This is a self-indulgent, and perforce idiosyncratic, excursus into some (but by no means all) of the vast body of literature that has been published in recent years touching on secularism and cultural heritage in Europe, surveyed from the vantage point of law and religion scholarship. It was commissioned by the Journal of Law and Religion as part of its ambitious project for sharply focused and widely angled snapshots of the state of the field at the present moment.Footnote 1 And, for this English writer, with this particular topic, the moment could not be more propitious.
Brexit: The Shock of Change
In the febrile world of academic jurisprudence today, scholars pride themselves on the topicality of their observations. Greater importance now seems to attach to the passing glory of the first word—usually expressed via social media—than the authoritative absolutism of the last, or ultimate, statement. Gone is the quaint tradition that academic textbooks were not to be cited in court until their author was dead.Footnote 2 Lord Buckmaster in Donoghue v Stevenson memorably stated that, “the work of living authors, however deservedly eminent, cannot be used as authority, though the opinions they express may demand attention.”Footnote 3 Lord Eldon even questioned the value of the opinion of scholars with no experience of the rarefied craft of judging: “One who had held no judicial situation could not regularly be mentioned as an authority.”Footnote 4
One of the possible rationales for this convention was “to prevent or reduce judicial citation of immature or unreflective commentary.”Footnote 5 While death may be nature's way of eliminating a change of mind, as circumstances change so must opinions.Footnote 6 And rarely have events changed so dramatically as here, between the commissioning of this piece and its subsequent delivery to the editor. The invitation came to me to write from my position firmly within the European Union, but in consequence of the slimmest of majorities in the Brexit referendum of June 23, 2016,Footnote 7 I find myself an outsider. The tectonic plates have shifted, and this seismic change affects both my approach to the subject I have been allocated and the conclusions that I seek to draw, however tentatively. There will be an added poignancy to my observations, refracted—as now they must be—through the prism of the refreshed constitutional settlement within the European Union, whereby the United Kingdom ceases to be a bad tenant and tries to recreate itself as a good neighbor.Footnote 8
Enduring Certainties and Aids to Navigation
So this tour d'horizon or rundschau of continental Europe from the sunny uplands of the United Kingdom seeks to identify points of permanence in a rapidly changing legal, political, and cultural landscape, using some of the legal literature on the subject while it remains relevant. A firm and immutable starting point, as is so often the case, is the scholarship of Professor Norman Doe,Footnote 9 whose remarkable publications have included most recently Law and Religion in Europe: A Comparative Introduction published in 2011.Footnote 10 There are two obvious faults with this book, both to be found in its subtitle. It is not introductory but fulsome and comprehensive; and its analysis is not comparative but cumulative. By a detailed examination of the differing constitutional settlements whereby churches and states cohabit more or less comfortably, Doe ventures aggregated conclusions in the form of fifty principles of religion law common to the states of Europe.Footnote 11
Much of the raw material from which Doe derives these principles is drawn from the work of the European Consortium for Church and State Research, a grouping of scholars from throughout the European Union, of which I was formerly president. The work of the consortium, evidenced by the publication of the proceedings of its annual conferences, was a country-by-country exploration of thematic issues within the broad church-state agenda. In common with Gerhard Robbers's valuable handbook, State and Church in the European Union,Footnote 12 most studies at the time focused on descriptive—and occasionally analytical—narratives of the particular situation in each country. Doe was able to stand back and look at the continent as a whole, finding overarching principles that animate and strengthen the seemingly disparate systems of church and state in each country. Doe's principles vary in terms of subject and specificity. By way of example:
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• The state is free to choose its own general posture toward religion in terms of its place in public life and government subject to respect for human rights.
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• The state may not limit the right to hold any religious belief.
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• A religious organization should comply with its internal rules, which must not be inconsistent with the law of the state.
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• Religious symbols and dress may be freely displayed or worn in public to the extent permitted by law.
