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The Principle
of the Laicity of the State
and Sacred
Images in Public Places:
A Comment on
Decision No. 4273 of the Italian Court of Penal Cassation
On March 1,
2000
Giuseppe Badini Confalonieri
g.badini@tiscalinet.it
Summary
Certain decisions of the Italian Constitutional
Court have gradually introduced a concept of laicity conceived as
nonconfessionality. On March 1, 2000 the Italian Court of Penal Cassation
employed this concept in its decision No. 4273 and derived from it the
obligation of neutrality in places of public administration, in particular
in schools and polling stations. The neutrality of public places would
prohibit displaying there the symbols of a religion.
In this paper the author maintains that the concept
of laicity understood as nonconfessionality is foreign to the Italian
Constitution, and therefore is not juridical in nature, but ideological. He
also believes that because of this concept the Court of Cassation has
adopted a principle of neutrality based on a false interpretation of
constitutional norms. The absurd result is that if the principle of
neutrality were applied rigorously, placing religious faith and everyone’s
ethical and cultural convictions on the same juridical level, then national,
republican, and military symbols would be forbidden in the same way as
religious symbols, and even the use of the Italian language in official
documents could pose problems.
Finally, the author treats in a general way the
relationship between democratic freedom and public choices. According to
the author democracy, which in certain periods in Europe regarded religion
with hostility or willful indifference, ought to recognize the importance
for its own development of debate over the highest values, ethical and
religious values, with respect for every difference of opinion.
In more than one European country the conception of the
laicity of the state has been asserted in recent years in terms of the
state’s complete nonconfessionality.
At the same time, several court decisions have been issued in the USA, based
on different principles as contained in the First Amendment to the US
Constitution. These are intended to prevent the state from favoring one
religion over others and may have led to a similar result, i.e., an
excessive separation of the state from religion.
The present note on a recent decision of the Italian
Court of Penal Cassation
intends to deny that nonconfessionality has a juridical basis in the Italian
Constitution or a theoretical justification in the contemporary democratic
model. In the author’s opinion, equating laicity and nonconfessionality is
a mistake that, taken in perspective, tends to deprive the public dialogue
of a great part of its creative potential by denying the importance to
democratic debate of confronting the most important values, those that are
ethical and religious.
With the following reflections the author means only to
deny that it is unconstitutional or antidemocratic to display sacred symbols
in public places, but not to confront the further problem of whether or not
certain specific actions are appropriate, such as displaying the crucifix in
schools and courtrooms. On these specific problems there is no lack of
discussion, while discussion is mostly lacking or is poorly formulated on
basic problems about the principles of laicity, nonconfessionality, and
freedom of conscience. This absence is not surprising, at least in Catholic
circles, since in the long transformation that has followed the Second
Vatican Council slowness in constructing a new philosophical and theological
base has been especially harmful to public philosophy and theology. Still
within the Catholic community, a second hindering element comes from the
difficulty of passing from a clerical conception of the Church to a
conception of the Church as the people of God. In this latter conception,
clergy and laity collaborate in evangelization according to principles of
complementarity and subsidiarity, in accordance with the decrees of the
Council. The Catholic bishops, who up to now are the only voice that has
been raised on behalf of the faithful, know that their function is not to
judge the details of social problems. But there do not yet exist ecclesial
organs for consulting the laity, to whom it should belong to promote the
understanding and evaluation of earthly structures. An aid in developing
the action of the laity in the Church will surely come from ecumenical
encounters and from dialogue with other religions.
The Decision of the Court of Cassation on March 1, 2000
This decision resulted from the appeal to this court of
a fine
imposed on an Italian citizen who in 1994 refused to accept the duties of an
election monitor, which he had not requested. The reason he gave for
refusing was that a crucifix is normally displayed in polling stations,
which are set up in public buildings, even though the station in which he
was to serve (inside a hospital in Cuneo) in fact had no crucifix. According
to that citizen, the presence of the symbol of a particular faith in public
places is unconstitutional because it is contrary to freedom of conscience,
so that it should be generally prohibited.
