The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom [1 ed.] 9789004222519, 9789004222502

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The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom

Studies in Religion, Secular Beliefs and Human Rights VOLUME 11

The titles published in this series are listed at brill.nl/srsb

The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom Edited by

Jeroen Temperman

LEIDEN • BOSTON 2012

Library of Congress Cataloging-in-Publication Data The Lautsi papers : multidisciplinary reflections on religious symbols in the public school classroom / edited by Jeroen Temperman.    p. cm. -- (Studies in religion, secular beliefs and human rights ; vol. 11)   Includes bibliographical references and index.   ISBN 978-90-04-22250-2 (hardback : alk. paper) -- ISBN 978-90-04-22251-9 (e-book) 1. Religion in the public schools--Law and legislation--Europe. 2. Christian art and symbolism--Law and legislation--Europe. 3. Crosses--Government policy--Europe. 4. Lautsi, Soile--Trials, litigation, etc. 5. Italy--Trials, litigation, etc. I. Temperman, Jeroen.   KJC6275.L38 2012  344.24’0796--dc23                       2012027294

ISSN 1871-7829 ISBN 978 90 04 22250 2 (hardback) ISBN 978 90 04 22251 9 (e-book) Copyright 2012 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

With the symbol it was different … What was expressed was something that could not be rendered in any other way. And what was meant by the symbol could never be adequately explained. One did not know what the symbol meant, yet one did know that it meant something, that is, a truth that was infinite and that entirely overwhelmed the person of the spectator or reader, although the latter’s mind could not grasp it. Gerard Reve, Mother and Son (1980; transl. JT)

CONTENTS Table of International Instruments����������������������������������������������������������������������� xi Table of National Legislation������������������������������������������������������������������������������xiii Table of International Cases�������������������������������������������������������������������������������� xv Table of National Cases��������������������������������������������������������������������������������������� xix List of Contributors�������������������������������������������������������������������������������������������xxiii Introduction���������������������������������������������������������������������������������������������������������������1   Jeroen Temperman PART I

JUDGES & RELIGIOUS SYMBOLS The Strasbourg Court and Article 9 of the European   Convention of Human Rights: A Quantitative Analysis of   the Case Law��������������������������������������������������������������������������������������������������������13   Silvio Ferrari The Role of Judges in Determining the Meaning of Religious  Symbols��������������������������������������������������������������������������������������������������������������� 35   Brett G. Scharffs Limitations of Supranational Jurisdiction, Judicial Restraint and the Nature of Treaty Law�������������������������������������������������������������������������������� 59   Jean-Marc Piret PART II

SYMBOLS, EDUCATION, INDOCTRINATION & PROSELYTISM Crucifixes, Classrooms and Children: A Semiotic Cocktail����������������������������� 93   Alison Mawhinney Freedom of Religion v. Freedom from Religion: Putting   Religious Dictates of Conscience (Back) on the Map���������������������������������� 113   Stijn Smet Religious Symbols in the Public School Classroom������������������������������������������143   Jeroen Temperman

viii Contents PART III

STATE NEUTRALITY & RELIGIOUS SYMBOLS The Quest for Neutrality and the Stench of History�����������������������������������������179   Wouter de Been State Neutrality and the Limits of Religious Symbolism��������������������������������� 201   Roland Pierik Neutrality and Displaying Religious Symbols���������������������������������������������������219   Hana M.A.E. van Ooijen PART IV

COMPARATIVE PERSPECTIVES ON RELIGIOUS SYMBOLS & EDUCATION Christianity, Multiculturalism, and National Identity: A Canadian   Comment on Lautsi and Others v. Italy��������������������������������������������������������241   Richard Moon Passive / Aggressive Symbols in the Public School: Religious   Displays in the Council of Europe and the United States, with a   Special Focus on Romania������������������������������������������������������������������������������267   Liviu Andreescu & Gabriel Andreescu Back to the Basics of Fundamental Rights: An Appraisal of the Grand   Chamber’s Judgment in Lautsi in Light of the ECHR and Italian   Constitutional Law��������������������������������������������������������������������������������������������301   Carlo Panara PART V

LAUTSI-SPECIFIC COMMENTS Neutrality in and after Lautsi v. Italy��������������������������������������������������������������� 329   Malcolm D. Evans Europe and the Sign of the Crucifix: On the Fundamental Questions   of the Lautsi and Others v. Italy case�������������������������������������������������������������� 355   András Koltay

Contents  ix Restricting the Public Display of Religious Symbols by the State   on the Grounds of Hate Speech?�������������������������������������������������������������������� 383   Hin-Yan Liu Rethinking Adjudication under the European Convention����������������������������413   Carla M. Zoethout Bibliography�������������������������������������������������������������������������������������������������������� 427 Index������������������������������������������������������������������������������������������������������������������� 437

TABLE OF INTERNATIONAL INSTRUMENTS Convention against Discrimination in Education, 148 Convention on the Rights of the Child, 148, 150–151, 409 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 150 [European] Convention for the Protection of Human Rights and  Fundamental Freedoms, 8, 35, 53–54, 85, 89, 96, 114, 149–150, 179, 201, 204, 212, 269, 288, 290, 298, 301, 315, 356, 368, 378, 400, 413–426 Article 9: 4–8, 13–34, 68, 89, 93, 115, 144, 179, 299, 330 Article 14: 18, 22, 54, 139–141, 352, 383, 420 First Protocol to the European Convention on Human Rights, 5, 8, 15, 28, 35,   54, 59, 61, 66–68, 72, 89, 93–103, 107–111, 141, 149–153, 166, 204–207,   213, 241, 250, 268–269, 272, 291, 299, 303, 330, 333, 335–345, 353, 383,   388, 415, 417–420 International Covenant on Civil and Political Rights, 144, 148–151, 172 International Covenant on Economic, Social and Cultural Rights, 148, 150 Universal Delaration of Human Rights, 23

TABLE OF NATIONAL LEGISLATION Canada Canadian Charter of Rights and Freedoms, 241, 246, 256 Constitution Act, 1867, 241, 264 France Constitution, 184, 226–227 French Educational Code, 129 Law of 15 March 2004 on the wearing of religious symbols in public   educational institutions, 129 Loi du 9 décembre 1905 relative à la séparation des Églises et de l’État, 227 Loi Goblet of 30 October 1886, 228 Germany School Law (Schulgesetz) of the State of Hesse, 130 Bavarian elementary school regulation of 1983, 74, 313, 372 Constitution, 74–75 Greece Constitution, 24 Decree Law 1672 of 1939 on proselytism, 24 Hungary Government Resolution 1138/2010, VII. 1, 382 Italy Instruction No. 2134-1867 of 26 May 1926, 305–306, 312 Instruction No. 68 of 22 November 1922, 305 Italian Constitution, 8, 59, 65, 69, 72, 74–75, 188–189, 202, 302–304, 309–311,   315, 317–319, 322–324, 393, 415–416 Royal Decree No. 1297 of 26 April 1928, 306 Royal Decree No. 965 of 30 April 1924, 306 Memorandum No. 5160/M/1 of 5 October 1984, 306

xiv  Table of National Legislation Netherlands Constitution, 230 Romania Constitution, 295 Education Law, 1995, 294–295 Religious Freedom Law, 2006, 295–296 Law on Religious Freedom and the Status of Religion Denominations,   2007, 295 Law on National Education, 2011, 294 Switzerland Constitution, 314 United Kingdom Human Rights Act, 78, 233, 424 United States of America US Constitution, 76, 139, 210, 246, 261–262, 272, 275, 386–387

TABLE OF INTERNATIONAL CASES   European Court of Human Rights Judgements and Decisions A. B. and C v. Ireland, 16 December 2010, No 25579/05 (GC), 86 Agga v. Greece, 17 October 2002, Nos. 50776/99 and 52912/99; and 13 July   2006, Nos. 32186/02 and 33331/02, 18 Ahmet Arslan and Others v. Turkey, 23 February 2010, No. 41135/98, 125 Akdaş v. Turkey, 16 February 2010, No. 41056/04, 173, 368 Alekseyev v. Russia, 21 October 2010, Nos. 4916/07, 25924/08 and 14599/09, 132 Alexandridis v. Greece, 21 February 2008, No. 19516/06, 27, 145, 167, 406 Angeleni v. Sweden, 3 December 1987, No. 10491/83 (Commission), 97 Barankevich v. Russia, 26 July 2007, No. 10519/03, 18 Beldjoudi v. France, 26 March 1992, No. 12083/86, 22 Belgian Linguistic Case: “Relating to Certain Aspects of the Laws on the Use of   Languages in Education in Belgium”, 23 July 1968, Nos. 1474/62; 1677/62;   1691/62; 1769/63; 1994/63; and 2126/64, 64 Bernard and Others v. Luxembourg, 8 September 1993, No. 17187/90, 97 Buscarini and Others v. San Marino, 18 February 1999, No. 24645/94, 26, 144,   167, 302, 406 Church of Scientology Moscow v. Russia, 5 April 2007, No. 18147/02, 346 Çiftçi v. Turkey, 17 June 2004, No. 71860/01, 107 Dahlab v. Switzerland, 15 February 2001, No. 42393/98 (Dec.), 27, 36, 73–74,   103, 107, 113, 120–127, 130, 132, 137, 154–162, 167, 219–224, 231, 235–237,   271, 279–281, 332, 316, 391, 397–398, 401, 417 Darby v. Sweden, 23 October 1990, No. 11581/85 (Commission), 19, 22, 68 Demir and Baykara v. Turkey, 12 November 2008, No. 34503/97, 115 Dogru v. France, 4 December 2008, No. 27058/05, 36, 120, 331, 379 Dudgeon v. United Kingdom, 22 October 1981, No. 7525/76 (GC), 171–172 Efstratiou v. Greece, 27 November 1996, No. 24095/94, 26 Eweida v. The United Kingdom, pending since 12 April 2011, 136 Folgerø and Others v. Norway, 14 February 2006, No. 15472/02 (Dec.), 164, 206 Folgerø and Others v. Norway, 29 June 2007, No. 15472/02 (GC), 67, 74, 97,   100, 107, 140–141, 165, 168, 271–272, 291, 336, 378–344, 370, 374, 394 Gldani Members of Congregation of Jehovah Witnesses v. Georgia, 3 May 2007,   No 71156/01, 26 Guzzardi v. Italy, 2 October 1980, No. 7367/76, 22 Handyside v. United Kingdom, 7 December 1976, No. 54933/72, 418, 422–423 Hasan and Chaush v. Bulgaria, 26 October 2000, No. 30985/96 (GC), 25–26,   221, 346, 348

xvi  Table of International Cases Hasan and Eylem Zengin v. Turkey, 9 October 2007, No. 1448/04, 67, 74, 98,   141, 165, 169, 206, 273, 291, 336, 339, 344, 371, 374 Hatton and others v. United Kingdom, 8 July 2003, No. 36022/97 (GC), 78, 132 Hirst v. the United Kingdom (No. 2), 6 October 2005, No. 74025/01   (GC), 170, 414 Hoffman v. Austria, 26 May 1993, No. 12875/87, 19 Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and   Others v. Bulgaria, 22 January 2009, Nos. 412/03 and 35677/04, 26, 346, 348 İ.A. v. Turkey, 13 September 2005, No. 42571/98, 347 Igor Dmitrijevs v. Latvia, 30 November 2006, No. 61638/00, 27 Ivanova v. Bulgaria, 12 April 2007, No. 52435/99, 27 Jalloh v. Germany, 11 July 2006, No. 54810/00, 421 Jehovah’s Witnesses of Moscow and Others v. Russia, 10 June 2010,   No. 302/02, 131 Johnston et al. v. Ireland, 18 December 1986, No. 9697/82, 85 Kavakçı v. Turkey, 5 April 2007, No. 71907/01, 36 Kervanci v. France, 4 December 2008, No. 31645/04, 120, 331, 379 Khurshid Mustafa v. Sweden, 16 December 2008, No. 23883/06, 404 Kimlya and others v. Russia, 1 October 2009, No. 76836/01, 26 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976,  Nos. 5095/71, 5920/72, and 5926/72, 22–23, 66, 94–96, 99, 221, 291, 297, 336, 338–343 Klass and Others v. Germany, 6 September 1978, No. 5029/71, 115 Kokkinakis v. Greece, 25 May 1993, No. 14307/88, 26, 101, 128, 165, 204, 285,   302, 330, 346, 400–401 Konrad and Others v. Germany, 11 September 2006, No. 35504/03 (Dec.), 343 Konstantin Markin v. Russia, 7 October 2010, No. 30078/06, 132 Konttinen v. Finland, 3 December 1996, No. 24949/94 (Commission), 131 Köse and 93 others v. Turkey, 24 January 2006, No. 26625/02 (Dec.), 97–99,   102, 107, 102, 120, 165 Kosteski v. the former Yugoslav Republic of Macedonia, 13 April 2006,   No. 55170/00, 221 Kurtulmuş v. Turkey, 24 January 2006, No. 65500/01 (Dec.), 120, 331 Kuznetsov and Others v. Russia, 11 January 2007, No. 184/02, 17 Kuznetsov v. Ukraine, 29 April 2003, No. 39042/97, 27 Ladele v. The United Kingdom, 12 April 2011, No. 51671/10, 136 Larissis and Others v. Greece, 24 February 1998, Nos. 23372/94; 26377/94;   and 26378/94, 101, 113, 118-120, 123, 134-135, 165, 401 Lautsi and Others v. Italy, 18 March 2011, No. 30814/06 (GC), 1–2, 5–9, 29–35,   53–56, 59–66, 70–74, 88–89, 93–94, 99, 102, 111, 114, 123–124, 128–129,   135–141, 146–176, 179–182, 190–193, 198–220, 235–238, 241–245, 250,   257–261, 265–290, 299, 301–325, 327–426

