Happy fifth birthday to Metamagician and the Hellfire Club

Actually, I'm a day early ... but while I remember ...

This blog started on 26 March 2006 and so has been going for just on five years. I can't say it's the biggest blog on the internet, but it's built up to a fair bit of traffic after starting off as a small personal blog with some occasional thoughts about moral philosophy, or science fiction, or whatever happened to take my fancy at the time.

So anyway: HAPPY BIRTHDAY, DEAR BLOG!!

It is finished!

Yes, that's one book ready to package up and send off in what I hope is its final form.

Now to do some more work on the others. :)

CFI and IHEU on blasphemy laws

This statement has my full support. Apart from the ordinary issues relating to freedom of speech, surely we all have a fair idea by now that laws against "blasphemy", "defamation of religion", and so on, are likely to do more harm than good - if the purpose is social harmony, this is best achieved by policies that encourage people not to take undue offence at disliked speech, and certainly not to respond with violence.

The current push at national level in various countries - as well as at UN level - for blasphemy laws is about the last thing we need.

Harris and Pigliucci on moral philosophy (more)

That thread over at Butterflies and Wheels ran for 284 comments before Ophelia eventually decided to encourage the remaining participants to talk offline. It's a great debate. While there's always more to say, this discussion is a worth a look to see those involved hashing out the issues. Not, of course, that it's conclusive.

H/T "Paul W" - the email about it was appreciated, mate. Which is not the same as saying that you've persuaded me. ;)

Some pics from Ross's birthday the other nite

A little group of us went out for the birthday of my brother-in-law, Ross Allen, the other night. Here's some photos.

Respectively, from top to bottom ... me with my sister, Beverley Allen; Jenny and my Dad, Ken Blackford; and one of me, Dad, and Ross.

And Jenny and I held a not-for-anything-in-particular party at our place on Sunday ... but as far as I know nobody thought to take any photographs for posterity.

Sunday ... er, whoops, Monday ... supervillainy - Jenny on Medea

Over on Gillian Polack's blog, Jenny writes about the much-maligned Medea, the sorceress extraordinaire from Greek mythology who married Jason (of Argonauts fame) and ended up obtaining a gruesome revenge when he dumped her for a younger princess who offered better political prospects.

Even in Euripides' sympathetic version, Medea is best known for helping heroic Argonaut Jason to win the Golden Fleece, but her life is larger than that.

I'd never really understood, despite all the servings of myths and legends in my childhood reading, that Medea was the grand-daughter of Helios, the Sun, and far more powerful a being than Jason ever was. She was fabulously exotic: a Bronze Age princess and sorceress, whose turbulent life took her from exotic Colchis, at the far end of the Black Sea, to some of the greatest palaces of Mycenaean Greece: Iolkos in Thessaly, mighty Corinth, then finally Athens.

Medea served the dark, but well-respected, goddess Hekate. She was the niece of Circe, most famous of Greek witches, who ensorcelled Odysseus' crew. Her father was a powerful king and godling. After delivering the Fleece to Jason – who wouldn't have had a hope without her – and getting him safely back to Greece, Medea murdered Jason's treacherous uncle Pelias, healed the hero Herakles of his madness, and brought about the birth of Theseus.

Medea's myth reveals much about the place of women in ancient Greek society. In the earliest of the ancient sources, Medea is relatively innocent – according to archaic–era Hesiod, she's a "goddess" who marries a mortal man, Jason, and bears him fine sons. Nothing else is mentioned. As time goes on, evil acts accrete around her, so that she becomes an exaggeration of everything a Greek man would not wish for his daughter, wife or daughter-in-law.

Working on the old scholarly apparatus, etc.

Over the last two weeks or so, I've been working on final revisions for my forthcoming book on freedom of religion. This has involved strengthening some of the points where it was maybe a bit "thin" or weak, addressing some new developments (such as the Lautsi v. Italy outcome last week), and, above all, trying to get all the scholarly apparatus (the notes and bibliography) into a better form. I still have a handful of page references to check, and maybe I need to do some last-minute proofreading ... but this is otherwise the final version.

The book has grown by 6,000 words to just over 90,000. It should be on sale in either late 2011 or early 2012- though with a formal 2012 publication date either way. There'll be more reports coming your way as the process goes on.

And in other news, Udo Schuklenk and I have been sent the contract for our next book together (Udo has signed the contract copies, he tells me, and they are in the mail on the way from Canada to Australia). More on this as well, as it unfolds.

The majority opinion in Lautsi v. Italy

 I'm quoting the most salient paragraphs of the main opinion which was joined by some judges in separate opinions. Formally speaking, the case is a decision of the Grand Chamber of the European Court of Human Rights, dated 18 March 2011. It is Application no. 30814/06. Note that the real question before the court was whether the compulsory display of crucifixes in state schools in Italy breached Article 9 of the European Convention Convention on Human Rights, which relates to freedom of thought, conscience, and religion.

