First Edition Islam in State-Funded Schools Religion and the Public Law Framework PROCEEDINGS Gracienne Lauwers, Jan De Groof, Paul De Hert iBooks Author Preface Series on Human Rights in Education Gracienne Lauwers, Jan De Groof, Paul De Hert This project has been funded with support from the European Commission. This publication reflects the views only of the author, and the Commission cannot be held responsible for any use which may be made of the information contained therein. 1 iBooks Author Section 1 Conclusions by the Project Coordinators Although in general public schools are kept quite separate from the churches, in many European countries they offer religious instruction as a means for inculcating moral principles and his- torical traditions. Denominational schools have in many cases been brought un- der the influence or even the control of government through pub- lic funding and requirements that they emulate many of the or- Characterized by rationalization, functionalism, and individual- ganizational and curricular standards of public schools. To ism, the European public sphere also offers space for commu- what extent they may continue to exercise a distinctive mission nal life although to a different degree and with variations in is a question for public policy; to what extent they seek to do so each member state, as reflected in the so-called “margin of ap- is an equally interesting question in sociology. preciation” doctrine of the European courts. There are also communal frameworks with a religious character One can distinguish traditionally a number of players in commu- developed by migrants, particularly those from predominantly nity life and in education. Muslim countries. Many Muslims seek to be at home in Europe There are the traditional Christian churches. However secular but remain marginalized. To what extent the religious institu- European politicians may be in their outlook, they have often re- tions which migrants create sustain community life and nurture garded faith and religious institutions as pillars of public order. youth but also isolate them from the host society is a question European policy and decisions of national and European courts of vital importance. have fundamentally affected the relations of the churches with Many migrants and their children born in Europe could be de- the respective states and societies. Nevertheless, although at scribed as having a ‘denationalised identity,’ belonging comforta- present many churches have lost influence on social life, they bly neither in their country of origin nor in the country in which may continue to play a significant role in education. they live, compelled to accept European values, legislation and administrative structures. They have the right to practice their faith, but not as the basis of exemptions from the principles of 2 iBooks Author the secular state. For many, the norms of Western secular cul- ture based on individual rights and freedoms are in conflict with deeply-held communal values. This tension is also reflected in legal doctrines. European policy and courts have accommodated national identities resulting from national histories based on the doctrine of the “margin of appreciation”, but this failed to accommodate ‘denationalised identities’ defined by culture and religion that are not part of a country’s history. Europe has come to understand its public life as functioning in a secularized sphere in which religion does not play a signifi- cant role, having been relegated to the realm of private choice and practice. The presence of communities based upon migra- tion that define their identity in religious terms and seek to make this the basis of their participation in public life, often invoking human rights principles of freedom of conscience and of cul- ture, offers a fundamental challenge to European policy- makers, educators, and legal experts. Gracienne Lauwers (Universiteit Antwerpen) Jan De Groof (Europacollege/ European Association for Educa- tion Law and Policy) Paul De Hert (Vrije Universiteit Brussel) 3 iBooks Author Section 2 Pictures of project events Kick-off symposium on ‘Religion and the public sphere’ (Tilburg, 28 April 2010) International workshop on ‘Religion, Beliefs, Philosophical Con- victions and Education’ (Bruges, 7-9 December 2010) International Conference on ‘Islam (Instruction) in Education’ (Antwerp, 8-12 February 2012) 1 of 25 4 iBooks Author Religious Conflicts and the Principle of State Neutrality Juliane Kokott1 2 iBooks Author Section 1 Introduction ligions are equal and good, […]; and if Turks and heathens came and wanted to live here in this country, we would build them mosques and churches’4, a statement which was also made by Pope Benedict XVI on 20 November 2010 in a very similar way. He then said: ‘Christians are tolerant, and in that re- spect they also allow others to have their self-image. […] It is therefore only natural that Muslims can assemble for prayer in a mosque [in Europe].