The Europe of those who don't believe

Nicola Colaianni

Preface, in the Italian version, to the volume Non-believer's Europe: models of secularism, individual statuses, collective rights, edited by A. Orioli, Nessun dogma, Rome, 2019, currently being printed, which collects the proceedings of the Conference, with the same title, organised by the U.A.A.R. and held at the European Parliament (Brussels, 22-23 March 2018). It is published by kind permission of the Publisher Stato, Chiese e pluralismo confessionale.

Contribution not submitted for evaluation.

Nicola Colaianni
(former Professor of Ecclesiastic Law
at the University of Bari 'Aldo Moro', Department of Law)

The Europe of those who don't believe

1 - Almost thirty years have passed since, among the various declarations at the bottom of the Maastricht Treaty, a rather unexpectedly one appeared committing the European Union to "transparent, constant and regular dialogue" with churches and religious associations or communities" no more and no less, however, than with philosophical and non-religious organisations". An apparently innocuous statement, since it expressly excludes that the status assigned to those organisations by national laws can be affected by it, but politically binding for the Union, so much so that it made its way and spilled over into Article 17 TFEU, thus also assuming a legally binding character. The declared extraneousness of the religious matter, in a positive or negative sense, to the competences of the Union is thus attenuated by the institutionalisation of dialogue with these organisations, placed on an equal footing. Non-belief is rescued from irrelevance, it emerges from what had been called the jumble of the 'indistinct ones'. And the new Union adopts a form of neo-separatism with respect to all those organisations: not merely respectful but indifferent, but publicly appreciative.

Can this neo-separatism of the Union influence national rights? Not formally. But, the authoritative interpretation theorist Emilio Betti argued that every rule, once laid down, has a surplus of meaning that goes beyond even the territory in which it formally has validity. And this, in a globalised world, and in the case of Europe also formally integrated and subject to the constraints of the Union's order, becomes increasingly valuable. Can national laws treat differently realities that in EU law are placed, admittedly with their differences, on the same level? In short: according to the Treaty, there is 'the Europe of those who do not believe'. But is there also the Italy, France, Germany of those who do not believe?

It is enough to ask oneself this question to appreciate the UAAR's initiative to offer the material, reworked by talented scholars, to compare the legislative situation of Western European states: not all of them (Spain, Portugal, Holland, for example, are missing) but the sample is sufficiently representative of the Western European reality. It, in fact, includes the country without a written Constitution (the United Kingdom), countries that are officially denominational (again the United Kingdom and Malta) and secular (France and, although not expressly – but its Constitution dates back to 1831, when the term was not widespread – Belgium), countries that are broadly 'concordatory' (Germany, Italy) but adhering to the pattern of the secular state.

And the initiative also stands out positively because the theoretical debate reported in this volume follows a recent, rather surprising, ruling by the Italian Constitutional Court that denied the UAAR the right to even enter into negotiations with the State (even in the face of a possible negative outcome) on issues that are dear to the hearts of atheists, agnostics and rationalists (or humanists, as they call themselves elsewhere). The study's initial placement of this ruling gives due prominence to a judicial action that constitutes the UAAR's positive contribution, in terms of the Constitution, to the resolution of the problem of a Europe that is home to all, believers and non-believers, different but equal.

2 - It is barely necessary to point out that this problem does not concern the individual's right not to believe and to manifest it. This is indisputable, even in countries that recognize a pre-eminent position for a church or religion, because they too are parties to the European Convention on Human Rights, where art. No 9 recognises freedom of thought, conscience and religion, which includes the right to change one's religion or not to have any religion at all. It is significant that in a country like the United Kingdom, which lacks a written Constitution and, therefore, no specific rule on the status of religion or non-religion, the conventional rule, in combination with the 2003 European directive that extended anti-discrimination legislation to faiths and beliefs, has recently been perfectly taken up by the English Equality Act of 2010: "Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”. Of course, the question of the notion of belief remains open (not, according to the case of Grainger plc v. Nicholson reported by Callum G. Brown and Jane Mair, simply an opinion or a viewpoint but endowed with cogency, seriousness, cohesion and importance: all known, moreover, that even in the jurisprudence of other legal systems lend themselves to a considerable dose of interpretative subjectivism). Just as the limits of the enforceability of the belief against others of a contrary sign remain uncertain so as not to result in discriminatory conduct. Here we must rely on the wisdom of jurisprudence in balancing opposing rights and goods of equal constitutional importance.

