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The Principle of the Laicity of the State

 and Sacred Images in Public Places:

A Comment on Decision No. 4273 of the Italian Court of Penal Cassation

On March 1, 2000Å

Giuseppe Badini Confalonieri




 Certain decisions of the Italian Constitutional Court have gradually introduced a concept of laicity conceived as nonconfessionality.  On March 1, 2000 the Italian Court of Penal Cassation employed this concept in its decision No. 4273 and derived from it the obligation of neutrality in places of public administration, in particular in schools and polling stations.  The neutrality of public places would prohibit displaying there the symbols of a religion.

 In this paper the author maintains that the concept of laicity understood as nonconfessionality is foreign to the Italian Constitution, and therefore is not juridical in nature, but ideological.  He also believes that because of this concept the Court of Cassation has adopted a principle of neutrality based on a false interpretation of constitutional norms.  The absurd result is that if the principle of neutrality were applied rigorously, placing religious faith and everyone’s ethical and cultural convictions on the same juridical level, then national, republican, and military symbols would be forbidden in the same way as religious symbols, and even the use of the Italian language in official documents could pose problems.

 Finally, the author treats in a general way the relationship between democratic freedom and public choices.  According to the author democracy, which in certain periods in Europe regarded religion with hostility or willful indifference, ought to recognize the importance for its own development of debate over the highest values, ethical and religious values, with respect for every difference of opinion.


In more than one European country the conception of the laicity of the state has been asserted in recent years in terms of the state’s complete nonconfessionality.+   At the same time, several court decisions have been issued in the USA, based on different principles as contained in the First Amendment to the US Constitution.  These are intended to prevent the state from favoring one religion over others and may have led to a similar result, i.e., an excessive separation of the state from religion.

The present note on a recent decision of the Italian Court of Penal Cassation# intends to deny that nonconfessionality has a juridical basis in the Italian Constitution or a theoretical justification in the contemporary democratic model.  In the author’s opinion, equating laicity and nonconfessionality is a mistake that, taken in perspective, tends to deprive the public dialogue of a great part of its creative potential by denying the importance to democratic debate of confronting the most important values, those that are ethical and religious.

With the following reflections the author means only to deny that it is unconstitutional or antidemocratic to display sacred symbols in public places, but not to confront the further problem of whether or not certain specific actions are appropriate, such as displaying the crucifix in schools and courtrooms.  On these specific problems there is no lack of discussion, while discussion is mostly lacking or is poorly formulated on basic problems about the principles of laicity, nonconfessionality, and freedom of conscience.  This absence is not surprising, at least in Catholic circles, since in the long transformation that has followed the Second Vatican Council slowness in constructing a new philosophical and theological base has been especially harmful to public philosophy and theology.  Still within the Catholic community, a second hindering element comes from the difficulty of passing from a clerical conception of the Church to a conception of the Church as the people of God.  In this latter conception, clergy and laity collaborate in evangelization according to principles of complementarity and subsidiarity, in accordance with the decrees of the Council.  The Catholic bishops, who up to now are the only voice that has been raised on behalf of the faithful, know that their function is not to judge the details of social problems.  But there do not yet exist ecclesial organs for consulting the laity, to whom it should belong to promote the understanding and evaluation of earthly structures.  An aid in developing the action of the laity in the Church will surely come from ecumenical encounters and from dialogue with other religions.


The Decision of the Court of Cassation on March 1, 2000

This decision resulted from the appeal to this court of a fine" imposed on an Italian citizen who in 1994 refused to accept the duties of an election monitor, which he had not requested.  The reason he gave for refusing was that a crucifix is normally displayed in polling stations, which are set up in public buildings, even though the station in which he was to serve (inside a hospital in Cuneo) in fact had no crucifix. According to that citizen, the presence of the symbol of a particular faith in public places is unconstitutional because it is contrary to freedom of conscience, so that it should be generally prohibited.

The fourth session of the Court of Cassation, in its decision of March 1, 2000, n. 4273 (430/00), granted the appeal and overturned the sentence because the act did not constitute a contravention of law.  The court’s reasoning, as it concerns us here, was that the presence of crucifixes in public places conflicts with the laicity of the state as provided for by the Constitution, and this conflict justifies the refusal of the post of election monitor, as an expression of a conscientious objection.

