Nationalism in the Judicialization and Culturalization of Religion: The Case of Religious Education in Greece

Abstract

Religious education (RE) is frequently a topic of intense political debate and a focal point of party politics in the Greek context. This article presents the latest chapter in political contestation over the teaching of religion in Greek public schools, one which entails a new dimension—that of intense judicialization. Since 2015, the issue of religious education in Greek public schools has been the subject of multiple court cases addressed by the Greek high court, the Council of State, with one case addressed by and one case pending before the European Court of Human Rights. Beyond teasing out links between Greek Orthodoxy and nationalism underpinning each of these cases, this article also seeks to locate this example of judicialization of politics and religion in a broader theoretical context. It engages with another phenomenon at play in the Greek case as in many other cases globally, the culturalization of religion. Through the example of the Greek legal battles over religious education, we see how the judicialization of a particular political question on religion (policy on RE) rests on a culturalization of religion, which, in the legal domain, entails a rebranding of ‘religion’ as ‘culture’ so as to protect ‘religion’ from limitations placed on it by expectations of liberal state neutrality. The inherent difficulties in defining religion and culture, both individually and in relation to one another, are fundamental to both the theoretical and the practical, socio-legal challenges arising from such developments.

The place of religion in the educational arena is amongst the most socially and politically volatile issues arising around the place of religion in the public sphere. It is a topic important to religious minorities seeking exemption from religious education in a faith other than their own, to religious majorities defensive of their right to learn about the majority faith in public schools, and to growing numbers of atheists calling for an overall secularized educational setting. It is a topic that is also important to educators, to parents, to minority and majority religious institutions, and to governments often struggling to find the right balance between their commitments to human rights norms regarding freedom of belief as set out in international treaties and conventions on the one hand, and on the other, their drive to maintain what Talal Asad (2006) calls the national ‘emotional inheritances’ firmly embedded in education systems.

In the Greek context, religious education (RE) is frequently a topic of intense political debate and a focal point of party politics. This article presents the latest chapter in political contestation over the teaching of religion in Greek public schools, which however entails a new dimension—that of intense judicialization of the Greek RE regime. Since 2015, the issue of religious education in Greek public schools has been the subject of six court cases addressed by the Greek high court, the Council of State (2018, 2018, 2019, 2019, 2022, and 2023), with one case addressed by the European Court of Human Rights (Papageorgiou v. Greece, 2018), and one currently awaiting hearing at the ECtHR. Beyond teasing out links between Greek Orthodoxy and nationalism underpinning each of these cases, this article also seeks to locate this example of judicialization of politics and religion in a broader theoretical context. It engages with another phenomenon at play in the Greek context as in many others globally, the culturalization of religion.

The culturalization of religion refers to efforts to ‘rebrand’ terms, concepts, objects that are, broadly speaking, understood as ‘religious’ in nature and content (e.g., the crucifix, or prayer, or a church), as elements of ‘culture’ (often used—in these efforts—interchangeably with ‘identity’ or ‘heritage’). However, the difficulty in defining ‘religion’ or ‘culture’ (both independently and in relation to one another), with any degree of legitimacy as ‘broadly understood’, is a fundamental feature of the many political and socio-legal challenges that arise from the so-called culturalization of religion. These rebranding efforts may be driven by a broad range of motives, including political, sociological, legal, and psychological, and a combination of the above, amongst others. In the legal and judicial domain, the culturalization of religion tends to have the aim of redefining ‘the religious’ as ‘culture’ (or, ‘heritage’), in order to ‘protect’ religion from limitations placed on it by the requirements of liberal statehood, particularly the requirement of non-discrimination on the basis of religion.

Through the example of the Greek legal battles over religious education, we see how the judicialization of a particular political question on religion (policy on RE) rests on one such example of a culturalization of religion. In the pages that follow, I will examine the concepts of judicialization of politics and of religion in relation to the management of religious education in the Greek context. This section includes a brief outline of the constitutional framework relevant to RE as well as a consideration of the evolution of Greek RE from parliament to courts (Section 1.1 and Section 1.2). All of the above serves as a basis for scrutiny of the expression of nationalism behind this example of judicialization of RE (1c). Section 2 draws attention to how, in turn, the judicialization of religion in this case rests on a culturalization of religion. After a brief introduction to the latter concept (2a), the Greek case is examined in broader context of expressions of judicialization of religion in the US and Europe, judicializations that also rest on the culturalization of religion. The article closes with a critical consideration of the concept of ‘judicial culturalization’ of religion, and of questions that arise from the latter concept.

