Emory International Law Review

Lift High the Cross? This is the title of a hymn, composed by George William Kitchin (1887), revised by Michael R. Newbolt, with music by Sidney R. Nicholson (1916). Come Brethren Follow Where Our Captain Trod, Hymnary.org, http://www.hymnary.org/text/come_christians_follow_where_our_savior (last visited Mar. 19, 2011). : Contrasting the New European and American Cases on Religious Symbols on Government Property
John Witte, Jr.,
Nina-Louisa Arold John Witte, Jr. is Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion, Emory University School of Law.Nina-Louisa Arold is Associate Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Associate Professor of Law, University of Lund, Sweden.

Introduction

A comparative anthropologist could not have asked for a better script: two high profile cases, one before the European Court of Human Rights, the other before the U.S. Supreme Court, each involving challenges to traditional displays of crosses on government property. The European high court struck down the cross. The American high court upheld the cross. Both cases are procedurally complicated and are factually distinguishable. But the juxtaposition of these decisions illustrates the growing contrast in European and American attitudes toward traditional religious symbols on government land and toward religious freedom more generally. Europe, as the heartland of Christianity for nearly two millennia, seems to be moving towards ever-stronger policies of secularization and laïcité. America, once the champion of strict separation of church and state, seems to be moving toward an ever more generous accommodation of its religious traditions and symbols.

In Lautsi v. Italy, 1Lautsi v. Italy, Eur. Ct. H.R. (2009) [hereinafter Lautsi I], http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Lautsi” in the “Case Title” box and “Italy” in the “Respondent State” box) (referred to the Grand Chamber on March 1, 2010). The hearing was held on June 30, 2010, and eight of the ten intervening states were participating to support the Italian government. ECHR Crucifix Case: 20 European Countries Support the Crucifix, Eur. Center for L. & Just. (July 21, 2010), http://www.eclj.org/Releases/Read.aspx?GUID=983c3dd3-9c17-4b70-a016-37851446ec0e&s=eur. a mother of two children who attended an Italian public school challenged an Italian tradition going back to 1924 that called for the display of a crucifix in each public school classroom. 2 See Lautsi I, supra note 1, paras. 1, 3, 20. The perennial and prominent presence of these overtly Christian symbols, Lautsi argued, was contrary to the atheistic beliefs with which she wanted to raise and educate her children. 3 See id. para. 27. She thus sought to have the crucifixes removed. 4 Id. paras. 1, 7. She won her case in the Italian trial court. 5 See id. paras. 13–15. She lost before the Italian domestic courts, which declared that the cross was an integral part of Italy’s history, culture, and identity, and that the cross was itself a symbol of the nation’s distinct commitment to liberty, pluralism, and toleration of all peaceable faiths. 6 See Andrea Pin, Public Schools, the Italian Crucifix, and the European Court of Human Rights: The Italian Separation of Church and State, 25 Emory Int’l L. Rev. 95, 102 (2011). Lautsi then appealed to the European Court of Human Rights, arguing that Italy’s actions violated her and her children’s rights to education and to religious freedom guaranteed by the European Convention on Human Rights in Article 2 (of Protocol Number 1) and Article 9. 7 Lautsi I, supra note 1, paras. 3, 27; see infra notes 65–69 and accompanying text.

On November 3, 2009, a unanimous seven-judge chamber of the European Court of Human Rights held for Lautsi. 8 Lautsi I, supra note 1, para. 70. The Court found that the public display of crucifixes in public school classrooms constituted a violation both of the right of parents to educate their children in conformity with their own convictions and of the right of children to freedom of thought, conscience, and religion, which included the right to be free from coerced religious participation or observance. 9 See id. paras. 55–57. The Court ordered damages to Lautsi of €5000. 10 Id. para. 70. Italy appealed, dismayed at what it took to be an assault on its national culture and tradition. 11 ECHR Crucifix Case: 20 European Countries Support the Crucifix, supra note 1.

On June 30, 2010, the Grand Chamber of the European Court of Human Rights heard further arguments in the case. 12 Id. At least twenty European nations publicly stated their support for Italy and joined its criticism of the European Court’s first chamber decision. 13For a full list of these twenty states, see id. The Lautsi case was taken under advisement by the Grand Chamber, which was subject to intense lobbying pressure on both sides.

On March 18, 2011, just as this Article was going to final press, the Grand Chamber of the European Court of Human Rights reversed the Chamber below, and held fifteen to two in favor of Italy, halting at least for now the steady march toward increasing secularization and laïcité. 14 See Lautsi v. Italy, Eur. Ct. H.R. (2011) [hereinafter Lautsi II], http://www.echr.coe.int/ECHR/homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Lautsi” in the “Case Title” box and “Italy” in the “Respondent State” box). While this Article retains our analysis of the original Chamber judgment against the backdrop of earlier European Court cases, we reflect on the significance of the Grand Chamber’s judgment in the Conclusion and show the growing convergence with recent U.S. Supreme Court case law.

In Salazar v. Buono, 15Salazar v. Buono, 130 S. Ct. 1803 (2010). a retired national park worker challenged the display of a cross in a national park in the State of California. 16 Id. at 1812. The Veterans of Foreign Wars (“VFW”), a private group, had donated and erected the cross in 1934 as a memorial to fallen American soldiers. 17 Id. at 1811. The cross stood alone, visible on the horizon. 18 Id. at 1812. A small sign at the base of the cross indicated that the VFW had donated it. 19 Id. The signs have since been removed and the cross currently stands unmarked. Buono brought suit claiming that the presence of the cross on government land constituted an establishment of religion in violation of the First Amendment to the U.S. Constitution. 20 Id.; U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion . . . .”). A federal district court found the cross display to be unconstitutional. 21 Salazar, 130 S. Ct. at 1812. Congress responded by conveying a small parcel of the federal land with and around the cross to the VFW, in exchange for a nearby private tract of land that was added to the national park. 22 Id. at 1813. The district court declared this purported Constitutional cure a “sham,” and repeated its injunction that the cross be removed. 23Buono v. Kempthorne (Buono IV), 502 F.3d 1069, 1077–78 (9th Cir. 2009); see Adam Linkner, How Salazar v. Buono Synthesizes Establishment Clause Precedent into a Single Test, 25 Emory Int’l L. Rev. 57, 79 (2011). The national park service appealed, ultimately to the Supreme Court. 24 Salazar, 130 S. Ct. at 1814.

A plurality of the Supreme Court ordered that the cross be retained. 25 Id. at 1821. The decision to enjoin Congress’s land sale, Justice Kennedy wrote for the plurality, required the district court to undertake a separate Constitutional inquiry of whether Congress had violated the First Amendment Establishment Clause; it could not simply assume that this land sale was a “sham” designed to “evade” the first injunction. 26 Id. at 1814–21. Congress had tried to resolve a “dilemma” created by the district court: “It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those [dead soldiers] the cross was seen as honoring. Deeming neither alternative to be satisfactory,” Congress had instead sold the land and cross to a private party. 27 Id. at 1809. The district court now would have to judge the Constitutionality of Congress’s actions on the merits. 28 Id. at 1820–21. In Justice Kennedy’s view, the district court would have to take into account the reality that, while the cross was “certainly a Christian symbol,” it had been erected in the park not “to promote a Christian message” or to “set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.” 29 Id. at 1816–17 (emphasis omitted). The district court would further have to recognize that “[t]ime also has played its role” and that “the cross and the cause it commemorated had become entwined in the public consciousness” and part of “our national heritage.” 30 Id. at 1817.

The contrasts in these cases are as ironic as they are striking. It is no small irony that Italy, a land saturated with Christian religious symbols, was ordered to remove its crosses, while California, famous for its Hollywood-style secularism and avant-garde culture, may keep a cross in place. It is no small irony that, after so many centuries of cultural adaptation and application, a cross in Italy was still judged to be an offensive religious symbol, while in America, after a few short decades, a memorial cross was judged to be so deeply woven into American “public consciousness” and “national heritage” that it could no longer be removed. 31 Id. And it is no small irony that the European Court, operating without an explicit prohibition on religious establishments, struck down the cross, while the U.S. Supreme Court, armed with an explicit Constitutional command that “Congress shall make no law respecting an establishment of religion,” 32U.S. Const. amend. I. let the cross stand on land that Congress controlled.

What is not so ironic or surprising is that the Lautsi court took this firm stand against the public display of a cross in a public school setting. Young and impressionable students, often compelled to be in school, are generally more vulnerable to religious pressure and coercion, and western courts have thus long been zealous in protecting them in the name of religious freedom. Indeed, in six decades of cases before Salazar, the U.S. Supreme Court had struck down the use of religious symbols in public schools, along with prayers, Bible reading, and religious instruction. 33 See John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 223–40 (3d ed. 2011). A number of European nations besides Italy have done the same. 34 See, e.g., Bundesverfassungsgerichts [BVerfG] [Federal Constitutional Court] May 16, 1995, 93 entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (Ger.) [hereinafter German Crucifix Case], available at http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=615 (translating a classroom crucifix case) (ruling against crucifixes in Bavarian public schools). See generally Religious Education in Public Schools: Study of Comparative Law (José Luiz Martinez López-Muniz et al. eds., 2006) (discussing European education and religious liberty issues). This might suggest that, with Lautsi, European and American laws of religious freedom are actually moving closer together rather than further apart. And it might further suggest that the Lautsi case, despite its strong language of secularity and laïcité, may be restricted in its application to public schools, rather than becoming a step on the slippery slope toward the greater secularization of Europe that some critics fear. After all, despite the sweeping Constitutional logic of strict separation of church and state 35 See John Witte, Jr., Facts and Fictions About the History of Separation of Church and State, 48 J. Church & St. 15, 15–46 (2006). at work in many of its religion and public school cases, the U.S. Supreme Court has rarely used these cases as precedents to strike down overt religious expression, free exercise accommodations, and church-state cooperation in other areas of public life. 36 Id. Particularly in recent years, the Supreme Court, flush with neo-federalist energy, has shown ample deference to the actions of state and local officials concerning religion when those actions are challenged under the First Amendment Establishment Clause. 37 See Witte & Nichols, supra note 33, at 186. The European Court of Human Rights might proceed similarly in limiting the reach of Lautsi to public schools—particularly given its parallel doctrine to federalism of granting a “margin of appreciation” to national traditions and practices that are challenged as violations of the religious freedom guarantees of the European Convention on Human Rights. 38 See George Letsas, A Theory of Interpretation of the European Convention on Human Rights 80 (2007); Howard C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence 13 (1996).

The aim of this mini-symposium on “Religious Symbols on Government Property” is to probe these questions at greater depth. In the balance of this Article, the authors situate the Lautsi and Salazar cases in the existing case law of the European Court of Human Rights and the U.S. Supreme Court, respectively. The Lautsi case, it turns out, is largely one of first impression: most European Court cases on religious freedom and educational rights to date have dealt with private expressions of religious dress and ornamentation in public schools and other public settings. 39 See infra text accompanying notes 128–56. The Salazar case, by contrast, is the last in a three-decade series of convoluted Supreme Court cases. 40 See infra text accompanying notes 387–89. It seems to signal a retreat by the Court to its original position of allowing old religious symbols to stand on public lands, even while still preventing religious symbols in public schools. 41See infra text accompanying notes 411–23.

In the two Articles that follow, two experts provide an in-depth analysis of the Lautsi and Salazar cases and the jurisprudential stakes at work in each case. Adam Linkner, a bright new Constitutional scholar now clerking with a distinguished federal judge, has followed the Salazar case from the beginning. He takes note of the conflicting lower federal court treatment of the very issue on which the Salazar plurality divided—whether a sale of government property that contains offending religious symbols is permissible under the First Amendment Establishment Clause. 42 See Linkner, supra note 23, at 57–65. The real difficulty with Salazar, he argues, is that the Supreme Court gave too little guidance to the district court on remand to determine the Constitutionality of Congress’s land sale. 43 Id. at 58–59. Linkner thus cleverly distills the convoluted six decades of Supreme Court approaches to the Establishment Clause into a more workable and predictable “insider/outsider” test that he astutely discerns at work even in the multiple opinions in Salazar. 44 See id. at 70–72. First, this test requires a court to judge whether the “predominant purpose” or intent of the government was to favor, endorse, or privilege religion. 45 Id. at 59. This is an “insider” inquiry that considers all the evidence of what went into the government’s decision and action respecting religion. 46 Id. Second, the test requires a court to judge whether an external reasonable observer would see the primary effect of the government’s action as one that endorsed religion. 47 Id. This is an “outsider” inquiry, one that views the result of the government’s action in context and determines whether it mostly supports, favors, or privileges religion over non-religion. 48 Id. These are separate inquiries, Linkner insists; a government action respecting religion should be struck down if either its predominant purpose or its principal effect is to favor religion. 49 See id. at 81–83. In Linkner’s view, Congress’s land sale was so transparently favorable to religion that it fails the insider/outsider inquiry. 50 Id. at 92. In the end, Linkner thinks Salazar is wrong and the cross should come down. He would likely applaud the recent case of Trunk v. City of San Diego, where the Ninth Circuit Court of Appeals, distinguishing Salazar, ordered the removal of a large cross which was privately donated to the United States nearly a century ago but now owned by the federal government—the Ninth Circuit’s concern being that, from an outsider’s perspective, the primary effect of the cross was to endorse religion. 51 See id. passim; Trunk v. City of San Diego, 629 F.3d 1099, 1125 (9th Cir. 2011).

Andrea Pin, a distinguished Constitutional law professor at the University of Padua, has watched the Lautsi case emerge from the very region of Italy where Pin had been schooled as a child and where he now teaches as a law professor. Pin provides a close and revealing analysis of the Constitutional history and cultural battles of Italy concerning religious freedom, the shifting relationship between the Catholic Church and the Italian state, and the unique understanding of Italian-style laicità (rather than French-style laïcité). 52 See Pin, supra note 6, at 110–35. Pin then contrasts the Italian Constitutional law of religious symbolism with the emerging jurisprudence of religious freedom of the European Court of Human Rights. 53 Id. at 117–20. Pin regards Lautsi as a serious test case that marks the growing tension between Italy and Europe, between religious traditions and secular modernity, between a commodious Constitutional concordance of religion and state and the emerging right of a secularist to veto these carefully calibrated national arrangements in the name of European religious freedom. 54 See id. at 141–49. In the end, Pin thinks the original Chamber decision of Lautsi is wrong, and the crosses should remain. He thus applauds the recent Grand Chamber judgment. 55 See id. passim.

Together, these two Articles illustrate some of the complexity of the legal issues surrounding the place of religious symbols on government land, and how serious scholars and judges can take opposing views and marshal reasoned arguments for each of them. It is easy to be cynical about these cases—treating them as much ado about nothing, or expensive hobbyhorses for cultural killjoys and public interest litigants to ride. But that view underestimates the extraordinary luxury we now enjoy in the West to be able to fight our cultural contests over religious symbols in courts and academies, rather than on the streets and battlefields. In centuries past in the West, and in many regions of the world still today, disputes over religious symbols often lead to violence, sometimes to all-out warfare. 56 See René Girard, Violence and the Sacred (1977); Samuel Azariah, The Violence of Religious Intolerance, World Council of Churches, http://www.wcc-coe.org/wcc/what/jpc/echoes/echoes-18-06.html (last visited Apr. 2, 2011). For religious and cultural symbols often embrace and evoke deep personal and communal emotions. Think of what happens when someone attacks or defaces an icon, a flag, the grave of a loved one, or the memorial of a fallen hero. Far more is thus at stake in these cross cases than the fate of a couple of pieces of wood nailed together. These cases are essential forums in which to work through our deep cultural differences and to sort out peaceably which traditions and practices should continue and which should change.

