Lautsi v. Italy: Possible Implications for Minority Religious Symbols

What are the implications of the recent landmark judgment in Lautsi for minority religious symbols in state school classrooms? At first sight, the Court seems to adopt a more open approach towards the presence of religious symbols in the school environment. On closer examination, however, this may not necessarily be the case. This post briefly speculates on the Court’s answers in two post-Lautsi imaginary scenarios: What would happen in a case filed by a state school teacher wearing a headscarf against a Member State that bans it? What might be the Court’s response to a parent’s complaint against a Member State that allows teachers to wear the headscarf in state schools?

The decision to allow for the presence of the crucifix in Italian state school classrooms does not really seem the result of a new open stance towards the presence of religious symbols in schools but rather the result of the application of the margin of appreciation. The Court says that, in principle, it would respect states’ decisions regarding the setting of the school curriculum and the organization of school environment – including the place they accord to religion – “provided that those decisions do not lead to a form of indoctrination.” (para. 69) The Court thus makes clear that in cases of indoctrination it will step in. Giving preponderant visibility to the country’s majority religion in the school environment is however perfectly fine with the Court. In its view, this is not in itself sufficient to amount to indoctrination. Plus, the crucifix on the wall – the Court says – is “an essentially passive symbol” whose influence on pupils cannot be compared to that of didactic speech or participation in religious activities (para. 72).

Although at this point of the judgment the Court already appears to have made up its mind, it nonetheless goes on and further looks at a series of factors that may possibly counteract the greater visibility the presence of the crucifix gives to Christianity in Italy. Interestingly, one of these factors is the openness of the school environment to other religions. The Court states in paragraph 74:

“The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were ‘often celebrated’ in schools; and optional religious education could be organized in schools for ‘all religious creeds.’”

So the first question from a religious minority perspective in fact concerns a pre-Lautsi tentative scenario. Had Italy excluded non-Christian symbols and religions from state schools, would the Court still have ruled the same way? Possibly yes. The inclusion-of-other-religions argument seems to play a rather minor or secondary role in the Court’s overall reasoning. The margin of appreciation and the other two arguments I’ve mentioned above seemed to have already played a decisive role.

Now, the first post-Lautsi imaginary scenario: what would happen in a future case brought by, say, a state school teacher wearing a headscarf against a Member State that bans it? The Court is most likely to get away with it by invoking the margin of appreciation. Lautsi makes clear that the Court will in principle keep its hands off states’ regulations on the place of religious symbols in state schools with the obvious disparate consequences this may have across Europe. The lack of consensus on this matter, the Court explains, supports this approach. As a result, the headscarf and other minority symbols may thus be banned from state schools in certain Member States while the crucifix may be allowed. This is actually already illustrated by Dahlab and Lautsi, respectively. In Dahlab v. Switzerland, the Court somehow seemed to defer to the principle of denominational neutrality enshrined in Swiss domestic law prohibiting the wearing of the headscarf by state school teachers. In Lautsi v. Italy, the Court seems to defer to Italian regulations mandating the display of crucifixes in state school classrooms.

Another possible post-Lautsi scenario might have as a protagonist a parent filing a complaint against a Member State that allows teachers to wear the headscarf in state schools. Would the Court still rely on the margin of appreciation if such case reached Strasbourg? One thing to be taken into account in answering this question is the assumptions the Court has made in its prior case law regarding other religious symbols in the school environment, more specifically, the Islamic headscarf. In Dahlab, for example, the Court simply assumed that the wearing of a headscarf by a teacher “might have some kind of proselytising effect.” Like in Lautsi, however, there was no evidence that the teacher wearing the headscarf may have had an influence on pupils. In Dahlab, the Court even admitted that “during the period in question there were no objections to the content or quality of the teaching provided by the applicant, who does not appear to have sought to gain any kind of advantage from the outward manifestation of her religious beliefs.” Evidence is lacking in both cases but in one of them – in Dahlab – the Court appears to assume that the wearing of the headscarf may have an influence on young pupils. Thus, the Court passes different judgments on different religious symbols. While the crucifix is seen as “an essentially passive symbol”, the headscarf is seen as a “powerful external symbol.” Lautsi seems to uphold Dahlab in this regard.

