10 ANTHROPOLOGY TODAY VOL 28 NO 2, APRIL 2012

Elayne OliphantElayneOliphantisaPh.D.candidateattheDepartmentofAnthropology,UniversityofChicago.Heremailiselayne.m.oliphant@gmail.

A European court should not be called upon to bankrupt cen-turies of European tradition. No court, certainly not this court, should rob the Italians of part of their cultural personality. (Concurring opinion of Judge Bonello, 1.2, Lautsiandothersv.Italy, European Court of Human Rights 2011)

In March of 2011, the European Court of Human Rights (ECHR) made a ruling which ran counter to current trends in European courts and legislatures. At a time when the French government has banned headscarves from class-rooms and burqas and niqabs from the streets; and when a referendum altered the Swiss constitution to forbid the construction of minarets throughout the country,1 the ECHR has affirmed the right of the Italian state to display crucifixes on the walls of its public school classrooms. Those who succeeded in arguing for the presence of cru-cifixes in Italian schools did so not by advocating for the now entrenched human right of the freedom of religious expression. Instead, claimants declared that the crucifix was, in fact, a cultural and historical sign that could not simply be reduced to religious terms.

The crucifix – according to many of the Christian and governmental organizations who constituted the ‘others’ in Lautsiandothersv.Italy – is a symbol that stands not just for Christianity but also for ‘tolerance’ and, therefore, for secularism.2 The petitions heard in the Court, its decision, and the concurring judgements, reveal the ambiguity of the categories of religion and secularism in Europe today. I explore how these discourses are illustrative of the lack of agreement surrounding the distinction between the reli-gious and the secular and the implications that this fragile boundary holds for different religious groups and their accompanying symbols within the European Union.3 I will argue that, in Europe today, Christian symbols are treated as flexible signs that may be attributed religious or secular meanings in different spaces and times. In contrast, sym-bols associated with Islam4 – as the recent legislative acts would suggest – are increasingly relegated to purely ‘reli-gious’ meanings that threaten the European public sphere.

‘Secular’ ChristianityThe meaning of the secular, as the case of Lautsi andothers v. Italy illuminates, is context-dependent. In eve-ryday speech, it can denote anything from atheist or agnostic to multi-religious; from a conceptual or physical space in which religion is absent, to one with a diversity of religious forms. I argue that secularism and secular are best understood as describing the local, ever-changing, and often contradictory and unequal relationships pro-duced through states, public discourses, and minority and majority religious institutions and their accompanying vis-ible signs.

In 2000, Leora Auslander has explored the French law against headscarves in schools and a highly contested German court ruling against crucifixes in Bavaria, as expressions of a loss of national control in the face of the expansion of the European Union and global capital flows. Saba Mahmood has identified a number of cases brought to the ECHR during the 1990s whereby the secular Court ruled in favour of restrictions on free speech that were deemed ‘offensive to Christian sensibilities’ (2009: 855). Here, I focus on some of the legal and constitutional spaces5 in which the meanings of the religious and secular are negotiated in Europe. Elsewhere (Oliphant, forth-coming), I explore how these categories are determined in spaces of cultural exchange and production.

Despite clear gaps in consensus surrounding these terms, I argue, they continue to be deployed as if the border dis-tinguishing the two were clearly demarcated. The recent ECHR decision produced – rather than interpreted – this boundary anew in ways that reproduce very real dispari-ties between groups variously associated with ‘religious’ and ‘secular’ identities in Europe. There are unsettling implications in attributing versatility to the sign of the crucifix while denying such flexibility to other religious symbols. Engelke (2011) has similarly charted attempts to make the Bible and biblical language relevant to present-day ‘Culture’ through carefully calibrated marketing cam-paigns in Manchester.

Disagreeing on the crossA court of human rights cannot allow itself to suffer from his-torical Alzheimer’s. It has no right to disregard the cultural continuum of a nation’s flow through time, nor to ignore what, over the centuries, has served to mold and define the profile of a people. No supranational court has any business substi-tuting its own ethical mock-ups for those qualities that history has imprinted on the national identity (Concurring opinion of Judge Bonnello, 1.1, Lautsiandothersv.Italy, European Court of Human Rights 2011).The case of Lautsiandothersv.Italy was first brought to

the ECHR on 27 July 2006. Since 2002, Italian administra-tive and national courts had provided judgements both in favour of and against the claimant. Soile Lautsi, an Italian woman acting in her own name and on behalf of her chil-dren, initiated the complaint to the ECHR under Article 34 of the Convention. She declared that the presence of the crucifix in public classrooms contradicted her children’s right to freedom of conscience (Article 2 of Protocol 1) and her right to educate them as she saw fit (Article 9 of the Convention). The courts she encountered rarely agreed with one another, with each higher-level chamber over-turning the decision of that below. The crucifix was mobi-lized as a complex sign in a variety of contradictory ways throughout this process.