An interesting example is the case of Lee v. McArthur: a couple of Northern Irish pastry chefs, of Protestant Christian faith, refuse to package the wedding cake ordered by a homosexual couple. Brown and Mair report that the case was framed hinc et inde in the context of a struggle between religious rights and secular or non-religious rights (but inaccurately, they rightly observe, because there are also gay couples who are religious). The judges on the merits condemned the pastry chefs but the Supreme Court, with a decision of 9 October 2018 – not included in the report because it was subsequent – overturned the decision: the refusal concerned the packaging of the cake but not because of the sexual orientation of the customers – this would have been humiliating for their dignity, the Court points out – but of the writing, which they had asked to be affixed to it, "Support Gay Marriage". The confectioners did not intend to contribute their services to this support. The refusal, therefore, was motivated by freedom of expression, which includes the freedom of "not to express any opinion which one does not hold". The decision is similar to the one issued in a similar case a few months earlier by the U.S. Supreme Court (Craig and Mullins v. Masterpiece Cakeshop, June 4, 2018) but does so with precise motivation. In the American decision, in fact, the outcome of the balance is unconditional (a pure and simple refusal is declared to prevail, because guaranteed by the First Amendment) while in the European case it is measured and freedom of expression prevails in relation to the writing to be affixed to the cake. However, the relevance of the decision to the issue is doubtful, because it does not appear that the gay couple was non-believers; Be that as it may, however, the judgment seems to be acceptable and shows that in the field of individual rights, ordinary anti-discrimination legislation is effective even if it cannot cover all cases of life. Moreover, it is appropriate that I do not block them once and for all: the judges must have the last word.

3 - Therefore, the problem, posed by Article 17 TFEU, concerns the treatment in national legal systems of non-denominational organisations, be they philosophical or humanist or whatever else one may choose to name them (Giovanni Gaetani's essay is devoted to an analytical review of these organisations). The treatment, as can be seen from all the essays published here, is still unequal. Of course, this does not always depend on the systems. It depends in many cases on the lack, de facto, of non-denominational organisations. Unlike believers, who claim that a collective dimension of their faith is essential and therefore organize themselves, non-believers are mostly individualists and, even when they associate for particular purposes – as has been happening since the end of the last century in some European countries (as well as in the United States) –, give pre-eminent value to their individual freedom. Non-denominational organisations do not practise the path that leads many ethnic and religious communities to set themselves up as new 'principles', to which adherents sacrifice their individual rights. However – as Thomas Heinrichs rightly observes in relation to school curricula, but also to broadcasting commissions, in Germany – ”the state expects religions and belief systems to be organised in the same way as the churches”. And this does not happen: either because there is no organisation at all, as in most countries, or because, on the contrary, there are far too many (as Francesco Alicino recalls, in 2011 in France twenty-six of them signed the Manifeste des Associations et Organisations Laïques), which ends up pulverising representativeness.

Of course, the organisation is not used to claim a narcissistic equivalence to denominational organisations but primarily to avoid discrimination against non-believers. The organisation is used, in fact, to obtain treatment that is not only special (which is correct to guarantee differences) but often exceptional, a privilege: and this is not indifferent but produces negative externalities for those who do not belong to that organisation: in the religious field, the non-believers. The difference in treatment they receive in the absence of organisations recognised on an equal footing (see, for instance, Germany or Italy) or in their presence is evident. In Scotland, to take up the example given by Brown and Mair, the presence of the Humanist Society Scotland allowed – albeit by act of the civil registrar – the registration of marriages celebrated according to Humanist rites by ministers approved by the said organisation.

