March 22, 2011
Lautsi v. Italy was destined to achieve legendary status in the ECtHR’s case law. In fact, it became the stuff of legends long before the Grand Chamber’s judgment came out. Rarely has a judgment of a supranational court put such a spell on people. Rarely has it inspired such passionate comments and speculation even before it was released. Rarely have so many people looked forward to a judgment with such anxious anticipation. But why? What is it about the issues involved in this case that causes it to speak so strongly to the hearts and minds of so many? It is a question I have been asking myself for a while now, while reflecting on the tension between freedom of and freedom from religion in the Court’s case law. And the question is haunting me now more than ever, having read the Lautsi judgment and the comments in the blogosphere thereon and preparing a post of my own. I have not been able to come up with a satisfactory answer to the question. At least not satisfactory to a legal mind. My personal preoccupation with Lautsi seems to stem from a strong conviction that neutrality requires that the state should not hang crucifixes on the walls in public schools. I will attempt to explain my opinion in this post. But I will also explain why this is perhaps not an issue to be decided by a human rights court.
What I read the Court to be saying in Lautsi is: states are free to regulate matters of religious symbols as they see fit and we will not intervene in this matter as it is not something for a supranational court to decide on. The only limitation the Court puts forward is that the decisions of the national authorities should not lead to indoctrination and should not violate any Convention rights. The Court goes on to find that, in casu, it is true that by prescribing the presence of crucifixes in State-school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the country’s majority religion is granted preponderant visibility in the school environment. However, the Court does not consider this element sufficient to constitute indoctrination. In fact, it describes the crucifix on a wall as an essentially passive symbol, an element which it considers to be particularly important having regard to the principle of neutrality. The Court finds that no evidence has been brought before it demonstrating that the display of a religious symbol on classroom walls may have an influence on pupils. Thus it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed. Consequently, the Lautsis’ rights had not been breached. In fact, it appears as though the Court is of the opinion that they have not even been interfered with.
Now, a great deal can be said about the reasoning of the Court in this case. And in fact, a lot has been written about it already. This grants me the benefit of being able to refer to Lorenzo Zucca’s post on EJIL:Talk! and to Nicolas Hervieu’s post on Combats pour les droits de l’homme.
I will limit myself to dealing with the argument from neutrality here. Reading the judgment, I noticed that there seems to be a lot of conceptual confusion about the relationship between neutrality and secularism. This confusion is most clearly present in the Italian government’s assertion that “the Chamber’s judgment in Lautsi was based on confusion between “neutrality” (an “inclusive concept”) and “secularism (an “exclusive concept”)”. This assertion rests on a flawed assumption, which is present in the minds of some of the Judges of the Grand Chamber as well. Particularly Judge Power’s concurring opinion demonstrates that fundamental misconception. She states that “[n]eutrality requires a pluralist approach on the part of the State, not a secularist one. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option.”
I firmly agree with Lorenzo Zucca that the confusion arises from a disregard for the various conceptions of secularism and that our starting point should be secularism as a constitutional principle and not as a philosophical ideology. In this respect, Charles Taylor has made the crucial point that, even then, secularism is often misrepresented as defining the relations between the state and religion, while it is in fact concerned with finding the correct response to diversity and with protecting each person’s liberty and equality. It must also be borne in mind that secularism, as a constitutional principle, should not be an aim in itself, but rather a means to achieve an end: ensuring equality between all religious and non-religious believers living together in a pluralistic society. Now, that aim may be achieved by way of closed neutrality (banning all religious symbols from the public sphere; exclusive) or open neutrality (principally allowing all religious symbols in the public sphere; inclusive).
When taking the described approach, it becomes clear that secularism is not an ideology that prefers one position over all others, but a principle that all people of all convictions and beliefs can support, precisely because its aim is equality. The only question is: should the equality aim be achieved through closed or open neutrality? I strongly advocate open neutrality and submit that all religious symbols should principally be allowed in the public sphere. However, in my opinion this rule comes with two exceptions. The first, and one that admittedly requires further thought and elaboration, is that religious symbols can still be banned when they impair the autonomy of (particularly vulnerable) others, including their freedom from religion. This is particularly important for the wearing of religious symbols, for instance by primary school teachers. However, it rests on the assumption that the wearing of such symbols may influence the religious beliefs of others. The Grand Chamber has rejected such an argument in Lautsi, finding that “[t]here is no evidence … that the display of a religious symbol … may have an influence on pupils.” It therefore appears as though further research, particularly sociological studies on the impact of symbols on children of young age, is required before the first limitation can be fully justified.
