Pietro Faraguna, University of Ferrara Faculty of Law, has published Regulating Religion in Italy: The Constitution Does (Not) Matter. Here is the abstract.
Regulating religion in Italy has always been a crucial issue, starting from the outset of the national history. It is not necessary to have a deep knowledge of the history of the Italian state to be aware of this exceptionalism: geography is telling enough. The Italian state – a relatively weak state that always had to deal with a strong religion – is the only example of a state that contains another independent ecclesiastical (or sacerdotal-monarchical) state entity in the middle of its territory. In this paper, I focus on a specific aspect of this “constitutional” exceptionalism. I particularly focus on state-Church relations and on the peculiar implementation of the “idea of secularism” in Italy. The paper shows that the constitutional regulation of religion does not tell so much about the regulation of religion in the Italian constitutional experience. This is not due to a lack of constitutional provisions regulating religion and religious freedom. On the contrary, both the pre-republican constitutional charter and the republican Constitution accorded a very prominent role to the regulation of the religious phenomenon. Nonetheless, I will show that an investigation of the “living constitution” reveals that constitutional provisions have been implemented in diverging directions throughout the history of Italian secularism. To this end, in this paper I firstly provide an outline of the formal constitutional provisions of the 1848 Constitution followed by a brief overview of legislative and jurisdictional developments of the 19th and of the first half of the 20th century. Secondly, I address the constitutional provisions adopted in 1947, focusing on the constitutional “compromise” reached by the Constituent Assembly. Thirdly, I investigate briefly how the actors under the living constitution (the legislator, the government, common judges and the constitutional court in particular) tried to balance and develop the potentially conflicting principles included in the 1947 Constitution in the field of religious freedom, equality and state-Church relations. In particular, I focus on three particularly controversial examples: the teaching of religion in state schools; the display of the crucifix in classrooms and mechanisms for state funding of religious denominations. Finally, I argue that insofar as the regulation of religion in Italy is concerned, the actual shift in paradigm did not occur within the formal Constitution, but rather in the living Constitution.Download the article from SSRN at the link.