Table of International Cases  xvii Lautsi v. Italy, 3 November 2009, No. 30814/06 (Second Section), 1–2, 15,   28–29, 35, 54, 59, 71, 74, 77–81, 84, 146, 174, 179, 202, 204–205, 211, 267,   301–302, 329, 356, 368, 371, 383, 413–416, 421 Leela Förderkreis and others v. Germany, 6 November 2008, No. 58911/00, 347 Loizidou v. Turkey, 18 December 1996, No. 15318/89, 422 Manoussakis and Others v. Greece, 26 September 1996, No.18748/91, 258 Masaev v. Moldova, 12 May 2009, No. 6303/05, 390, 404 Metropolitan Church of Bessarabia and Others v. Moldova, 13 December 2001,   No. 45701/99, 26, 204, 221, 346, 348, 390, 404 Mirolubovs and others v. Latvia, 15 September 2009, No. 798/05, 26, 348 Modinos v. Cyprus, 22 April 1993, No. 15070/89, 171 Mouvement Raelien Suisse v. Switzerland, 13 January 2011, No 16354/06, 347,  350–351 Müller and Others v. Switzerland, 24 May 1988, No. 10737/84, 129 Murphy v. Ireland, 10 July 2003, No. 44179/98, 347 Otto-Preminger-Institut v. Austria, 20 September 1994, No. 13470/87, 129, 347,  407 Perry v. Latvia, 8 November 2007, No. 30273/03, 27 Pretty v. UK, 29 April 2002, No. 2346/02, 85 Rasmussen v. Denmark, 28 November 1984, No. 8777/79, 290 Refah Partisi (the Welfare Party) and Others v. Turkey, 13 February 2003, Nos.   41340/98, 41342/98, 41343/98 and 41344/98 (GC), 332, 349, 379 Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, 31 July 2008,   No. 40825/98, 26, 348 S.H. and others v. Austria, 3 November 2011, No. 57813/00 (GC), 86 Sahin v. Turkey, 10 November 2005, No. 44774/98 (GC), 36, 52, 65, 73, 103,   114, 124–127, 130, 132, 156–162, 221, 270, 291, 331–333, 336, 345, 349, 352,   379, 391, 400 Said v. Netherlands, 5 June 2005, No. 2345/02, 79 Savez Crkava ‘Riječ Zivota’ and Others v. Croatia, 9 December 2010,   No. 7798/08, 348, 352 Schüth v. Germany, 23 September 2010, No. 1620/03, 132 Selmouni v. France, 28 July 1999, No. 25803/94, 85 Serif v. Greece, 14 December 1999, No. 38178/97, 348 Shalk and Kopf v. Austria, 24 June 2010, No. 30141/04, 85 Sinan Isik v. Turkey, 2 February 2010, No. 21924/05, 33 Stoll v. Switzerland, 10 December 2007, No. 69698/01, 115 Sunday Times v. The United Kingdom (No. 1), 26 April 1979, No. 6538/74, 115 Supreme Holy Council of the Muslim Community v. Bulgaria, 16 December   2004, No 39023/97, 26, 348 Svyato-Mykhaylivska Parafiya v. Ukraine, 14 June 2007, No. 77703/01, 26,  348

xviii  Table of International Cases The Moscow Branch of the Salvation Army v. Russia, 5 October 2006, No   72881/01, 26 Thlimmenos v. Greece, 6 April 2000, No. 34369/97, 18 Vajnai v. Hungary, 8 July 2008, No. 33629/06, 371–372 Valsamis v. Greece, 18 December 1996, No. 21787/93, 26 Vejdeland v. Sweden, 9 February 2012, No. 1813/07, 107 Vögt v. Germany, 26 September 1995, No. 17851/91, 132 Willi, Anna and David Dojan v. Germany, 13 September 2011, No. 319/08   (Dec.), 338, 342–343 Wingrove v. The United Kingdom, 25 November 1996, No. 17419/90, 129, 347,  407 Z. v. Finland, 25 February 1997, No. 22009/93, 82   Human Rights Committee Views Erkki Hartikainen v. Finland, 9 April 1981, Communication No. 40/1978, 96 Malcolm Ross v. Canada, 18 October 2000, Communication No. 736/1997, 411 Arieh Hollis Waldman v. Canada, 5 November 1999, Communication No.   694/1996, 148   International Criminal Tribunal for the Former Yugoslavia Prosecutor v. Tadic Decision on the Defence Motion, 2 October 1995, Appeals   Court of the International Criminal Tribunal for the Former Yugoslavia,   IT-94-1-AR72-2, 411

TABLE OF NATIONAL CASES Canada Adler v. Ontario, 3 SCR 609 (1996), 242 Chamberlain v. Surrey School District No. 36, 4 SCR 710 (2002), 247, 252 Congregation des Temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine  (Village), 2 SCR 650 (2004), 246 Freitag v. Penetanguishine, 47 OR 301 (1997), 248–249 Multani v. Commission Scolaire Marguerite-Bourgeoys, 1 SCR 256 (2006), 39 R. v. Big M Drug Mart Ltd., 1 SCR 295 (1985), 246–248, 256 R. v. Edwards Books and Art Ltd, 2 SCR 713 (1986), 251 Reference re Bill 30, an Act to amend the Education Act (Ontario), 1 SCR 1148   (1987), 243 Ross v. New Brunswick School District No. 15, 1 SCR 825 (1996), 411 Russow v. British Columbia, 62 DLR (4th) 98 (BCSC, 1989), 248 S.L. v. Commission Scolaire des Chenes, SCC 7 (2012), 242, 246 Tammy Kitzmiller et al. v. Dover Area School District et al, 400 F. Supp. 2d 707   (2005), 257 Zylberberg v. Sudbury Board of Education, 52 DLR (4th) 577 (1988), 248 Germany Constitutional Court Ruling, 24 September 2003, BVerfGE 1436/02, 134 Constitutional Court Ruling, 30 June 2009, 2BvE 2/08, 87 Kruzifix-Urteil, Constitutional Court Ruling, 16 May 1995, BVerfGE Vol. 93,   74, 313, 321, 323, 325, 372 Italy Administrative Court of Italy Decision No. 1110 (Lautsi) of 17 March 2005,   384, 393, 395, 408, 412 Constitutional Court Judgement No. 508 of 20 November 2000, 384, 397 Constitutional Court Ruling No. 117 of 10 October 1979, 303–304 Constitutional Court Ruling No. 13 of 14 January 1991, 304 Constitutional Court Ruling No. 149 of 1995, 304, 322 Constitutional Court Ruling No. 167 of 10 May 1999, 319 Constitutional Court Ruling No. 203 of 12 April 1989, 303 Council of State (Second Division) Opinion No. 63 of 27 April 1988, 307, 312 Council of State (Sixth Division) Ruling No. 556 of 13 April 2006, 309, 319

xx  Table of National Cases Court of Cassation (Fourth Criminal Division) Ruling No. 439 of 1 March   2000, 312, 322 Court of Cassation (United Divisions) Ruling No. 5924 of 14 March 2011, 322 Tribunal of L’Aquila (Civil Division) Order of 23 October 2003, 322 Spain Administrative Court (No. 2) of Valladolid Ruling No. 288 of 14 November   2008, 314–315 Spanish Constitutional Court Ruling No. 34/2011 of 28 March 2011, 315 Supreme Court of Justice of Castilla y León Ruling No. 3250 of 14 December   2009, 315 Switzerland Comune di Cadro v. Guido Bernasconi, Federal Tribunal Ruling of 26 September   1990, 313–314, 321 Hungary Hungarian Constitutional Court Decision No. 4/1993, 365 Romania Moise Decision No. 323/2006, National Council for Combating Discrimination,  285 Kenya Ndanu Mutambuki & 119 Others v. Minister for Education and 12 Others,   Petition 407 of 2007, 53 United Kingdom Azmi v. Kirklees Metropolitan Borough Council, Employment Appeal Tribunal   Ruling of 30 March 2007, Appeal No. UKEAT/0009/07/MAA, 234–235 Lewis v. Daily Telegraph, AC 234, HL (1964), 377 R. v. Chief Metropolitan Stipendiary Magistrate, ex p. Choudhury, 1 QB 429   (1991), 407 R. v. Taylor, 1 Vent 293 (1676), 407 United States of America American Atheists, Inc. v. Duncan, 637 F.3d 1095 (2010), 36, 51 Brown v. Allen, 334 U.S. 443 (1953), 49

Table of National Cases  xxi Case No. 33: In the Matter of Roy S. Moore Chief Justice of the Supreme Court of  Alabama, 46 County of Allegheny v. American Civil Liberties Union (ACLU), 492 U.S. 573   (1989), 47, 76, 106, 270, 275–276 Gernetzke v. Kenosha Unified School District No. 1, 274 F.3d 464 (2001), 280 Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala., 2002), 45 Jewish War Veterans v. City of San Diego, 629 F.3d 1099 (9th Cir., 2011), 50 John Doe, 3 v. Elmbrook School District (7th Cir., 2011), 275, 277 Larson v. Valente, 456 U.S. 228 (1982), 273 Lee v. Weisman, 505 U.S. 577 (1992), 271, 276, 278 Lemon v. Kurtzman, 403 U.S. 602 (1971), 45, 48, 76, 275–276 Lynch v. Donnelly, 465 U.S. 668 (1984), 47–48, 76, 275–276 McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), 46, 262, 276 Roe v. Wade, 410 U.S. 113 (1973), 87 Salazar v. Buono, 130 S. Ct. 1803 (2010), 36, 276, 281, 373–374, 377, 386–387 Stone v. Graham, 449 U.S. 39 (1980), 45, 262, 276, 314, 402 Tinker v. Des Moines Independent Community School District, 393 U.S. 503   (1969), 403, 405 Titlon v. Richardson, 403 US 672 (1971), 106 Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir., 2011), 36 Utah Highway Patrol Association v. American Atheists Inc., 132 S. Ct. 12 (2011),   36, 52 Van Orden v. Perry, 545 U.S. 677 (2005), 46, 262, 277 West Virginia State Board of Education v. Barnette, 319 US 624 (1943),  405–406

LIST OF CONTRIBUTORS Gabriel Andreescu Gabriel Andreescu is associate professor with the Political Science Department at the National School for Political Studies and Administration (SNSPA) in Bucharest. A physics researcher before 1989 and a human rights activist since before the fall of communism, he has published over 20 books and numerous articles on issues such as human rights, national minorities, post-communist transition, the ethics and politics of memory, religious freedom and religious repression, and axiomatic logic. Gabriel Andreescu is the editor of the New Journal for Human Rights (formerly the Romanian Journal for Human Rights) and the recipient of numerous national and international awards, among which the Petofi Sandor Award (21st Century Institute, Budapest, 2009), the European Journalist award (Commission of the European Union, 1996), and the Prize of the National Council for Combating Discrimination (2007). Liviu Andreescu Liviu Andreescu is associate professor with the Faculty of Letters, Spiru Haret University (Bucharest), where he teaches American Studies. He is the author of a book on academic freedom, and has published in the fields of higher education studies, religious policy and church–state affairs, American culture and literature, and future studies–often at the intersection of these domains. He has also been working as a higher education policy expert for Romania’s Executive Agency for the Funding of Higher Education, Research, Development, and Innovation. Wouter de Been Wouter de Been is a postdoc researcher in political and legal theory at the Erasmus School of Law. He received his MA degree in American Studies from the University of Amsterdam in 1993, his MA degree in Political Science from the University of New Orleans in 1998, and his PhD in law from Tilburg University in 2005. He is currently engaged in a research project sponsored by the Netherlands Organisation for Scientific Research (NWO) on the importance of the hybridity and dynamics of cultural and religious identities for political and legal theory. Malcolm Evans Malcolm Evans, OBE, is Professor of Public International Law at the University of Bristol. He is currently Chair of the United Nations Sub-Committee for the

xxiv  List of Contributors Prevention of Torture and a member of the OSCE Advisory Council on Freedom of Religion or Belief. He has written extensively on issues concerning freedom of religion or belief and is an editor of Religion & Human Rights and the Oxford Journal of Law and Religion. Silvio Ferrari Silvio Ferrari is Professor of Law and Religion at the University of Milan and University of Leuven. He has further acted as visiting professor at the University of California (Berkeley, 1994 and 2001), the Institute for Advanced Legal Studies (London, 1998–99) and the Ecole Pratique des Hautes Etudes (Paris, Sorbonne, 2004). His publications in English include Law and Religion in the 21st Century (Dartmouth: Ashgate, 2010; edited together with Rinaldo Cristofori), Law and Religion in Post-Communist Europe (Leuven: Peeters, 2003; edited together with W. Cole Durham, Jr. and E. A. Sewell), Islam and European Legal Systems (Dartmouth: Ashgate, 2000; edited together with A. Bradney). His main fields of interest are law and religion in Europe, comparative law of religions (particularly Jewish law, Canon law and Islamic law) and the Vatican policy in the Middle East. He is honorary president of the International Consortium for Law and Religion Studies (ICLARS), member of the Advisory Council on Freedom of Religion and Belief of the OSCE-ODIHR, and member of the International Academy of Comparative Law. He is also one of the editors-in-chief of the Oxford Journal of Law and Religion and member of the Editorial Board of the Ecclesiastical Law Journal (Cambridge University Press). András Koltay Dr András Koltay has been a lecturer at Pázmány Péter Catholic University Faculty of Law and Political Sciences in Budapest, Hungary since 2002. From 2012 he is an associate professor. He received an LL.M degree in public law at the University College London in 2006, and a PhD degree in law at the Pázmány Péter Catholic University in 2008. He attended the summer course of the International Institute of Human Rights in Strasbourg in 2003. His principal research has been concerned with freedom of speech, personality rights and media regulations, but he also deals with other constitutional questions. He is the author of several articles in Hungarian and English, and a monograph on comparative freedom of speech. Since 2010 he has been a member of the Media Council, the authority which supervises the proper functioning of the media system. (Contact: [email protected]). Hin-Yan Liu Hin-Yan Liu is currently a Max Weber Fellow at the European University Institute, writing a book provisionally entitled The Legality of Robotic and

List of Contributors  xxv Remote Weapons Systems forthcoming with Hart Publishing, Oxford. His Ph.D at King’s College London argued that the system of impunity enjoyed by the modern Private Military Company and its contractors is constructed by, rather than a failure of, the law and was generously supported by the Social Sciences and Humanities Research Council of Canada’s Doctoral Fellowship, the King’s Continuation Scholarship, and the Sir James Lougheed Award of Distinction. Prior to this, he received his LL.M in Human Rights Law with distinction at University College London, an LL.B at City University London, and a BA in Psychology and History at the University of Alberta. He has held academic positions at King’s College London, the University of Westminster and the University of Surrey and is also a Fellow of the Higher Education Academy and a Fellow of the Royal Society of Arts. Alison Mawhinney Alison Mawhinney is a lecturer in human rights and public law at the School of Law, Bangor University, Wales. She is the author of Freedom of Religion and Schools: the Case of Ireland (2009). Her main research interests are freedom of religion in schools, religious discrimination in employment and the human rights obligations of non-state service providers. She was Principal Investigator on the AHRC/ESRC Religion and Society funded project ‘Opting Out of Religious Education: The Views of Young People from Minority Belief Backgrounds’. Richard Moon Richard Moon is a Professor in the Faculty of Law, University of Windsor. He is the author of The Constitutional Protection of Freedom of Expression (University of Toronto Press, 2000), editor of Law and Religious Pluralism in Canada (UBC Press, 2008) and a contributing editor to Canadian Constitutional Law (4th ed., Edmond Montgomery Press, 2010). His research deals with freedom of religion and is funded by a grant from the Social Sciences and Humanities Research Council. Carlo Panara Carlo Panara is Senior Lecturer in EU and Public Law at the School of Law of Liverpool John Moores University. He has widely published in the fields of comparative public law. Among his recent publications are the monograph Il Federalismo Tedesco dalla Cooperazione alla Competizione (German Federalism from Co-operation to Competition, Aracne, 2008) and the edited collection The Role of the Regions in EU Governance (Springer, 2011). Roland Pierik Roland Pierik is associate professor of Legal Theory at the University of Amsterdam. His work on legal and political philosophy has appeared in

xxvi  List of Contributors Religion & Human Rights, Journal of Social Philosophy, Ethics & International Affairs, Critical Review of International Social and Political Philosophy, Political Studies, The Leiden Journal of International Law, Ethnicities and Philosophy & Public Policy Quarterly. He is the editor (with Wouter Werner) of Cosmopolitanism in Context: Perspectives from International Law and Political Theory (Cambridge University Press, 2010). Jean-Marc Piret Jean-Marc Piret is Associate Professor of Philosophy of Law at the Erasmus University of Rotterdam and at the Free University of Brussels. He teaches mainly on philosophy of law and political philosophy. He also lectures a course on ‘governing security under the rule of law’. Jean-Marc Piret published on the history of ideas about public law, on law and religion in the public sphere, on liberty and security, on judicial cosmopolitanism and on other issues of legal philosophy such as the ethical and philosophical aspects of wrongful birth and wrongful life claims. Most recently he wrote articles about just war theory, the ‘war’ against terrorism; on the extraterritorial scope of the US Constitution and on torture. In 2009 he also published a book in Dutch about Joseph de Maistre’s, Marquis de Sade’s and G.W.F. Hegel’s relation to law, religion and history. Brett Scharffs Brett Scharffs is Francis R. Kirkham Professor of Law at the J. Reuben Clark Law School at Brigham Young University and Associate Director of the International Center for Law and Religion Studies. His teaching and scholarly interests include comparative law and religion, philosophy of law, and international business law. Professor Scharffs is a graduate of Georgetown University, where he received a B.S.B.A. in international business and an MA in philosophy. He was a Rhodes Scholar at Oxford University, where he earned a B.Phil in philosophy. He received his J.D. from Yale Law School, where he was Senior Editor of the Yale Law Journal. Professor Scharffs was a law clerk on the US Court of Appeals, D.C. Circuit, and worked as a legal assistant at the Iran-U.S. Claims Tribunal in The Hague. Before teaching at BYU, he worked as an attorney for the New York law firm, Sullivan & Cromwell. He has previously taught at Yale University and the George Washington University Law School. In his fifteen year academic career, Professor Scharffs has written more than 75 articles and book chapters, and has made over 200 scholarly presentations in 25 countries. His casebook, Law and Religion: U.S., International, and Compa­ rative Perspectives, co-written with his colleague, W. Cole Durham, Jr. was published by Aspen and Wolters Kluwer in 2010. He regularly teaches comparative law and religion at Central European University in Budapest, and has helped organize a training program on religion and the rule of law at Peking University.

