Battles Over Symbols: The "Religion" of The Minority Versus The "Culture" of The Majority

BATTLES OVER SYMBOLS:
THE "RELIGION" OF THE MINORITY VERSUS THE

"CULTURE" OF THE MAJORITY
Lori G. Beaman*
Moreover, with the benefit of hindsight, it is easy to identify in the

constant central core of Christian faith, despite the inquisition,
despite anti-Semitism and despite the crusades, the principles of
human dignity, tolerance and fi-eedom, including religious
fi-eedom, and therefore, in the last analysis, the foundations of the
secular State.'
A European court should not be called upon to bankrupt centuries
of European tradition. No court, certainly not this Court, should
rob the Italians of part of their cultural personality.'^
In March, 2011, after five years of working its way through various
levels of national and European courts, the Grand Chamber of the
European Court of Human Rights decided that a crucifix hanging at the
front of a classroom did not violate the right to religious fi-eedom under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms. Specifically, Ms. Soile Lautsi had complained
that the presence of the cmcifix violated her and her children's right to
religious fireedom and that its presence amounted to an enforced
religious regime. The Grand Chamber, reversing the lower Chamber's
decision, held that while admittedly a religious symbol, the cmcifix also
represented the cultural heritage of Italians.
Across the Atlantic Ocean at the same time a debate was raging in
Saguenay, Québec about the presence of a cmcifix and a sacred heart
statue in the meeting room of the municipal council. Moreover, the
* Canada Research Chair in the Contextualization of Religion in a Diverse Canada at the

University of Ottawa, director of the Religion and Diversity Project. Thank you to the Social
Science and Humanities Research Council of Canada who provided funding for this research. I
would also like to thank Adele Reinhartz, who offered encouragement and inspiration during the
writing process. Thank you also to Solange Lefebvre, Heather Shipley, Winnifred Sullivan,
Louise Tardif, and Leo Van Arragon for reading and commenting on an earlier draft of the article.
I am grateftil for the comments and suggestions made by Linda Woodhead. Thank you to Morgan
Hunter for her editorial assistance.
1. Lautsi V. Italy (Eur. Ct. H. R. 2012) E.H.R.R. 3, H 15.
2. Id. at H 1.2 (Bonello, J., concurring).
67
68 JOURNAL OF LAW & RELIGION [Vol. XXVIII
mayor of that city wished to begin each council meeting with prayer. It
was, after all, he argued, part of their heritage. Two years prior the
Québec National Assembly had voted unanimously and across political
parties to keep the crucifix hanging in the main chamber of the
Assembly, the Blue Room, on the grounds that it was a symbol of
Quebec's heritage and culture. This decision was in opposition to a
recommendation in the Bouchard-Taylor Commission report that it be
removed in the spirit of laïcité ouverte.
This article explores the recent trend toward the cultural
transformation of religious symbols. The core argument of this article is
that such a transformation allows for the preservation of a majority
religious hegemony in the name of culture. Moreover, the move to
culture opens space for an argument that religious values are universal
values.
Section I of the article outlines two recent situations, one a case
from the European Court of Human Rights that originates in Italy, the
other a decision of the Québec legislature and a debate about religious
symbols in a public meeting space, to explore the process of
transformation and its implications. Section II details the process of the
shift from religion to culture through five techniques, focusing primarily
on the Italian and Québec examples. However, although the article
draws primarily on two examples that involve Roman Catholicism as a
majoritarian religion, this by no means implies that the move from
religion to culture does not happen in other religious contexts. To
illustrate this point, I draw on the example of protestant universality in
the United States. Further, the distinction between majorities and
minorities is admittedly somewhat problematic. In both Québec and
Italy the place of the Catholic Church in society is deeply contested.
However, this does not negate the ways in which religion is woven
through social institutions as a subtle yet powerful organizer of social
life. While power relations can change, the force of historical religious
majorities should not be underestimated. This may be particularly so as
they struggle for survival in the current context of religious pluralism.
The Conclusion of the article examines the possibility that a move
from religion to culture, while preserving religious hegemony, also
opens possibilities for resistance by allowing religious minorities to
draw on the rhetoric of culture to shift the discourse away from religion.
Ultimately, though, drawing on an example from within the Lautsi
Grand Chamber decision and an attempt by Sikhs in France to position
their religious practices as cultural practices, the sedimentations of
power and power relations may restrict the ways in which religious
1] BATTLES OVER SYMBOLS 69
minorities are able to reposition their practices as cultural practices.
I. THE CULTURAL TURN
A. The Lautsi II Decision

In March 2011 the Grand Chamber of the European Court of
Human Rights issued a decision holding that the crucifix hanging in the
classroom of the children's school did not violate the freedom of Ms.
Lautsi and her children.'' For clarity's sake, and since this article draws
on quotations from the decisions as they are cited in the Grand Chamber
decision, it is necessary to briefly outline the trajectory of events
regarding the case as it made its way through a series of courts.
Although there are subtle differences in the reasoning of the various
courts, the essence of their conclusions, with the exception of the 2009
decision of the European Court of Human Rights, was that the cmcifix is
an important cultural symbol with religious roots that cannot and should
not be eliminated from public spaces such as schools. Rather than
represent an affirmation of Catholicism or Christianity as the state
religion, the courts held that the cmcifix represents core values that
symbolize the state's commitment to tolerance, equality and liberty.
The trajectory of events was as follows:
• In 2002 Ms. Lautsi complained to her school board about
the presence of crucifixes in the classrooms of her
children's school. The school board decided to leave the
crucifixes in place. Ms. Lautsi complained to the Véneto
Regional Administrative Court.
• In 2004 the Véneto Regional Administrative Court granted
the request to submit the matter to the Constitutional
Court, which declined jurisdiction and sent the matter back
to the Administrative Court.
• In 2005 the Administrative Court held that the crucifix is a
part of Italian history and culture and should stay.
• In 2006 the Council of State, The Supreme Administrative
Court, dismissed the appeal. Ms. Lautsi complained to the
European Court of Human Rights.
• In 2009 the European Court of Human Rights held that the
display of crucifixes violates both religious freedom and
the parents' right to educate their children. The matter
was appealed to the Grand Chamber of the European
3. A. Lautsi V. Italy (Eur. Ct. H. R. 2012) 54 E.H.R.R. 3 [hereinafter Lautsi II].

Court of Human Rights.

In summary, then, with one exception (the decision of the European
Court of Human Rights) the presence of the crucifix was upheld,
primarily because of its cultural importance to Italy. It is noteworthy
that Italy was not the only country to weigh in on the matter, with a
number of countries submitting arguments about the significance of
religious heritage and the importance of Christianity to European
heritage."*
The context in Italy of the move from religion to culture is not
easily characterized. Superficially, we might conclude that the majority
of Italians identify in some way with the Roman Catholic Church. The
Church has permeated all levels of society and is an important animating
factor in civil life, as well as in public debates on a wide range of
issues.^ But to simply characterize Italian society as having a monolithic
religious texture would offer only a black and white version of what is a
more nuanced and colorful picture. To be sure, the presence of the
Vatican in the heart of Rome is one important complication. But Italy
has shown (a perhaps surprising) openness to religious minorities in
contrast to some of its European neighbors.* An increasing number of
Italians support religious and cultural diversity.' Although Catholicism
retains what Giuseppe Giordan describes as a "relative majority," he
notes that few differences remain between the religiously committed and
uncommitted (based on standard measures such as church attendance)
on issues such as women's and gay's ordination, communion for
divorced people and the marriage of priests.^ He identifies what he calls
an emerging common sense religion which emphasizes freedom of
choice for individuals. Similarly, Annalisa Frisina documents the
ambiguous relationship between citizen groups and private social
organizations in relation to the Catholic Church and its provision of
4. Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, Monaco,
Romania and the Republic of San Marco acted as interveners on the case. Id. at H 47-49.
5. Franco Garelli, The Public Relevance of the Church and Catholicism in Italy, 12 J. MOD.
ITALIAN STUD. 8 (2007).
6. See Massimo Introvigne, Italy's Surprisingly Favourable Environment for Religious
Minorities, 4 NOVA RELIGIO 275 (2001); Massimo Introvigne, Religious Minorities in Italy: Legal
and Political Problems, 2 RELIGION-STAAT-GESELLSCHAFT 127 (2001). See also Michael W.
Homer, New Religions in the Republic of Italy, in REGULATING RELIGION: CASE STUDIES FROM
AROUND THE GLOBE 203 (James T. Richardson ed., Kluwer Acad. 2004) who details the
historical context in which Italy's openness to religious minorities has developed, particularly in
relation to tax exemptions and official recognition of religious tninorities.
7. Tiziana Faitini & Alessandroantonio Povino, Handling Religious Diversity: The Case of
''Holy/Rest days " in Italy, 18 HUM. AFF. 23 (2008).
8. Giuseppe Giordan, Towards a Common Sense Religion? The Young and Religion in Italy
13 IMPLICIT RELIGION 261, 269-71 (2010).
I] BA TTLES O VER SYMBOLS 11
social services. There is, she notes, an increased desire for a secularized
Italy.'
This context means that there are contests over the role of the
Church and the presence of the Church in the public sphere. This
contestation has perhaps led to a somewhat heated atmosphere, in which
the threat to the Church has caused a backlash that has manifested in the
political sphere through symmetry between official public positions and
Church interests.
Indeed, the initial decision of the European Court in the classroom
crucifix case was met with public outcry,'" including the Berlusconi
government's minister of education, Maria Stella Gelmini. Gelmini
noted that: "No one, not even some ideologically motivated European
court, will succeed in rubbing out our identity."" The court's decision
was equated with ignoring or attempting to wipe out the role of
Christianity in European history. The decision of the court was
identified as symptomatic of an anti-Christian backlash that denied
Christians their religious fi-eedom.'^ Massimo Intro vigne, a well-known
scholar of religious freedom, described this as Christianophobia and
called for a Day of Christian Martyrs in light of what he identified as
increasing global hostility toward Christians.'^ Nonetheless, the Lautsi
II decision took place in contested space that includes resistance to the
traditional religious majority of the Roman Catholic Church. In other
words, not everyone was outraged.'''
9. knn&ViS&Vnsmdi, What Kind of Church? What Kind of Welfare? Conflicting Views in the
Italian Case, in 1 WELFARE AND RELIGION IN 21ST CENTURY EUROPE: VOLUME 1, at 147, 147
(Anders Bäckström, et al. eds., Ashgate 2010).
10. Italy School Crucifixes 'Barred': The European Court of Human Rights has Ruled
Against the Use of Crucifixes in Classrooms, BBC NEWS, (Nov. 3, 2009),
http://news.bbc.co.Uk/go/pr/fr/-/2/hi/europe/8340411.stm; John Hooper, Human Rights Ruling
Against Classroom Crucifixes Angers Italy: European Court of Human Rights Rules Crucifixes
That Hang in Classrooms Violate Religious and Educational Freedoms, THE GUARDIAN (Nov. 3
2009) http://www.guardian.co.uk/world/2009/nov/03/italy-classroom-cmcifixes-human-rights.
11. Quoted in Hooper, supra note 9.
12. Alessandro Iovino, On Europe, its Christian Heritage and Multiculturalism, Paper
Presented at CESNUR 2010 Conference (2010), http://www.cesnur.org/2010/to_iovino.htm.
13. Massimo Introvigne, Threats to Religious Freedom in the 21st Century, Paper Presented
at OSCE Representative on Combating Racism, Xenophobia, and Intolerance Against Christians
and Members of Other Religions at the Joint Council of European Bishops' Conferences (CCEC)
and Conference of European Churches (CEC) Meeting (Feb. 18, 2011),
http://www.cesnur.org/2011/mi-bel-en.html.
14. A complicating historical fact is worth noting: the laws related to the placement of the
crucifix in the classroom were instituted under the fascist regime of Mussolini, and thus for some
people there is also a political connotation to the presence of the crucifixes that brings with it a
reminder of an era of Italy's history that many would prefer to forget or to distance modem Italy
fi-om. The struggle over national identity is therefore not a simple matter of church or no ehurch.
Malcolm D. Evans, From Cartoons to Crucifixes: Current Controversies Concerning the Freedom
One of the interesting voices of resistance to the Roman Catholic

monopoly is the group of which Ms. Lautsi is a member—the Union of
Atheists and Rational Agnostics. The group formed in Italy in 1987 and
was the first organized atheist movement in that country. Their goals as
stated on its website are to protect people who do not have a religion, to
defend the secular state, and to promote a non-religious view of the
world."
B. The Québec Cmcifix

