Neutrality, Religious Symbols and the Question of a European Public Sphere

Abstract

In the last two decades there has been an on-going, fierce debate in members and candidate members of the European Union concerning the use of religious symbols in the public sphere. The exemplary case is, without doubt, the case of the Muslim headscarves, a case that emerged particularly in France and Germany, but also in other places, such as the Netherlands and Turkey. Taking stock mainly from the French example we shall focus on the main normative justification of the prohibition of religious symbols, that is, the principle of laicité conceived as state neutrality. The latter should not be interpreted as secularism, that is, a strict separation between private and public space. Laicité as neutrality should neither be seen in a moralistic way nor privatize religious identity. Part II will examine the jurisprudence of the issue commenting on cases recently adjudicated by the ECtHR. The Court, unfortunately, recognizes a ‘margin of appreciation’ to member states, when the prohibition of religious symbols constitutes a form of both direct and indirect discrimination. Finally, in part III, we will argue that neutrality should be interpreted as real not formal equality towards both religious and non-religious beliefs. Freedom of conscience is intrinsically connected to its public manifestation, which makes the public sphere constitutive of subjectivity. This cuts across the private/public divide and resists the insistence of multiculturalists on collective rights. The task of instituting a European public sphere is a struggle for equality not for common cultural identity.