The concept of ever-closer union (the democratic rejection of which was one of the messages of the Brexit referendum) was visualized and effected through European law that became progressively more influential in creating legislative provisions directly enforceable throughout the European Union. In the mid-1970s, Lord Denning famously referred to an incoming tide of European law, observing that “it flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty [of Rome] is henceforward to be part of our law. It is equal in force to any statute.”Footnote 13
A European Law on Religion
Relatively little has been written about European law and religion. A notable contribution, however, is Ronan McCrea's treatise Religion and the Public Order of the European Union,Footnote 14 which suggests that the European Union seeks to achieve a balance between its religious, humanist, and cultural elements. Julian Rivers, in a detailed forensic analysis, suggests that the pursuit of religious pluralism within the continent of Europe has not proved entirely successful.Footnote 15 “National diversity,” he argues, “coupled with the sheer complexity of achieving a reasonable balance of competing interests conspire to make it remarkably elusive.”Footnote 16 Robbers has been bold enough to speak of an emergent European law on religion,Footnote 17 and Doe has sought to clothe this skeletal creature with a little flesh, and some muscle, by identifying the institutional attitude of the Brussels establishment to faith communities generally:
The posture of the European Union towards religion is characterized by seven fundamental principles: the value of religion; subsidiarity, the principle that national religious affairs are primarily the concern of each member State; religious freedom; religious equality (and non-discrimination); the autonomy of religious associations; cooperation with religion; and the special protection of religion by means of privileges and exemptions.Footnote 18
The enlargement of the European Union, in both composition and competence (economic, political, and social), has produced an expansion in the volume of European Union laws and other regulatory instruments dealing with religion. Many religious phenomena are now expressly recognized in European law: religious associations, groups, authorities, leaders, rules, customs, obligations, beliefs, teaching, ceremonies, rites, worship, observance, practice, and education. The religion law of the European Union recognizes the value of religion in the life of Europe, the subsidiarity in religious matters enjoyed by member states, the obligation to cooperate with churches, autonomy of religious associations, religious liberty, religious equality, and the special protection or accommodation of sensibilities rooted in doctrine.
Doe's principles are induced from the laws and other regulatory instruments of the European Union, as well as general principles common to the laws of member states. The extent to which religion, especially Christianity, has influenced both the idea and identity of Europe historically is a common theme among scholars.Footnote 19 The preamble to its foundational treaty recites that the European Union draws “inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law.”Footnote 20 But the Lisbon Treaty of 2007 does not specify which spiritual or religious heritage is inspirational. While the European Union adopts an essentially neutral approach to its understanding of religion (particularly in terms of its inclusive reference to non-atheistic and atheistic beliefs), the value of religion is deeply rooted in the juridical instruments of the Council of Europe and in the national laws of each state.
Subsidiarity
The European Union will not take action in areas outside of its exclusive competence unless individual member states are unable to achieve a particular objective.Footnote 21 The regulation of religion is primarily a matter for each nation state.Footnote 22 The European Union respects the special status of Mount Athos under the Greek Constitution for reasons of “a spiritual and religious nature.”Footnote 23 Sunday trading questions are matters for national law; and the attempt to make Sunday the Europe-wide day of rest failed. Strasbourg jurisprudence has frequently exercised its margin where religious matters are concerned. This included the recognition of state-churches, provided all faith communities are similarly free to operate without undue burden or discrimination.