What should, I think, be disappointing about this case and the case law that it follows is that it gives a rather weak protection against religiously motivated actions by the state - far weaker than has been found by the US courts interpreting and applying the First Amendment to the US constitution. As I said yesterday, that's not entirely surprising, not only because of previous cases but also because one thing that seems pretty clear is that Article 9 was never intended to prevent the continuation of established churches in countries such as the UK, Sweden, etc.

The bottom line is that the court would have required something much more active in the way of persecution or indoctrination than the mere passive display of symbols such as crucifixes before finding a breach of Article 9. It's not obvious how much more would be needed, but you can draw your own conclusions from the key paragraphs below. I've quoted them in their entirety for context, so don't get bogged down too much in the references to precedents, etc.

For those not familiar with the term, the court talks about a "margin of appreciation", i.e. an area in which the government exercises a legitimate discretion that the court will not interfere with. This a key concept in much of the European human rights jurisprudence.

71.  In that connection, 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 regulations confer on the country's majority religion preponderant visibility in the school environment.

That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.

The Court refers on this point, mutatis mutandis, to the previously cited Folgerø and Zengin judgments. In the Folgerø case, in which it was called upon to examine the content of “Christianity, religion and philosophy” (KRL) lessons, it found that the fact that the syllabus gave a larger share to knowledge of the Christian religion than to that of other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. It explained that in view of the place occupied by Christianity in the history and tradition of the respondent State – Norway – this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum (see Folgerø, cited above, § 89). It reached a similar conclusion in the context of “religious culture and ethics” classes in Turkish schools, where the syllabus gave greater prominence to knowledge of Islam on the ground that, notwithstanding the State's secular nature, Islam was the majority religion practised in Turkey (see Zengin, cited above, § 63).

72.  Furthermore, a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality (see paragraph 60 above). It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities (see on these points Folgerø and Zengin, cited above, § 94 and § 64 respectively).

73.  The Court observes that, in its judgment of 3 November 2009, the Chamber agreed with the submission that the display of crucifixes in classrooms would have a significant impact on the second and third applicants, aged eleven and thirteen at the time. The Chamber found that, in the context of public education, crucifixes, which it was impossible not to notice in classrooms, were necessarily perceived as an integral part of the school environment and could therefore be considered “powerful external symbols” within the meaning of the decision in Dahlab, cited above (see §§ 54 and 55 of the judgment).

The Grand Chamber does not agree with that approach. It considers that that decision cannot serve as a basis in this case because the facts of the two cases are entirely different.

It points out that the case of Dahlab concerned the measure prohibiting the applicant from wearing the Islamic headscarf while teaching, which was intended to protect the religious beliefs of the pupils and their parents and to apply the principle of denominational neutrality in schools enshrined in domestic law. After observing that the authorities had duly weighed the competing interests involved, the Court held, having regard above all to the tender age of the children for whom the applicant was responsible, that the authorities had not exceeded their margin of appreciation.

74.  Moreover, the effects of the greater visibility which the presence of the crucifix gives to Christianity in schools needs to be further placed in perspective by consideration of the following points. Firstly, the presence of crucifixes is not associated with compulsory teaching about Christianity (see the comparative-law information set out in Zengin, cited above, § 33). Secondly, according to the indications provided by the Government, Italy opens up the school environment in parallel to other religions. 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 organised in schools for “all recognised religious creeds” (see paragraph 39 above). Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions.

In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency, or claim that the second and third applicants had ever experienced a tendentious reference to that presence by a teacher in the exercise of his or her functions.

75.  Lastly, the Court notes that the first applicant retained in full her right as a parent to enlighten and advise her children, to exercise in their regard her natural functions as educator and to guide them on a path in line with her own philosophical convictions (see, in particular, Kjeldsen, Busk Madsen and Pedersen and Valsamis, cited above, §§ 54 and 31 respectively).

76.  It follows from the foregoing that, in deciding to keep crucifixes in the classrooms of the State school attended by the first applicant's children, the authorities acted within the limits of the margin of appreciation left to the respondent State in the context of its obligation to respect, in the exercise of the functions it assumes in relation to education and teaching, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The dissenting judgment in the Lautsi case

Good stuff!

DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KALAYDJIEVA

(Translation)

1.  The Grand Chamber has reached the conclusion that there has not been a violation of Article 2 of Protocol No. 1 on the ground that “the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State” (see paragraph 70, and also paragraph 69).