On May 22, 2008 the long awaited results of the Bouchard-Taylor
Commission Report were released to the National Assembly of
Québec.'* The Report was debated in a rather vacuous political volley,
which produced little of substance in terms of either political points or
meaningful discussion. But a motion was made in the following
wording:
THAT the National Assembly reiterate its desire to promote the
language, history, culture and values of the Québec nation, foster
the integration of each person into our nation in a spirit of
openness and reciprocity, and express its attachment to our
religious and historic heritage represented particularly by the
crucifix in our Blue Room and our coat of arms adorning our
institutions.'^
of Religión and the Freedom of Expression Before the European Court of Human Rights, 26 J L
& RELIGION 345, 355 (2010).
15. The goals have been summarized from a rough English translation on the website of the
Intemational League of Non-Religious and Atheists by Lorenze Lozzi Gallo, translator.
Presentation of Unione degli Athei e degli Agnostici Razionalisti (UAAR), Italy. INT'L LEAGUE
OF NON-RELIGIOUS & ATHEISTS, http://www.ibka.org/en/articles/agO2/uaar.html (last visited June
25, 2012). See afeo the website for the Unione deglli Atei e degli Agnostici Razionalisti (Union of
Atheists and Rational Agnostics) in Italian only: http://www.uaar.it/.
16. GERARD BOUCHARD & CHARLES TAYLOR, BUILDING THE FUTURE: A TIME FOR
RECONCILIATION (Commission de Consultation sur les Pratiques d'Accommodement Reliées aux
Différences Culturelles 2008).
17. Officiai Translation from original French:
Que l'Assemblée nationale réitère sa volonté de promouvoir la langue, l'histoire, la
culture et les valeurs de la nation québécoise, favorise l'intégration de chacun à notre
nation dans un esprit d'ouverture et de réciprocité et témoigne de son attachement à notre
patrimoine religieux et historique représenté notamment par le crucifix de notre salon
bleu et nos armoiries ornant nos institutions.
Then Premier Jean Charest said, "Réitérer la volonté de l'Assemblée de promouvoir la langue,
l'histoire, la culture et les valeurs de la nation québécoise, de favoriser l'intégration de chacun et de
ténioigner de son attachement au patrimoine religieux et historique," in the Québec Assemblée
nationale. Journal des débats (Hansard) of the National Assembly. 38th legislature, 1st sess
(May 22, 2008).
The motion was remarkable for several reasons. First, it affirmed what
the report had explicitly denied—the interrelated nature of state and
religion in Québec. Second, it explicitly rejected the recommendation
that the crucifix be removed from the Blue Chamber. Third, the motion
was submitted without debate. Finally, it was unanimously accepted,
across political lines, by every member present in the National
Assembly that day.
Responding to the suggestion that the crucifix should be removed,
then Québec premier, Jean Charest, stated: "This is our history. We
cannot re-write history. . . . The Church has played an important role in
Quebec's history and the crucifix is the symbol of that history."'^ The
thinness of the veneer of secularism is exposed in this brief moment: not
one of the members of the National Assembly, of any political party,
dared to oppose the symbolic presence of God. However, the point is
not to identify Québec as a religious or secular society, but rather to
illustrate the complex ways in which religion and culture are
intertwined. This in turn shifts the discussion to one that facilitates a
deeper exploration of the ways in which religion is intertwined in social
and cultural life.'^ Only then is it possible to explore the impact ofthat
melding on religious minorities and religious freedom.
The Bouchard-Taylor Commission, which produced the report that
triggers this discussion, was formed by the Québec government in early
2007 to study the parameters of reasonable accommodation and their
implications for Québec society and social cohesion.^" The precise
catalyst for the creation of this Commission is a matter of
interpretation.^' But the rising panic and fear within Québec society
(and arguably beyond) related to a series of so-called accommodations
18. Quoted in Québec Garde le Crucifix, RADIO-CANADA, May 22, 2008, http://
www.radio-canada.ca/nouvelles/National/2008/05/22/003-reax-BT-politique.shtml. Translated by
Karine Henrie, original French: C'est notre histoire, on ne peut écrire l'histoire à l'envers, a-t-il
dit. L'Église a joué un rôle important dans l'histoire du Québec et le crucifix est le symbole de
cette histoire.
19. Linda Woodhead, "What Do You Get When You Spend Millions on Collaborative
Research on Religion?" Paper Presented at the Society for the Scientific Study of Religion
Annual Meeting (Oct. 29, 2011).
20. A number of similar reports have been produced in other countries, including France,
Rapport au president de la République: Commission de réflexion sur l'application du principe de
laïcité dans la République, called the Stasi report after the commission chair; in Belgium, Les
Assises de l'Interculturalité 2010; and in the United Kingdom The Future of Multi-Ethnic Britain,
known as the Parekh report.
21. See Pauline Côté, Quebec and Reasonable Accommodation: Uses and Misuses of Public
Consultation, in RELIGION AND DIVERSITY IN CANADA 41, 46 (Lori G. Beaman & Peter Beyer
eds.. Brill 2008); Solange Lefebvre, Between Law and Public Opinion: The Case of Quebec, in
RELIGION AND DIVERSITY TN CANADA, supra, at 175,177-80.
to minority groups, especially Muslims, Sikhs and Jews,^^ partly

accounts for the impetus for the Commission. The Commission held
public hearings across Québec and received some nine hundred briefs in
response to their call for public participation in the discovery process.
The Commission presented its findings in a report of over three hundred
pages (English version).
A number of concems dominated the report and I will touch on
only one here. The Commission grappled with what the future should
hold in terms of the place of religion in society and in relation to the
state given the historical context of Québec. The background for this
consideration is especially complicated in the case of Québec.
While there has never been an official separation of church and
state in Canada, neither has there been a state church. There has thus
existed a broad spectrum of possibilities of church-state relations that
have been relatively fluid. However, if there has been any province that
has experienced anything close to a state-church it has been Québec.
The Roman Catholic Church in Québec has been intertwined with the
mechanisms of the state in myriad ways. The resulting complexity
cannot be overstated. The vast majority of Quebecers identify as Roman
Catholic, but what exactly that means in terms of involvement in
religion is not clear. It does not translate into more public or visible
practices, such as church attendance, that are measured in standard
surveys (which may merely point to the inadequacy of standard survey
measures). But as Solange Lefebvre points out in her work, there
remains a portion of the population who practice their devotion through
shrine related rituals.^^ Further, as Olivier Roy notes, the religious
marker can "become the key identity marker, without necessarily being
tied to an authentic religious practice, although it may be conducive to
such practice."^"* Although it is unclear how we might assess authentic
religious practice as it is imagined by Roy, the point to be highlighted is
the majoritarian nature of Roman Catholicism in Québec even absent
participation in the usual rituals (church attendance, for example) that
are measurable in the standard way.
22. This included the Multani v. Commission scolaire Marguedte-Bourgeoys, [2006] 1

S.C.R. 256 (Can.) and Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 (Can.) decisions, as
well as decisions in favor of granting prayer space to Muslims. See Lefebvre, supra note 20, at
179.
23. Solange Lefebvre, Sanctuaires catholiques au Québec, 141 ARCHIVES DE SCIENCES
SOCIALES DES RELIGIONS 33 (2008).
24. OLIVIER ROY, HOLY IGNORANCE: WHEN RELIGION AND CULTURE PART WAYS 67 (Ros
Schwartz trans., Colum. Univ. Press 2010).
In this context, the Bouchard-Taylor Commission recommended

laïcité ouverte as a path for the fliture.^^ This version of laïcité was
intended to be a home-made solution taking into account Quebec's
unique history, balancing the need for the state to be neutral and the
acknowledgment of "the importance for some people of the spiritual
dimension of existence and, consequently, the protection of freedom of
conscience and religion."^* The authors of the report distanced this
version of secularism from the French version, which they described as
"a constitutional principle and an identity marker to be defended.""
They also admitted that the path for the future is highly debated in the
Québec context, but that open secularism created the best context for
balance.
The specific recommendation related to the cmcifix was contained
in the overall recommendations at the end of the report under the general
heading of "secularism":
In the name of both the separation of the State and churches and
State neutrality, we are of the opinion that the crucifix should be
removed from the wall of the National Assembly, which is the
very embodiment of the constitutional state. For the same reason,
the saying of prayers at municipal council meetings should be
abandoned in the many municipalities where this ritual is still
practised.^^
Earlier in the report under the heading "religious heritage," the authors
provided a more elaborate justification for the removal of the cmcifix:
This crucifix, which Maurice Duplessis installed in 1936, suggests
that a very special closeness exists between legislative power and
the religion of the majority. It seems preferable for the very place
where elected representatives deliberate and legislate not to be
identified with a specific religion. The National Assembly is the
assembly of all Quebecers.^'
25. The idea of laïcité ouverte was introduced in JEAN-PIERRE PROULX, ET AL., RELIGION IN
SECULAR SCHOOLS: A N E W PERSPECTIVE FOR QUÉBEC, at vii (Ministère de l'éducation.
Gouvernement du Québec 1999.)
26. BOUCHARD & TAYLOR, supra note 15, at 140.
27. Id. at 141.
28. Id at 260.
29. Id. at 152. This reference to Duplessis raises an intriguing parallel between the
circumstances of the institution of the crucifix on Italian classroom walls and the installation of
the crucifix in the National Assembly. For many Quebecers Duplessis is associated with a time in
the history of Québec which saw a too-close association between the church and the state.
Duplessis was the premier of Québec and was seen by some to work hand in hand with the church
to oppress the people of Québec. Although comparing the Duplessis era with that of Mussolini in
Italy is overstating the case, in the narrative of the Québec nation the Duplessis era has come to
represent a similar oppressive time from which Quebecers wish to distance themselves and are
In the explanatory paragraphs regarding the removal of the crucifix,

