Lausti and Salazar: Are Religious Symbols Legitimate in the Public Square?

• Jurisdiction: European Union,United States,Federal
• Citation: Vol. 41 No. 2
• Publication year: 2013

LAUSTI AND SALAZAR: ARE RELIGIOUS SYMBOLS LEGITIMATE IN THE PUBLIC SQUARE?

Katie A. Croghan^*

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Table of Contents

I. Introduction...............................................................................508

II. The Path of the Crosses............................................................512

A. Lautsi v. Italy............................................................................512

1. Using the Margin of Appreciation.....................................520

B. Salazar v. Buono......................................................................522

1. The Reasonable Observer..................................................524

III. Accommodation as the Deciding Principle...........................524

A. A Dual Movement to Accommodation?....................................524

IV. Conclusion...................................................................................531

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I. INTRODUCTION

In two recent cases, the United States Supreme Court and the European Court of Human Rights (ECtHR) were asked to determine whether religious symbols (specifically crosses and crucifixes) could be placed on public property.¹ This was not a simple task however, as the crosses at issue in the case served both religious and secular purposes. In addition to being crosses, they were also war memorials and symbols of a nation's heritage.² Therefore, the courts were forced to address a question of which interpretation of the symbols to use, the secular one or the religious one. Supporters of the symbols argued that they were memorials erected in memory of fallen soldiers and national symbols.³ Opponents contended that the crosses were religious symbols and, as such, did not have a place in a secular world.

Both cases involved crosses placed in highly visible locations and both courts rendered controversial decisions that elicited strong responses from each side.⁴ In the European case, Lautsi v. Italy, religious supporters in Italy, the Catholic Church, a number of other institutions from around the world, and some secular supporters spoke vehemently in favor of the cross.⁵ An equally large number of groups, from as many varied locations, opposed it.⁶ In the United States case, Salazar v. Buono, the cross at issue caused such controversy that it was stolen after the Supreme Court issued its decision.⁷ Because of these strong emotions, both courts had to decide between two

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unpleasant options. If the court required that the symbols be removed it would displease those who advocated for religious symbols in the public square. However, allowing the symbols to stay would displease those who advocated strict separation of church and state. The courts could have determined that the crosses should be removed from public property because of their relatively undisputed religious connotation as a well-recognized symbol of the Christian faith.⁸ However, if the U.S. Supreme Court had made this decision, a war memorial would have to be torn down.⁹ In the European Union, a similar decision would have meant requiring a predominantly Catholic nation to take down crucifixes in a number of institutions.¹⁰ Furthermore, the success of a decision requiring removal of crosses in the European Union was uncertain because the ECtHR has a relatively small amount of influence over the states of the European Union.¹¹

Alternatively, the courts could have allowed the crosses to remain where they were. However, this would implicitly recognize as acceptable religious symbols erected on public property. This outcome was unlikely in the United States because of strong notions of strict separation of church and state, and it would be unusual for the ECtHR given its past case history prohibiting religious symbols on public property.¹²

The ECtHR in Lautsi, eventually chose to allow crucifixes to remain displayed in public schoolrooms by accepting the secular purpose: a symbol of national heritage.¹³ The issue in the United States in Salazar was more procedurally complicated than the direct constitutionality of crosses. The actual issue in the case was whether a land transfer act Congress used to cure an Establishment Clause violation was constitutional.¹⁴ Congress attempted to remedy the constitutional violations connected with a cross placed on public property by transferring the land from public to private property. While the Supreme Court did not rule explicitly on the constitutionality of the cross, its decision did lay out theories of interpretation for religious symbols with secular meanings, including addressing the constitutionality of

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the cross itself.¹⁵ The lan guage in the Court's decision may point to a more accommodating test for religious symbols.¹⁶