1. The Judicialization of Politics and Religion in the Case of Greek Religious Education

The reliance on courts for addressing core moral predicaments, public policy questions, and political controversies has been described by Ran Hirshl (2006) as the ‘judicialization of politics’. The judicialization of politics is, according to Hirshl, one of the most significant phenomena of the late twentieth and early twenty-first century government; it is a ‘world-wide phenomenon’ of governments yielding difficult questions to courts, a phenomenon entailing ‘more adjudication, less administration’ (Vallinder 1994). Hirschl further describes the judicialization of ‘mega-politics’ as the transfer to courts of ‘matters of outright and utmost political significance that often define and divide whole polities … foundational collective identity questions, and nation-building processes pertaining to the very nature and definition of the body politic’ (Hirshl 2008, p. 94). The overturning of Roe v. Wade by the US Supreme Court may be understood as one example of such judicialization of mega-politics (more so than was the case for the original Roe judgement in 1973).

Several scholars have, building on the work of Hirshl and others, developed the concept of ‘judicialization of religion’ to describe ways in which courts are increasingly called upon to decide specifically on matters associated with religion (Richardson 2015, forthcoming; Mayrl 2018; Mayrl and Venny 2021). Roe v. Wade may be also considered an example of judicialization of religion for those who read the abortion issue as one fundamentally about religion1.

In the Greek context, recent developments in the field of RE may be aptly described as simultaneously the judicialization of mega-politics, and the judicialization of religion2. With regard to the former, RE is, for many, determinative of foundational Greek collective identity questions, and fundamental to the nation-building process. Here, Peter van der Veer’s dictum applies, which is as follows: ‘the location of religion in educating national subjects is a function of the location of religion in the imagination of the nation’ (Van der Veer 2011, p. 236). Meanwhile, as an expression of the judicialization of religion, RE in the Greek context represents for a vocal minority of Orthodox fundamentalists3 (and for a possibly large proportion of the population who is happily nominally Orthodox) a fundamental right of the majority Orthodox population to be educated in their faith, whilst for a growing minority, it represents an affront to the right of the non-Orthodox (whether religious minorities, agnostics or atheists) to be free from indoctrination. Thus, we have an issue of political import (nation-building) on the one hand, and on the other, an issue substantively about religion (or freedom therefrom), increasingly transferred to the domain of courts in the Greek case.

The transference of RE from parliament to courts has neither been sudden nor smooth. RE has been part of a perennial political tug-of-war for decades, and it has been a central part of the political project of nation-building for a century. The Greek revolution against the Ottoman Empire that led to the contemporary modern Greek state reflected Western Enlightenment ideals resisted by an Orthodox clergy operating under the millet system, since they perceived that secularization would lead to the delegitimization of the Church (Roudometof 2001, pp. 56–61). According to Nicos Mouzelis (1978, p. 61), many clerics joined the revolutionary cause when they realized its irreversibility4. The symbolic importance of those clergy members who did fight for Greek independence remains embedded in the memories and historical chronicles of many. One of the most renowned aspects of the revolution is the act of a Greek bishop, Germanos of Patra, who on the 25th of March 1821, raised as the banner (lavaron) of revolution the curtain of the sanctuary of the Cathedral of Patras (Rexine 1972, p. 203). It is for this reason that the 25th of March is now celebrated as Greek national independence day (not coincidentally, also the religious holiday of the Annunciation of the Virgin Mary). So, in spite of conflicting perspectives on the attitudes and actions of the clergy throughout the national revolution, the prevailing interpretation in school books and in popular opinion is that the Church saved the Greek nation throughout the four centuries of Ottoman rule.

This starts a process of a politicized religion becoming a cornerstone of modern Greek national collective identity (Manitakis 2000, p. 80). Greek Orthodox is, according to Sia Anagnostopoulou (2000), an ideological construct of the post-revolutionary years, not a preexisting ‘national value’. The myth of the ‘secret schools’ run by the Church under Ottoman rule to keep Greek identity alive has largely underpinned justifications for the continued teaching of Orthodoxy in Greek public schools, as well as for the morning prayer in schools and the display of religious icons in all classrooms. Well beyond the teaching of RE, the Greek school is a space where students are instructed directly and indirectly in the centrality of Orthodoxy to Greek national identity. All of the above finds justification in the Greek constitutional framework for the teaching of RE.

1.1. The Contested Constitutional Framework for the Religious Education Regime

The Constitution currently in effect in Greece is that drafted in 1974 following the end of a military dictatorship; it came into effect in 1975, and underwent amendments in 1986, 2001, 2008, and 2019. However, since its 1974 formulation, the Constitution of Greece is consistently presented ‘In the name of the Holy and Consubstantial and Indivisible Trinity’; these are the first words the reader encounters under the titular ‘The Constitution of Greece’. This preamble to the Constitution is not meant to have any legal effect, but the symbolic effect may be great and—as we shall see—nor can the legal effect be precluded.

