Culturalizing religion in Western Europe: Patterns and puzzles

Abstract

The relationship between culture and religion in Western Europe is marked by opposite, if not contradictory trends. One is the rise of ‘pure’ religion, abstracted from ethnicity and culture, which is registered particularly among immigrant minorities. This article focuses on an opposite trend of ‘culturalizing’ religion, which has occurred on the part of majority society. A prominent actor driving this trend is the high courts, which try to square the circle of living up to liberal state neutrality and acknowledging a privileged position for majority religion in society. However, the privileging of Christianity in Europe is light and largely symbolic, as I show in a contrast with the substantive privileging of Islam in Muslim-majority societies. If applied to immigrant Islam, culturalization still has exclusive implications, as it removes the respective practices from the ambit of religious liberty protections.

About the relationship between culture and religion, T.S Eliot said: ‘No culture has appeared or developed except together with a religion’ (1945: 15). But he found the relation between the two ‘so difficult that I am not sure I grasp it myself, except in flashes, or that I comprehend its implications’ (1945: 30). What Eliot suggests is that in some sense religion and culture are the same. For instance, it is impossible to establish causality between the two: ‘According to the point of view of the observer, the culture will appear to be the product of the religion, or the religion the product of the culture’ (1945: 15).

But then, culture and religion are also different. Otherwise, there wouldn’t be two words and a ‘relation’ between the entities thus denoted. One way of catching the difference is to say that religion is propositional, while culture is dispositional. At least in their developed ‘axial age’ form, religion consists of propositions. Robert Bellah (2005), for instance, found characteristic of axial age religion (of which Abrahamic monotheism, in its Judaic Urform, is a prominent example) the invention of ‘second-order thinking’, which is ‘the capacity to examine critically the very foundation of cosmological, ethical and political order’ (2005: 88). That is, the possibility of critique, of taking distance, of voluntarism and choice makes axial age religion (see also Eisenstadt, 1999: 8–9). ¹

By contrast, there is much less choice in matters of culture, at least if you look at it anthropologically as a ‘system of meaning and significance’ that ‘encompasses more or less the whole of human life’ (Parekh, 2000: 143). In Clifford Geertz’s poetic formulation (1973: 5), ‘man is an animal suspended in webs of significance he himself has spun’, these webs constituting culture. ‘Suspended’ suggests that one is inevitably enmeshed in culture, more unknowingly than knowingly, and always in a particular form of it: ‘To be human is to be Javanese’ (Geertz, 1973: 52).

In a nutshell, culture is a contingent and particular way of being that is different here from there, and most often one isn’t even aware of it. By contrast, consisting of propositions, religion makes universalistic truth claims, whose nature is to be reflectively apprehended: only one religion can be the true religion. In fact, it is difficult to understand how true religionists could ever stomach the existence of other religions that must relativize the truth claims of theirs. Disagreement with other beliefs is inherent in the nature of belief, even today; by contrast, to reject other cultures, at least in a liberal society, has the smell of bigotry, even racism – that’s the big selling point of multiculturalism, even after its often-touted ‘retreat’ or ‘death’. Nathan Glazer’s ‘We are all multiculturalists now’ (1998), coined for the post-civil-rights era US, is valid in a much stronger, less temporally and geographically restricted way.

Another way of putting the matter is to say that religious beliefs are ‘justificatory structures’, while cultures are ‘conventions’ (Scheffler, 2007). As a result, the state qua secular state can and must separate itself from the fact of religion, but it cannot separate itself from culture. ‘A country is a contingent historical formation’, says Scheffler (2007: 113), and even the liberal state ‘cannot avoid coercing citizens into preserving a national culture of some kind’ (2007: 111).