Emblematic is the case of Belgium, where the equivalence between churches and non-denominational organizations established at European level by Article 17 TFEU since 1993, has implicitly underpinned a constitutional provision: Article 181, in fact, establishes that not only the salaries and pensions of ministers of religion, but also those of délégues des organisations reconnues par la loi qui oflrent une assistance morale selon une conception philosophique non confessionnelle, are to be paid by the State. It seems, Jean-Philippe Schreiber observes, a 'situation practically unique in the world': la Laïcité organisée as 'a kind of non-denominational Church - with its references and traditions, its rituals, its identity, its moral and social services, its authorities'. Explicitly, in truth, only in a very specific sector, that of assistance, but in fact also in others (television programmes, chaplaincy, municipal subsidies, etc.), so much so as to lead the rapporteur to consider the Belgian model more 'secular' than the French one. It does not seem obvious, however, that the Constitution minus dixit quam voluit also for the generalised recognition of organisations operating in this field, that is, that Art. 181 is extensible as expressive of a general principle. The expansive capacity of Art. 181 appears revocable in doubt, if it is true that for several years and still today, the application for recognition of the Buddhist organisation has been under examination, while Hinduism is appearing on the horizon: religions that, to take the example of a concordat country like Italy, with a Catholic priority, have long since been easily recognised by the State, with which they have also stipulated agreements.

Naturally, such advantages – which result in disadvantages for non-believers – are even more extensively granted to religions by those countries that (only) entertain bilateral relations with denominational organisations: this is the case in Germany and Italy. This explains why the initiative of an Italian non-denominational organisation, the UAAR, has turned to extending the institution of the 'agreement', provided for in Article 8 of the Constitution to regulate the relations of religious denominations with the State, to non-denominational organisations as well. Clearly, this use implies the possibility of making these organisations a species of the 'religious denominations' genre (not a distinct species, as in Belgium, but the practical effects would be the same) and, going even further upstream, of defining religion in a broader and more comprehensive manner (an issue ventilated, as mentioned above, also in the reports by Brown and Mair, by Schreiber, by Heinrichs). In the event of a negative assessment by the government, the judge should have the final word. But the Italian Constitutional Court has denied this possibility, interpreting the agreement as an essentially political act and consequently attributing to the Government an unquestionable right even to initiate, or not to initiate, the agreement negotiations. Referring to Marco Croce's detailed critical observations, I will limit myself here to noting how the Court does not disregard the constitutional requirement of effective equality of rights between believers and non-believers, but links its fulfillment not to agreements (which, as mentioned, the political power can decide to enter into or not), but to the unilateral law of the State, which must ensure equal freedom for all. This formal arrangement of the sources and their effects is acceptable in principle, but in reality it clashes with the fact that a law on religious freedom - proposed by the Craxi government as early as 1984 on the occasion of the revision of the Lateran Concordat - has never crossed the threshold of a parliamentary chamber. At most, a dozen years ago, it stalled in the investigative committee, getting stuck there after an exhausting series of hearings, to which, paradoxically, a representative of the Catholic Church was also invited, i.e. the counterpart of the organisations concerned, those without an agreement, denominational or otherwise, who naturally spoke out against the evocation of the principle of secularism in the bill.

4 - Does a model of Europe as a home also for non-believers emerge from the panorama outlined in the book, to which reference should be made for a desirable standardisation of national rights? At first glance, one would say yes, thinking of the Belgian model, apparently superimposable on the one outlined in Article 17 TFEU. But – beware!, warns Schreiber – it could even be a counter-model insofar as it resolves secularism into the "recognition of one conviction among others", rather "put on the same footing", but losing sight of the political objective of a "deeper secularisation of public institutions". It could be observed, since we are on this level, that politics also knows intermediate objectives and that the Belgian step does not seem to jeopardize the achievement of the final goal (whatever content is assigned to it) and therefore, not being incompatible, it is not a counter-model.