In November 2009, one year prior to the Grand Chamber’s final ruling, the ECHR’s second chamber – the decision-making body directly below that of the Grand Chamber – ruled unanimously that ‘there had been a vio-lation of Article 2 of Protocol 1, taken together with Article 9 of the Convention’ (Lautsiandothersv.Italy,The Law, A. 30). According to this lower court, the majority status of Catholicism in Italy meant that the display of the crucifix – which, here was identified as an ‘unquestionably’ religious symbol – worked counter to the government’s mandates of pluralism and neutrality.

In response to this ruling, the Italian government argued that had the lower chamber benefited from a ‘comparative perspective’ it would have seen the diversity of forms of secularism found across member states of the Union. The Court’s insistence on ‘neutrality’, the government insisted, was a misnomer. It mistakenly equated ‘neutrality’ (an ‘inclusive’ term) with that of ‘secularism’ (an ‘exclusive’ term). That is, the Court was enforcing a code that the government of Italy perceived – despite having earlier pointed to its plurality of forms – as a specific ideology that stood in contrast to ‘neutrality’ (Lautsiandothersv.Italy,The Law, B. 1. 33-36,). By insisting upon secularism, according to this logic, the Court was imposing one par-ticular ideology over others.

The Italian government further acknowledged that the crucifix is ‘primarily’ a religious symbol, but insisted that

Funding for the writing of this article was provided by the Mark Watkins Fellowship from the Department of Anthropology at the University of Chicago. I would like to thank the students who participated in ‘Europe’s Religions and Secularisms’ in the spring of 2011 in the International Studies Department at the University of Chicago. Our conversations helped to motivate the writing of this article. Finally, helpful feedback was provided by Alex Blanchette, Tatiana Chudakova, Susan Gal, Kate Goldfarb, Kenneth Hepburn, Caroline Schuster and three anonymous reviewers for AnthropologyToday.

1. French law number 2004-228 was signed by President Jacques Chirac on 15 March 2004. The law ‘forbidding the concealment of the face in public spaces’ went into effect on 11 April 2011. A constitutional amendment banning the construction of minarets in Switzerland was approved in a national referendum by 57% of the population in November 2009.

2. The equation between tolerance and secularism has been made frequently since, at least, the writings of John Locke at the close of the 17th century. Writing in a bid to end the wars of the religion, Locke imagined a ruler who would ‘tolerate’ the presence of other religious persuasions. Locke’s notion of tolerance, however, applied to Protestants and Catholics alone (Locke 1937).

3. The European Convention on Human Rights as well as the European Court of Human Rights are the products of the Council

The crucifix as a symbol of secular EuropeThe surprising semiotics of the European Court of Human Rights

Fig. 1. RomanCatholiccrucifix,asymbolexpressiveofChristianandsecularideasalike.

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of Europe, as opposed to the European Union. The Council was formed in 1949 and now has forty-six members – far more than the Union – including, notably, Russia and Turkey. Since the Maastricht Treaty, ratification of the Convention has been a necessary step in EU accession. The Treaty of Amsterdam gave the European Court the power to rule on EU institutions in light of the Convention. Proposals were made during the 1990s for member countries to accede to the European Court, but these were ultimately rejected. See Dembour (2006) for more on this history.

4. As will become clear below, I do not take what counts as an ‘Islamic symbol’ for granted but attempt to trace how signs are named as ‘religious’, ‘cultural’, ‘historical’, or ‘secular’ through processes of language, legal and legislative adjudication, and forms of cultural exchange and production.

5. While this point is somewhat tangential to the argument at hand, that it is the legal sphere administering judgement on the connotations of visible expressions of religion and secularism is important, given that the law stands in as the secular site in which universal truths that transcend particular experiences are negotiated. That is, the legal instruments of constitutions, courts, and legislative acts are ‘icons’ of secularism that – in many respects – replace the role of religion in determining the ethics of everyday life.