The implication is obvious: if the state wants to associate itself with religion, it can do so only by transforming religion into culture. In the following article, I shall further explore, in four steps (I–IV), the relationship between culture and religion in contemporary Europe. One can register two opposite, even contradictory processes that not only seem to coexist but to be gaining strength at the same time. Both are situated at different levels, that of religious practice and that of the state and other political actors. On the part of religious practice, I argue with Olivier Roy (2008), that there has been a ‘deculturalization’ of religion and the rise of ‘pure’ religion (I). While this is a global trend, in secular Europe it seems to be limited to immigrant religions, especially Salafist Islam. On the part of the state and other political actors, by contrast, there is an opposite trend of ‘culturalizing’ religion, particularly (but not exclusively) majority religion (II). Two forces are driving this culturalization, one being radical right parties that depict a ‘Christian’ Europe as threatened by immigrant Islam; the other force is the High Courts that are faced with the problem of justifying an inevitably privileged position of majority religion in a historically Christian society, while respecting the principle of liberal state neutrality toward religion. However, as I argue in a third step (III), this is a light, essentially vestigial and symbolic privileging of Christianity that is not of the same order as the more substantive privileging of Islam in a Muslim-majority society, which does not bother to take the cultural detour. In a final step (IV), I show by way of comparing the adjudication of Christian crucifixes and Islamic veils by European high courts, that the culturalization of religion cuts in opposite ways, carving out a privileged role for Christian symbols, yet excluding Islamic symbols from the public realm.

The global rise of pure religion

Students of immigrant Islam in Europe, particularly of the second generation, have long pointed to the rise of religious identities that are purified of elements of one’s ethnic and cultural background (for example, Jacobson, 1997). Olivier Roy (2008) even sees the rupture between religion and culture, and with it the rise of ‘pure’ religion, as a world-level trend, which is driven by ongoing secularization and globalization. He thus disconfirms Samuel Huntington’s much better known ‘clash of civilization’ thesis, which had made the opposite claim of religion as civilization-maker. For Huntington, territorially and culturally fixed religion has come to constitute the new fault-line of world politics, after the demise of the Cold War confrontation between communism and capitalism. What Huntington overlooked is the rise of free-floating religions, cut loose from their historical homelands. One example is Christian Evangelicalism and Pentecostalism as one of the world’s fastest growing religions, and this in unexpected quarters like ‘Catholic’ Latin America, ‘Buddhist’ East Asia, and ‘tribal’ sub-Saharan Africa. A second example is Islamic Salafism in ‘Christian’ Europe. The mark of these new religious movements is that they are fundamentalist and charismatic, and ignore and abdicate ‘pagan’ culture to indulge in a ‘Holy Ignorance’ (Roy, 2008). A good example is Pentecostalism. Its ‘speaking in tongues’ (glossolalia) requires no specific language; in Saussurian terms, it ‘annihilates langue in favor of parole’ (Roy, 2008: 189), and thus abandons the link to a specific culture: ‘The Holy Spirit blows wherever it wants’ (2008: 226). The rupture with culture explains Pentecostalism’s easy exportability into non-Christian parts of the world, in some of which it is spreading like wildfire. Particularly in secularist environments, the purely religious person adopts a minority posture, whereby, ironically, ‘religion’ becomes a proudly exhibited subcultural marker, ‘Christian Pride’ in analogy to ‘Gay Pride’: ‘The religious adopts the multiculturalist discourse in posing as a cultural minority, for which the cultural marker is furnished by the religious norm detached from all context’ (2008: 186). However, as Roy intriguingly observes, the mark of pure religion, in contrast to culture, is not being born into it but having to convert into it: ‘Conversion is specific to the change of religion. One does not convert to a culture, one adopts it gradually, or learns it. The suddenness of conversion clearly marks the disjunction between culture and religion’ (2008: 52).

Of course, not all religions are going the deculturalized and deterritorialized route – the main examples provided by Roy are sectarian variants of Protestantism, Salafism, certain forms of Hinduism (the Hare Krishna), and Buddhism. Most of these are outside their historical homelands, which are Europe and America for the first, the Middle East for the second, and South and East Asia for the remainder. One could argue that pure religion, while not limited to it, is germane to a minority situation, be it real (as for immigrants, above all their offspring) or imagined (as for converted natives).

Culturalizing religion in Western Europe

The story is different for majority religions, which often have come to define the identity of specific state societies. Here one can observe an opposite trend of culturalizing religion, particularly on the part of the state but also of other political actors (like the radical right). In this section I will focus on this trend in Western Europe. Here it is first notable how subdued references to Christianity are for Western European state identities today, if they are not suppressed completely, reflecting the unmatched degree of secularism in this part of the world. The refusal of the European Union to include a reference to Christianity in its never-realized draft constitution of 2003 is evidence of this reluctance.