Bouchard and Taylor were careful to note that:
Quebecers of immigrant origin and the members of religious
minorities who participated in the Commission's public hearings
did not, moreover, plead for the elimination of Quebec's religious
heritage. However, we must avoid maintaining practices that in
point of fact identify the State with a religion, usually that of the
maiority, simply because they now seem to have only heritage
In the concluding paragraph of that section, the authors noted that there
will remain instances where the state cannot remain neutral, such as in
the use of a common calendar and the celebration of statutory holidays
that are Christian.^'
In interesting contrast, the report also mentions the iconic cross on
the top of Mont Royal (flanked on the other side of the "mountain" by
the imposing Oratoire pilgrimage site)^^ in Montréal. This sacred
symbol is so untouchable that not even Bouchard-Taylor dared to disturb
it. While not in a state building per se, that cross is in the heart of the
most sacred public space of all in Montréal: Parc Mont Royal, a publicly
accessible 190-hectare Olmstead-designed park dating to 1876 which is
the hub of the island of Montréal. The 31.4 meter cross on Mont Royal
was erected in 1924 by the Société Saint-Jean-Baptiste, an institution in
Québec that aims to protect Francophone interests in the province. The
cross was meant to replicate an original wooden cross placed on the
mountain in 1643 by Paul Chomedey de Maisonneuve as a fulfillment of
determined never to repeat. See David Seljak, Why the Quiet Revolution was "Quiet": The
Catholic Church's Reaction to the Secularization of Nationalism in Quebec After 1960, 62 HIST.
STUD. 109 (1996); Gregory Baum, Catholicism and Secularization in Quebec, in RETHINKING
CHURCH, STATE, AND MODERNITY: CANADA BETWEEN EUROPE AND AMERICA 149 (David Lyon
& Marguerite Van Die eds;,-Univ. Toronto Press 2000). See also Micheline Milot, When Religion
Disturbs. The Debate Over Secularism in Quebec, 7 OUR DIVERSE CITIES 84 (2010). Milot
makes the following comment about the crucifix:
Yet this crucifix is a recent addition to the premises of the Quebec National Assembly.
It was put there in 1936 by the government of Maurice Duplessis. For decades,
Quebeckers have referred to the Duplessis years as,fi-oma political and religious
standpoint, the "Great Darkness." What an ironic twist to suddenly make "Duplessis'
crucifix" a symbol of Quebec's heritage to which all citizens should show their
attachment!
Id at 86.
31. / à at 153.
32. The Oratoire Saint^Joseph is a large Basilica on the side of Mont Royal. The location
gained notoriety as a pilgrimage site due to the miraculous healings of Frère (now Saint) André
Bessette at the turn of the last century. For more information on Montreal's Oratoire Saint-
Joseph, see Saint Joseph's Oratory http://www.saint-joseph.org/en (last visited Oct. 13, 2012).
a vow made to the Virgin Mary when he prayed to her to ask her to stop
a fiood. In 2004 the cross became the property of the City of Montréal,
which is now responsible for its maintenance.^^ Thus, given its presence
by both state sanction and public endorsement, the occupation of the
cross on the "moimtain" is arguably an even more significant reminder
of religion than the cmcifix in the National Assembly.^" But, the Report
takes a different view:
Certain practices or symbols may originate in the religion of the
majority without necessarily genuinely restricting those who are
not part of this majority. This is true of practices and symbols that
have heritage value rather than playing a regulatory role. For
example, the cross on Mont-Royal does not signify that Montréal
identifies with Catholicism and does not demand of non-Catholics
that they act against their conscience. It is a symbol that reflects a
chapter of our past. A religious symbol is thus compatible with
secularism when it is a historic reminder rather than a sign of
religious identification by a public institution.^^
Recent events regarding prayer at municipal council meetings also
illustrate that the debate over symbols in the public sphere is far fi-om
finished in Québec. A vocal Roman Catholic minority^* are fighting to
maintain religious ritual in the public sphere.^' For instance, Jean
Tremblay, mayor of Saguenay, Québec has fought to retain prayer at the
hegirming of municipal council meetings and to maintain religious
symbols in council chambers. Tremblay has reportedly stated, "It's our
tradition and it's our culture to do that"; "We have faith. It's not bad to
have faith. It's good for us"; and "We must renew with our roots."^^
33. Gaston Côté, L'Érection de la croix du Mont Royal, 1 MENS 47 (2006); Ville de
Montréal, http://ville.montreal.qc.ca/portal/page?_pageid=175,4878067&_dad=portal&_schema=
PORTAL&nomPage=bt+parc_01 (last visited Oct. 13,2012).
34. The spatial aspects of religion are an important and often ignored dimension of the study
of religion and society. For an exceptionally good analytical guide, see KlM KNOTT, THE
LOCATION OF RELIGION: A SPATIAL ANALYSIS (Beacon Press 2005).
36. Minority here implies a certain reliance on standard measures of affiliation or devotion.
It is difficult to find an accurate way to talk about the "devout" in Québec as the majority still
affiliates with Roman Catholicism but supports only limited function for the church in the public
sphere. To describe the group of people who call for the continued presence of religious rituals
and symbols in the public sphere as a minority is not especially accurate, since there is no real way
to determine what percentage they make up of the population of those who self identity as Roman
Catholic.
37. Interestingly, as in the Italian situation, it is an atheist complainant who has been the
driving force behind the objection to the presence of the crucifix and the prayers in the municipal
context.
38. Quoted in Prayer Ban to be Appealed by Quebec Mayor, CBC NEWS (Feb. 16, 2011),
http://www.cbc.ca/news/canada/montreal/story/2011/02/16/quebec-sageunay-mayor-religion.html.
Although Tremblay is Roman Catholic, it is not clear whether his

position is about Roman Catholicism per se or about a broader
imagining of a Christian, and specifically Catholic, hegemony under
threat. This tension is illustrated by other statements from the mayor.
For instance, Tremblay has said, "For me, a Tremblay from Saguenay-
Lac-St-Jean, a French-Canadian Catholic, a Quebecer—for me, it's the
basis of our culture here"; and "If we let go of everything that
distinguishes us, where will French-Canadians be in a few years?"^'
Here the mayor links together the depth of his own personal roots
(Tremblay being a foundafional name in this region), Catholicism,
French-Canadian-ness and identity as a Quebecer to form a picture of an
individual inextricably linked to the "we" whose heritage must be
preserved and protected.
Both the Italian and Québec examples suggest a move from a
rhetoric of religion to a rhetoric of culture in relation to majority
religious symbols and practices in the public sphere. This move has
emerged in the context of protection of religious freedom, in the case of
Italy under the European Convention of Human Rights,''" and in Québec
under the Canadian Charter of Rights and Freedont^ and the Québec
Charter of Human Rights and Freedoms.'*'^ Specifically, as religious
minorities and the non-religious have sought to enforce their rights,
religious symbols and practices have been distanced from religion itself
Moreover, religious symbols have been "squeezed" from two angles: a
pressure to secularize public space or to remove religion from public,
and an increased religious diversity that has made religious hegemony
more obvious. This increased visibility of religious hegemony has
resulted in the discursive shift discussed here.
II. SHIFTING THE BOUNDARY OF THE RELIGIOUS
To say that the boundary between religion and culture has shifted
in the Québec and Lautsi cases implies that both religion and culture are
fixed both conceptually and as they play out in social life. To some
extent I have begged a fundamental question in this discussion. What
39. Quoted in Patrice Bergeron, Quebec Appeals Court Will Hear Bid by Mayor who Wants
Prayer Before Council, NEWS1130 (Mar. 29, 2011), http://www.newsll30.com/
news/national/article/20473 3.
40. Council of Europe, European Convention for the Protection of Human Rights and
Fundamental Freedoms, Nov. 4, 1950, ETS 5, http://www.unhcr.org/refworld/
docid/3ae6b3b04.htmL
41. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
42. Charter of human rights and freedoms, RSQ, c C-12.
counts as religion? How do we define religion? Who decides what

counts as religion? These questions have been the subject of a massive
body of scholarship that has led fundamentally nowhere.''^
It is indeed vital to understand how a court, for example, defines
and understands the concept of religion. Winnifred Sullivan notes that
the courts in the United States have such a fundamentally protestant'*''
view of religion that religious freedom under the law is impossible. In
other words, religious practices that fall outside of protestant
understandings of religion are excluded from the purview of religious
freedom protection. While these discussions might be framed as purely
definitional, I prefer the approach of Kocku von Stuckrad who has
proposed that it is a matter of discourse and episteme."^ Calling on the
work of Michel Foucault, among others, von Stuckrad positions these
inquiries as an interdisciplinary quest not to pursue a particular tmth
about "the" definition of^ religion, but to explore the ways in which
religion intersects with other fields and in the process is both productive
and produced.
James Beckford's work is also helpftil to this project.'** He takes
what he describes as a moderate constmctionist approach, arguing that
both first order notions of religion (those which actors use in everyday
life) and second order concepts of religion (those which serve analytical
purposes) are "constmcted, negotiated and contested" and that "far from
being a fixed or unitary phenomenon, religion is a social constmct that
varies in meaning across time and place."'*' Beckford thus aims to
remain analytically open to exploring the varied ways in which religion
is imagined, used and deployed across time and context.
The analysis in this article takes such a discursive approach to
religion. The question is not whether the cmcifix is a religious symbol.
Rather, the focus is on what is achieved, which power relations shifted
and preserved, by recasting the cmcifix (and other symbols) as
"cultural" rather than religious when they have previously been cast as
43. This is not to say that there is not valuable and important criticism and insight to be had
from some of this literature. See especially Linda Woodhead, Five Concepts of Religion, 21 INT'L
REV. Soc. 121 (2011) for her clear discussion of the definitional problem.
44. Sullivan says "I use 'protestant' not in a narrow churchy sense, but rather loosely to
describe a set of political ideas and cultural practices that emerged in early modem Europe in and
after the Reformation; that is, I refer to 'protestant,' as opposed to 'catholic,' models of
church/state relations." WINNIFRED FALLERS SULLIVAN, THE IMPOSSIBILITY OF RELIGIOUS
FREEDOM 7-8 (Princeton Univ. Press 2005).
45. Kocku von Stuckrad, Reflections on the Limits of Reflection: An Invitation to the
Discursive Study of Religion, 22 METHOD & THEORY STUDY RELIGION 156, 158-59 (2010).
46. JAMES A. BECKFORD, SOCIAL THEORY AND RELIGION (Cambridge Univ. Press 2003).
47. / ¿ a t 7 .
"religious." What does it mean when a symbol is marked as both

cultural and religious? What arguments does this enable and how does it
shape the boundaries of the possible? What does the demarcation of
something as "cultural" mean? What is the impact of reframing the
boundary of the religious or the cultural? Since both "culture""*^ and
"religion" are contested and varied terms, attending to the specific ways
in which actors deploy these terms and what they hope to achieve in
their use is vital.
To explore these issues, I examine the ways in which the symbols
in question are framed. Five interrelated techniques of displacement or
transition from religion to culture emerge from the Lautsi and Québec
examples. First, and least convincing, the, symbol may be denied or
downplayed as a religious symbol. Second, (and related to the first), the
religious symbolism may be admitted, but its passive nature emphasized.
Third, the effectiveness of the symbol may be reduced by rendering it
one among many religious symbols that are free to exist in public space.
Fourth, the religious may be transformed into the secular. Finally, the
symbol, however it is defined, may be equated with good citizenship, the
nation and national values.
A. Denial
Complete denial of the religious significance of symbols is part of
the transformative process from religion to culture. While not wholly
successful, the desacralization of religious symbols serves to both
distract from a defacto hegemony and to reconstmct the symbol as one
that belongs to everybody. As Christian institutional religion is in crisis,
the shift to culture protects religious symbols by sheltering them within
"heritage." In Québec this discourse has emerged especially in relation
to historically significant churches. While governments stmggle to find
money for basic services, there is little public appetite for spending
money to preserve cmmbling church buildings. However, there is some
support for "preserving our heritage," evidenced by the following
statement from the Minister of Culture in announcing $18.6 million in
government funding for one hundred religious buildings.
Without a doubt religious edifices are treasures in our culture and
strong identity symbols in our towns and villages. Part of the
Québec landscape, churches are significant from a historical.
48. See GERD BAUMANN, CONTESTING CULTURE: DISCOURSES OF IDENTITY IN MULTI-