I. Religious Freedom and Religious Symbols in the European Convention and the European Court of Human Rights

Lautsi is largely a case of first impression, though it draws on several lines of cases. In this Part, we review the basic provisions on point in the European Convention on Human Rights and the procedures used by the European Court of Human Rights in adjudicating claims arising under the Convention. We review the relevant cases on freedom of thought, conscience, and religion and on the rights to education and free expression. At the end of each Subpart below, we briefly sort through how these precedents can be marshaled to support both sides of the Lautsi case now before the Grand Chamber.

A. Provisions and Procedures

A major instrument of the Council of Europe, the 1950 European Convention on Human Rights (“ECHR” or “Convention”) is binding upon all forty-seven of the current member states. 57 See Convention for the Protection of Human Rights and Fundamental Freedoms art. 46, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights] (entered into force Sept. 3, 1953). The European Court of Human Rights (“Court” or “European Court”), reformed in 1998, 58 See generally Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, opened for signature May 11, 1994, E.T.S. 155 [hereinafter Protocol 11] (entered into force Nov. 1, 1998) (amending the European Convention on Human Rights). is the principal interpreter of the Convention. 59 Id. art. 19. It is a daily operating and fully functioning supervisory body, staffed with forty-seven judges, representing each member state, along with some 640 clerks. 60 See Role of the Registry, Eur. Ct. Hum. Rts., http://www.echr.coe.int/ECHR/EN/Header/The+Court/How+the+Court+works/The+Registry (last visited Mar. 20, 2011). The Court’s principal task is to hear cases that determine whether the member states are violating the rights guaranteed in the Convention. 61 European Court of Human Rights, The Court in Brief (2010), available at http://www.echr.coe.int/NR/rdonlyres/DF074FE4-96C2-4384-BFF6-404AAF5BC585/0/Brochure_en_bref_EN.pdf. Since 1998, any party under the jurisdiction of a European member state has standing to claim a violation of rights under the Convention and file a claim directly with the Court. 62 Id. However, the Court has frequently stated that it is not a court of last appeal that can supplant national judicial remedies. 63 See Nina-Louisa Arold, The Legal Culture of the European Court of Human Rights 31 (2007) (analyzing the Court’s general workings and relationships with member states).

Article 9 of the European Convention on Human Rights is the major provision on religious freedom. 64European Convention on Human Rights, supra note 57, art. 9. It guarantees that:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. 65 Id. art. 9.

The European Court has made clear that religious freedom “entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.” 66Buscarini v. San Marino, 1999-I Eur. Ct. H.R. 605, 616. It has also made clear that Article 9(2) of the ECHR is an exhaustive list of the grounds on which any government official may impose limitations on religious freedom. 67 David J. Harris, Michael O’Boyle & Colin Warbrick, Law of the European Convention on Human Rights 435 (2d ed. 2009); Theory and Practice of the European Convention on Human Rights 768 (Pieter van Dijk et al. eds., 4th ed. 2006).

Article 2 of Protocol 1 to the European Convention supplements the religious freedom guarantee of Article 9 in cases of education. 68Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 2, opened for signature Mar. 3, 1952, E.T.S. 009 [hereinafter Protocol 1] (entered into force May 18, 1954). Article 2 provides: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” 69 Id. Article 14 of the Convention further prohibits discrimination on grounds of religion. 70European Convention on Human Rights, supra note 57, art. 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”). And Article 10 protects freedom of expression, which can include religious and anti-religious expression. 71 Id. art. 10(1) (“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”).

Religious freedom cases arising under Article 9 are relatively few compared to other areas of human rights. 72 See Nina-Louisa Arold, Promoting Normative Cracks in the Surface: Strasbourg Changing Swedish Legal Culture, in Law and Religion in the 21st Century: Nordic Perspectives 275, 278 (Lisbet Christoffersen et al. eds., 2010). From 1959 to 2009, the European Court of Human Rights (and its predecessors) found a total of thirty violations of this Article, 73 Pub. Relations Unit, European Court of Human Rights, 50 Years of Activity: The European Court of Human Rights—Some Facts and Figures 15 (2010) [hereinafter 50 Years of Activity], available at http://www.echr.coe.int/NR/rdonlyres/ACD46A0F-615A-48B9-89D6-8480AFCC29FD/0/FactsAndFiguresENAvril2010.pdf. five of them occurring in 2009 alone. 74 Pub. Relations Unit, European Court of Human Rights, Violation by Article and by Country 2 (2009), available at http://www.echr.coe.int/NR/rdonlyres/E8F73EC8-AF6A-4205-BAF2-F6043F67F651/0/Tableau_de_violations_2009_ENG.pdf. By comparison, during that same forty-year period, the Court found some 4008 violations of Article 6 concerning the fairness and length of proceedings, 75 50 Years of Activity, supra note 73, at 15 (noting 4008 cases that concerned length of proceedings and an additional 3207 cases that concerned the right to a fair and timely trial under Article 6 of the ECHR between 1959 and 2009). and the Court has close to 140,000 pending applications. 76 See Pub. Relations Unit, European Court of Human Rights, Pending Applications Allocated to a Judicial Formation (2010), available at http://www.echr.coe.int/NR/rdonlyres/99F89D38-902E-4725-9D3D-4A8BB74A7401/0/Pending_applications_chart.pdf (in December 2010, there were 139,650 pending applications). While religious freedom cases are small in number, violations of Article 9 are still burning issues, 77 See generally Brett G. Scharffs, Symposium Introduction: The Freedom of Religion and Belief Jurisprudence of the European Court of Human Rights: Legal, Moral, Political and Religions Perspectives, 26 J.L. & Religion 249 (2010). keeping Europe’s judges busy and probably giving them headaches.

By repeatedly finding violations by individual member states, the European Court has induced changes in many domestic legal systems of member states. Those changes have prompted a growing awareness of other possible human rights claims; that fact, together with an increase in the number of member states, has resulted in a flood of applications to the Court. 78 But see Pub. Relations Unit, European Court of Human Rights, Statistics 2010 (2010), available at http://www.echr.coe.int/NR/rdonlyres/8699082A-A7B9-47E2-893F-5685A72B78FB/0/Statistics_2010.pdf (discussing that between 1959 and 2009, the Court delivered a total of 12,198 judgments, while between January and September 2010, it produced 1442 judgments and 24,321 admissibility decisions). To manage this swollen docket, Protocol 14 now gives judges the discretion to restrict themselves to cases alleging “significant” violations. 79European Convention on Human Rights, supra note 57, art. 35 (“The Court shall declare inadmissible any individual application . . . if it considers that: . . . (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”). Chambers of seven judges, selected from among the forty-seven sitting judges, decide most cases. 80 Pub. Relations Unit, European Court of Human Rights, The ECHR in 50 Questions 6 (2010) [hereinafter The ECHR in 50 Questions], available at http://www.echr.coe.int/NR/rdonlyres/5C53ADA4-80F8-42CB-B8BD-CBBB781F42C8/0/FAQ_COUL_ENG_A5_OCT2010.pdf. These seven judges often are a balanced representation of the legal cultures represented among the forty-seven member states. 81 See Arold, supra note 63, at 55 (discussing the influence of different legal traditions that the judges share on the Court).

Within three months of a chamber judgment any of the parties can request a referral to a Grand Chamber. 82 See European Convention on Human Rights, supra note 57, art. 43(1) (“Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.”). This constitutes an internal appellate review, and involves seventeen judges of the European Court. 83 The ECHR in 50 Questions, supra note 80, at 6. The Italian government in Lautsi invoked this mechanism. 84 See supra text accompanying note 14. While, politically, the banning of Christian crucifixes in Italian schools might come as a surprise, both the hybrid legal culture of the European Court of Human Rights 85 See Arold, supra note 63, at 55. and the Court’s prior cases can readily support this decision, even if not ineluctably; hence, the Grand Chamber review in this case. To protect national traditions, or issues of special sensitivity in national societies, the Court frequently invokes the doctrine of a margin of appreciation. 86The margin of appreciation is frequently used by the Court. See Yourow, supra note 38, at 24 (providing an extensive study of the doctrine and describing its development in two time periods: before and after 1979). The doctrine’s scope was expanded during the later years. See, e.g., Hatton v. United Kingdom, 2003-VIII Eur. Ct. H.R. 189 (concerning flight noise interruptions of sleep); Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) (1976) (concerning obscene publications). That doctrine recognizes that national judges are often better placed than international judges to assess these culturally sensitive questions. 87 See Yourow, supra note 38, at 13. Only if there is a manifest breach of the European Convention on Human Rights will the Court find a violation. 88See id.

When a party claims a violation of Article 9 rights to religious freedom, the Court will assess: (1) whether there is interference with that right; (2) whether this interference was based on law; and (3) whether this interference was necessary in a democratic society. 89 See Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) 6, 18 (1993). It is usually the third step, the balancing test by the Court, which is the focus of most cases. There the judges analyze whether the interference corresponds to a pressing social need, is proportionate to the aim pursued, and is justified by relevant and sufficient reasons. 90 See id. at 20–22.

Religious beliefs and traditions can be relevant in making these decisions, even if they are not directly raised in an Article 9 case. A good example is the European Court case of Otto-Preminger-Institut v. Austria 91Otto-Preminger-Institut v. Austria, 295-A Eur. Ct. H.R. (ser. A) (1994). regarding an act of state censorship that was challenged as a violation of Article 10 rights to free expression. 92 Id. at 5–6. The case concerned the seizure and ban of a movie ridiculing the Holy Family that was slated to be shown at an art institute in Tyrol, Austria. 93 Id. at 8–9. Using the margin of appreciation doctrine, the European Court judges found these state restrictions on the film to be justified. 94 Id. at 19–21. The Court determined that the national authorities of Austria were better able to discern the cultural trends and moral sensitivities of the Tyrol region of Austria. 95 Id. at 20–21. While the Court recognized that Article 10 rights to freedom of expression encouraged a pluralism of religious and non-religious beliefs, these values had to yield in this case to the state’s concern about ideas that would strongly offend and attack the religious beliefs of a traditionally Catholic region that cherished the Holy Family. 96 Id. Here, the margin of appreciation doctrine was used to defer to a national court’s protection of local Christian sensibilities and traditions. 97 Id. This is an important precedent for Italy in the Lautsi case—though Otto-Preminger-Institut is an Article 10 case dealing with freedom of expression, not an Article 9 case dealing with freedom of thought, conscience, and religion.

B. Manifestations of Belief: What Gets Article 9 Protection?

The display of a belief through symbols combines concerns both about “religion” and “manifestation” of religion under Article 9. The European Court interprets “religion” broadly, but when it comes to “manifestation” not every action driven by religious belief is recognized and/or protected under Article 9. Three cases illustrate the range of treatment by the Court. In Pretty v. United Kingdom, 98Pretty v United Kingdom, 2002-III Eur. Ct. H.R. 255. the European Court held that a husband’s act of assisting the suicide of his terminally-ill wife was not a religious manifestation or act protected under Article 9, even if done on grounds of humanity and dignity. 99 See id. at 281–82. The husband could not accordingly claim a religious freedom exemption from English criminal prohibitions on assisting suicide. 100 See id. In Cha’are Shalom Ve Tzedek v. France, 101Cha’are Shalom Ve Tzedek v. France, 2000-VII Eur. Ct. H.R. 231. the Court found that while Jewish ritual slaughtering in general was a religious manifestation or practice deserving presumptive protection under Article 9, a state prohibition on a certain form of ritual slaughtering, deemed cruel to animals, was justified under Article 9, especially since an alternative supply of kosher meat was available from a neighboring state. 102 Id. at 259. In Kokkinakis v. Greece, 103 Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) 6 (1993). The Kokkinakis Court made clear that, while unjustified in this case, general restrictions on religious manifestations can be necessary to protect the pluralism of a society:The fundamental nature of the rights guaranteed in Article 9 para. 1 (art. 9-1) is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11 (art. 8-2, art. 10-2, art. 11-2) which cover all the rights mentioned in the first paragraphs of those Articles (art. 8-1, art. 10-1, art. 11-1), that of Article 9 (art. 9-1) refers only to “freedom to manifest one’s religion or belief[.]” In so doing, it recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.Id. at 18. the Court found that proselytism or evangelization was a religious manifestation protected by Article 9, and that the state was not justified in imposing criminal sanctions on a peaceable proselytizer. 104 Id.

In a subsequent case of proselytism, Jehovah’s Witnesses of Moscow v. Russia, 105Jehovah’s Witnesses of Moscow v. Russia, Eur. Ct. H.R. (2010), http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Jehovah’s Witnesses of Moscow” in the “Case Title” box and “Russia” in the “Respondent State” box) (currently pending for referral to the Grand Chamber). the Court restated how vital freedom of thought, conscience, and religion is for the democratic society:

[A]s enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion” alone and in private or in community with others, in public and within the circle of those whose faith one shares. Since religious communities traditionally exist in the form of organised structures, Article 9 must be interpreted in the light of Article 11 of the Convention, which safeguards associative life against unjustified State interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords. The State’s duty of neutrality and impartiality, as defined in the Court’s case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs. 106 Id. para. 99 (citations omitted).

None of these cases dealt directly with whether a professed secularist has the right to be free from observing a government’s display of religious symbols in a public school. But these cases do make clear that religious freedom for all—even for atheists and agnostics—is a cherished right in a democratic society, and states must have strong and stated reasons and proportionate methods to regulate or limit this right.

C. Religious and Non-Religious School Curricula

Two recent school cases come closer to the issues of Lautsi. In Folgerø v. Norway 107Folgerø v. Norway, Eur. Ct. H.R. (2007) [hereinafter Folgerø], http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Folgerø” in the “Case Title” box and “Norway” in the “Respondent State” box). and Grzelak v. Poland, 108Grzelak v. Poland, Eur. Ct. H.R. (2010) [hereinafter Grzelak], http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Grzelak” in the “Case Title” box and “Poland” in the “Respondent State” box). the Court dealt with forms of religious instruction in public schools that were challenged by professed atheists and agnostics. 109 Id. paras. 6–25; Folgerø, supra note 107, para. 3.Folgerø concerned Norway’s new law that required all public grade school and middle school students to take a course in “Christianity, Religion and Philosophy” (“KRL”). 110 Folgerø, supra note 107, para. 3. The law provided no full exemption for non-Christian students. 111 Id. para. 30. A student, whose parents were professed atheists, objected that this curricular requirement violated the rights to education guaranteed by Article 2. 112 Id. The European Court agreed. 113 Id. para. 102. It found that the state had not tailored its new law carefully enough to deal with students with different religious and non-religious sensibilities: 114 Id.

[N]otwithstanding the many laudable legislative purposes stated in connection with the introduction of the KRL subject in the ordinary primary and lower secondary schools, it does not appear that the respondent State took sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of Article 2 of Protocol No. 1. Accordingly, the Court finds that the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation of Article 2. 115 Id.

