The “Anti-Mosques” Law of Lombardy and Religious Freedom in Italy
Lombardy, Italy’s most populous region, has just enacted a law that seems to be designed to make life for Muslims as hard as possible. On January 27th, the Council of the Lombardy Region has enacted amendments to the Regional Law that regulates the planning of buildings and other structures for religious purposes. These amendments make it extremely cumbersome to build new places of worship for all non-established religious denominations, particularly Muslims – while the still dominant Catholic Church remains exempted from the regulation. Discrimination is not the only aspect of the new law that makes its constitutionality look more than questionable.
The new law requires, briefly speaking, a local agreement between the representative bodies of the denominations and the territorial municipalities to obtain an authorization for the religious building. Several conditions apply: on one side, the denominations (important, not their representative bodies) must have an extensive, consistent and organized presence in the municipality where the new building is located. The law requires every denomination to express clearly the religious nature of its institutional purposes as well as to observe the principles and values of the Italian Constitution.
In this regard, the new norms provide to establish a new Regional Consultation Agency (RCA), whose (positive) preliminary evaluation is mandatory. On the other side, the law requires the municipalities to conduct a survey, obtaining the advice of many local bodies, like citizens‘ organizations & committees, members and representatives of the local police as well as of the HQ district police, the prefecture, in order to assess – it reads – «all the possible aspects of public safety». The municipalities are also entitled to announce a referendum on the matter, but it is not clear whether the result of such a consultation is binding or not. Furthermore, the consequent Religious Urban Plan (RUP) must be approved within a period of 18 months from the date of publication of the RL 2/20015, and – more – it is requested that the RUP specifies the proper size and the exact place of the areas for buildings. Finally, the law requires the RUP to contain and explain in detail some provisions, dealing with other conditions such as roads, infrastructure works, distances, parking, video surveillance systems, toilets, access for the disabled. Last but not least, the law requires that the «dimensional and architectural proportion of the building ”is“ related to the characteristics of the landscape of Lombardy» – which can be read as specifically targeted at minarets.
Freedom of Religion
The constitutionality of this complex regulation is dubious for a number of reasons. Already the competence of the Region is questionable, as the regulation seems to go far beyond the regional competences for urbanistic matters and to reach into relations between the State and the religious denominations which the Constitution puts expressly into the exclusive jurisdiction of the central state (Art. 117, par. 2 letter c).
Moreover, even assuming the urbanistic nature of the norms, the new rules introduce too strict terms to accomplish all the predicted conditions and arbitrary or unnecessary evaluations by the political and administrative authority, such as to aggravate or even make impossible to complete the authorization process. Even at a glance, in fact, the numerous formal conditions seem to confer a very wide discretion on the political authority. In addition, the law does not lay down any time limit for a refusal of authorization, nor requires a valid reason in case of a refusal. More in detail, one might wonder what criteria and rationales the newly established RCA might use to make a judgment about the local conditions, organizational and quantitative, of the denominations at stake.
The Italian Constitution affirms the right of the denominations (other than the Catholic Church which is covered by Concordat law) to organize themselves on the basis of rules and statutes, with the only limit of Italian law (art. 8, par. 2). This guarantee covers both the process and the result of the organizational activity. Every interference must be justified on grounds of public law and cannot just theoretical, ideological and preconceived grounds (see the decision of the Italian Constitutional Court 195/1993). Furthermore, the principle of rationality of administrative action (art. 97 of the Italian Constitution) seems hard to reconcile with the extremely onerous or even useless condition requiring a preliminary advice on public safety by the police, citizens’ committee and other public authorities. The possibility to hold a referendum about the erection of places of worship of minorities’ religions is a means to further delay the process.
Finally, the rule providing for the buildings to be – so the norm reads – in dimensional and architectural proportion to the «general» and «special» characteristics of the landscape of Lombardy suggests an excessive discretion of the administrative authority.
Although the introduced changes are apparently formulated in neutral terms it is actually a blatant attempt to discriminate against minority religions. While norms dealing with the Catholic Church (art. 70 RL 12/2005) expressly provide that Regions and municipalities must promote the realization of the Catholic buildings, the recent rules essentially aim to restrict the grant of authorizations, to