List of Contributors  xxvii Stijn Smet Stijn Smet holds a Master in Law (Licentiaat Rechtsgeleerdheid) from Ghent University, Belgium, and a European Master’s Degree in Human Rights and Democratisation from Ca’ Foscari University of Venice, Italy. He is currently enrolled as a Ph.D candidate at the Human Rights Centre of Ghent University, where he is working on his Ph.D on “Conflicts between Human Rights in the Case Law of the European Court of Human Rights” in the context of the European Research Council funded project “Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning”. His recent publications include ‘Freedom of Expression and the Right to Reputation: Human Rights in Conflict’ (American University International Law Review, 2010). He is also co-founder of and regular contributor to the Strasbourg Observers blog, which provides commentaries on judgments of the European Court of Human Rights (http://strasbourgobservers.com). Jeroen Temperman Jeroen Temperman is assistant professor of public international law at Erasmus University Rotterdam, lecturing in international human rights law. Recently appointed EUR-fellow, he is currently carrying out his research project entitled “The Prohibition of Advocacy of Religious Hatred in International and Domestic Law”. He is also the editor-in-chief of Religion & Human Rights: An International Journal. He has (co)authored several books on international human rights law, including: State–Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (Leiden/Boston: Martinus Nijhoff Publishers, 2010, 382 pp); Human Rights, co-authored with Kristin Henrard (The Hague: Boom Juridische Uitgevers, 2011, 199 pp); and a book written in Dutch on socio-economic rights within the European Union, co-authored with Rob Buitenweg en Kathalijne Buitenweg (forthcoming 2012). Other key publications include articles on different aspects of human rights law in Human Rights Quarterly (2009, 2010), Netherlands Quarterly on Human Rights (2008), Annuaire Droit et Religion (2009/2010), and Religion & Human Rights (2006, 2007, 2008, 2011); and contributions to edited volumes, such as the recent volume entitled Law and Religion in the 21st Century: Relations between States and Religious Communities (ed. Silvio Ferrari; Aldershot: Ashgate Publ., 2010). Hana van Ooijen Hana van Ooijen is a doctoral researcher and a lecturer at the Netherlands Institute of Human Rights of Utrecht University. Her study examines the relation between state neutrality and religious symbols in public services, specifically the judiciary, the police and public education. It includes an analysis of European Court of Human Rights case law and a comparison with England

xxviii  List of Contributors and France. As part of her research, she has visited Oxford Brookes University, Université de Strasbourg and Université Paris-Ouest Nanterre. The publication of her dissertation is forthcoming in 2012. She is also the book review editor of Religion & Human Rights. Carla Zoethout Dr Carla M. Zoethout is associate professor of Constitutional Law, University of Amsterdam, Netherlands. Previously, she was lecturer at Erasmus University Rotterdam and Leiden University. She is member of the editorial board of the Tijdschrift voor Religie, Recht en Beleid (Religion, Law and Policy Review). Her research interests include: constitutionalism, comparative constitutional law, human rights (in particular the freedom of religion) and constitutional theory. Some recent English-language publications include articles in Zeitschrift für ausländisches, öffentliches Recht und Völkerrecht, Religion & Human Rights, Archiv für Rechts-und Sozialphilosophie, and in Gerhard van der Schyff (ed.), Constitutionalism in the Netherlands and South Africa, A Comparative Study (Nijmegen: Wolf Legal Publishers, 2008). (Contact: [email protected]; website: http://home.medewerker.uva.nl/c.m.zoethout).

INTRODUCTION Jeroen Temperman Increasingly, debates about religious symbols in the public square are reformulated as human rights questions and put before national and international judges. Particularly in the area of education, legitimate interests are manifold and often collide. Children’s educational and religious rights, so-called ‘parental liberties’ vis-à-vis one’s children, the state’s (positive and negative) obligations in the area of public school education, reverence for longstanding religious traditions, the state neutrality principle in all its different interpretations and manifestations, and the professional rights and duties of teachers are each principles and values that may warrant priority treatment. Each from their own scholarly discipline and perspective—ranging from legal scholars and human rights lawyers, to philosophers, semioticians, political scientists, country-specific legal experts, and comparative law scholars— these experts contribute to the timely and difficult question: is there room for religious symbols within public school classrooms? This book’s leading question pertains particularly to the legal tenability of state symbolism, for instance the practice of (sanctioning the) placing of crucifixes or orthodox icons on public classroom walls. The same question can be asked in relation to personal religious signs, for instance cross necklaces or kirpans, or personal religious attire such as kippahs or headscarves. The complex matrix of positive and negative state obligations that operate within the combined areas of education and religious liberties may—in abstracto—play out differently when applied to state symbols or to personal symbols, obviously also always depending on the specifics of the case. A comparative analysis of the two basic scenario’s—state symbols and personal symbols—is necessary to illustrate (inter alia): which rights or interests are at stake? (e.g., freedom of religion or belief, access to public education, perpetuating a majority tradition); which competing interests may be advanced? (e.g., state neutrality, public order, the rights of others to freedom of religion, or the rights of others to public school education), when can we speak of an ‘interference’ with any applicable right?; when are interferences justified?; who is to prove (a lack of) interference?; and what arguments or substantive assessments about symbols and their alleged effects may be accepted in the course of all this? It may be helpful to underscore from the outset that this volume’s collective point of departure is—as the title indicates—provided by the Lautsi case and

2  Jeroen Temperman the two diametrically opposed decisions it yielded from the Chamber’s Second Section and the Grand Chamber of the European Court of Human Rights. On 3 November 2009, the former unanimously judged that the compulsory display of crucifixes in Italian public school classrooms restricts both the right of parents to educate their children in conformity with their convictions, and children’s own right to believe or not to believe. Some 16 months later, the Grand Chamber of the same Court overruled the first Lautsi judgement and held by a large majority (15-2) that there was not sufficient evidence before the Court proving that the display of a crucifix on a classroom wall might have an adverse effect on pupils; and that, in the final analysis, perpetuating such a majority tradition falls within the margin of appreciation of the state. By way of prelude, most of the contributors to the present volume and a number of other scholars published a short comment specifically on the Lautsi decision(s) in Religion & Human Rights (Vol. 6:3, 2011). Some strongly criticized the first Lautsi decision—some praised it. While precisely the same goes for the Grand Chamber decision. This is fully in line with the overall responses to the Lautsi decisions: both judgements have been applauded as well as severely criticised in legal doctrine, political arenas, and civil society. An unprecedented number of third parties were granted leave to intervene, including civil society organizations and European governments; parties mostly opposed to the first Lautsi decision. Interestingly, human rights scholars—all working with the same universal standards—have found themselves in opposing camps. For some, the initial Chamber decision overstepped the mark inasmuch as it interfered with internal Italian religion–state affairs and with the prerogative of Italy’s majority religion to remind all Italians of their religio-cultural heritage. Others saw in the Second Section’s decision a just recognition of the rights of minorities in pluralistic societies; in this case, notably the rights of the non-religious and religious denominations not adhering to the predominant orthodoxy. In a similar vein, whereas some regarded the Grand Chamber’s U-turn as a just restoration of a centuries-old majority tradition or at the least as a wise exercise of judicial restraint in relation to that tradition; others saw the latter’s decision as a lethal blow to access to genuine public schooling, respect for minority rights, respect for parental liberties, and children’s autonomous religious and educational rights. Regardless of their precise allegiances, most participants in this debate agreed on one thing and that is that the Lautsi case, in itself and especially when compared to other symbol cases, raised minimally as many questions as it sought to answer. Partly this has to do with the fact that the Grand Chamber noticed a lack of European consensus on domestic policies regarding religious symbols in public schools and accordingly chose to avoid some of the most salient legitimacy questions; or rather answered them for the time being by default by means of falling back on the margin of appreciation formula.

Introduction  3 Yet, the Grand Chamber’s considerations on the merits, indeed including the arguments purporting to establish the need for the Court to back off in this case, are certainly not without significance and provide plenty food for thought—and discussion. The Grand Chamber’s rendering of the crucifix as an ‘essentially passive symbol’, its position that no evidence was brought before the Court proving the adverse effects of the symbol at stake, and its final resolution holding that perpetuating a religious majority tradition in principle falls within the margin of appreciation of the state are all points that in turn raise a host of (substantive, procedural and comparative) legal questions, philosophical questions, child psychology questions and questions of semiotics, to name but a few relevant disciplines. For instance, on one level a relevant question may indeed appear to be: what do symbols x or y mean? But on another level, a (more) pertinent question is whether or not judges are in a position to authoritatively grasp the ‘real meaning’ of symbols—and if not what, then, ought to be (international) judges’ means for resolving contentious symbols cases? The same goes for the alleged adverse or benign ‘influence’ or ‘effects’ of symbols. On one level we may need to venture into the necessary disciplines so as to find the most plausible answers; on another level, and in the absence of absolute or reliable answers, the issue may rather become: who’s problem is the matter of proof actually— the state’s or, as the case may be, the individual’s? (Child) psychology and semiotics may offer some substantive insights in relation to the question as to when a symbol may be said to truly (scientifically) ‘interfere’ with fundamental rights. For judges, one the most crucial questions will concentrate on which party is to prove the effects of a symbol and to what precise extent proof is required. Here legal discourse may be useful to untangle the apparent confusion as to burdens and standards of proof in (European) symbol cases. Indeed, in abstracto there may very well be symbol cases that can be settled short of proving the exact meaning of symbols or their precise effects if judges allocate evidentiary burdens sensibly and equitably. Legal-philosophically, the most pressing question is whether the perpetuation of a religious majority tradition may trump rights claims by others. Is state symbolism a ‘right’ of the majority and if so how far does the protection of such collective manifestations of religion stretch in the pluralistic state? In the alternative, under what circumstances may we expect (international) judges to reinforce human rights claims in a counter-majoritarian fashion? Further, the question is if international human rights law presupposes some degree of state neutrality. And if so, what does such ‘neutrality’ mean in terms of the state’s own actions but also in relation to regulating the acts of individuals, notably individual display of religious symbols or attire. In other words, who is supposed ‘to be neutral’, where and when does this duty exist, and how far does this duty stretch?

4  Jeroen Temperman In terms of structure, the contributions are brought together in five different thematic sections: –  Part I deals with the role of judges in religious symbol cases; –  Part II discusses symbols, education, indoctrination and proselytism; –  Part III is on state neutrality and religious symbols; – Part IV offers comparative perspectives on state policies dealing with religious symbols inside educational premises; –  Part V, finally, contains a number of Lautsi-specific comments. Part I: Judges & Religious Symbols. Silvio Ferrari sets the scene by presenting a quantitative study of nearly all of the European Court of Human Rights (+100) decisions dealing with Article 9 of the European Convention on Human Rights on freedom of religion or belief. The results shed a unique light on how to interpret decisions within the wider historical timeline and context. The charted statistics in the area of religion cases are cross-referenced with the paramount moment of accession of a large number of former communist states to the Council of Europe. The analysis also includes cross-references with religious demography and with theological positions on Church-State relationships. Implicitly and occasionally explicitly, this data also unveils the salient responses by the Strasbourg Court to state regulation of religious manifestation and the geographically variable (perceived) challenges that come with it. Brett Scharffs addresses the question of what happens when courts themselves try to interpret the meaning of religious symbols, particularly focussing on the pressures and risks secular courts face when attempting to give authoritative meaning to religious symbols. Comparing and contrasting a host of examples of symbols and signs, and engaging with the works of sign theoreticians, Scharffs first generally demonstrates the complexity of interpreting symbols and the role of ‘interpretive communities’ in creating and determining the meaning of symbols. The second part of his chapter focuses on the role of courts/judges particularly. Based on an analysis of a wide range of relevant US and European cases, Scharffs concludes that in general courts should resist the temptation to declare authoritatively and decisively what religious symbols mean since otherwise they risk unnecessarily harming or limiting religious symbols through destructive act of judicial violence. Jean-Marc Piret aims at charting the limits of supranational jurisdiction exercised by the European human rights watchdog, the European Court of Human Rights. He argues that a sound understanding of the variety of church– state models in Europe, and the nature of treaty law, warrants a degree of deference vis-à-vis the national authorities. A plea for judicial restraint and an appraisal of the margin of appreciation doctrine, Piret concludes that in contentious cases—religious symbol cases being excellent examples—the

Introduction  5 Strasbourg Court should refrain from top-down and undemocratically legislating a presumed consensus. Part II: Symbols, Education, Indoctrination & Proselytism. Alison Mawhin­ ney’s contribution sets out by criticizing the Grand Chamber’s narrow focus on indoctrination in Lautsi, showing that it would have been in line with the existing Article 2 Protocol I jurisprudence to also concentrate on misplaced proselytism, especially considering the fact it is the state that imposes the symbol in that case. In the exercise of its functions and duties in the area of organizing state schooling, the state must be particularly vigilant not to coerce and not to impart doctrinal religious views. Mawhinney’s chapter further introduces us to semiotics, the study of signs and their effects and influences. On that basis, she fiercely challenges the baseless deconstruction by the Grand Chamber of the crucifix as a ‘passive symbol’. Most if not all persons that observe the crucifix on a classroom wall will consciously or sub-consciously make the link between the signifier and the signified, that is, will match the symbol/sign and the religion signified. What precisely happens in that continuous process of identification and re-identification may play out differently for different persons—yet in all instances that non-verbal sign-language is as active as can be. In fact, its activeness, Mawhinney concludes, is multiplied by the particular setting in which it takes place: state education consisting of compulsory attendance, a learning environment (including a first initiation into what is right and what is wrong), and power-imbalanced relationships. Stijn Smet’s contribution addresses the peculiar tension underlying most proselytism and headscarf cases, that is, between one person’s freedom of religion and the freedom from religion of others. By analysing the relevant jurisprudence of the European Court of Human Rights from the perspective of conflicts between human rights, he assesses the role of secular principles in resolving the (apparent) conflicts. Criticising ‘closed neutrality’, Smet advocates an alternative conception of secularism, inviting ‘open neutrality’. His contribution concludes by illuminating the ramifications of that concept for the freedom of individuals to wear religious symbols in public institutions, as well as for the power of the state to order the display of crucifixes in public buildings. Jeroen Temperman’s chapter flags a couple of preliminary legal questions that are remarkably often ignored or trivialized by (international) courts. Underscoring the importance of identifying primary rights holders, genuine conflicting interests, and the obligations of duty bearers in symbol cases, this contribution illustrates that much depends on who can be identified as ‘symbol-displayer’ and who as ‘symbol-viewer’ and within which particular (public) setting. Focussing on public school education, he addresses such questions as under what circumstances may State neutrality be considered a legitimate ground for limiting fundamental rights. And who is actually

