While many observers have been focusing on pertinent developments in Egypt, the world of constitutional law marches on. Earlier today (March 18), the Grand Chamber of the European Court of Human Rights delivered its ruling in Lautsi v. Italy (case no. 30814/06) – arguably one of the most significant rulings in the ECtHR’s history pertaining to freedom of (and from) religion, and perhaps also to its complex relations with member states’ domestic laws, constitutional choices and practices. The Grand Chamber reversed the 7:0 decision of the Second Chamber and upheld, 15:2 the right of Italy to display the crucifix in public school classrooms.
In November 2009 the ECtHR’s seven-judge Chamber decided unanimously that the presence of crucifixes in Italian classrooms contravened Article 9 (freedom of thought, conscience, and religion) of the ECHR, as well as Article 2 of Protocol 1, which provides that “the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” A request by a Finnish-born, atheist Italian mother whose children attended an Italian school to remove the crucifixes from her children’s classrooms was dismissed by Italy’s Consiglio di Stato on the ground that the cross had become one of the values of the Italian Constitution and represented the values of civil life. In accepting the mother’s appeal, the ECtHR advanced clear “disestablishment” reasoning. It held that the state “was required to observe confessional neutrality in the context of public education, where attending classes was compulsory irrespective of religion, and where the aim should be to foster critical thinking in pupils.” The court was “unable to grasp how the display, in classrooms in State schools, of a symbol that could reasonably be associated with Catholicism (the majority religion in Italy) could serve the educational pluralism that was essential to the preservation of a ‘democratic society’ as that was conceived by the Convention, a pluralism that was recognized by the Italian Constitutional Court.”
It is little wonder that Italian political leaders have reacted with outrage. One government minister, Roberto Calderoli, noted that “[t]he European court has trodden on our rights, our culture, our history, our traditions and our values.” Another minister noted that preventing the crucifix from being displayed was “an act of violence against the deep-seated feelings of the Italian people and all persons of goodwill.” Italy’s colorful prime minister Silvio Berlusconi, whose own adherence to Christian morality is occasionally questioned, described the ruling as a “nonsensical attempt to deny Europe’s Christian roots” and thus “unacceptable for us Italians.”
In early 2010, Italy launched an appeal. The hearing took place in June 2010. Renowned European public law scholar Professor Joseph Weiler of NYU, who has written extensively on Europe’s Christian heritage, intervened pro bono in the case on behalf of several European countries where a single denomination has long served as a basis of nationhood and collective identity (e.g. Armenia, Greece, Cyprus, Malta, Russia), essentially suggesting that the in the context of Italian (and similarly situated countries’) history, the crucifix is not merely a religious symbol, but a broader, deeply ingrained symbol of nationalism, statehood, collective identity and demos formation.
In a 15:2 decision, the Grand Chamber overturned the initial ruling by the Chamber. It has reached the conclusion that there has not been a violation of Article 2 of Protocol 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” (paragraphs 69-70). The Court acknowledged Europe’s diverse legal landscape with respect to religion, and went on to suggest that “the fact that there is no European consensus on the question of the presence of religious symbols in State schools” speaks in favour of a margin of appreciation approach. At the same time, “this margin of appreciation, however, goes hand in hand with European supervision.” A roughly similar deference to local traditions and authorities is manifested in the ECtHR 2005 ruling in the Leila Sahin case, dealing with restrictions imposed by the pre-AKP Turkish government on wearing Islamic headscarves in the Turkish public education system. The Grand Chamber ruling also engages in an interesting discussion of the crucifix in the classroom as a “passive” (and thus less intrusive) religious symbol, as opposed to active speech, mandatory curricular religious teachings, and so on. So a European version of “principled pragmatism” is perhaps the best way to describe today’s judgment.