Three years later, in Grzelak, a public grade school student in Poland, with agnostic parents, was properly exempted from mandatory religion classes in accordance with Folgerø. 116Grzelak, supra note 108, para. 7. But the student’s only alternative to attending the religion classes was to spend unsupervised time in the school hallway, library, or club. 117 Id. His parents wanted him enrolled in an alternative course in secular ethics. 118 Id. paras. 7, 12. The school refused to offer such a special course, on grounds of having insufficient teachers, students, and funds. 119 Id. paras. 12, 19. The school further marked the student’s report card with a blank for “religion/ethics,” and calculated his cumulative grade point average based on fewer credit hours. 120 Id. paras. 21–25. The Court found both these state actions to be in violation of both Article 9 and Article 14 of the Convention, for “[it] brings about a situation in which individuals are obliged—directly or indirectly—to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.” 121 Id. para. 87.

The Court considers that the absence of a mark for “religion/ethics” would be understood by any reasonable person as an indication that [this student] did not follow religious education classes, which were widely available, and that he was thus likely to be regarded as a person without religious beliefs . . . and distinguishes the persons concerned from those who have a mark for the subject. This finding takes on particular significance in respect of a country like Poland where the great majority of the population owe allegiance to one particular religion.

. . . .

. . . [T]he Court finds that the absence of a mark for “religion/ethics” on the [student’s] school certificates throughout the entire period of his schooling amounted to a form of unwarranted stigmatisation . . . . 122 Id. paras. 95, 99 (citation omitted).

These cases come closer to Lautsi in that they deal with state impositions of religion on public school students—directly in the case of Folgerø, indirectly in the case of Grzelak. Neither is a straightforward Article 9 case. Folgerø is about Article 2 rights to education free from religious influence; 123Folgerø, supra note 107, paras. 53–102.Grzelak combines Article 9 with Article 14 restrictions on religious discrimination. 124 Grzelak, supra note 108, paras. 49–101. Nonetheless, the Court stretched far in both these cases to protect the religious freedom rights of atheistic and agnostic public school students and their parents. 125 See id. paras. 84–101; Folgerø, supra note 107, paras. 85–105. And it included within the right of religious freedom (and related rights of education and non-discrimination) the right of a person to be free from state impositions of religion and even from indirect costs that come from avoiding the state’s religious offerings. 126 See Folgerø, supra note 107, paras. 66–67; Grzelak, supra note 108, paras. 85–99.Lautsi is still distinguishable: it is not about active curricular instruction in religion, but the passive display of a crucifix that the student will encounter in many other walks of Italian public and private life as well. 127Lautsi I, supra note 1, para. 7. But these cases are important precedents for Lautsi and her children.

D. School Dress Codes and Headscarves

In three other cases, the Court dealt with direct Article 9 religious freedom claims by Muslim women to wear headscarves in manifestation of their religion but contrary to public school dress codes. 128Dogru v. France, Eur. Ct. H.R. (2008) [hereinafter Dogru], http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Dogru” in the “Case Title” box and “France” in the “Respondent State” box); Şahin v. Turkey, 2005-XI Eur. Ct. H.R. 173; Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447. In each case, the Court held for the state, holding that the state’s interest in protecting the “secularity” of the school in a democratic society was a sufficient ground to justify its prohibitions on headscarves. 129 Dogru, supra note 128, paras. 75, 78; Şahin, 2005-XI Eur. Ct. H.R. at 205–06; Dahlab, 2001-V Eur. Ct. H.R. at 463–64. In each case, the Court granted a margin of appreciation to the state to decide this culturally sensitive issue of headscarf regulations in accordance with its own traditions of secularism. 130 Dahlab, 2001-V Eur. Ct. H.R. at 463; Dogru, supra note 128, para. 75; Şahin, 2005-XI Eur. Ct. H.R. at 208.

In Dahlab v. Switzerland, 131 Dahlab, 2001-V Eur. Ct. H.R. 447. a state elementary school teacher, newly converted to the Islamic faith from Catholicism, was banned from wearing a headscarf when she taught her classes. 132 Id. at 451–52. The government highlighted the value of maintaining secularism in a public school that was open to young students from various traditions. 133 Id. at 458. Invoking the margin of appreciation doctrine, the Court found this school dress code and its application to Dahlab to be necessary and proportionate, and dismissed her claim that the state had violated her freedom of thought, conscience, and religion under Article 9. 134 Id. at 463. The Court stressed

that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children. The applicant’s pupils were aged between four and eight, an age at which children wonder about many things and are also more easily influenced than older pupils. In those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.

Accordingly, weighing the right of a teacher to manifest her religion against the need to protect pupils by preserving religious harmony, the Court considers that, in the circumstances of the case and having regard, above all, to the tender age of the children for whom the applicant was responsible as a representative of the State, the Geneva authorities did not exceed their margin of appreciation and that the measure they took was therefore not unreasonable. 135 Id.

In Dogru v. France, 136 Dogru, supra note 128. a Muslim girl refused to follow her public school’s dress code that required her to take off her headscarf during physical education classes and sports events. 137 Id. para. 7. Dismayed by the breach of its rules and the tensions it caused among the other students, the school initiated disciplinary actions against her. 138 Id. para. 8. When she persisted in her claim to wear her headscarf in all public settings, the school offered to teach her through a correspondence program, an option that her parents rejected. 139 See id. paras. 11–12. She was then expelled from the school. 140 Id. para. 8. After losing in the French courts, she claimed violations of her Article 2 and Article 9 rights under the Convention. 141 Id. paras. 1, 2, 12–46. The European Court again held for the state, and again accorded France an ample margin of appreciation for its policy of maintaining a secular ethic in its public schools. 142 Id. para. 75.

Where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions, in respect of which the approaches taken in Europe are diverse. Rules in this sphere will consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. 143 Id. para. 63 (citation omitted).

In the most famous headscarf case, Şahin v. Turkey, 144Şahin v. Turkey, 2005-XI Eur. Ct. H.R. 173. an Islamic medical student at Istanbul University was forbidden to take certain courses and exams because she was wearing a headscarf contrary to state rules governing dress. 145 Id. at 181. The University brought disciplinary actions against her. 146 Id. at 182. After losing in the Turkish courts, she filed a claim before the European Court of Human Rights alleging a violation of her Article 9 rights. 147 Id. at 179–80, 182–83. The Court held for Turkey, and again granted a margin of appreciation to the Turkish constitutional and cultural ideals of gender equality and state secularism. 148 Id. at 180, 205–08.

The principle of secularism was inspired by developments in Ottoman society in the period between the nineteenth century and the proclamation of the Republic. The idea of creating a modern public society in which equality was guaranteed to all citizens without distinction on grounds of religion, denomination or sex had already been mooted in the Ottoman debates of the nineteenth century. Significant advances in women’s rights were made during this period (equality of treatment in education, the introduction of a ban on polygamy in 1914, the transfer of jurisdiction in matrimonial cases to the secular courts that had been established in the nineteenth century).

The defining feature of the Republican ideal was the presence of women in public life and their active participation in society. Consequently, the ideas that women should be freed from religious constraints and that society should be modernised had a common origin. 149 Id. at 185–86.

The Court further noted that Turkish national law clearly bans veils and headscarves from schools and public workplaces, and these bans had been upheld many times by the Turkish Constitutional Court. 150 Id. at 187–89. The European Court then discussed the different practices of European states concerning religious symbols and headscarves in order to assess whether there was a common European standard on the issue that could be enforced uniformly. 151 Id. at 192–94. There was none. 152 See id. Only Turkey, Azerbaijan, and Armenia at the time had explicit regulations concerning Islamic headscarves in a university. 153 Id. at 192. France, “where secularism is regarded as one of the cornerstones of republican values,” prohibits persons from wearing headscarves, yarmulkes, and oversized crosses in its state schools. 154 Id. In seven other countries, including Germany and the United Kingdom, Muslim public school and university students were allowed to wear headscarves. 155 Id. at 192–94.

In the absence of a clear European consensus on the regulation of headscarves, the European Court was left to build on its own case law about how much religious freedom to protect and how much national regulation of religion to respect. Those precedents, the Şahin court concluded, called for an ample margin of appreciation to local practices, which the Court granted to Turkey:

In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.

. . . .

Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society.” Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position. Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society. Where these “rights and freedoms” are themselves among those guaranteed by the Convention or its Protocols, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society[.]”

Where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions, especially . . . in view of the diversity of the approaches taken by national authorities on the issue. It is not possible to discern throughout Europe a uniform conception of the significance of religion in society . . . and the meaning or impact of the public expression of a religious belief will differ according to time and context. Rules in this sphere will consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. Accordingly, the choice of the extent and form such regulations should take must inevitably be left up to a point to the State concerned, as it will depend on the specific domestic context. 156 Id. at 203–04 (emphases added) (citations omitted).

In the “specific domestic context” of Turkey, “secularism” is “one of the fundamental principles of the Turkish state.” 157 Id. at 204–06. This principle is “in harmony with the rule of law and respect for human rights [and] may be considered necessary to protect the democratic system in Turkey.” 158 Id. at 205–06. Religious “attitudes” and actions to the contrary “will not enjoy the protection of Article 9 of the Convention.” 159 Id. Hence by a sixteen to one vote, the Grand Chamber found in favor of Turkey. 160 Id. at 217.

Only Judge Tulkens dissented, arguing that the majority was using the margin of appreciation doctrine to abdicate its responsibility to protect fundamental rights. 161 See id. at 221–22 (Tulkens, J., dissenting). The vital issues of religious freedom at stake in this case are not merely “a ‘local’ issue,” she argued, “but one of importance to all the member States. European [Court] supervision cannot, therefore, be escaped simply by invoking the margin of appreciation.” 162 Id. at 222.

On what grounds was the interference with the applicant’s right to freedom of religion through the ban on wearing the headscarf based? In the present case, relying exclusively on the reasons cited by the national authorities and courts, the majority put forward, in general and abstract terms, two main arguments: secularism and equality. While I fully and totally subscribe to each of these principles, I disagree with the manner in which they were applied here and to the way they were interpreted in relation to the practice of wearing the headscarf. In a democratic society, I believe that it is necessary to seek to harmonise the principles of secularism, equality and liberty, not to weigh one against the other. 163 Id. at 221–22.

While these three cases do not treat the government’s own use of religious symbols, they are nonetheless important precedents for both sides of the Lautsi case. These cases can be used to support Lautsi’s claim to religious freedom and non-discrimination for herself and her children. The only way they can enjoy true “equality” and “liberty” in Italy as a religious minority, the argument goes, is for the state to embrace the principle of “secularism” and to remove those symbols and end those practices that privilege and reflect the dominant Catholic faith. Particularly in the context of a state school, where children are learning the fundamentals of democracy and freedom for all, even the passive display of a symbol that is overtly Christian and perennially present in the classroom violates the mandates of secularism.

Secularism, the argument continues, is the only common feature that binds together the potpourri of European traditions—Catholic Italy, Ireland, and Poland, Protestant Sweden and Norway, Anglican England, Muslim Turkey, Orthodox Greece and Romania, and the large number of atheists in former Socialist countries. 164 See id. at 192–94 (majority opinion). In accepting the European Convention on Human Rights, 165Id. at 205–06. these countries are also accepting the principle of secularism embedded within it. The only way to ensure that each member state abides by its commitment to human rights, and to the principles of secularity and neutrality that human rights demand, is to ban religious symbols on government land, particularly in public schools—whether those symbols are put there by the state or brought there by a private party. Especially a “powerful external symbol” like the headscarf, as the Dahlab Court noted, can be understood as a threat to “the message of tolerance, respect for others, and above all, equality and non-discrimination.” 166Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447, 463. It is best to ban all these religious symbols in public life. Combine the solicitude for the religious freedom claims of atheists and agnostics in Folgerø and Grzelak 167 See generally Folgerø, supra note 107, paras. 51–57, 86; Grzelak, supra note 108. against state imposition of religion with the clarion call for state secularism in Dahlab, Dogru, 168 See generally Dahlab, 2001-V Eur. Ct. H.R. 447; Dogru, supra note 128; Şahin, 2005-XI Eur. Ct. H.R. 173. and Şahin, the argument concludes, and Lautsi and her children should win.

The real issue, Italy might counter, is whether the European Court is sincere about granting a margin of appreciation to national tribunals on culturally “sensitive” issues in which no “European consensus” exists. 169 See Lautsi I, supra note 1, paras. 38–41. Or is the Court simply using the margin of appreciation doctrine as a pretext to establishing secularism throughout Europe, even in countries like Italy that reject it. Europe, after all, has no consensus about the mandates of secularism, and nothing in the European Convention commands secularism as a condition for respecting the human rights of all, 170 See id. para. 41. whatever the Court’s imaginings to the contrary. Moreover, Europe has no consensus about the propriety of religious symbols on government land or in government buildings. These are highly sensitive local issues in ancient religious cultures like Italy that are gradually moving on their own terms and their own timetable toward ever greater pluralism.

Moreover, why would the European Court reject strong Article 9 claims by sincere good faith Muslims, engaged in mainstream religious practices that run contrary to new national policies of secularism, yet grant Article 9 claims of a secularist who has only recently emigrated to Italy with her children but now objects to the vestiges of ancient traditions of Christianity? Why should young students—controlled by secularist parents—get full religious freedom protection against even indirect forms of majoritarian religion, while sincere, good faith Muslim adults cannot get the religious freedom to wear unobtrusive headscarves while enjoying their rights to education? The European Court has painted itself into a secularist corner, the argument for Italy would conclude, forgetting the true meaning of religious freedom.

E. Freedom of Expression

In Otto-Preminger-Institut v. Austria, the European Court used the margin of appreciation doctrine to defer to Austria’s traditions of Christianity, even in the face of a strong Article 10 claim to freedom of expression to show an offensive anti-religious film. 171 See supra notes 91–97 and accompanying text. That case used the margin of appreciation doctrine in a way favorable to Italy’s argument in Lautsi.

Another Article 10 case, Vajnai v. Hungary, 172Vajnai v. Hungary, Eur. Ct. H.R. (2008), http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Vajnai” in the “Case Title” box and “Hungary” in the “Respondent State” box). can also be seen as helpful to Italy. A politician of a left wing party, during a public demonstration in Hungary, wore a five-pointed red star, the infamous symbol of the Communist era. 173 Id. para. 6. He was convicted for wearing a totalitarian symbol in public. 174 Id. paras. 7–8. He filed a claim in the European Court, claiming a violation of his Article 10 rights to freedom of expression. 175 Id. para. 3. The Court held in the politician’s favor. 176 Id. para. 58. The Court took special note of Hungary’s history after its political transformation:

[A]lmost two decades have elapsed from Hungary’s transition to pluralism and the country has proved to be a stable democracy . . . . It has become a Member State of the European Union, after its full integration into the value system of the Council of Europe and the Convention. Moreover, there is no evidence to suggest that there is a real and present danger of any political movement or party restoring the Communist dictatorship. The Government has not shown the existence of such a threat prior to the enactment of the ban in question. 177 Id. para. 49 (citation omitted).

Not only was the blanket ban unjustified, it was also too broad, because it required no proof that the defendant identified with the ideas that the star represented:

The ban can encompass activities and ideas which clearly belong to those protected by Article 10, and there is no satisfactory way to sever the different meanings of the incriminated symbol. Indeed, the relevant Hungarian law does not attempt to do so. Moreover, even if such distinctions had existed, uncertainties might have arisen entailing a chilling effect on freedom of expression and self-censorship. 178 Id. para. 54.

While the Court recognized the deep scar that Communism had left on Hungary, the judges held that there was no longer a sufficient social need to criminalize the star that symbolized the former Communist regime. 179 Id. para. 57.