6  Jeroen Temperman supposed ‘to be neutral’ according to human rights law—States, buildings, the ‘public square’, civil servants, teachers, students, and/or pupils? When does a symbol truly ‘interfere’ with the rights and freedoms of others or with public order? And who is to prove that? Also, what are the exact standards of proof in symbols cases? Part III: State Neutrality & Religious Symbols. Wouter de Been argues that a rule that mandates a crucifix in public schools can, all things considered, ultimately be reconciled with basic guarantees of freedom of religion like the ones set out in Article 9 of the European Convention on Human Rights. De Been argues that, in addition to the concrete circumstances of the case, much depends on how we construe ‘neutrality’ and the need for the state to pursue it. If one takes the changed nature of religion seriously, this should also lead to a different conception of the relationship between church and state, implying that the notion of exclusive neutrality should be replaced with a different conception. In line with recent work by Richard Thaler and Cass Sunstein, De Been suggests the notion of a default position as an alternative: this default position, he concludes, “does not depend on a fully neutral public philosophy, but on a public philosophy that accords with the settled judgment of an overwhelming majority of citizens within the wide margins of basic rights and freedoms”. Roland Pierik analyzes the issue of state religious symbols from the perspective of state neutrality. He distinguishes between different meanings and interpretations of the ideal of neutrality, ultimately arguing that state-imposed symbols, or state affiliation with the dominant religion by means of symbolism in the educational framework, are at odds with the neutrality principle. Specif­ ically, the notion of pluralism, and the state’s concomitant duty to create a sufficiently critical and pluralist educational framework, requires a principled distance between religion and the state in the field of public education. Pierik addresses the question whether the obligatory display of crucifixes can in the final analysis be considered a merely symbolic utterance of a ‘national particularity’ or whether the display actually breaches that principled distance between state institutions and religion. He concludes that the Italian insistence on holding on to the obligatory display of the crucifix is an example of what he refers to as ‘European’s constitutional deficit’, which is characterized by an unwillingness or inability of European states to justify the exercise of public power in a manner that does not appeal merely to the predominant religion. Hana van Ooijen assesses the Lautsi case in the light of the Strasbourg Court’s gradual development of a notion of state neutrality. Through further comparing and contrasting four national conceptions of religion–state relations—‘Swiss strict denominational neutrality’; French laïcité; ‘Dutch implied neutrality’; and English neutrality—it is illustrated that European neutrality is not a monolithic concept. It is human rights law that should

Introduction  7 inform the direction and parameters of neutrality; whilst neutrality should not be taken as the magic formula automatically providing reason for limitations of religious rights. Part IV: Comparative Perspectives on Religious Symbols & Education. Richard Moon shows that the Grand Chamber of the European Court of Human Rights adopted in Lautsi a remarkably narrow view of freedom of religion or belief: religious freedom as negative religious liberty. In other words, religious freedom as a duty for the state not to coerce, thus permitting far-reaching state support for religion. This happened, interestingly, at a moment where equal freedom of religion was in actual fact increasingly construed so as to require an important degree of state neutrality, that is, an obligation on the part of the state not to take sides in religious matters. This notion of state neutrality can be found in the European Court’s own case law, but also, a fortiori, in relevant Canadian jurisprudence. In his legal-philosophical and comparative contribution, Moon questions the European Court’s approach by engaging with the value of state neutrality, also including a reflection on the questions of what type of arguments may be accepted in the political discourse, and if and to what extent a Court may accept a formal link between religion on the one hand and national identity and political obligations on the other. Importantly, in so doing he challenges the ‘neutrality-is-not-neutral-either’ critique so often uncritically expressed by supporters of state support. The first half of Liviu Andreescu and Gabriel Andreescu’s chapter forms a robust critique of the Lautsi decision(s), focusing predominantly on the alleged ‘passiveness’ of religious symbols, but also comparing and contrasting Euro­pean Court of Human Rights case-law to relevant US jurisprudence on symbols under the First Amendment. Despite serious concerns about some of the arguments employed by the Grand Chamber, they do praise the ultimate resolution found in the second Lautsi decision. That decision appears to be premised on a ‘neutralisation test’: a three-pronged test designed to establish whether a symbol, albeit undeniably religious, may be said to have been stripped of its potential adverse impact through adequately protecting competing interests of parents and children. The second part of their chapter shifts the focus to Romania, more particularly, they engage extensively with the Moise case that is presently pending before the European Court of Human Rights. They argue that Lautsi does not mean that states now enjoy for once and for all an absolute discretion when it comes to placing religious symbols in public schools. Employing the Court’s newly formulated neutralization test, their analysis concentrates on the (in)compatibility of the presence of icons in Romanian state schools with the standards of Article 2 of Protocol I and Article 9 of the European Convention on Human Rights. Carlo Panara analyzes Lautsi and other Italian symbol cases in light of civil rights and principles enshrined in the European Court of Human Rights and

8  Jeroen Temperman in Italian constitutional law. His account addresses the interrelated questions: is a legal obligation to hang crucifixes in public schools a state intervention affecting religious freedom?; if so, could such state act be justified?; or if not strictly speaking legitimate, may such intervention nevertheless be deemed ‘negligible’? Panara puts Italian symbols case-law further into perspective by comparing and contrasting it with similar jurisprudence stemming from German, Swiss and Spanish courts. Importantly, in relation to the Italian crucifix-policy he establishes forum internum concerns, suggesting that this practice could never be saved in light of the system of European Convention on Human Rights. He concludes, therefore, that the European Court of Human Rights rather failed its important task as European guardian of fundamental rights. Part V: Lautsi-Specific Comments. Malcolm Evans places Lautsi in the wider context of the Strasbourg Court’s jurisprudence relating to Article 9 of the European Convention on Human Rights and Article 2 of its Protocol I. Noting flaws in both the Chamber and the Grand Chamber decision’s, he particularly critiques the former Chamber’s underlying concept of neutrality. Criticising the Chamber’s conclusion that the crucifix policy is self-evidently incompatible with the State’s duty to respect neutrality in the exercise of public authority particularly in the field of education, Evans proposes an alternative approach to this type of cases. The relevant question is not whether there are or are not signs or symbols which are of a religious nature present in the classroom; rather, we must focus on the totality of the educational experience. Whilst the physical environment, including the presence of symbols may be taken into account as relevant factors, other factors must be accounted for too when making that overall assessment. Evans employs this argumentation also so as to further critically engage with three concrete manifestations of state neutrality in religion cases: the State as ‘ringmaster’, neutrality as ‘autonomy’, and neutrality as ‘non-engagement’. Although the Grand Chamber—according to Evans, needlessly—fell back on the margin of appreciation doctrine, Lautsi may nonetheless mark a new approach to state support for traditional religions within Europe. In one of the most poignant defenses of the Grand Chamber decision in Lautsi or of a place for crucifixes or other religious symbols in public schools generally, András Koltay argues that secularism does not have such a generally accepted European meaning based on which an international monitoring body, in this case the European Court of Human Rights, could order the removal of culturally cherished religious symbols. In his analysis, some of which he relates to the Hungarian context specifically (where the issue is heatedly debated too), he shows how tradition and history do matter and must be taken into account in the symbols debate and within human rights discourse. Koltay concludes that demands stemming from the notion of pluralism and

Introduction  9 demands stemming from minority rights ought not to be construed as an overriding veto to the religious and cultural identity of the majority. Perhaps the best expression of the fact that the meaning of a symbol is not quite a monolithic notion is provided by Hin-Yan Liu’s thought-provoking chapter on the link between state symbols and hate speech. Whereas for some a religious symbol might represent an important cultural identity or the nature of civilisation—to others that very same symbol may represent a message of hate, hostility, or violence and abuse. Liu critiques the parallel the State in Lautsi has assumed to the individual right to manifest a religious conviction or belief, or to engage in free symbolic expression. Through criticizing the diametric opposition between the Chamber’s determination of a ‘powerful external symbol’ and the Grand Chamber’s assertion of an ‘essentially passive symbol’, he demonstrates a degree of indirect discrimination which reinforces the argument that the State should be prohibited from displaying religious symbols. Importantly and originally, Liu further considers religious symbols in the light of the freedom of symbolic expression in order to establish whether different boundaries of protection and proscription exist. Carla Zoethout reflects upon the Lautsi judgement with a view towards demonstrating the need for a new mode of adjudication for the European Court of Human Rights. Cases such as Lautsi, that is, highly controversial, politically and socially contentious ones, require a moderate mode of review. In that type of cases, the most sensible approach would be to render a ‘declaration of incompatibility’, thus upholding a European standard whilst granting the state (here Italy) more scope to come up with a satisfactory solution (in Lautsi, that would be a solution beyond the implied suggestion of removing all crucifixes from all schools), thus respecting local democratic decision-making processes. Evidently, recent symbol cases urge us to reflect on a number of large questions about human rights obligations in the combined areas of public school education and religious liberties. These questions are ‘large’, because depending on their outcome they may directly or indirectly affect old traditions and impact the internal relation between the state and the predominant or traditional religion. This book endeavours to engage with different dimensions or layers of the human rights debate on state and individual religious symbol display. Accordingly, the answers provided are as multi-disciplinary as can be. Doubtless the different accounts—not unlike Lautsi itself—raise more questions than answers. Yet, in all their scholarly multilingualism and complexity, their multi-vocality and gentle internal disagreements and contradictions, the contributions offer important glimpses at further understanding and resolution of this most timely and controversial of human rights questions.

PART I

JUDGES & RELIGIOUS SYMBOLS

THE STRASBOURG COURT AND ARTICLE 9 OF THE EUROPEAN CONVENTION OF HUMAN RIGHTS: A QUANTITATIVE ANALYSIS OF THE CASE LAW Silvio Ferrari I.  Introduction: The Council of Europe and the ECtHR In recent years, many analyses of the ECtHR case law on freedom of religion and belief have been published. However, a quantitative study of its decisions dealing with Article 9 of the ECHR is still missing. A quantitative approach, while recognizing all the limits that are typical of researches of this type, can help to answer some questions concerning the timeline of the Court’s decisions, their content and the States affected by them. Why was the first decision based on Article 9 pronounced as late as in 1993, that is, more than 30 years after the creation of the Court? Why are Orthodox countries condemned by the Court more frequently than Catholic and Protestant ones?1 What types of violations of Article 9 occur most frequently? These are some questions which I shall try to answer through a political-religious interpretation of relevant ECtHR decisions. Before starting an analysis of the Court’s case law, it is appropriate to devote a few remarks to the religious background of the Member States of the Council of Europe. This analysis is required by the fact that the Court’s judges are elected by the Parliamentary Assembly of the Council of Europe;2 while the main task of the ECtHR is to judge the allegations of violations of rights secured by the ECHR committed by the Council of Europe Member States which have signed it. Founded in 1949 on the initiative of 10 countries (Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden, United Kingdom), the Council expanded over the following forty years to include 1   In this paper I define a country as Catholic, Protestant, Orthodox, etc., when at least 50% of its population declares to profess that religion; a ‘mixed’ country is a country where no religion reaches this threshold. Even though it is just a numerical label and definition, incapable of revealing the effective vitality of a religion, the fact that over half of a population follows the same religion normally indicates that some cultural influences which may be traced to the religion of the majority have had (and can have) a significant importance in establishing the legal tradition of the country. The data on the religious belonging of the population have been taken from ARDA (Association of Religion Data Archives, available at , accessed 30 August 2011). 2   On the basis of a list of candidates presented by each member State.

14  Silvio Ferrari 23 countries, virtually all Western European countries and Turkey.3 In this first stage of its existence, the Council of Europe brought together politically and culturally homogeneous countries, almost all structured according to the principles of liberal democracies; from a religious point of view it was mostly constituted of Catholic and Protestant countries (up to the early 1990s only two Orthodox countries, Greece and Cyprus, and a Muslim country, Turkey, were part of it). Subsequently the most important event in the history of the Council of Europe was the accession to the Council of the countries that had been part of the Communist bloc. Between 1990 and 2003, 24 new countries became member of the Council; almost all just emerging from the experience of totalitarian regimes. The political problems posed by these countries were very different from those the Council had faced until then and this diversity is also reflected in the legal questions submitted to the ECtHR.4 In relation to Article 9 of the Convention, these new issues frequently regarded the collective right of religious freedom: the Court was urged to intervene in an area that until then was scarcely taken into consideration.5 Also, from the perspective of the religious traditions represented in the Council of Europe the situation changed radically: if until the early 1990s it was composed of 11 Catholic, 5 Protestant, 2 Orthodox, 1 Muslim, and 4 mixed countries, the accession of the former Communist countries marked a significant strengthening of the Orthodox and Catholic component and the simultaneous decline in percentage of the Protestant countries.6 The new religious composition of the Council of Europe was not without consequences: many Orthodox churches did not share in its entirety the concept of religious freedom adopted by the Strasbourg Court or the notion of State secularism and neutrality that it upheld. Under Pope John Paul II these criticisms found an increasingly favourable reception in the Catholic Church. The reservations of these Churches had an impact on some Member States of the Council of Europe, whose population is predominantly Orthodox or Catholic: the referral request to the Grand Chamber submitted by the Italian

3   With the exception of Andorra and Monaco, who joined the Council in 1994 and in 2004 respectively. 4   On this point, see Wojciech Sadurski, ‘Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and East European State to the Council of Europe, and the Idea of Pilot Judgements’, 9:3 Human Rights Law Review (2009), p. 400. 5   See further section IV, infra. 6   Among the 24 countries that became members of the Council of Europe after 1989, 9 were Orthodox, 8 Catholic, 3 (Albania, Bosnia and Azerbaijan) Muslim, 1 Armenian Apostolic (Armenia) and 3 mixed (Estonia, Latvia and the Czech Republic).

The Strasbourg Court and Article 9 of the European Convention  15 government against the Lautsi decision, with which the Court had declared that the compulsory display of a crucifix in the Italian classrooms violated both the parents’ right to educate children according to their conviction and the children’s right to freedom of religion, has been supported by a coalition of Catholic and Orthodox States (significantly, no Protestant State was part of this group), united in opposing the idea that the neutrality of the public space required the absence of any reference to religion in public institutions. The Court’s case law has thus become an important component of the conflict that is going on in Europe about the place to be given to religions in the public space. In the following pages I shall try to give an explanation of the process that led to this situation. II.  The Numbers The ECtHR website publishes tables and lists of the Court decisions, divided according to the years and the defendant States.7 The examination of these data provides some significant indications on the case law’s trends.8 One hundred decisions on Article 9, given by the Court between 1959 and 2009, have been taken into consideration.9 They are distributed among the Council of Europe Member States in the following way:

7   Cf. Tableau des violations 1959–2009 and Survey: Forty Years of Activity, 1959–1998, available   at   ; Index to the Information Notes on the Court’s case law, available at ; Annual Reports, 2001–2009, available at ; Analyses of case law, 2001–2005, available   at   ; ‘Violation by Article and by Country’, in Ten Years of the “New” European Court of Human Rights, 1998–2008. Situation and Outlook, available at (all accessed 30 August 2011). 8   As in any statistics-based survey, the information provided by these data should be taken with caution. For example, some cases regarding freedom of religion are not included in the data reported in this paragraph because they have been decided on the basis of other ECHR provisions (in particular Article 10 of the Convention and Article 2 of Protocol No. 1). 9   I have examined the decisions that declare the existence or inexistence of a violation of Article 9 of the Convention or the inadmissibility of the application. However, the decisions with which the Court strikes an application off its list of cases (cf. Article 37 of the Convention) have not been considered as they may be taken for very different reasons (for example, because the parties have reached an out of court agreement) and therefore do not provide clear guidance regarding the opinions of the Court. For the same reason the decisions which state that it is not necessary to examine the matter from the standpoint of Article 9 have not been taken into account. The figure of 100 decisions is probably rounded down: in the period under

16  Silvio Ferrari Table I.  Decisions relating to Article 9 of the Convention, categorized according to the respondent States Armenia Austria Bulgaria Denmark France Georgia Germany Greece Italy Latvia Luxembourg

1 1 4 2 15 1 7 11 2 3 1

Macedonia Moldova Poland Russia San Marino Spain Sweden Switzerland Turkey Ukraine United Kingdom

1 4 2 5 1 1 2 5 22 3 6

If these countries are grouped according to the (predominant) religious affiliation of their population, the decisions of the ECtHR can be categorized as follows: Table II.  Decisions relating to Article 9 of the Convention, distributed according to the religious demography of the respondent States Religious background

Number/percentage of decisions

Catholic countries (19)

23 decisions (23% of all Court decisions on Article 9) 22 decisions (22%) 29 decisions (29%) 4 decisions (4%) 21 decisions (21%)11

Muslim countries10 (4) Orthodox countries (11) Protestant countries (5) Mixed countries (7)

Of the 100 decisions rendered by the Court in relation to Article 9, thirty declare a violation. These decisions concern the following States: examination, the Court delivered over 12,000 judgements and it is possible that a few decisions relating to Article 9 (in particular those which declare the inadmissibility of the application) have not been identified. However 100 decisions constitute sufficient material to carry out an analysis of the Court’s case law. 10   Muslim countries could be a misleading expression, as all the decisions regard Turkey, i.e. not one of the three other States where Islam is the majority religion (viz., Albania, Bosnia, Azerbaijan). 11   One decision regards Armenia, where the majority of citizens are members of the Apostolic Armenian Church.