The treatment of religion within the internal affairs of a non-member state may be a matter of direct interest to the institutions of the European Union, affecting its external relations with that state. For example, one function of the special representative of the European Union for Afghanistan is to advise on “respect for human rights of all Afghan people, regardless of gender, ethnicity or religion.”Footnote 24 The decision on principles, priorities and conditions in the—now somewhat perilous—Accession Partnership with Turkey is particularly topical in the current climate as it includes the requirement that Turkey guarantees “in law and practice” the full enjoyment of human rights and freedoms by all without discrimination on grounds of religion or belief. In 2013, the European Union's Foreign Affairs Council adopted European Guidelines for the Protection and Promotion of Freedom of Religion or Belief.Footnote 25
One reason for the deference to the principle that religion is best dealt with at the national level is the absence of any pan-European consensus or uniformity of constitutional settlement. The approaches of member states to religion are heavily influenced by particular traditions reflected in religious demography; and the attitude of each state towards faith communities operating in its territory is based on a shared history and sociological commonalities.Footnote 26 McCrea argues that the European Union does not have “a strong cultural identity of its own and is still in the process of developing its political institutions … . and lacks the authority to effect fundamental change in the relationship between religion, law, and the state in Europe.”Footnote 27
Religious Liberty and Nondiscrimination
The European Union recognizes the rights, freedoms, and principles set out in its Charter of Fundamental Rights, Article 10 of which states, “Everyone has the right to freedom of thought, conscience and religion. The right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice, and observance.”Footnote 28 This mirrors Article 9 of the European Convention on Human Rights.Footnote 29 The Court of Justice of the European Union in Luxembourg affords the highest respect to the jurisprudence of the European Court of Human Rights in Strasbourg, albeit a creature of the Council of Europe with jurisdiction far more extensive than the member states of the European Union.Footnote 30
Article 21 of the Charter of Fundamental Rights prohibits any discrimination based among other things, on religion or belief. The European Union's Culture Program aims to contribute to the elimination of religious discrimination. Speaking at a conference in the University of Virginia in 2013, I observed that a deferential approach by the Court of Justice of the European Union could lead to widely diverging outcomes when transposing the equality directives in this area, in that they may come to mean entirely different things in different countries, particularly where the Court has traditionally been strict in not allowing widely diverging practices between states. One wonders whether a relaxation of the standards regarding non-discrimination on grounds of gender for religious organizations could lead to a relaxation in other areas as well. Only time will tell whether the Court will impose a uniform standard on all member states in controversial cases or leave them wide discretion. On the one hand the directives would seem to call for the former: member states may choose the means to implement the non-discrimination standards laid down in the equality directives, but they are required to achieve an equal outcome that guarantees the same level of protection against discrimination on grounds of religion, sex, and race. However, it is hard to conceive of a substantively uniform level of protection that would be politically acceptable throughout the European Union. In this context a “light touch” approach focusing only on broad principle may be inevitable; although this would strip the anti-discrimination directive of much of its legal potency.Footnote 31
Autonomy
The autonomy of religious organizations is an important principle, although neither the Treaty of RomeFootnote 32 nor the Maastricht TreatyFootnote 33 expressly provide for the right of religious associations to self-governance. We can observe the juridical expression of the autonomy principle in justifying religious organizations to discriminate on grounds of religion in the employment sphere. Similarly, a working time directive enables states to derogate from prescribed requirements, if there is proper regard for workers’ safety and health, in relation to workers officiating in religious ceremonies in churches and religious communities. Other examples include decisions of church tribunals whose existence and autonomy over doctrinal and other issues are given state recognition. Rules prohibit the processing of personal data revealing religious or philosophical beliefs; but there are exceptions for processing by a foundation, association, or any other non-profit-making body with a religious or philosophical aim (political or trade union aims are also covered) carried out in the course of their legitimate activities provided the processing relates solely to the members of the body or persons having regular contact with it in connection with its purposes; disclosure is subject to data subject consent.Footnote 34
Collaboration and Cooperation
The mutual collaboration between the European Union and religion is evident from cumulative examples. The Lisbon Treaty asserts that “the Union shall maintain an open, transparent and regular dialogue with” churches and organizations. The Catholic Church, various Protestant churches, and Jewish, Muslim, Orthodox, and various other faith groups all have full-time representation in Brussels. The effectiveness of these lobbying organizations is questionable,Footnote 35 although in recent years the coalition represented by the Conference of European Churches has become a more robust, coherent, and influential body.Footnote 36 The European Union has a high-level advisory group on social integration that examines the participation of ethnic minorities in the labor market; and a cooperation network that includes religious, philosophical, and non-confessional organizations. The principle has been extended to include financial support for religion: for the purposes of expenditure, religion is included in the classification of nonprofit institutions. Churches and religious associations are eligible for funding to implement action and joint cross-border cooperation programs. Several religious alliances, such as the Conference of European Churches, have constitutions that provide for direct engagement with the European Union, and provide its member churches with regular information and opportunity for engagement with the European Parliament and the Council of Europe.