Article 3 of the Constitution is entitled ‘Relations of Church and State’. It is worth noting that Articles 1–3 make up ‘Part One’ of the Constitution of Greece, with Articles 1 and 25 entailing ‘Section 1’, and Article 3 alone making up Part 1, Section 2. This structure of the text of the Constitution is highly suggestive of the relative import placed on church–state relations in the Greek legal context. Paragraph 1 of Article 3 reads as follows:

The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ. The Orthodox Church of Greece, acknowledging our Lord Jesus Christ as its head, is inseparably united in doctrine with the Great Church of Christ in Constantinople and with every other Church of Christ of the same doctrine, observing unwaveringly, as they do, the holy apostolic and synodal canons and sacred traditions.

Article 3 is the most extensive reference to religion in the Greek Constitution, and it is amongst the most hotly debated, specifically because of the equivocality of the interpretation of the term ‘prevailing’, which provokes the following question: is the term descriptive or prescriptive in this context?6 The implications of one over the other are vast. If the interpretation is that the Christian Orthodox faith should prevail in Greece, clearly limitations on equal treatment of religious minorities (or belief minorities, such as atheists seeking exemption from RE) may be perceived by lawmakers as having a legitimate aim.

Article 3 does not serve directly as the basis for legislation relevant to religion7. But if we extend the purview beyond such potential direct effects of the constitutional provision on laws and on legislators’ assessments of the latter, and consider also the potential indirect effects of such a prescriptive interpretation of Art.3—e.g., by society at large interpreting the Greek Constitution as aiming explicitly towards the preservation of the Orthodox faith as ‘prevailing’ faith in Greece—then we have an altogether different picture of the potential impact of this constitutional article. Due attention must be given to such ‘indirect effects’, not least because the experience of limitations on a minority faith individual’s religious freedom is not based only on legislation.

Article 13 indicates, amongst other things, the following: ‘1. Freedom of religious conscience is inviolable. The enjoyment of civil rights and liberties does not depend on the individual’s religious beliefs. 2. All known religions shall be free and their rites of worship shall be performed unhindered and under the protection of the law. The practice of rites of worship is not allowed to offend public order or the good usages. Proselytism is prohibited.’8 The outright ban on proselytism is worth careful consideration because of the rather loose definition of proselytism (in a still-in-force 1938 law) as the ‘direct or indirect’ attempt of someone to intrude on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means, or by taking advantage of one’s inexperience, trust, need, low intellect, or naïveté9.

In theory at least, by this loose definition, mandatory religious education could be considered as taking advantage of the relative inexperience, trust or naïveté of children.

Finally, and most relevant to the topic of religious education is Greek constitutional Article 16, which identifies the ‘development of religious conscience of youth’ as an aim of national education. Based on this constitutional article, religious education in the Orthodox faith is compulsory in the public education system, with exemption available for the non-Orthodox (and, for a short period, also for anyone claiming philosophical grounds for exemption), under conditions that have tended to fluctuate with changes in government (see below).

From a rights perspective, the RE regime is problematic on three grounds. First, the requirement to reveal one’s (minority) faith to a state institution in order to be allowed exemption from the course violates the protection of private data. Second, limiting the exemption right to the non-Orthodox entails religion-based discrimination. And third, the content of the course, which has always been more or less confessional in nature, can be considered indoctrinating, and thus also an affront to freedom of conscience. All of the above has been the subject of national and European-level jurisprudence, as explained below.

1.2. From Parliament to Courts

Efforts to change the status quo in RE, partially in response to the reality of increasing religious diversity in Greece, both through immigration patterns and through an increasingly vocal atheist minority, and partially in conformity with international trends (and European level jurisprudence) regarding the place of religion in public schools, have rendered RE a focal point of party politics. The ensuing aforementioned political tug-of-war has been reflected in a series of changes in the national curriculum. The 1991 curriculum introduced by government circular No. 133/4-9-1991 indicates that the purpose of RE is ‘to provide the children basic features of the Orthodox Christian teachings, tradition and life, to contribute to the development of their religious consciousness and to assist the strengthening of their relationship with God as Creator and Father’ (cited in Karamouzis 2007, p. 92). A 2003 government circular (No. 303/13-3-2003) introduced a new spirit of RE as ‘approaching our own religious beliefs and traditions as well as those of others with respect and without prejudices, stereotypes and fanaticism’. However, only 4 of 161 teaching hours were devoted under that new RE regime to the treatment of other faiths (Karamouzis 2007).