The fourth session of the Court of Cassation, in its
decision of March 1, 2000, n. 4273 (430/00), granted the appeal and
overturned the sentence because the act did not constitute a contravention
of law. The court’s reasoning, as it concerns us here, was that the
presence of crucifixes in public places conflicts with the laicity of the
state as provided for by the Constitution, and this conflict justifies the
refusal of the post of election monitor, as an expression of a conscientious
objection.
To demonstrate the presence in the Italian Constitution
of the principle of laicity understood as nonconfessionality, the Court of
Cassation invoked previous decisions of the Constitutional Court.
According to these decisions, laicity is the “profile of the form of state
delineated in the constitutional charter of the Republic” (Const. Court,
April 12, 1989, n. 203). This should be taken not only negatively, as an
indifference of the state toward religions, but positively as a guarantee by
the state “for the safeguarding of freedom of religion, in a situation of
confessional and cultural pluralism”. It consists in “that distinction
between distinct orders that characterizes in its essence the
fundamental or supreme principle of the laicity or nonconfessionality
of the state” (Const. Court, October 8, 1996, n. 334).
The reader may notice the use of the rhetorical image
of a “profile”. It covers like a wrapping the fact that there is no mention
of laicity or nonconfessionality in the Italian Constitution. Perhaps the
supreme Italian tribunal should have explained why that presumed fundamental
principle is not even named in the Constitution, nor was it adequately
discussed by its drafters.
But, in our opinion, it would not have been able to do so, because that
principle is not in the Italian Constitution even by implication. In the
first place, even if it were there it could not be called a "supreme”
principle. A principle is supreme when all other principles depend on it.
But the principle of nonconfessionality, to which the Constitutional Court
has reduced the principle of laicity, undoubtedly presupposes other
principles, at least the principle of the sovereignty of the state.
Moreover, the principle of nonconfessionality, even as
a subordinate principle, is superfluous in the cases in which the
Constitutional Court invokes it and is actually misleading in the
application that the Court of Cassation makes of it.
The principle is invoked “for the safeguarding of
freedom of religion, in a situation of confessional and cultural
pluralism”. But the safeguarding of freedom of religion and of confessional
and cultural pluralism is assured by precise articles of the Constitution,
Articles 19 and 21, respectively, on freedom of religion and of opinion
(Art. 19: “Everyone has the right to profess freely his own religious
faith…”; Art. 21: “Everyone has the right to express freely his own
thought…”), and by Article 9 of the European Convention on the Rights of
Man, which protects the freedom to express one’s own religion or one’s own
belief. These articles concern the rights of the individual, while the
principle of nonconfessionality refers not to a right, but to a duty, not of
the individual, but of the state. This duty is broader than the simple duty
to protect and not hinder the rights of the individual. The movement from
one area to the other, from the rights of individuals to more general duties
of the state, requires a positive demonstration. But this demonstration is
not given.
The presumed nonconfessionality of the state is also
superfluous as motivation for eliminating every reference to the Divinity
from the formula for oath taking. Indeed, the Constitutional Court states
that nonconfessionality would require that “religion and the moral
obligations that derive from it cannot be imposed as means to the ends of
the state” (Const. Court, October 8, 1996, n. 334), but Article 19 of the
Constitution says much more than one wishes to derive from the principle of
nonconfessionality, namely that religion and the obligations deriving from
it cannot be imposed in any case, and not only “as a means to the ends of
the state”.
But in the case of the decision of the Court of
Cassation that we are examining, laicity as nonconfessionality is invoked to
arrive at a conclusion, the neutrality of public places, that goes well
beyond the letter or the spirit of the constitutional norm to which it
claims to refer (Const., Art. 97). According to the Court of Cassation,
“the impartiality of the function of a public official is strictly
correlated with the neutrality (another aspect of laicity always brought up
in religious matters by the Constitutional Court—July 15, 1997, 235) of
places chosen for conducting elections, which does not permit any exclusions
or conditions to be implied even indirectly by the evocative character,
representative of the content of faith, that every religious image
symbolizes”.