The Strasbourg Court and Article 9 of the European Convention  17 Table III.  Decisions declaring a violation of Article 9, broken down by State12 Country

No. of Article 9 violations

Austria Bulgaria Georgia Greece Latvia Moldova Russia San Marino Switzerland Turkey Ukraine

1 4 1 8 3 3 4 1 1 1 3

Breaking down these decisions on the basis of the religious demography of the involved countries, the following data is obtained (in parentheses the percentage out of the total Article 9-related decisions rendered by the Court is indicated): Table IV.  Decisions declaring a violation, distributed according to the religious demography of the respondent States Religious demography

Number of Article 9 violations

Catholic countries (19)

2 decisions  (9% of all Article 9-related decisions concerning Catholic countries) 1 decision  (5% of all decisions concerning Muslim countries) 23 decisions  (79% of all decisions concerning Orthodox countries) No decision 4 decisions  (19% of all decisions concerning mixed countries)

Muslim countries (4) Orthodox countries (11) Protestant countries (5) Mixed countries (7)

12  See Tableau des Violations 1959–2009 (supra note 7). This Tableau shows only the cases where the violation of Article 9 is the main violation (for example, in the year 2007 only the case of Kuznetsov and Others v. Russia, 11 January 2007, No. 184/02, is listed; two other case, in which the Court declares the violation of Article 11 “read in the light of Article 9” (viz., Church of

18  Silvio Ferrari Further, there are the decisions that declare the inexistence of any violation of Article 9 or reject the application as inadmissible.13 By distributing them according to the respondent States, the outcome is as follows: Table V.  Decisions, broken down by State, declaring the inadmissibility of the application or the inexistence of a violation of Article 9 Armenia Denmark France Germany Greece Italy Luxembourg Macedonia

1 2 15 7 3 2 1 1

Moldova Poland Russia Spain Sweden Switzerland Turkey United Kingdom

1 2 1 1 2 4 21 6

If these countries are grouped according to their religious demography, the following data are obtained (in parentheses the percentage out of the total Article 9-related decisions rendered by the Court is indicated): Table VI.  Decisions declaring the inadmissibility of the application, or the inexistence of a violation of Article 9 distributed according to the religious demography of the respondent States14 Religious demography

Number of inadmissibility/no violation decisions

Catholic countries (19)

21 decisions  (91% of all Article 9-related decisions concerning Catholic countries)

Muslim countries (4)

21 decisions  (95% of all decisions concerning Muslim countries)

Scientology Moscow v. Russia, 5 April 2007, No. 18147/02, and Barankevich v. Russia, 26 July 2007, No. 10519/03) are not reported. Concerning Greece, the data contained in this Tableau need to be coordinated with those indicated in the Tableaux listed in the following notes: the Tableau lists 8 decisions declaring a violation of Article 9, which is correct if the three decisions in the Agga case (17 October 2003, Nos. 50776/99 and 52912/99; 13 July 2006, No. 32186/02; 13 July 2006, No. 33331/02) are counted as a single decision and the decision in the Thlimmenos case (6 April 2000, No. 34369/97, pronouncing a violation of Article 14 “in conjunction” with Article 9) is not taken into account. Finally, the Tableau indicates a decision concerning Switzerland that I have not been able to identify. 13   Data are derived from the tables mentioned in footnote 7, supplemented by the list of cases reported by and in the research by Alysia Barzee, European Court of Human Rights. Religious Freedom Cases and Cases with a Religious Dimension: NonAdmissibility Decisions 1999–2007, available at (accessed 30 August 2011). The decisions made by the former European Commission of Human Rights have not been considered. 14   One decision concerns Armenia.

The Strasbourg Court and Article 9 of the European Convention  19 Table VI. (Cont.) Religious demography Orthodox countries (11) Protestant countries (5) Mixed countries (7)

Number of inadmissibility/no violation decisions 6 decisions  (21% of all decisions concerning Orthodox countries) 4 decisions  (100% of all decisions concerning Protestant countries) 17 decisions  (81% of all decisions concerning mixed countries)

On the basis of these tables it is possible to make the following preliminary observations. First of all, the case law concerning Article 9 is relatively small: about 100 decisions, spread over fifty years, is not a high number, especially when compared with the case law that regards other articles of the Convention. The 30 decisions that declare a violation of Article 9 are less than a third of those handed down, for instance, in relation to violations of Article 11 on right to freedom of peaceful assembly and to freedom of association (98 such decisions), and less than a tenth of those based on Article 10 on freedom of expression (392 such decisions establishing a violation). One gets the impression that, especially in its early years, the Court preferred to pronounce a sentence on the basis of other articles of the ECHR, even when a determination of a violation of Article 9 could have been appropriate.15 Further, Table I shows a surprisingly high number of decisions concerning Turkey (22 decisions), France (15) and Greece (11): these three countries together count for almost half of all the Article 9 decisions given by the ECtHR (which regard 22 countries in total). But, as we shall see later, the outcome of these decisions is very different: while Greece is almost always found responsible for violating Article 9, France and Turkey are almost always ‘acquitted’. The decisions of the Court—when placed in relation to the religious demography of the involved States (see Table II)—are not evenly distributed. The scarcity of decisions concerning the Protestant countries and the abundance of those involving the Muslim countries (more precisely, Turkey) is remarkable. The attention given by the Court to Orthodox countries (among the Christian countries) should also be noted. In the case of the Protestant countries the 15   The cases Darby v. Sweden, 23 October 1990, No. 11581/85, and Hoffman v. Austria, 26 May 1993, No. 12875/87, are good examples of the Court’s reluctance to make use of Article 9.

20  Silvio Ferrari scarcity of the population has to be taken into account: all together, the inhabitants of the five Protestant countries amount to about one third of the population of Turkey and, since the Court acts on the basis of the complaints that are submitted to it, it is reasonable to expect that countries with smaller population are affected by fewer decisions. But this explanation does not hold true in the case of Turkey: although it has only about one third of the population of the Catholic countries, it generates almost the same number of judgements. We must therefore conclude that religious freedom is a controversial issue in Turkey; however, only few Article 9 cases against this state led to violations. What is also striking in this context is the fact that the declarations of violation of Article 9 only affect the countries of Southern, Eastern, and in small measure, Central Europe (see Table III): they never concern Northern European countries. This absence is likely to be due to the long tradition of respect for human rights that distinguishes these last countries but it is also possible that a role is played by the theological and philosophical presuppositions on which the decisions of the ECtHR are founded.16 The declarations of violation regard countries with an Orthodox majority (23 convictions for Article 9 violations) and, to a much lesser extent, mixed (4 convictions), Catholic (2 convictions) and Muslim (1 conviction) countries; they do thus far never concern Protestant countries (see Table IV). Also, the percentage pertaining to Orthodox countries does not quite compare to the states with other religious background: 79% of the judgements involving an Orthodox country end with the Court determining a violation. The percentages concerning the other countries where one religion is dominant are much lower: 5% for Muslim and 9% for Catholic countries. The declarations of violation relating to the countries that accessed the Council of Europe after 1989 (18 convictions) are more numerous than those relating to the ‘old’ countries (12 convictions), although these have been under the jurisdiction of the Court for a much longer time (this conclusion may be drawn from Table III); this disproportion becomes even more evident if one considers that Greece is a special case and accounts for two thirds of all the declarations of violation concerning the ‘old’ countries.17 As almost all the countries that entered the Council of Europe after 1989 are post-communist countries, that made the transition from a totalitarian regime to a (more or less) democratic one in the years immediately before their accession to this organization, the conclusion reached just now could be reformulated in the following terms: the declarations of violation of Article 9

  As further discussed in concluding section 6, infra.   For the explanation of this Greek anomaly, see section 3, infra.

16 17

The Strasbourg Court and Article 9 of the European Convention  21 ECHR that involve recently democratized countries are much more numerous than those concerning countries that have a longer democratic experience. This conclusion may seem obvious, however: as all post-communist countries that are responsible for violation of Article 9 are Orthodox countries (with the exception of Latvia, a mixed country), one has to ask whether the declarations of violation concerning these countries are more numerous because they are post-communist countries (violations for political reasons) or because they are Orthodox countries (violations for religious reasons). The comparison with the data concerning Article 10 and 11 (freedom of expression and freedom of peaceful assembly/association), which are relevant in relation to the political ground, can help answer this question. There are fewer decisions involving the ‘new’ countries for violations of Article 10 and 11 than those affecting the ‘old’ countries: 83 decisions against 309 (concerning Article 10) and 40 against 58 (concerning Article 11). This disparity between the convictions on Article 9 on the one hand and on Article 10 and 11 on the other leads to the conclusion that the religious tradition of a country and its system of relations between State and religion have a specific relevance. In other words, the Orthodoxmajority countries are generally more problematic, from the perspective of the required respect for Article 9, than the mixed countries or the countries where another religion is professed by the majority of the population. This conclusion is confirmed by the fact that no post-Communist country with a Catholic majority (including countries with a strong Catholic tradition, like Poland) is affected by the declarations of violation of the Court: if the distinction had a political rather than religious foundation, this difference could not be explained. In relation to Article 9, then, the divide does not run between the countries of old and new accession but between Orthodox and non-Orthodox countries. Finally the problematic nature of the Orthodox countries in relation to Article 9 of the ECHR is confirmed by two other data. First, among the ‘old’ countries, the record of convictions is held by an Orthodox state: Greece. And, second, in the ranking of convictions the first three places are occupied by Orthodox countries (see Table III). Finally, the high number of declarations of inadmissibility of the application or inexistence of the violation which concerns France (15 ‘acquittals’ on 15 judgements, i.e. 100% of the total) and Turkey (21 ‘acquittals’ on 22 judgements, i.e. 95% of the total; see Table V) is remarkable. The latter figure is particularly surprising considering the high number of declarations of violation handed down against this country in relation to Article 10 (182 such judgements) and 11 (39 such judgements). The Turkish situation has been studied by Greer, according to whom the problem stems from the fact that “Turkey continues to have a constitutional commitment to a uniquely strong secular, unitary state, not wholly consistent with the European notion of

22  Silvio Ferrari political pluralism and the rights of minorities”.18 But this author fails to highlight that religious freedom is not the ground on which the Strasbourg Court has chosen to urge Turkey to respect for fundamental rights. The most plausible explanation for this reluctance is that, in the eyes of the ECtHR, Turkey does not raise significant problems of violation of religious freedom (compared to the problems in relation to freedom of expression and association). In fact Turkey is, with France (which has never been declared responsible for a violation of Article 9), the most avowedly secular country among the members of the Council of Europe. This seems to indicate that according to the ECtHR the secular State, even in the radical forms that sometimes characterize Turkey and France, raises fewer problems of compatibility with Article 9 of the ECHR than the intransigent forms that sometimes are characteristic of the Orthodox religion in the countries where that is the majority religion. III.  The Time The analysis carried out in the previous paragraph does not take into account a key element: time. The ECtHR history is divided into two parts, marked by the entrance in the Council of Europe of the post-communist countries.19 In the first part of their life, both the former European Commission and the European Court showed little interest in the issue of religious freedom. Between 1957 and 1965, the Commission examined 7 complaints alleging infringement of Article 9. Six were declared inadmissible and the seventh, accepted by the Commission, was rejected by the Committee of Ministers according to which there had been no violation of Article 9. In 1976, the Court examined the first case based on Article 9 and did not find any violation of this provision.20 The same happened in 198021 while in 199022 and 199223 two other cases were dropped by a decision of ‘non-lieu à examiner’. The first decision declaring a violation of Article 9 was delivered in 1993, thirty years after the creation of the Court.24   Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006), pp. 96–103; the passage quoted in the text is at p. 97. 19   See Sadurski, supra note 4, p. 400. 20   It is the case Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Nos. 5095/71, 5920/72, 5926/72. 21  See Guzzardi v. Italy, 2 October 1980, No. 7367/76. The Court established a violation of Article 5 of the Convention. 22  See Darby v. Sweden, 23 October 1990, No. 11581/85. The Court established a violation of Article 14. 23  See Beldjoudi v. France, 26 March 1992, No. 12083/86. 24   For these data, see Survey, supra note 7. The Court’s reluctance to face issues related to religious freedom and its deference to the decisions of the national courts is stressed by Julie 18

The Strasbourg Court and Article 9 of the European Convention  23 This surprising result is due to two different reasons. The first is general and concerns the unbalance of power between the Commission, the Commit­ tee of Ministers and the Court, to the detriment of the latter. Until the early 1970s, the Court was virtually inactive and all relevant decisions were taken by the Commission and the Committee of Ministers. The fate of the com­ plaints alleging an infringement of Article 9 is not different from that of the complaints based on a violation of other provisions of the European Convention.25 Gradually the Court became able to play a more central role in relation to many articles of the ECHR, but not in relation to Article 9.26 Thus, there must be a second reason; a particular reason explaining the reluctance of both the Commission and the Court to make use of this article. First of all, the examination of the applications that were declared inadmissible by the European Commission reveals a restrictive approach to the interpretation of Article 9: this article granted a particularly strong protection of religious freedom and therefore had to be balanced with an interpretation based on criteria of prudence and respect of national laws. It is true that in its first paragraph Article 9 only repeats the contents of Article 18 of the Universal Declaration of Human Rights: but this Declaration did not have the binding force of the Convention nor provided legal mechanisms to ensure its application. Moreover, to measure the gap between Article 9 ECHR and the provisions in force in the countries that had subscribed to it, it is enough to note that, when the Convention was signed, a Jesuit could not set foot in Norway, an apostate priest could not teach in Italian public schools and the followers of a religion other than the Catholic one could not publicly celebrate any religious ceremony in Spain. Since the end of the 1960s the legal systems of many West European countries (which, together with Turkey, were the members of the Council of Europe) entered a phase of rapid transformation. Human rights (including religious

Ringelheim, ‘Rights, Religion and the Public Sphere: The European Court of Human Rights in Search of a Theory’, in C. Unguereanu and L. Zucca, Law, State and Religion in the New Europe: Debates and Dilemmas (Cambridge: Cambridge University Press, 2012), pp. 283–306. 25   The first decisions of the Court concerning Article 11 and 10 were pronounced in 1975 and 1976 and are thus contemporary to the 1976 decision in the Kjeldsen case; the first decisions that establish a violation of these articles were pronounced in 1979 (regarding Article 10) and 1981 (regarding Article 11). Note that in the period 1959–1993, the Court gave 29 decisions relating to Article 10 and 11 decisions concerning Article 11: the higher number of decisions concerning these articles can explain why the declarations of violation based on Article 10 and 11 have preceded those based on Article 9. 26   The convictions devoted to Article 10 and 11, in fact, followed one another fairly rapidly in the years 1975–1992: compared to 4 decisions relating to Article 9 (none of which declare a violation), there are 27 decisions relating to Article 10 (11 of which declare a violation) and 9 decisions relating to Article 11 (2 of which declare a violation). See Survey, supra note 7.