6. Greece and England, for example, are both countries with formal State-Church relationships enshrined in their constitutions.

7. To my knowledge, the ECHR has made only one ruling

the presence of the crucifixes in Italy’s public schools is the result of a ‘historical development, a fact which gave it not only a religious connotation but also an identity-linked one’ (Lautsiandothersv.Italy, The Law, B. 1. 38). According to Grand Chamber documents summarizing the case, this symbol ‘now corresponded to a tradition which [the Italian government] considered important to perpetuate…Beyond its religious meaning, the crucifix symbolized the princi-ples and values which formed the foundation of democracy and western civilization’ (ibid.). The slippage here is thus two-fold. Secularism both exists in a plurality of forms throughout Europe and is a rigid ideology not to be equated with neutrality. The crucifix, furthermore, is a religious symbol as well as a cultural icon with values that stand at the root of (secular) democracy and the West.

Crosses in the high chambersThe case arrived at the Court’s highest chambers in 2010. The number of applicants had increased and included sev-eral European governments, ‘free-thinking’ organizations, Christian groups, and a joint submission of the European Parliament. The broad array of claims made about the cru-cifix and its possible interpretations by this diversity of applicants is nothing short of remarkable. I will explore three ways in which the crucifix was read: first, as a sign of secularism; second as a passive object; and third, as emblematic of universal values.

The governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, and the Republic of San Marino, for example, followed up on the task set out by the Italian government and described the diversity of Church-State relationships across member countries.6 While they suggested that ‘more than half of Europe’ did not actually live in a ‘secular’ state, when it came to justifying crucifixes in public school classrooms, the government applicants – like the Italian government – contradicted earlier claims regarding the religious char-acter of many European states. Instead of highlighting the ongoing presence of religion in European public spaces and thereby basing their claim for the display of the cru-cifix on the right to religious expression, the governments made the now familiar slippage from ‘Christian’ to ‘sec-ular’. According to court documents summarizing their arguments, the government applicants claimed that:

State symbols inevitably had a place in state education and that many of these had a religious origin, the Cross – which was both a national and a religious symbol – being the most vis-ible example. In their view, in non-secular European States the presence of religious symbols in the public space was widely tolerated by the secular population as part of national identity. States should not have to divest themselves of part of their cultural identity simply because that identity was of religious origin. [Lautsiandothersv.Italy, The Law C. 1. 47]

‘Secular’ citizens, according to these government claim-ants, must tolerate the crucifix in public schools because – for those who know how to interpret it properly – it simply connotes the ‘national’ identity of a now secular country, no matter what its religious ‘origins’.

In contrast, the non-governmental organization the European Centre for Law and Justice (ECLJ) argued that the lower chamber had acted outside its jurisdiction by altering the nature of the question before it. Unable to determine whether the ‘first applicant’s children’s “innermost or personal convictions” had been violated on account of the presence of the crucifix in the classrooms…the Chamber had created a new obligation to ensure that the educational environment was entirely secular’ (Lautsiandothersv.Italy, The Law, C. 6. 52). The ECLJ insisted that the mere presence of the crucifix could not have vio-lated the internal convictions of the children because, as an object, the crucifix cannot compel a subject to action nor force the children to alter their beliefs or, at least, those that their parents have attempted to instil. Other applicants to the case made a similar argument about signs, arguing that they are ‘passive’ and ought not to be misunderstood as agents acting in and affecting the world.

Finally, and, perhaps, most interestingly, three Christian organizations from Germany, France, and Italy expanded upon the two arguments described above. They declared it to be ‘hard to understand’ how the sight of the crucifix could be ‘disturbing’ and suggested that its ‘presence alone could not be equated with a religious or philosophical mes-sage; it should rather be interpreted as a passive way of conveying basic moral values’ (Lautsiandothersv.Italy, The Law, C. 9. 55).

Here, the Christian organizations both re-asserted the non-coercive and passive nature of signs (as well as the non-threatening nature of the crucifix) and, surprisingly, supported the possibility of a purely secular reading of this particular symbol. An object’s mere presence cannot be equated with proselytizing; and, somewhat contradic-torily, this particular sign is merely a way of conveying ‘basic moral’ (i.e. not only religious) values. That claims to the extra-religiosity of the crucifix are made by Christian groups points to the complexity of – as well as the stakes involved in – any attempts to establish a boundary between the secular and the religious.