Interestingly, among political actors in Western Europe it is especially populist radical right parties that push for a Christian identity of European state societies. It goes without saying that this quest does not express a new religious fervor but the mundane rejection of Muslim immigrants (see the overview by Marzouki et al., 2016). Witness the German PEGIDA movement, whose acronym stands for Patriotische Europäer gegen die Islamisierung des Abendlands (Patriotic Europeans against the Islamization of the Occident). Or witness the slogans of the Austrian FPÖ (Freiheitliche Partei Österreichs): ‘Schweinskotelett statt Minarett’ (pork chop instead of minaret), ‘Daham statt Islam’ (at home instead of Islam), ‘Abendland in Christenhand’ (Occident in Christian hands). While some of these radical right parties, like the FPÖ, arrived at this position from previously anti-clerical positions, others – like the Italian Lega Nord, which likewise came to adopt a Christian posture – had previously indulged in pagan rituals. The fact that the Christian references were made just when the opposition to Muslim immigrants became central to these parties (which it had not always been), suggests that its adoption is not religiously but culturally, even instrumentally, motivated: Christianism in the hands of extreme right parties is simply a club to beat Islam (see Joppke, 2017; Brubaker, 2017).

But there is a second, less polemic and more effective source of culturalizing majority religion in Europe, which is state actors, often in the form of high courts. This is reflective of a real dilemma that contemporary states are confronted with. The liberal state has to dissociate itself from all things religious – this is required by its principle of neutrality or secularity. However, no European state has ever managed a perfect separation, as demonstrated by their predominantly corporatist, that is, religion-recognizing and -accommodating church-state regimes. These regimes are the result of state and church competing throughout the centuries for ruling souls and even territories, and they confer certain privileges on recognized religions that other (minority) religions, not originally involved in these struggles, do not enjoy (even though they eventually cannot be denied equal status). In addition to historically asymmetric church-state regimes, there is the simple fact of majority religion, deeply engrained in the visual and moral fabric of society, with no town square not adorned by a church tower that beckons for recognition (or rather: is already there). The main strategy for the state to square the circle of principled neutrality and unavoidable majority privileging is to declare religion ‘culture’. A model for this has been provided by some German Länder, which in the early 2000s passed laws to prohibit the Islamic headscarf being worn by public school teachers (as in violation of liberal state neutrality), while exempting from the religious dress restriction veiled Catholic nun teachers, on the contorted argument that the nun’s garb was merely a performance of ‘tradition’ or of the ‘Christian-Occidental’ culture that the state had the license, even the obligation, to support and to identify with. The favored nuns would disagree with calling their dress an expression of ‘culture’ rather than ‘belief’ – this culturalization of religion is, as a sarcastic legal critic put it, the victory of ‘militant atheism, in alliance with the churches’ (see Joppke, 2009: 79).

No wonder the cultural demotion of religion goes down in secular Europe much easier than in the religiously ‘hotter’ United States. Interestingly, in the US there has been a near-identical trend of culturalizing religion, as in the Supreme Court’s famous Lynch v. Donnelly (1984) decision that allowed plastic reindeers and a Christmas crèche in a small Rhode Island town square because of their ‘secular purpose’ of ‘celebrat(ing) the Holiday’ (for this and further quotes in this paragraph, see Joppke, 2015: 120–5). However, a minority in the Supreme Court has pushed for shortcutting the cultural detour to associate the state directly with religion, without the cultural proxy. In Van Orden v. Perry (2005), for instance, which dealt with a two-meter-high Ten Commandment monolith placed in front of the State Capitol in Austin, Texas, Chief Justice Rehnquist argued that ‘our institutions presuppose a Supreme Being’, and he found no conflict between this view and the constitutional ‘wall of separation’ between state and religion (in Rehnquist’s revisionist view, the US Constitution’s Establishment Clause only outlawed the preference of ‘one’ religion over another religion, not a ‘preference for religion over irreligion’). Literally taken, to declare that America’s state ‘presupposes’ God would declare it a theocracy.