To demonstrate the presence in the Italian Constitution of the principle of laicity understood as nonconfessionality, the Court of Cassation invoked previous decisions of the Constitutional Courta.  According to these decisions, laicity is the “profile of the form of state delineated in the constitutional charter of the Republic” (Const. Court, April 12, 1989, n. 203).  This should be taken not only negatively, as an indifference of the state toward religions, but positively as a guarantee by the state “for the safeguarding of freedom of religion, in a situation of confessional and cultural pluralism”.  It consists in “that distinction between distinct orders that characterizes in its essence the fundamental or supreme principle of the laicity or nonconfessionality of the state” (Const. Court, October 8, 1996, n. 334).

The reader may notice the use of the rhetorical image of a “profile”.  It covers like a wrapping the fact that there is no mention of laicity or nonconfessionality in the Italian Constitution.  Perhaps the supreme Italian tribunal should have explained why that presumed fundamental principle is not even named in the Constitution, nor was it adequately discussed by its drafters%.  But, in our opinion, it would not have been able to do so, because that principle is not in the Italian Constitution even by implication.  In the first place, even if it were there it could not be called a "supreme” principle.  A principle is supreme when all other principles depend on it.  But the principle of nonconfessionality, to which the Constitutional Court has reduced the principle of laicity, undoubtedly presupposes other principles, at least the principle of the sovereignty of the state.   

Moreover, the principle of nonconfessionality, even as a subordinate principle, is superfluous in the cases in which the Constitutional Court invokes it and is actually misleading in the application that the Court of Cassation makes of it.

The principle is invoked “for the safeguarding of freedom of religion, in a situation of confessional and cultural pluralism”.  But the safeguarding of freedom of religion and of confessional and cultural pluralism is assured by precise articles of the Constitution, Articles 19 and 21, respectively, on freedom of religion and of opinion (Art. 19:  “Everyone has the right to profess freely his own religious faith…”; Art. 21: “Everyone has the right to express freely his own thought…”), and by Article 9 of the European Convention on the Rights of Man, which protects the freedom to express one’s own religion or one’s own belief.  These articles concern the rights of the individual, while the principle of nonconfessionality refers not to a right, but to a duty, not of the individual, but of the state.  This duty is broader than the simple duty to protect and not hinder the rights of the individual.  The movement from one area to the other, from the rights of individuals to more general duties of the state, requires a positive demonstration.  But this demonstration is not given. 

The presumed nonconfessionality of the state is also superfluous as motivation for eliminating every reference to the Divinity from the formula for oath taking.  Indeed, the Constitutional Court states that nonconfessionality would require that “religion and the moral obligations that derive from it cannot be imposed as means to the ends of the state” (Const. Court, October 8, 1996, n. 334), but Article 19 of the Constitution says much more than one wishes to derive from the principle of nonconfessionality, namely that religion and the obligations deriving from it cannot be imposed in any case, and not only “as a means to the ends of the state”.    

But in the case of the decision of the Court of Cassation that we are examining, laicity as nonconfessionality is invoked to arrive at a conclusion, the neutrality of public places, that goes well beyond the letter or the spirit of the constitutional norm to which it claims to refer (Const., Art. 97).  According to the Court of Cassation, “the impartiality of the function of a public official is strictly correlated with the neutrality (another aspect of laicity always brought up in religious matters by the Constitutional Court—July 15, 1997, 235) of places chosen for conducting elections, which does not permit any exclusions or conditions to be implied even indirectly by the evocative character, representative of the content of faith, that every religious image symbolizes”.  

But it is not possible to bring the neutrality of public places within the scope of Article 97 of the Constitution.  That Article provides that public offices be organized through legal arrangements “in such a way that the good performance and the impartiality of administration are assured”, and that impartiality means precisely that the public official must act in a way that conforms to the law with regard to private citizens. The provisions of that Article therefore do not extend to the neutrality of the surroundings, both because the neutrality of the public surroundings is not prescribed by any law and because, more generally, the neutrality of public surroundings is not in fact a right of private citizens and it would be absurd that it be one. 

The Court of Cassation makes another inappropriate transition in connection with the interpretation of Article 3 of the Constitution, which protects the equal social dignity and the equality before the law of every citizen.  Contrary to what the court affirms (“differentiation is made on the basis of religion whenever one displays the crucifix alone”), displaying a religious image does not damage the equality of citizens before the law, because no law exists that grants the right to put up one’s own religious symbol in places under public administration.