The Lisbon Treaty obligation on states to cooperate in dialogue with religions, and the consequential right of religious associations to participate goes beyond the requirements of the European Convention on Human RightsFootnote 37 and the constitutional laws of member states. Such cooperation is facilitated by national laws at subconstitutional level in relation to a host of matters of common concern to the state and religious organizations: the acquisition of legal personality; noninterference by the state in the internal affairs of religious organizations; the protection of doctrine and worship; the preservation of historic religious sites; the financing of religion; provision for religious education in public schools; spiritual assistance in hospitals, prisons, and the armed forces; and the administration of religious marriage ceremonies. Thus, when the European Union accords “religious perspectives a particular degree of recognition and facilitation in policy-making,” under which “religious bodies are recognized as elements of civil society with which the union will maintain a dialogue,”Footnote 38 this reflects, and gives legitimacy, to an overarching principle of religion law that is common to the component nations of Europe.
Privilege and Accommodation
A further principle of European Union religion law is the special protection of religion by means of privileges and exemptions, which is more prevalent in the functional instruments of the European Union than in its treaties. Europe's Charter of Fundamental Rights has provisions that imply special protection for particular religious activities. There is mention of conscientious objection, and provision is made for educational establishments to accord due respect to the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical, and pedagogical convictions. Citizens cannot practice their religion freely if rules of general applicability disadvantage them in particular ways due to their religious needs. Advertisements must not be inserted in any broadcast of a religious service, and religious programs lasting fewer than thirty minutes must not be interrupted by advertisements. Special protection may apply to religious property. There are provisions on the export of cultural goods forming an integral part of religious monuments, which includes objects found in the inventories of ecclesiastical institutions. Some provisions are explicitly designed for the protection of cultural and religious sites.
A related practice is the conferral of special religious privilege or extraordinary rights: tax exemptions may be secured in relation to supplies of staff by religious or philosophical institutions for medical, welfare, child protection, and educational purposes with a view to spiritual welfare. The Turkey accession partnership decision requires Turkey to adopt a law comprehensively addressing the difficulties faced by non-Muslim religious minorities and communities in line with the relevant European standards. Exceptions to working time requirements may be made for those officiating at religious ceremonies. The directive on equal treatment of men and women in employment does not limit the right of a member state to exclude from its field of application those occupational activities and, where appropriate, prior training, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor. The concept of special privileges or exemptions for religion has for a long time been a feature of national laws in relation to a very wide range of matters.Footnote 39
Strasbourg: A Parallel Jurisdiction
In parallel with the growth of European law has come the increasing influence of the European Convention on Human Rights, and in particular the jurisprudence of the European Court of Human Rights in Strasbourg. It is, however, important not to elide these separate regimes and their judicial output.Footnote 40 The Strasbourg jurisdiction extends to member states of the Council of Europe, which, with forty-seven member states, is significantly more extensive than the European Union, with only twenty-eight.Footnote 41 While the European Court of Human Rights exists to secure compliance by contracting states with the provisions of their treaty obligations under the Convention, it does not deal with absolutes. The Court adopts a national “margin of appreciation,” acknowledging that there is no universal practice applicable to all and that the governments of contracting states are often best able to deal with local concerns. There is, however, an observable intellectual dishonesty in its inconsistent application.Footnote 42 In addition to this variable margin of appreciation, the very structure and content of the Convention itself is couched in language that articulates the balancing of competing interests. The jurisprudence of the Strasbourg court concerning religion promotes diversity, recognizing the member states of the Council of Europe are very different in their handling of church-state affairs, whereas the Luxembourg court is weighted in favor of homogeneity, interpreting and applying European law in a consistent manner. There is therefore potential for a fault line developing in consequence of these powerful opposing trajectories.