In secular Europe, deist musings by a high court judge would be unthinkable, and the state endorsement of religion has unambiguously taken the weaker, cultural route. The benchmark case is the European Court of Human Rights’ Lautsi v. Italy decision of 2011, which allowed the Italian state to place crucifixes on its public school walls. ² This decision overturned an earlier decision by the lower chamber of the same court, which had prohibited the crucifix as offensive to state neutrality and secularism. This earlier decision, in 2009, had stirred popular opposition in Italy with Prime Minister Berlusconi (not known for pious leanings) declaring it ‘not acceptable for us Italians’ and as undercutting Italian national identity. In overturning its own earlier, fervently secularist decision, the Strasbourg court argued that the right of a parent to educate her child ‘in conformity with [her] own religious and philosophical convictions’ (guaranteed by Article 2 of Protocol 1 of the European Convention of Human Rights) was not violated by the school cross – note that in this way ‘secularism’ was demoted from state principle to one of the many ‘convictions’ that circulate and compete in a pluralistic society. There was no Convention right violation, the court argued, because the meanings of the crucifix were multiple, and in the specific school context it was merely a ‘passive symbol’, with a primarily cultural (‘identity-linked’) meaning. Being demoted to culture, it was the state’s right, even obligation, to ‘perpetuate a tradition’. In a nutshell, a passive cultural symbol could not obstruct the ‘secularist’ conviction of an atheist parent.

But the Lautsi court also made the auxiliary argument that pluralism reigned in Italian schools. As minority religions were not repressed, this was a further reason to accept the crucifix. Islamic-headscarf-wearing pupils being a common sight, and, among other accommodations, no exams being scheduled on religious minority holidays, wouldn’t it be unfair, even perverse, to exclude the symbol of the majority religion? Note that in this way the religious nature of the crucifix slipped back in. The culturalization of religion evidently could not be complete or consistent, as much as the state tried.

The Lautsi court’s legal reasoning was as inconclusive and puzzling as its political instincts were commendable, the court struggling with a profound dilemma in Western immigrant societies. The majority culture, which most often has strongly religious underpinnings, stands to be acknowledged and granted its due privilege. Too often has it been ignored or even been vilified under the reign of ‘multiculturalism’, as not least radical right parties have pointed out with increasing alacrity. Even some liberal academics have embraced the view that the majority has a right to its culture too, much like minorities have a right to their culture (see Orgad, 2015, proposing a ‘liberal theory of majority rights’, complementary to Kymlicka’s ‘liberal theory of minority rights’ [1995]). At the same time, the non-discrimination or equality norm of the liberal-constitutional state sets tight limits to any privileging of the majority.

Legally invented by the US Supreme Court in the early 1980s, and transported onto the European scene by the European Court of Human Rights in Lautsi, the culturalization of religion has recently been embraced by the Conseil d’État, France’s administrative high court. In a decision in November 2016, the French court endorsed seasonal nativity scenes in exactly the same terms as the US Supreme Court had first done in Donnelly v. Lynch, and not unlike the ECtHR would later do in Lautsi. Dealing with two cases in Nantes and Paris, the court argued that nativity scenes could have a ‘variety of meanings’, from a ‘religious meaning’ to being a ‘decorative element during the end of the year holidays’. In the context of the latter, they merely served a ‘cultural, artistic or festive purpose’, and thus could not be taken as ‘a public recognition or a preference for a religion’. ³

Note, however, that the culturalization of religion, by means of which the privileging of the majority is to be achieved, is not much liked by the churches, who plausibly find that the notion of a Christian identity without a Christian faith ‘makes no sense’ (Pope Benedict XVI, quoted in Roy, 2016: 194). As the head of the Catholic Church realized, culturalized religion marks the ultimate victory of secularization as the religionist’s true enemy, the Christian no less than the Muslim’s.

Is the European state as ‘Christian’ as the Egyptian state is ‘Islamic’?

Is the Christianism of the European state, as acknowledged by some high courts from Strasbourg to Paris, just the same as the Islamism of the Egyptian state? This question is astonishingly answered in the affirmative by anthropologist Saba Mahmood (2016). This requires a closer examination. Mahmood argues: ‘The centrality of Christianity to European identity . . . is similar to Islam’s place in Egyptian social and state identity’ (2016: 168). In particular, she draws a parallel between Egyptian high courts’ prohibition of the Bahai sect and the European Court of Human Rights’ (ECtHR) affirmation of the Christian cross in its second Lautsi decision of 2011. In both cases, she sees an identical domineering of the ‘values of the majority religion at the expense of minorities’ (2016: 168f). She grounds this domination, rather implausibly, in nothing less than the principle of ‘modern secularism’, which she sees operating in (post-colonial) Egypt no less than in the European state, which has implanted its model, via colonialism, in other parts of the world. However, to begin with, it should not be the ‘secular’ but the ‘democratic’ aspect of the modern state that is responsible for enshrining majority privileges – there is nothing inherent in the ‘secular’ principle, which simply decrees the separation between religion and state, to privilege majorities at the cost of minorities.