ETHNIC LONDON (Cambridge Univ. Press 1996) for a complex review of the problems of culture
in the specific context of one London community.
architectural and symbolic perspective. It is our responsibility to

continue our efforts to ensure the integrity of those places of
worship for present and future generations.'"
Moreover, my unscienfific attempts in conversations with
Quebecers to explore the theme of retention of religious symbols have
almost inevitably prompted a response that "it is not religious for us, but
cultural." In part this narrative is borrowed from France, which has also
employed the denial strategy to support religious symbols.^"
This denial strategy is prevalent in popular discourse in Québec,
but it also appears in public documents. For example, in relation to the
cross at the top of Mont Royal, the Bouchard-Taylor report stated: "This
is true of practices and symbols that have heritage value rather than
playing a regulatory role. For example, the cross on Mont-Royal does
not signify that Montréal identifies with Catholicism and does not
demand of non-Catholics that they act against their conscience."^'
As discussed earlier, the motion to keep the crucifix in the National
Assembly Blue room emphasized language, history, culture and
religious heritage. The possibility that the symbol is live and has
contemporary religious meaning was denied. Similarly, in the Lautsi I
case, a denial strategy was employed in the arguments of the Italian
government, using the following convoluted logic. The judgment is
worth quoting at some length to give a sense of the ways the logic of the
process of transformation proceeded:
While the sign of the cross was certainly a religious symbol, it had
other connotations. It also had an ethical meaning which could be
understood and appreciated regardless of one's adhesion to the
religious or historical tradition, as it evoked principles that could
be shared outside Christian faith (non-violence, the equal dignity
of all human beings, justice and sharing, the primacy of the
individual over the group and the importance of freedom of choice,
the separation of politics from religion, and love of one's
neighbour extending to forgiveness of one's enemies).
49. La ministre Christine St-Pierre accorde 18,6 M$ pour la restaiuration de 100 bâtiments
religieux, CULTURE, COMMUNICA-nON ET CONDITION FEMININE 2010, http://
www.mcccf.gouv.qc.ca/index.php?id=2328&tx_ttnews[tt_news]=5622&cHash=l. Translated by
Karine Henrie fi-om original French:
Les édifices religieux sont, sans contredit, des joyaux de notre culture et des repères
identitaires forts au cœur des villes et des villages. D'une grande valeur historique,
architecturale et symbolique, les églises font partie intégrante du paysage québécois. Il
est de notre responsabilité de poursuivre nos efforts afin d'assurer la pérennité de ces
lieux de culte pour les générations présentes et futures.
50. Jeremy Gunn, Religion and Law in France: Secularism, Separation, and State
Intervention, 57 DRAKE L. REV. 949, 959 (2009).
Admittedly, the immediate origin of the values which formed the

foundations of present-day democratic societies was also to be
found in the thought of authors who were non-believers or even
opponents of Christianity. However, the thought of those authors
had been enriched by Christian philosophy, if only on account of
their upbringing and the cultural environment in which they had
been formed and in which they lived. In conclusion, the
democratic values of today were rooted in a more distant past, the
age of the evangelic message. The message of the cross was
therefore a humanist message which could be read independently
of its religious dimension and was composed of a set of principles
and values forming the foundations of our democracies.
As the cross conveyed that message, it was perfectly compatible
with secularism and accessible to non-Christians and non-
believers, who could accept it in so far as it evoked the distant
origin of the principles and values concemed. In conclusion, as
the symbol of the cross could be perceived as devoid of religious
significance, its display in a public place did not in itself constitute
an infringement of the rights and freedoms guaranteed by the
Convention.^^
In this passage the court not only transforms the cross into a
cultural, humanist symbol that can have meaning for all, it also insists
that even thinkers who are non-believers and opponents of Christianity
must give credit to Christian values for their thinking. In other words,
the court builds its conclusions on the idea that without Christianity,
values do not exist, and everyone benefits from the cultural capital
created by Christianity's values. We are all, it seems, Christian. This
idea of the Christian as the universal will be examined more ftilly in the
following sections.
In their recent comprehensive work on the sociology of religious
emotion, Ole Riis and Linda Woodhead note that religious emotion is
socially constmcted as religious by both outsiders and insiders."
Symbols are often central to this process. Moreover,
[s]uch construction involves political claim-making and is always
historically and culturally contingent (what counts as religious in
one society may not count in another, and the reasons for wanting
to be identified as religious—or not—are related to the advantages
and disadvantages that accrue in a particular time and place).^''
52. Lautsi V. Italy, (2010) 50 E.H.R.R. 42, \ 35 [hereinafter Lautsi I].

53. OLE RIIS & LINDA WOODHEAD, A SOCIOLOGY OF RELIGIOUS EMOTION (Oxford Univ.
Press 2010).
54. W. at 69-70.
The denial of religious meaning to previously acknowledged

religious symbols creates a peculiar void in the social and political space
occupied by the symbol, rendering voiceless those for whom the
symbols do have deep religious meaning. It also blots out the possibility
of ambiguity and shifting meaning. Insisting that a symbol is purely
cultural decontextualizes it from its social context and ignores the wider
political issues and interests that are inevitably involved. Thus, the
denial of religious symbolism does not accord with the life experience of
both believers and non-believers alike, nor with the emotional logic—
and associated potencies—of symbols exposed by Riis and Woodhead.^^
Denial of religious significance is not a particularly new strategy.
In the early cases decided after the enactment of the Canadian Charter
of Rights and Freedoms, this strategy was employed to minimize the
Christian significance of Sunday as a day of rest.^^ The initial case, Big
M. Drug Mart,^'' struck dovm the Simday closing law, which, the court
concluded forced religious minorities to participate in a Christian
majority holiday. "What may appear good and true to a majoritarian
religious group, or to the state acting at their behest, may not, for
religious reasons, be imposed upon citizens who take a contrary view.
The Charter safeguards religious minorities from the threat of 'the
55. Id
56. A similar strategy was used in the United States in Lynch v. Donnelly, 465 U.S. 668, 680
(1984), in which the Supreme Court found that a crèche was not really a religious symbol. Or,
more specifically, that the overall effect of a crèche combined with other decorations in a public
display set up for Christmas was not "religious" (but cultural). Id. More recently, an almost
Lautsi-like reiteration occurred in oral arguments between Justice Antonin Scalia and American
Civil Liberties Union Lawyer Peter J. Eliasberg, in the case of Salazar v. Buono, 130 S. Ct. 1803
(2010), on Oct. 7, 2009. In comments about a cross erected in the Mojave National Reserve to
honor those who died in WWI, Justice Scalia noted that the cross is the most common symbol of
the resting place of the dead and that it was wrong to assume "that the only war dead that that
cross honors are the Christian war dead. I think that's an outrageous conclusion." Transcript of
Oral Argument at 39, Salazar v. Buono, 130 S. Ct. 1803 (2010) (No. 08-472). As I have argued
elsewhere, Lori G. Beaman, The Courts and the Definition of Religion: Preserving the Status Quo
Through Exclusion, in DEFINING RELIGION: INVESTIGATING THE BOUNDARIES BETWEEN THE
SACRED AND SECULAR 203, 210 (Arthur L. Greil & David G. Bromley eds., Elsevier Sei. 2003),
this blurring of boundaries enables the exclusion of minority religions by majority religious
groups. WrNNIFRED FALLERS SULLIVAN, THE IMPOSSIBILITY OF RELIGIOUS FREEDOM 7-8
(Princeton Univ. Press 2005), argues that law (at least in the United States) can only frame
religion in protestant terms. I have considered Sullivan's argument carefully in the Canadian
context and argue that the tripartite religious history of Canada, which includes Roman
Catholicism, Protestantism and First Nations Spiritualities, may mean that the Canadian legal
system has a broader interpretation of religious freedom. See Lori G. Beaman, The Myth of
Pluralism, Diversity, and Vigor: The Constitutional Privilege of Protestantism in the United
States and Canada, 42 J. SCI. STUD. RELIGION 311 (2003); LORI G. BEAMAN, DEFINING HARM
(UBC Press 2008); Lori G. Beaman, Is Religious Freedom Impossible in Canada? 8 LAW,
CULTURE & HUMAN. 266,267 (2010).
57. R. V. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (Can.).
tyranny of the majority. "'^^

Further,
[T]o the extent that it binds all to a sectarian Christian ideal, the
Lord's Day Act works a form of coercion inimical to the spirit of
the Charter and the dignity of all non-Christians. In proclaiming
the standards of the Christian faith, the Act creates a climate
hostile to, and gives the appearance of discrimination against, non-
Christian Canadians. It takes religious values rooted in Christian
morality and, using the force of the state, translates them into a
positive law binding on believers and non-believers alike. The
theological content of the legislation remains as a subtle and
constant reminder to religious minorities within the country of
their differences with, and alienation from, the dominant religious
culture.'^
However, the Supreme Court of Canada did a rather startling
about-face in Edwards Books,^° both denying the Christian basis of
Sunday as a day of rest and minimizing the impact of it on religious
minorities for whom Sunday is not a day of rest.
Section 2{a) does not require the legislatures to eliminate every
miniscule state-imposed cost associated with the practice of
religion. Otherwise the Charter would offer protection from
innocuous secular legislation such as a taxation act that imposed a
modest sales tax extending to all products, including those used in
the course of religious worship.*'
Thus, in the span of two years, the court shifted from acknowledging the
coercive power of Sunday closing laws over religious minorities to a
denial of the Christian roots of Sunday closing and a reframing of such
laws as "innocuous secular legislation."
B. The Passive Christ

Both the courts and public discourse also implement the technique
of denying the mobilizing the effect of religious symbols like the
cmcifix. Under this technique, the symbol in question is neutralized
through a strategy of rendering it a passive symbol. Unlike under the
technique of denial, religious meaning is affirmed, but its power to
mobilize or effect is denied. Consequently, while religious meaning is
affirmed, it is softened by its cultural affiliation. Viewing the cross on
58. /i/. at 1196.

59. Id. at^91.
60. R. V. Edwards Books & Art Ltd. [1986] 2 S.C.R. 713.
61. M at 1197.
Mont Royal as reflecting a "chapter of our past," but as not requiring

action or forcing anyone to do anything they do not want to do employs
this technique by constmcting a passive symbol. The key here seems to
be to invoke two constitutive principles. The first is that the symbol
demands nothing of viewers and does not force viewers to act in
contravention of their own beliefs.*^ The second is that if we wave the
wand of "history," we push the symbol to the past, thus guaranteeing
that it is impotent. This strategy renders impotent both the symbol and
history.
In Lautsi II three intervening religious organizations submitted
"that presence alone could not be equated with a religious or
philosophical message; it should rather be interpreted as a passive way
of conveying basic moral values."*^ The court accepted the argument
that the cmcifix was a passive symbol, noting:
Furthermore, a crucifix on a wall is an essentially passive symbol
and this point is of importance in the Court's view, particularly
having regard to the principle of neutrality . . . . It cannot be
deemed to have an influence on pupils comparable to that of
didactic speech or participation in religious activities.*''
The concurring judgment of Judge Bonello went further, seeing the
removal of the cmciflx as the institution of another ideological realm
with which he took issue. Note the association of the cmcifix with
cultural traditionalists.
Seen in the light of the historical roots of the presence of the
crucifix in Italian schools, removing it from where it has quietly
and passively been for centuries, would hardly have been a
manifestation of neutrality by the State. Its removal would have
been a positive and aggressive espousal of agnosticism or of
secularism—and consequently anything but neutral. Keeping a
symbol where it has always been is no act of intolerance by
believers or cultural traditionalists. Dislodging it would be an act
of intolerance by agnostics and secularists.^
Does the mere silent and passive presence of a symbol in a
classroom in an Italian school amount to "teaching"! Does it
hinder the exercise of the guaranteed right? Try hard as I might, I
62. For detailed discussion of viewer-artifact/symbol interaction, see DAVID MORGAN,