So, to sum up, the Court’s view of the headscarf as having “some kind of proselytizing effect” might play a role in the second imaginary case unless it decides to overrule Dahlab in this particular respect. If it does so – and I think it should – and then strictly follows Lautsi, it will have to look at whether there is any evidence of influence on pupils. If the standard is “indoctrination” – as the Court seems to make clear in Lautsi – Judge Power appears to be right in that “[the] display of a religious symbol does not compel or coerce an individual to do or to refrain from doing anything. It does not require engagement in any activity …” In future cases, the Court would therefore have to look for evidence of indoctrination. What is more, the Court will do well in further considering that, unlike Lautsi, in cases concerning teachers there is an individual right to freedom of religion clearly at stake.

7 thoughts on “Lautsi v. Italy: Possible Implications for Minority Religious Symbols

  1. Hi,

    I am working as a PhD-student at the University of Oslo, Department for public and international law. The thesis I am working on regards the child’s right to freedom of religion.

    I couldn’t agree more with you regarding your assessment of your second post-Lautsi scenario regarding parents filing a complaint against a Member State that allows teachers to wear the islamic head scarf. The test from now on should be whether “indoctrination” has taken place or might take place.

    Regarding your first post-Lautsi scenario, I wonder if not another outcome is possible as well. The outcome of a case where a teacher brings up a case against the banning of the head scarf in school worn by herself might depend on the type of relationship between state and religion, though taking into consideration the wide margin of appreciation.

    Let me explain my thoughts. In Leyhla Sahin v. Turkey, as well as in Dogru v. France, and as you point out in Dahlab v. Switzerland the court accepted a ban of the headscarfs in public spheres, either it was a student, a pupil or a teacher. Turkey and France, which the Court I think pointed out clearly, have a policy of läicité or strong secularism. The Court takes the position that this kind of secularism is compatible with the notion of pluralism (I don’t say I agree with the court here, by the way) underlying the convention. In Dahlab v. Switzerland the Court accepted the swiss notion of a denominational, public school.

    What would be then the case in countries which do not follow the same approach regarding the states relationship to religion? Is it possible to think that the court would reject the Norwegian states ban of a teachers hijab in school, because the court is aware of the fact that Norway is practising a policy which the state itself has called “an active supporting policy towards religion and belief” meaning that as long as there is a state church in Norway, the state has to be open minded and tolerant towards other religions. With that background, is it possible to think that the ECHR would conclude that a ban of hijab of school teachers does not fit with the national policy and thus the ban is disproportionate despite a wide margin of appreciation?

    Similar might be the scenario if such a case would come up in Italy, especially after the Lautsi-case. Once the state has the margin of appreciation to have crucifixes hanging on the wall of a classroom, then it has to allow the wearing of a hijab by a teacher.

    I am asking, not really sure if the court would take the national or local pratice of state-religion relationship into account in future cases. What you suggest in your comment, if I read it correctly, is that the court in any post-Lautsi case would be “hands-off” when it comes to a states regulation of religious manifestations in public spheres relying on the wide margin of appreciation. However, maybe the states actions must be within the frame of state-religion relation which the state itself has drawn up over time. The limit for the states margin of appreciation might be the states own policy on state-religion relation and the role of religion in the public sqhere.

    • Thanks so much for your remarks and intriguing questions. You’re right. That may well be another possible scenario. I haven’t thought about this one. As you say, states’ own laws concerning church-state relations might limit the margin of appreciation.

      However, two reasons make me think that the Court might still keep its hands off in those cases. The first reason has to do with the Court’s negative – and, in my opinion, regrettable – perception of the headscarf. This has been made clear in cases like Dahlab and Leyla Sahin. Furthermore, in Lautsi, the Court has made sure not to overrule Dahlab by attempting – unconvincingly in my view – to distinguish it from Lautsi. So there is still this idea of the headscarf as a “powerful external symbol” which might have “some kind of proselytizing effect” and which “could not easily be reconciled with the message of tolerance, respect for others” (see Dahlab and Sahin) floating in the Court’s case law.