The Myth of a Catholic-Protestant Divide in the European Union
In many ways, the timing of the publication of Brent Nelsen and James Guth's original and challenging volume, Religion and the Struggle for European Union: Confessional Culture and the Limits of Integration, is unfortunate. It hit the bookshelves as the vulnerability of the Greek economy was placing severe stains on European monetary union, and just prior to the shifting of tectonic plates by the plebiscite in the United Kingdom that constituted something of a vote of “no confidence” in the European experiment.
The slightly flimsy conceptual foundation for Religion and the Struggle for European Union is the grand generalization, never adequately evidenced save by assertion, that Catholic countries favor a strong united Europe whereas Protestant states are motivated by the political independence of sovereign states. Perhaps surprisingly, the volume will still earn itself a particular and lasting place in scholarship of law and religion in Europe notwithstanding this deep-seated conceptual flaw. It is extremely well written, with well-paced narrative, but Nelsen and Guth rely too heavily upon Internet sources of questionable provenance and “op-ed” pieces that are often more polemical than accurate. It provides a well-researched and clearly articulated history of the creation of the Common Market with its six founding members, and its sequential growth in membership thereafter. It will be required reading, I suspect, for those on both sides of the English Channel who are required to conduct the Brexit negotiations. Understanding how we came to this position will be essential in finding a way to extricate ourselves from it.
Nelsen and Guth note that when the Protestant majority countries finally entered the European Economic Community, they did so awkwardly, and they remained awkward, particularly the United Kingdom and Denmark. But nowhere do Nelsen and Guth make a convincing case for such a causal link between Protestantism and awkwardness. The simple truth is that institutionally, the (Roman) Catholic Church is monolithic and transcends national barriers, whereas Protestant churches tend to structure themselves territorially according to state boundaries. And historically, the church or Rome was united by the language of Latin, whereas Protestantism was marked by a tapestry of vernacular tongues and dialects.
On culture and history, Nelsen and Guth are spot on:
The long arm of religion, even when it seems to carry a dead hand, is still very powerful. It may govern the perceptions and life rhythms of people who have long ceased to believe … European culture still displays its Christian heritage in languages and symbols, buildings, holidays, laws and schools. Call it cultural inertia, but like the cosmic background radiation echoing the Big Bang, religion is still there for those who can tune it in. (Nelsen and Guth, 9)
So far so good. The strange afterlife of religion in European self-identity will be familiar to those of all faiths and none. But the claims of the two American authors that the oppositional approaches of post-Reformation Christian denominations are causative of a continuing contemporary cleavage within the European Union will gain little traction on this side of the Atlantic:
To Protestants the European continent felt alien, stifling, conspiratorial, and aggressive. Some of this was cultural animosity left over from the sixteenth century, but some of it carried a kernel of truth. The continental Catholics were not involved in any Vatican-inspired conspiracy, but approached European cooperation in a far more clubbish way. (Nelsen and Guth, 251)
Entertaining, informative, but ultimately not compelling, Religion and the Struggle for European Union collates and presents the material that enables the reader to draw precisely the opposite conclusion to that for which the skilled authors contend. There is no denominational fissure in Europe. Religion was of marginal relevance to the European Economic Community and the Common Market; and it has become wholly illusory in the political union forged on the anvil of free trade and free movement. Individually pluralistic states create a kaleidoscope of religious identities and persuasions in the European Union. They lodestone of the European Union is its religious diversity.
