This past July, the Center co-hosted a conference with LUMSA University in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short discussion papers. Professor Paolo Cavana (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:
[1] Liberalism, both as a political doctrine and in its historical manifestation, has known several variants. This notwithstanding, there are certainly some common principles underpinning liberalism. Among these, we must include the primacy of the individual and the protection of his freedom against all forms of political oppression. It is no coincidence that liberalism was born and grew, in Europe and in Great Britain, starting from the Protestant Reformation. It represented a reaction to absolute Monarchies and to the concentration of powers they entailed. The different historical events of the United Kingdom and of continental Europe later marked a furrow in the development of liberalism doctrine and in its historical achievements, which also had effects in giving life to the peculiar American constitutional experience.
Among the main factors that marked the development of liberalism and its historical achievements, there is certainly religion, which has always played a fundamental role. Suffice it to say that the two English revolutions of the seventeenth century, which laid the foundations of liberal constitutionalism, were fought by Parliament in the name of religious freedom against the monarchy and its claim to impose a state religion on its subjects. On the contrary, the French Revolution, and the European liberalism that prepared it and followed it, taking into account the tragedy of religious wars, considered the Church and religion as an obstacle to civil and political progress. As such, both would eventually have to be overcome, or at least they were to be kept closed within the private sphere of individual conscience. This gave European liberalism the anti-religious character that has always differentiated it from the Anglo-Saxon one.
More generally, it can be said that European liberalism, which rests its foundations on the absolutist legacy of monarchies and on the theories of Montesquieu and J.J. Rousseau, since its inception, has always fought against social formations (Le Chapelier Act), considered to be a potential diaphragm between the individual and the State and a source of inequality between citizens. On the contrary, English and American liberalism has always viewed social formations – local communities, religious groups, and free associations – as an essential counterweight to the authority of the central State and hence a guarantee for citizens’ freedom.
It should also be noted that it was not religion in the abstract but in the concrete, that is, Christianity, which laid the groundwork for the birth of the liberal doctrine (B. Croce). In fact, neither the ancient world nor other religions or civilizations recognize – like Christianity, which germinated from Judaism, does – the role of human freedom even in the face of God. As a result, the act of faith can only be the fruit of human free choice, which is the very foundation of man’s dignity: “you have made him little less than a god, with glory and honour you crowned him,” says the psalmist (Psalm 8).
[2] Liberalism, both as a political doctrine and a historical achievement, underwent continuous and progressive development in the Anglo-Saxon area, thanks also to the guarantee provided by common law and by case law as a source of legal rules. The role of the State has also grown, and it has been essential to enforce civil rights for many people. However, the concept of freedom which is dominant in the liberal doctrine, in particular in the United States, is still that of a negative one (freedom “from”), which commits the State to an attitude of non-interference in the religious convictions and conscience of the individual and in the internal life of religious communities (J. Locke). This concept is clearly expressed in the Bill of Rights and in the federal State structure. In the religious sphere, it can be found in the principles contained in the First Amendment to the American Constitution. It is this conception of religious freedom that we find substantially accepted in the declaration Dignitatis Humanae of the Second Vatican Council (n. 2), not surprisingly inspired and strongly supported by the US episcopate.
On the contrary, in continental Europe, liberalism and its historical concretization, that is, the liberal State, have undergone a deep evolution that has overridden their original inspiration and foundation. At the basis of this evolution, there were well-known ideologies and historical events that marked the decline of the liberal State in Europe, paving the way for dictatorships and, after the Second World War, for the re-establishment of the State of law on a deeply renewed democratic and pluralistic basis which was very different from the early liberal tradition.
[3] As a result, the European approach to human rights is different from the American one. It reflects the strong role of the State as a guarantor of rights, rather than as a potential antagonist. In Europe, alongside civil rights, presided over by a series of limits, social rights are strongly affirmed. The latter imply the commitment on behalf of the State to ensure positive benefits aimed at guaranteeing citizens the access to services (education, health, employment, housing, etc.). Access to these services is considered to be essential for the development of the human being and for his effective integration as a citizen and as a person in the social structure. The pandemic emergency has proved the beneficial effects of this system, which demands a higher level of general taxation.