[T]he applicant’s conviction for the mere fact that he had worn a red star cannot be considered to have responded to a “pressing social need.” Furthermore, the measure with which his conduct was sanctioned, although relatively light, belongs to the criminal law sphere, entailing the most serious consequences. The Court does not consider that the sanction was proportionate to the legitimate aim pursued. It follows that the interference with the applicant’s freedom of expression cannot be justified under Article 10 § 2 of the Convention. 180 Id. para. 58.

While the scope and standard of Article 9 and Article 10 of the Convention are certainly different, the Vajnai case has some modest bearing on the Lautsi case. In favor of Italy, the case recognizes that once offensive symbols in public life can lose their sting over time, and become accepted parts of a pluralistic culture that is teeming with countervailing symbols of all sorts. 181 See id. paras. 48–58. Only two decades after the fall of Communism, the signature red star of the Communist regime was now deemed an acceptable part of public life, even if the star reminded many observers of prior oppression and political abuse, and even if the star was worn by a political official. 182 See id. Wearing the star may be in bad taste, but the issue for the Vajnai court was whether wearing the star represented “a real and present danger” of a return to Communism, which it clearly did not. 183 Id. para. 49. Italy can make a comparable argument respecting its crucifixes, and how passage of time has rendered them acceptable parts of a pluralistic culture. These crucifixes are not harbingers of a return to Catholic establishments, nor do they signal a “real and present danger” that the democracy of Italy is about to fall to Catholic rule. Moreover, the offenses with which the crucifixes may have been associated in prior centuries of crusades, pogroms, and inquisitions have long since ended 184 See Pin, supra note 6, at 102–04. —much longer than the offenses associated with the Communist red star, which many Hungarian citizens today can still remember. While the crucifixes may offend a few members of society, like Lautsi and her children, they represent cherished cultural values to many millions of others. Lautsi’s views, in fact, cause offense to millions of members of Italian society, but those views cannot be censored for that reason alone. Freedom of expression requires that all views be heard in public life, and no one should enjoy a heckler’s veto.

The counterargument for Lautsi might be that “freedom of expression” is a right that the individual can claim against the state, not that the state can claim against the individual. The further counterargument might be that these crucifixes are not one of sundry symbols in public life, but are a distinctive part of the public school classroom which the state compels children to attend. And this case is about freedom of expression, not freedom of thought, conscience, and religion.

As the foregoing survey of cases illustrates, the Grand Chamber in the Lautsi case has a wide range of arguments at its disposal. Interestingly, as we will note in the Conclusion, the Grand Chamber did rather little to distinguish these precedents or even to deal with them in a serious way. That will leave plenty of room for argument in subsequent European Court cases on religious symbols in public life, which will doubtlessly arise in different quarters of Europe.

II. Religious Freedom and Religious Symbols in the U.S. Supreme Court 185 See Witte & Nichols, supra note 33, at 287–94.

While the U.S. Supreme Court has operated continuously since 1790, 186Home of the Court, Sup. Ct. Hist. Soc’y, http://www.supremecourthistory.org/history-of-the-court/home-of-the-court (last visited Mar. 20, 2011). its cases on religious symbols in public life and on government land have come only in the last thirty years. 187 See Witte & Nichols, supra note 33, at 227–36. All these cases have arisen under the First Amendment Establishment Clause which, as noted in the Introduction, provides that “Congress shall make no law respecting an establishment of religion.” 188U.S. Const. amend. I. That Constitutional provision, ratified in 1791, 189 Witte & Nichols, supra note 33, at 89. was largely a dead letter for the first 150 years of American history. 190 See id. at 109–10. Before 1947, the Supreme Court heard only two cases directly under the Establishment Clause, holding for the government each time. 191Reuben Quick Bear v. Leupp, 210 U.S. 50, 82 (1908); Bradfield v. Roberts, 175 U.S. 291, 300 (1899). This changed dramatically in 1947, when the Court decided the famous case of Everson v. Board of Education. 192Everson v. Bd. of Educ., 330 U.S. 1 (1947).Everson for the first time applied the Establishment Clause to state and local governments, by incorporating it into the Due Process Clause of the Fourteenth Amendment. 193 Id. at 13–15.Everson also declared that “the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.’” 194 Id. at 16 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)). This opened the floodgates of litigation; since 1947, the Supreme Court has heard nearly seventy cases arising in whole or in part under the Establishment Clause. 195For a list of cases, see Witte & Nichols, supra note 33, at 305–38.

Some two-thirds of these Establishment Clause cases have concerned education—more particularly, the place of religion in public schools and the place of government in religious schools. 196 Id. at 223. Particularly in its religion and public school cases, the Court issued its strongest statements that the Establishment Clause called for a “high and impregnable” wall between church and state. 197Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947). “That wall must be kept high and impregnable. We could not approve the slightest breach.” 198Id. The Court used this strict separationist logic to ban the use of religious teachers, religious officials, Bible readings, student-led prayers, moments of silence, and creationist science from the public school classroom, and to ban prayers and religious ceremonies even from occasional public school events like graduation ceremonies and football games. 199See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992); Edwards v. Aguillard, 482 U.S. 578 (1987); Wallace v. Jaffree, 472 U.S. 38 (1985); Stone v. Graham, 449 U.S. 39 (1980); Chamberlain v. Dade County, 377 U.S. 402 (1964); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962); Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948). In these cases, the Court also developed a three-part test to apply the First Amendment Establishment Clause. 200Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). In Lemon v. Kurtzman, 201 Id. the Court declared that any government action challenged under the Establishment Clause would meet Constitutional muster only if it: (1) had a secular purpose; (2) had a primary effect that neither advanced nor inhibited religion; and (3) fostered no excessive entanglement between church and state officials. 202 Id. This Lemon test, as it came to be called, was to be used not only in religion and education cases, but in all cases arising under the Establishment Clause. 203 Witte & Nichols, supra note 33, at 177–81.

Among the remaining Supreme Court Establishment Clause cases outside of education was a set of convoluted cases from 1980 to 2010 that raised two loaded questions: (1) what role may religious officials, ceremonies, and symbols play in public life; and (2) to what extent may government recognize, support, fund, house, or participate in these forms and forums of religious expression?

Cases raising these questions had poured into the lower federal courts shortly after the Supreme Court issued its Everson case. Litigation groups like the American Civil Liberties Union, Americans United for Separation of Church and State, and the Anti-Defamation League filed many of the lawsuits. 204 Id. at 223. Their efforts were complemented, if not catalyzed, by the nation’s growing countercultural movements in the 1960s (think of the hippie movement, Woodstock, and the Vietnam War protests), 205 Id. by a growing anti-religious sentiment in the American academy in the 1970s (think of the “God is dead” movement and the Marxist critiques of religion), 206 Id. and by the rise of religious and cultural minorities whose views found too little place in majoritarian policies and practices. 207 Id. Cultural critics and Constitutional litigants challenged a number of admixtures of religion and government—including the presence of religious language, art, and symbols on government stationery and seals and in public parks and government buildings; the purchase and display of religious art, music, literature, and statuary in state museums; governmental recognition of Christian Sundays and holidays; and others. 208 Id.

Before 1980, few of these cases made much headway in the lower federal courts. 209 Id. at 224. The Supreme Court repeatedly refused to hear these cases on appeal, save a small cluster of cases in 1961 challenging traditional Sabbath day laws, which got nowhere. 210 See generally Braunfeld v. Brown, 366 U.S. 599 (1961) (holding that a statute disallowing sales on Sunday does not violate free exercise rights of Jewish appellant, who is a strict Saturday Sabbatarian); Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617 (1961) (holding that a Sunday closing law does not violate free exercise rights of owner of kosher Jewish supermarket, Orthodox Jewish customers, or rabbis with a duty to inspect kosher markets per Jewish dietary laws); McGowan v. Maryland, 366 U.S. 420 (1961) (upholding a state law proscribing certain business and commercial activity on Sunday against Establishment Clause challenge); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961) (holding Sunday closing laws do not violate the Establishment Clause). After 1980, however, the Court took on several cases on state-supported displays of religious symbols. 211 See Salazar v. Buono, 130 S. Ct. 1803 (2010); Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009); Van Orden v. Perry, 545 U.S. 677 (2005); McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995); County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984); Stone v. Graham, 449 U.S. 39 (1980). These cases divided (and continue to divide) the Court deeply, yielding wildly discordant approaches to the Establishment Clause and bitter dissenting opinions from several of the Justices, notably Justices Scalia, Souter, and Stevens. 212 See Van Orden, 545 U.S. 677; McCreary County, 545 U.S. 844.

A. Religious Symbols in Public Schools

Stone v. Graham was the Supreme Court’s first case to deal directly with the Constitutionality of religious symbols on government property. 213 Stone, 449 U.S. at 40–41. This was, in fact, another religion and public school case. 214 Id. The Stone Court struck down a state statute that authorized posting a plaque bearing the Ten Commandments (or Decalogue) on the wall of each public school classroom. 215 Id. Private groups in the community donated and hung the plaques. 216 Id. at 41. The Commandments were not read publicly, nor did teachers or school officials mention or endorse them. 217 Id. at 42. Each plaque also bore a small inscription that sought to immunize it from charges of religious establishment: “‘The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.’” 218 Id. at 40 (quoting Ky. Rev. Stat. Ann. § 158.178 (West 2010)).

Using the Lemon test, the Court struck down these displays as violations of the Establishment Clause. 219 Id. at 40–41. Its per curiam opinion held that the statute mandating the Decalogue display had no “secular legislative purpose” but was instead “plainly religious.” 220 Id. at 41. The Ten Commandments are sacred in Jewish and Christian circles, the Court reasoned, and they command “the religious duties of believers.” 221 Id. at 42. It made no Constitutional difference that the Ten Commandments were passively displayed rather than formally read aloud or that they were privately donated rather than purchased with state money. 222 Id. The very display of the Decalogue in the public school classroom served only a religious purpose and was thus per se unconstitutional. 223 Id.

B. Religious Crèches and Government Support

The next main case dealt with the place of a government-sponsored religious symbol on private land, and here the Court upheld the display. 224Lynch v. Donnelly, 465 U.S. 668, 668 (1984). In Lynch v. Donnelly, 225 Id. the Court addressed the Constitutionality of a government display of a crèche, or manger scene. 226 Id. at 671–72. For forty years, officials in the town of Pawtucket, Rhode Island coordinated with local merchants to put up a large Christmas display in a private park in the heart of the downtown shopping area. 227 Id. at 671. The display had many typical holiday decorations: stuffed animals, toys, striped poles, a Santa Claus house, a sleigh and reindeer, cardboard carolers, colored lights, a “Season’s Greetings” sign, and more. 228 Id. Embedded in this large display was a manger scene that depicted the Bible’s account of Christ’s birth. 229 Id. It included figurines of Mary, Joseph, and baby Jesus in a manger, surrounded by animals, shepherds, wise men, and angels. 230 Id. The crèche occupied about ten percent of the total holiday display space, and constituted fifteen percent of all the figurines. 231 Id. The city purchased the crèche forty years before and had since stored and maintained it at little cost. 232 Id. Local taxpayers challenged the display as violating the Establishment Clause. 233 Id.

The Lynch Court upheld the display. 234 Id. at 672. “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life,” Chief Justice Burger wrote for the majority, giving an ample list of illustrations to show how crèches and other religious symbols had long been embedded in American culture and experience. 235 Id. at 674. But there is another reason to uphold this display, Burger continued, now working through the three-part Lemon test. 236 Id. Crèches, while of undoubted religious significance to Christians, are merely “passive” parts of “purely secular displays extant at Christmas,” and they have taken on secular civic purposes and become embedded in the fabric of society. 237 Id. at 685. Government acknowledgments of religion—like these crèches, legislative prayers, and the “In God We Trust” statements on our coins—are not per se unconstitutional, Justice O’Connor added in concurrence. 238 Id. at 692–93 (O’Connor, J., concurring). Instead, they serve “the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.” 239 Id. The primary effect of displaying the crèche as part of the broader holiday display is not to advance the Christian religion, Chief Justice Burger continued, but to “engender[] a friendly community spirit of good will” that “brings people into the central city, and serves commercial interests and benefits merchants.” 240 Id. at 685 (majority opinion). Governmental participation in and support of such “‘ceremonial deism’” is not a form of excessive entanglement with religion and cannot be assessed “mechanically” or by using “absolutist” tests of establishment. 241 Id. at 669, 716 (quoting Arthur E. Sutherland, Book Review, 40 Ind. L.J. 83, 86 (1964)). “It is far too late in the day to impose a crabbed reading of the Establishment Clause on the country.” 242 Id. at 687.

Five years later, in County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 243County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989). the Court offered a much closer, if not “crabbed,” reading of the Establishment Clause to outlaw another public holiday display that ran for six weeks, from Thanksgiving Day, late in November, into the new year. 244 Id. at 580. This display was in the county courthouse near the “Grand Staircase,” a heavily trafficked area for the many people who used the county’s offices for licensing, registration, litigation, and the like. 245 Id. Almost the entire display was a crèche, featuring the same biblical figurines displayed in Lynch. 246 Id. The tallest figurine was an angel holding a trumpet that bore a clearly visible sign: “Gloria in Excelsis Deo” (“Give Glory to God in the Highest”), the Latin words of a familiar Christmas carol. 247 Id. at 573. A lay Catholic group donated the crèche and put up a small sign indicating the same. 248 Id. The county had put around the display a small white fence, flanked by two small pine trees with red bows, and lined with red and white poinsettias. 249 Id. at 580. For the three weeks before Christmas, the county had invited local high school choirs to sing carols at the crèche during lunch, dedicating the musical offerings to world peace and missing soldiers. 250 Id. at 581. Local taxpayers sued. 251 Id. at 587–88.

The County of Allegheny Court struck down this crèche display as violating the Establishment Clause. 252 Id. at 579. Justice Blackmun wrote for the plurality, noting that this display was on a prominent piece of government land, not in a private park like the Lynch display. 253 Id. at 598. This display was almost exclusively religious in content and not buffered by ample secular accoutrements of comparable size and genre. 254 Id. at 598–99. And this display carried a single, undiluted verbal message—enjoining viewers to give glory to God in the highest. 255 Id. at 600. Taken together, Justice Blackmun concluded, these factors had the fatal effect of primarily advancing or endorsing the Christian religion to the exclusion of all other faiths. 256 Id. at 601–02.

The same County of Allegheny Court, however, upheld the public display of a menorah, the eight-armed candleholder symbolizing the Jewish holiday of Hanukkah. 257 Id. at 579. The menorah in question was an abstract eighteen-foot design, privately owned but erected and maintained by the county. 258 Id. at 587. It was displayed at a lesser-used entrance to the same courthouse, alongside the city’s forty-five-foot decorated Christmas tree, which was labeled “A Salute to Liberty.” 259 Id. Given its less prominent placement on government land, its abstract design, its proximity to the larger “Salute to Liberty” tree, its lack of verbal religious messages, and its use of a symbol (a menorah) that has both religious and cultural connotations, this display was constitutionally acceptable, Justice Blackmun concluded. 260 Id. at 613–20. The Court did not address the dissonance between upholding a menorah while simultaneously outlawing a crèche at the same courthouse, but seemed to suggest that each case turned on the context and the characterization of the religious symbol. 261 Id. at 620–21.

