16 Colum. J. Eur. L. 81 (2009)

Ronan McCrea, Référendaire (judicial clerk), European Court of Justice

This Article examines the use, and limitations on the use, of religion as a source of law in the legal order of the European Union. It reveals how religion is recognized by the Union as an element of its constitutional values but how, at the same time, this role is balanced by the recognition of potentially competing humanist and cultural influences. Similarly, although E.U. law recognizes the particular contribution of religious bodies in the areas of law and policy-making, it also preserves a balance between the religious and secular humanist elements of the Union’s ethical inheritance by refusing to accommodate religious claims to a monopoly on truth or to substantive political power. The Article also shows how religion ‘ role in national identity and culture and its role as a source of communal moral norms have been accommodated by E.U. law through the pluralist nature of the Union’s public order. This public order enables Member States to reflect particular national and religiously specific visions of public morality in E. U. law, provided that such Member States respect the notion of balance between religious, humanist, and cultural influences inherent in E. U. fundamental rights commitments (most notably respect for individual autonomy) as well as the moral pluralism involved in principles such as freedom of movement. Such fundamental rights, although formally neutral, have been heavily influenced by the historical and cultural role of particular religious traditions in Europe, most notably that of Christian humanism. At the same time, those rights can be more restrictive of religions which struggle to accept the limitations on their influence inherent in a balance between religious and humanist values and in respect for Europe’s strong cultural traditions of individual autonomy and popular sovereignty.