March 31, 2011
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.