From the Secularisation Theory to the Pluralistic Approach: Reconciling Religious Traditions and Modernity in Italian Case-Law

One of the fields where the clash between the ambition toward secularism and the need to enhance cultural traditions mostly emerges is the debate on the presence of religions in the pluralist public space. From a Constitutional point of view, Courts and judges are often asked to solve conflicts involving religious claims, trying to maintain simultaneously respect for religious identities, religious freedom and the principle of equality of every belief before the state. The difficulty of this task arises clearly within the extensive case law on religious symbols and ceremonial prayers in Europe, but also in the USA. In order to address this challenge, constitutional judges often try to extract from a certain definition of “secular state” a particular legal standard and use it as the legal tool useful to reconcile, once and for all, all the cases concerning religions in public spaces. In a nutshell, neutrality as a legal standard implies two main goals: strict and strong separation between state and church; and freedom from religion (instead of freedom of religions). This idea of neutrality has received many criticisms: as some political thinkers pointed out, neutrality is incoherent because any determinate politics must necessarily rely upon and promote some contestable scheme of values. Another legal standard is often used by judges: the so-called “historical argument”. It comes from a different conception of the secular state, and it is raised up in opposition to a strong idea of assertive secularism and strict neutrality. According to this argument, judges must take into account the cultural and religious traditions of their systems as far as they are strongly rooted in the institutional (or even constitutional) history of their Nations. The historical argument has the merit of reconciling the secular state with its cultural heritage. Nonetheless, the use of the historical argument alone is both weak and formalistic: above all, practical jurists cannot solve hard conflicts just resorting to “what has always been done”. After having shown why the two legal standards mostly used by courts are not convincing enough, our chapter points to a third way to realize the ambition toward a secular state, on the one hand, and to enhance religious traditions according to their true meanings, on the other. This third solution is based on three main premises: (a) the idea of finding a unique abstract legal standard, capable of resolving every case, is a utopia; (b) the place of religion in the public space does not involve a binary relation (state vs. church), but rather it is a complex triangular relational principle (that involves state, religion, and civil society); (c) the goal of the courts is not to enforce a certain idea of the secular state or laicità, but to facilitate pluralism and religious peace. In the final part of the chapter we try to verify, within the most recent Italian case law on religious rituals in State schools (i.e. pastoral visitations and bishops’ benedictions), whether and when this third approach—which considers laicità a tool, not a goal—has succeeded.