C. Private Displays of Religious Symbols in Public Forums

How to characterize a religious symbol arose again six years later, in Capitol Square Review and Advisory Board v. Pinette. 262Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995). For more than a century, Ohio kept open a ten-acre square around the state capitol building for public gatherings and displays of various sorts. 263 Id. at 757. Parties who wished to use the square had to apply and receive a free license from the state. 264 Id. at 757–58. In December, the state invited the community to erect various unattended displays in this square. 265 Id. at 758. The state put up its own Christmas tree, and granted a local rabbi’s application to put up a menorah. 266 Id. But the state denied the Ku Klux Klan’s (“KKK”) application to put up its signature Latin cross. 267 Id. The KKK appealed, charging the state with viewpoint discrimination in violation of its free speech rights. 268 Id. at 758–59. The state countered that allowing the KKK to display its cross next to the state capitol would be establishing religion. 269 Id.

The Pinette Court upheld the free speech rights of the KKK and found no Establishment Clause violation. 270 Id. at 753. “[A] free-speech clause without religion would be Hamlet without the prince,” Justice Scalia wrote for the plurality. 271 Id. at 760. The state created an open public forum in its Capitol Square, and it cannot discriminatorily exclude religious speech from this forum unless it has a compelling reason. 272 Id. at 753. The Court concluded that a general aspiration to avoid an establishment of religion was not a sufficiently compelling reason to justify religious discrimination. 273 Id. at 764–65. Moreover, the Latin cross was only a private expression of religion, and no reasonable person would assume that the state had erected or condoned it—especially since the KKK would prominently label the cross as its own. 274 Id. And, unlike the single crèche display at the grand staircase in County of Allegheny, this display would be one of several in a public forum open to anyone who applies. 275 Id.

Justice Thomas concurred, arguing not only that the Latin cross was a form of private expression, but also that it was not religious expression. 276 Id. at 770–71 (Thomas, J., concurring). For the KKK, “[t]he erection of such a cross is a political act, not a Christian one.” 277 Id. Its depiction is deeply offensive given the nation’s history of slavery and the KKK’s history of racism. 278 Id. But even offensive speech deserves free speech protection. 279 Id.

D. Decalogue Displays on Government Land

The Court’s conflicting messages and methods of dealing with public displays of religion became even more confusing after its two cases on the Constitutionality of Ten Commandments displays on government land. In McCreary County v. American Civil Liberties Union of Kentucky 280McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005). and Van Orden v. Perry, 281Van Orden v. Perry, 545 U.S. 677 (2005). announced back-to-back on the same day, two sharply divided courts struck down one Decalogue display 282 McCreary County, 545 U.S. at 858. but left another standing. 283 Van Orden, 545 U.S. at 677. In McCreary County, Justice Souter, writing for the majority, used a strict Lemon analysis to strike down the display, with Stone v. Graham as the strongest precedent. 284 McCreary County, 545 U.S. at 850–81. In Van Orden, Chief Justice Rehnquist, writing for the plurality, ignored Lemon and instead used a soft-history argument to uphold the display, with Lynch v. Donnelly as the strongest precedent. 285 Van Orden, 545 U.S. at 681–92. Both cases featured long and bitter dissents by Justice Stevens and Justice Scalia, respectively, 286 Id. at 692 (Scalia, J., concurring); id. at 737 (Stevens, Souter & Ginsburg, JJ., dissenting); McCreary County, 545 U.S. at 885 (Rehnquist, C.J., Scalia, Kennedy & Thomas, JJ., dissenting). and cacophonies of concurring and dissenting opinions by other Justices. 287 Van Orden, 545 U.S. at 692 (Scalia, J., concurring); id. at 698 (Breyer, J., concurring in the judgment); id. at 737 (Stevens, Souter & Ginsburg, JJ., dissenting); McCreary County, 545 U.S. at 881 (O’Connor, J., concurring); id. at 885 (Rehnquist, C.J., Scalia, Kennedy & Thomas, JJ., dissenting). The practical difference in outcome on the Court was attributable to Justice Breyer, who joined the majority in McCreary County 288 McCreary County, 545 U.S. at 849. and joined in the decision (but not the plurality opinion) in Van Orden. 289 Van Orden, 545 U.S. at 698–706. (Breyer, J., concurring in the judgment). In his concurrence in Van Orden, Justice Breyer described it as a “difficult borderline case” that called for “the exercise of legal judgment.” 290 Id. at 678 (Breyer, J., concurring in the judgment).

McCreary County concerned a Kentucky county’s new display of the Ten Commandments on a prominent courthouse wall. 291 McCreary County, 545 U.S. at 850–81. Initially the county ordered the Decalogue to be hung by itself. 292 Id. at 851–52. When the ACLU sued, the county ordered that the Decalogue be retained but that other governmental documents be put around the display. 293 Id. at 853–54. The county’s new order stated that “‘the Ten Commandments are codified in Kentucky’s civil and criminal laws’”; that they were put up “‘in remembrance and honor of Jesus Christ, the Prince of Ethics’”; and that the “‘Founding Father[s] [had an] explicit understanding of the duty of elected officials to publicly acknowledge God as the source of America’s strength and direction.’” 294 Id. at 853 (quoting Defendants’ Exhibit 9 in Memorandum in Support of Defendants’ Motion to Dismiss at 1–3, 6, Am. Civil Liberties Union of Ky. v. McCreary County, 96 F. Supp. 2d 679 (E.D. Ky. 2000) (No. Civ. A. 99-507)). Almost all the surrounding governmental documents chosen for the display had the religious language in them highlighted. 295 Id. at 853–54.

As the case proceeded through the courts, the county ordered a third display, without repealing its prior two orders. 296 Id. at 855–56. Now the Decalogue on display was expanded to include the full verses from Exodus 20, and not just a summary as in the prior exhibits. 297 Id. Nine other documents of comparable size flanked it, including the Magna Carta, the Declaration of Independence, the Bill of Rights, and the Mayflower Compact, and in these documents, more neutral language was highlighted. 298 Id. at 857. The collection as a whole was entitled “The Foundations of American Law and Government Display.” 299 Id. at 856. Each document had a comparably-sized description of its historical and legal significance. 300 Id. The Ten Commandments bore this description:

The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.’ The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition. 301 Id. at 856 (quoting Application to Petition for Certiorari at 180a, McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005)).

The entire display was on the wall of a heavily trafficked hallway in the county courthouse. 302 Id. at 864–65. The county had initiated and paid for the displays. 303 Id. at 874–75.

The McCreary County Court struck down this display as a violation of the Establishment Clause. 304 Id. at 864–75. Its fatal feature, in the Court’s judgment, was the lack of a genuine secular purpose, which both Lemon and Stone required. 305 Id. at 864–65. The Decalogue is a “pervasively religious text” with a clear religious message, Justice Souter wrote for the majority, even if this text may have had legal or political uses in the past. 306 Id. at 869. The county’s stated legislative purpose in putting up the display was to honor “‘Christ, the Prince of Ethics.’” 307 Id. at 870 (quoting Defendants’ Exhibit 9 in Memorandum in Support of Defendants’ Motion to Dismiss at 1–3, 6, Am. Civil Liberties Union of Ky. v. McCreary County, 96 F. Supp. 2d 679 (E.D. Ky. 2000) (No. Civ. A. 99-507)). The original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction. “When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable.” 308 Id. at 869. That was fatal in Stone, and it must be fatal here. 309 Id. at 871.

The county’s clumsy attempts to dilute this religious message by relabeling the Decalogue as a moral code, and displaying other political documents with their religious passages prominently highlighted, only compounded its Constitutional error in the eyes of any “reasonable observer,” Justice Souter continued. 310 Id. at 870. The purported secular purposes of the county’s final display “were presented only as a litigating position” 311 Id. at 871. and did little to offset the offending religious purpose that had informed the first two displays and the county’s actions throughout the lawsuit. 312 Id. at 869–74. A genuine attempt by government to cure an inadvertent unconstitutional condition could certainly pass muster under the Establishment Clause, the McCreary County Court concluded, but no such genuine attempt existed here. 313 Id. Viewed as a whole, and over time, the county’s actions formed an establishment of religion. 314 Id. at 881.

In Van Orden v. Perry, issued two hours after McCreary County, the Court took a very different approach. 315See Van Orden v. Perry, 545 U.S. 677, 677–92 (2005). This case concerned a six-foot stone monument of the Decalogue on the state capitol grounds in Austin, Texas. 316 Id. A voluntary civic group, the Fraternal Order of Eagles, had privately donated the Decalogue forty years earlier. 317 Id. It was one of thirty-eight historical markers and monuments on a twenty-two-acre state capitol campus. 318 Id. It was located near a lesser sidewalk that connected the state capitol with the state Supreme Court building. 319 Id. Van Orden, a state taxpayer who had regularly used the law library the prior six years, challenged the Decalogue display as a form of religious establishment. 320 Id. at 677.

The Van Orden Court upheld the display. 321 Id. “Our cases, Januslike, point in two directions,” Chief Justice Rehnquist wrote candidly for the plurality. 322 Id. at 683. One set of cases “looks toward the strong role played by religion and religious traditions throughout our Nation’s history.” 323 Id. “The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.” 324 Id. The Van Orden Court followed the first line of cases, and declared the Lemon test “not useful” 325 Id. at 685–86. in this case. The Decalogue is clearly a religious text with a religious message, the Court made clear. 326 Id. at 690. But “[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” 327 Id. The Decalogue, like many other religious texts and symbols on federal, state, and local government lands, is also part of “America’s heritage,” part of the fabric of American society. 328 Id. at 689. Its public display on government land democratically recognizes and represents that “‘religion has been closely identified with our history and government’” and that Americans are “‘a religious people, whose institutions presuppose a Supreme Being.’” 329 Id. at 683 (quoting Sch. Dist. Of Abington Twp. v. Schempp, 374 U.S. 203, 212–13 (1963); Zorach v. Clauson, 343 U.S. 306, 313 (1952)). Moreover, this Decalogue display was privately donated. 330 Id. at 701. It stood unchallenged for forty years. 331 Id. at 682. It is a merely “passive” display that anyone can easily avoid while walking the state capitol grounds. 332 Id. And its message is buffered by the thirty-seven other monuments and markers on the same government land, most of which are decidedly secular. 333 Id. at 681. If this display is unconstitutional, Chief Justice Rehnquist wrote, then hundreds of others religious displays and maybe even the religious statues of Moses and Mohammed on a frieze in the Supreme Court building, must come down. 334 Id. at 689. That surely is neither the intent nor the import of the First Amendment Establishment Clause. 335 Id. at 691–92.

After such a remarkably discordant pair of cases, it was surprising to most observers that, four years later, the Supreme Court, in Pleasant Grove City v. Summum, 336Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009). was unanimous in upholding the Constitutionality of a Ten Commandments monument on government land. 337 Id. The same Fraternal Order of Eagles in Van Orden had privately donated the monument forty years earlier. 338 Id. at 1129. It was one of a dozen old signs and markers in a city park in Utah. 339 Id. A new religious group, called Summum, sought permission to erect in the park a monument with their Seven Aphorisms of faith. 340 Id. The city refused, so Summum sued under the First Amendment. 341 Id. It charged the city with violating the Free Speech clause by discriminating against its Seven Aphorisms. 342 Id. It also threatened to charge the city with violating the Establishment Clause by displaying the Ten Commandments alone. 343 Id. This left the city with a hard choice: take down the Ten Commandments or put up the Seven Aphorisms. 344 Id. at 1139.

The Pleasant Grove City Court accepted neither approach, and held for the government. 345 Id. at 1125. The Court treated the Ten Commandments monument as a form of permissible government speech. 346 Id. A government “‘is entitled to say what it wishes,’” Justice Alito wrote for the Court, and it may select and reflect certain views in favor of others. 347 Id. at 1127 (quoting Rosenberger v. Rector, 515 U.S. 819, 833 (1995)). A government may express its views by putting up its own tax-paid monuments or by accepting monuments donated by private parties (whose contents it need not fully endorse). 348 Id. at 1136. In this case, city officials had earlier accepted a Ten Commandments monument on grounds that it reflected the “[a]esthetics, history, and local culture” of the city. 349 Id. at 1128. The Free Speech Clause does not give a private citizen a “‘heckler’s veto’” 350 Id. at 1131 (quoting Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting)). over that old decision by the city. Nor does it compel the city to accept every privately donated monument once it has accepted the first. 351 Id. at 1138. Government speech is simply “not subject to scrutiny under the Free Speech Clause,” the Court concluded, nor to judicial second-guessing under the First Amendment. 352 Id. at 1125. Government officials are “‘accountable to the electorate’” for their speech, and they will be voted out of office if their views cause offense. 353 Id. at 1127 (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000)).

It helped the Pleasant Grove City Court that there were a dozen monuments in the city park, only one of which was religious in content. 354 Id. at 1125. It also helped that the Decalogue in question was a forty-year-old monument that had never been challenged before. 355 Id. at 1140. Such facts allowed some of the Justices to agree that the display did not constitute an establishment of religion. 356 Id. But the case turned on a characterization of the Ten Commandments monument as a form of government speech—not as a secularized icon of ceremonial deism or as a religious symbol sufficiently buffered by secular equivalents. 357 Id. at 1125. The Pleasant Grove City Court did not deny or dilute the religious qualities of the Ten Commandments. 358 Id. at 1140. Instead, it left it to elected government officials to decide how to reflect and represent the views of the people, including their religious views. 359 Id. at 1132. The Court also left it to the people to debate and decide whether the government’s representation of their views was adequate or outmoded. 360 Id. Courts could certainly step in if the government coerced citizens to accept the religious views on these symbols, or if the government’s speech violated privacy, endangered society, or violated the Constitution. 361 Id. at 1125. However, a merely passive display of a generic religious symbol or text was not nearly enough to trigger federal judicial intervention. 362 See id.

E. The Cross in the National Park

The Supreme Court did not use this government-speech logic in Salazar v. Buono. 363Salazar v. Buono, 130 S. Ct. 1803 (2010). The case, as discussed in the Introduction, concerned a challenge to a seven-foot cross on prominent display in the Mojave National Preserve in California. 364 Id. at 1826. The cross had been donated and erected in 1934 by a private group, the Veterans of Foreign Wars, as a memorial to fallen American soldiers. 365 Id. at 1807. The cross stood alone. 366Id. at 1834. A few years earlier, a Buddhist group had sought to place one of its shrines near the cross, but the government had denied their application. 367 Buono v. Norton (Buono II), 371 F.3d 543, 550 (9th Cir. 2004). A former park worker now challenged its Constitutionality. 368 Salazar, 130 S. Ct. at 1803.

Observers had expected the Salazar Court to return to Pleasant Grove City, and decide whether this privately-donated cross in a federal park, like the privately donated Decalogue in a city park, would be viewed as a constitutionally permissible form of government speech. 369 See generally Nelson Tebbe, Privatizing and Publicizing Speech, 104 Nw. U. L. Rev. Colloquy 70 (2009). Unlike Pleasant Grove City, there were no nearby secular buffers to offset the religious message, but here the cross was a non-verbal symbol, its location was much more remote, and it had stood almost twice as long without challenge. 370 Salazar, 130 S. Ct. at 1803. The six fractured opinions in Salazar, however, focused largely on Buono’s standing rights, the Constitutionality of Congress’s private land sale, and the district court’s authority to enjoin it. 371 Id.

