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Published online by Cambridge University Press: 06 March 2019
At the current stage of its evolution, the European Union (“Union” or “EU”) has reached a juncture where many leaders and scholars believe that greater integration is both desirable and necessary. Presumably, a primary method by which greater solidarity and integration can be achieved within the EU is through the public inclusion of common value-laden concepts – as defined through a dialectical process – present within comprehensive doctrines such as religion. To date, however, an effective and inclusive means for utilizing religion in this manner has yet to be formulated. In response, this article takes two prominent paradigms – Jurgen Habermas' intersubjective discourse theory and John Rawls' liberalism – to approach the problem and draws from them a new solution that, while tied to their theoretical underpinnings, is nonetheless a novel approach to achieving greater integration within the Union. Under this new framework, the process of legislatively defining human rights allows the morality common to European comprehensive doctrines – including official and unofficial religions – to bolster the Union's solidarity, legitimacy, and democracy both procedurally and substantively.
1 See, e.g., Joseph Cardinal Ratzinger & Jurgen Habermas, Dialectics of Secularization: On Reason and Religion 67–72 (Florian Schuller ed., Brian McNeil trans., 2005); J.H.H. Weiler, The Constitution of Europe: “Do the New Clothes Have an Emperor?” and Other Essays on European Integration 10–13 (1999).Google Scholar
2 Edwin S. Gaustad, Faith of Our Fathers: Religion and the New Nation 47 (1987) (quoting Thomas Jefferson, Letter from Jefferson to Charles Clay, 29 January 1815).Google Scholar
3 Perhaps the most important rationale for this largely unprecedented approach to government was that such a separation would ensure personal liberty for individuals and, additionally, strengthen legitimacy and viability for both minority and majority religious faiths, as well as the state. Phyllis Moen et al, A Nation Divided: Diversity, Inequality, and Community in American Society 235 (1999).Google Scholar
4 European Consortium for State and Church Research, State and Church in the European Union passim (Gerhard Robbers ed., 1996).Google Scholar
5 For example, Belgium officially recognizes six denominations: Catholicism, Protestantism, Judaism, Anglicanism, Islam, and the Greek and Russian Orthodox Church. Id., 18–19.Google Scholar
6 Id., 18–21.Google Scholar
7 For example, French constitutional sources generally establish neutrality of the state with regard to religion, and impose a positive obligation on the government to support freedom of public worship. Id., 123, passim. Google Scholar
8 Although “Europe” and the various embodiments of the supranational European government – ranging from the European Economic Community to the contemporary European Union – are distinct from one another, this article is concerned with the embodiments and use of religion within the European Union. Accordingly, despite the fact that analysis of the status of religion within non-EU European countries (such as Turkey) is instructive in a number of related areas, references to “Europe” within this article refer only to those nations subject to European supranational control at the time in question.Google Scholar
9 Treaty Establishing the European Economic Community, 25 March 1957, 298 U.N.T.S. 11, 1973 Gr. Brit. T.S. No. I (Cmd. 5179-II) [hereinafter EEC Treaty]; Treaty Establishing the European Coal and Steel Community, 18 April 1951, 261 U.N.T.S. 140 [hereinafter ECSC Treaty] (expired on 23 July 2002).Google Scholar
10 See, e.g., Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 Dec. 2007, 2007 O.J. (C 306) passim [hereinafter “Lisbon Treaty”]; Treaty on European Union, 29 July 2002, 2002 O.J. (C 191) passim [hereinafter “TEU”]; Jan-Werner Müller, Constitutional Patriotism 94–95 (2007).Google Scholar
11 In Case 41/74, Van Duyn v. Home Office, 1974 ECR 1337, the European Court of Justice held that although the European Community is able to regulate when there is a conflict between European public order and the public order of Member States, the establishment of policy for matters of freedom of religion will nonetheless be left to the Member States. Case 41/74, Van Duyn v. Home Office, 1974 ECR 1337; José M. González del Valle, The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in Spain, 19 Emory International Law Review 1033, 1041 (2005). Thus, a British law denying immigration for a Church of Scientology worker was left intact despite its obvious conflict with the Community right to freedom of movement for workers. Van Duyn, 1974 ECR at 1337; González del Valle, supra, 1041. Even though the responsibility for religious policy falls on the member countries, the EU adopted a general position on expressing religious beliefs in Case 130/75, Vivien Prais v. Council, 1976 ECR 1589; González del Valle, supra, 1041; Alenka Kuhelj, Religious Freedom in European Democracies, 20 Tulane European & Civil Law Forum 13 (2005). That case held that religious freedom includes the protection of private religious beliefs from public interference. Prais, 1974 ECR 1589; Kuhelj, supra, 13. The Court has similarly declined to intervene in the recent controversy regarding France's banning of religious symbols, including Muslim headscarves, preferring instead to defer to the national conception of religion.Google Scholar
12 It has been theorized that the best approach to continued assimilation is through the establishment of a European constitution. Upon the defeat of the constitution in 2005 by failure to secure Member State ratification, however, most scholars agree that the European constitutional project is dead. See Müller, supra, note 10, 94–95, 96–97.Google Scholar
13 Eurobarometer, Social Values, Science, and Technology 9 (2005).Google Scholar
14 E.g., EEC Treaty, 11; ECSC Treaty, 140; see, supra, note 9.Google Scholar