VISUAL PŒTY: A HISTORY AND TFŒORY OF POPULAR RELIGIOUS IMAGES (Univ. Cal. Press
1999); DAVID MORGAN, THE SACRED GAZE: RELIGIOUS VISUAL CULTURE IN THEORY AND
PRACTICE (Univ. Cal. Press 2005).
63. Lautsill, 54E.H.R.R. at1155.
64. / ¿ a t 1172.
65. Id. at II2.10 (Bonello, J., concurring).
fail to see how. The Convention specifically and exclusively bans

any teaching in schools unwelcome to parents on religious, ethical
and philosophical grounds. The keyword of this norm is obviously
''''teaching" and I doubt how far the mute presence of a symbol of
European cultural continuity would amount to teaching in any
sense ofthat fairly unambiguous word.^^
The applicants in the case presented a more sophisticated
understanding of the impact of symbols, emphasizing the power of
symbols in the everyday world. "As to the assertion that it was merely a
'passive symbol,' this ignored the fact that like all symbols—and more than
all others—it gave material form to a cognitive, intuitive and emotional
reality which went beyond the immediately perceptible."^^
The impact of religious symbols and practices in public schools has
long been a contentious issue. Courts have often recognized that even
when students are not coerced to engage in practices or beliefs contrary
to their ovwi, the presence of majoritarian religion in schools has a
coercive effect. The decisive case in Canada on this issue was
Zylberberg v. Sudbury Board of Education, heard before the Ontario
Court of Appeal.^^ Although dealing with prayer, which is a practice
rather than a symbol, the court's insights into the impact of majoritarian
religious practices extends to majoritarian symbols. In fact, if anything,
the compulsion is even stronger given that there is no possibility of
requesting exemption. In other words, students cannot ask to be placed
in a room without the symbol:
While the majoritarian view may be that s. 28 confers freedom of
choice on the minority, the reality is that it imposes on religious
minorities a compulsion to conform to the religious practices of
the majority. The evidence in this case supports this view. The
three appellants chose not to seek an exemption fi-om religious
exercises because of their concern about differentiating their
children frt)m other pupils. The peer pressure and the classroom
norms to which children are acutely sensitive, in our opinion, are
real and pervasive and operate to compel members of religious
67. Id. at H 42. The intervening non-governmental organizations Zentralkomitee der
deutschen katholiken. Semaines sociales de France and Associazioni cristiane lavoratori italiani
submitted that:
they agreed with the Chamber that, whilst the crucifix had a plural meaning, it was
primarily the central symbol of Christianity. They added, however, that they disagreed
with its conclusion, and found it difficult to understand how the presence of crucifixes in
classrooms could be "emotionally disturbing" for some pupils or hinder the development
of their critical thinking.
M at 1155.
68. Zylberberg v. Sudbury Board of Ed., 1988 CanLII 189 (ON CA).
minorities to conform with majority religious practices.*^

Riis and Woodhead lend some insight to the idea of "passivity" in
religious symbols. They develop a model of analysis regarding religious
emotion that operates in the relations between the individual, the group
and the institutional or societal level. Of particular importance, they
argue, are religious symbols or material objects.'" They note that
"[m]aterial and symbolic objects and spatial organization play an
important role in religious emotional cultivation."" Religious objects do
not stand alone as signifiers, but are made meaningful relationally. They
are therefore capable of carrying a plurality of meanings and provoking
a wide range of different reactions in relation to different individuals,
groups and solidarities.
In Lautsi II the court accepts the idea that the cmcifix is a passive
religious symbol and that it does not equal indoctrination. But such a
conclusion ignores the emotional significance of the cmcifix and the role
of symbols in religious cultivation. In fact. Judge Bonello's statements,
discussed earlier, exemplify the point that high emotion attaches to the
cmcifix. Clearly, for Ms. Lautsi and her children, the emotion aroused
by the cmcifix was not insignificant. Emotional reaction is often
visceral, spontaneous and "pre-thought"—which does not mean it is
irrational or cannot be reasoned about subsequently.'^ Contrasting
emotional reactions and interactions can attach to the same symbol.'^
For instance, the cmcifix and the attendant emotional impact operate at
multiple registers: for individuals it evokes a range of emotions,
including love and passion, but also perhaps isolation and dislike.''* At
the group level it may evoke a sense of belonging and comfort, but also
69. tó at 23-24.
70. They note: "To try to study religion without taking seriously its own scheme of
signification, its sacred codes, its God(s) and scriptures, its legal, theological and aesthetic
traditions is to adopt the narrow view that only immediate human relations can shape social
action." RlIS & WOODHEAD, supra note 52, at 215.
71. M at 91.
72. Id.
73. I am careñil here to be mindful of the statement of RlIS & WOODHEAD, supra note 52, at
208 that "emotion is not a 'thing' but an embodied stance within the world."
74. The importance of the individual register is beautifully illustrated by WILLIAM E,
CONNOLLY, NEUROPOLITICS: THINKING, CULTURE, SPEED (Univ. Minn. 2002). There Connolly
draws on neuroscience, political philosophy and communication theory to construct a complex
theory of reaction and interaction, describing neuropolitics as "the politics through which cultural
life mixes into the composition of body^rain processes." Id. at xiii. A more specific focus on the
individual and reaction mixed with emotion is found in MALCOLM GLADWELL, BLINK: THE
POWER OF THINKING WITHOUT THINKING (Little, Brown & Co. 2005) which may equate with
Connolly's idea of "memory traces." These ideas are considered at the group level by DANIELE
HERVIEU-LÉGER, RELIGION AS A CHAIN OF MEMORY (Simon Lee trans., Rutgers Univ. Press
2000).
alienation and exclusion. Institutionally or structurally the cmcifix may

be a statement about who "we are." Both the Lautsi II decision and the
Nafional Assembly in Québec make statements that clearly attempts to
evoke nationalist sentiment.
Thus, in both school and legislature the crucifix acts as a state
affirmation of who "we" are. It is intended to provoke particular
emotional reactions and attachments. This does not mean that it
necessarily does, but the emotional potential of the symbol cannot be
ignored. Although Riis and Woodhead emphasize the relational aspect
of symbols—i.e. they do not have meaning in and of themselves—they
also affirm the importance of symbols in the conveyance of religious
"messages" at both a rational and deeper emotional level.
Is it possible for a crucifix to have no meaning? In principle yes,
but in the social and cultural contexts imder discussion the answer is
quite clearly no. But social and cultural context is key, for if there is no
history or cultivation of meaning at any of the three registers discussed
by Riis and Woodhead, then there is little likelihood of emotion
attaching or being created by a symbol that has meaning in other
contexts. Although passivity does not necessarily equate to "no
meaning," the implication of the court's conclusion in Lautsi II is that
such a passive symbol does not equal indoctrinafion or teaching. The
work of Riis and Woodhead would suggest otherwise, in that a
consideration of emotion in relational context shifts the analytical
framework to consider the emotion-religion relationship. In the context
of both Italy and Québec then, the crucifix cannot possibly be a passive
symbol if we draw an analysis of situated emotion into the discussion.
C. Diversity and Survival in the Face of It

A third technique used to displace or transition symbolic meaning
from religious to cultural is to acknowledge the passivity of the symbol,
admit the power of symbols, but then to emphasize the diversity of
symbols in the context in question or, in a sort of reverse move, the
necessity of the symbol for cultural svirvival. This technique is
illustrated by Judge Power in the Lautsi II case, who states:
The Grand Chamber has found that the presence of the crucifix is,
essentially, a passive symbol and it regards this point as being of
great importance having regard to the principle of neutrality. I
agree with the Court in this regard insofar as the symbol's
passivity is not in any way coercive. However, I would have to
concede that, in principle, symbols (whether religious, cultural or
otherwise) are carriers of meaning. They may be silent but they
may, nevertheless, speak volumes without, however, doing so in a

coercive or in an indoctrinating manner. The uncontested
evidence before the Court is that Italy opens up the school
environment to a variety of religions and there is no evidence of
any intolerance shown towards non-believers or those who hold
non-religious philosophical convictions. Islamic headscarves may
be wom. The beginning and end of Ramadan are "often
celebrated." Within such a pluralist and religiously tolerant
context, a Christian symbol on a classroom wall presents yet
another and a different world view.'^
The 2005 decision of the Administrative Court took a similar
approach, highlighting the "tolerance" symbolism embedded in the
cmcifix:
It must be emphasised that the symbol of the cmcifix, thus
understood, now possesses, through its references to the values of
tolerance, a particular scope in consideration of the fact that at
present Italian State schools are attended by numerous pupils from
outside the European Union, to whom it is relatively important to
transmit the principles of openness to diversity and the refusal of
any form of fundamentalism—whether religious or secular—
which permeate our system. Our era is marked by the ferment
resulting from the meeting of different cultures with our own, and
to prevent that meeting from tuming into a collision it is
indispensable to reaffirm our identity, even symbolically,
especially as it is characterised precisely by the values of respect
for the dignity of each human being and of universal solidarity. *
This "diversity is everywhere" approach is more evident in the
Lautsi context than in the Québec example, which manifests another
version of diversity management by drawing on the narrative of
diversity to demonstrate a disadvantaged position. Recall the words of
the mayor of Saguenay: "If we let go of everything that distinguishes us,
where will French-Canadians be in a few years?"" In other words,
diversity is emphasized, but identified as posing a threat to the very
existence of the dominant religious narrative, which is in tum positioned
as a threatened minority. The fear here is related to becoming just one
of many diverse groups, rather than retaining a uniqueness that sets it (in
this case the majority Roman Catholic culture) apart. The narrative of
75. Lautsi II, 54 E.H.R.R. at 98-99 (Power, J., concurring).

76. Id. at H 15 (quoting the Administrative Court decision). Lautsi I held differently. The
Chamber found that, in the context of public education, crucifixes, which are impossible not to
notice in classrooms, were necessarily perceived as an integral part of the school envirorunent and
could therefore be considered "powerful external symbols." Lautsi I, 50 E.H.R.R. at H 54.
77. Quoted in Bergeron, supra note 38.
the threatened majority in the sea of diversity is not unique to

In such a context the symbol in question then comes to symbolize
cultural survival.
The claim that everyone can participate in the display of symbols
and occupy public space creates a common cultural space that
deemphasizes the privilege held by the display of one symbol on the
classroom wall (or in the public sphere). In Lautsi this common cultural
space is imagined to open up conversation, debate and discussion about
religion and its meaning. There is thus a cultural marketplace, as it
were, with everyone able to participate on an equal footing. Historical
privilege and power sedimentations are imagined, somehow, to have
disappeared, leaving a space in which ideas are debated and exchanged
freely. But there is no evidence that this in fact happens. The
sophisticated meaning of the cmcifix attributed by the govemment in its
submission is likely far removed from the thoughts of the average child •
as she sits and studies mathematics. Further, it is difficult to imagine
teachers pointing to the cmcifix and using it as a beginning place for
discussions of religious diversity. Both the Lautsi case and the Québec
discussions also rely on the idea that there is no overt, real or meaningful
coercion or restriction of activities or beliefs for those who are not
Christian. Thus, the diversity claim is linked to a rhetoric of choice:
even if multiple traditions are not present or represented, the particular
symbol is not imagined as coercive (whether cmcifix on the classroom
or state legislature or cross in a public space).
The claim that one is awash in a sea of diversity and thus will lose
one's uniqueness plays on the value placed on cultural diversity itself
That is, to retain diversity, distinct groups must preserve what
distinguishes them. Historical privilege is translated into minority under
threat or threatened minority status. The issue then becomes not about
religion, but about cultural survival.
D. Rendering the Sacred Secular and the Secular Universal