Furthermore, the Court of Cassation has neglected a very important fact.  Religious values and moral values have rightly been placed on the same level both by the Italian Constitutional Court, which has made the convictions of those who do not believe equal to religious convictions (Const. Court 117/97 and 334/96), and by the European Convention on the Rights of Man (Art. 9), which has made the personal creed, the values that direct the conscience of each person, even the atheist or agnostic, equal to religion.  Hence the principle of neutrality, if applied rigorously, would lead to declaring inadmissible the presence in public places of: 1) the Italian flag, since in Italy some citizens are League membersb 2) the republican coat of arms and any explicit reference to the republic, since there are monarchist citizens, 3) any reference to the state and to elections, since there are anarchists and Jehovah’s Witnesses who do not accept our political system; 4) military symbols, since there are pacifists.  The use of the Italian language itself, as the single official language, would be put in question because there are supporters of the use of the dialects as languages of equal dignity with Italian, and in any case there are Italian citizens who do not have Italian as their mother tongue.  


The Theoretical Unsustainability of Nonconfessionality

Up to now, in tracing these court decisions, we have spoken of laicity as nonconfessionality. But the position I shall maintain is that equating laicity with nonconfessionality is a mistake.  Laicity and nonconfessionality are historically and notionally distinct concepts.

Laicity is not nonconfessionality because there can be democracies that are lay and confessional at the same time, as are some of the most solid European democracies, e.g., Great Britain, Norway, and Denmark.  Not only do laicity and nonconfessionality not coincide, but their pairing, far from being a condition for democracy, often in the last two centuries has been the basis of bloody dictatorships.

While laicity and democracy are rightly accepted by the Catholic Church, nonconfessionality is foreign to Catholic thought.  The concept of laicity develops by the differentiation of competences within society: someone who is competent in one thing is not for that reason alone competent in something else.  The Church was the first to assert against the state its own free competence in the religious sphere, and up to our own times this assertion has sometimes required the testimony of one’s life.  Then it was state authority, in the first place the Christian state, that claimed a field of autonomous competence with respect to ecclesiastical authority; this was fully recognized by the last Vatican Council.  In short, laicity concerns the relationship between two institutions, the ecclesiastical and the civil.  The authorities in the Church are not by that fact authorities in the civil sphere, and vice versa.  In this sense laicity is part of modernity.

The concept of nonconfessionality is different.  It refers to the presumed duty of the state not to make decisions that imply affirmations of a religious nature.  But the principle of nonconfessionality is antidemocratic.  In the first place, this is because it unduly limits the possibility of discussion and the possibility of choice that the democratic method accords to society.  Nobody can limit a priori the ability of a democratic society to deliberate. The only limits derive from the criteria that govern the internal dynamics of the democratic system.  In the second place, the need to appeal on occasion to religious affirmations or principles derives from one of the exigences intrinsic to democratic method, the need to render public control effective.  Public control is exercised both before and after public decisions.  The prior control interests us here.  It occurs by positing either objectives or procedural criteria (or both), and then electing persons who guarantee to conform their public choices to those objectives and criteria.  These choices, since they are in the future and depend on conditions at the moment they are made, cannot be predetermined directly.  They can only be determined indirectly, in terms of general objectives and procedural criteria.  Among these objectives there may be ideological and religious principles. If they are present, they must be declared, whether in proposals for laws or in political programs, in order to make public democratic control possible. Democratic politics requires, indeed, that if possible all the “pre-judgments” be revealed that will influence future choices.    

After being revealed, explained, and discussed, the objectives by which future public choices are supposed to be inspired are considered to be fixed, at various levels of generality, by rules set by the majority.  Therefore the modern democratic state is not obliged to be impartial toward ideologies, whether religious, political, or philosophical.  On the contrary, it must choose among them in order to make them into principles of action, unless it wishes to condemn itself to impotence.  Constitutional charters are a paradigmatic example of choices of structures, directions, and values.  In conclusion, the democratic state functions better when it is more able to make significant and relevant choices, provided that these choices do not exclude the freedom to criticize and the freedom of those who think differently to have an influence. 

All of this must happen with respect for the rights of the person, in the spirit of subsidiarity.  The spirit of an authentic democracy must recognize the subsidiarity of the state with regard to persons and intermediate communities, so that any imposition by the state of determinate visions of the world or of determinate religions is unacceptable.  The democratic state does not substitute itself for individuals or for intermediate organizations, but has the purpose of permitting coordinate action toward the further objectives of these individuals and their intermediate organizations, the achievement of which would be impossible or improbable without coordination.  To this end the democratic state allows all to speak and guarantees to each one freedom of thought and of speech, protecting each from subsequent reprisals, but it intends to take advantage of the broad public debate to decide how much cooperation will be able to accomplish.  Nobody will ever be able responsibly to allow others to make choices that depend on his conscience alone, nor will he be able to agree to a collaboration that may force him to act against conscience.  But he can responsibly agree to collaborate in a program that in itself is positive and is otherwise unrealizable, even if it does not always lead to the decision he wished for, provided that his conscience is safeguarded.  Therefore the right to abstain from participating on grounds of conscience must be guaranteed.  Democratic order thus tends to give public life an ethical character.  This is an ethics that respects the person and is quite different from the ethics of the ethical state of not distant memory which, instead, did not respect the person. Thus the democratic state in its essence is in accord with Christian principles.