Central to Mahmood’s argument is the claim that in both legal orders the principle of ‘public order’ is used in identical ways to prioritize majority preferences and to quash minority freedoms. But this claim is erroneous. The Lautsi decision was not based on a public order restriction of a Convention right. Instead, the court argued, whether rightly or wrongly, that a merely ‘passive symbol’ could not violate a Convention right in the first place.

One may well criticize, as Mahmood (2016: ch.4) does, the European human rights court’s double standard when adjudicating on Christian crucifixes and Islamic veils. In its 2001 Dahlab decision, ⁴ the ECtHR infamously took veils to be ‘powerful external symbols’ with a ‘proselytizing effect’ (without providing any evidence for this claim in the particular case) that had to be reined in by the ‘necessary in a democratic society’ proviso of Article 9, the Convention’s religious liberty clause. Much like Lautsi, the Dahlab decision was not a ‘public order’ restriction of an individual right. Instead, in Dahlab the ‘rights of others’, namely, of dependent and immature schoolchildren, were to be protected – again, irrespective of whether one agrees with this or not.

The important matter is the fundamentally different ways in which the ‘public order’ principle is used in the European and Egyptian legal orders. The concept of public order originated in the French civil code, as part of private international law that deals with having to acknowledge in domestic law, according to the diplomatic principle of ‘comity of nations’, the facts created by foreign legal orders (such as divorce or marriage acts). ‘Public order’ serves as a barrier or firewall not to have to recognize some foreign countries’ often religiously ordained private law decisions that Westerners would find repugnant and unacceptable – such as male-privileging polygamy or the unilateral talaq divorce under Islamic law. Importantly, what in Western legal orders is considered ‘repugnant’ has come to be equated with fundamental human rights violations (such as, in the above case, the impairment of gender equality). What legal scholar Paul Lagarde writes about France applies to European states more generally: ‘The cultural differences that are rejected in the name of public order are those which are contrary to human rights’ (2010: 545f).

By contrast, in the Egyptian legal order, the public order principle protects Islamic religion, and this in a scriptural religious sense, without any cultural demotion. Accordingly, Article 2 of the Egyptian constitution pronounces that ‘the principles of Islamic Shari’a are the main source of legislation’. Based on this article, Egyptian high courts have used the ‘public order’ principle to implement doctrinal or scriptural elements of Islamic law, such as the ‘people of the book’ principle (that makes certain concessions to the Jewish and Christian religions, but that firmly outlaws non-Abrahamic sects, like the Bahai). In one of its decisions, the Egyptian Court of Cassation stipulated that

[Public order] comprises the principles . . . that aim at realizing the public interest . . . of a country … These [principles] . . . supersede the interests of the individuals. The concept of [public order] is based on a purely secular doctrine that is to be applied as a general doctrine . . . However, this does not exclude that [public order] is sometimes based on . . . religious doctrine, in a case when such a doctrine has become . . . deep-rooted in the conscience of society . . . The definition . . . [of public order] is … in accordance with what the largest majority . . . of individuals in the community believe’ (cited in Agrama, 2010: 506).

One sees the Egyptian high court struggling over a secular versus religious definition of the state in a Muslim-majority society, which is without parallel in the vestigial ‘Christian’ European state. In the end, the public order principle is used to enshrine the plain dominance of Islamic majority religion qua religion. Of course, Egypt is no theocratic state: Islam is not prioritized as the ‘true’ religion, but simply and more profanely because it is the majority religion.

This still betrays a fundamentally different understanding of the legal order than in Europe and the West at large: as collectivist and individual-subsuming rather than individualist and individual-protecting. Mahmood’s purpose is obvious: blaming legal secularism, that Western import, which Egypt and other Muslim-majority societies at least formally espouse, is all an exercise in absolving ‘Islam’ from responsibility for suppressing religious freedoms, especially of minorities like the Bahai and the Christian Copts.

In sum, the privileging of majority religion by culturalizing it in Western Europe is of a qualitatively different, lighter register than the prescription of Islamic principles by the Egyptian state, whose plainly minority-repressing implications would be unthinkable in Europe.