One particularly active battleground has been the conditions under which students (or parents on the students’ behalf) can seek exemption from RE10. Since 2002, over a dozen government circulars have been issued, often referred to with the surname of the given Minister of Education under which the circular was produced (a non-coincidental political stamping of RE), which have changed the rules and regulations for seeking exemption from the course (Markoviti 2018). A central axis on which these changes have pivoted has been the protection of private data and the related question of whether exemption can legitimately require a formal declaration of one’s religious minority, or otherwise non-Orthodox, beliefs.

The issue of exemption may be considered from a number of different, sometimes overlapping, perspectives. From one perspective, exemption from RE is fundamentally a human rights issue, protecting the right to education in conformity with one’s religious, philosophical and pedagogical convictions; the freedom of conscience (and freedom from religion); and the right to the protection of private data11. The issue of exemption is also, from another perspective, a fundamentally practical issue, raising concerns that a far too lax exemption regime will lead to massive dropouts from the course of RE, not least because currently no alternatives are offered and exempted students thus simply enjoy a lighter load of work at school. For some theologian teachers of RE, the exemption issue is also a matter of livelihood, as they worry that their field of work will significantly shrink if not disappear altogether. And for some members of society, and some representatives of the Church, liberal exemption from the course will spell the end of the Orthodox faith and, by extension, of the Orthodox nation.

All of these voices have come to a head in a series of cases before the Greek high court, the Council of State (CoS, in Greek Symvoulio tis Epikrateias), and some of these voices have also been heard by the European Court of Human Rights. One main catalyst for this series of cases is the decision in 2015 of the newly elected left-wing Syriza government during this period to introduce a new RE curriculum in schools that had been piloted in some schools since 2011 and that had resulted from a years-long process spearheaded by progressive theologians in Greece aiming at a transformation of RE into a course less about teaching Orthodoxy and more about preparing students for life in a multicultural and religiously plural world.

This plan, announced formally by the former Greek Minister of Education Nikos Filis one month after the elections bringing Syriza to power, met intense reaction. The following perspective of a conservative theologian is representative of a broader viewpoint that resists the changes introduced in the new content of the RE courses and that calls for a return to the previous programme in religious education that was more dogmatically confessional in character:

As the Constitution asserts, one of the objectives of education is ‘the development of religious consciousness of students’, which means that we should teach [students] about their own faith. Same with the current law of education (law 1566 of 1985), according to which students must possess faith in the authentic elements of Orthodox tradition. […]. The way things are now [i.e., prior to the change in RE announced in 2015], students are being taught about religions in a descriptive, informative and neutral manner…. To do otherwise, means to proselytize, it means lack of respect to the Constitution and to the ECtHR, since you are not respecting someone else’s religion! What this new program does is to brainwash eight- year-old children. They are asking us to ‘punish’ our children by forcing them to learn about 9 different religions. This is definitely lack of respect of one’s freedom to education.

(cited in Markoviti 2019)

Personal communication ensued between the Archbishop of the Church of Greece Ieronymos and the Minister of Education Nikos Filis. In a letter on 23 September 2016, Archbishop Ieronymos wrote the following to Filis: ‘The issue of the Church is the issue of a People and not of course of one Minister, especially when certain constitutional provisions are undermined…’12. A few days later, the Archbishop issued another letter, this time to the government and all political parties, to complain about the planned changes to the RE regime, complaining that such issues should be decided in conversation with the Church, which ‘represents the religious majority of the inhabitants of this country’ (cited by Kaidatzis 2018, p. 32).

At a meeting on the topic in October 2016 between the leader of the Syriza party Alexis Tsipras, the Minister or Education Nikos Filis, and members of the Holy Synod, amongst others, the Archbishop of the Church of Greece indicated that the proposed change to RE challenged the very foundations of the historic church–state relations in Greece (Markoviti 2018). Only a few weeks later, on 5 November 2016, the Minister of Education was removed from his position in a government reshuffle. Still, the new Education Minister, Giorgos Gavroglou, pressed on with the reforms, and the new RE textbooks were introduced into Greek public schools in 2017.

Rather strikingly, the Greek system of RE was challenged at the Greek high court, the Council of State (CoS), nearly simultaneously, from two different directions. On the one side, a conservative union of Orthodox theologians (PETH) and a small number of parents, together with the politically outspoken Orthodox Church of Greece bishop leading in this case (Bishop Seraphim of Pireaus), appealed against the new RE, claiming that it was unconstitutional in that it failed to develop the religious consciousness of the students. Specifically, the new system of RE, they claimed, is unconstitutional in that it is ‘not Orthodox enough’ and thus fails to fulfill the constitutionally enshrined aim to develop students’ ‘national and religious conscience’. The second case, led by two atheist families13, is that of Papageorgiou, which claimed that the Greek RE continues to be ‘too Orthodox’ to be mandatory; the families thus sought exemption for their children on philosophical grounds (Markoviti 2019, p. 43; Fokas 2019). The Papageorgiou case, because its hearing had been postposed by the CoS several times, despite the claimants’ request for a hearing before the start of the new school year, was accepted to be heard—within a shorter timeframe than is normally case—by the European Court of Human Rights.