24  Silvio Ferrari freedom) gained a degree of importance that they previously did not have in the national legal systems and Article 9 of the ECHR lost the innovative significance that it had had until then. Nevertheless, the Commission and the Court continued to show great hesitation in applying it, probably due on the one hand to a certain reluctance to deal with religious matters and on the other to the conviction that the process of internal secularization of the legal systems of the Western countries would have solved many problems related to religious freedom without requiring the intervention of the Court. Things started to change in 1993. In six years (1993–1998), the Court delivered 7 decisions on Article 9, declaring its violation on 5 occasions: 6 of these decisions (and all the declarations of violation) regarded Greece. Such a sudden change of course needs to be explained. The decision to intervene systematically on Article 9 has to be placed in the context of the ‘revanche de Dieu’ that had began to take shape in the previous years. Religions showed unexpected signs of vitality in the public space and this new visibility created tensions and conflicts: thus ignoring the problems related to the religious phenomenon became increasingly difficult for the Court. Secondly, the postcommunist countries that entered the Council of Europe after 1989 had to rebuild their system of relations between State and religion from scratch; the Court had therefore the opportunity to send them a signal on the direc­tion that this reconstruction should take; that is, in line with the content of Article 9. These reasons help to explain the breaking of a pattern of inactivity on the part of the Court but leave another question unanswered: why Greece and only Greece? Why the case law of the Court is so lopsided against a single country?27 It must be said that the Greek legal system contained (and still contains) a provision which had no match in any other country of the Council of Europe: the prohibition of religious proselytism, formulated in general and absolute terms both in the Constitution (Article 13) and in the ordinary laws (Article 2 of Decree Law 1672 of 1939).28 This restriction of religious freedom was difficult to justify under Article 9 ECHR. Therefore the Greek legal system offered the opportunity to inaugurate the Court’s jurisprudence on Article 9 with a declaration of violation that could hardly be disputed. Second, of the

27  The position of Greece is exceptional in relation to Article 9, but not to Article 10 (in 1959–1998 period, Greece is involved in only 4 decisions against the 11 decisions regarding Austria and the 13 decisions that concern the United Kingdom) and 11 (no decision regarding Greece). See Survey, supra note 7. 28   On the question of proselytism, see Silvio Ferrari, ‘Proselytism and Human Rights’, in J. Witte Jr. and F. S. Alexander (eds.), Christianity and Human Rights (Cambridge: Cambridge University Press, 2010), pp. 253–266; Alain Garay, ‘Le Prosélytisme vu sous l’Angle de la Convention Européenne des Droits de l’Homme’, Derecho y Religion (2009), pp. 111–129. Similar prohibitions are in force in Armenia and Azerbaijan, which joined the Council of Europe in 2001.

The Strasbourg Court and Article 9 of the European Convention  25 five convictions of Greece, four were related to the same religion, that of the Jehovah’s Witnesses, to which Greece refused the qualification of ‘known religion’ and therefore the possibility of opening places of worship. The legal status of Jehovah’s Witnesses was not particularly good also in the other countries that formed the original core of the Council of Europe, but almost all of them had started to show openings that had no counterpart in Greece. The Court’s decisions, therefore, constituted an invitation to follow a line more respectful of religious freedom even in relation to ‘unknown’ religions and, in particular, to the Jehovah’s Witnesses. Finally, the Court knew that the decisions concerning Greece would have had an immediate echo in many post-communist countries, which had in common with Greece the Orthodox religious tradition. The Court could not yet intervene on the rules of their legal systems that were more problematic in regard to religious freedom (these countries had just joined the Council of Europe and the cases that concerned them were still under investigation);29 thus the Court speaks to Greece but hoped the message was also understood by the Orthodox countries located beyond the iron curtain that had just fallen. This conclusion is justified by a chronological examination of the decisions against Greece. Six of the eight convictions that affect this country are concentrated between 1993 and 2000, the year in which the Court declared for the first time a violation of Article 9 by a State recently acceded to the Council (Bulgaria): from then on the Court’s focus shifts from Greece to the former communist Orthodox countries, first Bulgaria and Moldova, then all the others.30 Things changed once more since 1999, that is, since the beginning of the second phase of the ECtHR activity. If in the previous 40 years the Court had pronounced only 5 judgements declaring a violation of Article 9 (with an average of 0.1 such decisions per year), all against the same country (Greece), and almost all related to the same religion (the Jehovah’s Witnesses), in the following 11 years the Court pronounced 25 convictions (with an average of 2.3 such judgements per year) against 10 different countries and in relation to many different religions.31 This significant increase in the Court activity is due to the 29   The first decision regarding a post-Communist country is delivered only in 2000 (Hasan and Chausch v. Bulgaria, 26 October 2000, No. 30985/96). 30   According to Sadurski, supra note 4, p. 401, the jurisprudence of the Court changes with the first decisions against the ‘new’ countries; but, in relation to Article 9, the Court’s case law changes already prior to that, in the span of time between the accession of the ‘new’ countries to the Council of Europe and the first decisions against them. 31   These data (and those relating to Article 10 and 11) are derived from the Tableau, supra note 7, and from the tables published in the Annual Report 2008 (Violations by Article and by Respondent State. 1 November 1998–31 December 2008) and in the Tableau des Violations 2009, all available at www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Reports/Annual +surveys+of+activity, accessed 30 August 2011. No sentence has been pronounced in NovemberDecember 1998.

26  Silvio Ferrari re-organization of the ECtHR and does not regard only Article 9.32 What is specific of this article, however, is the significant transformation that, in the same period, affects the content of Court’s decisions regarding religious freedom. IV.  The Content Regarding the content of the decisions, the major turning point is the enlargement of the horizon that takes shape around the beginning of the new millennium: the Court’s attention is no more focused only on the religious freedom of individuals but extends to the infringements of collective religious freedom. Until 2000 the declarations of violation of Article 9 (in particular in the cases of Kokkinakis, Valsamis, Efstratious, Buscarini)33 concerned cases closely related to individual religious freedom such as proselytizing activities, refusal (for religious reasons) to participate in school activities, conscientious objections to taking an oath and so on. The religious communities and their rules, while inspiring this individual behaviour, remained in the background. The turning point is represented by the case Hasan and Chausch v. Bulgaria (2000)34 that concerned a completely different situation: State recognition of one of two rival religious groups. It was no longer the religious freedom of the individual that was at stake, but that of the entire community. Since then the Court devoted more and more attention to collective religious freedom, as shown by the cases Metropolitan Church of Bessarabia v. Moldova, Supreme Holy Council of the Muslim Community v. Bulgaria, The Moscow Branch of the Salvation Army v. Russia, Gldani Members of Congregation of Jehovah Witnesses v. Georgia, Svyato-Mykhaylivska Parafiya v. Ukraine, Religiongemeinschaft der Zeugen Jehovas v. Austria, Kimlya and others v. Russia, Mirolubovs and others v. Latvia, and Holy Synod of the Bulgarian Orthodox Church v. Bulgaria.35 32   A comparison with the declarations of violation of Article 10 (30 declarations in the period 1959–2008; 362 declarations during the period 1999–2009) and 11 (7 declarations during the period 1959–2008 and 91during the period 1999–2009) shows a similar pattern. 33   Kokkinakis v. Greece, 25 May 1993, No. 14307/88; Valsamis v. Greece, 18 December 1996, No. 21787/93; Efstratious v. Greece, 27 November 1996, No. 24095/94, and Buscarini and Others v. San Marino, 18 February 1999, No. 24645/94. 34   Hasan and Chausch v. Bulgaria, supra note 29. 35   Metropolitan Church of Bessarabia and Others v. Moldova, 13 December 2001, No. 45701/99; Supreme Holy Council of the Muslim Community v. Bulgaria, 16 December 2004, No 39023/97; The Moscow Branch of the Salvation Army v. Russia, 5 October 2006, No 72881/01; Gldani Members of Congregation of Jehovah Witnesses v. Georgia, 3 May 2007, App. No 71156/01; Svyato-Mykhaylivska Parafiya v. Ukraine, 14 June 2007, No. 77703/01; Religiongemeinschaft der Zeugen Jehovas v. Austria, 31 July 2008, No 40825/98; Kimlya and others v. Russia, 1 October 2009; No. 76836/01; Mirolubovs and others v. Latvia, 15 September 2009, No. 798/05; and Holy Synod of the Bulgarian Orthodox Church v. Bulgaria, 16 September 2010, No. 35677/04.

The Strasbourg Court and Article 9 of the European Convention  27 Obviously, there are also decisions that declare the violation of individual religious freedom (see for example, the cases Kuznetsov v. Ukraine, Igor Dmitrijevs v. Latvia, Ivanova v. Bulgaria, Perry v. Latvia, and Alexandridis v. Greece)36 but the wider scope of the Court’s attention is clear.37 This change is, at least in part, a consequence of a broader transforma­ tion, highlighted by Sadurski.38 But, in relation to Article 9, it had a particularly important impact because it led the Court to move from the field of reli­ gious  freedom to the relations between States and religions. This passage is analyzed by Tulkens, who identifies two general principles that guide the Court’s decisions in this new area: the prohibition of arbitrary State interference in the internal organization of religious communities and the State obligation to maintain an attitude of neutrality and impartiality towards all religions.39 Applying these principles, the Court is led to criticize some national laws concerning, for example, the registration and recognition of religious communities; this obviously created tensions with the States that were the subject of the Court convictions. In fact it was no longer a matter of an occasional decision of a national court that was found inconsistent with the rules of the ECHR. More and more frequently national laws were deemed to be incompatible with the Convention and, moreover, in the opinion of the Court those laws had to be amended.40 The road to a clash between the Court and the Member States that were under its jurisdiction was then opened

36   Kuznetsov v. Ukraine, 29 April 2003, No. 39042/97; Igor Dmitrijevs v. Latvia, 30 November 2006, No. 61638/00; Ivanova v. Bulgaria, 12 April 2007, No. 52435/99; Perry v. Latvia, 8 November 2007, No. 30273/03; Alexandridis v. Greece, 21 February 2008, No. 19516/06. 37   The declarations of non-violation and non-admissibility confirm this change and indicate the increasing importance of the issue of religious symbols: 15 decisions concern the prohibition of wearing the Islamic headscarf or the Sikh turban at school (or the need to remove it in other places). These decisions, which are concentrated in the years 2001–2009 and amount almost to half of all of the declarations of non-violation or non-admissibility, all concern (with one exception: the case Dahlab v. Switzerland, 15 February 2001, No. 42393/98) France and Turkey, which are the countries where the principle of laïcité of the public institutions is applied rigorously. 38   According to Sadurski, supra note 4, p. 412, after the entry of the ‘new’ countries in the Council of Europe the Court had to deal with serious violations of human rights determined not by bad decisions of the national courts but by structural defects inherent in the legal systems of these countries; the Court then began to assess the conformity of national laws to the rules of the ECHR, assuming the role of a semi-constitutional body. 39  Françoise Tulkens, ‘The European Convention on Human Rights and Church-State Relations: Pluralism vs Pluralism’, 30:6 Cardozo Law Review (2009), pp. 2580–2586. Ringelheim, supra note 24, identifies a third guiding principle of the Court decisions, the laïcité “of the foundations of the law”. 40  This is, again, a particular aspect of a more general phenomenon: on the distrust with which the ‘pilot judgements’ (and what they imply in terms of adjustment of national legislation to the Court’s decisions) have been accepted by many States, see Sadurski, supra note 4, p. 431.

28  Silvio Ferrari and it ultimately led to a particular strong collision in the case of Lautsi v. Italy.41 V.  The Political Significance of the Lautsi Case The facts are well known. On 3 November 2009, the Strasbourg Court held that the obligation to display the crucifix in the classrooms of the Italian State schools violated “the right of parents to educate their children according to their beliefs and the right of school children to believe or not to believe” guaranteed by Article 2 of the Additional Protocol No. 1 to the European Convention.42 On 28 January 2010 the Italian government requested the case to be referred to the Grand Chamber of the European Court;43 and on 18 March 2010 the Grand Chamber ruled in favour of Italy, declaring that the display of the crucifix “is, in principle, a matter falling within the margin of appreciation of the respondent State” and “is not in itself sufficient … 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.”44 The Grand Chamber decision applies to the display of crucifixes in the Italian schools the same yardstick adopted for the ban of ostentatious religious symbols in the French schools. In both cases, the Court concludes that the

41   The Court’s decisions that reject the appeal as inadmissible or because there had been no violation of Article 9 shed light on a different profile of the ECtHR case law, highlighted by Carolyn Evans. A significant number of them concern the prohibition of wearing religious symbols at school and the need to remove them in other places. The Court considers that these prohibitions do not violate Article 9 and maintains this opinion without hesitation. Evans, comparing these sentences with those concerning the registration of religious communities, notes that the Court is much more prepared to fully guarantee the right of religious organizations to obtain legal personality than the right of individuals to wear religious symbols in the public space. Evans offers more than one explanation for this discrepancy: the absence of “a sufficiently coherent and principled approach” to Article 9; the adoption of a “double standard” that disadvantages the ‘new’ countries (with the exception of Austria, the only ones to be involved in the ‘registration cases’) in comparison with the countries that had been members of the Council Europe for a longer time (such as the countries involved in the ‘Islamic headscarf cases’); the “uneasiness in the European Court around the potential of religious freedom to encourage disorder if given too long a leash” (while the religious communities that demand to be registered express a desire of homologation, asking to be included in the system, individuals who want to wear the Islamic veil at school show the–potentially ‘disruptive’–will to be different). Carolyn Evans, ‘Individual and Group Religious Freedom in the European Court of Human Rights: Cracks in the Intellectual Architecture’, Journal of Law and Religion (2010), pp. 101–123 (the quotations are at pp. 101, 116, and 117). 42   Lautsi v. Italy, 3 November 2009, No. 30814/06 [Second Section decision], para. 57. 43   See ‘Mémoire du Gouvernement Italien pour l’Audience devant la Grande Chambre de la Cour Européenne des Droits de l’Homme (Lautsi c. Italie)’, available at (accessed 30 August 2011). 44  See Lautsi and Others v. Italy, 18 March 2011 [Grand Chamber], No. 30814/06, paras. 70 and 71.