Writing for himself and two other Justices, Justice Kennedy concluded that Buono had standing both to press his original case that challenged the Constitutionality of the cross display on federal land and to press his subsequent case that challenged the federal land sale. 372 Id. at 1808. But Kennedy was not convinced that the district court had jurisdiction to extend its original injunction against the cross to enjoin the congressional act authorizing the land sale. 373 Id. at 1815. The decision to enjoin the land sale required a separate Constitutional inquiry whether Congress had truly violated the Establishment Clause, not just a simple judgment that its act was a “sham” designed to “evade” the first injunction. 374 Id. at 1814, 1817. The district court would now have to judge Congress’s actions on the merits. 375 Id. at 1815. In making this judgment, Kennedy continued, the district court would have to take into account the reality that while the cross was “certainly a Christian symbol,” it had not been erected in the park “to promote a Christian message” or to “set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers.” 376 Id. at 1816–17. The district court would further have to recognize that “[t]ime also has played its role” and “the cross and the cause it commemorated had become entwined in the public consciousness” and part of “our national heritage.” 377 Id. at 1817. Justice Kennedy thus reversed the order enjoining the land transfer and remanded the case to the district court to judge the Constitutionality of Congress’s act on the merits and in light of these factors. 378 Id. at 1821.

Joining the plurality opinion, Justice Alito thought the case was sufficiently developed for the Supreme Court itself to make that Constitutional judgment—and in favor of the government. 379 Id. (Alito, J., concurring). The cross had been privately donated to honor the nation’s war dead (just like crosses in government cemeteries everywhere), it had stood without challenge for seventy years, and it was an utterly remote corner of a desert park “seen by more rattlesnakes than humans.” 380 Id. at 1822. Also joining the plurality opinion, Justices Scalia and Thomas thought that Buono lacked standing to seek an injunction of the land sale and the district court lacked power to issue the injunction. 381 Id. at 1824 (Scalia & Thomas, JJ., concurring). Buono is asking a federal court to prevent the display of a small cross on private land, they concluded; this leaves no Constitutional question to resolve. 382 Id.

That characterization missed the Constitutional point, Justice Stevens wrote in dissent, joined by three other Justices. 383 Id. at 1828 (Stevens, Ginsburg & Sotomayor, JJ., dissenting). The issue is whether the original display of the cross violates the Establishment Clause, and whether Congress’s actions in response to the district court order can be seen as an evasion—much like the government’s actions in the McCreary County case, which had been judged unconstitutional. 384 Id. at 1841. Justice Stevens concluded that both the purpose and effect of the land transfer statute was to endorse religion in violation of the establishment clause. 385 Id. at 1837. In a separate dissent, Justice Breyer concluded that the district court did have power to enjoin the land transfer, making unnecessary any further inquiry into Establishment Clause issues. 386 Id. at 1843 (Breyer, J., dissenting).

F. Rules of Thumb in Future Religious Symbolism Cases

This thirty-year line of religious symbolism cases—from Stone v. Graham to Salazar v. Buono 387Salazar, 130 S. Ct. 1803; Stone v. Graham, 449 U.S. 39 (1980). —has easily been the least steady of the Court’s Establishment Clause cases. Many of these cases turn heavily on the facts, and how these facts are characterized. Many feature widely discordant opinions, sometimes cast in rhetorically bombastic terms. The Court still seems a long way from creating a new concordance of its discordant precedents—though Linkner’s article hereafter makes a valiant effort to find coherence among the jumbled opinions. 388 See generally Linkner, supra note 23. So far, there are only a few rules of thumb to guide litigants and lower courts in these matters. Four are worth mentioning here—with the caveat that while each might be useful, none is dispositive.

First, older religious displays and practices tend to fare better than newer displays, particularly if they have not faced much prior Constitutional challenge. Even if the original inspiration for the old display or practice was religious, its longstanding presence in public life seems to imbue it with a kind of cultural and Constitutional imprimatur. In the Court’s view, it has become a part of American culture, society, and democracy—and is thus unlikely to be a fateful first step toward an establishment of religion. 389 See Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009); Van Orden v. Perry, 545 U.S. 677 (2005). Sometimes the Court has implied that even if the display or practice once had specific religious meaning, that meaning has now been lost; and the display is now either merely a civic symbol devoid of religious content or a more generic symbol that evinces “ceremonial deism.” 390Lynch v. Donnelly, 465 U.S. 668, 716 (1984) (quoting Arthur E. Sutherland, Book Review, 40 Ind. L.J. 83, 86 (1964)). Other times, the Court has worked harder to acknowledge the ongoing religious nature and content of the symbol for many citizens. 391 See McCreary County v. Am. Civil Liberties Union of Ky., 544 U.S. 844 (2005); Stone, 449 U.S. at 39.

Moreover, if Establishment Clause litigants sit on their rights too long, those rights tend to receive less deference when they are finally exercised. Older religious displays and practices were at issue in Lynch, Van Orden, Pleasant Grove City, and Buono, and the government won each time. 392 Pleasant Grove City, 129 S. Ct. at 1125; Van Orden, 545 U.S. at 677; Lynch, 465 U.S. at 668; Buono II, 371 F.3d 543, 543 (9th Cir. 2004). Newer displays were at issue in Stone, County of Allegheny, and McCreary County, and the government lost each time. 393 McCreary County, 544 U.S. at 844; County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 573 (1989); Stone v. Graham, 449 U.S. 39, 39 (1980).

The law recognizes both the power and the pressure of time in other areas. For example, the power of time can be seen in historical preservation and zoning rules that “grandfather” various older (religious) uses of property that do not comport with current preferred uses. 394 Marianne M. Jennings, Real Estate Law 536 (2008). It can also be seen in private property laws of “adverse possession”: an open, continuous, and notorious use of a property eventually will vest in the user. 395 Id. at 344. Those legal ideas have some bearing on these religious symbolism cases, leaving older displays more secure but new displays more vulnerable. The law further recognizes the pressure of time in its rules of pleading and procedure. In order to promote finality and to prevent stale claims, legislatures set statutes of limitations on many claims. 396 See, e.g., Ga. Code Ann. § 9-3-24 (West 2011); Mass. Gen. Laws. Ann. ch. 260, § 2A (West 2011); N.Y. Civil Practice Law § 213 (McKinney 2011). The law has also long done the same through the equitable doctrine of laches, which similarly penalizes parties for sitting too long on their rights. 397 Gregory C. Sisk et al., Litigation with the Federal Government 529 (4th ed. 2006). While the law does not set statutes of limitations on Constitutional cases, and the Court has never explicitly invoked laches, the idea itself seems to influence the Court. “If a thing has been practiced for two hundred years by common consent”—especially at the local level, Justice Holmes once wrote—“it will need a strong case for the Fourteenth Amendment to affect it.” 398Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).

Second, it can be critical to a case how the symbol or practice is labeled or characterized. Stone and McCreary County characterized the Decalogue as a religious symbol and struck it down; 399McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 858 (2005); Stone v. Graham, 449 U.S. 39, 39 (1980).Van Orden and Pleasant Grove City characterized it as an historical marker and let it stand. 400Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1126 (2009); Van Orden v. Perry, 545 U.S. 677, 681 (2005).Lynch labeled the crèche a mere holiday display with commercial value, and let it stand; 401Lynch v. Donnelly, 465 U.S. 668, 672 (1984).County of Allegheny labeled the crèche a depiction of the Christmas story, and struck it down. 402County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 578–79 (1989).Pinette called the Latin cross a form of private expression protected by the free speech clause; 403Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995).Pleasant Grove City called the Decalogue a form of government speech immune from the Free Speech Clause. 404 Pleasant Grove City, 129 S. Ct. at 1126.Lynch labeled the secular decorations around the crèche an effective buffer; 405 Lynch, 465 U.S. at 668.McCreary County regarded the secular documents around the Decalogue as fraudulent camouflage. 406 McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 852 (2005). For Stone, labeling the Decalogue as a moral code was viewed as a subterfuge belied by the very imperative tone of the Commandments. 407 Stone v. Graham, 449 U.S. 39, 39 (1980). For County of Allegheny, labeling a forty-five-foot county Christmas tree as “A Salute to Liberty” was sufficient Constitutional cover for placement of a menorah. 408County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 635 (1989).County of Allegheny treated as constitutionally fatal two signs at the crèche bearing the imperative “Gloria in Excelsis Deo” and “Donated by the Holy Name Society.” 409 Id. at 573.Van Orden thought a small sign reading, “Presented . . . by the Fraternal Order of Eagles” offset any Constitutional offense to a six-foot Decalogue with imperatives like, “Thou shalt have no other gods before me,” “Thou shalt not take the Name of the Lord thy God in vain,” and “Remember the Sabbath day, to keep it holy.” 410Van Orden v. Perry, 545 U.S. 677, 707 (2005). Characterization of the symbol or practice can be key to its Constitutional fate.

Third, geographical location can also be important. Government-sponsored displays on private property, as in Lynch, 411Lynch v. Donnelly, 465 U.S. 668 (1984). get more deference than private displays on government property, as in Stone and County of Allegheny. 412 County of Allegheny, 492 U.S. at 573; Stone, 449 U.S. at 39. Displays in prominent places on government properties, like the grand staircase in County of Allegheny 413 County of Allegheny, 492 U.S. at 675. or the main hallway in the McCreary County courthouse, 414McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 852 (2005). are more suspect than those in less conspicuous places, like the secondary entrance in County of Allegheny, 415County of Allegheny, 492 U.S. at 573. the secondary sidewalk in Van Orden, 416 Van Orden v. Perry, 545 U.S. 677, 677 (2005). the small city park in Pleasant Grove City, 417Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1134 (2009). or the remote desert corner of a national park in Buono. 418 Buono II, 371 F.3d 543, 549 (9th Cir. 2004). Location is not dispositive of the Establishment Clause question, as litigants in Pinette found out; in that case, religious activities and displays on the plaza of the state capitol were upheld. 419Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995). But location is a factor in some cases. And location can play a key role if it strongly influences whether citizens are actually or effectively forced to observe or participate in the religious exercise. That smacks of coercion and leads the Court to find a violation of the establishment clause, as in Stone 420Stone v. Graham, 449 U.S. 39 (1980). and various cases on prayer in public schools. 421Lee v. Weisman, 505 U.S. 577 (1992); Wallace v. Jaffree, 472 U.S. 38 (1985); Engel v. Vitale, 370 U.S. 421 (1962).

A fourth factor is whether the religious symbol or practice is offset by other secular symbols or practices. Particularly when the government sponsors or houses religious symbols on its property, it is best to offset these religious symbols by non-religious symbols of comparable size, weight, and genre. McCreary County makes clear that a court can (and sometimes will) second guess the government when the court suspects subterfuge. 422See McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005). But lower courts have generally been sympathetic with government officials who try to balance religious and non-religious messages in their public display. 423See Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1129 (2009) (involving Ten Commandments in large collection of mostly-secular outdoor art); County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 635 (1989) (involving Christmas tree among other religious and secular holiday decorations). In assessing the balance, they will make rough judgments whether the offsetting symbols’ messages are of comparable genre; whether its religious qualities are obvious or more abstract; and whether the religious symbol is suitable or unsuitable for the government forum. 424 See County of Allegheny, 492 U.S. at 635. For example, a Renaissance “Madonna With Child” may be fine in the foyer of the state museum but not in the entrance to the state capitol. This, like all these rules of thumb, merely reiterates that context matters.

Conclusion and Postscript 425 John Witte, Jr., Lift High the Cross? Religion in Public Spaces, Huffington Post (Mar. 27, 2011, 9:11 PM), http://www.huffingtonpost.com/john-witte-jr/lift-high-the-cross-lauts_b_840790.html.

The Salazar case and the Lautsi case were not inevitable in result given the shifting precedents available to the high courts of the United States and Europe, respectively. And neither case is likely to end the perennially contested questions of the Constitutional place of religious symbols on government land.

At the time of this writing, Salazar is back before the federal district court that now must judge the Constitutionality of Congress’s decision to sell the land. 426 See Salazar v. Buono, 130 S. Ct. 1803, 1820 (2010). Since the Salazar case was remanded, the Ninth Circuit Court of Appeals has just issued another opinion, striking down another old memorial cross that the city of San Diego sold to Congress in an effort to preserve it against an Establishment Clause challenge. 427Trunk v. San Diego, 629 F.3d 1099, 1125 (9th Cir. 2011). However the Salazar district court comes out on remand, the case will almost certainly be appealed again to the same Ninth Circuit court and likely to the Supreme Court as well.

Just as this Article was going to final press, the Grand Chamber of the European Court of Human Rights issued an important opinion that upheld Italy’s policy of displaying crucifixes in its public school classrooms, reversing the Chamber below in a fifteen to two decision. 428Lautsi II, supra note 14, passim. The Grand Chamber stated clearly that the crucifix is a religious symbol, that atheism is a protected religious belief, and that public schools must be religiously neutral. 429See id. paras. 63–66. But the Court held that Italy’s longstanding policy of “passive displays” of a crucifix in each public school classroom was no violation of religious freedom—particularly when students of all faiths were welcome in public schools and were free to wear their own religious symbols. 430See id. paras. 73–74. The Court held further that Italy’s policy of displaying only the crucifix was no violation of religious neutrality, but an acceptable democratic reflection of its majoritarian Catholic culture. 431See id. paras. 67, 71. With European nations widely divided on whether and where to display various religious symbols, the Court concluded, Italy must be granted a margin of appreciation to decide for itself how and where to maintain its Christian traditions in school. 432Id. para. 68.

There is much more to be said about the Grand Chamber’s judgment in Lautsi. But what is notable here is how closely the Grand Chamber’s logic tracks that of the U.S. Supreme Court in its last three religious symbolism cases—Van Orden, Pleasant Grove City, and Salazar. 433See supra Part II.D–E. While not entirely convergent in their religious symbolism cases, the American and European high courts now seem to hold six teachings in common.

First, tradition counts in these cases. In American courts, as we saw, older religious displays tend to fare better than newer displays. 434See supra Part II. The longstanding customary presence of a religious symbol in public life eventually renders it not only acceptable but also indispensable to defining who we are as a people. In Lautsi, Judge Bonello put this argument strongly in his concurrence: “A court of human rights cannot allow itself to suffer from historical Alzheimer’s. It has no right to disregard the cultural continuum of a nation’s flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people.” 435Lautsi II, supra note 14, para. 1.1 (Bonello, J., concurring).

Second, religious symbols often have redeeming cultural value. American courts have long recognized that a Decalogue is not only a religious commandment but also a common moral code; that a cross is not only a Christian symbol, but also a poignant memorial to military sacrifice. 436See supra Part II. When passively and properly displayed, the meaning of a symbol can be left in the eye of the beholder—a sort of free market hermeneutic. The Lautsi court echoed this logic. While recognizing the crucifix as religious in origin, the Court accepted Italy’s argument that “the crucifix [also] symbolised the principles and values” of liberty, equality, and fraternity, which “formed the foundation of democracy” and human rights in Italy and beyond. 437Lautsi II, supra note 14, para. 67.

Third, local values deserve some deference. In the United States, the doctrine of federalism requires federal courts to defer to the practices and policies of individual states, unless there are clear violations of federal constitutional rights to free exercise and no establishment of religion. 438See generally Stuart D. Poppel, Federalism, Fundamental Fairness, and the Religion Clauses, 25 Cumb. L. Rev. 247 (1995) (discussing the relationship between religion and the doctrine of federalism). The Supreme Court has used this doctrine to uphold the passive display of crosses and Decalogues on state capitol grounds. 439See supra Part II. The Lautsi Court uses the European margin of appreciation doctrine in much the same way. Lacking European consensus on public displays of religion and finding no coerced religious practice or indoctrination in this case, the Court left Italy to decide for itself how to balance the religious symbolism of its Catholic majority and the religious freedom and education rights of its atheistic minorities. 440See Lautsi II, supra note 14, para. 68.

