Source (01.08.2024): https://mfi.gov.hu/en/events/religious-symbols-in-the-public-sphereand-the-secularity-of-the-state/
„In his presentation, Dr. Dalibor Đukic presented the results of his research, which he conducted in the framework of the Central European Professors’ Network 2021, with the support of the Ferenc Mádl Institute of Comparative Law.
The online lecture took place on 22 April (Thursday) at 19:00 in the framework of the Master’s programme „Religion in the Society and Culture of European Integration” offered by the University of Belgrade.
The lecture was organised in the framework of the Central European Professors’ Network 2021. The main objective of the network was to create a community of distinguished jurists from Central European countries, capable of providing a distinctive approach to current jurisprudential issues in Central European countries. As a dissemination event, the lecture was organised by Dalibor Đukić in order to publish the results of his research as a member of the „Research Group on Conscience and Religious Freedom”.
The topic of the lecture was the presence of religious symbols in the public sphere and its relation to the secularity of the state.
The principle of secularity of the state is one of the main principles on which the relationship between the state and religious organisations in modern democratic societies is based. In the case of the Republic of Serbia, secularity is one of the constitutional principles. In particular, the first part of the Constitution of the Republic of Serbia, which sets out the constitutional principles, states that Serbia is a secular state. The question arises as to whether the presence and display of religious symbols in the public sphere is contrary to the principle of secularity enshrined in the Constitution. If so, is the expression of religious belief and the presence of religious symbols in the public sphere unconstitutional?
In order to provide a clear answer to this question, it is first necessary to define the concept of secularity. There is no clear definition of this concept in the literature. Most authors use the method of legal comparison to try to identify similarities in the practices of the secular states they study, but there are significant differences in the way secular states regulate the status of religious organisations and the right to freedom of religion. Although it is possible to argue that secular states are all the same, in fact each is different in its own way. It is the broad nature of the concept of secularism that allows each state to adapt its legislation on churches and religious organisations to its own historical, social, legal and religious circumstances. This is the reason why there are as many definitions of secularity as there are authors on the subject.
Some argue that the notion of secular state is not a suitable constitutional concept, as it has multiple meanings and it is impossible to define its precise meaning. There are many different definitions of secularity, secularism and secularisation in the literature. This can be seen from the fact that few countries have constitutions that include the adjectives secular and secular when defining the characteristics of the state. France and Russia are notable exceptions to this trend. The existence of this clause in the Serbian constitution – i.e. the declaration of the secular nature of the state – has led to the emergence of a certain secular fundamentalism in Serbia, which is supported by many NGOs and human rights activists. In their view, in a secular state, „it is not permissible for religious organisations to have any influence on the public sphere and for religion to have any influence on social issues.” This secular fundamentalism is, at its core, closer to the socialist (or communist) reality of the second half of the 20th century than to the modern state’s conception of secularism. The fact that the secularity of the state is enshrined in the constitution as a constitutional provision cannot serve as a basis for a fundamentalist interpretation of secularity, according to which secularism requires the isolation of religion in the private sphere and its hermetic sealing off from the public sphere.
In order to better understand the issue, it is worth emphasising the terminological difference between secularity and secularism. Brett Scharffs explains this distinction as follows: ‘Both secularity and secularism are related to the general development of secularization, but their meanings and practical applications are significantly different in their usage. Secularity, in my understanding, refers to an approach to the religion-state relationship that avoids identifying the state with a religion or ideology (including secularism) and seeks to create a neutral environment in which a range of religions and beliefs can coexist. Secularism, by contrast, is, in my understanding, an ideological position committed to the imposition of a secular order.” The opposition between the two terms is also evident in Roman Catholic doctrine: while secularism is „the principle of separation of church and state”, secularism is „the negative concept of separation of church and state, whereby the church is persecuted and denied its fundamental rights.” Consequently, the affirmation of the secularity of the state cannot mean that the state identifies with secularism as an ideology. On the contrary: in a secular state, secularism can be only one of the competing ideologies. Consequently, in a secular state, the expression of religious convictions in the public sphere cannot be unconstitutional. On the contrary. The presence of religion and religious organisations in the public sphere can be seen as beneficial, since religion is a natural medium in which it contributes to the development of a democratic and pluralist society by confronting other competing ideologies.
The uncertainties surrounding the meaning of the term „secular state” in the 2006 Constitution of the Republic of Serbia were dispelled by the Constitutional Court in its review of the constitutionality of the Law on Churches and Religious Communities. The Constitutional Court took the view that „the constitutional provisions in question do not in themselves provide for the complete separation of church and state, but only that there can be no state church and that the state cannot be identified with a single religion or with religion in general […].” Given that the public expression of religious beliefs and the appearance of religious symbols in the public sphere do not lead to the creation of a State Church or to the identification of the State with a religion, the argument that these practices do not violate the constitutional principle of the secularity of the State is well founded.