The Strasbourg Court and Article 9 of the European Convention  29 national laws fall within the margin of appreciation granted to each State and therefore do not infringe the European Convention: France’s secular tradition justifies the prohibition of religious symbols, while the Italian Catholic tradition justifies the obligation to display the crucifix. But the Court fails to consider that a religious symbol worn by a student does not have the same political and legal importance than a religious symbol displayed by law in all the schools of a State. Therefore the second Lautsi decision is not better than the first: the Chamber decision overlooked the value of national traditions, while the Grand Chamber decision ignored the transformations that are taking place in the religious demography of almost all European countries, the growth of religious plurality and the increasing number of people who do not identify with any religion. On both occasions the European Court missed the opportunity to find a middle way between secularism and confessionism, neglecting to recognize the role that individuals involved in the same school environment (students, teachers, families, or support staff) can play. Giving voice to these people would reflect the diversity of local situations and, above all, would make them responsible for the display of the crucifix in their school. Whatever the final decision is, it would be the result of a debate and a choice, not of an authoritarian imposition.45 The real importance of the Lautsi decision, however, is not legal but political. To understand the drastic change of opinion of the European Court we need to focus on what happened between the two rulings. Immediately after the first decision the Italian government, with the active participation of the Holy See, started a political campaign to gather the support of the Member States of the Council of Europe. This initiative had a surprising outcome: 10 States (Lithuania, Malta, Monaco, San Marino, Bulgaria, Cyprus, Greece, Romania, Russia, and Armenia) filed an amicus curiae brief asking the European Court to reverse the first decision; and 10 more States (Albania, Austria, Croatia, Hungary, Macedonia, Moldavia, Poland, Serbia, Slovakia and Ukraine) publicly expressed their solidarity to Italy.46 Such a strong political support could not be ignored by the Strasbourg Court and probably carried some weight on the decision of the Grand Chamber. These events have a significance that goes beyond the Lautsi case. First, the composition of the group of countries supporting the Italian position deserves to be underlined: with the exception of Albania, it is comprised of Catholic 45   Certainly, defining the forms in which such a debate should be regulated is not the task of the European Court: but a discreet suggestion to move in this direction–in line with what had already been established by some national courts (as indicated at para. 28 of the Grand Chamber decision, ibid.)–would have been helpful in identifying a third way between the equally unsatisfactorily options of the crucifix imposed by law or the ‘blank wall’ of the class-room. 46   See ‘Why 20 Nations Are Defending the Crucifix’, Zenit, 21 July 2010, available at (accessed 30 August 2011).

30  Silvio Ferrari and Orthodox States only and no Protestant or mixed country is part of it. This clear-cut division signals that a realignment of the European Christian churches is on its way, with the Catholic and Orthodox churches on one side and the Protestant churches on the other. The members of first group, outnumbering those of the latter, seem to be willing to question the activity of the European Court of Human Rights as well as of the Council of Europe, the Organization for Security and Cooperation in Europe, and the European Union: these organizations are seen as the main supporters of a conception of freedom of religion and of a system of Church-State relations that marginalize religion from the public space. A part of the European States looks favourably to this development and hopes to exploit it to limit the activity of these supranational organizations, which are blamed for violating the boundaries of national sovereignty and assuming duties and responsibilities which are reserved to the States.47 This chain of events had to be expected since the European Court started performing the role of ‘standard setter’ in the field of human rights, abandoning the task (that had become impossible after the eastward enlargement of the Council of Europe) to interpret these rights in accordance with the ‘existing national standards’.48 This assertion of independence of the Court from the Member States of the Council of Europe in fact entails the possibility of a conflict with the States (and the Churches) which do not share the standards adopted by the Court: that the most vigorous opposition has come from Orthodox and Catholic countries is not surprising, as these are the countries which have shown greater unease in reforming their legal systems along the lines of the indications coming from Strasbourg. Finally it should be noted that the significance of the Lautsi case exceeds by far the borders of Article 9 of the ECHR. This case is in fact just one episode of a much broader conflict that revolves around the identification of who has the final say in defining the content of human rights: the politicians (or more generally democratically elected national parliaments), or the judges who derive their legitimacy not from the will of people but from the law; the national States, best positioned to appreciate the history and tradition of a country, or 47   In this context one may note the reference to the principle of subsidiarity contained in the Interlaken Declaration adopted on 19 February 2010 by the High Level Conference on the Future of the European Court of Human Rights, composed of ministers from the countries belonging to the Council of Europe (available at , accessed 30 August 2011). See also the statements of the Italian Foreign Minister published in L’Osservatore Romano of 26 May 2010. 48  Sadurski, supra note 4, p. 450, underlines that the enlargement of the Council of Europe to the Central and Eastern European countries made it impossible to maintain, in the field of fundamental rights, the pre-existing standards that were shared by all members of the Council. Unable to work as the interpreter of these (no more existing) common standards, the Strasbourg Court took the initiative to fix them independently, thus becoming a sort of European Constitutional Court with jurisdiction (de facto if not de jure ) as to all national legal systems.

The Strasbourg Court and Article 9 of the European Convention  31 the supranational organizations, laboriously striving to find a meeting point between different histories and traditions.49 In recent years a desire for direct democracy has grown in many parts of Europe and with it the inclination to skip the mediation of law and solve the problems through a direct appeal to the will of the people (an example is the referendum which banned the building of minarets in Switzerland). Finding a satisfactory balance that avoids both the dictatorship of the majority and a fundamentalist conception of human rights, is the condition upon which an effective protection of religious freedom is dependent. VI. Conclusions A few conclusions emerge from the quantitative analysis of the ECtHR cases concerning Article 9. First, the large number of cases related to Orthodox States and, in particular, the high number of convictions that regards these countries requires to be carefully considered: 79% of the cases related to Orthodox countries ends with a declaration of violation of Article 9, a figure that does not compare to the countries where a different religious tradition is prevailing. This imbalance of the ECtHR case law has different explanations. The first and most obvious is that the protection of religious freedom in Orthodox countries does not meet the standards laid down in Article 9 of the ECHR: this inadequacy could explain both the high number of applications to the Strasbourg Court and the high number of convictions. An interpretation of this type is supported by the recent history of these countries: with two exceptions (Greece and Cyprus), they lived for at least forty years (and in some cases much longer) under a regime that had prevented the Orthodox churches from developing an adequate theological reflection on the relationship between religion and human rights and, in particular, the right to religious freedom. In this way a temporal discrepancy in the theological development of different Christian churches took shape and this gap emerged in all its seriousness after the fall of the Berlin Wall, when the Orthodox churches adapted with great difficulty to legal systems that had suddenly converted to freedom of religion. But, although correct, this interpretation is not sufficient to explain why the Orthodox country most affected by the convictions of the European Court is Greece, that is a nation that has always been part of the Western cultural and political world: such a finding suggests that the first explanation should be 49  This point is discussed by Susanna Mancini, ‘The Crucifix Rage: Supranational Constitutionalism Bumps against the Counter-Majoritarian Difficulty’, 6 European Constitutional Law Review (2010), pp. 6–27.

32  Silvio Ferrari integrated with a second, centred on the peculiarities of the Orthodox model of relations between Church and State. The concept of symphony between the two institutions, which is at the heart of the Orthodox theological and legal tradition, and the principle of canonical territory, which hinders the missionary activities of other Christian churches, converge to limit the rights granted to minority religious communities.50 In the legal system of many Orthodox States this is reflected in the difficulties these minority communities experience in obtaining State registration. It is no coincidence that most of the declarations of violation of Article 9 are related to this very problem. The second element emerging from the analysis of the Strasbourg case law is the shortage of cases and the lack of convictions regarding the five countries with a Protestant majority: only 4 cases, all of which were concluded with a declaration of inadmissibility or non-infringement of Article 9. This finding is particularly significant because all five Protestant countries until recently had a Church-State system that could potentially create problems in terms of religious freedom. Of course the European Court acts only on the basis of the applications which it receives and the small number of cases leads to believe that the domestic judicial systems of these countries offer guarantees to interpret potentially discriminatory provisions in a manner that adequately protects the individual and collective rights of their citizens, including the members of minority communities. However such low figures are difficult to justify and other explanations are required. One of them could be the substantial similarity of the notion of religion adopted by the European Court and that prevailing in these countries: in both cases the emphasis is placed on the ‘primacy of the internal dimension of religion’, to the detriment of the importance attached to its external manifestations.51 This way of understanding the nature of religion suits the Protestant tradition better than the theological approach of the Christian Orthodox communities. This finding confirms and completes the conclusions reached in some recent studies devoted to the European Court’s jurisprudence in the cases involving Muslim individuals or communities. Danchin has convincingly shown that “the Court has constructed narratives of secularism, freedom and equality 50   On the conception of Church-State relations prevailing in the Orthodox countries, see the contributions collected in 43 L’Année Canonique, 2001. More in particular on the principle of canonical territory, see the contributions by Bishop Hilarion of Vienna and Austria published in 84 Europaica Bullettin, 23 January 2006 and 87 Europaica Bullettin, 17 February 2006, available at (accessed 30 August 2011). 51   The Court’s tendency to favour “the cerebral, the internal and the theological over the active, the symbolic and the moral dimensions of religion and belief ” and the difficulties that this tendency creates to religious groups convinced that their survival is linked to the capacity “to retain a distinctive lifestyle” is underlined by Carolyn Evans, ‘Religious Freedom in European Human Rights Law: The Search for a Guiding Conception’, in M. W. Janis and C. Evans (eds.), Religion and International Law (The Hague: Martinus Nijhoff, 1999), p. 396.

The Strasbourg Court and Article 9 of the European Convention  33 which, by subsuming or tacitly incorporating Christian or post-Christian norms into the meaning and scope of Article 9, has placed in jeopardy and marginalized the religious freedom claims of Muslim (and other religious) communities”.52 This assessment is correct but—on the basis of the results of this research—should be extended to some Christian denominations (and to the countries where they are the majority religion): the examination of the ECtHR case law shows that the countries where the Orthodox religion is dominant (and has an influence on the Church-State system) have been considered by the Court more sternly than the countries where a different religion (and in particular the Protestant religion) has a majority position. Therefore it would be wrong to read the whole jurisprudence of the Court in the light of its alleged anti-Muslim bias (although it is possible that the fear of Islamic fundamentalism that has spread throughout Europe has played a role): it is more exact to conclude that the Court has some problems in understanding the conceptions of religion which stress the elements of identity and practice over those of a freely chosen belief, independently from the fact that these conceptions are upheld by Muslim or Christian communities (or even by majority or minority communities in a given country). The last indication offered by the analysis of the European Court’s case law regards its conception of neutrality of the public space. As shown in Table V,53 the highest number of decisions declaring a non-violation of Article 9 or the inadmissibility of the application concerns France and Turkey, that is the two countries of the Council of Europe which have constitutionally codified the principle of State secularism. Many of these decisions concern the prohibition of wearing religious symbols at school: the Court, stating that such a ban does not violate Article 9 ECHR, seems to convey the message that the absence of religious symbols in public institutions is the best way to ensure the religious freedom of citizens and the neutrality of public institutions. The same logic inspires other decisions, such as those which have declared unlawful any reference to religion on identity cards.54 This orientation of the European Court emerged again on the occasion of the two Lautsi judgements. The Court first held that the neutrality of public space could only be guaranteed through the exclusion from it of all religious symbols and manifestations; but then—confronted with the reaction of some 52   Peter G. Danchin, ‘Islam and the Secular Nomos of the European Court of Human Rights’, in 32:4 Michigan Journal of International Law (2011), pp. 663–747. Danchin’s conclusion is not contradicted by the data of this research that indicate, with reference to Muslim countries, a high number of decisions of the European Court declaring the inexistence of a violation of Article 9 ECHR or the inadmissibility of the application: as already noted (supra note 10), these decisions concern only one country–Turkey–which has a peculiar position within the Muslim world. 53   See text accompanying note 13, supra. 54   See the case of Sinan Isik v. Turkey, 2 February 2010, No. 21924/05.

34  Silvio Ferrari States and religious communities—gave up the idea of neutrality of the public space. In both cases, the Court refrained from considering the possibility of ‘inclusive neutrality’, where freedom of religion is ensured through the public presence of symbols and manifestations of different religions and conceptions of life. A reconsideration of the notion of ‘public space’ adopted by the European Court seems to be the best chance to break the deadlock in which, as indicated by the Lautsi case, the Court is stuck.

THE ROLE OF JUDGES IN DETERMINING THE MEANING OF RELIGIOUS SYMBOLS Brett G. Scharffs* I. Introduction Courts around the world often find themselves grappling with the question of how to interpret the meaning of religious symbols. The Italian classroom crucifix case, Lautsi v. Italy, where the Grand Chamber of the European Court of Human Rights allowed the Italian government to require the display of crucifixes in public school classrooms, reversing an earlier Chamber judgement of the European Court, is but one recent example.1 In the United States, courts have often been asked to determine whether the display of crosses or other

*  Thanks to Carolyn Evans and the University of Melbourne Law School for the invitation to present an earlier version of this paper at a conference on law and religion in July 2011, and to the J. Reuben Clark Law Society for the invitation to participate in its webinar lecture series. I particularly appreciate and acknowledge the excellent research assistance of Mark Woodbury, BYU Law School class of 2012. 1   Lautsi and Others v. Italy, 18 March 2011 [Grand Chamber], No. 30814/06. The Lautsi case is illustrative of the range of views on the subject. The national courts of Italy all upheld the law, reasoning that the cross, though associated with Christianity, also stood for universal, secular values such as tolerance, respect, freedom, and sacrifice (see Lautsi and Others v. Italy, ibid., at para. 16). The initial chamber judgement of the ECtHR disagreed, arguing that although the cross had a plurality of meanings, the association with Christianity was predominant and outweighed other meanings (Lautsi v. Italy, 3 November 2009, No. 30814/06 [Second Section decision]). The Chamber concluded that Italy’s requirement that crucifixes be displayed in state school classrooms violated the European Convention on Human Rights (ECHR). The provisions in question of the Convention are Article 2, Protocol 1, which provides: “No person shall be denied the right to education. 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.” Also at issue was Article 9, guaranteeing freedom of thought, conscience, and religion. The Chamber judgement was appealed by the government of Italy to the Grand Chamber, which overruled the Chamber Judgement and held that there was no violation of the European Convention. The Grand Chamber noted that member states are given wide latitude and discretion (called the ‘margin of appreciation’), and that the crucifix was plausibly connected to secular as well as religious ideals. The Court therefore declined to intervene (Grand Chamber decision, para. 68). A concurrence by Judges Rozakis and Vajić argues further that even if the crucifix was a symbol only of Christianity, it was merely a passive symbol, and did not reach the level of ‘indoctrination’, which would have interfered with a parent’s right to educate their children (Concurring Opinion of Judge Rozakis joined by Judge Vajić to the Lautsi and Others v. Italy Grand Chamber decision).