Luckily enough, it is not the first, but the second limitation that is the most important one in the crucifix case. The second limitation to open neutrality is that the equality aim needs to be maintained. This limitation may appear straightforward, but it is – at first glance strangely enough – disregarded by the Court in Lautsi. The limitation based on equality is, contrary to the limitation based on autonomy, particularly important for the State and not so much for individuals. Equality demands that the State not grant preferential treatment to any (non)-religious view. Yet this is precisely what the Italian State does when it requires the display of crucifixes on public school walls. It may well be the case that the symbol itself is passive (as Zucca clarifies, a symbol is necessarily ‘passive’ as it has no capacity for active agency), but the decision to display it is certainly an active one. Yet this active decision by the State – and what it means – has not received due consideration in the Court’s judgment. It is clear that the deliberate choice to only display a crucifix – a symbol that cannot be divested of its primarily (I would submit solely) religious meaning – violates the equality aim of neutrality. Nicolas Hervieu has argued that the Court has conjured up a compensation strategy in its judgment to offset this argument. In its judgment the Court indeed refers to the fact that in Italy pupils are allowed to wear the headscarf, the beginning and end of Ramadan are “often celebrated”, etc.. However, I would support Hervieu’s assessment of this argument by submitting that the Court takes a second misstep here by equating pupils exercising their religious freedom with the State exercising its power to hang crucifixes on the wall. In that respect, I do not agree with the argument presented by Judges Rozakis and Vajić that, in displaying the crucifix, the State is exercising – on behalf of society – the right to manifest their (majority) religious beliefs. This is not a question of the exercise of rights by the State, but of the exercise of its prerogatives and powers. By displaying the crucifix, the state is choosing – through an exercise of power – to represent the majority religion in classrooms in public schools and to not represent any other (non-)religious views. This is obviously different from a pupil wearing a headscarf. The pupil is not under a duty of neutrality, the state is. The pupil cannot violate the equality aim of neutrality, the state crucially is violating that very equality aim by demanding the display of the crucifix.
However, and here comes the sting to this argument, is this a human rights issue? In the absence of any proof of influence on the pupils (and thus also on their parents’ right to choose their children’s education according to their own religious or philosophical convictions), it would appear not. In this respect, Judges Malinverni and Kalaydjieva present a counter-argument by combining the right to education with the duty of impartiality and neutrality of the State in educational matters, an element to which the majority also referred, but did not substantially engage with. Nonetheless, one can certainly understand other Judges, such as Judge Power and Bonello, who fail to see where the interference with any of the Convention rights of the applicants lies.
Ultimately, and not devoid of any sense of irony, it appears as though the Court could have avoided all the controversy surrounding the Lautsi case if it had simply used the argument of lack of proof of influence to declare the application inadmissible in the first place. Then it would also have been up to the States to decide this matter, since it would – barring any sign of indoctrination – fall outside the realm of the ECHR. Moreover, and this is where the irony comes in, the Court could have saved itself from worrying about what neutrality and secularism precisely demand in a pluralistic European society, from having to engage in an elaborate reasoning on the meaning of the crucifix in contemporary Europe, and from having to present an unconvincing one on the role of the margin of appreciation in a (not so) divided Europe.
Addendum – Perhaps it is a human rights issue after all.
While reflecting further on the question whether the Lautsi case reflects a human rights issue under the ECHR, and through discussion with a colleague, I realised a further argument needs to be made on this subject. When assessing the influence the crucifix on the wall in public school classrooms may have on children, we should not only ask the question as to the potential influence of the symbol itself (‘passive’), but also of the message the state is sending by prescribing its display (‘active’). When children come to understand the meaning of the symbol on the wall of their classroom, is not the most logical conclusion they will draw from its presence – children being curious – that it is there because the school wants it to be there? Is the logical link to make not that the school (representing the authority of the state towards children in education) finds Christianity so important that it requires each classroom to be equipped with a cross with Jezus Christ on it? And what message does this send to children who are still developing their own (non-)religious views? I am a jurist, not a psychologist. Not having any answer myself, I raised this argument by way of questions. Anyone is free to reject the argument for that reason, me lacking the knowledge to make such assumptions (and I would surely not have any argument to counter such swift dismissal!), but I would still submit the questions raised merit attention. In that context it is, in my opinion, crucial to consider the argument made by, among others, Michael Sandel that external factors – the society one lives in, the views of one’s family, the environment in which one grows up, etc. – have an influence on the (non-)religious views one will adopt in life. In that respect, people are generally not entirely free to choose their own (non-)religious convictions and beliefs. Taking this into account, do children not at least deserve an education in which the state refrains from expressing its preference for the majority religion?
 C. Taylor, “The Meaning of Secularism”, The Hedgehog Review, Fall 2010, 25 and 33.
 For scepticism on the majority’s application of the margin of appreciation in this case, see the dissenting opinion of Judges Malinverni and Kalaydjieva, as well as Lorenzo Zucca’s post on EJIL:Talk! (definitely check out the interesting discussion below the post as well!).
 M. Sandel, “Religious Liberty – Freedom of Conscience or Freedom of Choice?”, Utah Law Review, 1989, 597-615.