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The political significance of religion is back on the agenda of interdisciplinary academic debate. One does not need to recall the world-wide rise of Christian, Jewish and Islamic fundamentalism, the intensification of religious nationalism in South Asia, and the dynamics of religiously legitimated ethnic conflict to find evidence that religion continues to be strongly influential in modern society. Even within many seemingly “secularized” Western countries, new forms of politics of religious recognition have emerged which merit closer academic attention. It is indeed hard to find a country which is not witnessing public debates over religious symbols (headscarves, crucifixes etc.), constitutional conflicts over Church-State relations and political controversies over the accommodation of religious minorities.

The modern western state has developed to a large part as a political organization that has bid farewell to the medieval union of church and state in the . State authority was no longer reliant on the one and only Christian church but rather on Protestantism and Catholicism. The later rivalry between these two denominations as well as the struggles for dominance by their political supporters also made peaceful relations impossible. Military intervention, war and bloodshed were the result. The secularization of authority in the western world as such appeared inevitable. Politics was to concentrate on the secular issues of well-being — i.e. the requirements of peaceful cohabitation, productive cooperation in worldly, economic matters for the benefit of all. Specifically excluded from this equation was the ultimate question regarding faith and belief. In religious matters, the attainment of eternal salvation, despite the continued influence of the Christian ideals on political actors, was no longer to be achieved under the sword of the state. The development towards a structural division between church and state continuously evolved in most European states and in the new United States. The powers of the two authorities were clearly divided: worldly well-being and common good on the one hand and eternal salvation on the other. The latter was to follow the principle of personal responsibility, within the framework of religious freedom and conscience.

The prevailing view in comparative international law, including that of this author, used to be that the establishment of religion and its recognition by the state or the separation of religion from the state did not, as such, violate religious freedom or constitute unlawful discrimination for religious reasons or breed religious intolerance. However, in recent years this view has changed, as it has become clear that the secularist approach has often led to less openness and a reduced sensitivity to religious freedom. This can be seen in religious statutes regulating use of religious symbols in public space and government facilities.

There are many sources of bad law. The most prominent among them is certainly the one mentioned in the subtitle of this presentation. If hard cases really make bad law, the conclusion is inevitable that this is going to be a presentation of bad law. Given the German debate on the Federal Constitutional Court’s decision on crosses in Bavarian classrooms, there is more to that than a mere play on words. If German Constitutional Lawyers were to nominate the worst decision which the Court ever has rendered, the so-called “Crucifix-Decision” would have good chances to be among the front runners. It has produced so many legal commentaries that we almost need bibliographies in order to collect the literature on this single decision. Among the many aspects that are worth being highlighted even at a decade’s distance (the decision was rendered in May 1995), the public reaction to the decision is certainly the most striking. The decision has provoked demonstrations by more than 300,000 people, among them the Prime Minister (“Ministerpräsident”) of Bavaria, and the Catholic and Protestant Bishops of the area. It is, of course, necessary and interesting to inquire into the reasons why the public reaction was so intense and in a sense emotional. But before doing so, I want to briefly state the facts and present the main arguments in the Court’s reasoning.

The law lives in cases. Cases force us to concretize our legal principles and general rules and test them in real-life situations. Cases reveal to us which factual and legal constellations we have failed to consider sufficiently, and which constellations are still in need of a solution. Also, legal cases often consolidate issues and conflicts that involve society as a whole. The parties in court, then, litigate — that is, on behalf of the entire society.

This article will examine the impact that so-called “separation systems”, in particular the French and the U.S. systems, have on the range of the freedom of religion. It is characteristic of such systems that the state keeps separated from the church in all respects, namely refrains from financing churches, using its agents, displaying religious signs in public buildings, etc. Focusing on the right to wear religious garments in public schools, either by students or by teachers, this study tries to analyse similarities and discrepancies in a closely-defined field, which is specific enough for comparative analysis and yet also allows for some further conclusions about the significance of the separation system.

It has long been recognized that freedom of opinion is an essential precondition for political democracy. Freedom of opinion first developed within the nature of freedom of religion. Against the powerful church and against its important ally the state, the claim to freedom of religion was first launched as an attack to protect the individual in one of the most personal spheres of human identity and belief. Georg Jellinek has argued that the natural-law theory which came to recognize freedom of religion is at the basis of the movement towards striving for civil and fundamental rights. This theory has not met with general approval, but one cannot overlook that freedom of religion was the basis of some of the most influential political movements to establish early democratic governments.

The Women of the Wall, known as WoW, are religious Jewish women who wear the ceremonial prayer shawl (), as do men; pray from the Torah Scroll, as do men; and pray aloud in a group (), as do men. They have called it the three T’s: . I will present here the story of their struggle against religious violence and the public veto of their prayer at the site of the Western Wall in Jerusalem. This is a struggle which has led them to appeal three times and respond once over the past fifteen years to the Supreme Court, in the last two of which proceedings I represented them as counsel. The WoW are committed to redefining their identities as religious women, claiming equality rather than exit as a feminist strategy in confronting the patriarchy of Judaism. Their struggle against silencing at the site of the Western Wall is highly symbolic in its attempt to redefine public space, designated as subject to patriarchal custom by religious authorities with governmental ascent and collusion. The narrative of the Supreme Court litigation provides the material for a unique exploration of the potential and the limits of law in providing a path to equal religious personhood for women.

The extent of public sector involvement in providing religious services is an important factor in determining the scope of legitimate regulation of relevant religious activities. However, I argue that the existence of a government role is not a sufficient justification for such regulation. Participation in the supply of religious services does not exempt the government from the constraints of its duty to respect freedom of religion. I point to two main considerations in this respect. First, in certain cases, accomplishing the purpose of government involvement — securing reasonable access to religious services — entails government intervention in religious activities. Second, more extensive regulation can be justified when involvement of the public authority intensifies the harm that the relevant religious practice imposes on other interests. These and related arguments are illustrated through a case-study — the Israeli experience of almost six decades of intensive involvement of a democratic state in supplying religious services.

Among other things, I explore the issue of regulating practices in holy sites, by comparing two decisions of the Israeli Supreme Court: The decision not to intervene in conflicts regarding religious rituals in the Church of the Holy Sepulcher, and the decision to impose “secular” norms of tolerance and impartial balance of interests in the case of the Western Wall Plaza in Jerusalem. Other issues discussed are the qualifications necessary to serve in state-run religious institutions; issuing kosher food certificates and regulating the activities of Jewish burial societies.

The discussion demonstrates the important role of government involvement in supplying religious services and in regulating religious activity as a means of enhancing — rather than restricting — religious freedom. The Israeli case is useful in illustrating the potential benefits of supplying religious services by the government, as well as in understanding the limits of this policy.

Israel is a diverse country. Nearly one-fifth of the total population, composing about 1.2 million of its citizens, are Palestinian-Arabs - the rest of the population being predominantly Jewish. The religious composition of the non-Jewish population is made up of Muslims, Christians and Druze. Moreover, this multiplicity is evident within the different religious groups themselves. The Jewish community is divided into secular, traditional and religious groups, the latter containing a well defined Ultra-Orthodox camp. In addition, Reform and Conservative Judaism have gained force recently, creating new challenges to the dominant Orthodox establishment. The Christian population is divided into ten recognized religious congregations, each with its own body of institutions that include a court system and in some cases even have substantial ties to foreign governments.