Adjudicating veils and crucifixes

To keep religion and culture analytically apart, is not to deny that in reality, of course, they always intermesh. As religion turns habitual, it becomes a way of life, a culture, and at the latest the second generation must meet the parental religion as a given, not a choice, as something to be socialized into rather than assented to. Hence one might object that any attempt to distinguish between culture and religion must fail. However, in a brief comparison of European court judgments on veils and crucifixes, which are perhaps central symbols of their respective religion, Islam and Christianity, I would like to demonstrate that the distinction between religion and culture still makes sense, and even helps one understand patterns of conflict surrounding these symbols.

There are two elementary differences between veils and crucifixes. First, the veil itself means nothing; it is mere textile – as much as putting on gloves is to warm your hands, to put on a veil might just be to protect your head from sun or cold. By contrast, the crucifix, even the barren Latin cross that does not exhibit the body of Christ, is intrinsically religious, being a core element of Christian liturgy. Secondly, in the European context, the Islamic veil represents a minority religion, whereas the cross is a (in fact: the) symbol of majority religion. These two simple facts have enormous yet countervailing implications.

First, because of its intrinsic religiosity, the crucifix is in principle better protected than the veil under the religious liberty clauses of European state constitutions and the European Convention of Human Rights. By contrast, the veil is more easily dismissed as not religious but ‘political’, which in this context is a pejorative variant of ‘cultural’ that connotes an aggression, and is liable to be suppressed on this ground. For instance, the French burka prohibition, legislated in 2010, is formally non-religious in its application – as, say, a plastic sack pulled over your head is also prohibited – and the burka itself has been declared primarily a political, not religious symbol, as it is not prescribed by any of the primary religious scriptures of Islam (see Joppke and Torpey, 2013: ch.2). In Germany, the legislative prohibitions of the headscarf in several Länder, passed in the early 2000s, at least when they were discussed in parliament, were construed as attempts to contain political extremism, the argument being that an explicit headscarf obligation can nowhere be found in Islamic religious law – which is, strictly speaking, a theological argument that a religiously neutral and in this regard agnostic state could or should not make (see Joppke, 2009: ch.3).

Secondly, however, there is an opposite implication of the different natures of veil and crucifix, one that now favors the veil and disfavors the crucifix. Because of its majoritarian character, the crucifix often is not a personal attribute but part of our institutional environment – and mainly as such has it become an issue, as state-ordered presence in the public school classroom. ⁵ This makes the protection of the crucifix in principle precarious – it forces the state to identify with religion and thus to undercut the liberal neutrality principle. The trick for the state to escape the dilemma is the culturalization of the crucifix, as discussed above. By contrast, the veiling claim has it easier in this respect: from the point of view of the claimant, it is expression of faith and conscience and thus to be protected as long as there is a constitution that deserves the name; its politico-cultural re-description by the state or other majority-society actors, as mentioned above, rests on shaky hermeneutic grounds. If one compares Christianity and Islam as civilization-making forces, this constellation is a curious inversion of their historical legacies. If the Islamic claim is for the ‘free exercise of religion’, this is the characteristically Christian claim, marking nothing less than the beginning of the modern human rights tradition, even the root of the secular state itself. Conversely, the Christian claim for the crucifix is part of a larger campaign to fill the ‘naked public square’ with religion (Neuhaus, 1984); but is such a claim not historically associated with the notion of Islam as an intrinsically political creed that does not accept the liberal separations?

If one compares two central decisions of Europe’s human rights court (ECtHR) on the crucifix and the veil, the already discussed Lautsi decision (2011) and S.A.S. v France (2014), ⁶ respectively, one cannot but agree with the often-raised charge of a ‘double standard’ that favors Christianity and disfavors Islam (for example, Danchin, 2011). Lautsi, while legal-doctrinally unclear, still sent the right political message: in every society there is a historical majority, which in Europe happens to be Christian. As long as the preferences of this majority are not minority-repressing, they should be respected, and the court rightly refused to subdue them for the sake of a legally correct but politically contentious principle of strict secularity. This is achieved by means of the culturalization of religion, which allows favoring the preferences of the majority without unduly compromising the liberal neutrality principle. Lautsi legally recognized that religion is factually always both, not only proposition but also disposition, whereby majority religion, over time, leans ever more toward the pole of disposition. Look at the writer of these lines – his first name is Christian, even though he is not (or no longer) Christian.