      Sahin was a student and I do not intend to mix apples and oranges here – as Stanley Fish would say (1). My intention is just to highlight the Court’s negative assumptions about the headscarf and the role this might play in its future reasoning. The other reason why I think the Court may simply refrain from intervening is that it seems to be perfectly OK to give greater prominence to majority religious’ symbols without necessarily raising equality concerns. So if a state school teacher is now forbidden from wearing the headscarf in Italy, I’m not sure the Court will find, for example, an alleged difference in treatment unjustified. To conclude, if a teacher now (after Lautsi) brings a complaint against Italy for prohibiting her from wearing the headscarf in a state school, it wouldn’t surprise me that the Court still applies a wide margin of appreciation.

      (1) Stanley Fish, “Crucifixes and Diverstiy: The Odd Couple,” NY Times Opinionator Blog http://opinionator.blogs.nytimes.com/2011/03/28/crucifixes-and-diversity-the-odd-couple/

  2. How would the Court react in your opinion in a Greek application by atheist parents concerning (large and Byzantine-style only) icons of Christ in schoolrooms whose presence according to the Ministry “contributes to the development of religious conscience of pupils, is compatible with the Orthodox Christian tradition and is prescribed by current legislation” by which legislation they mean a general reference that that “one of the aims of education is to assist the pupils to espouse faith in the fatherland and to the genuine elements of Orthodox Christian tradition”? Would they have to admit that this is indoctrination especially as it co-exists with daily morning Christian prayer and often Sunday masses?

    • Many thanks for your questions! The Court seems to have made clear in Lautsi that the mere presence of a religious symbol in classroom is not per se sufficient to amount to indoctrination, regardless of its size. So the presence of the large symbol you mention might pass the test. However, I guess the surrounding circumstances and justifications for the display might play a role in the assessment of whether there is or not indoctrination. If, as you say, the presence of such symbol in Greek school classrooms is to “contribute to the development of religious conscience of pupils” then the Court should take this into account in its assessment. In my opinion – although I am not sure this may be the Court’s view – compulsory Christian prayers and Sunday mass in state schools might be said to violate a child’s freedom of conscience since they compel her to engage in worship.

  3. Hi again dear Lourdes,

    I see your point, and I actually agree that the way the Court has described the hijab in the well-known cases points to the direction that it differentiates on an unequal footing between the religious symbol of the muslim minority and the christian majority. Yet, in the cases of Turkey, Sahin and Köse and 93 others v. Turkey the ban of wearing the hijab was a ban against members of the majority religion in Turkey. Thus, it does not seem to be an issue based on minority/majority symbol as at least one of my colleagues here at the Department is arguing for.

    After reading your answer to my comment, I wonder if the colleague, which I admittedly were agreeing with since she argued well for her point of view, has overlooked the fact that though Islam is the majority religion in Turkey it definately is a minority religion in Europe and among the judges of the ECtHR.

    I think what I try to say is that I can see that I am still not sure how to interpret the Courts decisions in freedom of religion. It seems to me that I can’t really wrap my head around the various decisions mainly because the Courts practice itself is pointing into all different directions associated with freedom of religion, such as the term of neutrality, majority/minority relationship, pluralism, secularism and which notions the Court thinks off when using these terms directly or indirectly. Well, this is all familiar and no news to anybody working on the subjekt of freedom of religion in Europe.

    Thank you for the interesting discussion, and I hope we can continue whenever the Court comes up with another interpretation of the right to freedom of religion.

  4. Dear Lourdes

    Very interesting and insightful discussion on the courts intepretation on the ‘potential’ impact of religious symbols through the message the convey. I agree with you that there is no evidence provided on indotrination of symbols and there seems to me to be some underlying indirect discrimination between religions when deciding which is ‘passive’ and which is ‘powerful’.

    I would like to request you consider the effects this may have within the employment industry. Eweida who has gone to Strasborg claiming discrimination for not being allowed to wear her cross, is an example of a case that the court may shed more light on indoctrination in emploent public area. consider allowing the sihk religious band being allowed to be worn in employment, is this another example of underlying discrimination against another religion, in this instance against christians?

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