Declarations of this sort also highlight the flexibility with which Christian symbols in particular may be mobilized. For these claimants, not only is it possible to interpret this symbol as cultural or historical, but by extension, the very source from which the symbol comes – the Christian faith – is taken not just to be a religion, but a cultural history that stands at the core of the development of secularism. As the recent legislative acts against Islamic symbols in

Fig. 2. PhotoofaclassroominanItalianprimaryschool,showingacrucifixhangingdirectlyabovethechalkboard.Fig. 3. EuropeanCourtofHumanRightsinsessiondeliberatingcasenumber30814/06:Lautsi and others v. Italy,17.03.2011.

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about Islamic signs. In the 2004 decision in Sahirv.Turkey, the ECHR upheld the right of the Turkish government to ban the wearing of headscarves in universities and state schools.

Asad, T. 2003. Formationsofthesecular:Christianity,Islam,modernity. Stanford: Stanford University Press.

2006. Trying to understand French secularism. In: de Vries, H. & L.E. Sullivan (eds). Politicaltheologies:Publicreligionsinapost-secularworld, 494-526. New York: Fordham University Press.

— 2008. Reflections on blasphemy and secular criticism. In: de Vries, H. (ed.). Religion:Beyondaconcept, 580-609. New York: Fordham University Press.

Auslander, L. 2000. Bavarian crucifixes and French headscarves: Religious signs and the postmodern European state. CulturalDynamics12 (3): 283-309.

Blommaert, J.& J. Verschueren 1998. Debatingdiversity:Analysingthediscourseoftolerance.London: Routledge.

Connolly, W. 1999. WhyIamnotasecularist. Minneapolis: University of Minnesota Press.

— 2011. Some theses on secularism. Culturalanthropology26(4): 648-656.

Dembour, M. 2006. Whobelievesinhumanrights?ReflectionsontheEuropeanConvention. Cambridge: Cambridge UP.

Engelke, M. 2011. The semiotics of relevance: Campaigning for the Bible in greater Manchester. AnthropologicalQuarterly84 (3): 705-736.

Keane, W. 2005. Christianmoderns:Freedomandfetishinthemissionencounter. Berkeley: University of California Press.

Lautsiandothersv.Italy. Application no. 30814/06. Grand Chamber. European Court of Human Rights. Judgement. Strasbourg: 18 March 2011. http://www.echr.coe.int/ echr/resources/hudoc/lautsi_and_others_v__italy.pdf

Locke, J. 1937. Aletterconcerningtoleration. New York: D. Appleton Century Company.

Mahmood, S. 2009. Religious reason and secular affect: An uncommensurable divide? CriticalInquiry 35(4): 836-862.

Oliphant, E. Forthcoming. Signs of an unmarked faith: Secular visions of religion, race, and the city in Paris. PhD Dissertation, University of Chicago.

Europe reveal, the politics of implicating religion within notions of culture and civilization produce very different results depending on the religion about which such claims are made.

The Court’s final ruling is, itself, rather banal. Overturning the decisions of the chamber below, fifteen of seventeen judges ruled that there was no violation of Article 2 of Protocol No. 1 and that Article 9 of the Convention did not produce any separate issues.

The Court justified this decision, in part, on this notion of the passivity of the crucifix. As a sign, the Court argued, its mere presence does not encroach upon individual liberty. Whatever the object or idea for which the crucifix might be icon, index, or symbol, the Court felt that it ‘cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activi-ties’ (Lautsiandothersv.Italy, The Law, D. b. 72). Not unlike a Reformist Protestant critique of the Catholic ‘fet-ishization’ of symbols such as paintings, relics, and, most controversially, the Eucharist (see Keane 2003), the Court rejected applicants’ claims about the agency of objects, refusing to give credence to suggestions that the crucifix could be anything other than a ‘passive’ symbol lacking the power to alter the interior beliefs of young students.

