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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Sunday, March 20, 2011

The dissenting judgment in the Lautsi case

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.


Unknown said...

That's a nice distinction in paragraph 6 between an individual vs. an institutional display. Rightly drawn, I would say.

Rorschach said...

I read the ruling and the dissenting judgment. I still can't see how they arrived at their ruling, unless Italy has become a theocracy with a state religion when I wasn't looking.