Both parties won their respective cases; Papageorgiou’s claim was vindicated at the ECtHR, as the Greek system of RE was deemed because of the policy allowing exemption only to those declaring membership in a non-Orthodox faith group, contrary to the right of parents to educate their children in accordance with their own religious or philosophical beliefs (i.e., in violation of Article 2 of Protocol 1 of the European Convention on Human Rights). Meanwhile, the Bishop of Pireaus and his co-claimants were vindicated by the Greek high court, which interpreted Art.16 of the Greek Constitution on the ‘development of religious conscience of youth’ to mean the development of explicitly Orthodox religious conscience14. Specifically, through a series of decisions (Decisions 660/2018, 926/2018, 1749/2019, and 1750/2019), the CoS deemed the changes to RE unconstitutional, and that RE in Greece should be ‘exclusively for Orthodox students’, confessional and catechistical in scope, and with the option of exemption offered ‘for reasons of religious consciousness’.

1.3. Nationalism in the Judicialization of Religious Education

In its decisions on the change in the RE regime from one focused on teaching Orthodoxy to one more focused on teaching about Orthodoxy in a broader context of learning about other religious and philosophical traditions, the CoS took the decision to read the constitutional article on education (Art.16) in the light of both the [symbolic] preamble to the Constitution (‘In the name of the Holy and Indivisible Trinity…’), and the article (Art.3) indicating that Orthodoxy is the prevailing religion of Greece. Amongst its many paragraphs justifying its ultimate decision, paragraphs which each begin with the word ‘because’, paragraph 13 of decision 1750/2019 indicates ‘Because, at the start of the current Constitution there is an invocation to the Holy Trinity…’, and paragraph 15 indicates the following:

Because, the reference in Art.3 of the Constitution to the ‘prevailing’ religion in Greece is to the religion of the Eastern Orthodox Church of Christ, just as the invocation to the ‘Holy and Indivisible Trinity’, is contingent on the key role of the Orthodox Church in the historical trajectory of Hellenism, especially under Ottoman rule, entails also the confirmation of the fact that this religion is the prevailing religion of the majority of the Greek people…

Here, we see history and identity being referenced as reasons for interpreting the Greek Constitution in a particular way. In this same paragraph, the court also makes a point of noting that the Constitution calls for the development of students’ national and religious conscience but

the meaning of ‘national’ and ‘religious’ conscience according to this Constitutional Article is … specific and does not refer to any nation and any religion. Specifically, as development of ‘national’ conscience it means, for the majority of course of Greeks who embrace that faith, and reasonably so, given that the Greek state was established and exists as a national state, the development of Greek—and not some other—national conscience, and as the development of ‘religious’ conscience it means the development of Orthodox Christian conscience, given that the Eastern Orthodox Church of Christ is described as the ‘prevailing religion in Greece…

The words of the Greek Council of State here, according to constitutional law specialist Apostolos Vlachogiannis (2021, p. 128), ‘echo, if they are not inspired by, communitarian and ethno-nationalism approaches to constitutionalism’. Such approaches to interpretation of the constitution, often provoked by nationalism, have been dubbed scholars as ‘populist constitutionalism’ (see for example Blokker 2018, 2019; Halmai 2018; Szente 2021; Gamper 2021). Connections between populism and constitutionalism have concerned social scientists seeking to make sense of such phenomena as the ‘populist, illiberal constitutionalism’ (Halmai 2018) introduced with Hungary’s new constitution in 2011 and the then Polish President’s call in 2015 for a referendum on the Polish constitution. These decisions of the Greek high court may arguably be considered as expressions of populist constitutionalism on the part of the Greek high court, expressions clearly motivated by nationalism and by understandings of national identity that are necessarily linked to religion15.

It is important to contextualize this approach taken by the court. According to Apostolos Vlachogiannis (2021), these court decisions on RE are very much in line with the spirit of decisions taken by the CoS on changes to the Greek nationality law (deeming unconstitutional the 2010 government decision to liberalize access to Greek citizenship), and Sunday laws (deeming unconstitutional the efforts to introduce limitation on business operation on Sundays). For both those issues, we see ‘the judge becomes the porte-parole of the Nation, the voice of national consciousness and the main defender of its continuity throughout the centuries’ (Vlachogiannis 2021, p. 133).

