Still Fighting God in the Public Arena: Does Europe Pursue the Separation of Religion and State Too Devoutly or Is It Saying It Does without Really Meaning It?

I. INTRODUCTIONSome scholars argue that whereas the United States is religious, Europe is secular. Peter Berger, Grace Davie, and Effie Fokas argue that while religion in America has its own special and important role, political Europe (Western Europe in particular) seeks a secular environment, but in reality is actually anti-religious.1 It is paradoxical that the cradle of Christianity has sought to become its funeral home, at least as it relates to public manifestations of religious identity.2 At the same time, Christianity, which was exported to the New World, flourished, at least in the formal sense. Political systems in Europe are developing a more secularist approach and have begun framing their legal systems based on this developed secularism.3 Some European governments found that secularism can be a great mechanism for defending against the "other" and the "different" while also keeping the idea of human rights alive-human rights, but without any religious, and sometimes ethnic, flavor.The latter is particularly the case in France, with the recent bans on religious clothing.4 The stubborn insistence for such bans did not result so much from a desire to preserve the secular identity of the French Republic as it did from fear of the growing Muslim population.5 Banning public displays of crucifixes and Jewish kippas were just side effects of the religious clothing ban.6The issue is complicated. On the one hand, protecting human rights is necessary, and on the other, protecting the public morals and public order of the system in which we live requires protecting some traditional values since these values shape the system itself. By accepting an ideology of absolute freedom, that freedom will challenge the rules of the society in which we live. Society is tasked with seeking a path to coexistence. This coexistence should be a thoughtful balance of human rights and individual freedoms on one hand (including religious freedoms), and the majority's personal morals coupled with the de facto morals of the state on the other. Human rights do not entail rule by the minority. However, the governing majority should, by virtue of its power and position, do everything it can to protect the minority and its continued existence. This Article does not assert that states should be religiously driven, but that states should be religiously aware.With the use of three European cases (Italy, France, and Croatia), this Article will prove three things. First, there is a perpetual fight against the sacred in the public sphere. Secularist states are too aggressive in their approach toward religion. Secularism's unwillingness to respect the religious components of citizens could produce serious problems within the functioning of the state system and cause unwanted public response. Second, religion is important for public morals and orders. In spite of this fight, courts, and therefore states, are not in a position to reject the spiritual elements of their nations, at least for that tiny part that is connected with culture and tradition and therefore desirable. Finally, there is a way to prevent secularism from driving religion out entirely while still achieving its goal of preserving minority rights.The Article will accomplish this in the following way. Part II of this Article addresses each of the problems caused by a disrespect for religion. Part III proposes a solution to these problems. Part IV then addresses three examples that show these problems as well as how the proposed solution can fix them: Lautsi v. Italy, S.A.S. v. France, and the Croatian Constitutional Marriage Amendment. Part V concludes by summarizing how Europe can find a balance between fulfilling the demands for human rights and preserving the majority's morals.II. PROBLEMS CAUSED BY SECULARISMSecular states that ban public religiosity have four major issues. First, they forget that religious norms are part of the state's public and legal existence. …