22 April 2021 – Online conversation
Religious symbols in the public sphere and the secularity of the state The lecture titled “Religious symbols in the public sphere and the secularity of the state” was given online as a part of the “Religion in society, culture and European integration” master programme taught at the University of Belgrade. The lecture was organized as part of the Central European Professors’ Network 2021. This Network has been established with the main intention of creating a scientific community of recognized jurists from central European countries, which will be capable of representing the peculiar approach of central European jurisprudence to current legal science topics. The lecture was organized as a dissemination event of Dr. Dalibor Đukić, and it is a result of the research that he conducted as a member of the research group responsible for the topic “Freedom of conscience and religion”. The lesson was dedicated to the issue of the presence of religious symbols in the public sphere and its correlation to the principle of the secularity of the state. The principle of the secularity of the state is one of the main principles on which the regulation of the relations between the state and religious organizations in modern democratic states is based. When it comes to the Republic of Serbia, it is specific that the principle of secularity is one of the constitutional principles. Namely, in the first part of the Constitution of the Republic of Serbia, which contains constitutional principles, it is prescribed that Serbia is a secular state. The question that arises is whether the presence and display of religious symbols in the public sphere violates the principle of secularity of the state prescribed by the constitution. In that case, is the manifestation of religious beliefs and the presence of religious symbols in the public sphere unconstitutional? In order to be able to give a clear answer to these questions, it is necessary to first define the concept of secularity. There is no generally accepted definition of this term in the literature. Most authors try to use a comparative method to deduce certain regularities from the example of several secular states. However, the ways in which the status of religious organizations and the exercise of the right to freedom of religion are regulated in secular states vary widely. It could be argued that the states with state religion are all alike; every secular state is different in its own way. It is this breadth of the notion of secularity that allows different states to adapt their legislation on churches and religious communities to their own historical, social, legal and religious circumstances. This is also the reason why there are as many definitions of secularity as the authors who have dealt with this issue. There is also the view that the notion of a secular
state, due to its polysemy and the impossibility to determine its precise meaning, is not adequate to be a constitutional term. There are a number of different definitions of secularity, secularism and secularization in the literature. This can be seen from the fact that the constitutions of only a few countries in the world contain the adjective laïque or secular, when they talk about the character of the state, looking mainly up to France and Russia. The existence of such a term in the Constitution of Serbia has led to the formation of specific secular fundamentalism, which is advocated by certain NGOs and human rights activists. They are of the opinion that in a secular state “no interference of religious organizations in a public sphere is allowed and no impact of religion in social issues is acceptable”. Such secular fundamentalism is in its essence closer to the socialist (or communist) reality from the second half of the 20th century, than to the meaning of the term secularity in modern democratic states. The fact that the secularity of the state is included in the Constitution as a constitutional provision cannot be an argument in favor of its fundamentalist interpretation, according to which secularity implies the hermetic separation of religion from the public sphere and its isolation in the private sphere. In order to understand better the issue, it would be useful to underline the terminological difference between secularity and secularism. Brett Scharffs explains this in the following words: “Both secularity and secularism are linked to the general historical process of secularization, but as I use the terms, they have significantly different meanings and practical implications. By ‘secularity’ I mean an approach to religionstate relations that avoids identification of the state with any particular religion or ideology (including secularism itself) and that endeavors to provide a neutral framework capable of accommodating a wide range of religions and beliefs. By ‘secularism’, in contrast, I mean an ideological position that is committed to promoting a secular order”. The difference between these two terms as two antipodes has also been developed by the Roman Catholic doctrine. According to it, secularity is “a principle of distinction between Church and state” and secularism “a negative conception of separation between Church and state, in which the Church is persecuted or denied its basic rights”. Thus, the secular character of the state guaranteed by the constitution does not mean that the state identifies with secularism as an ideology. On the contrary, in a secular state, secularism can only be one of many competing ideologies. This means that the manifestation of religious beliefs in the public sphere is not unconstitutional in secular states. Quite the opposite. The presence of religion and religious organizations in the public sphere is desirable because it is a natural space for acting of a religion and a space in which, through confrontation with competing ideologies, it gives its contribution to the development of a democratic and pluralistic society. Uncertainties about the meaning of the term secular state contained in the 2006 Constitution of the Republic of Serbia were resolved by the Constitutional Court, which in deciding on proposals for determining the unconstitutionality of the Law on Churches and Religious Communities established that “these constitutional provisions by themselves do not imply the system of the complete separation of the church and state, but that there is no state church and that there is no identification of the state with a particular