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From Exception to Norm: Rethinking Religious Freedom Through the Law of Diversity
By Eugenia Relaño Pastor
The theme chosen for this Symposium, “Building an Infrastructure for Freedom of Religion or Belief,” is deliberately architectural. An infrastructure is not a single wall or a single right; it is a system of interdependent supports—legal, institutional, social, and cultural—without which no single structure can stand for long. My argument relative to this theme is that the classical infrastructure we have built around freedom of religion or belief, however monumental, has load-bearing weaknesses that we can no longer ignore. Those weaknesses appear at two levels: first, in the doctrinal architecture of freedom of religion itself; second, in the poorly integrated architecture built for the protection of religious minorities. I will argue that both weaknesses stem from a common, deeper cause: a jurisprudential and normative trend that continues to treat religious diversity as an exception to be managed rather than as the ordinary condition of contemporary societies. …
In Lautsi v. Italy (2011), the European Court of Human Rights considered whether a crucifix displayed in an Italian public-school classroom violated a non-Catholic student’s right to religious freedom. While a chamber of the Court decided in favor of the student, the Grand Chamber later sided with the Italian government and found the crucifix to be a passive symbol that did not infringe the student’s and his parents’ rights. Elizabeth A. Clark explains how her experience as a member of a religious minority group complicates her views of the Grand Chamber’s Lautsi judgment.
This post explores the question of whether, and in what conditions, a state might establish an official religion while still guaranteeing freedom for minority religions. I address this question by advancing a (very brief) case for an approach to church-state arrangements and religious freedom based on philosophical pragmatism that offers a clear—if not necessarily immediately helpful—answer. The please excuse the fact that the arguments presented below are necessarily succinct, due to the constraints of the blog format.
In Bayatyan v. Armenia (2011), the European Court of Human Rights recognized for the first time that the right to conscientious objection to military service must be protected by the state. In this video, Andrea Pin of the University of Padua shares his views on Bayatyan, the right to object, and the Court itself. While Pin supports the protection of objector rights, over time he began to discern additional layers inherent in the ECtHR judgment. Pin raises rule of law concerns over Bayatyan and wonders if such strong and unconditional protection is realistic and practically survivable in a world where countries are increasingly open to waging war against each other.
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