‘5 Both, Thomas Jefferson’s and Frederick’s approach converge ‘Religion is a matter which lies solely between a man and his insofar as religion is – and has to remain – something private. God’, Thomas Jefferson wrote in 1802, and that the American And while they also agree that the state should remain neutral people therefore ‘declared that their legislature should “make in religious matters, they differ in their evaluation of the specific no law respecting an establishment of religion, or prohibiting kind of state neutrality. Thomas Jefferson’s wall of separation [its] free exercise …”, thus building a wall of separation be- opts for passive neutrality in religious conflicts, in which the tween church and State.’2 This is the principle we call state neu- state should play no role at all. Frederick II, on the other hand trality in the form of Laïcité. Under another principle, the princi- opts for active neutrality in religious conflicts, in which the state ple of ‘friendly cooperation’, Jefferson’s wall of separation is should also be neutral, but nevertheless involved. Both the con- much more porous. The principle of friendly cooperation, or ac- ference’s topic and President van Rompuy’s contribution are ti- tive state neutrality one might say, had already been described tled: ‘from passive toleration to active appreciation of diversity’. by Frederick II of Prussia in 1740. When he was asked, This motto is much more in line with the kind of state neutrality whether Catholic schools should be abolished in Protestant Frederick II had in mind. Prussia, Frederick replied: ‘Religions must all be tolerated and Religious conflicts clearly are challenges of our time. One must the state has to keep an eye on them, that none shall derogate also keep in mind that these conflicts are not limited to terrorism the other, because here everyone must find salvation in his own or religious fundamentalism, but arise on questions closely re- way.’3 Another expression coined by Frederick II is that ‘[a]ll Re- lated to our daily lives, for instance: Are teachers allowed to 6 iBooks Author wear religious symbols in class? Are state schools allowed to display a crucifix? Should the ritual Islamic prayer be allowed in school? May or even should the EU and / or some of its Mem- ber States have a ban on headscarves – burqas and niqabs – in schools or in general? And is the Swiss constitutional referen- dum against the construction of minarets compatible with Euro- pean values? 7 iBooks Author Section 2 What model of state-church relations in a modern society? study by the German Jurists’ Forum came to the conclusion that the system of ‘friendly cooperation’ between church and state still remains a good basis for addressing current prob- lems. Its strength lies in its confidence that religious matters can – and perhaps ought to be – handled in public.6 But what is the European answer to the question of how to ac- commodate state and religion, in particular in the field of educa- Addressing this multitude of religious conflicts, one may ask tion? And is there a common European answer at all? whether the easiest and most adequate approach is not just to ban religion altogether from the public sphere and thus to ad- here to laicism. Such ban would affect all religions equally; there would be no problem of preferring majority religions over minority beliefs. However, as I am going to show, laicism may favour atheism over religions. Moreover, a laicistic approach risks to ignore social reality, since religious conflicts are of a great variety and of a great importance, even in a modern soci- ety. Societies and their elected representatives cannot simply ignore these problems, but have to deal with them. When doing so, they should not focus exclusively on how to deal best with or integrate Islam in Europe. Questions on the use of geneti- cally modified crops, abortion, stem-cell research or medically assisted suicide, to name but a few, are also questions of our modern society, questions determined and influenced by relig- ion, belief and philosophical convictions. Simply put: Religion still plays an important role in our modern society, giving us enough reasons to seek an open dialogue and cooperation. A 8 iBooks Author Section 3 The European Dimension in religious conflicts and State Neutrality Treaty. To determine such common constitutional traditions, the ECJ uses the method of constitutional comparison thereby also taking into account how the national (constitutional) courts inter- pret the fundamental rights. When dealing with freedom of religion and state neutrality in Europe, we are therefore faced with a multitude of national con- stitutions and judicial interpretations. Thus, national (constitu- Although we are all aware of the complex legal status of the tional) courts and two European Courts are charged with inter- European Union, the question of ‘state neutrality’ arises all the preting the freedom of religion in Europe.