Co.Co.A. 2018 - Islam in Constitutional Adjudication in Europe
Rationalist and religious worldviews are historically structural parts of European culture. The protection of religious and philosophical pluralism has become, consequently, a permanent feature of mainstream liberal constitutionalism. The secular principle – although quite differently interpreted and implemented domestically, even where official State religions are still part of law in the books – is still being regarded as the normative source of inspiration for national systems aiming at a balanced safeguard of equal protection of religious and philosophical communities, of individual freedom of conscience, founded on both philosophical and religious ground, and of worship. Nevertheless, in more recent times, secular and liberal constitutionalism in Europe as the mainstream ideal ordre public has been politically and judicially challenged in a variety of ways as a consequence of individual and collective practices and forms of behavior deriving from religious groups and, in particular, by members of Islamic communities; in a number of cases it appears that well established European liberal, plural and secular constitutionalism cannot properly accommodate Islam. Most state and European jurisdictions have been tested and the case law lends itself to various interpretations and constructions of the phenomenon which is relatively recent and needs to be dealt with in view of inevitable further cases of adjudication. Hence the interest for a comparative analysis of judicial decisions adopted by national Supreme and Constitutional Courts as well as by the two European Courts (ECTHR and CJEU) with regard to issues – involving religious regulations related to codes of conduct, family relations, dietary requirements, social behavior – affecting the (in)compatibility of Islam with constitutional rules at all levels and jurisdiction. The analysis is open to case law connected to other (minority) religions as well and applicable to Islam also.