European Norms Concerning Sacred Space
The challenge for law at its intersection with religion is the paradox that religion is essentially an individual, private, and spiritual encounter but lived out in community with others, and in society at large. The interlocking triumvirate of religion, law, and society are categories and concepts that are readily understood separately but that become elusive when brought together. The distinguished sociologist Grace Davie styled them an “awkward threesome,”Footnote 43 whereas under Dr. Russell Sandberg's forensic microscope they take on the appearance, according to one reviewer, of a saucy ménage, liberated from the academic isolationism that has hitherto stifled engagement.Footnote 44 Émile Durkheim made the self-evident appear profound in observing that the basic habitat of religions is the public domain.Footnote 45 Thus, in Law and Religious Cultural Heritage in Europe, Theodosios Tsivolas offers a rare insight into the norms that affect the preservation of the architectural and archaeological patrimony that remains in the custody of churches in Europe. Tsivolas examines how the law of European states (religion law) and the canon law or polity of churches (religious law) address matters of the religious cultural heritage in Europe. In part this necessitates protecting the fabric of sacred buildings and their contents for the use and enjoyment of future generations. The role of international instruments and organizations cannot be overlooked.
Tsivolas considers how sacred buildings and objects “[demonstrate] a cultural blend of art and belief within the public sphere” that reflects “[an] ambivalent unity between the sacred and the secular” (Tsivolas, 2); he deftly divides the footfall between tourists, worshippers, art aficionados, and pilgrims. He observes,
At the core of Europe's identity lies a wealth of cultural, linguistic and religious diversity, characterized by plurality. The several forms of religious pluralism in different European countries have been, and still are, bound up with their respective religious traditions. (Tsivolas, 21)
While noting multiple pluralisms, Tsivolas's study is sufficiently detailed and methodical to allow him to identify “a shared legal ethos in Europe that imposes a duty of appropriate care of this [religious cultural] heritage as an invaluable European cultural capital” (Tsivolas, 177). Sacredness is the sum of a triptych comprising religious memory, religious aesthetics, and religious beliefs, and the stronger the unity of the three components, the greater the prospect of preservation, restoration, and survival. As Tsivolas observes,
one can be left cold by the religious doctrines, yet at the same time, be astonished at the ways religions have made use of art and architecture beyond any theological apparatus. (Tsivolas, 179)
It will, however, be for future generations to judge the moral ambivalence whereby Europeans seemed to show a greater concern for the recent damage to the cultural architecture of Aleppo and Palmyra than for the loss of life in Syria and elsewhere and the mass migration of the dispossessed.
Projects and Protections
Family, Religion, and Law: Cultural Encounters in Europe is a collection of essays edited by Prakash Shah with Marie-Claire Foblets and Matthias Rohe. It is the product of one of many ventures under the umbrella project RELIGARE. Generously funded, the RELIGARE project seeks to bring together an interdisciplinary team of high-profile researchers and some thirteen academic institutions to collaborate in examining how expositing policy and practice is suited to the demands of religious diversity within Europe and what legal models can be recommended to accommodate such diversity in the future.
RELIGARE focuses on religious and cultural diversity as a social reality in Europe: secularism is an important constitutional value in many European states, as well as in Turkey, but models of secularism differ considerably. An increased diversity in religions and other beliefs has been brought about by many factors, including the European Union's expansion and an increase in the numbers of economic migrants and displaced persons. Many people now hold beliefs and values that differ from those traditionally associated with the majority. In seeking recognition of their religious identities, they put the very notion of secularism to the test and blur the divide between the public and the private sphere. Can the state be simultaneously neutral and tolerant? Can new world views, social patterns, and lifestyles be accommodated or subsumed into the public square? RELIGARE examines the current realities, including the legal rules protecting or constraining the experiences of religious or other belief-based communities. Adequate policies seek meeting points between the realities and expectations of communities and the protection of human rights in terms of equality and freedom of thought, conscience, and religion.
The Slide to Secularism
The final volume reporting on the RELIGARE project, Belief, Law, and Politics: What Future for a Secular Europe, turns its international and interdisciplinary lens on the question of religious and philosophical diversity in European law, with particular reference to employment, family life, use of public space, and state support mechanisms. There is a great deal of learning to be derived from this book, which has two distinct parts: the first consists of the final report of the RELIGARE project, and the second is made up of responses from an impressive array of individuals, some of whom have engaged very closely with the project, while others are keen and critical commentators on its findings and recommendations. The breadth of its authorship is the real strength of this second (and more substantial) section, with some thirty authors each offering sharp perspectives on the outworking of the various research exercises in which many have been engaged.