By contrast, S.A.S. v France is both a legal and a political mess. Half a century ago, Oxford legal philosopher H.L.A. Hart and the English high court justice Sir Patrick Devlin had fought a famous debate over the question of whether the liberal state is allowed to prescribe in its laws and policies a public morality, understood as a substantive ethic of how people are to conduct their lives. Whereas one previously thought that the liberal philosopher had ‘won’ this debate (see Bassham, 2012), S.A.S. v France must make one think differently. At least in this one instance, Devlin’s opposite position has been resurrected: ‘yes, it can’, the liberal state is allowed to implement a public morality with the force of law, in this case the self-definition of France as a country in which ‘everyone says bonjour’, as a previous member of the Constitutional Council, the sociologist Dominique Schnapper, has captured in unwittingly comical yet precise terms the nationalist logic of the French burka law (quoted in Bowen, 2011: 337). On the domestic front, this law was justified as a defense of the French way of life on ‘public order’ grounds, and there was no pretension that human rights were served in any way – not unlike, in earlier times, God, Family, or Fatherland were protected by the law of the land. The legal problem is that, under the Strasbourg convention, a ‘public order’ justification of the burka law would have worked to restrict religious liberty (ECHR Article 9), but not the right to privacy (Article 8). For this completely legalistic reason, the basis of the burqa restriction had to be moved from a defense of public order to one of the ‘right of others’ (that is a valid ground for restricting an Article 9 and an Article 8 right) – in this case, the alleged ‘right of others’ to enter into a communication with anyone who is in public space. Unfortunately, a ‘right of others’ to communicate with any person one wishes does not exist, neither under the Strasbourg convention nor in any state constitution. According to the logic of S.A.S. v. France, the use of ear-wired mobile telephones in public also would have to be prohibited, because it seals-off the remote-connected person from the possibility of in situ communication.

Conclusion

To separate religion and state is the hallmark of the liberal state – we call it the idea of neutrality or secularism. While libraries have been written about both concepts, mostly trying to prove their impossibility (as in the case of neutrality) or their overt or covert biases and partiality (as in the case of secularism or secularity), they convene in flagging the necessity of religion-state separation. However, no state has ever managed a perfect separation – the latter is to be understood more as a regulative idea than a reality that could ever be attained. For America, see its notion of ‘civil religion’ (Bellah, 1967), which points to the religious underpinnings of American political discourse, if not its national identity. For Europe, see its historical cityscapes littered with domes and cathedrals, not to mention the continued existence of national churches in England and Scandinavia. Enter mounting religious pluralism, mostly as a result of long-distance migration, and progressing secularization: now there is even more pressure on the state to live up to its ‘neutrality’ mandate. As depicted in this paper, a major strategy for the state to reconcile its notional commitment to neutrality with its notoriously incomplete separation from majority religion is to declare religion ‘culture’ – this gives the state the license, if not the obligation, to associate or even identify with it, as guardian of nationhood. Furthermore, as also demonstrated in the previous pages, a prominent site where this trend can be registered is the legal system, particularly high courts that watch over the constitution that enshrines basic individual rights and essential state principles.

However, one should not exaggerate. The culturalization of religion is contested and perhaps impossible. The churches, certainly, do not condone a trend that amounts to secularization-by-stealth. And, for too many reasons than could be explored in these closing lines, no liberal state would dare to openly embrace a ‘Christian identity’ today, as I had more playfully than seriously exaggerated the import of the European Court of Human Rights’ second Lautsi decision (Joppke, 2013). By contrast, the true site of building such a case are Europe’s far right parties, whose zenith does not seem to have passed yet. It remains to be seen whether they manage to mainstream their vision. Considering the purely instrumental underpinnings of their Christianism (strictly religious populism is unknown in Western Europe), which moreover is launched in ever more secularized societies, one may be doubtful that this campaign can go very far.

The biggest puzzle raised in this paper is certainly the strange coexistence of deculturalized and culturalized religion. How can both processes go together? An answer to this must start from the fact that they occur in different settings and are carried by different actors. Pure religion, bare of culture, to a degree is a diasporic phenomenon, connected with the mobility of beliefs and people in a globalizing world. Religion-as-culture, by contrast, is a sedentary phenomenon, in a way the majority society’s reaction to the import of new beliefs and people. So there may be a dialectic between the two. But that remains for another paper to explore.