Fourth, religious freedom does not require the secularization of society. The U.S. Supreme Court became famous for its image of a “high and impregnable” wall of separation between church and state 441Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947). that left religion hermetically sealed from political life and public institutions, and hermeneutically sealed from political and legal arguments. But the reality today is that the Supreme Court has abandoned much of its strict separatism and now allows religious and non-religious parties alike to engage in peaceable public activities, even in public schools. 442See supra Part II. The European Court of Human Rights likewise became famous for promoting French-style laïcité in public schools and public life, striking down Muslim headscarves and other religious symbols as contrary to the democratic “message of tolerance, respect for others and . . . equality and non-discrimination.” 443Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 463.Lautsi suggests a new policy that respects the rights of private religious and secular groups alike to express their views, but allows government to reflect democratically the traditional religious views of its majority. 444See Lautsi II, supra note 14, paras. 63–77.

Fifth, religious freedom does not give a minority a heckler’s veto over majoritarian policies. Until recently, U.S. courts allowed taxpayers to challenge any law touching religion even if it caused them no real personal injury. 445Cf. Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009). This effectively gave secularists a “veto” over sundry laws and policies on religion—however old, common, or popular those laws might be. 446Cf. id. at 1131 (quoting Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting)). The Supreme Court has now tightened its standing rules considerably, forcing parties to make many of their cases for legal reform in the legislatures and to seek individual exemptions from policies that violate their beliefs. 447See id.Lautsi holds similarly. It recognizes that while the crucifix may cause offense to Lautsi, it represents the cherished cultural values of millions of others, who, in turn, are offended by her views. 448See Lautsi II, supra note 14, paras. 63–77. But personal offense cannot be a ground for censorship. 449Id. Freedom of religion and expression requires that all views be heard in public life. 450Id.

Finally, religious symbolism cases are serious business. As we said in the Introduction, it is easy to be cynical about these cases. But the high temperature of the litigation and the close focus of the international media on these cases suggest that religious symbolism cases are themselves symbolically important for a democratic culture. These cases are essential forums to work out peaceably deep cultural differences and to find ways of accommodating both traditions and the shifting needs of modern cultures.

Footnotes

This is the title of a hymn, composed by George William Kitchin (1887), revised by Michael R. Newbolt, with music by Sidney R. Nicholson (1916). Come Brethren Follow Where Our Captain Trod, Hymnary.org, http://www.hymnary.org/text/come_christians_follow_where_our_savior (last visited Mar. 19, 2011).

John Witte, Jr. is Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion, Emory University School of Law.Nina-Louisa Arold is Associate Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Associate Professor of Law, University of Lund, Sweden.

1Lautsi v. Italy, Eur. Ct. H.R. (2009) [hereinafter Lautsi I], http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Lautsi” in the “Case Title” box and “Italy” in the “Respondent State” box) (referred to the Grand Chamber on March 1, 2010). The hearing was held on June 30, 2010, and eight of the ten intervening states were participating to support the Italian government. ECHR Crucifix Case: 20 European Countries Support the Crucifix, Eur. Center for L. & Just. (July 21, 2010), http://www.eclj.org/Releases/Read.aspx?GUID=983c3dd3-9c17-4b70-a016-37851446ec0e&s=eur.

2 See Lautsi I, supra note 1, paras. 1, 3, 20.

3 See id. para. 27.

4 Id. paras. 1, 7.

5 See id. paras. 13–15.

6 See Andrea Pin, Public Schools, the Italian Crucifix, and the European Court of Human Rights: The Italian Separation of Church and State, 25 Emory Int’l L. Rev. 95, 102 (2011).

7 Lautsi I, supra note 1, paras. 3, 27; see infra notes 65–69 and accompanying text.

8 Lautsi I, supra note 1, para. 70.

9 See id. paras. 55–57.

10 Id. para. 70.

11 ECHR Crucifix Case: 20 European Countries Support the Crucifix, supra note 1.

12 Id.

13For a full list of these twenty states, see id.

14 See Lautsi v. Italy, Eur. Ct. H.R. (2011) [hereinafter Lautsi II], http://www.echr.coe.int/ECHR/homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Lautsi” in the “Case Title” box and “Italy” in the “Respondent State” box).

15Salazar v. Buono, 130 S. Ct. 1803 (2010).

16 Id. at 1812.

17 Id. at 1811.

18 Id. at 1812.

19 Id. The signs have since been removed and the cross currently stands unmarked.

20 Id.; U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion . . . .”).

21 Salazar, 130 S. Ct. at 1812.

22 Id. at 1813.

23Buono v. Kempthorne (Buono IV), 502 F.3d 1069, 1077–78 (9th Cir. 2009); see Adam Linkner, How Salazar v. Buono Synthesizes Establishment Clause Precedent into a Single Test, 25 Emory Int’l L. Rev. 57, 79 (2011).

24 Salazar, 130 S. Ct. at 1814.

25 Id. at 1821.

26 Id. at 1814–21.

27 Id. at 1809.

28 Id. at 1820–21.

29 Id. at 1816–17 (emphasis omitted).

30 Id. at 1817.

31 Id.

32U.S. Const. amend. I.

33 See John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 223–40 (3d ed. 2011).

34 See, e.g., Bundesverfassungsgerichts [BVerfG] [Federal Constitutional Court] May 16, 1995, 93 entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (Ger.) [hereinafter German Crucifix Case], available at http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=615 (translating a classroom crucifix case) (ruling against crucifixes in Bavarian public schools). See generally Religious Education in Public Schools: Study of Comparative Law (José Luiz Martinez López-Muniz et al. eds., 2006) (discussing European education and religious liberty issues).

35 See John Witte, Jr., Facts and Fictions About the History of Separation of Church and State, 48 J. Church & St. 15, 15–46 (2006).

36 Id.

37 See Witte & Nichols, supra note 33, at 186.

38 See George Letsas, A Theory of Interpretation of the European Convention on Human Rights 80 (2007); Howard C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence 13 (1996).

39 See infra text accompanying notes 128–56.

40 See infra text accompanying notes 387–89.

41See infra text accompanying notes 411–23.

42 See Linkner, supra note 23, at 57–65.

43 Id. at 58–59.

44 See id. at 70–72.

45 Id. at 59.

46 Id.

47 Id.

48 Id.

49 See id. at 81–83.

50 Id. at 92.

51 See id. passim; Trunk v. City of San Diego, 629 F.3d 1099, 1125 (9th Cir. 2011).

52 See Pin, supra note 6, at 110–35.

53 Id. at 117–20.

54 See id. at 141–49.

55 See id. passim.

56 See René Girard, Violence and the Sacred (1977); Samuel Azariah, The Violence of Religious Intolerance, World Council of Churches, http://www.wcc-coe.org/wcc/what/jpc/echoes/echoes-18-06.html (last visited Apr. 2, 2011).

57 See Convention for the Protection of Human Rights and Fundamental Freedoms art. 46, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights] (entered into force Sept. 3, 1953).

58 See generally Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby, opened for signature May 11, 1994, E.T.S. 155 [hereinafter Protocol 11] (entered into force Nov. 1, 1998) (amending the European Convention on Human Rights).

59 Id. art. 19.

60 See Role of the Registry, Eur. Ct. Hum. Rts., http://www.echr.coe.int/ECHR/EN/Header/The+Court/How+the+Court+works/The+Registry (last visited Mar. 20, 2011).

61 European Court of Human Rights, The Court in Brief (2010), available at http://www.echr.coe.int/NR/rdonlyres/DF074FE4-96C2-4384-BFF6-404AAF5BC585/0/Brochure_en_bref_EN.pdf.

62 Id.

63 See Nina-Louisa Arold, The Legal Culture of the European Court of Human Rights 31 (2007) (analyzing the Court’s general workings and relationships with member states).

64European Convention on Human Rights, supra note 57, art. 9.

65 Id. art. 9.

66Buscarini v. San Marino, 1999-I Eur. Ct. H.R. 605, 616.

67 David J. Harris, Michael O’Boyle & Colin Warbrick, Law of the European Convention on Human Rights 435 (2d ed. 2009); Theory and Practice of the European Convention on Human Rights 768 (Pieter van Dijk et al. eds., 4th ed. 2006).

68Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 2, opened for signature Mar. 3, 1952, E.T.S. 009 [hereinafter Protocol 1] (entered into force May 18, 1954).

69 Id.

70European Convention on Human Rights, supra note 57, art. 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”).

71 Id. art. 10(1) (“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”).

72 See Nina-Louisa Arold, Promoting Normative Cracks in the Surface: Strasbourg Changing Swedish Legal Culture, in Law and Religion in the 21st Century: Nordic Perspectives 275, 278 (Lisbet Christoffersen et al. eds., 2010).

73 Pub. Relations Unit, European Court of Human Rights, 50 Years of Activity: The European Court of Human Rights—Some Facts and Figures 15 (2010) [hereinafter 50 Years of Activity], available at http://www.echr.coe.int/NR/rdonlyres/ACD46A0F-615A-48B9-89D6-8480AFCC29FD/0/FactsAndFiguresENAvril2010.pdf.

74 Pub. Relations Unit, European Court of Human Rights, Violation by Article and by Country 2 (2009), available at http://www.echr.coe.int/NR/rdonlyres/E8F73EC8-AF6A-4205-BAF2-F6043F67F651/0/Tableau_de_violations_2009_ENG.pdf.

75 50 Years of Activity, supra note 73, at 15 (noting 4008 cases that concerned length of proceedings and an additional 3207 cases that concerned the right to a fair and timely trial under Article 6 of the ECHR between 1959 and 2009).

76 See Pub. Relations Unit, European Court of Human Rights, Pending Applications Allocated to a Judicial Formation (2010), available at http://www.echr.coe.int/NR/rdonlyres/99F89D38-902E-4725-9D3D-4A8BB74A7401/0/Pending_applications_chart.pdf (in December 2010, there were 139,650 pending applications).

77 See generally Brett G. Scharffs, Symposium Introduction: The Freedom of Religion and Belief Jurisprudence of the European Court of Human Rights: Legal, Moral, Political and Religions Perspectives, 26 J.L. & Religion 249 (2010).

78 But see Pub. Relations Unit, European Court of Human Rights, Statistics 2010 (2010), available at http://www.echr.coe.int/NR/rdonlyres/8699082A-A7B9-47E2-893F-5685A72B78FB/0/Statistics_2010.pdf (discussing that between 1959 and 2009, the Court delivered a total of 12,198 judgments, while between January and September 2010, it produced 1442 judgments and 24,321 admissibility decisions).

79European Convention on Human Rights, supra note 57, art. 35 (“The Court shall declare inadmissible any individual application . . . if it considers that: . . . (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”).

80 Pub. Relations Unit, European Court of Human Rights, The ECHR in 50 Questions 6 (2010) [hereinafter The ECHR in 50 Questions], available at http://www.echr.coe.int/NR/rdonlyres/5C53ADA4-80F8-42CB-B8BD-CBBB781F42C8/0/FAQ_COUL_ENG_A5_OCT2010.pdf.

81 See Arold, supra note 63, at 55 (discussing the influence of different legal traditions that the judges share on the Court).

82 See European Convention on Human Rights, supra note 57, art. 43(1) (“Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.”).

83 The ECHR in 50 Questions, supra note 80, at 6.

84 See supra text accompanying note 14.

85 See Arold, supra note 63, at 55.

86The margin of appreciation is frequently used by the Court. See Yourow, supra note 38, at 24 (providing an extensive study of the doctrine and describing its development in two time periods: before and after 1979). The doctrine’s scope was expanded during the later years. See, e.g., Hatton v. United Kingdom, 2003-VIII Eur. Ct. H.R. 189 (concerning flight noise interruptions of sleep); Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) (1976) (concerning obscene publications).

87 See Yourow, supra note 38, at 13.

88See id.

89 See Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) 6, 18 (1993).

90 See id. at 20–22.

91Otto-Preminger-Institut v. Austria, 295-A Eur. Ct. H.R. (ser. A) (1994).

92 Id. at 5–6.

93 Id. at 8–9.

94 Id. at 19–21.

95 Id. at 20–21.

96 Id.

97 Id.

98Pretty v United Kingdom, 2002-III Eur. Ct. H.R. 255.

99 See id. at 281–82.

100 See id.

101Cha’are Shalom Ve Tzedek v. France, 2000-VII Eur. Ct. H.R. 231.

102 Id. at 259.

103 Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) 6 (1993). The Kokkinakis Court made clear that, while unjustified in this case, general restrictions on religious manifestations can be necessary to protect the pluralism of a society:The fundamental nature of the rights guaranteed in Article 9 para. 1 (art. 9-1) is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11 (art. 8-2, art. 10-2, art. 11-2) which cover all the rights mentioned in the first paragraphs of those Articles (art. 8-1, art. 10-1, art. 11-1), that of Article 9 (art. 9-1) refers only to “freedom to manifest one’s religion or belief[.]” In so doing, it recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.Id. at 18.

104 Id.

105Jehovah’s Witnesses of Moscow v. Russia, Eur. Ct. H.R. (2010), http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Jehovah’s Witnesses of Moscow” in the “Case Title” box and “Russia” in the “Respondent State” box) (currently pending for referral to the Grand Chamber).

106 Id. para. 99 (citations omitted).

107Folgerø v. Norway, Eur. Ct. H.R. (2007) [hereinafter Folgerø], http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Folgerø” in the “Case Title” box and “Norway” in the “Respondent State” box).

108Grzelak v. Poland, Eur. Ct. H.R. (2010) [hereinafter Grzelak], http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Grzelak” in the “Case Title” box and “Poland” in the “Respondent State” box).

109 Id. paras. 6–25; Folgerø, supra note 107, para. 3.

110 Folgerø, supra note 107, para. 3.

111 Id. para. 30.

112 Id.

113 Id. para. 102.

114 Id.

115 Id.

116Grzelak, supra note 108, para. 7.

117 Id.

118 Id. paras. 7, 12.

119 Id. paras. 12, 19.

120 Id. paras. 21–25.

121 Id. para. 87.

122 Id. paras. 95, 99 (citation omitted).

123Folgerø, supra note 107, paras. 53–102.

124 Grzelak, supra note 108, paras. 49–101.

125 See id. paras. 84–101; Folgerø, supra note 107, paras. 85–105.

126 See Folgerø, supra note 107, paras. 66–67; Grzelak, supra note 108, paras. 85–99.

127Lautsi I, supra note 1, para. 7.

128Dogru v. France, Eur. Ct. H.R. (2008) [hereinafter Dogru], http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Dogru” in the “Case Title” box and “France” in the “Respondent State” box); Şahin v. Turkey, 2005-XI Eur. Ct. H.R. 173; Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447.

129 Dogru, supra note 128, paras. 75, 78; Şahin, 2005-XI Eur. Ct. H.R. at 205–06; Dahlab, 2001-V Eur. Ct. H.R. at 463–64.