Grace Davie, in her foreword, notes that “despite their relative secularity, a significant number of European people are likely to return to their churches at moments of celebration or grief” (Davie, Belief, Law, and Politics, xvii); a phenomenon that she has elsewhere described as “believing without belonging” or “vicarious religion.” Churchgoing is motivated now by free choice, whereas previously it arose out of perceived obligation, familial, societal, and customary. Church membership is now chosen but not inherited. However, while her assertion holds good with the traditional Christian communities of Europe, I am less convinced that it is to be found in Jewish and, more particularly, Muslim households. Indeed, it is the very concept of obligation (and, by extension, coercion) within Islam that certain commentators across the political spectrum regard as inimical to “British values.”Footnote 46 The implications for religious life of the mass movements of peoples and the consequential realignments of traditional understandings of a Judeo-Christian heritage and settlement throughout the European Union are stark and challenging. Are governments right to fear that the resultant religious diversity will be damaging to social cohesion?
Conclusions
What can be learned from a non-exhaustive survey of recent publications? First, and obvious, is the proliferation of studies, treatises, and research projects in the field. The opening decades of the twenty-first century have been marked by an explosion in publications that address law and religion both within the context of the secular-pluralism continuum and as regards cultural heritage. The lingering impact of religiosity is something of an irritant to postmodern scholars who expected the concept of faith as a pervasive social and political force to have died out by the twenty-first century.
As Sandberg adroitly recognized and articulated in Religion and Legal Pluralism,
[My personality] mutates according to the roles I consciously and subconsciously play, the relationships I form and the allegiances I owe. It is always in flux, constantly being created and recreated, negotiated and renegotiated.Footnote 47
Sandberg's observation also describes the collective identities of nations. In the evolving constitutional settlement since the Second World War, we have witnessed wholesale changes in national identity: progressively more states in Europe have joined in an alliance that was initially fiscal and commercial and has since become political. Certain powers have been ceded to a legislative pan-European center, and national governments have voluntarily circumscribed certain of their lawmaking powers. This is in keeping with the heightened concept of the polity of nations, the growing strength of the United Nations, and subscription to global standards and obligations.
The sovereign state, of its own volition, is less sovereign in the twenty-fist century than it was in the first half of the twentieth.Footnote 48 Jiri Priban has noted the persistence of sovereignty as a political and juridical concept, permanently oscillating between de jure authority and de facto power notwithstanding theories of supranational and transnational globalized law and politics.Footnote 49 While the construct of sovereignty undoubtedly endures, Sandberg points out that national allegiance is but one of the multiple identities possessed by today's citizen. Territorially, such allegiance is compromised or supplemented expansively (by, for example, freedom of movement under an EU passport or a common currency) or more narrowly (through independence movements in Scotland, Catalonia, or elsewhere, regional governments, and elected mayors). But the spiritual is not contained by national borders, save insofar as an institutional church chooses to be identified by geography. The strength of Europe is its rich tapestry of light and shade: underestimating the nuanced value of difference in forging alliances has been the greatest single misjudgment of the grey-suited Brussels bureaucracy.