The fourth displacement technique relies on the idea of
transforming religious symbols into secular, universal symbols. By
transforming the religious into the secular, and pulling the secular into
the religious by rendering the secular unimaginable without the sacred,
the religious symbols of the majority are able to be more fully integrated
and retained in the fabric of the society. The secular thus becomes
78. Margaret H. Ogilvie, And Then There Was One: Freedom of Religion in Canada—the
Incredible Shrinking Concept, 10 ECCLESIASTICAL L.J. 197(2008).
1] BA TTLES O VER SYMBOLS 91
impossible without the sacred. In this view, those values held most dear
in contemporary society have been furnished by religion, and thus the
crucifix is a reminder of liberal ideas of equality and fieedom.™ The
religious, then, is a universal value that is not denominational or religion
specific. The crucifix, goes the argument, represents these universal
values.
One of the remarkable features of the Lautsi II case is that it not
only draws in the notion of the crucifix as a cultural symbol, but moves
a step further by suggesting that that symbol is the basis of fundamental
social values like liberty and equality. In a further interesting move, the
disfincfion between the secular and the sacred is collapsed, with the
secular being in fact dependent on that which the crucifix symbolizes.
It can therefore be contended that in the present-day social reality
the crucifix should be regarded not only as a symbol of a historical
and cultural development, and therefore of the identity of our
people, but also as a symbol of a value system: liberty, equality,
human dignity and religious toleration, and accordingly also of the
secular nature of the State—^principles which underpin our
Constitution.^"
Herein lies the paradox of the position that "the secular" is not a
neatly self-contained discourse and that the sacred or religious is
inextricably woven through social and cultural life such that there is no
space that does not contain some element of both. This argument has
been made by a wide range of scholars and practitioners. Orsi argues
that even prayer is public;^' McGuire carefully maps the ways in which
religion is woven through day to day life;^^ Jakobsen and Pellegrini
critically examine the Christian underpinnings of the secular;^^ Bellamy
traces the Christian roots of liberalism (and thus equality and liberty, for
example);^" David Martin argues that there exists a shadow
79. Another variation on this argument is the fi-equent Christian response to atheism and to
the diminished authority of Christianity in modem societies that morality is not possible without
religion. See WALTER SINNOTT-ARMSTRONG, MORALITY WITHOUT G O D ? (Oxford Univ. Press
2009); Benjamin Beit-Hallahmi, Morality and Immorality Among the Irreligious, in 1 ATHEISM
AND SECULARITY: ISSUES, CONCEPTS, AND DEFINITIONS 113 (Phil Zuckerman ed., ABC-CLIO,
LLC2010).
80. Lautsi II, 54 E.H.R.R. at H 15 (quoting the Administrative Court decision).
81. Robert Orsi, Is the Study of Lived Religion Irrelevant to the World We Live In? Special
Presidential Plenary Address, Society for the Scientific Study of Religion, Salt Lake City,
November 2, 2002, 42 J. FOR SCI. STUDY RELIGION 169, 173 (2003).
82. MEREDI-TH B. MCGUIRE, LIVED RELIGION: FAITH AND PRACTICE IN EVERYDAY LIFE
(Oxford Univ. Press, 2008).
83. JANET R . JAKOBSEN & A N N PELLEGRINI, LOVE THE SIN: SEXUAL REGULATION AND THE
LIMITS OF RELIGIOUS TOLERANCE (Beacon Press 2004).
84. RICHARD BELLAMY, RETHINKING LIBERALISM (Continuum 2005).
establishment in the Canadian context;^' and I have argued that religious

freedom must be understood against a backdrop of mainstream Christian
hegemony.^* While Orsi and McGuire illustrate the rather narrow ways
in which religion has been conceptualized and defined (a problem I
retum to later in this article), the other authors have underscored the
illusion of secularity and the ways in which religious establishments
remain dominant discourses that are embedded in social institutions and
cultural practices.
Olivier Roy also considers the intertwining of the secular and the
sacred, noting that dominant religions have been "powerful machines for
manufacturing culture,"^' and thus cultural and religious markers
coincide. Thus, he concludes, "even if societies become secularized,
they still bear the cultural imprint of the founding religion."^^ These
arguments have insisted on the presence of religion in culture, even in
so-called secular societies and have done so with a view to calling
attention to the ways in which majority religions shape social
institutions and cultural pattems. The important normative position in
this is that if we are to take religious freedom seriously, we must also
take seriously the ways in which these pattems work to shape daily
practice and the rhythm of daily life.^' Only then can the hard work of
implementing meaningful religious freedom be done. The statement
"we live in a secular society" acts as both a sword and as a shield that
prohibits a genuine engagement with minority religious practices.
The Lautsi II case in fact takes the same position—that the
boundaries between the sacred and the religious are porous and even
85. David Martin, Canada in Comparative Perspective, in RETHINKING CHURCH, STATE,
AND MODERNITY: CANADA BETWEEN EUROPE AND AMERICA 23 (David Lyon & Marguerite Van
Die eds., Univ. Toronto Press 2000).
86. Lori G. Beaman, Tolerance and Accommodation as Vestiges of Empire, in SECULARISM,
THE SECULAR STATE AND RELIGIOUS DIVERSITY (André Laliberté, Rajeev Bhargava & Bruce
Berman eds., UBC Press 2013, in press); BEAMAN, DEFINING HARM, supra note 55, at 321;
BEAMAN, LAW, CULTURE & HUMAN, supra note 55, at 279.
87. ROY, supra note 23, at 65.
88. Id. at 67. Roy is one of a number of theorists who make this argument. TALAL ASAD,
FORMATIONS OF THE SECULAR: CHRISTL\NITY, ISLAM, MODERNITY (Stan. Univ. Press 2003) also
emphasizes the link between religion and the imagination of culture in Orientalism. PIPPA
NORRIS & RONALD INGLEHART, SACRED AND SECULAR: RELIGION AND POLITICS WORLDWIDE
17 (Cambridge Univ. Press 2004), state: "Even in highly secular societies, the historical legacy of
given religions continues to shape worldviews and to define cultural zones." JAKOBSEN &
PELLEGRINI, supra note 81 also link the sacred and the secular. See also EVE DARIAN-SMITH,
RELIGION, RACE, RIGHTS: LANDMARKS IN THE HISTORY OF MODERN ANGLO-AMERICAN L A W
(Hart Publishers 2010) for an analysis of the reshaping of the religious landscape to a language of
Judeo-Christianity.
89. For a detailed discussion and criticism of the separation of the religious from the secular
in India, see Sonia Sikka, The Perils of Indian Secularism, 19 CONSTELLATIONS 2 288-304
(2012).
perhaps nonexistent. The normative position here, though, is quite the

opposite of that noted in the above scholarship. In Lautsi II the erosion
of the boundary between the sacred and secular serves to preserve a
symbol of the religious majority, rather than to open space for critical
inquiry.
This statement from the Administrative court illustrates the
transformation of religion into culture and of culture into religion:
The cross, as the symbol of Christianity, can therefore not exclude
anyone without denying itself; it even constitutes in a sense the
universal sign of the acceptance of and respect for every human
being as such, irrespective of any belief, religious or other, which
he or she may hold.
It is hardly necessary to add that the sign of the cross in a
classroom, when correctly understood, is not concerned with the
freely held convictions of anyone, excludes no one and of course
does not impose or prescribe anything, but merely implies, in the
heart of the aims set for education and teaching in a publicly run
school, a reflection—necessarily guided by the teaching staff—on
Italian history and the common values of our society legally
retranscribed in the Constitution, among which the secular nature
of the State has pride of place.^'
In short, the secular is not only religious, but specifically Christian.
Although less well articulated in the Québec example, there are certainly
allusions to the vmiversal appeal of the sacred symbols. Recall, for
example, the Bouchard-Taylor report on the cross: "A religious symbol
is thus compatible with secularism when it is a historic reminder rather
than a sign of religious identification by a public institution."'^ The
report does not go so far as to suggest that the cross is secular or that it
represents universal values, but does accept the idea that there is a
relevant history we should remember.
The imiversalization of Chrisfianity, albeit a particular version, is
the subject of Winnifred Sullivan's study of evangelical prison ministry
in the United States.'^ She examines what she describes as the
"naturalization" of religion and, of particular relevance in the United
States, its consequences for disestablishment.''' Sullivan defines

91. Id.
93. WINNIFRED FALLERS SULLIVAN, PRISON RELIGION: FAITH-BASED REFORM AND THE
CONSTITUTION (Princeton Univ. Press 2009).
94. The idea of disestablishment is analyzed, reasonably, fi'om an American perspective in
Sullivan's book. The language of disestablishment fi^ames the discussion in ways that are often
naturalizing as a "legal and social process by which religion and

spirituality are increasingly seen in the US to be a natural and largely
benign—if varied—aspect of the human condition, one that is to be
accommodated rather than segregated by government."'' In this context,
the evangelical prison program Sullivan examines is able to argue that it
in fact represents "universal" values, not religious ones, and therefore
the state's endorsement of it does not violate the constitutional
separation of church and state, or disestablishment.
Although Sullivan analyzes American religious conservatives, her
conclusions resonate with the language of the Lautsi II case, the stance
of the Québec National Assembly and the mayor in Saguenay.
Protestant conservatives in the United States, she argues, "want to
convert the world to an anthropology of values that are transcendental
and etemal, and founded in biblical tmth. To do that they must find
ways to translate their religiously derived values into universal ones, and
to use state authority to impose those values on all."^* Thus, a reversal
of logic occurs here that casts religious values as universal, and the
universal as religious rather than secular." Interestingly this same
transformation occurs in the arguments presented in Lautsi II and to
some extent in Québec.
E. In Defense of the Nation

"Each school must have the national flag and each classroom must
have a crucifix and a portrait of the King."'^
The Lautsi II decision and the Québec public discussion both
employ nationalist language. The cmcifix becomes not only a symbol of
fundamental values (especially in the Lautsi II case), but also a symbol
of the heart and soul of the nation. Thus, the symbol comes to transcend
largely irrelevant to the intemational community, who may or may not have a formal
establishment arrangement with churches, who may have legally established churches that are
largely disestablished, or legal disestablishment with de facto established churches. It becomes
debatable whether the framework invoked in the 'disestablishment' language has much analytical
value given the complexity of the issues involved here.
95. SULLIVAN, iupra note 91, at 2.
96. Id. aXW.
97. Sullivan argues that disestablishment may be anachronistic as a legal project. She argues
that legal tools have been designed for a different kind of religion, one which is premodem,
hierarchical and institutionalized. She concludes that "when religious authority resides in the
individual, not in religious leaders and institutions, it is virtually unreachable by law." Id. at 181.
This reasoning is questionable in the Italian case, which still sees a high participation in
institutional religion. But the issue is not disestablishment in Italy. The importance of Sullivan's
argument in relation to this article is her observation about the transformation of the religious into
the universal.
98. Lautsi II, 54 E.H.R.R. at H 19 (quoting Art. 118 of Royal Decree no. 965).
mere religion to represent the nation, or religion and nation become one,
creating a framework within which citizens are imagined. Critiquing the
idea of transcendent unifying symbols however, Roy argues that "The
conviction that all members of a society must explicitly share one belief
system is absurd and can only result in permanent coercion."'' This
goes to a deeper debate that has driven (especially) sociology to
distraction: the emphasis on social cohesion versus social conflict. The
pursuit of mechanisms of social cohesion has preoccupied sociologists
of the Durkheimian iUc and policy makers alike.
Indeed, in both the Italian and Québec situations, the idea that the
cmcifix represents a cohesive set of national values is absurd. In
Québec one need only read the report of the Conseil du Statut de la
Femme to understand that there are very complex and competing ideas
about the values that underlie the nation.
Laïcité does not simply appear in a nation. It must be achieved,
built. Now is the time for Québec to make choices.
We have demonstrated that the solemn declaration that the nation
is non-religious is an urgent and necessary exercise, as
demonstrated by crisis, citizens' social claims and tribunal
recourses, that must be conducted collectively. We cannot leave it
to tribunals—and the Human Rights Commission—aiming to
protect individuals rights grounded in charters, to define each case
individually. To not act is to walk down a 'laïcité ouverte' road
violating women's rights.'*"'
The Conseil's claim that its position is a tme representation is as
absurd as the position that the cmcifix rallies national pride. In its report
the Conseil specifically rejects the open secularism proposed by the
Bouchard Taylor report, arguing that the identity of the Québec nation is
secular, indeed laïque.
99. ROY, supra note 23, at 111.

