Public spaces, religious symbolism and the neutral state

One of the central axioms of liberalism is that government should be neutral: it should not embrace or penalize particular conceptions of the good life. However, is has long been recognized that this normative ideal does is too demanding for actual political practice. It does not properly reflect actual liberal-democratic states which’ contingent historical processes of nation building, usually in tandem with a specific religion, endowed states with a specific national identity. Be that as it may, the question remains how such an inevitable non-neutral national identity can be reconciled with other liberal maxims like secular law, equal treatment and non-discrimination. In recent years, this tension came to light in actual European legal and political discussions on religious symbolism in public spaces, for example in the Lautsi case in Italy and the Swiss ban on Minarets. In both cases, a clear precedence was established of Christianity over other comprehensive ideals – atheism and Islam. I start the paper by contrasting two ways liberalism can deal with its national identity. The first strand, as endorsed by David Miller and Christian Joppke, gives much room to a thick notion of national identity that fits very comfortable to members of the national majority, but might be at odds with other liberal values such state neutrality, non-discrimination and secular law. A second strand emphasizes ‘constitutional patriotism’ that limits identification to constitutional values, including equal freedom, non-discrimination and dismisses thicker, more historically grounded sources of national identity. In many policy choices, there is much leeway for governments to choose for either option. In this paper I will argue that, although we should not be naive on the expectation that a state can be completely neutral, European states can and should become much more neutral than they currently are. As such, it takes issue with more nationalist defences of liberalism such as David Miller’s or Christian Joppke’s that argue that the democratic majority is entitled to ensure a “fit” between the values of the members and the policies that govern them. I will argue that this desire to hold on to such comprehensive traditions leads to a constitutional deficit: the unwillingness or inability of European states to justify central institutions of their basic structure in terms that does justice to the pluralistic character of their societies and the constitutional principles the states have endorsed over the last few decades. This constitutional deficit stems from the fact that European states are unwilling to acknowledge that residues of their Christian background are still too manifest within their state institutions, that this is at odds with their self-appointed status of constitutional-democratic state and that this tension is insufficiently recognized. I will argue that the value of the rule of law, equal rights and non-discrimination should trump the rights of numerical majorities and that current liberal democracies can only endorse national symbols that transcend the plurality of religions and other ideas of the good life –symbols that can bind all members of society.