I have difficulty following that line of argument. Whilst the doctrine of the margin of appreciation may be useful, or indeed convenient, it is a tool that needs to be handled with care because the scope of that margin will depend on a great many factors: the right in issue, the seriousness of the infringement, the existence of a European consensus, etc. The Court has thus affirmed that “the scope of this margin of appreciation is not identical in each case but will vary according to the context ... . Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned”.⁷ The proper application of this theory will thus depend on the importance to be attached to each of these various factors. Where the Court decrees that the margin of appreciation is a narrow one, it will generally find a violation of the Convention; where it considers that the margin of appreciation is wide, the respondent State will usually be “acquitted”.

In the present case it is by relying mainly on the lack of any European consensus that the Grand Chamber has allowed itself to invoke the doctrine of the margin of appreciation (see paragraph 70). In that connection I would observe that, besides Italy, it is in only a very limited number of member States of the Council of Europe (Austria, Poland, certain regions of Germany (Länder) – see paragraph 27) that there is express provision for the presence of religious symbols in State schools. In the vast majority of the member States the question is not specifically regulated. On that basis I find it difficult, in such circumstances, to draw definite conclusions regarding a European consensus.

With regard to the regulations governing this question, I would point out in passing that the presence of crucifixes in Italian State schools has an extremely weak basis in law: a very old royal decree dating back to 1860, then a fascist circular of 1922, and then royal decrees of 1924 and 1928. These are therefore very old instruments, which, as they were not enacted by Parliament, are lacking in any democratic legitimacy.

What I find more important, however, is that where they have been required to give a ruling on the issue, the European supreme or constitutional courts have always, without exception, given precedence to the principle of State denominational neutrality: the German Constitutional Court, the Swiss Federal Court, the Polish Constitutional Court and, in a slightly different context, the Italian Court of Cassation (see paragraphs 28 and 23).

Be that as it may, one thing is certain: the doctrine of the margin of appreciation should not in any circumstances exempt the Court from the duty to exercise the function conferred on it under Article 19 of the Convention, which is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. Now, the wording of the second sentence of Article 2 of Protocol No. 1 confers a positive obligation on States to respect the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions.

That positive obligation derives from the verb “respect”, which appears in Article 2 of Protocol No. 1. As the Grand Chamber has rightly pointed out, “in addition to a primarily negative undertaking, this verb implies some positive obligation on the part of the State (see paragraph 61). Such a positive obligation can, moreover, also be inferred from Article 9 of the Convention. That provision can be interpreted as conferring on States a positive obligation to create a climate of tolerance and mutual respect among their population.

Can it be maintained that the States properly comply with that positive obligation where they mainly have regard to the beliefs held by the majority? Moreover, is the scope of the margin of appreciation the same where the national authorities are required to comply with a positive obligation and where they merely have to comply with an obligation of abstention? I do not think so. I incline, rather, to the view that where the States are bound by positive obligations their margin of appreciation is reduced.

In any event, according to the case-law, the margin of appreciation is subject to European supervision. The Court's task then consists in ensuring that the limit on the margin of appreciation has not been overstepped. In the present case, whilst acknowledging that by prescribing the presence of crucifixes in State-school classrooms the regulations confer on the country's majority religion preponderant visibility in the school environment, the Grand Chamber has taken the view that “that is not in itself sufficient, however, to ... establish a breach of the requirements of Article 2 of Protocol No. 1”. I cannot share that view.

2.  We now live in a multicultural society, in which the effective protection of religious freedom and of the right to education requires strict State neutrality in State-school education, which must make every effort to promote pluralism in education as a fundamental feature of a democratic society within the meaning of the Convention.⁸ The principle of State neutrality has, moreover, been expressly recognised by the Italian Constitutional Court itself, in whose view it flows from the fundamental principle of equality of all citizens and the prohibition of any discrimination that the State must adopt an attitude of impartiality towards religious beliefs.⁹

The second sentence of Article 2 of Protocol No. 1 implies that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that knowledge is conveyed in an objective, critical and pluralistic manner. Schools should be a meeting place for different religions and philosophical convictions, in which pupils can acquire knowledge about their respective thoughts and traditions.