100. Conseil du statut de la femmes. Avis AFFIRMER LA LAÏCITE, UN PAS DE PLUS VERS
L'EGALITE REELLE ENTRE LES FEMMES ET LES HOMMES 128 (Québec, 2011). Translated by
Karine Henrie from original French:
La laïcité ne naît pas naturellement au sein d'un État, elle se bâtit. Le Québec est à
l'heure des choix.
Nous avons démontré que l'affirmation solennelle que l'État est areligieux est un
exercice urgent à faire, absolument nécessaire, comme en témoignent les crises, les
revendications citoyennes et les recours aux tribunaux, et qui doit être mené
collectivement. On ne peut laisser les tribunaux—et la Commission des droits—définir
chaque cas individuellement, en n'ayant que la protection des droits individuels
enchâssés dans les chartes à interpréter. Ne pas agir, c'est continuer de s'avancer vers la
« laïcité ouverte » aux violations des droits des femmes.
In comparison, the Lautsi II case intertwines nationalist sentiment

with a piece of Italian history that many would prefer to distance
themselves fiom. The court noted the historical origins of the placement
of the crucifix on classroom walls which clearly link God, nation and
king. For instance, on November 22, 1922 the Ministry of Education
sent out a circular (no. 68) with the following wording:
I [I]n the last few years in many of the Kingdom's primary schools
the image of Christ and the portrait of the King have been
removed. That is a manifest and intolerable breach of the
regulations and especially an attack on the dominant religion of the
State and the unity of the Nation. We therefore order all municipal
administrative authorities in the Kingdom to restore, to those
schools which lack them, the two sacred symbols of the faith and
the consciousness of nationhood.""
Bonello's colorful judgment summarily dismisses any suggestion, that
the link between the presence of the crucifix and the fascist regime of
Mussolini should be considered more than a coincidence:
It is uninformed nonsense to assert that the presence of the crucifix
in Italian schools bears witness to a reactionary fascist measure
imposed, in between gulps of castor oil, by Signor Mussolini. His
circulars merely took formal notice of a historical reality that had
predated him by several centuries and, pace Ms Lautsi's anti-
crucifix vitriol, may still survive him for a long time. This Court
ought to be ever cautious in taking liberties with other peoples'
liberties, including the liberty of cherishing their own cultural
imprinting. Whatever that is, it is unrepeatable. Nations do not
fashion their histories on the spur of the moment.'"^
The argument of the government reconstitutes the nation through
an imagined social cohesion that sees all Italians as having both
benefited from and not having been limited in their freedom as a result
of the presence of the crucifix on the classroom wall. In its decision the
court accepted the government's construction of a nation inextricably
linked to a particular religious tradition.
The presence of the crucifix was thus the expression of a "national
particularity," characterized notably by close relations between the state,
the people and Catholicism, attributable to the historical, cultural and
territorial development of Italy and to a deeply rooted and long-standing
attachment to the values of Catholicism. Keeping crucifixes in schools
was therefore a matter of preserving a centuries-old tradition. Further,
101. Lautsill, 54E.H.R.R. at1[19.

the government argued that the parents' right to respect for their "family
culture" ought not to infringe the community's right to transmit its
culture or the right of children to discover it. Moreover, by contenting
itself with a "potential risk" of emotional disturbance in finding a breach
of the rights to education and to freedom of thought, conscience and
religion, the Chamber had considerably widened the scope of those
provisions.
Sociologist David Martin notes the possibilities for a relationship
between the sacred and the nation, or the "holy spirit of the nation":
"Whether the Church itself plays a role in the creation and sustaining of
this spirit, or some more general invocation of Protestantism or
Catholicism, or some reference back to 'pagan' pasts in Nordic, classical
or native American myth, is a matter of national trajectories."'"^ The
project, then, is to figure out to what extent the nation and religion are
aligned.'°'
The importance of the autonomy of the nation-state and its ability
to self determine is reinforced through the primary legal mechanism
used to support the maintenance of the cmcifix on the classroom wall in
Italy—the doctrine known as the "margin of appreciation." This
doctrine gives ultimate sovereignty to nations to self determine, holding
that "each society is entitled to [a] certain latitude in resolving the
inherent conflicts between individual rights and national interests or
among different moral convictions."'"^ Lautsi //reflects this doctrine:
The Court takes the view that the decision whether or not to
perpetuate a tradition falls in principle within the margin of
appreciation of the respondent State. The Court must moreover
take into account the fact that Europe is marked by a great
diversity between the States of which it is composed, particularly
in the sphere of cultural and historical development. It
emphasises, however, that the reference to a tradition cannot
relieve a Contracting State of its obligation to respect the rights
and freedoms enshrined in the Convention and its Protocols.'"^
The Court concludes in the present case that the decision whether
crucifixes should be present in State-school classrooms is, in
principle, a matter falling within the margin of appreciation of the
103. DAVID MARTIN, ON SECULARIZATION: TOWARDS A REVISED GENERAL THEORY 131

(Ashgate 2005).
104. Id. at 133. Martin makes an important observation. about multiculturalism and the
difficulty of sustaining it in the face of majority opposition to it. Id. at 132.
105. Eyal Benvenisti, Margin of Appreciation, Consensus and Universal Standards, 31
N.Y.U.J. INT'L L. & POL. 843, 843-44 (1999).
106. Lautsill, 54E.H.R.R. at1168.
respondent State. Moreover, the fact that there is no European

consensus on the question of the presence of religious symbols in
State schools (see paragraphs 26-28 above) speaks in favour of
that approach.'
It follows from the foregoing that, in deciding to keep crucifixes in
the classrooms of the State school attended by the first applicant's
children, the authorities acted within the limits of the margin of
appreciation left to the respondent State in the context of its
obligation to respect, in the exercise of the functions it assumes in
relation to education and teaching, the right of parents to ensure
such education and teaching in conformity with their own religious
and philosophical convictions.'"^
As Andreescu and Andreescu point out, although the margin of
appreciation does not give states the ultimate authority in every case, it
does recognize the sovereignty of states and their ability (in theory) to
best appreciate social and historical context.'"'
The nation is also imagined in juxtaposition with other nations and
ideologies. Thus the crucifix becomes not only a symbol of "what we
are," but "what we are not." In Lautsi II, for example, the argument was
made that the secularism achieved by removing the crucifix from the
classroom wall was not only im-Italian, it was un-European. Here the
enemy to be fought was the American version of the secular:
To extend it to the whole of Europe would represent the
"Américanisation" of Europe in that a single and unique rule and a
rigid separation of Church and State would be binding on
everyone.""
In simi, then, the imagining of the nation state is part of the
narrative and discussion about religious symbols and their public
presence."' The symbol thus becomes representative of more than a
religious institution or order, but of the nation, what it is, and who its
citizens are or must be. The motion of the National Assembly to retain
107. /i/. atl|70.

108. / ¿ a t 11 76.
109. Gabriel Andreescu & Liviu Andreescu, The European Court of Human Rights' Lautsi
Decision: Context, Contents, Consequences, 9 J. FOR STUDY RELIGIONS & IDEOLOGIES 47, 60
(2010).
110. Lautsi II, 54 E.H.R.R. at H 47.
111. Both CHARLES TAYLOR, A SECULAR AGE (Harv. Univ. Press 2007) and BENEDICT
ANDERSON, IMAGINED COMMUNITIES (rev. ed.. Verso 2006) use the concept of imagined
communities to discuss aspects of social solidarity. Anderson also notes the importance of the
museum in the creation of the national imaginary. If we regard the preservation of "historical and
cultural artifacts" such as churches, crucifixes and crosses in this light we can then see even more
clearly their importance to the project of nation building and maintenance.
the cmcifix on the wall of the Blue Chamber illustrates this point. "^
Thus, in this era when religious diversity and multiculturalism are ever
present in the public imagination as well as in the goveming bodies of
states, the religious symbol comes to represent "us" in reference to
"them."
CONCLUSION: SITES OF RESISTANCE"^
If the strategy of marking religious symbols as cultural symbols

can work for majority religions, does this not then open a field of
resistance possibilities for minority religious groups as well? Does, for
example, naming the hijab as a cultural practice without religious
significance sufficiently neuter it to displace the negative connotations
attached to it in some contexts? Can naming something "cultural" give
immigrants space to distance themselves from practices that they may
find oppressive or distasteful in their countries of origin?'"* In theory,
the same strategies are available to religious minorities as are deployed
by religious majorities. Therefore, it should be possible to shift the
meaning of symbols for both minority and majority. There are,
however, a number of obstacles to the use of such strategies by religious
minorities.
The work of Prema Kurien demonstrates that religious minorities
must often fit into a Christian framework to enjoy any kind of
acceptance or recognition at all."^ Thus, in attempts to reconstmct
religious symbols, there is a risk that symbols will become Christianized
or be reshaped in ways that are not intended by the religious minority.
The relational aspect of reshaping leaves open the possibility that things
do not always go in the intended direction. This is so not only because
of the relational aspects of symbols and meaning making, but also
because of the social and historical contexts, or, episteme.
We retum here to von Stuckrad's point that an exploration of the
episteme in which religion is discursively produced must be part of this
112. Charest, swpra note 16.

113. I am gratefiil to Nacira Guénif-Souilamas for raising the possibility that the tum to culture
regarding religious symbols could also be used as a resistance strategy for religious minorities.
Although I do not share her optimism, the possibility of minority use of culture remains.
114. See Rhys H. Williams & Gira Vashi, Hijab and American Muslim Women: Creating the
Space for Autonomous Selves, 68 SOC. RELIGION 269 (2007); Caitlin Downie, Renegotiating
Islam: The Challenges and Coping Strategies of Immigrant Women. Unpublished honors paper,
Dalhousie University, 2011. In her research with Muslim women Downie found that they used
the separation of religion and culture as distancing strategies from practices that were negatively
viewed, particularly by non-Muslim westerners.
115. PREMA A. KURIEN, A PLACE AT THE MULTICULTURAL TABLE: THE DEVELOPMENT OF
AN AMERICAN HINDUISM (Rutgers Univ. Press 2007).
analysis."* Roy illustrates this when he notes: "in France, the Sikh
turban, which bothered no one, was suddenly transformed into an
ostensible religious symbol by the law which sought to ban the Islamic
headscarf... .""^ We might note that the transformation of what may
have been imagined to be cultural into the religious can serve as a
mechanism for othering in the face of a more general fear of the other. "^
Thus, such a transformation may not be controlled by the religious
minority in question, here, the Sikh community, which had enjoyed
relative integration into French society until demarcated. Indeed, this
shift took place in a context marked by fear of the other, a shift in
boundaries of the public display of religious symbols, and an increased
social and legal control of religious minorities in the name of neutrality
and the republic. Recognizing these power relations explains the
relatively quick transformation of Sikhs from integrated minority to
problematic minority.
A closer examination of the Sikh case from France offers important
insights into the degree to which religious minorities can use the cultural
sleight of hand trick to create public space for their own religious
practices. In Jasvir Singh v. France and Ranjit Singh v. France, the
Sikh families argued that the turban the boys wore to school was not the
usual turban and that it did not violate the French law banning the
wearing of religious symbols: "In schools, colleges and publics 'lycées',
it is prohibited for students to wear clothing or 'symbols' that clearly
demonstrate a religious affiliation.""'
In these cases, the turban wom by the boys in question was less
colorful, smaller and more modest than a normal turban, but it allowed
the boys to remain modest in Sikh terms. The court reasoned that
anything resembling a turban—a wrap of cloth around the head—^would
violate the ban on religious symbols. The families did not argue that the
turban was a cultural symbol, but they did attempt to render the turban
116. von Stuckrad, supra note 44, at 159.
117. ROY, supra note 23, at 211. Roy makes this point in relation to his argument that
religious markers become identity markers within a standardized range. Id. This point has been
made by others in relation to the Christianization of Judaism in the United States. See Michelle
Mart, The "Christianization" of Israel and Jews in 1950s America, 14 RELIGION & AM.
CULTURE: J. INTERPRETATION 109 (2004); STEPHEN M . FELDMAN, PLEASE DON'T WISH ME
MERRY CHRISTMAS: A CRITICAL HISTORY OF THE SEPARATION OF CHURCH AND STATE (N.Y.
Univ. Press 1998); SULLIVAN, supra note 55.
118. Roy defines "othemess" as "foreignness in the sense of barbarity, weirdness, eccentricity
or the unthinkable." ROY, supra note 23, at 191.
119. Jasvir Singh v. France App. no. 25463/08, Eur. Ct. H.R. 2009 at p. 4. Translated by
Karine Henrie from original French: Dans les écoles, les collèges et les lycées publics, le port de
signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse
est interdit.
1] BA TTLES OVER SYMBOLS 101
as neutral and innocuous as possible. In other words, they attempted to

