Italy has had since the days of Mussolini a law that requires every classroom in every state school to display a crucifix. An atheist mother, Soile Lautsi, reasonably saw this as an infringement of her right under the European Convention of Human Rights to bring up her children in accordance with her own beliefs, and after exhausting her rights in the Italian courts in November 2009 she won a unanimous verdict from seven judges in the European Court of Human Rights.
The reaction in Italy was one of orchestrated outrage. The combined forces of the religious right across Europe recruited support from a number of eastern European governments and from the Orthodox Churches to back an appeal by Italy to the Grand Chamber of the Court. There in March 2011 Italy won by 15 to 2. I wrote the following paper for the European Humanist Federation, of which I was then president. Its website has a more detailed report on the whole case.
The judgement delivered by the Grand Chamber of the European Court of Human Rights in the case of Lautsi v. Italy is not only disappointing to secularists: it is also a shoddy and illogical piece of work that bears all the marks of a court in disordered retreat in the face of political pressure.
The case was a challenge to Italy’s law compelling all state schools to display crucifixes in every classroom. The challenge was brought by a non-religious mother, Soile Lautsi. (It was not, pace Justice Ann Power in her concurring judgement, about prohibiting all display of crucifixes, only about prohibiting a law compelling its display. A win for Mrs Lautsi would still have allowed the crucifix to be used as a teaching aid when relevant.)
I here examine the Court’s reasoning, placing my comments alongside the main line of the Court’s argument (with paragraph references).
The Court’s argument
59: Article 2 to the first Protocol to the European Convention on Human Rights requires that the State in its educational functions “respect . . . the right of parents to ensure” that their children are educated and taught “in conformity with their own religious and philosophical convictions”.
60: ECHR Art. 9 case law imposes on States a “duty of neutrality and impartiality”.
61: “respect” means more than “acknowledge” or “take into account”: it imposes some positive obligation on the State, though it falls short of allowing parents to require the State to provide a particular form of teaching.
But the implications of “respect” “vary considerably from case to case, given the diversity” found in different States. “As a result” States enjoy a wide margin of appreciation.
The Court is going to build its entire case for exonerating Italy on the margin of appreciation and introduces it immediately.
“As a result” suggests falsely that the margin of appreciation is particularly derived from the variety of ways in which States “respect” parents’ rights.
62: States may adopt quite different curricula in their schools and “teaching or education” may provide “information or knowledge” about religion or belief in “an objective, critical and pluralistic manner, enabling pupils to develop a critical mind . . . in a calm atmosphere free of any proselytism.”
“The State is forbidden to pursue an aim of indoctrination . . .”
The Court appears to be suggesting that the State has extensive freedom of action, but this contextual matter about the curriculum has been introduced so as to substitute for breach of the requirement of impartiality its opposite, characterised as “indoctrination”, a concept not in the law but offering, with its suggestion of “brainwashing”, a much higher hurdle for the applicants to overcome. The crucifix issue is certainly not assessed by the standard of whether it operates in “an objective, critical and pluralistic manner . . .”
63: The Court rejects Italy’s argument that Article 2 applies only to the curriculum. It includes the school environment etc.
66: “The Court . . . considers that the crucifix is above all a religious symbol.”
This rejects Italy’s contentions. But see 68!
No evidence has been produced that display of a religious symbol can have an influence on pupils, and the Court will not make assumptions: Mrs Lautsi’s “subjective impression” of “a lack of respect” is not sufficient.
The earlier Chamber judgement was willing to make this commonsense assumption.
67: Italy argued that the display of crucifixes was “a tradition they considered it important to perpetuate”, with wider meaning than a merely religious one.
68: “The decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation” of the State.
This is an extraordinary pronouncement: traditions as such simply do not engage with the European Convention on Human Rights, let alone with the margin of appreciation.
But traditions are not exempt from the Convention.
Different Italian courts have diverging views on the meaning of the crucifix: “It is not for the Court to take a position regarding a domestic debate among domestic courts.”
This despite paragraph 66 above’s plain statement that “The Court . . . considers that the crucifix is above all a religious symbol.”
69: States enjoy a margin of appreciation. The Court must in principle respect States’ decisions “provided [they] do not lead to a form of indoctrination”.
Instead of starting by deciding whether there is a prima facie breach of human rights and then deciding whether the margin of appreciation provides exoneration or mitigation, the Court starts from a rebuttable assumption that the margin of appreciation applies!
It also picks up from para. 62 the notion that the test of a breach of the Convention Protocol is indoctrination rather than a failure to abide by the requirements in established case law of impartiality etc.
70: Italy’s law requiring crucifixes in classrooms “is, in principle, a matter falling within the margin of appreciation”,
The Court’s reasoning is blatantly back to front: this argument could just as well have been applied to a law requiring teaching of the catechism or any other breach of human rights.
(an argument supported by the lack of a European consensus on religious symbols in State schools (paras 26-28))
In fact the Court there cites 3 countries and parts of 2 others requiring display of the crucifix and 6 others where display is “found”, against 3 that ban it and hence another 33 and parts of 2 others where it is presumably not found: a ‘score’ of 10-37.
subject to the test of indoctrination.
71: The law gives “preponderant visibility” in schools to Christianity but this is not enough to prove indoctrination.
In the cases of Folgerø and Zengin, syllabuses giving “a larger share” to Christianity and “greater prominence” to Islam were found acceptable.
Giving more attention to the traditional religion of a country in a syllabus of “objective, critical and pluralistic” teaching about religion is very different from silently imposing a uniformly Christian environment on all lessons whatever the subject.
72: A crucifix is “an essentially passive symbol”
This passivity is a mitigating factor that would be relevant after a finding of a breach of the Convention. The omnipresence of the crucifix and of no other symbol of a religion or belief would similarly be an aggravating factor.
The Court here implicitly admits that the display of the crucifix has some influence but never addresses the question of a breach of the Convention, only of the margin of appreciation and that by way of the reverse test of indoctrination.
that “cannot be deemed to have an influence . . . comparable to didactic speech or participation in religious activities”.
73: The Court rejects the Chamber judgement’s argument that the crucifixes, as “an integral part of the school environment” would be “‘powerful external symbols’ within the meaning” in Dahlab v Switzerland: that case was “entirely different”: it allowed a ban on “wearing the Islamic headscarf while teaching” to protect the religious beliefs of pupils & parents and to “apply the principle of denominational neutrality in schools enshrined in domestic law”.
The Court picks on a nicety (presumably its focus is on the domestic law requiring neutrality – a law that it might have noticed was entirely consonant with European case law) and ignores the difference between an individual teacher manifesting her personal belief (banned at the discretion of the State) and a State (which cannot invoke a right to manifest a religion or belief) imposing a religious environment on teachers and pupils in all its schools.
74: Besides, Italy does not require teaching about Christianity and accommodates other religions in its schools.
A mitigating factor only.
75: Mrs Lautsi was still free to “enlighten and advise” her sons as she wished.
This would be true even if the State were grossly in breach of Article 2!
76: Hence Italy was within the margin of appreciation.
77: Hence there was no violation of Article 2 of Protocol 1.
Thus the Court’s approach is entirely wrong-headed. Instead of examining whether – against the background of a State “duty of neutrality and impartiality” (para 60), not least in teaching about religion and belief – there is a prima facie breach of Mrs Lautsi’s human rights and then deciding whether Italy’s margin of appreciation rescues it from liability, it inverts the question of neutrality to create a test of indoctrination and starts from a presumption of the Italian law being covered by the margin of appreciation unless indoctrination can be proved.
The judgement is seriously flawed and unworthy of the Court.
25 April 2011