Lorenzo Lucca, in an innovative and absorbing volume,Footnote 50 has challenged what many commentators mean when they refer to a “secular state” and proposes a fresh conceptual realization of secularism that focuses on the reconciliation of diversity, in the battlefield of conflicting rights and loyalties exemplified, for example, by accommodation of sharia in Europe, equal treatment and religious discrimination, and rights of conscientious objection. Heiner Bielefeldt, whose impressive term as the United Nations Special Rapporteur on Freedom of Religion or Belief is drawing to a worthy end, places the European experience in a global context (Bielefeldt, Belief, Law, and Politics, 55–64). He adopts the perceptive concept of “Diversity-Friendly Equality” to describe the emergent political settlement throughout Europe (ibid., 59). Building on the adage that “equal treatment” is not the same as “identical treatment,” he teases out the strong equality element of the right to religious liberty. He refers to United Nations agreements designed to ensure that “discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity.”Footnote 51
The growing body of learning within the field of law and religion is a welcome counter-weight to a widely recognized religious illiteracy: in government; within the national and local civil service; in primary, secondary, and tertiary education; and in the print and broadcast media. In former centuries, where Christianity in its various and evolving forms was the predominant religion throughout Europe, the post-Reformation settlement broadly recognized churches having legal personality within the territory of nation states, albeit often as part of regional or global federations, with co-extensive allegiances to the bishop of Rome, the patriarch of Constantinople, and so on.
Mass migration and globalization seems to have changed all this. Adherents of Jewish, Muslim, Hindu, and Sikh faiths have become assimilated into communities that were previously mainly or exclusively Christian. So what are the challenges? As Davie observes, “Europe is secular not because it is modern, but because it is European” (Davie, Belief, Law, and Politics, xviii). But, as Bielefeldt sagely comments, there are very different meanings of secularism at large, and the term is deployed by and among lawyers, political scientists, and sociologists to mean different things to different people. As a term, secularism thus assumes an Alice in Wonderland quality:Footnote 52
Secularity can represent inclusive policies of accommodating religious or belief-related pluralism in an open constitutional framework, but the same term can also be used as a proxy for restrictive measures which aim at pushing religion and belief back into a mere private sphere. (Bielefeldt, Belief, Law, and Politics, 65)Footnote 53
There are two seemingly conflicting dynamics at play when it comes to such discussions of public and private spheres. While the second of Bielefeldt's definitions sees aggressive state-sponsored secularism pushing largely Christian denominations into an entirely private sphere (the church, the home, and the heart), there is a countervailing momentum, fueled by large-scale Muslim migration, for which open expressions of religiosity (through diet, attire, and otherwise) are required to be lived out in public.
Religion is becoming increasingly important for law-making and law enforcement. But, as Bielefeldt observes,
Legislators should engage in intensive consultations with members of religious or belief minorities before issuing legislation that could adversely affect the religious convictions and practices of minorities. This is not an easy task, and it can only be tackled in a spirit of open communication and mutual trust. (Bielefeldt, Belief, Law, and, Politics, 60)Footnote 54
Julian Rivers offers a more forceful prescription:
A reasonable pluralism of legal regulation will only be achieved through an ongoing commitment to a three-way dialogue between institutions of the European Union, member states and representatives of religious communities. This dialogue must take place not only in the light of a general commitment to ensuring that the logic of economics does not stifle the values of religious liberty, equality and community, but also in recognition of the need to produce clear and workable solutions in which those values are both expressions of an underlying political orientation and also grounded in the realities of legal regulation.Footnote 55
The single abiding theme of all the recent scholarship on law and religion in the cultural melting pot of Europe is the crucial importance of dialogue by and among scholars and between the government and the governed. Increased literacy and distinct lines of communication will be essential in the many difficult conversations that lie ahead. Freedom of religion is a “precious asset,”Footnote 56 and like all valuable commodities it needs to be cared for, nurtured, and shared. In the quarter of a century that I have become progressively more involved in the study and teaching of law and religion, there has been a sea change. No longer do I plough a lonely furrow; scholars from across interdisciplinary divides have jumped on the bandwagon, creating a heavily populous academy. The rigorous and critical study of today's expansive literature means there is much upon which policy makers and opinion formers can base their conclusions and consequential advice. The bigger question, of course, is whether governments are prepared to listen to the many astute commentators who have expressed valuable opinions on the subject. If we wait until today's scholars are dead—and their writings clothed with the patina of authority—the scholarship will have ceased to be relevant in this rapidly changing landscape.