This approach not only differentiates between types of rights, as indicated above, but it more generally affects the way of interpreting civil rights, including religious freedom. Together with a negative dimension – non-interference on behalf of the State – it also gives them a positive one, consisting of the State’s commitment “to remove the obstacles of an economic and social nature, which, effectively limiting the freedom and equality of citizens, prevent the full development of the human person and effective participation of all workers to the political, economic and social organization of the country.” (Article 3, paragraph 2 of the Italian Constitution). Hence a “finalization of liberties” emerges from the limits placed on their exercise, which constitutes a detachment from the liberal thought of Anglo-Saxon matrix.
[4] This logic, which reflects the model of the European welfare State, also informs the protection of religious freedom, which is understood in Europe – except in France, which is still linked to a strict interpretation of secularism (“laïcité de combat”) – not only as a guarantee of the State not to interfere in the interna corporis of religious confessions, in the exercise of religious freedom and in individual conscience, but also as a positive support offered by the State to facilitate the exercise of this right in the various spheres of social life, strengthening the bonds of social cohesion within the national community. This conception of religious freedom is well engraved in Article 9 of the ECHR, where its wide contents and limits describe a freedom that is designed to be pervasive and rooted in all areas of social life.
It is this more articulated concept of religious freedom, based on the formal recognition of both the role of religious communities and of the State in supporting the free exercise of religious freedom, which informs the spirit of the pastoral constitution Gaudium et spes of the Second Vatican Council (n. 76), which states: “The Church and the political community in their own fields are autonomous and independent from each other. Yet both, under different titles, are devoted to the personal and social vocation of the same men. The more that both foster sounder cooperation between themselves with due consideration for the circumstances of time and place, the more effective will their service be exercised for the good of all.”
[5] The positive dimension of the rights of liberty has a different logic from the negative or mere guaranteeing one. The latter consists of a negative performance, the non-interference of the State in certain areas or spheres of activity reserved to the citizens. Therefore, it tends to be uniform in its character and formally places everyone on a level of equality.
The positive dimension of rights, on the other hand, expresses, in addition to the principle of substantial equality, also the anxiety and the desire to recognize each identity, which is typical of contemporary pluralistic societies. In the religious sphere, this has therefore determined a shift from the demand for equal legal treatment, to which a separatist system is functional, to the demand for the right to diversity, which finds expression in the systems of cooperation between the State and the religious denominations currently dominant in Europe. Lastly, the European Union has also recognized churches and religious communities as its institutional interlocutors, committing itself to maintaining an “open, transparent and regular dialogue” with them (Article 17, TEU).
What in the US debate are “religious exemptions,” i.e., exceptions to common regulation based on religious grounds and whose recognition is mostly entrusted to case-law, in Europe usually corresponds to special legislations, of bilateral or unilateral State origin, founded on the Constitution, which formally recognize religious freedom and the role of religious communities. Typical is the case of male circumcision, practiced in the context of Judaism and Islam and generally admitted in Europe on the basis of special regulations, of a unilateral (Germany) or bilateral (Italy, Spain) nature.
Compared to religious exemptions, which – according to some scholars – would be contrary to the “values of disestablishment” due to their possibly privileged character, special European regulations are less exposed to similar criticisms, as they are the result of legislative measures legitimized at a constitutional level. However, according to some authors, they present a risk of proliferation of special regimes that could undermine the unity of the system and introduce disparities in legal treatment between various religious communities. The task of the legislator, subject to constitutional review and that of the European Court, is therefore to balance the rights and prerogatives of religious communities with those of individual citizens and other social formations within a framework consistent with the Constitution and the ECHR, which should safeguard equidistance and the secular character of the State.