July 08, 2010
Is an empty wall in a state school classroom more neutral than a crucifix on it? No, it is not, argued NYU Professor, Joseph Weiler, representing various intervening governments in the very much expected Lautsi hearing last week. In his view, the naked wall (the absence of religion) is not a neutral option, particularly in today’s societies where the principal cleavages are not among different religions but rather between religious and non-religious (see also his post in EJIL: Talk!).
The Lautsi case raises a whole array of complex issues concerning the limits of permissible state-church relationships under the Convention. Some of the most interesting questions raised during the hearing revolved around the idea of state neutrality in the context of public education. This post focuses on the neutrality debate that took place during the hearing.
Chamber Judgment of November 2009
As a starting point, it may be necessary to recall that, in its November 2009 judgment, the Chamber stated among its general principles that “[t]he State’s duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the ways of expressing those convictions. In the context of teaching, neutrality should guarantee pluralism.” (para. 47 e) In this judgment, the Chamber considered that “the compulsory display of a symbol of a particular faith in the exercise of public authority in relation to specific situations subject to governmental supervision, particularly in classrooms, restricts the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe. It is of the opinion that the practice infringes those rights because the restrictions are incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education.” (para. 57)
During the hearing, the applicant insisted on the need of the state to remain “equidistant and impartial vis-à-vis the beliefs of individuals and groups.” (23’) She argued that “the state cannot identify itself with a given religion through the exhibition of symbols which are associated to that.” (23’) On her view, the judgment was neither taking a position against a given religion, nor taking a position in favor of atheism. (28’). She clarified she was not an atheist, as the Italian government claimed. Her attitude, she added, was not opposed to that of the Catholic religion either. (28’). She stated: “the applicant […] never declared she was a believer or not a believer and the applicant has never expressed herself against the Catholic religion.” (28’ and 29’) Referring to secularism, she argued that it is not “a stance in favor of those who do not believe but a guarantee for religious freedom and such guarantee is explained not through tolerance but rather through the attribution to all of equal rights in conditions of equality.” (29’)
The Italian government, for its part, argued in the hearing that the crucifix is a “passive and silent symbol” (52’) [whose] “influence could not be equated with indoctrination.” (53’) “The alleged proselytism of the state is non-existent as well.” (53’) According to the government, the presence of the crucifix in the classroom is “not to convert the non-believers or for a purpose of proselytism” but as mere “expression of popular feelings [reflecting] the Christian tradition of the country which is at the very heart of its national identity.” (54’) But this was not however what the applicant argued, admitted the government. What she argued, affirmed the Italian government, is that “the presence of the crucifix would violate the principle of neutrality and it would create an environmental influence that would provoke emotional disruption in the pupil.” (55’) In this regard, the Italian government later contended that the “public space does not mean an empty space, as said by the applicant, [but] a space […] that belongs to all, where everyone can exercise the right to freely manifest their religious or philosophical feelings.” (57’ and 58’) In the opinion of the Italian government, public authorities have the duty “to meet the religious requirements of citizens and certainly not to do away with them or bind them as advocated by the applicant.” (58’) The government further argued that “the public dimension of religious practice is covered explicitly in Article 9 of the Convention. The Convention recognizes that religious needs are not only something that belong to the private sphere of the individual, as the applicant would like to say, […] but they do have a social, collective and public dimension, as stated in article 9.” (58’)
The government contended that the applicant has not used the concepts of neutrality and impartiality in a relevant fashion. “If the state were to decide in the instant case to do away with the religious symbol from the public space, it would be siding in favor of a given philosophical conviction and would become party of the ideology advocated by the applicant who is a militant atheist belonging to the union of atheists and rational agnostics …” (59’) “If the state were to do away with such symbols, it would be siding for a given philosophy and the Court itself said that there is freedom of religion but also the freedom not to believe. So equidistance means that you must be equidistant from a given religion but also from a given philosophy. So such decision of the state would not be neutral.” (1:00)