2. The Culturalization of Religion

There is a growing body of scholarly literature on the culturalization of religion, sometimes referred to as ‘the rise of heritage religion’, or the ‘religion-to-culture movement’; this scholarship is written against the backdrop of a great geographic breadth of case studies covering different cultures, religions, legal and political systems (see for example Beaman 2019, 2020; Joppke 2018; Burchardt 2020; Astor and Mayrl 2020; Hennig and Hidalgo 2021)16. This literature addresses the seeming conundrum that ‘in times of decreasing religiosity and increasing distance from Christian traditions, religion is now experiencing such an unholy renaissance throughout Europe’ (Hennig and Hidalgo 2021, p. 774). The characterization of the ‘renaissance’ as ‘unholy’ is related to the fact that much of this trend of culturalization of religion is provoked by resistances against the presence of Islam in Europe. A second main impetus to culturalized religion is resistance to secularism and atheism, which are seen by many as threats to culture and heritage (Beaman 2019, 2020). This latter expression, culturalization, which resists secularization, is most relevant to the Greek context. In its treatment of religious education, the Greek high court rests on the culturalization of religion in its determination that religious education must educate students in the Orthodox faith because the Constitution’s Art.3 reference to faith as ‘prevailing’, together with the (note: symbolic and not legally binding) Constitution’s prologue invoking the ‘Holy and Indivisible Trinity, ‘is contingent on the key role of the Orthodox Church in the historical trajectory of Hellenism, especially under Ottoman rule’ (CoS decision 1750/2019, paragraphs 13 and 15).

Avi Astor and Damon Mayrl (Astor and Mayrl 2020, p. 210) explain that what is distinctive about culturalized religion ‘is that it is perceived or portrayed as “culture” rather than “religion”, despite its ongoing links to ‘traditional’ religious forms’ (Astor and Mayrl 2020, p. 210). Astor and Mayrl argue that culturalized religion may take the form of ‘constituted culture’, whereby religion shapes ‘deep-seated and largely tacit orientations, knowledge structures, value systems, and institutional frameworks’; ‘pragmatic culture’, which entails the strategic framing of religion as culture for various purposes, including the management of tensions stemming from religious pluralism; and ‘identity’, whereby religion yields a sense of personal identity and continuity with the past, even where religious belief and participation in religious ritual have lapsed. Certainly in the Greek case, what we see at play is the pragmatic dimension, entailing a strategic framing of religion as culture and heritage in order to preserve religion from legal limitations17.

To place the Greek case story in a broader context, it is worth considering how the religion–national identity nexus has factored into efforts to preserve religion from legal limitations in both the US and European contexts. The examples are numerous, and I will limit myself to the following two cases only: the case(s) of the pledge of allegiance, in the US context, and the case of the crucifix in Italian public schools, in the European context.

Especially notable are the intricacies of the cases, and the incredible difficulty (or impossibility in Winnifred Fallers Sullivan’s terms [2005]) in untangling religion, culture, history, and identity just enough to be able to ascertain whether religious freedom has been violated. The case of the pledge of allegiance, in its multiple forms and at its various levels of judicial politics, is very much about the relationship between religion and national identity. It puts American civil religion on trial, since the pledge is one of the key rituals of American civil religion (Kao and Copulsky 2007, p. 123).

When Eisenhower signed the bill adding ‘under God’ to the pledge in 1954, he proclaimed the following:

From this day forward, the millions of our schoolchildren will daily proclaim…the dedication of our nation and our people to the Almighty. To anyone who truly loves America, nothing could be more inspiring than to contemplate this re-dedication of our youth, in each school morning, to our country’s true meaning… In this way we are reaffirming the transcendence of religious faith in American’s heritage and future (cited by Davis 2003, p. 661).

Derek Davis effectively summarizes how the religion–national identity link is part of the complex realties of lived religion that make their way into this and other court cases: ‘While civil religion is mixed with elements of the mythic, patriotic, and secular, it is also religious’ (Davis 2003, p. 662). And it is its religious character, blatant in Eisenhower’s words, that causes expressions of civil religion to be challenged as violations of the Establishment Clause.

Here, Winnifried Fallers Sullivan’s (2005) question beckons the following: who is suitably equipped (philosophically, intellectually, legally, etc.) to identify the ‘authentically religious’ in each case and to distinguish it from the mythic, the patriotic and the secular? The day after the 9th Circuit Court decision was taken in the year 2000, determining that the teacher-led recitation of the pledge in public schools violates the establishment clause, the US Senate voted unanimously to reaffirm the pledge of allegiance with the words ‘under God’ in it, and the following day, the House of Representatives passed a resolution (with a majority of 416 to 3), asserting that the 9th Circuit ruling was inconsistent with the US Supreme Court’s First Amendment jurisprudence. Meanwhile, then President George W. Bush called the ruling ‘ridiculous and inconsistent with the traditions and history of America’ and indicated that his administration would formally request of the Supreme Court an overruling of the 9th Circuit Court decision (Davis 2003, p. 657). The plot thickened when a House of Representatives member (Todd Akin (Republican from Missouri) introduced House Bill No. 5064, the Pledge Protection Act (PPA), which proposed to strip lower federal courts of subject matter jurisdiction over challenges to the pledge of allegiance.