130 Dahlab, 2001-V Eur. Ct. H.R. at 463; Dogru, supra note 128, para. 75; Şahin, 2005-XI Eur. Ct. H.R. at 208.

131 Dahlab, 2001-V Eur. Ct. H.R. 447.

132 Id. at 451–52.

133 Id. at 458.

134 Id. at 463.

135 Id.

136 Dogru, supra note 128.

137 Id. para. 7.

138 Id. para. 8.

139 See id. paras. 11–12.

140 Id. para. 8.

141 Id. paras. 1, 2, 12–46.

142 Id. para. 75.

143 Id. para. 63 (citation omitted).

144Şahin v. Turkey, 2005-XI Eur. Ct. H.R. 173.

145 Id. at 181.

146 Id. at 182.

147 Id. at 179–80, 182–83.

148 Id. at 180, 205–08.

149 Id. at 185–86.

150 Id. at 187–89.

151 Id. at 192–94.

152 See id.

153 Id. at 192.

154 Id.

155 Id. at 192–94.

156 Id. at 203–04 (emphases added) (citations omitted).

157 Id. at 204–06.

158 Id. at 205–06.

159 Id.

160 Id. at 217.

161 See id. at 221–22 (Tulkens, J., dissenting).

162 Id. at 222.

163 Id. at 221–22.

164 See id. at 192–94 (majority opinion).

165Id. at 205–06.

166Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447, 463.

167 See generally Folgerø, supra note 107, paras. 51–57, 86; Grzelak, supra note 108.

168 See generally Dahlab, 2001-V Eur. Ct. H.R. 447; Dogru, supra note 128; Şahin, 2005-XI Eur. Ct. H.R. 173.

169 See Lautsi I, supra note 1, paras. 38–41.

170 See id. para. 41.

171 See supra notes 91–97 and accompanying text.

172Vajnai v. Hungary, Eur. Ct. H.R. (2008), http://www.echr.coe.int/echr/Homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Vajnai” in the “Case Title” box and “Hungary” in the “Respondent State” box).

173 Id. para. 6.

174 Id. paras. 7–8.

175 Id. para. 3.

176 Id. para. 58.

177 Id. para. 49 (citation omitted).

178 Id. para. 54.

179 Id. para. 57.

180 Id. para. 58.

181 See id. paras. 48–58.

182 See id.

183 Id. para. 49.

184 See Pin, supra note 6, at 102–04.

185 See Witte & Nichols, supra note 33, at 287–94.

186Home of the Court, Sup. Ct. Hist. Soc’y, http://www.supremecourthistory.org/history-of-the-court/home-of-the-court (last visited Mar. 20, 2011).

187 See Witte & Nichols, supra note 33, at 227–36.

188U.S. Const. amend. I.

189 Witte & Nichols, supra note 33, at 89.

190 See id. at 109–10.

191Reuben Quick Bear v. Leupp, 210 U.S. 50, 82 (1908); Bradfield v. Roberts, 175 U.S. 291, 300 (1899).

192Everson v. Bd. of Educ., 330 U.S. 1 (1947).

193 Id. at 13–15.

194 Id. at 16 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)).

195For a list of cases, see Witte & Nichols, supra note 33, at 305–38.

196 Id. at 223.

197Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).

198Id.

199See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992); Edwards v. Aguillard, 482 U.S. 578 (1987); Wallace v. Jaffree, 472 U.S. 38 (1985); Stone v. Graham, 449 U.S. 39 (1980); Chamberlain v. Dade County, 377 U.S. 402 (1964); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962); Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948).

200Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).

201 Id.

202 Id.

203 Witte & Nichols, supra note 33, at 177–81.

204 Id. at 223.

205 Id.

206 Id.

207 Id.

208 Id.

209 Id. at 224.

210 See generally Braunfeld v. Brown, 366 U.S. 599 (1961) (holding that a statute disallowing sales on Sunday does not violate free exercise rights of Jewish appellant, who is a strict Saturday Sabbatarian); Gallagher v. Crown Kosher Super Mkt. of Mass., Inc., 366 U.S. 617 (1961) (holding that a Sunday closing law does not violate free exercise rights of owner of kosher Jewish supermarket, Orthodox Jewish customers, or rabbis with a duty to inspect kosher markets per Jewish dietary laws); McGowan v. Maryland, 366 U.S. 420 (1961) (upholding a state law proscribing certain business and commercial activity on Sunday against Establishment Clause challenge); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961) (holding Sunday closing laws do not violate the Establishment Clause).

211 See Salazar v. Buono, 130 S. Ct. 1803 (2010); Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009); Van Orden v. Perry, 545 U.S. 677 (2005); McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995); County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984); Stone v. Graham, 449 U.S. 39 (1980).

212 See Van Orden, 545 U.S. 677; McCreary County, 545 U.S. 844.

213 Stone, 449 U.S. at 40–41.

214 Id.

215 Id.

216 Id. at 41.

217 Id. at 42.

218 Id. at 40 (quoting Ky. Rev. Stat. Ann. § 158.178 (West 2010)).

219 Id. at 40–41.

220 Id. at 41.

221 Id. at 42.

222 Id.

223 Id.

224Lynch v. Donnelly, 465 U.S. 668, 668 (1984).

225 Id.

226 Id. at 671–72.

227 Id. at 671.

228 Id.

229 Id.

230 Id.

231 Id.

232 Id.

233 Id.

234 Id. at 672.

235 Id. at 674.

236 Id.

237 Id. at 685.

238 Id. at 692–93 (O’Connor, J., concurring).

239 Id.

240 Id. at 685 (majority opinion).

241 Id. at 669, 716 (quoting Arthur E. Sutherland, Book Review, 40 Ind. L.J. 83, 86 (1964)).

242 Id. at 687.

243County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989).

244 Id. at 580.

245 Id.

246 Id.

247 Id. at 573.

248 Id.

249 Id. at 580.

250 Id. at 581.

251 Id. at 587–88.

252 Id. at 579.

253 Id. at 598.

254 Id. at 598–99.

255 Id. at 600.

256 Id. at 601–02.

257 Id. at 579.

258 Id. at 587.

259 Id.

260 Id. at 613–20.

261 Id. at 620–21.

262Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995).

263 Id. at 757.

264 Id. at 757–58.

265 Id. at 758.

266 Id.

267 Id.

268 Id. at 758–59.

269 Id.

270 Id. at 753.

271 Id. at 760.

272 Id. at 753.

273 Id. at 764–65.

274 Id.

275 Id.

276 Id. at 770–71 (Thomas, J., concurring).

277 Id.

278 Id.

279 Id.

280McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005).

281Van Orden v. Perry, 545 U.S. 677 (2005).

282 McCreary County, 545 U.S. at 858.

283 Van Orden, 545 U.S. at 677.

284 McCreary County, 545 U.S. at 850–81.

285 Van Orden, 545 U.S. at 681–92.

286 Id. at 692 (Scalia, J., concurring); id. at 737 (Stevens, Souter & Ginsburg, JJ., dissenting); McCreary County, 545 U.S. at 885 (Rehnquist, C.J., Scalia, Kennedy & Thomas, JJ., dissenting).

287 Van Orden, 545 U.S. at 692 (Scalia, J., concurring); id. at 698 (Breyer, J., concurring in the judgment); id. at 737 (Stevens, Souter & Ginsburg, JJ., dissenting); McCreary County, 545 U.S. at 881 (O’Connor, J., concurring); id. at 885 (Rehnquist, C.J., Scalia, Kennedy & Thomas, JJ., dissenting).

288 McCreary County, 545 U.S. at 849.

289 Van Orden, 545 U.S. at 698–706. (Breyer, J., concurring in the judgment).

290 Id. at 678 (Breyer, J., concurring in the judgment).

291 McCreary County, 545 U.S. at 850–81.

292 Id. at 851–52.

293 Id. at 853–54.

294 Id. at 853 (quoting Defendants’ Exhibit 9 in Memorandum in Support of Defendants’ Motion to Dismiss at 1–3, 6, Am. Civil Liberties Union of Ky. v. McCreary County, 96 F. Supp. 2d 679 (E.D. Ky. 2000) (No. Civ. A. 99-507)).

295 Id. at 853–54.

296 Id. at 855–56.

297 Id.

298 Id. at 857.

299 Id. at 856.

300 Id.

301 Id. at 856 (quoting Application to Petition for Certiorari at 180a, McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005)).

302 Id. at 864–65.

303 Id. at 874–75.

304 Id. at 864–75.

305 Id. at 864–65.

306 Id. at 869.

307 Id. at 870 (quoting Defendants’ Exhibit 9 in Memorandum in Support of Defendants’ Motion to Dismiss at 1–3, 6, Am. Civil Liberties Union of Ky. v. McCreary County, 96 F. Supp. 2d 679 (E.D. Ky. 2000) (No. Civ. A. 99-507)).

308 Id. at 869.

309 Id. at 871.

310 Id. at 870.

311 Id. at 871.

312 Id. at 869–74.

313 Id.

314 Id. at 881.

315See Van Orden v. Perry, 545 U.S. 677, 677–92 (2005).

316 Id.

317 Id.

318 Id.

319 Id.

320 Id. at 677.

321 Id.

322 Id. at 683.

323 Id.

324 Id.

325 Id. at 685–86.

326 Id. at 690.

327 Id.

328 Id. at 689.

329 Id. at 683 (quoting Sch. Dist. Of Abington Twp. v. Schempp, 374 U.S. 203, 212–13 (1963); Zorach v. Clauson, 343 U.S. 306, 313 (1952)).

330 Id. at 701.

331 Id. at 682.

332 Id.

333 Id. at 681.

334 Id. at 689.

335 Id. at 691–92.

336Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).

337 Id.

338 Id. at 1129.

339 Id.

340 Id.

341 Id.

342 Id.

343 Id.

344 Id. at 1139.

345 Id. at 1125.

346 Id.

347 Id. at 1127 (quoting Rosenberger v. Rector, 515 U.S. 819, 833 (1995)).

348 Id. at 1136.

349 Id. at 1128.

350 Id. at 1131 (quoting Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting)).

351 Id. at 1138.

352 Id. at 1125.

353 Id. at 1127 (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000)).

354 Id. at 1125.

355 Id. at 1140.

356 Id.

357 Id. at 1125.

358 Id. at 1140.

359 Id. at 1132.

360 Id.

361 Id. at 1125.

362 See id.

363Salazar v. Buono, 130 S. Ct. 1803 (2010).

364 Id. at 1826.

365 Id. at 1807.

366Id. at 1834.

367 Buono v. Norton (Buono II), 371 F.3d 543, 550 (9th Cir. 2004).

368 Salazar, 130 S. Ct. at 1803.

369 See generally Nelson Tebbe, Privatizing and Publicizing Speech, 104 Nw. U. L. Rev. Colloquy 70 (2009).

370 Salazar, 130 S. Ct. at 1803.

371 Id.

372 Id. at 1808.

373 Id. at 1815.

374 Id. at 1814, 1817.

375 Id. at 1815.

376 Id. at 1816–17.

377 Id. at 1817.

378 Id. at 1821.

379 Id. (Alito, J., concurring).

380 Id. at 1822.

381 Id. at 1824 (Scalia & Thomas, JJ., concurring).

382 Id.

383 Id. at 1828 (Stevens, Ginsburg & Sotomayor, JJ., dissenting).

384 Id. at 1841.

385 Id. at 1837.

386 Id. at 1843 (Breyer, J., dissenting).

387Salazar, 130 S. Ct. 1803; Stone v. Graham, 449 U.S. 39 (1980).

388 See generally Linkner, supra note 23.

389 See Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009); Van Orden v. Perry, 545 U.S. 677 (2005).

390Lynch v. Donnelly, 465 U.S. 668, 716 (1984) (quoting Arthur E. Sutherland, Book Review, 40 Ind. L.J. 83, 86 (1964)).

391 See McCreary County v. Am. Civil Liberties Union of Ky., 544 U.S. 844 (2005); Stone, 449 U.S. at 39.

392 Pleasant Grove City, 129 S. Ct. at 1125; Van Orden, 545 U.S. at 677; Lynch, 465 U.S. at 668; Buono II, 371 F.3d 543, 543 (9th Cir. 2004).

393 McCreary County, 544 U.S. at 844; County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 573 (1989); Stone v. Graham, 449 U.S. 39, 39 (1980).

394 Marianne M. Jennings, Real Estate Law 536 (2008).

395 Id. at 344.

396 See, e.g., Ga. Code Ann. § 9-3-24 (West 2011); Mass. Gen. Laws. Ann. ch. 260, § 2A (West 2011); N.Y. Civil Practice Law § 213 (McKinney 2011).

397 Gregory C. Sisk et al., Litigation with the Federal Government 529 (4th ed. 2006).

398Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).

399McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 858 (2005); Stone v. Graham, 449 U.S. 39, 39 (1980).

400Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1126 (2009); Van Orden v. Perry, 545 U.S. 677, 681 (2005).

401Lynch v. Donnelly, 465 U.S. 668, 672 (1984).

402County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 578–79 (1989).

403Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995).

404 Pleasant Grove City, 129 S. Ct. at 1126.

405 Lynch, 465 U.S. at 668.

406 McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 852 (2005).

407 Stone v. Graham, 449 U.S. 39, 39 (1980).

408County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 635 (1989).

409 Id. at 573.

410Van Orden v. Perry, 545 U.S. 677, 707 (2005).

411Lynch v. Donnelly, 465 U.S. 668 (1984).

412 County of Allegheny, 492 U.S. at 573; Stone, 449 U.S. at 39.

413 County of Allegheny, 492 U.S. at 675.

414McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 852 (2005).

415County of Allegheny, 492 U.S. at 573.

416 Van Orden v. Perry, 545 U.S. 677, 677 (2005).

417Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1134 (2009).

418 Buono II, 371 F.3d 543, 549 (9th Cir. 2004).

419Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995).

420Stone v. Graham, 449 U.S. 39 (1980).

421Lee v. Weisman, 505 U.S. 577 (1992); Wallace v. Jaffree, 472 U.S. 38 (1985); Engel v. Vitale, 370 U.S. 421 (1962).

422See McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005).

423See Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1129 (2009) (involving Ten Commandments in large collection of mostly-secular outdoor art); County of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 635 (1989) (involving Christmas tree among other religious and secular holiday decorations).

424 See County of Allegheny, 492 U.S. at 635.

425 John Witte, Jr., Lift High the Cross? Religion in Public Spaces, Huffington Post (Mar. 27, 2011, 9:11 PM), http://www.huffingtonpost.com/john-witte-jr/lift-high-the-cross-lauts_b_840790.html.

426 See Salazar v. Buono, 130 S. Ct. 1803, 1820 (2010).

427Trunk v. San Diego, 629 F.3d 1099, 1125 (9th Cir. 2011).

428Lautsi II, supra note 14, passim.

429See id. paras. 63–66.

430See id. paras. 73–74.

431See id. paras. 67, 71.

432Id. para. 68.

433See supra Part II.D–E.

434See supra Part II.

435Lautsi II, supra note 14, para. 1.1 (Bonello, J., concurring).

436See supra Part II.

437Lautsi II, supra note 14, para. 67.

438See generally Stuart D. Poppel, Federalism, Fundamental Fairness, and the Religion Clauses, 25 Cumb. L. Rev. 247 (1995) (discussing the relationship between religion and the doctrine of federalism).

439See supra Part II.

440See Lautsi II, supra note 14, para. 68.

441Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).

442See supra Part II.

443Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 463.

444See Lautsi II, supra note 14, paras. 63–77.

445Cf. Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).

446Cf. id. at 1131 (quoting Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting)).

447See id.

448See Lautsi II, supra note 14, paras. 63–77.

449Id.

450Id.