Imperfect Simmetry. The Court of Strasbourg and the US Supreme Court on Religious Symbols in Public Spaces

Abstract

The article compares, on the issues of religious symbols in public space, the case law of the European Court of Human Rights, and that of the US Supreme Court. The enquiry aims at outlining a comparison between the contents of the decisions, not between the Courts: one is a constitutional court, the other an international court which in the late decades has been a breakthrough in the European system of guarantees. The main points emerged through the comparison are: first of all, the European Court, unlike the US SC, is clearly engaged in building a European secularism that leaves religious symbols outside the public space. The Strasbourg Court adopts a conception of secularism which, in principle, is very different from American secularism. Secondly, although in different ways, both Courts employ arguments based on tradition and history, to the detriment of individual and minority interests. Thirdly, there is a certain deference towards the choices made by national authorities: for the critics of the Roberts Court, this attitude deserves to be stigmatized in a constitutional jurisdiction.