Out of respect for subsidiarity, then, and because of the democratic state’s essential ethical character, the nucleus of its strategy will be to promote three areas: education, culture, and religion.  This has already been recognized in the case of culture (Const., Art. 9), which the state is charged with promoting, but it should be recognized for all aspects of culture, most of all for the religious aspect.  The democratic state of the future must become a friend of religion, no longer for “reasons of state” but in order to respond to its own structural need for human and cultural progress.  It should consider every attempt to come near to God a heritage for all, without thereby compromising the respectability of the agnostic, the atheist, or the dissenter.  There is already something of this spirit in the Italian Constitution which, while explicitly protecting freedom of conscience and of expression, pays particular attention to religion. But until now it has been limited by false interpretations of laicity as nonconfessionality, which is interpreted in turn as a-religiousness, interpretations which have affected even the Constitutional Court.

Modern democracy has long been viewed with suspicion by the Catholic Church because of the evil uses that have been made of it or the false theories with which it has been presented.  We cannot hope to convince cultures that have not yet fully accepted it, unless we can make explicit its openness to man and to his fundamental values.

[Translation by Donald E. Buzzelli]

Å [Originally published as “Il prinicipio di laicità dello stato e le immagini sacre nei locali pubblici: Commento alla sentenza della Corte di Cassazione penale n. 4273 del 1o marzo 2000” in Revue “I Tre Anelli-Les Trois Anneaux”, No. 4, October 2002, pp. 87-96.  Revised by the author for this translation.]

+ [The author has provided the following definitions:    

     Laicity is the recognition of the distinction between state and church, as institutions having authority in different areas.

    Confessionality is explicit reference by a law or juridical system to religious principles.  Confessionality so understood cannot justify the imposition of a religion by the state.  That would be contrary to the rights of man and contrary to the principle of subsidiarity and its corollary, the principle of laicity, because civil authorities are not religious authorities.  The principle of laicity is distinct from the principle of confessionality because the two are concerned with different problems.  This distinction is consistent with the historical tradition of many centuries as seen in Dante and Occam, who supported the laicity of the civil power but didn’t at all support its nonconfessionality.

     Complementarity is the principle by which different parts can constitute a functioning whole.  It is basic to cooperation, making possible the integration of different contributions within broad structures.

     The principle of subsidiarity spells out the characteristics of the principle of complementarity when cooperation takes place at different levels.  It requires that higher authority not put itself in the place of lower authority (whether a community or an individual).  It can only be subsidiary to the lower authority, doing what the latter could not do without its higher coordination.  Though the principle has very remote origins, its elaboration in Catholic social teaching began mainly with the encyclical Quadragesimo Anno.]

# [This court (called the corte di cassazione penale) is above the appeals courts.  Appeals of decisions of the appeals courts can be received if they concern questions of law rather than questions of fact.  In Italy a judicial proceeding can take place at three levels, and this court is the third.  It is a single court for the whole country.]

" [The author points out that the fine in this case was 400,000 lire, about $200. The costs of three levels of judicial proceedings are much greater than the amount of this fine, and often are not reimbursed even if the appeal is granted.  These costs obviously were sustained in order to support a principle, and not only to contest the fine.]

a [Cases can be appealed to the Constitutional Court from any judicial level whenever there is a question about the constitutional legitimacy of a law or act in force in the country or in one of the regions.  Insofar as it decides on the basis of constitutional norms, which have priority over all other norms, this court can be considered superior to all other Italian courts.  But it cannot be considered a level of appeal higher than other courts, in the sense that it cannot decide on specific questions of fact or law that are the object of particular proceedings.]

% [These are the deputies elected to the Constituent Assembly that worked from 1946 to 1948 to draft the new Italian Constitution.] 

b [These are members of the Lega, a political party that would like Italy to become a federation of autonomous regions.  Since the present Italian flag is a symbol of the unified state, it could be opposed by the more ardent federalists.] 


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