The Italian constitutional framework might be of interest for those who reflect on the avenues of religious and social integration in the early 21st century. Though the 1948 Constitution has secured ample religious freedom guarantees for citizens and non citizens alike, recent years have put increasing pressure on Italian legal infrastructure

A. Pin

L.P. Vanoni

English

AIR Universita degli studi di Milano

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TALK ABOUT: LAW AND RELIGION 
Working to secure the blessings of freedom 
or religion or belief for all people 
 
M A R C H  1 6 ,  2 0 2 0  
Protecting Religious Freedom from Fear: 
Italian Lessons on Islam, the Public Sphere, 
and the Limits of Judicial Review 
 
Post by Andrea Pin, Associate Professor of Comparative Public Law, University of 
Padua, and Luca Pietro Vanoni, Associate Professor of Comparative Public 
Law,  University of Milan 
The Italian constitutional framework might be of interest for those who reflect on the 
avenues of religious and social integration in the early 21st century. Though the 1948 
Constitution has secured ample religious freedom guarantees for citizens and noncitizens 
alike, recent years have put increasing pressure on Italian legal infrastructure. 
Church and State in Italy: Friends or Foes? 
Despite unification succeeded against the will of the Pope in the nineteenth century 
under the Kingdom of Piedmont, Italy has always been quintessentially Catholic. Even 
Mussolini boosted his regime by blending Fascism, Italian nationalism, and the national 
Catholic identity. Italian politics between the 1940s and the 1990s was largely controlled 
by the Christian Democratic Party. Romans and even off-the-city Italians alike still 
gather each Sunday to attend the Pope’s address at the twelve o’clock Angelus in 
Vatican’s St. Peter’s square. 
The Italian State and the Papacy struggled also in the twentieth century, when the 
secular culture heralded by the Communist Party, a few atheist thinkers, and some 
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intellectual figures mainly of Protestant lineage wrestled with the overwhelming 
Catholic political culture. After freedom of speech and association were restored in 
1948, conflicts between Catholics and secularists monopolized religious freedom 
debates. By far, the biggest issue at stake was the political role of Catholicism, with 
secularists promoting religious freedom and freedom from religion for everyone, as well 
as confining the role of religion within the private sphere. 
The influx of early immigrants in the 1970s did not alter the scenario. Muslim or 
Orthodox Christian immigrants, generally wrapped up in finding employment and settling 
into a new culture, were left out of religious freedom debates. Eventually, the 1980s 
rocked the Italian boat. In 1984, a Socialist-led coalition signed an agreement between 
Italy and the Holy See in pursuance of Article 7 of the Constitution. The new Church and 
State agreement retired the centuries-old status of Catholicism as Italy’s official 
religion. The new, more egalitarian nature of church-state affairs triggered two effects, 
discussed below. 
Religious Freedom and State-Religion Relationships: The Equalitarian Approach 
First, under Article 8 of the Constitution many religious minorities concluded their own 
agreements with the state following the path opened by the new State-Holy See 
agreement. Church-state agreements started with longstanding Italian religious 
minorities, namely the Waldensians and the Jewish Communities, and later included 
groups who lacked roots in Italian history, such as Buddhists, Hindus, or Latter-day 
Saints. These pacts bestowed special protections, including special autonomy and tax 
benefits, and permitted religious personnel to solemnize civil marriages and provide 
spiritual comfort to the members of their churches who were hospitalized, were 
institutionalized, or served in the military. 
Second, the 1984 State-Holy See agreement triggered the Italian Constitutional Court’s 
activism in the field of religious freedom. The first wave of constitutional cases starting 
in the late 1970s had emphasized that the freedom of religion encompassed freedom of 
conscience, thereby protecting conscientious objections to military service. The-post-
1984 wave was more daring and theoretical. Borrowing from the lexicon of separatist 
France, the Court first established that the Italian Constitution commanded official 
religious neutrality but then defined neutrality with a special twist. Unlike the 
French laïcité, which promotes equality through the neutralization of the public space, 
the Italian laicità overall ensured equality and fostered pluralism without pushing 
religion out of the public sphere (see the Constitutional Court’s seminal judgments nr. 
203 of 1989; 13 of 1991; 440 of 1995; 235 of 1997; 329 of 1997). 
For many years, Italy saw more of the same. The state and religion agreements 
mushroomed but virtually copycatted the earlier ones. Some Constitutional Court’s 
rulings used laicità to target penal rules that privileged Catholicism but preserved the 
protection of religion through penal sanctions. In general, both political and judicial 
bodies focused more on equality than on pluralism and the need to accommodate 
religious diversity. Yet, longstanding fights between secularists and Catholics survived 
and occupied public debate, pushing the issues raised by minority religions into the 
background. For example, after winning early battles for conscientious objection to 
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military service in the 1970s, Jehovah’s Witnesses have still not been able to push their 
agreement with the State to finality, despite significant number of believers. 
Muslims, State Institutions, and the Civil Society 
Muslims have faced an even more difficult road, which is worth analyzing in detail. Over 
the years, Muslims have failed to get an agreement with the State. Between the 1990s 
and early 2000s, various Muslim groups proposed alternative agreements but refused to 
gather into a unified body that would represent the entire Islamic community. The 9/11 