shift the meaning of the turban so that it did not constitute an ostensible
manifestation of religion. Because of its nature, a turban can only be
made invisible to a certain point. Thus, by definition the turban cannot
ever fit within the French law. Yet the law is represented as being
"neutral" and treats all French citizens as "equals."'^"
The existence and impact of the hegemonic force of Christianity in
most western democracies is clearly visible in the Lautsi II case. The
Administrative Court made an obviously theological assessment that
distinguishes Chrisfianity from other religions, which perhaps
unwittingly provides the basis for the "difference" between naming the
crucifix as cultural and denying the same opfion to Sikhs or Muslims:
The logical mechanism of exclusion of the unbeliever is inherent
in any religious conviction, even if those concerned are not aware
of it, the sole exception being Christianity—where it is properly
understood, which of course has not always been and still is not
always the case, not even thanks to those who call themselves
Christian. In Christianity even the faith in an omniscient god is
secondary in relation to charity, meaning respect for one's fellow
human beings. It follows that the rejection of a non-Christian by a
Christian implies a radical negation of Christianity itself, a
substantive abjuration; but that is not true of other religious faiths,
for which such an attitude amounts at most to the infringement of
an important precept.'^'
Christianity is thus framed by the court as "special," being radically
different from other religions in its ability (and mandate) to be all-
accepting. Although the idea that religious minorities can deploy the
discourse of culture as a mechanism for displacing or shifting power
relations is an appealing one, the fact that majorities may be better
placed to control the construction of the boundaries and meaning of
symbols may well dilute the potential for resistance.
Further, even if a re-shaping of religious symbols as cultural
symbols is possible, another challenge is that not all religious actors will
be willing to re-imagine the meaning of their symbols for public
consumption. Religions and religious groups are not monolithic, but
rather are textured, diverse and, consequently, not always predictable.
In other words, symbolic meaning, as has hopefully been demonstrated
120. Interestingly we might assume that a young woman could wrap her head in a colorful
piece of cloth for the sake of fashion, but it is the religious significance of the cloth that invokes
the ban.
above, is emotional as well as cognitive and strategic. For some, the

integrity of a religious symbol requires it to be named as such. Political
expedience is not always a persuasive factor, even if it can make day-to-
day life easier or less confiict laden.
Does the tum to culture offer minority religious groups the
possibility of deploying strategies of resistance that position them in
"culture" rather than in religion, which seems to be a magnet for
majority regulation? Theoretically, the answer to this question is yes.
But it is naive to imagine that religious minorities are positioned to
constmct and control their symbolic worlds in the same way that
religious majorities do. The power stmctures and relations within which
each exists are quite different. In this context, to argue that a cross is not
a religious symbol is quite a different thing than arguing that a turban or
hijab is not a religious symbol.'^^ Indeed, the argument that the hijab,
niqab or burqa are cultural is often deployed to strip bare any possibility
of using a religious freedom argument. Or, put more blimtly, "the
wearing of niqab is cultural, not religious, therefore an argument under
religious freedom protections is not relevant."'^^ In this context, culture
carries no protective shield.
Although minority religious groups (and individuals) may not
successftiUy deploy the religion to culture sfrategy, another possibility is
to attempt to reconstitute neufralized symbols as religious, thus calling
attention to the work they do to frame religion in the public sphere.
Minority religious groups seem to be reluctant to pursue such a strategy,
instead taking an approach that would see their symbols included in the
public sphere on the basis of faimess, inclusiveness or equality.
One analogous example bears mentioning. In her research on the
veil controversies in the UK, Linda Woodhead has noted that both
Muslim women defending the right to wear the veil and opponents of
veiling deploy the same rhetorical sfrategies around values. In other
words, the concepts of "freedom," "human rights," "equality," "social
122. Thanks to Linda Woodhead for pointing out that this is not always the case. In Eweida v
British Airways Pic [2010] EWCA Civ 80, for example (now on its way to the European Court of
Human Rights) a cross has been characterized as a cultural symbol and thus not required by an
employee's religion. Culture in this case has worked against the protection of a Christian symbol.
It is a matter of debate whether Europe is "Christian," but certainly Lautsi II would suggest that it
is. See PETER L. BERGER, GRACE DAVŒ & EFFIE FOKAS, RELIGIOUS AMERICA, SECULAR
EUROPE?: A THEME AND VARIATIONS (Ashgate 2008) for a careftil consideration of this debate.
123. This position is made even more complicated by the fact that it is often religious groups
themselves who engage in these sorts of analyses of belonging. This in tum often relates to
orthodoxy or ftindamentalism as well as the intertwining of culture and religion and the social
imaginary of state leaders. In Turkey, and Tunisia, to name two examples, the hijab has been
associated with a commitment to orthodoxy and a lack of modemity.
integration" and "Britishness" are often used against them. Woodhead

notes the overlap of values in this debate rather than the clash of
discourses, as others have emphasized.'^'' What is important for our
purposes is that Muslim women have deployed the same values
language as their opponents in order to bliu" the boundaries between Us
and Them, positioning themselves as part of the culture in which they
live. This strategy of emphasizing sameness and belonging may be
more effective than the strategy of reconstituting symbols as religious or
cultural.
In both the Italian and Québec cases the boundary between the
religious and the cultural is blurred. Contests over the boundary are
related to power struggles about the place of majority cultures and the
perceived threat to them which has largely been precipitated by
increasing diversity. One little-considered factor, though, bears
mention. While in analyses such as this one and others, much attention
is placed on the increasing diversity of the social contexts in which
battles over religious symbols take place, there has been little
consideration of the concomitant decline in participation in religious
institutions among majority groups. Almost without exception (we shall
leave aside for the moment the United States, although surveys using
standard measures of religiosity there indicate a decline as well)
participation in organized religion has declined.'^^ Thus, it is important
to recognize the dual context of increased religious diversity and
decreased commitment to organized religion as framing the contest over
religious symbols in public institutions. Although the shift to culture
may be seen as a mechanism for preserving the hegemony of a majority
religion, it may also represent a fear of the consequences of letting go of
an institution that has become relatively meaningless for many people.'^*
The Lautsi case and the Québec crucifix debates in many ways
reinforce the blurred boundaries between the secular and the sacred and
between religion and culture that have been the subject of critical
scholarly analysis. The critical point then is to assess what this blurring
means for religious minorities in particular, but also for religious
124. Linda Woodhead, The Muslim Veil Controversy and European Values, 97 SWEDISH
MissiOLOGiCAL THEMES 89 (2009).
125. The secularization debate has been well mapped and I do not want to engage with it here,
save to note that what the future looks like for the religiously engaged may be reflected in PAUL
HEELAS, ET AL., THE SPIRITUAL REVOLUTION: WHY RELIGION IS GIVING WAY TO SPIRITUALITY
(Blackwell 2005).
126. Thanks to Linda Woodhead for the observation that symbols are never just about
symbols, but also about power and the upholding of particular class, gender, race and sexuality
relations.
majorities. The arbitrariness of the distinction, as is illustrated by the

Sikh and Muslim exceptions outlined above, and as between the cmcifix
in the legislature and the cross on Mont Royal, calls for a clearer
analytical framework within which to ask vital questions about religious
freedom and how to support it in meaningful ways. Particularly telling
is the statement in the Bouchard-Taylor Commission report that
religious minorities themselves were not asking for religious symbols to
disappear.'" This would seem to invite dialogue and negotiation about
symbols, their meaning and their presence. Not considered is the "we"
in the discussion, and the fact that the imagined we is as diverse as the
religious minority "they." For some of the "we" the cmcifix or cross
may be a painful reminder of abuses suffered or injustices or oppression.
For others it is a symbol of comfort and security.
What are the implications of such contests over the meaning of
symbols? While these contests potentially dismpt power relations that
have been sedimented over centuries, they also impact the space given to
religious expression. While much is made of public versus private space
in this context, and of the institutional sanctioning of religious symbols
versus individual expression, ultimately these contests are all related.
For those of us who stmggle academically with the limits of religious
expression, we also know that these are not theoretical issues for those
who have a religious commitment that calls them to wear or protect
religious symbols that resonate for them. We are also aware of the
multiple registers of significance of symbols. As Woodhead and Riis
remind us, symbols are powerful emotional provocateurs and
expressions and the emotional, far from being a trivial and subjective
matter, is key within power relations and political power.'^^ Symbols
are also tied up in colonial practices, civil religions, and nation building
and maintenance practices. The dilemma is how to create space for
symbols that are important to some people without lending endorsement
to hegemonic practices that leave others, especially religious and other
minorities, disempowered.

128. Rns & WOODHEAD, .sî/pra note 52.
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Battles Over Symbols: The "Religion" of The Minority Versus The "Culture" of The Majority

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BATTLES OVER SYMBOLS:

THE "RELIGION" OF THE MINORITY VERSUS THE

Moreover, with the benefit of hindsight, it is easy to identify in the

* Canada Research Chair in the Contextualization of Religion in a Diverse Canada at the

minorities are able to reposition their practices as cultural practices.

I. THE CULTURAL TURN

A. The Lautsi II Decision

3. A. Lautsi V. Italy (Eur. Ct. H. R. 2012) 54 E.H.R.R. 3 [hereinafter Lautsi II].

Court of Human Rights.

One of the interesting voices of resistance to the Roman Catholic

B. The Québec Cmcifix

to minority groups, especially Muslims, Sikhs and Jews,^^ partly

22. This included the Multani v. Commission scolaire Marguedte-Bourgeoys, [2006] 1

In this context, the Bouchard-Taylor Commission recommended

In the explanatory paragraphs regarding the removal of the crucifix,

Although Tremblay is Roman Catholic, it is not clear whether his

II. SHIFTING THE BOUNDARY OF THE RELIGIOUS

counts as religion? How do we define religion? Who decides what

"religious." What does it mean when a symbol is marked as both

48. See GERD BAUMANN, CONTESTING CULTURE: DISCOURSES OF IDENTITY IN MULTI-

architectural and symbolic perspective. It is our responsibility to

Admittedly, the immediate origin of the values which formed the

52. Lautsi V. Italy, (2010) 50 E.H.R.R. 42, \ 35 [hereinafter Lautsi I].

The denial of religious meaning to previously acknowledged

tyranny of the majority. "'^^

B. The Passive Christ

58. /i/. at 1196.

Mont Royal as reflecting a "chapter of our past," but as not requiring

62. For detailed discussion of viewer-artifact/symbol interaction, see DAVID MORGAN,

fail to see how. The Convention specifically and exclusively bans

minorities to conform with majority religious practices.*^

alienation and exclusion. Institutionally or structurally the cmcifix may

C. Diversity and Survival in the Face of It

may, nevertheless, speak volumes without, however, doing so in a

75. Lautsi II, 54 E.H.R.R. at 98-99 (Power, J., concurring).

the threatened majority in the sea of diversity is not unique to

D. Rendering the Sacred Secular and the Secular Universal

establishment in the Canadian context;^' and I have argued that religious

perhaps nonexistent. The normative position here, though, is quite the

90. Lautsi II, 54 E.H.R.R. at H 15 (quoting the Administrative Court decision).

naturalizing as a "legal and social process by which religion and

E. In Defense of the Nation

99. ROY, supra note 23, at 111.

In comparison, the Lautsi II case intertwines nationalist sentiment

101. Lautsill, 54E.H.R.R. at1[19.

103. DAVID MARTIN, ON SECULARIZATION: TOWARDS A REVISED GENERAL THEORY 131

respondent State. Moreover, the fact that there is no European

107. /i/. atl|70.

If the strategy of marking religious symbols as cultural symbols

112. Charest, swpra note 16.

as neutral and innocuous as possible. In other words, they attempted to

above, is emotional as well as cognitive and strategic. For some, the

integration" and "Britishness" are often used against them. Woodhead

majorities. The arbitrariness of the distinction, as is illustrated by the

127. BOUCHARD & TAYLOR, supra note 15, at 152.

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