The Varieties of Religious Experience: A Philosophically Pragmatic Account of Church-State Constitutional Arrangements

David Kenny is Professor in Law and Fellow at Trinity College Dublin. This post is based on a presentation given at “The Role of Religion in Constitutional Identity,” a workshop cosponsored by the ICLRS, Bar-Ilan University’s Faculty of Law, and the Journal of Law, Religion and State at Christ Church, University of Oxford, 15–16 July 2026.

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.

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Can and Should a Religious Symbol Be Passive? Pasquale Annicchino’s Doubts over Lautsi v. Italy

In Lautsi v. Italy (2011), the European Court of Human Rights considered whether a crucifix displayed in an Italian public-school classroom violated the right to religious freedom of non-Catholic students. While a chamber of the Court decided in favor of the students and their parent, the Grand Chamber later sided with the Italian government and found the crucifix to be a passive symbol that did not infringe their rights. In this video, Pasquale Annicchino explains that, while the Catholic Church won the legal battle in Lautsi, it lost the war by accepting that the ultimate symbol of Christianity be culturalized and trivialized in order for its display to be allowed in educational settings. Annicchino believes that religious groups should be the first to object to such reframing and restructuring of religion, even to maintain a specific presence in public spaces.

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More Layers to Consider: Andrea Pin on Bayatyan v. Armenia

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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