religion or religion in general…” Since the manifestation of religious beliefs in public and the presence of religious symbols in the public sphere do not establish a state church or religion, nor does it identify the state with a particular religion, it can be argued that such practice does not violate the constitutional principle of the secularity of the state. The use of religious symbols in the public sphere within the legal order of the Republic of Serbia is not regulated in detail. In practice, religious symbols are often present in the public sphere, mainly as a result of informal initiatives and individual expressions of religious beliefs. Although there were individual attempts to limit the use of religious symbols in public, they did not receive a court epilogue, nor did the legislator intervene by amending existing legislation. Several different situations generate ardent controversies related to the presence of religious symbols in the public sphere. The first one is the presence in the public sphere of symbols that most of the citizens perceive as exclusively religious, such as icons, crucifix, statues of saints, etc. These symbols are often present in the public space not only because of their religious meanings but also because of the broader historical and cultural significance they undoubtedly have. The presence of such symbols in public space should not be mandatory, but neither it is feasible to leaveit unregulated and open to potential abuse. The law should prescribe the conditions under which symbols with among religious dimension can be used in public
space. It should be specified which are the authorities that decide on that and how their decisions are implemented. This is especially important when we are talking about public offices, educational institutions, hospitals, but also companies in general. The law should also prescribe under what conditions the use of such symbols may be restricted and what are the limits that the competent authorities must respect. The legislator should provide legal protection for the use of religious symbols in public space. This is necessary due to the frequent misconception that their presence in the public sphere violates the constitutional principle of the secularity of the state. The second is the issue of wearing religious symbols in public spaces, e.g. courts, educational institutions, state offices, etc. In the Republic of Serbia, no disputes were arising from wearing religious symbols or specific clothing that reveals someone’s religious beliefs. However, this area should also be legally regulated. Certain religious practices may conflict with applicable law. Besides, European practice shows that a certain way of dressing can be prohibited, even if it is a manifestation of faith or belief. Here, the legislator should apply a balanced approach, by restricting the wearing of specific clothes or symbols by the practice of certain European countries and the European Court of Human Rights, but at the same time leaving space for expressing religious beliefs through religious symbols that do not disrupt the harmonious life of citizens. The third controversy is the compatibility of the practice of construction of religious symbols and monuments in public spaces that have been financed by the government, local authorities or state owned companies with the principle of secularity. In recent years, the practice of building various religious symbols in public areas has been noticeable. It is most often about building Crosse symbols, chapels, public fountains with decorations that have religious significance, etc. In academic discourse, such practices are marked as a form of desecularization of public space. However, such facilities do not serve only religious purposes. It is an expression of the culture and identity of the vast majority of citizens of the Republic of Serbia. The law should regulate the construction of such facilities, taking into account the neutrality of the state and the equality of all religious organizations. At the same time, when drafting urban plans, competent authorities should take into account not only religious buildings in the sense of the Law on Churches and Religious Communities but also religious symbols and their visibility. That is the reason why, in addition to all the abovementioned religious buildings, religious symbols should be included in the abovementioned Law. Lastly, but most importantly, there is a question of whether the manifestation of religion or belief in public space is constitutional, or more precisely whether religious services and ceremonies that include the use of different religious symbols and have been performed in public or state institutions violate the principle of state secularity. The answer to this question had been formulated by the Constitutional Court of Republic of Serbia, which assessed that worship in public buildings serves to meet the needs of individuals who use the services of these institutions and does not violate the principle of separation of state and church. It is noticeable, however, that many public institutions did not prescribe in their statutes the possibility of performing religious rites at the request of the users of their services. Although they can refer directly to the Law, it would be desirable for internal acts to provide for such a possibility so that a larger number of users of services of public institutions would be aware of their rights and how they can exercise them. In the Republic of Serbia, there are no regulations that explicitly prohibit the use of religious symbols. Unlike some European countries, the Republic of Serbia has no regulations that restrict the right to wear specific clothes or symbols that are related to one’s religious affiliation. Since the bans in European countries are mostly related to non-Christian religious minorities, one of the reasons for this difference is probably the autochthonous religious pluralism. Religious minorities in the Republic of Serbia have been placed on its territory for centuries and generally share similar social values and culture. Although no discussions on the use of religious symbols in the public sphere could be heard in Serbian courts, such debates are part of academic and public discourse. At the end the lecturer expressed his conviction that the engagement of the research group responsible for the topic “Freedom of conscience and religion” will be a significant contribution to that public and academic debate.
