in public spaces are not fully coherent with the principle of equality of all citizens regardless of their religion; however, the principle of ‘reasonable’ equality requires the specific recognition of exceptions to civil law norms in order to favour religious freedom, whatever the juridical system is.
The question, then, is whether a State should adopt an attitude of strict neutrality towards demands for religious freedom, erecting that impenetrable wall of separation between the State and the Churches that is constitutionally required in the USA; or whether the emphasis should be on removing the burdens connected with the exercise of religious freedom, guaranteeing a reasonable accommodation, establishing its extent, and singling out the most suitable instruments.
Religious Symbols in the USA
In the USA, the Supreme Court is entrusted with the definition of both the ‘variable geometry’ of religious freedom and its limits. The maintenance of this balance prevents the spectre of political divisiveness for religious reasons from returning periodically and maintains the coherence that permits all citizens to feel themselves full members of the political community, whatever their race, gender, ethnic group or religion. This has come with the awareness that the choice of religious accommodation is more difficult to pursue than an aseptic formal neutrality. Jurisprudence testifies that the current crucial problem in the area of Church–State relationships arises when the diffusion of religious messages gives the impression of State cooperation.
Historically, education has been one of the minefields where the choices of the majority risk having an impact on those who do not identify themselves with symbols and displays pertaining to history and tradition. This led to the decision to secularize school premises, eliminating religious symbols whose display had no secular purpose. The Court used the standards defined by the Lemon Test1 and refused a secular interpretation of the Ten Commandments, declaring that they were undeniably a sacred text.2 The Court reasoned that the study of the Ten Commandments as part of education in history, civic education and ethics, as well as within the comparative study of religions, was acceptable, but that a simple display had a subtle effect of indoctrination on students.
The problem of the legitimacy of passive religious symbols in the USA has recently involved not only schools and courtrooms but also other public spaces. In general, a spirit of benevolent accommodation has influenced the Supreme Court decisions: the awareness of the impossibility of a total separation between the State and the Churches led the Court to justify and declare coherent with the Lemon Test religious displays in public spaces where other traditional Christmas symbols are present.3 However, in a subsequent decision, the Supreme Court once again faced the problem of religious symbols in public spaces (in this instance, the crib) and declared such symbols to be unconstitutional when they had the effect of promoting religion, thus giving the impression of an implied connection between State and Churches. The Court did admit the constitutional legitimacy of some religious symbols, mostly those connected with not only religious but also cultural traditions.4
Several decisions raised further doubts and led to an amended version of the first (‘purpose prong’) and second (‘effect prong’) standards of the Lemon Test by Judge O’Connor. They have been unified in the endorsement test, which permits evaluation of whether the aim and effect of a government action can be seen as either favouring or hindering religion. This analysis does not take into consideration the theoretical purpose of a norm (which can be abstractly and objectively neutral) but its effect in a real case. A specific case should be examined as an impartial but qualified bystander (‘reasonable observer’) would do.
This questionable standard raises the problem of identifying the ‘reasonable observer’ as an above-average person, deeply aware of the history, the community context and the type of space (public or open to the public) where the symbol is displayed.
The context where the symbol is displayed has great relevance. In Lynch, the display of the crib, despite its religious character, did not give the impression of a State promotion of religion but only of the recognition of its role, as assessed in the context of the display. However, when the crib is displayed alone and without other secular symbols, the impression is given of an unconstitutional endorsement of religion.
The Most Recent Trends of the Supreme Court
The wide recognition of the limits of the Lemon Test implies a plurality of standards and criteria of decision connected to ‘trivial details’ (such as the distance between two monuments), and testifies to the jurisprudential doubt over how much separation is constitutionally required on the basis of the Establishment Clause.5
McCreary County, Kentucky, et al. v. A.C.L.U. of Kentucky stated the need for a strict use of the purpose test. The presence of other symbols of historical, cultural or patriotic character cannot be included in the evaluation; on the contrary, this would imply a connection between the State and religion and increase the impression of government endorsement of religion. In this case, the other symbols were added subsequently, so as to decrease the sectarian impact of a display of the Ten Commandments by a public agency.6
In a ‘borderline case’ concerning a monument of the Ten Commandments on a property near a government building in Texas (Van Orden v. Perry), the purpose of the display was considered secular enough: the effort of a non-profit organization, who donated it in order to reduce juvenile delinquency.7 Following Lynch, the secular purpose should not be considered on its own but in connection with the effect that a specific symbol produces and with the specific context where it is situated. School premises are a specific context, and evaluations cannot be extended to other contexts where the use of a symbol has a more passive character. Here the Lemon Test