Rather, it is in principle that it does not seem to be a model because it is contrary to the separatist principle to charge the State with the salaries and pensions of ministers of religion and humanist delegates who offer moral assistance (as is the case, that is, with regard to military, hospital, prison chaplains in a concordat country such as Italy or with regard to teachers of religion in Germany and again in Italy or in general with Catholic schools in the land of the laïcité de combat). The risk of laïcité ecclésialisée (as it has been defined by the sociologist Claude Javeau) is that of reducing these organizations not to a conviction among other convictions but to a conviction among other churches: a clericalization of philosophical organizations.

The reality is that none of the models practiced in Europe has been able to prevent Christian religions, and among them mainly Catholicism, from playing a preponderant role in social organization and public discourse. This happens not only in the concordat countries, such as Italy and Germany (Balthazar, Heinrichs), but also in others. Just think of the denominational schools of non-concordat countries: of significant numbers in France (Alicino), a third of the total in the United Kingdom (Brown and Mair), even the majority in Belgium (Schreiber). But it's not just a matter of organization. The presence of the churches, and in particular of the Catholic Church, is also predominant in public discourse, in radio and television programs, in bioethics committees, in civil ceremonies (blessings of public and private works, public commemorations of the dead, etc.) so much more numerous as to appear almost protocol at local level.

This confessionalism of custom – not justified or obligatory by the law, because indeed it goes beyond the law if not against the law – is only in part the residue of a normative past that drags on by force of inertia. In the present political conjuncture, it is also favored by the credit acquired by religious organizations in addressing the epochal question of the reception and integration of immigrants: this is not a problem as long as it does not result in a further factor of "discrimination against philosophical and non-believers" (Heinrichs). But, fundamentally and much more dangerously, this mass confessionalism is a face of the populism that is mounting in Europe (no less than in America).

5 - In the narrative of populism there is at its origin, one would say in nature, a people whose history and identity form a unanimous community (a gemeinshaft, as Giulio Ercolessi recalled in his conclusions), not crossed by divisions of class, ideas, language, religion. Supporting this spiritual unity of the people, and of the peoples of the entire West, is religion: a 'good of civilisation', as the fascist government motivated the introduction in Italy of the crime of contempt of the Catholic religion. The people are united by the sharing of this good and must preserve this unity from disintegration: like the people of Israel during the desert crossing, they must 'make' – build, preserve, defend – this unity before they even understand and perhaps, while arguing, run the risk of splitting.

In the vision of populism, of course, religion is nothing but culture. It does not detect faith but belonging, exactly the belonging without believing, noted by sociologists and echoed by jurists as a limitation based on the reality principle of the institutional and public pre-eminence of religious discourse. Admittedly, in a secular state it is only the religious affiliation, objectively verifiable, that can matter, rather than the actual faith of citizens, whose verification, inevitably subjective and ultimately entrusted to judges, would give rise to a form of neo-jurisdictionalism. But in the populist view, that sociological datum justifies the intrusiveness of religious discourse as a direct expression of the people. A pervasiveness instrumental to the expulsion from public discourse of both political divisions (no to the right and left, yes to the people no to the élite) and religious ones (no to Islam and non-believers, but also to the 'vescovoni', to use the lexicon of the main actor of the populist government in Italy). Populism is against representative democracy and pluralism, which is its substratum, as much as it is against secularism, which, like separatism, implies dualism and is a remedy against the monistic and totalitarian tendencies of all powers. The 'strictest neutrality', in which Ercolessi sees 'the only way to preserve the mostly secular character of our public institutions', is an alien body to populism, because it presupposes the recognition of a plurality of options that is contrary to the unanimity that one wants to restore. Plurality has no place in populism.

