JUSTICE - No. 68

9 Summer 2022 This precision highlights the fact that laïcité is a political doctrine that outlines the best way to regulate the relationship between state and religion. The origins and justification of laïcité can be historical (the specificities, for example, of the Ancien Régime and the subsequent French Revolution) but also theoretical — rooted in both principled and pragmatic consideration of how the state can ensure peaceful coexistence among religious factions. Laïcité is to be contrasted with an opposing doctrine which has no accepted name but is also very common in Europe. “Theocracy,” even by the most ardent supporters of French style laïcité, would not be an appropriate label to describe a state like the modern UK or Denmark. For convenience, let us refer to “non-laïque” states. Like France, non-laïque states are committed to assuring freedom of and freedom from religion, but see no wrong in a religious, or religiously rooted, self-understanding of nation and state, accompanied by a public space replete with state-endorsed religious symbols. In England, part of the UK, the monarch is both the head of state but also the titular head of the Anglican faith and its institutional manifestation in the Church of England: the “Established Church” of the nation and state. Many state functions have a religious character: clergy sit (or sat) ex-officio as part of the legislature, the flag carries the cross of St. George and the national anthem is a prayer to God. In a mirror image of what I wrote above, there are many persons in England who are atheists and yet see no harm in the “non-laïque” state, able to draw on considerations of principle and pragmatism. Has the UK been more riddled with religious strife than, say, France? It would seem that at least until recently, Catholics, Jews and Muslims in the UK were at peace with, for example, a photo of the monarch on the wall of a classroom. Another, perhaps more significant, example can be found in the English (or British) public which is largely at peace with a Catholic or Jewish, Muslim or Church of England classroom funded from the general tax receipts of a mostly secular population, whereas their French counterparts would be uncomfortable with this. I do not claim normative parity for these two positions — a proposition that makes many people anxious. However, I will make two claims in relation to them. First, both the France and the UK (English) models are considered constitutionally legitimate in Europe. The UK (as well as Denmark, Malta, Greece, and many others with different recipes from the “non-laïque” cookbook) is not, simply by being what it is, in violation of the Convention or in violation of the common constitutional traditions of Europe. Second, the claim that laïcité embodies a principle of neutrality requires a very narrow (and self-serving) definition of what we mean by neutrality. A laïque state, à la France, is certainly neutral vis-à-vis different religious factions in the French public space, but it is not neutral in a broader political sense. What may hang on a French classroom wall will, ultimately, depend on the political color of French democracy at any given time: A bust of Voltaire? S’il vous plait. Marx? Pourquoi pas? The noble battle cry of the French Revolution – Liberté, Égalité, Fraternité – is to be found above countless school portals across the country. What may not be displayed, independently of the contemporary color of voter preference, is a cross, or a mezuza, or a crescent. There is no contestation in Europe about the principle of freedom of and from religion (though there are many debates regarding its application). However, there is a deep contestation about the most suitable way to regulate the symbolic and iconographic entanglement of church and state. The laïque position is surely not “neutral” about that contestation: it is as much a polar position as is the “non-laïque” position. It does not simply choose a side. It is a side. It is disingenuous to claim neutrality for a term whose essence is defined by one pole in a bipolar dispute. This argument brings about a third distinction that is rarely articulated, but was visible in Lautsi, since it undergirded both the impassioned plea by the lawyers of Ms. Lautsi and the decision of the chamber currently on appeal before the Grand Chamber. There are those who believe that laïcité is a primordial condition — sinequa-non for a good liberal democracy — and that the non-laïque position is sub-optimal at best and aberrational at worst. It is consequently morally imperative for good democrats and liberal pluralists to clip the wings of religious manifestations of the non-laïque state as far as possible — a principled and consistent position. There are others (myself included) who maintain that the European version of the non-laïque state is today particularly important in the lesson of tolerance it imposes on such states and their citizens for those who do not share the “official” religion. For the rest of the world, it sets an example of offering a principled mediation between a collective self-understanding rooted in a religious sensibility, or religious history, or religiously-inspired values and the imperative exigencies of liberal democracy. While the Queen is the titular head of the Church of England, it is inspiring and very positive that the many Catholics, Muslims and Jews under her sovereignty, not to mention the majority of atheists and agnostics, can genuinely consider her as “their Queen,” and be equal

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