The final word on the Lautsi case:
the European Court of Human Rights opts for reasonableness
The so-called ‘Lautsi case’ has been one of the most hotly debated topics in the last year and a half, when it comes to the question of the presence of religious symbols in the public sphere. On 18 March 2011, the Grand Chamber of the European Court of Human Rights issued a positive and definitive decision on the matter.
In November 2009, the Second Section of the European Court of Human Rights (ECHR) had found 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, restricted the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not to believe. Such restrictions were deemed incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education. Last March, the ECHR Grand Chamber overturned the previous decision, concluding that, in deciding to keep crucifixes in the classrooms of the State school attended by Ms. Lautsi's children, the authorities had acted within the limits of the margin of appreciation left to the respondent State in the context of the above-stated obligation.
The argument of the Grand Chamber
The Court clarifies first of all that the decision concerns the compatibility, in the light of the circumstances of the case, of the presence of crucifixes in Italian State-school classrooms with Article 2 of Protocol No. 1, also read in the light of Article 9 of the Convention; and not the presence of crucifixes in places other than State schools or the compatibility of their presence in State-school classrooms with the principle of secularism as enshrined in Italian law.
The Court reminds that Article 9 imposes on the Contracting States a ‘duty of neutrality and impartiality’, in which context States are also responsible for ensuring ‘neutrally and impartially’, the exercise of different religions, faiths and beliefs and of preserving public order, religious harmony and tolerance in a democratic society, especially among ‘opposing groups’.
However, because of the diversity of practices and of situations in the Contracting States, the requirements linked with the concept of ‘respect’ for the above-noted right of parents vary considerably from case to case, which justifies a wide margin of appreciation for States in this area.
The Court confirms that the setting and planning of the curriculum fall within the competence of the Contracting States and that in principle the Court is not called upon to decide on such issues, whose solutions can legitimately differ depending on the State and the historical period; and that the State, in exercising these functions, must ensure that the curricula’s information/knowledge is “…conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism”, while the State “…is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions”. The Court also confirms that the obligation to respect the religious and philosophical convictions of parents concerns the exercise of all the ‘functions’ that the State assumes in the area, including the organisation of the school environment, where the national law attributes this function to the public authorities (as in the case of crucifixes in Italian State-school classrooms).
According to the Court, while the crucifix is above all a religious symbol, there is no evidence that the display of a religious symbol on classroom walls may or may not have an effect on young persons whose convictions are still in the process of being shaped. The applicant's subjective perception in this regard is alone not sufficient to establish a breach of Article 2 of Protocol No. 1.
The Court also underlines that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State and that consideration must be given to Europe’s great diversity in cultural and historical development; but it adds that the reference to a tradition cannot free a Contracting State from the obligation to respect the Convention and its Protocols.
However, the Court restates that the margin of appreciation in reconciling the exercise of the above-noted functions assumed by the State with the described right of parents also applies to the organisation of the school environment. Therefore, the Court refers to the duty it has in principle to respect the Contracting States’ decisions in such matters, including the place accorded to religion, provided that they do not lead to a ‘form of indoctrination’. This applies also to the decision whether crucifixes should be present in State-school classrooms, an option made advisable by the absence of a European consensus on the presence of religious symbols in State schools.
As for the compliance with the limits of this margin of appreciation, while Italy’s practice attributes to the country’s ‘majority religion’ a ‘preponderant visibility in the school environment’, this is not sufficient to give rise to a process of indoctrination (in accordance with previous ECHR jurisprudence). The Court also adds that a crucifix on a wall “…is an essentially passive symbol” and that its influence on pupils cannot be compared to that of ‘didactic speech’ or of ‘participation in religious activities’. Moreover, the effects of the greater visibility thereby granted to Christianity in Italian schools needs to be placed in perspective, as no compulsory teaching about Christianity is foreseen and the Italian school environment is open to other religions (e.g. no prohibition on pupils to wear religious symbols). In the case at issue, the presence had not encouraged proselytising teaching practices or ‘tendentious references’ to it during teaching activities.
Finally the Court refers to the fact that Ms. Lautsi was not deprived of her right as a parent to ‘enlighten and advise’ her children, educating and guiding them on the basis of her own philosophical convictions.
A first assessment
The decision of the Grand Chamber brings the European Court of Human Rights back into the realm of reasonableness, while marking a scorching, historical defeat for those who claim that secularism should pervade the life of EU citizens and permeate every aspect of each European State’s reality. The decision also deals a blow to those who, at the EU level, contradictorily flag up the respect for fundamental rights (and the relevant Charter) while proposing to erase any presence and role for religion in the public square.
The new decision recognises what should have been already obvious in 2009: the importance of respecting national identities and the differences that naturally exist between States, as well as the fact that matters that are deeply rooted in the tradition of a country should not be dealt with at this level. If the November 2009 reasoning had been confirmed, the ECHR would have opted for the support of views held by a vocal (but very small) minority, imposing them on the majority of people who legitimately demanded that their country’s identities and traditions be fully respected. The new decision also prevented unneeded social tensions and the risk of alienating the penchant of the European population for the Court itself.
The final Lautsi decision should however not be seen as an arrival, but rather as a starting point. It would be important if the judgement could open a new chapter. A new season in which the focus is switched back onto real, evident violations of human rights, neglecting cases that have more to do with ‘ideological crusades’ and subjective perceptions than with the rights that stand close to the heart of Europeans.
Article 9 of the European Convention on Human Rights states that everyone has the right to freedom of thought, conscience and religion, including the freedom to change one’s religion or belief, and the freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance (paragraph 1); and that freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others (paragraph 2). Article 2 of Protocol 1 states that no person shall be denied the right to education and that in the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.