This holistic view of society is an obstacle to the construction of a Europe of all, of those who believe and those who do not believe. Europe in this vision does not have multiple roots, it does not include Enlightenment roots, it only has (Jewish) Christian roots, as an attempt was made to enshrine once and for all in the Treaty for the European Constitution. The obstacle is all the greater because on this view also converge some actors of the 'religious market', who likewise deny the separation between religion and politics, even between state and church: divided on everything, the religious right and the so-called 'devout atheists', on the one hand, and the fundamentalist Muslims, on the other, share a holistic vision of society: the intimate union religion-world-state (din-dunja-dawla) justifies the encroachment into the personal, social and political spheres. The holistic view of society is the enemy of pluralism, tending to erect walls between 'us' and 'them'. Populists, religious right-wingers, and devout atheists assert themselves as the 'us' and try to push Muslims back among the 'them', but they do not shy away from joining forces with them in order to confine non-believers to irrelevance. Not only the non-believers, to be true, but also those believers, for whom belonging is not everything, applies because it is a consequence of believing, and faith is not an optional. Symmetrically to what happens in the opposing camp, these believers and non-believers, divided on everything, also share the same vision of society to counter populists and fundamentalists: pluralist and secular.

6 - The antidote to the holistic society is not multiculturalism. The multicultural society we live in is a fact and is not reversible. But multiculturalism is an ideology that opposes to the monism of populism the creation of a plurality of monisms, a series of incommunicable and impermeable cultural monads. That is, an absolutization of the specific community, a mosaic of reciprocally impenetrable communities: thus, in the field of family law, a deregulation of the social fabric, whereby marriage would be entirely subject to religious rights, with the possibility of combining it or dissolving it by marital repudiation in the Islamic one, or with the prohibition to dissolve it by civil divorce in the Catholic one: what is currently the only civil marriage, practicable in various forms, would remain only for non-believers or agnostics.

The antidote to the holistic society is the secular society: totalising fundamentalism, which in some fringes takes on the face and action of terrorism, is answered by pluralism. This explains the apparent paradox, noted by Alicino, of the demonstration after the attack on Charlie Hebdo of "religious organisations in defence of the French principle of laïcité". It is no coincidence, moreover, that the programmatic manifesto of the current pontificate Evangelii gaudium also includes the recognition of pluralism. It is quite clear, however, that this unprecedented alliance with the humanist and non-denominational movements fielded by their historical antagonists, the Churches and 'secular Islam' itself, studied by Olivier Carré, will not take place in the absence of a redeclination of secularism: from the laïcité de combat – often proposed and perceived as coinciding with atheism and therefore excluding – to the laïcité ouverte. Only a pluralist secularity, neither sceptical nor indifferent, can guarantee differences in the multicultural-religious society and oppose resistance to populism and its allies. In fact, it acts as a counterbalance to the weight that religion, in its aspect of religious power, exercises in society, and to the extent to which it exerts it: a proportional counterbalance, endowed therefore – one might say with European Union jurisprudence – with suitability and necessity, that is, with the ability to limit the overbearing and intrusive nature of religion and, furthermore, of strict necessity so as not to limit or even sacrifice its freedom. It is neither indifferent nor monist, it does not work to exclude religions nor humanisms (atheisms, agnosticisms, rationalisms) nor particular cultures from the public sphere. It is pluralist and thus functions as a norm of recognition of the will of the legislator in individual identity conflicts.

A contextualisation of secularism: which, in fact, is not a principle acquired once and for all, it must be incessantly remodelled in the changed European political framework, in which - as the Italian Constitutional Court recognised years ago (sentence no. 440 of 1995) - "different faiths, cultures and traditions have to coexist". This volume, like the conference whose words it takes up, if not – impossibly – the sentiment, accompanies with greater awareness on the path towards a Europe that (as it is written in the preamble of the Nice Charter) truly places 'the person at the centre of its action': thus making feel at home not only those who believe but also, and with equal dignity, those who believe differently and those who do not believe.