In the hearing, the principle of neutrality articulated by the Chamber was frontally contested by Professor Weiler on behalf of various intervening member states. In his view, one of the conceptual errors on which the Chamber’s formulation of neutrality was based “had to do with failing to distinguish between private rights and public identity.” (1:16). In this regard, he contended that freedom of religion and from religion recognized in the Convention “is counterbalanced with considerable liberty which the Convention system allows as to the place of religion and religious heritage and religious symbols in the definition of the collective identity of the nation and the state and its public spaces.” (1:17) Professor Weiler illustrated this liberty with examples of various Member States. “There are members,” he said, “in which laïcité is part of the very definition of the State [as in France] in which, indeed, following the principle of laïcité there cannot be any state-endorsed or –sponsored religious symbol in a public space. Laïcité holds, as a political doctrine, that religion is a matter for private space.” (1:17) He similarly gave examples of other Member States, including England, in which there is an established church. (1:18) He argued that “England would appear to violate the strictures of the Chamber for how could we say that all those symbols [referring to the Head of State as the Head of the Church, the cross in the flag, the national anthem, and others] do not represent some kind of assessment of the legitimacy of religious belief.” (1:19)
Professor Weiler later on contended that “Italy has the right if it wants to be a laique state but what Lautsi would have this Court do is to impose on it the duty to be a laique state.” (1:27) In his opinion, that cannot be since “there is no duty of laïcité on the Members of the European Convention on Human Rights.” (1:27 and 1:28) He argued that “the position adopted by the Chamber in its decision is not an expression of the pluralism that it advocates. It is an expression of the values of the laique state. […] To extend those principles to the whole members of the Convention system would be […] the Americanization of Europe.” (1:29) He believes “there is nothing neutral in the laique position […] It is a binary world with those on the one hand that believe that religion is a private affair, and those who believe that religion can have a place in public space. (1:33’) “Laïcité is no more neutral than a religious worldview,” he concluded. (1:35)
Some Quick Personal Reactions on Neutrality
Despite its close links with the idea of neutrality, equality was for the most part absent in the Lautsi debate (apart from the applicant’s rather brief attempt to frame her argument as an equality issue). Tolerance, pluralism, and freedom, they all made it to the hearing, and rightly so. Equality, however, was rather missing. Would the issue of neutrality have been more clearly framed in light of equality? Would the idea of neutrality put forward by the Chamber have made clearer sense by reference to equality? Or, this would have not made much sense in a context like the European? The applicant had originally submitted that the interference she complained of under Article 9 of the Convention and Article 2 of Protocol No. 1 also infringed the principle of non-discrimination, enshrined in Article 14 of the Convention. The Chamber, however, found no cause to also examine the case under Article 14.
The basic idea at the heart of neutrality seems to be that “the state does not take sides between one religion or another, or between religion and non-religion” (Nussbaum 2008, at 229; see also, the 2008 Bouchard-Taylor Abridged Report, at 44). The neutrality of the State, the Bouchard-Taylor Report interestingly points, “should be designed so as to foster, not hinder” freedom of religion and conscience (at 46). It then seems that, if the Court embraces the idea of neutrality as a key principle in public education institutions, it should do so as one way to preserve the equality of persons and protect individual freedom of conscience and religion, not to hinder them.
So, does the empty wall necessarily have to be motivated by disdain for the religious or by a desire to relegate religion to the margins of the private sphere? If so, can it still claim neutrality? I doubt it. But, can the naked wall be inspired by egalitarian purposes? What if in certain contexts the empty wall is seen as the most feasible option to preserve equality, to avoid an exclusionary message? The rhetoric of neutrality, when not further analyzed through the lens of what may seem to be its ultimate purposes (to guarantee freedom and equality) may be mistakenly equated with the simple purging of the public space from religious symbols.
Should the Grand Chamber then bring equality into play as one of the key guiding principles of its analysis in the context of the Lautsi case? Would this rationale make sense in the European context? There is no doubt the Court should respect the wide diversity of church-state arrangements across Europe (and therefore not impose on the entire region the French laïcité or any other church-state modalities). But this does not mean that the Court should not be able to offer individual protection against certain church-state relationships that, in certain contexts, may be deemed a threat to religious freedom and equality. This is, indeed, quite a challenge for which there may not be just one simple answer.
“what if the naked wall is inspired by egalitarian purposes? What if in certain contexts the empty wall is seen as the most feasible option to preserve equality, to avoid an exclusionary message?”
The same goes for the naked flag however. And there are plenty of crosses on our national flags. And, mind you, some crescents too!