Both of the decisions, the ECHR's explicit acceptance of a crucifix in a public school and the Supreme Court's possible acceptance of a more accommodating test, suggest that both courts are moving in similar directions. Furthermore, the direction they choose will have substantial consequences for future decisions. While the beliefs of those who supported the cross and crucifix, including fears that courts would mandate the removal of all religious symbols from the public sphere, have been assuaged for the moment, many remain concerned for the future of religious symbols.¹⁷ Equally vehement are those who argue that the current position of the ECtHR (and perhaps that of the Supreme Court) infringes on individuals who believe that the presence of the crosses violates their right to live a life free from religious influence.¹⁸ Thus, it appears likely that litigation on this issue will continue.¹⁹ For now, incorporating a principle of accommodation may be the clearest and best option for future cases. It would afford protection for religious symbols while leaving open the possibility of rigorous review when indoctrination or oppression is a concern.

It is not the purpose of this Note to offer a normative opinion on either of the decisions. Rather, this Note seeks to perform an analysis of the two cases and explain some striking similarities in the positions taken by the two courts. Two courts, with different cases and with different historical backgrounds and nationalities, appear ready to use or encourage tests that would allow greater presence of religious symbols in the public square so long as they do not invoke oppression or indoctrination. In this manner, both of the court decisions indicate judicial openness to a principle of accommodation. It is this, the parallel movement of the two courts reflecting a more nuanced perspective of the place of these symbols in the public sphere, that is the subject of this Note.

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To make this assertion first requires acknowledgment of the differences between the ECtHR and the U.S. Supreme Court. The ECtHR does not operate under a charter that specifically restricts the interaction between church and state.²⁰ The U.S. Constitution, on the contrary, does include restrictions on the government's involvement with religion.²¹ The different national structures that formed the respective courts are also important because they effectuated significant differences between the functions of the courts. For example, the European Union is more loosely unified than the United States and is an organization of states with unique histories, diverse citizenship and legal requirements, as well as different forms of government.²² Thus, a complete comparison would be inappropriate. Yet, even with these differences, these two courts have indicated preferences for remarkably similar decisions. Finally, note that the cases presented are not identical. Lautsi addressed crucifixes placed in public schoolrooms.²³ Therefore, concerns with indoctrination were far more prevalent than in Salazar, where the cross at issue was a memorial placed in a public park.²⁴ Each of these will be extensively discussed in the next section.

It is clear that singular single, concise answer to the questions before these courts may not be forthcoming.²⁵ Concepts of religious liberty, particularly the symbols that proponents of each side believe they have the right to display or avoid, are by their nature divisive.²⁶ However, a proper consideration of the decisions rendered is necessary before either side may press their case.

Part II will give an outline of both Lautsi v. Italy and Salazar v. Buono and will explain some of the relevant case law and tests used to reach each of these decisions. Part III will discuss the similarities between the tests used by the U.S. Supreme Court and by the ECtHR. Part IV will provide a conclusion and briefly discuss the future of these tests.

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II. THE PATH OF THE CROSSES

By the time Lautsi v. Italy and Salazar v. Buono reached the ECtHR and the Supreme Court respectively, they had developed complicated factual backgrounds and extensive lower court decisions. The decisions of the lower courts are available in the records of those courts. Therefore this Note will spend a substantial amount of time discussing the final decision in Lautsi and focus less on the early case law.²⁷

Salazar v. Buono will not be discussed as extensively, though this Note will give a brief background and history of the case. The decision is slightly older than Lautsi and has been well covered in numerous articles that more completely and clearly elucidate that case and its background.²⁸

A. Lautsi v. Italy

The controversy that initiated the Lautsi case was a parental disagreement with the state-mandated display of crucifixes in Italian public schools. In Italy, a country with a long history and relationship with the Catholic Church, crucifixes had been a part of schools for decades. Indeed, crosses have been displayed in Italian schoolrooms by governmental fiat for over a hundred years.²⁹ During that time, governing bodies in Italy, including those prior to Italy's unification and the Italian state itself, issued a number of...