But it is not possible to bring the neutrality of
public places within the scope of Article 97 of the Constitution. That
Article provides that public offices be organized through legal arrangements
“in such a way that the good performance and the impartiality of
administration are assured”, and that impartiality means precisely that the
public official must act in a way that conforms to the law with regard to
private citizens. The provisions of that Article therefore do not extend to
the neutrality of the surroundings, both because the neutrality of the
public surroundings is not prescribed by any law and because, more
generally, the neutrality of public surroundings is not in fact a right of
private citizens and it would be absurd that it be one.
The Court of Cassation makes another inappropriate
transition in connection with the interpretation of Article 3 of the
Constitution, which protects the equal social dignity and the equality
before the law of every citizen. Contrary to what the court affirms
(“differentiation is made on the basis of religion whenever one displays the
crucifix alone”), displaying a religious image does not damage the equality
of citizens before the law, because no law exists that grants the right to
put up one’s own religious symbol in places under public administration.
Furthermore, the Court of Cassation has neglected a
very important fact. Religious values and moral values have rightly been
placed on the same level both by the Italian Constitutional Court, which has
made the convictions of those who do not believe equal to religious
convictions (Const. Court 117/97 and 334/96), and by the European Convention
on the Rights of Man (Art. 9), which has made the personal creed, the values
that direct the conscience of each person, even the atheist or agnostic,
equal to religion. Hence the principle of neutrality, if applied
rigorously, would lead to declaring inadmissible the presence in public
places of: 1) the Italian flag, since in Italy some citizens are League
members
2) the republican coat of arms and any explicit reference to the republic,
since there are monarchist citizens, 3) any reference to the state and to
elections, since there are anarchists and Jehovah’s Witnesses who do not
accept our political system; 4) military symbols, since there are
pacifists. The use of the Italian language itself, as the single official
language, would be put in question because there are supporters of the use
of the dialects as languages of equal dignity with Italian, and in any case
there are Italian citizens who do not have Italian as their mother tongue.
The Theoretical Unsustainability of
Nonconfessionality
Up to now, in tracing these court decisions, we have
spoken of laicity as nonconfessionality. But the position I shall maintain
is that equating laicity with nonconfessionality is a mistake. Laicity and
nonconfessionality are historically and notionally distinct concepts.
Laicity is not nonconfessionality because there can be
democracies that are lay and confessional at the same time, as are some of
the most solid European democracies, e.g., Great Britain, Norway, and
Denmark. Not only do laicity and nonconfessionality not coincide, but their
pairing, far from being a condition for democracy, often in the last two
centuries has been the basis of bloody dictatorships.
While laicity and
democracy are rightly accepted by the Catholic Church, nonconfessionality is
foreign to Catholic thought. The concept of laicity develops by the
differentiation of competences within society: someone who is competent in
one thing is not for that reason alone competent in something else. The
Church was the first to assert against the state its own free competence in
the religious sphere, and up to our own times this assertion has sometimes
required the testimony of one’s life. Then it was state authority, in the
first place the Christian state, that claimed a field of autonomous
competence with respect to ecclesiastical authority; this was fully
recognized by the last Vatican Council. In short, laicity concerns the
relationship between two institutions, the ecclesiastical and the civil.
The authorities in the Church are not by that fact authorities in the civil
sphere, and vice versa. In this sense laicity is part of modernity.
