This afternoon I participated in the second International and Comparative Perspectives panel, moderated by Colleen Graffy (Pepperdine). The panelists (left) addressed a variety of national and regional perspectives on law and religion.
Dia Dabby (McGill) began the panel with a presentation on a Canadian child custody case that involved a conflict between the parents’ religious beliefs and their children’s best interests. In the case, a stepfather claimed that his religious tradition – “Odinism” — justified his covering his 7-year old stepdaughter’s skin with racist drawings, including swastikas. The Canadian court dismissed the stepfather’s claim, in part because there was no evidence he knew what “Odinism” was, but also because the child’s best interests had precedence over the parent’s right to religious expression. Dabby used the case to discuss the metaphor of human skin as a way of describing conflicts about law and religion.
Kuyper Lee (Handong Global University) then discussed the situation of Christian lawyers in South Korea, a situation he described as one of “struggling and loneliness.” Christian lawyers traditionally keep silent about their faith in public, he explained, largely in deference to pastors, who have a commanding role in Korean Christianity. Christian lawyers in Korea, he said, are trying to work out how best to express their faith in a society in which Christian churches are increasingly subject to public criticism.
Santiago Legarre (Universidad Catolica Argentina) then gave an talk on a religious display case from Argentina. In the case, an American-funded NGO challenged the courthouse display of an image of the Virgin Mary, using the American creche case, Lynch v. Donnelly, as persuasive authority. The district court applied Lynch and held the display unconstitutional; the appellate court ultimately reversed the decision, holding that the American precedent was inapplicable in the Argentine context. Legarre used the case as a vehicle for exploring the inappropriate judicial importation of American ideas about church-state relations in a foreign context.
I followed Legarre with a paper comparing the religious-display jurisprudence of the American Supreme Court and the European Court of Human Rights. Specifically, I compared Salazar v. Buono (US 2010) with the ECtHR’s recent decision in Lautsi v. Italy (2011). Both courts stress the need for state religious neutrality, but the European court’s definition of neutrality is much narrower than the American’s, covering only active indoctrination by the state. I argued that the difference in definition relates both to institutional and cultural factors, in particular, the different American and European social models of religion. The American model treats religion as a market and churches as voluntary associations; by contrast, the European model sees religion more as a “public utility,” in Grace Davie’s phrase, that the state should support.
Kyriaki Topidi (University of Lucerne) ended the panel with a presentation on the growing conflict in Europe between values and religion, a conflict brought on by the new religious diversity in Europe. She focused on public education and identified several inconsistencies in the ECtHR’s jurisprudence on religious diversity and expression. In her view, the ECtHR has been resistant to religious pluralism in public schools, a resistance she attributed in part to the “Muslim problematic” in Europe. She advocated “constitutional pluralism” as a solution to the problem of religious diversity in public schools.