Today, the European Court of Human Rights (ECHR) Grand Chamber announced its Judgment in the case of Lautsi v. Italy, better known as “the Crucifix case". The Court has reversed, by fifteen votes to two, the Judgment of the Second Section in 2009 where the Court held that the presence of crucifixes in public schools involved a violation of the rights protected by the European Convention of Human Rights.
In its 2009 judgment the Court stated that, by displaying a religious symbol like the crucifix in public schools, the Italian State appeared in the eyes of the students (especially non-believers) closer to religion than to those who did not have religious beliefs, which involved, in the opinion of the Court, a kind of indirect support for religion, and therefore a breach of its duty of neutrality. Consequently, the ECHR observed that the Italian Republic had infringed the rights of the applicant, Ms. Lautsi, to ensure her children an education "according to [her] religious and philosophical convictions" (Article 2 of Protocol no. 1 to the Convention), concerning the right to freedom of thought, conscience and religion (Art. 9 of the Convention).
The Court had reached this conclusion in 2009 with a 7 to 0 vote despite having stated expressly that the crucifix has a cultural significance as well as a religious one, and that it was evident that its display in the Italian classrooms was not an attempt at religious indoctrination by the State. In 2009 the Court also found that the Italian education system ensured pluralism and avoided indoctrination. It was clear that the Italian system had great respect for the rights of parents to give their children an education according to their own convictions. Similarly, the ECHR found that there are a variety of positions in the 47 Member States of the Council of Europe, as to how they understand the principle of the secular character of the State and its practical implications in order to reach the necessary neutrality.
The Judgment of 2009 was, according to European Dignity Watch, deeply wrong. First, it did not respect the established case-law of the ECHR itself whereby, in a case like this where there is no European consensus on the matter, the States should be granted a wide margin of appreciation since the national bodies are the ones which can best determine how to settle the principle of secularity and neutrality of the State. It is in the competence of each State, not the judges in Strasbourg, to decide the basis of their political identity and how they should relate to religious denominations.
Secondly, if the school should be a place open to different religions and philosophical convictions in order to achieve effective social inclusion (which the Second Section held), removing the crucifix in public schools is by no means neutral: it signifies that the public space belongs to those who opt for a non-religious view of life, and that believers can enter that public space only if, in advance, they agree to participate in it without taking account of their religious beliefs.
As Joseph Weiler, a (Jewish) law professor at New York University, who intervened on behalf of several states in the case, argues: “The exclusion of God from the symbology of the State and from the public square is not a neutral choice – it is a political choice for one world view over another.” The consequence is that it eliminates the public dimension of faith, restricting the right to religious freedom.
Thirdly, the initial Lautsi Judgement was based on an individualistic understanding of the fundamental rights, forgetting the necessary complementarity of rights and duties and that they can be exercised only in a well ordered political community. In fact, the individualist conception of rights that underlies the Court's initial decision in the Lautsi case is inconsistent with the objectives of the Council of Europe itself. The Council of Europe’s raison d’être is to protect human rights, democracy and the rule of law. However, the decision to remove crucifixes from public schools in Italy, which affects the identity of the Italian people, is equivalent to building a democracy without demos, that is, without a people capable of making culturally determined political decisions by themselves. Moreover, by disregarding the margin of appreciation that in this matter should be left to the States, the Court was expanding its scope improperly, effectively sitting as a legislative body and not as a tribunal responsible for protecting rights.
The interpretation of the Convention held in the first Lautsi case, rejecting the Court's prior case law on the margin of appreciation to be left to the States, makes the Court the decision-making body on the national identity of Member States with jurisdiction to re-order the relationship between political authority and religious denominations, without taking account of the historical, cultural and constitutional issues peculiar to each State. A Court that turns itself into a political organ of this kind is moving away from the rule of law, under which the courts should apply existing law to protect the rights of citizens.
Given these considerations, it is significant that the Grand Chamber has decided to reverse the decision of the Second Section in 2009. In today’s decision, the ECHR Grand Chamber has stated explicitly that on the facts of the case, by displaying religious symbols in state classrooms the authorities were not being intolerant of pupils who believed in other religions, who were non-believers or who held non-religious philosophical convictions. The Court also noted that, according to its earlier case-law, where there had been preponderance of one religion throughout the history of a country the fact that the school curriculum gave it greater prominence than other religions could not in itself be viewed as a process of indoctrination. It observed that a crucifix on a wall was an essentially passive symbol whose influence on pupils was not comparable to that of didactic speech or participation in religious activities. Therefore there was no violation of fundamental rights protected by the Convention.
European Dignity Watch strongly welcomes the Court’s decision and recognises the utmost importance of a judgment that shows sound legal reasoning and respect for the principle of subsidiarity. By stating that it is within the competence of each State to decide whether or not symbols (which in addition to their religious content help to strengthen the cultural identity of the nation) should be displayed in their classrooms, the Strasbourg Court is being faithful to its mission not to interfere with the proper exercise of political decision-making by political bodies.
This decision from the Grand Chamber affirms a proper interpretation of the European Convention on Human Rights, which should not be understood as an instrument imposing a radical secularist agenda on the Members States of the Council of Europe. As long as the rights of individuals are protected, it is the role of each State to decide how to form its public space. The judgement also affirms implicitly the role of religion in the public square as acceptable.