Breda, Vito (2013) Balancing secularism with religious freedom: in Lautsi v. Italy, the European Court of Human Rights evolved. In: Legitimizing human rights: secular and religious perspectives. Ashgate Publishing, Farnham, Surrey. United Kingdon, pp. 127-142. ISBN 978-1-4094-5002-3
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Abstract
Until recently, the principles of secularism, religious pluralism and state neutrality have been perceived in the jurisprudence of the European Court of Human Rights (ECtHR) as partially overlapping concepts. However, in Lautsi and others v. Italy, the Grand Chamber of the ECtHR has – in a landmark decision – qualified the interplay between these ideas. This essay will argue that Lautsi v. Italy signals a turning point in the previous ECtHR jurisprudence, which often associated secularism with the protection of pluralism and democracy.
There are two main consequences of the decision. Firstly, the ECtHR recognised that a state's neutrality cannot be deductively constructed as a logical manifestation of secularism. For instance, in Sahin v. Turkey, the Grand Chamber explicitly embraced the narrative of the Turkish Constitutional Court that allied secularism with a defence of pluralism. Secondly, in Lautsi v. Italy, the ECtHR recognised the epistemic implications of pluralism. Pluralism as a legal concept demands the recognition of diversity and the acceptance of a dialogue that transforms a multitude of legal orders (and a plurality of perceptions of the good life represented by such a multitude), in procedures aimed at accommodating concurring individual rights.
I argue that the recognition of pluralism and the democratic practices that qualify that pluralism should be a point of departure for the jurisprudence of the ECtHR in areas such as the display of religious symbols in classrooms. This approach serves as an alternative to the practice of balancing rights, which greatly restricts the breadth of religious freedom and de jure imposes a monist conception of rational thinking.
The essay will be divided into three sections, preceded by an introduction and followed by a conclusion. The first part will discuss how the antagonistic relationship between theism and secularism in Italy has shaped the issues of religious symbols in the schoolroom. I will argue that concurring views of the significance of symbols have historically been part of Italy's cultural heritage and that there are strong indications that such a democratic dialogue will continue without a definitive solution being reached.
In the second section, I will explain the benefits of accepting pluralism as a criterion for assessing the extent of religious freedom in signatory states. A short third section will suggest a procedure that democratically accommodates concurrent rights.
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