The concept of nonconfessionality is different. It
refers to the presumed duty of the state not to make decisions that imply
affirmations of a religious nature. But the principle of nonconfessionality
is antidemocratic. In the first place, this is because it unduly limits the
possibility of discussion and the possibility of choice that the democratic
method accords to society. Nobody can limit a priori the ability of a
democratic society to deliberate. The only limits derive from the criteria
that govern the internal dynamics of the democratic system. In the second
place, the need to appeal on occasion to religious affirmations or
principles derives from one of the exigences intrinsic to democratic method,
the need to render public control effective. Public control is exercised
both before and after public decisions. The prior control interests us
here. It occurs by positing either objectives or procedural criteria (or
both), and then electing persons who guarantee to conform their public
choices to those objectives and criteria. These choices, since they are in
the future and depend on conditions at the moment they are made, cannot be
predetermined directly. They can only be determined indirectly, in terms of
general objectives and procedural criteria. Among these objectives there
may be ideological and religious principles. If they are present, they must
be declared, whether in proposals for laws or in political programs, in
order to make public democratic control possible. Democratic politics
requires, indeed, that if possible all the “pre-judgments” be revealed that
will influence future choices.
After being revealed, explained, and discussed, the
objectives by which future public choices are supposed to be inspired are
considered to be fixed, at various levels of generality, by rules set by the
majority. Therefore the modern democratic state is not obliged to be
impartial toward ideologies, whether religious, political, or
philosophical. On the contrary, it must choose among them in order to make
them into principles of action, unless it wishes to condemn itself to
impotence. Constitutional charters are a paradigmatic example of choices of
structures, directions, and values. In conclusion, the democratic state
functions better when it is more able to make significant and relevant
choices, provided that these choices do not exclude the freedom to criticize
and the freedom of those who think differently to have an influence.
All of this must happen with respect for the rights of
the person, in the spirit of subsidiarity. The spirit of an authentic
democracy must recognize the subsidiarity of the state with regard to
persons and intermediate communities, so that any imposition by the state of
determinate visions of the world or of determinate religions is
unacceptable. The democratic state does not substitute itself for
individuals or for intermediate organizations, but has the purpose of
permitting coordinate action toward the further objectives of these
individuals and their intermediate organizations, the achievement of which
would be impossible or improbable without coordination. To this end the
democratic state allows all to speak and guarantees to each one freedom of
thought and of speech, protecting each from subsequent reprisals, but it
intends to take advantage of the broad public debate to decide how much
cooperation will be able to accomplish. Nobody will ever be able
responsibly to allow others to make choices that depend on his conscience
alone, nor will he be able to agree to a collaboration that may force him to
act against conscience. But he can responsibly agree to collaborate in a
program that in itself is positive and is otherwise unrealizable, even if it
does not always lead to the decision he wished for, provided that his
conscience is safeguarded. Therefore the right to abstain from
participating on grounds of conscience must be guaranteed. Democratic order
thus tends to give public life an ethical character. This is an ethics that
respects the person and is quite different from the ethics of the ethical
state of not distant memory which, instead, did not respect the person. Thus
the democratic state in its essence is in accord with Christian principles.
Out of respect for subsidiarity, then, and because of
the democratic state’s essential ethical character, the nucleus of its
strategy will be to promote three areas: education, culture, and religion.
This has already been recognized in the case of culture (Const., Art. 9),
which the state is charged with promoting, but it should be recognized for
all aspects of culture, most of all for the religious aspect. The
democratic state of the future must become a friend of religion, no longer
for “reasons of state” but in order to respond to its own structural need
for human and cultural progress. It should consider every attempt to come
near to God a heritage for all, without thereby compromising the
respectability of the agnostic, the atheist, or the dissenter. There is
already something of this spirit in the Italian Constitution which, while
explicitly protecting freedom of conscience and of expression, pays
particular attention to religion. But until now it has been limited by false
interpretations of laicity as nonconfessionality, which is interpreted in
turn as a-religiousness, interpretations which have affected even the
Constitutional Court.
Modern democracy has long been viewed with suspicion by
the Catholic Church because of the evil uses that have been made of it or
the false theories with which it has been presented. We cannot hope to
convince cultures that have not yet fully accepted it, unless we can make
explicit its openness to man and to his fundamental values.
[Translation by Donald E. Buzzelli]
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