15 Following the American Revolution, and given the collective memory of British religious persecution, there was extensive debate on the extent to which the nascent government should be able to regulate, support, or otherwise involve itself in the affairs of the religious institutions. Ultimately, a largely strict separationist viewpoint, advocated initially by James Madison and, later, by Thomas Jefferson and others, was adopted. These thinkers had the foresight to determine that stopping direct government action in the area of religion protects religion by preventing a domination of theological thought by the majority faith. This separationist approach ensures the liberty of individuals and religious institutions alike by protecting them from the coercive force of government interference. The overall legitimacy of the government itself is also reinforced because such separation ensures that it remains neutral as between faith groups. Indeed, French philosopher Alexis de Tocqueville observed that this constitutionally mandated division between church and state strengthened religion and smoothed the relationship between politics and religion. See, Moen et al, supra, note 3, 235; John Rawls, The Law of Peoples 167–68 (1999).Google Scholar
16 See Jurgen Habermas, Three Normative Models of Democracy, in The Inclusion of the Other: Studies in Political Theory, 240, 249 (Ciaran Cronin & Pablo De Greiff eds., Ciaran Cronin trans., 1998) [hereinafter Habermas, Democracy].Google Scholar
17 For the purposes of this article, I take the state to be the relevant unit of analysis due to the largely Member State centric structure of the European Union.Google Scholar
18 Ernest Renan, What is a Nation?, in Nation and Narration, 8, 18 (Homi K. Bhabha ed., Martin Thom trans., 1990).Google Scholar
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23 Timothy Brennan, The National Longing for Form, in Nation and Narration, 44, 51 (Homi K. Bhabha ed., Martin Thom trans., 1990) (quoting Regis Debray, Marxism and the National Question, 105 New Left Review 1, 26 (1977)).Google Scholar
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25 For example, Catholicism and Orthodox Judaism, among others, hold the fundamental belief that abortion cannot be allowed because it is the unjustifiable taking of life. On the other hand, a secularist might believe that the acceptability of abortion cannot be prescribed by another; rather it is a decision that is based on the fundamental right of personal liberty. Although each viewpoint is largely variant from the other, when reduced to their respective essential elements both perspectives place a fundamental value of the sacredness of human life. It is the explication of such a moral that varies between European comprehensive doctrines, not the concept of the basic moral itself.Google Scholar
26 See Brennan, supra, note 23.Google Scholar
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28 The Preambles to the Treaties of Amsterdam and Nice, as amended by the agreements reached in Lisbon, specify that the EU draws “…inspiration from the cultural, religious, and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law. Lisbon Treaty at 10; Srdjan Cvijic & Lorenzo Zucca, Does the European Constitution Need Christian Values?, 24 Oxford Journal Of Legal Studies (2004).Google Scholar
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30 The least common denominator conception is broadly analogous to Rawls’ definition of modus vivendi. Under this conception, a formative document such as a treaty is merely an agreement to maintain civil peace. Based on this implicit accord, issues of religion are not discussed within the political realm to avoid arousing sectarian hostility. Such an approach serves to quiet divisiveness and encourage a superficial social stability among adherents to different religious beliefs. It does not, however, resolve the underlying conflicts between different religious, cultural, social, national, or ethnic groups. See, Rawls, supra, note 15, 149–50.Google Scholar
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38 The communitarian position is premised on the idea that the document being created is a constitution. This is not the case here, but the distinction is de minimis for reasons discussed in Part IV below. Id., 739, 742.Google Scholar
39 Id., 740–43.Google Scholar
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49 The ECHR set out, for the first time, a solely European supranational system for the protection of human rights and, to that end, simultaneously created the European Court of Human Rights in Strasbourg. Eur. Consult. Ass., Convention for the Protection of Human Rights and Fundamental Freedoms 213 U.N.T.S. 221, E.T.S. 5 (1950).Google Scholar
50 The ECHR was created by the Council of Europe, which, as a non-Community institution, could not bind the ECSC. Id. Google Scholar
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52 Case 29/69, 1969 ECR 419.Google Scholar
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63 Although the European constitutional project died with 2005's failed ratification effort, the respective dialectical approaches proposed by Habermas and Rawls nonetheless retain significant utility as guidance for the current endeavor. More specifically, many of the same aims sought by a European constitution – including increased solidarity, legitimacy, and democracy, as well as supremacy for the European hierarchy within a number of areas such as human rights – are similarly being pursued through treaty-based increases in integration. See Müller, supra, note 10, at 96–97.Google Scholar
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78 In Van Duyn, the European Court of Justice held that although the European Community is able to regulate when there is a conflict between European public order and the public order of Member States, the establishment of policy for matters of freedom of religion will nonetheless be left to the Member States. Van Duyn, 1974 ECR at 1337; del Valle, supra, note 11, at 1041. The Court has similarly declined to intervene in the recent controversy regarding France's banning of religious symbols, including Muslim headscarves, preferring instead to defer to the national conception of religion.Google Scholar
79 See, e.g., Solange I, 1125; Nold, 1974 ECR 491; BVerfG at 339; Müller, supra, note 10, 94.Google Scholar
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90 Although here constitutional formation is not being analyzed, formulating a treaty-based concept of human rights will have the same positive solidarity-building and integrative effects. Habermas, Constitution, supra note 61, at 159–61; Habermas, Nation, supra, note 69, at 137–39, 153.Google Scholar
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140 Id., 137. For Rawls, public reason is an ideal and not a strict precondition to the exercise of democratic rights. Within modified public reason, however, such a requirement is necessary in order to realize the full democraticizing elements. See, infra. Google Scholar
141 Id., 137–38.Google Scholar
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