Does a cross in a courtroom infringe on the religious freedom of non-Christians involved in legal proceedings? Does it violate the principles of a secular state? These questions have recently arisen in Germany thanks to the trial of Beate Zschäpe. Zschäpe is the one surviving member of the National Socialist Underground (NSU), a band of neo-Nazis that allegedly murdered eight people of Turkish descent, one person of Greek descent, and one non-immigrant German police officer in a string of premeditated attacks from 2000 to 2007.
Zschäpe is currently standing trial at the upper court of appeals in Munich, and like other legal chambers in the state of Bavaria, its décor includes a modest wooden cross.
This cross did not evoke comment from the judge and lawyers in the run-up to the trial, and it was not an initial source of concern for the victims’ immediate relatives, who are acting as joint plaintiffs in the case. But it did draw the ire of Mahmut Tanal, a member of the Turkish parliament who attended the first day of the proceedings. Tanal, who is affiliated with the secularist Republican People’s Party, argued that a religious symbol like a cross has no place in the courtroom and should be removed immediately. In his estimation, the cross not only violated the principle of state neutrality in religious affairs, but also constituted a “threat” for the Muslim relatives of the Turkish victims.
Several conservative politicians in Germany responded to his complaints with sharply worded defenses of the cross. Norbert Geis, a parliamentarian for Germany’s Christian Social Union (CSU), announced that “the cross belongs to our culture” and urged Tanal to display more respect for the Christian influence on German life. Günter Krings, a member of parliament for the Christian Democratic Union (CDU), contended that the cross “symbolizes brotherly love and tolerance and is an expression of our Christian-Western roots.” And Günther Beckstein (CSU), Bavaria’s former Minister President, insisted that it was important to make clear, even in a courtroom, that “God stands above the person.”
The matter might have ended there if one of the joint plaintiffs, Talar T., had not agreed with Mahmut Tanal and filed a motion for the cross to be removed. Talar T. insisted that he had a pressing claim “not to be exposed to the influence of a religion—even in the form of a symbol—by the German state.”
Significantly, there is no established legal precedent on this and related matters. The State Court in Saarbrücken ruled in 2001 that a cross must be removed from a courtroom when a concerned party believes that its presence injures her or his right to religious freedom. But it is not clear whether this judgment would apply to courts in Bavaria, especially when Germany’s federalist system grants individual states considerable legal and policymaking autonomy. Indeed, it is precisely this system that has allowed Bavaria to hang crosses in its courtrooms when most other German states avoid and even disavow the practice.
We should not place undue emphasis on this aspect of the trial, which is highly charged for reasons that have nothing to do with the presence or absence of a cross. After all, German prosecutors accuse Zschäpe and her NSU compatriots of a string of xenophobic if not racist murders, and they charge that incompetence at the highest levels of German law enforcement allowed many if not all of these murders to occur. Nevertheless, I would argue that the contention and uncertainty surrounding the cross remain significant in their own right, for they speak to important arguments about the nature of secularism as a modern historical phenomenon.
In a series of recent articles and a concluding book, the University of Chicago anthropologist Hussein Agrama has proposed that secularism, contrary to the normative claims advanced in its favor, is not an institutional framework in which religion and politics are clearly separated. Instead, secularism consistently fashions religion as an object of governmental management and intervention, and it therefore expresses the state’s sovereign power to decide “what count should count as essentially religious and what scope it can have in social life.” Yet in the act of exercising this power, the secular state repeatedly blurs the very line between religion and politics that it aims to draw. For example: if a state insists that religiosity may only be expressed in the private sphere, what is the nature and extent of that sphere? Does it only include the home? Or does it also encompass communal places of worship, or believers’ choice of clothing and other forms of adornment? Is not the demarcation of a private realm of legitimate religious expression itself a political act?
In the end, Agrama argues that secularism is not a solution that neatly defines religion’s place in contemporary life. Instead, it constitutes a problem-space “wherein the question of where to draw a line between religion and politics continually arises.” Moreover, this question cannot be easily ignored, for it is inextricably bound up with the distribution of liberal rights and freedoms.
In Germany’s case, the state and federal governments, including the one in Bavaria, have adopted the principle that the state is independent of religious institutions and should not invoke or favor one religious tradition over another. The state and federal governments have also affirmed the right of all citizens to express their religious beliefs without undue interference from the state. These commitments are basic elements of German liberal governance, and the presence of the cross in Bavarian courtrooms would appear to complicate if not directly contradict them. To use Agrama’s language, the cross blurs the line between religion and politics, and it raises questions about the substance of the religious freedom that citizens may claim.
As my preceding discussion indicates, proponents of the status quo in Bavaria have tended to finesse these difficulties by insisting that the cross is merely a “symbol.” The cross, they imply, evokes a tradition that has exerted a formative influence on culture and politics in Germany and humanist thinking more broadly, but its presence is ultimately incidental to the legal proceedings and judgments that the state initiates. Moreover, the cross does not “threaten” non-Christians because it does not enshrine Christianity as the state’s religion, and it does not infringe on citizens’ freedom of religious belief or their equality before the law. To an important extent, this logic would seem to deny that the cross, at least in this context, is a “religious” artifact at all.
Of course, we might well wonder whether a symbol that is incidental to legal proceedings really needs to be present in a courtroom in the first place. More importantly, though, we might wish to question the innocence of the cross given the larger context of the case against Beate Zschäpe.
The NSU murders have led many migrants and post-migrants, including those from Muslim-majority countries like Turkey, to doubt their full inclusion in the German nation and polity. Moreover, the climate of lingering distrust surrounding Islam has only sharpened many Muslims’ perception that their faith is not a welcome and integral aspect of German life. Thus, even if the inclusion of a cross is not meant to be a “threatening” gesture, it is hardly a neutral, merely “symbolic” one either.
In the wake of the Arab Spring, many Euro-American commentators have wondered whether the new governments in Egypt and other Middle Eastern countries will be “secular” or “religious.” At least some of them have also maintained that “secular” governments will further the region’s democratization and long-term stability. To my mind, this line of thinking presumes that states in Europe and North America are exemplary polities which have more or less resolved the perplexities of secularism. But if the recent debates over the cross in Germany are any indication, such a judgment is premature if not complacent and self-serving. Even in those polities where secularism seems firmly established, uncertainty and dissension over religion persist. Indeed, such a condition may be the norm that defines secularist structures of power, not their fleeting and aberrant exception.
NOTE: as I was finishing this post, the U.S. Supreme Court announced that it will rule on the constitutional status of prayer in town board meetings, based on a case from Greece, New York. Many of my remarks on the Zschäpe trial are pertinent in this instance as well.