3.  These principles are valid not only for the devising and planning of the school curriculum, which are not in issue in the present case, but also for the school environment. Article 2 of Protocol No. 1 specifies 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 in conformity with their own religious and philosophical convictions. In other words, the principle of State denominational neutrality applies not only to the content of the curriculum, but the whole educational system. In the case of Folgerø the Court rightly pointed out that the duty conferred on the States under that provision “is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the 'functions' assumed by the State”.¹⁰

This view is shared by other both domestic and international bodies. Thus, in its General Comment No.1, the United Nations Committee on the Rights of the Child has affirmed that the right to education refers “not only to the content of the curriculum, but also the educational processes, the pedagogical methods and the environment within which education takes place, whether it be the home, school, or elsewhere”¹¹, and also that “the school environment itself must thus reflect the freedom and the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups”.¹²

The Supreme Court of Canada has also observed that the school environment is an integral part of discrimination-free education: “In order to ensure a discrimination-free educational environment, the school environment must be one where all are treated equally and all are encouraged to fully participate.”¹³

4.  Religious symbols are indisputably part of the school environment. As such, they might therefore infringe the duty of State neutrality and have an impact on religious freedom and the right to education. This is particularly true where the religious symbol is imposed on pupils, even against their will. As the German Constitutional Court observed in its famous judgment: “Certainly, in a society that allows room for differing religious convictions, the individual has no right to be spared from other manifestations of faith, acts of worship or religious symbols. This is however to be distinguished from a situation created by the State where the individual is exposed without possibility of escape to the influence of a particular faith, to the acts through which it is manifested and to the symbols in which it is presented”¹⁴. That view is shared by other supreme or constitutional courts.

Thus, the Swiss Federal Court has found that the duty of denominational neutrality incumbent on the State is of special importance in State schools, where schooling is compulsory. It went on to say that, as guarantor of the denominational neutrality of the school system, the State could not, where teaching was concerned, manifest its own attachment to a particular religion, be it a majority or a minority one, because certain people may feel that their religious beliefs are impinged upon by the constant presence at school of the symbol of a religion to which they do not belong.¹⁵

5.  The crucifix is undeniably a religious symbol. The respondent Government argued that, in the context of the school environment, the crucifix symbolised the religious origin of values that had now become secular, such as tolerance and mutual respect. It thus fulfilled a highly educational symbolic function, irrespective of the religion professed by the pupils, because it was the expression of an entire civilisation and universal values.

In my view, the presence of the crucifix in classrooms goes well beyond the use of symbols in particular historical contexts. The Court has moreover held that the traditional nature, in the social and historical sense, of a text used by members of parliament when swearing loyalty did not deprive the oath to be sworn of its religious nature.¹⁶ As observed by the Chamber, negative freedom of religion is not restricted to the absence of religious services or religious education. It also extends to symbols expressing a belief or a religion. That negative right deserves special protection if it is the State which displays a religious symbol and dissenters are placed in a situation from which they cannot extract themselves.¹⁷ Even if it is accepted that the crucifix can have multiple meanings, the religious meaning still remains the predominant one. In the context of state education it is necessarily perceived as an integral part of the school environment and may even be considered as a powerful external symbol. I note, moreover, that even the Italian Court of Cassation rejected the argument that the crucifix symbolised values independent of a particular religious belief (see paragraph 67).

6.  The presence of crucifixes in schools is capable of infringing religious freedom and schoolchildren's right to education to a greater degree than religious apparel that, for example, a teacher might wear, such as the Islamic headscarf. In the latter example the teacher in question may invoke her own freedom of religion, which must also be taken into account, and which the State must also respect. The public authorities cannot, however, invoke such a right. From the point of view of the seriousness of the infringement of the principle of State denominational neutrality, this will accordingly be of a lesser degree where the public authorities tolerate the headscarf in schools than where they impose the presence of crucifixes.

7.  The impact which the presence of crucifixes may have in schools is also incommensurable with the impact that they may have in other public establishments, such as a voting booth or a court. As the Chamber rightly pointed out, in schools “the compelling power of the State is imposed on minds which still lack the critical capacity which would enable them to keep their distance from the message derived from a preference manifested by the State” (see § 48 of the Chamber judgment).

8.  To conclude, effective protection of the rights guaranteed by Article 2 of Protocol No. 1 and Article 9 of the Convention requires States to observe the strictest denominational neutrality. This is not limited to the school curriculum, but also extends to “the school environment”. As primary and secondary schooling are compulsory, the State should not impose on pupils, against their will and without their being able to extract themselves, the symbol of a religion with which they do not identify. In doing so, the respondent Government have violated Article 2 of Protocol No. 1 and Article 9 of the Convention.

1.  Justin Marozzi, The Man who Invented History, John Murray, 2009, p. 97.

Lautsi v. Italy

This important case can be found here on the portal for the European Court of Human Rights. The point is that the court at the highest level found that it was acceptable for Italy to have crucifixes on prominent display in its public schools. This appeal overturned the court's earlier decision in 2009.

I've got to say that I'm not surprised by this. I'm not happy with it, but I'm not surprised. After all, Europe is a continent bristling with established churches, and it's long been clear that their continued existence would not be threatened by the European Convention on Human Rights. The provision for freedom of religion has been interpreted in some odd ways in previous case law, but it never seems to have much in the way of teeth when it comes to preventing government endorsements and establishments.