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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 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.


Jason Streitfeld said...

The comparison to Folgero and Zengin fails. Presenting a secular course on religion which focuses significantly more on Christianity is nothing like presenting crucifixes on the wall of a supposedly secular institution. The court recognizes that there's a difference, but they get it backwards. They say that didactic discourse on Christianity in the classroom is more likely to influence students than a passive symbol on the wall. Not at all. First, symbols aren't passive. Second, classroom education on religion can have a secular foundation. And what is the secular foundation for having a crucifix on the wall? None has been established.

By the way, the link to the decision doesn't work anymore. It worked a couple days ago, but today I'm getting an error message.

Russell Blackford said...

I don't know what the problem is with the link. It works fine for awhile then stops working - this also happened with the other posts. But you can find the case easily enough by going to the portal and searching on "Lautsi".

Anonymous said...

Well, how about the fact that they exclusively peddle Roman Catholic education in public schools here? Of course, it's "optional", but there really are no options other than sitting by yourself in the hallway or an unoccupied classroom while the rest of the class "learns" about Jesus. It's so much more than just the symbols. Unfortunately, Lautsi vs. Italy was only about that one point.