Congress did not, in the end, enact the Pledge Protection Act, but the fact that the House of Representatives did approve the proposal was significant enough to elicit direct responses from Supreme Court justices. Chief Justice William Rehnquist wrote of his ‘hope that the Supreme Court and all courts would continue to command sufficient public respect to enable them to survive attacks on their judicial independence’. Justice Antonin Scalia, writing from a different perspective, expressed his concern that the Supreme Court had become a very political institution. And when that happens, [quote:] ‘the people in a democracy will try to seize control of it’ (both cited by Devins 2006, p. 1338). These quotations are vivid evidence of the precarious position of the Supreme Court in the face of disapproval of its decisions on issues where conceptions of religious in relation to national identity are at stake.

Similarly, the precarious position of the European Court of Human Rights is also illustrated by the Lautsi case before the European Court of Human Rights. Here, the mother of two children attending Italian public schools argued that the presence of the crucifix in the school classrooms violated her right to educate her children in accordance with her own religious or philosophical beliefs (a right which is enshrined in the European Convention on Human Rights, which the Court in question protects). In November of 2009, the Court ruled unanimously in Lautsi’s favor. The Italian State then sought and won a referral of the case to the Grand Chamber of the European Court of Human Rights.

As in the cases around the pledge of allegiance, in Lautsi v. Italy, the relationship between Roman Catholicism and Italian national identity complicated the case. In its dismissal of Lautsi’s plea in 2005, the Italian Administrative Court argued that the crucifix was ‘a historical and cultural symbol, thus possessing an ‘identity-linked’ value for the Italian people in that it represent[s] ‘the historical and cultural development characteristic of [Italy]’ (cited in the Grand Chamber hearing, Lautsi v. Italy, 2011, para. 15).

The Italian Government, in its defence before the European Court of Human Rights in 2009, argued that national authorities enjoyed a wide margin of appreciation allowed to states in their implementation of the Convention ‘in relation to such complex and sensitive questions, closely linked to culture and history’, and that the display of a religious symbol in public places did not exceed that margin, not least since the cross could be perceived as devoid of religious significance (para. 38).

The Court agreed with the claimant that the crucifix is undoubtedly primarily a religious symbol, despite the valiant, bordering ridiculous, efforts made by Italian lawyers and judges along the way to define the crucifix instead as a secular symbol of a whole slew of niceties, including a symbol of equality, freedom and tolerance; a symbol of non-violence, equal dignity of all human beings, justice and sharing, the primacy of the individual over the group, and the importance of freedom of choice, the separation of politics from religion, and love of one’s neighbor extending to forgiveness of one’s enemies (Lautsi 2009, para. 35; for a discussion of the latter, see Fokas 2015). But the Court did cite the Italian government in its claim that ‘the presence of crucifixes in State-school classrooms, being the result of Italy’s historical development, a fact which gave it not only a religious connotation but also an identity-linked one, now corresponded to a tradition which [the Italian state] considered it important to perpetuate’ (Lautsi 2011, para. 67). Further, the Court deemed that ‘the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State’’ (Lautsi 2011, para. 68), provided that those decisions do not lead to a form of indoctrination [emphasis mine] (Lautsi 2011, para. 69).

But the display of a crucifix is not considered a form of indoctrination by the Court, for two reasons. First, according to the Court, ‘a crucifix on a wall is an essentially passive symbol… [which] cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities’ (Lautsi 2011, para. 72). Second, the Court finds the Italian school context is ‘sufficiently religiously neutral’ so as to render the displayed crucifix as non-indoctrinating. Specifically, the Court notes that there is no compulsory teaching about Christianity in schools and that Italy ‘opens up the school environment in parallel to other religions’ (Lautsi 2011, para. 74). As an example, it is not forbidden for pupils to wear Islamic headscarves or other religious symbols or apparel; the beginning and end of Ramadan were ‘often celebrated’ in schools; and optional religious education could be organized in schools for ‘all recognised religious creeds’ (Lautsi 2011, para. 74).