In addition to clarifying the proper source of agency as residing with subjects rather than objects, the Court – despite a declaration that it was not under its ‘purview’ to come to a decision regarding the meaning of this symbol – ultimately did rule on the manner in which this partic-ular sign ought to be read. According to the concurring opinion of one judge, ‘the mere display of a voiceless tes-timonial of a historical symbol, so emphatically part of the European heritage, in no way amounts to “teaching”’ (Lautsiandothersv. Italy, Concurring opinion of Judge Bonnello 3.3).

Other concurring judges acknowledged that the crucifix is ‘primarily’ a Christian symbol, but agreed that it does not require a religious interpretation. Despite its refusal to define the ultimate meaning of the symbol, the Court’s conclusion that the crucifix might be read beyond religious terms – most significantly as an ‘emphatic’ symbol of ‘European heritage’ – naturalizes the place of Christianity in ‘secular’ Europe in a way that symbols associated with other religions are denied.

In an extraordinary summation of Christian history, one lower Italian administrative court wrote that, ‘with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the prin-ciples of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State’ (Lautsiandothersv.Italy, The Facts, I. 15. 11.6).

Such an account, rather remarkably, foregrounds three central historical reasons why the crucifix may be read as a symbol of – among other things – intolerance, while simultaneously insisting upon the ease with which this complex sign stands for the tolerance presumed to be at the foundation of the secular state. That is, the Italian court both called attention to and denied the legitimacy of the history of violence that the crucifix symbolizes for some of its viewers.

Anthropology on Christian ‘secularism’The anthropologist of secularism Talal Asad has persua-sively argued that the production of an image of a European public sphere as always already tolerant requires a series of contradictions and historical forgettings, such as coloni-alism and the Holocaust (2003; 2008). Similarly, linguists Jan Blommaert and Jef Verschueren take the example of Belgium to explore the gap between ‘ideals’ and ‘observed

historical facts’ that allow for claims, such as those in a 1989 EU study on ‘Racism, xenophobia, and intolerance’ that ‘the European is by nature noble and humane’ (1998: 64). According to Asad, in the gap between the ideal and reality, the sovereign secular state is able to determine who is deserving of tolerance and what, precisely, tolerance is. Thus, while governments, courts, and citizens throughout Europe take for granted the existence of tolerant, secular states, I follow scholars such as Asad, Connolly (1999) and Mahmood, in exploring the processes by which tol-erance and the boundary separating the religious and the secular are defined in unequal ways.

Here, I have provided an example of how ‘the expres-sive character of Christian insignia, secular dress codes, regularized gestures, public vocabularies, strategies of justification, and styles of walking…do not appear as affronts to secular neutrality’ (Connolly 2011: 652). The freedom given to Christian signs stands in sharp contrast to the excessive legislation of similar modes of Islamic embodied expression.

Signs of the secular and the religious, therefore, rather than existing a priori, are produced locally and differ-entially in particular spaces and time. This production of secular and religious meanings and representations is evident in the Court’s ruling. Those who know how to interpret a crucifix will not be bothered by the presence of this symbol. It ought not bring to mind a history of anti-Semitism, forced conversion, and intolerance. It need not even be read primarily as the central symbol of the Christian faith. If one is gazing at this sign in a more total-izing way (‘with hindsight’), it is a sign whose religious connotations are far less important than its symbol as ‘the foundation of the secular State’. The crucifix – in the eyes of the Court and many others – is something more than a religious symbol. It is, for those subjects who can see it properly, a sign of secularism.

The ECHR will likely be asked to rule on the legality of some of the legislative acts against Islamic signs over the next few years.7 One logical outcome of the precedent set by Lautsiandothersv.Italy would be the enforcement of the inclusion of burqas, minarets, and headscarves in European public spaces. However, a more troubling reading of the case – which I have presented above – sug-gests that how the Court might recognize Islamic signs would be markedly different from its reading of the cru-cifix. The ability to display minarets, burqas, and head-scarves, according to this reading, would be interpreted as emblematic of the secular tolerance of the Union that allows for the presence of these ‘religious’ symbols in its public spaces, thereby further relegating signs of Islam outside of the ideal of secular Europe. Anthropological studies that pay heed to the linguistic, cultural, legal, and discursive expressions of, in Engelke’s (2011) terms, ‘strategic secularism’, denaturalize claims about the innate meanings of these symbols and highlight the unequal pro-cesses through which they are produced. l

Fig. 4.Mapshowingtheforty-sevencountriessubscribingtotheEuropeanConventionofHumanRights.

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