attack worsened their situation and further cast a very dark cloud on the integration of 
Islam in Italy, where many Muslims were immigrants with visibly different backgrounds 
and lifestyles, and an even darker cloud on the likelihood that Muslims and the State 
would sit around a table and agree on a list of mutual rights, duties, and forms of 
cooperation. Several governments, formed by different political parties, explored other 
forms of dialogue with Islam but were more symbolic than effective. One attempt after 
another failed to gather all the prevailing Islamic voices together with the Government 
and effectively brought negotiations to a stalemate. 
Though national negotiations stalled, private and local accommodations flourished. Italy 
is replete with relatively successful attempts to accommodate Muslims’ needs. 
Experiments include a Mosque co-financed and co-run by a local government, as well as 
factories partially reshaped to allow ritual prayers. 
The political and media’s emphasis on integrating Islam, however, has had unintended 
consequences. The close institutional and media attention paid to Muslims was never 
seen before in any Italian traditional religion-state relationship. The special treatment 
reserved for Islam confirmed those who thought that this religion deserved special 
attention. The ISIS-inspired attacks that have taken place in Europe since 2015 only 
surfaced in Italy in 2016, when two police officers killed a Tunisian national who had 
rammed people in a market in Berlin a few days before. But the echoes of terrorist 
attacks in Europe certainly affected the reputation of Islam at-large in Italy. 
While the agreement between Islam and the state disappeared from the horizon years 
before, wider political and social hostilities toward Muslims have gained traction lately, 
spilling into local political agendas. Two Italian regions (Lombardy and Veneto) utilized 
their limited legislative powers on land-use planning to discourage the establishment of 
Muslim buildings and institutions by conditioning their permits on the use of Italian 
language during prayers or the pre-existence of an agreement with the State. 
Since 2016, the Constitutional Court has played an unusually active role in protecting 
religious freedom for Muslims. The Court normally has a secondary role in the field of 
religious freedom. With a few exceptions, it worked on the edges, e.g., trimming down 
outdated penal provisions, or provided more theoretical substance to the discussion on 
the secularization of the public sphere. For procedural reasons, the Court was even 
almost absent from the Lautsi case on the crucifix in classroom, which still stands out as 
the religious freedom equivalent of pizza for the Italian reputation worldwide. 
Surprisingly, however, the Constitutional Court has been patrolling the freedom of 
Muslims quite attentively. Notably, it has struck down provisions that, either directly or 
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indirectly, affected Islamic groups’ freedom to worship (judgments no. 63 of 2016; 254 
of 2019). This is certainly very positive, but it might not be enough. 
The Italian Constitutional framework for welfare is complex. It envisions a strong 
partnership of private and public institutions. In 1948, when the Republic was born, such 
players were mostly Catholic in nature or inspiration, though a few Protestant and 
Jewish institutions played a marginal role. Old public institutions founded during the 
Fascist period (such as the Institute for Industrial Reconstruction) were redirected to 
serve the Constitution. The Communist Party also set up a strong pipeline of unions, 
institutions, and cultural centers. 
However, the traditional collaboration between private and public institutions in Italy 
has not supported Islam. With few exceptions, distrust for Islam has taken hold of 
various strata of the Italian society. This is slowly turning into a widespread rejection of 
Islamic institutions and initiatives. No matter what the Constitutional Court does or says, 
it cannot force reconciliation and mutual understanding; it cannot build trust. A 
complex network like the Italian welfare system works well only if its components are 
willing to cooperate. The Constitutional Court itself has identified that loyal cooperation 
among social institutions is necessary, but cooperation is hardly subject to judicial 
review and certainly cannot be enforced. 
Religious Freedom and a Lively Public Sphere: What is Needed 
Years ago, ISIS tried to create a rift within Western societies. By targeting civilians, it 
aimed to widen the gap between Muslims and non-Muslims through triggering fear. Non-
Muslims would thus start fearing Muslims, who, in turn, would perceive themselves as 
outliers and consider radicalization. This would throw the West into a spiral of mutual 
fear and extremism. Public institutions, and especially courts, may not be biased, but 
they can hardly convince people not to fear their equals. This is a hard work, which only 
civil coexistence can achieve. 
This is a challenge that will confront Italy for many years to come, no matter how the 
Constitutional Court decides a case or which political majority wins. If Italian society 
does not sew up the gap that now divides Islam from the rest, then pushing religion – any 
religion – out of the public social sphere may become the only viable alternative. But all 
religions and all religious people would pay a very high price for this alternative. Even 
nonreligious people would also lose something: a society that does not accept religious 
viewpoints necessarily restricts political and cultural narratives for everyone. Thus, the 
challenge of integrating Islam must be solved in order to ensure the survival of a lively 
public sphere. 
 


Protecting Religious Freedom from Fear : Italian Lessons on Islam, the Public Sphere, and the Limits of Judicial Review

https://air.unimi.it/bitstream/2434/724646/2/Blog_PinVano.pdf

Protecting Religious Freedom from Fear : Italian Lessons on Islam, the Public Sphere, and the Limits of Judicial Review

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