In short, because the crucifix, when displayed on a wall, is considered an essentially passive symbol, and because the Italian public school environment is considered by the Court as sufficiently religiously neutral, the crucifix is also considered somehow neutralized and devoid of indoctrinating potential. This raises the following question: what exactly does it take to ‘neutralize’ the religious messages of a religious symbol so that it can be considered a national or cultural artefact? How is ‘sufficiently religiously neutral’ determined with any degree of legitimacy in terms of that symbol’s potential impact on an individual, or a group of individuals? Through both the pledge of allegiance and Italian crucifix cases, we observe a process through which Christianity variably ceases to be a religion and becomes culture or identity, from the perspective of the law.

What both cases, together with the Greek CoS cases on RE, have in common is a tendency towards the ‘culturalization’ of religion, whereby courts treat religion as an element of cultural tradition and national heritage and thus ‘safe’ from rights-based interventions. As Damon Mayrl (2022) notes, this ‘is an increasingly common move across Western courts who seek to maintain the appearance of religious neutrality while finding ways to privilege dominant religious traditions’18.

3. Conclusions Regarding the Judicial Culturalization of Religion

Well before the events presented above as expressions of the judicialization of religion and of politics in the case of RE in Greece, Spyridoula Athanasopoulou-Kypriou (2006) foreshadowed the developments that would take place. She rightly indicated that reform of RE on the basis of human rights would be ‘difficult to be accepted by the fundamentalist circles of faith groups. Fundamentalists will not accept as higher than their dogmatic value the value of human rights, they will doubt the foundation of rights and they will try to negotiate from the beginning what is considered the common good’ (Athanasopoulou-Kypriou 2006, p. 1002). What she did not predict, however, was that the ultimate barrier to such RE reform would come from the space of the court. Constitutional democracy, she indicates, will secure the stable framework of peaceful coexistence and cooperation necessary for a society to arrive at a shared conception of the common good. In the present story, constitutional democracy seems to have yielded instead to populist constitutionalism, expressed on the part of a court interpreting the aims of religious education through the prism of Greek Orthodoxy-based nationalism. As discussed above, the Greek high court achieves the latter through a culturalization of religion.

The question of whether courts are well equipped for the task of defining religion for legal purposes has legitimately concerned scholars, as evidenced in such titles as ‘The Tragedy of Religious Freedom’ (DeGirolami 2013) and ‘The Impossibility of Religious Freedom’ (Sullivan 2005). The two authors’ concerns and conclusions are different, but both speak in terms of predicaments. DeGirolami addresses what he calls the ‘predicament of legal theory’ (DeGirolami 2013, p. 2), and Sullivan the ‘predicament of religion’ (Sullivan 2005, p. 5). The predicament of legal theory, according to DeGirolami, is that it ‘seeks to fix crystalline conceptual categories’ … It is ‘embarrassed by incoherence’, and it ‘desperately wants to sort out and weigh up’. But meanwhile, religious freedom encompasses an ‘untidy welter of values’ and is thus ‘resistant to legal theory’s self-assured, single-minded drive to evaluate, justify, and adjudge’ (DeGirolami 2013, p. 1). For her part, Sullivan argues that religion ‘fits uneasily into a legal scheme that demands such categories and such expert certainty’. Rationalizing religion in the ways proposed by courts and governments ‘fails’, she says, ‘to capture the complex nature of people’s religious lives (Sullivan 2005, p. 10). In essence, the predicaments these two authors describe have a common basis in the messy realities of lived, everyday religion—messy realities which make the legal protection of religious freedom a rather complicated matter.

One of the messy realities with which courts and governments are called to contend (whether openly or not) is the relationship between religion and national identity. Here, in the Greek case, we have the example of a high court responding to that call by defining religion in terms of culture, heritage and national identity in order to preserve it from legal limitations (to preserve religious education in the Orthodox faith from legal limitations). In a distortion of Robert Orsi’s (2006) concerns about academic theorizing about ‘good’ or ‘real’ religion v ‘bad’ or ‘bogus’ religion, in the judicial culturalization of religion, we have a distinction between ‘legally acceptable’ (culture, heritage, identity) religion versus ‘legally unacceptable’ religion (indoctrinating, dogmatic)19. The problems around this notion, both from a theoretical perspective and from a practical one (in the socio-legal context, who can legitimately make these distinctions?), are conspicuous.

There is indeed a very well-documented problem of courts (judges) defining religion for legal purposes. But what of the extent to which courts (judges) are defining religion for public consumption? Quite apart from the immediate socio-legal implications (e.g., in the present focus, mandatory courses in Orthodox RE), this case encourages critical consideration of the extent to which court decisions may influence broader societal understandings of religion as culture, heritage and identity. This question justifies a call for further research on the judicialization of religion and on the culturalization of religion in relation to one another; the examples addressed here seem to suggest utility of a category of ‘judicial culturalization of religion’ for a careful assessment of potential consequences of the latter.