The use of religious symbols in the public sphere is not regulated in detail in the legal order of the Republic of Serbia. In practice, religious symbols often appear in the public sphere, mainly through informal initiatives or individual expressions of religious belief. Although there have been initiatives to restrict the use of religious symbols in the public sphere, they have not manifested themselves either in judicial precedent or in legislative intentions to change the existing legislation.
The presence of religious symbols in the public sphere can give rise to serious controversy on a number of different issues. The first of these is the presence in the public sphere of religious symbols which most people understand explicitly as religious symbols, such as images of saints, crucifixes, statues of saints, etc. These symbols often appear in the public sphere not solely because of their religious meaning, but because of their indisputable historical and cultural significance. The presence of these symbols in the public sphere cannot be made compulsory, but neither can their use be left unregulated and thus open to possible abuse.
The conditions under which religious symbols may be used in the public sphere should be laid down by law. It should also be laid down by law which authorities are competent to decide on this issue and how their decisions can be implemented. This is of particular relevance for public administrations, educational institutions, hospitals and companies in general. The law should also define the cases in which the use of symbols can be restricted and the limits that the competent authorities must respect. Legislation should provide legal protection for the use of religious symbols in public places. The latter is necessary to dispel the common misconception that their presence in the public sphere violates the constitutional principle of the secular nature of the state.
The other problematic issue is the wearing of religious symbols in public places such as courts, educational institutions and state offices. In the Republic of Serbia, the wearing of religious symbols or religious dress that reveal one’s religious beliefs has not so far generated controversy. However, this area should also be regulated by legislation. Some religious practices may be contrary to existing legislation. However, European practice shows that certain dress may be prohibited even if it is an expression of religious belief or conviction. In such cases, the legislator should consider, as some countries and the European Court of Human Rights have done, that while prohibiting the wearing of certain articles of clothing or symbols, it should at the same time allow the expression of religious belief through religious symbols that do not disturb other citizens.
The third problematic point is the establishment of religious symbols and monuments in public places, financed by the government, municipalities or companies, and its compatibility with the principle of secularity. In recent years, the practice of placing religious symbols in public places has become noticeable. In most cases, this has involved the construction of cross symbols, chapels or public wells with religious symbols, etc. In academic discourse, this has been described as the desecularisation of public spaces. However, these facilities do not serve exclusively religious purposes: they express the culture and identity of the vast majority of citizens of the Republic of Serbia. The construction of such facilities should be regulated by law, taking into account the neutrality of the state and the equality of religious organisations. At the same time, when drawing up town-planning plans, the competent authorities should take into account not only religious buildings within the meaning of the Law on Churches and Religious Communities, but also religious symbols and their visibility. It would therefore be appropriate to include religious symbols in the above-mentioned law, alongside religious buildings.
Last but not least, the question arises as to whether the manifestation of religion or belief in public places is constitutional. More specifically, do religious ceremonies in which religious symbols are used and celebrated in public places or in public institutions violate the principle of the secularity of the State? The answer was provided by the Constitutional Court of the Republic of Serbia, which ruled that religious ceremonies celebrated in public places serve the needs of individuals using the services of those institutions and do not contravene the principle of separation of church and state. It should be noted, however, that many public institutions do not provide in their rules of operation for the possibility of celebrating a religious ceremony at the request of the person using their services. Although it is possible to refer directly to the law in the event of such a request, the rapporteur considers that it would be useful to include this possibility in the rules of operation of these institutions, so that a greater proportion of the people who use their services are aware of their rights and how to exercise them.
There are no rules in force in the Republic of Serbia which expressly prohibit the use of religious symbols. Unlike in other European countries, there are no rules in the Republic of Serbia that restrict the wearing of certain specific items of clothing or symbols that may indicate a person’s religious affiliation. Considering that the prohibitions in force in European countries mainly concern non-Christian religious minorities, one of the reasons for this discrepancy is probably the religious pluralism that is taken for granted in Serbia. Religious minorities have been living on the territory of the Republic of Serbia for centuries and typically share similar social and cultural values.
Although the issue of the use of religious symbols in the public sphere has not yet been raised before the Serbian courts, it is considered to be a regular topic of academic and public debate. Finally, the rapporteur expressed his conviction that the work of the research group „Freedom of Conscience and Religion” can be considered as a significant and high quality contribution to public and academic debates.”