36  Brett G. Scharffs religious symbols violate the First Amendment’s prohibition of an establishment of religion.2 Legal controversies regarding the meaning of symbols are not limited to Christian symbols. Before the European Court of Human Rights (ECtHR) there have been some very controversial cases involving headscarves and other head coverings worn by Islamic women.3 For the most part, the ECtHR has upheld national laws that limit the right of Muslim women to wear head coverings.4 Regulations prohibiting the wearing of all head coverings in universities and schools by both teachers and students have been upheld, generally on the grounds that the limitation is necessary to promote order or in the furtherance of respect for the rights of others.5 Very recently, France has passed a broader prohibition against wearing the burqa (or full body covering) in all public places.6 This has been done in the interests of secularism and equality, the idea apparently being that in banning wearing the covering, the government is

2   For example, in Trunk v. City of San Diego, 629 F.3d 1099, the 9th Circuit Court of appeals held that the Mount Soledad Cross, overlooking San Diego, which was erected as a war memorial in 1954, violated the Establishment Clause. The petition for rehearing en banc was denied (Trunk v. City of San Diego, 660 F.3d 1091) and this case will likely be appealed to the Supreme Court, which can choose whether or not to consider the case. In a case from my home state of Utah, the Tenth Circuit held that roadside memorial crosses erected by the Highway Patrol to honour officers killed in the line of duty, violated the Establishment Clause: American Atheists, Inc. v. Duncan, 637 F.3d 1095. In a move that came as a surprise to many, the US Supreme Court denied the petition of certiorari to review the case (Utah Highway Patrol Association v. American Atheists, Inc., 132 S. Ct. 12). Many observers expected the Supreme Court to take the case, especially in light of dicta from Justice Anthony Kennedy in a recent case involving a cross on public land in the Mojave desert. Kennedy noted, “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs” (Salazar v. Buono, 130 S. Ct. 1803, 1818). Another case making headlines in the fall of 2011 involved a statue of Jesus located on national forest land above a ski resort in Montana. See Dan Frosch, Legal Battle Ignites Over Jesus Statue in Montana, New York Times, available at (retrieved 29 January 2012). Evidently, there was a group of World War II soldiers who noticed a statue of Jesus in the hills where they served in Europe and thought it would be nice to erect a similar monument when they came home. It was erected by the veterans and has been standing at the same site for some forty years, and is currently the subject of a heated debate over whether the statute violates the Establishment Clause. 3   See, e.g., Leyla Sahin v. Turkey, 10 November 2005, European Court of Human Rights, No. 44774/98 [GC]. 4  In Dogru v. France, 4 December 2008, No. 27058/05, the European Court of Human Rights upheld the expulsion of a girl from a public school for failing to remove her headscarf. In Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, No. 42393/98 (dec.), the court declared inadmissible an application from a woman who had been forced to leave her job as a public school teacher because she would not remove the headscarf. However, in Kavakçı v. Turkey, 5 April 2007, No. 71907/01, (in French only), the court upheld the right of a Muslim member of parliament to wear her hijab to the parliamentary session. 5  In Leyla Sahin v. Turkey, supra note 3, the Grand Chamber expressed fears that the hijab was being used as an instrument of coercion, and that its proliferation in public places could disrupt public order. 6   ‘French senate approves burqa ban’, CNN, 15 September 2010 (retrieved 26 January 2012).

The Role of Judges in Determining the Meaning of Religious Symbols  37 vindicating the rights of Muslim girls and women, preventing overly zealous husbands and fathers from coercing the use of the covering.7 My goal in this paper is to discuss religious symbols, and what happens when courts involve themselves in interpreting the meaning of religious symbols. More particularly, I wish to address the pressures and perils that secular courts face when they attempt to give authoritative meaning to religious symbols. In developing this discussion, I will focus on two primary themes. The first is the complexity of interpreting symbols and the role of ‘interpretive communities’ in creating and determining the meaning of symbols. The second is the role of courts in destroying and limiting religious symbols. I will argue that in general courts should resist the temptation to declare authoritatively and decisively what religious symbols mean. This is often not only an unnecessarily destructive act of judicial violence; it is also contrary to the very nature of what symbols are and how they should be interpreted. II.  The Variety, Complexity and Multiplicity of Religious Symbols and their Meanings As a starting point, it is worth pausing to note the enormous variety of religious symbols, their complexity, and their multiplicity of meanings. The brief discussion that follows is, of course, incomplete. The most glaring omission will be the absence of traditional African tribal religions, as well as the paucity of material on Oriental religions. However, even a cursory overview reveals the richness and subtlety of religious symbols. Perhaps the most familiar religious symbols to us in the West are those of Christianity, with the dominant symbol being the cross, representing Christ’s crucifixion. But even so familiar a symbol as the cross is remarkable in its variety of representations. Some styles of the cross are associated almost exclusively with a particular branch or denomination of Christianity, defined by its beliefs, race, history, or geography. The Latin cross, for example, is used by Roman Catholicism and its offshoot Protestantism, while the Celtic cross is associated with certain regions of the British Isles.8 Some Christian denominations, such as the Church of Jesus Christ of Latter-day Saints, do not utilize the cross as part of their worship and iconography.9

7   William Langley, ‘France’s Burqa Ban is a Victory for Tolerance’, The Telegraph, 11 April 2011 (retrieved 26 January 2012). 8   Derek Bryce, Symbolism of the Celtic Cross (Felinfach, Wales: Llanerch Enterprises, 1989). 9   “I do not wish to give offense to any of my Christian brethren who use the cross on the steeples of their cathedrals and at the altars of their chapels, who wear it on their vestments, and imprint it on their books and other literature. But for us, the cross is the symbol of the dying Christ, while our message is a declaration of the living Christ … the lives of our people must

38  Brett G. Scharffs Islam also depends heavily on symbols. Given the Islamic injunction against pictographical representations of God or the prophet, symbols have a particularly important place in Islamic iconography.10 The familiar star and crescent first appeared as a symbol of various political empires of Southwest Asia.11 It later came to be associated with the religion of Islam.12 After Christianity and Islam, the third largest group of ‘believers’ is actually composed of humanists, secularists, agnostics, atheists and the unconcerned.13 Identifying an iconography for the ‘unreligious’ presents a unique challenge, but this large demographic continues to grow in influence, and it would be a mistake for any discussion of religious freedom to overlook that segment of society that chooses to distance itself from religion. One proposed symbol for this group, used by some humanist groups, is a stylized, jumping person.14 The symbols of Hinduism may be less familiar to the Western eye, but they have a rich history, with powerful meanings in a very large portion of the world’s population. One of the well known Hindu symbols, the Aum (or Om; ), is the sound used in meditation.15 It is the first syllable of any Hindu prayer. It represents the universe and ultimate reality, as well as the three aspects of God, Brahma, Vishnu, and Shiva.16 The swastika, though more familiar to us as a symbol of Nazism, is an ancient symbol of luck, fortune, or auspiciousness. It is also used to stand for honesty, truth, and stability.17 Westerners may also be rather unfamiliar with the symbols of Buddhism. They are too numerous and varied to discuss here, but they are rich and varied in their meanings and uses.18 become the only meaningful expression of our faith and, in fact, therefore, the symbol of our worship.” Gordon B. Hinckley, “The Symbol of Christ,” Ensign, May 1975. The Jehovah’s Witnesses also eschew the use of the cross as a symbol, claiming that the Latin cross was not the actual instrument of Christ’s death, and further arguing that the use of any such symbol constitutes idolatry, forbidden by the Bible (see , retrieved 24 January 2012). 10   John L. Esposito, The Future of Islam (Oxford: Oxford University Press, 2010), p. 42. 11   Michael G. Morony, Iraq After the Muslim Conquest (Gorgias Press LLC, 2005), pp. 39–40. 12  See, for example, ‘The History of the Emblems’, available at (retrieved 27 January 2012). 13   See (retrieved 29 January 2012). 14   For example, see . 15   For examples, see . 16   Jeffrey D. Long, Historical Dictionary of Hinduism (Scarecrow Press 2010), p. 219. Brahma, Vishnu, and Shiva are the three most important deities in the Hindu pantheon. Brahma is the god of creation, Vishnu is the preserver, and Shiva is the destroyer. 17   Karel Werner, A Popular Dictionary of Hinduism (Richmond, Surrey: Curzon Press, 1994), pp. 147–148. 18  Significant Buddhist symbols include the Lotus Flower (Padma – symbol of purity); Dharmachakra (the wheel of the law, with eight spokes representing the eightfold path of enlightenment); Stupa (a symbolic grave monument, looking a little like a crown, where relics of a holy monk are found; also symbolizes the universe); Triratana (the three jewels, representing

The Role of Judges in Determining the Meaning of Religious Symbols  39 Sikhism is well known for the ‘Five K’s’. The kirpan, or ceremonial knife, has been the subject of litigation.19 It is a dagger that is to be worn at all times, symbolizing readiness to defend the weak from injustice and persecution.20 The kara, an iron bracelet, is always worn and binds the wearer to God. It reminds the wearer to do the right, and symbolizes strength and integrity.21 The familiar turban is worn to cover the kesh, or uncut hair. The kesh symbolizes holiness and the perfection of God’s creation.22 The kanga is a comb, to be carried at all times after baptism, and symbolizes cleanliness and discipline. It is used to maintain the kesh in tidy condition.23 The kachera are boxer-like undergarments worn to symbolize chastity, sexual restraint, and the prohibition on adultery.24 The Khanda is something like a coat-of-arms for Sikhism. It includes a double edged sword in the centre representing power, and two single edges swords on the outside representing political and spiritual balance. All this is superimposed over a circle, representing the importance of constraints.25 The symbols of Judaism are quite familiar to Americans and Europeans. The menorah is a seven pronged candelabra, to which many meanings have been ascribed.26 When at prayer, many Jews employ a tefillin, sometimes called a phylactery. It is a small box that is tied to the forehead. The box contains passages of scripture. Its placement, between the eyes, is meant to keep the wearer focused on God. It is worn in conjunction with another, similar box tied to the upper arm, and a strap wound around the forearm, with a third box tied to the

the Buddha, the Dharma, and the Sangha); Chattra (a parasol, representing protection against all evil; also representing high rank); Dhvaja (a banner, representing the victory of the Buddha’s teachings); the deer (symbolizing the first sermon of the Buddha, which was held at the deer park of Benares); and Naga (a snake, a vestige of pre-Buddhist fertility rituals, and protector of the Buddha and the Dharma). See ; and (retrieved 29 January 2012). 19  E.g., Multani v. Commission Scolaire Marguerite-Bourgeoys, 1 S.C.R. 256, 2006 SCC 6. In that case, a school board had prohibited a young Sikh from bringing his kirpan to school with him, citing safety concerns and weapons bans at the school. The Court found that the prohibition violated the boy’s right to freedom of religion, and struck down the ban. 20  W. Owen Cole, Understanding Sikhism (Edinburgh: Dunedin Academic Press, 2004), p. 122. For an additional perspective, see Nikky-Guninder Kaur Singh, The Birth of the Khalsa, (New York: State University of New York Press, 2005). 21  Idem. 22   Ibid., p. 121. 23  Idem. 24   Ibid., p. 122. 25   J.P. Sing Uberoi, The Five Symbols of Sikhism, published in Sikhism, ed. L.M. Joshi (Fatiala: Punjabi University, 1969). 26   See ‘Candlestick’, available at (retrieved 29 January 2012); the menorah may represent the days of the week, or perhaps the planets.

40  Brett G. Scharffs palm of the hand, symbolically binding the wearer to God.27 The skull cap, or yarmulke, is worn to show respect for God.28 Another familiar, albeit more recent, symbol is the Star of David, which is often employed as a symbol of Zionism and appears on the flag of the State of Israel. There is some debate about the origin and meaning of this symbol. Some say that it is the shape of the shield that King David wore into battle. Alternatively, the two triangles, one pointing upward and the other downward, is said to symbolize our upward striving towards God and our downward rootedness in the world.29 Some may be familiar with the Shinto symbol of the torii gate, which marks the transition from profane to sacred as one enters a shrine. These gates often appear in a series, marking the ever increasing levels of holiness.30 Sufism, a branch of Islam, has a very powerful symbology, though likely unfamiliar to the Western eye. The primary symbol of Sufism is the star and crescent surrounded by a winged heart, all superimposed over an image of the sun. The heart represents the connection between soul and body, the meeting of spirit and matter. It holds a similar message to one found in the New Testament, namely that where one’s treasure is, there will his heart be also. The wings symbolize ascension. The sun and stars are divine light, while the moon or crescent represents responsiveness to that light.31 The Baha’i faith incorporates a complex iconography. For the Baha’i, the number nine is an important symbol, as is the ringstone.32 This ringstone is often worn as a token by members of the Baha’i faith. As the name suggests, it is usually (though not exclusively) worn on a ring. It consists of a single vertical line in the centre crossed by three horizontal strokes. The upper and lower strokes have circles on each end, while the centre stroke is unadorned. This cross is flanked on either side by a pentagram. Taken as a whole, the ringstone symbolizes the Baha’i faith, but each element has its own symbolism. The nine cornered star symbolizes fullness or completeness, nine being the largest single digit number, as Baha’i views itself as the fullness or completeness of religious truth. The upper cross represents the world of God, the lower bar represents the world of man, and the centre bar is the manifestation of God to 27   Harry A. Cohen, A Basic Jewish Encyclopedia (Hartford, Conn.: Hartmore House, 1965), p. 96. 28   ‘Rabbis Explain “Top to Top”’, in Wellsprings (Lubavitch Youth Organization; 2:12 AugustSeptember 1986). 29  Cohen, supra note 27, p. 134. 30   ‘Torii’, entry in Encyclopedia of Shinto (Kokugakuin University, 2005; available at , retrieved 14 January 2012). 31   Books, Papers, Music, and Photos of Hazrat Inayat Khan (Vol. IX and Vol. XIII), available at (retrieved 14 January 2012). 32  Helen Hornby (ed.), Lights of Guidance: A Bahá’í Reference File (New Delhi, India: Bahá’í Publishing Trust, 1983), published on-line at (retrieved 27 January 2012).

The Role of Judges in Determining the Meaning of Religious Symbols  41 humanity. The vertical line is the will of God, which runs through the whole of creation.33 Zoroastrianism, originating in Persia some six centuries before Christ, employs as its primary symbol the Faravahar.34 The Faravahar is composed of a man in profile standing on a disk with two wings and tail feathers. The winged disc is an ancient Near and Middle Eastern icon whose exact meaning is unclear, but may also represent the sun. Although originally a religious symbol, the Farahavar has also represented the Iranian state and people, being incorporated into the Imperial coat of arms prior to the revolution, and remaining a popular symbol among the Iranians today.35 III.  Capturing the ‘True Meaning’ of Symbols This cursory review cannot hope to capture the true meaning of the symbols mentioned here. But it is worth noting that our usual methods for understanding and interpreting texts, by far our most common and familiar interpretive activity, are unhelpful or at least incomplete in interpreting symbols. The search for a plain or literal meaning of a text is a common and well accepted practice in textual, and particularly legal, interpretation, but this approach is inadequate when applied to the interpretation of symbols. Symbols do not declare their meanings unambiguously. Nor can the quest for authorial intent (originalism) describe what we do when we interpret symbols. Purpose, context, and history are essential elements of textual interpretation, and similar inquiries about symbols can yield important insights into symbolic meaning, but even these important aspects are not at the heart of symbolic interpretation. Consider one particularly incendiary example, the burning of the American flag. It is a common sight on the evening news to see protestors burning an American flag. We most often interpret this as a sign of disrespect. This interpretation can be reinforced, and the perception of disrespect magnified, depending on who is burning the flag. We may understand the gesture differently coming from Palestinian protesters in the West Bank or from a large crowd on the Mall in Washington D.C. Compare that flag burning to the respectful retirement of a flag by American Legionnaires or the Boy Scouts. The United States flag code provides that, when a flag is no longer fit for display, it is to be destroyed of in a dignified manner, preferably by burning.36

 Idem.   Paula R. Hartz, Zoroastrianism (New York: Chelsea House, 2009), p. 11. 35   ‘Faravahar’, entry available at (retrieved 29 January 2012). 36   4 USCS § 8. 33 34

42  Brett G. Scharffs Or, consider the infamous swastika employed by the Nazi party in Germany, a symbol powerfully etched on the Western mind, evoking cruelty, aggression, tyranny, and pretences of racial superiority. One of the most fascinating aspects of the swastika is its antiquity and ubiquity. It is an important symbol across many continents, cultures, and countries, including the Indus valley civilizations and various Buddhist cultures.37 In the Eastern world, it evokes a myriad of meanings and associations, almost none of them negative.38 It has even been employed, prior to World War Two, in parts of the Western world.39 Ancient Greek helmets were adorned with the swastika,40 as were the basketball uniforms of an American Indian Agricultural school in the early 1900s.41 Pre-Christian religions of central Europe employed the swastika, and it was incorporated into the architecture of the Carlsberg elephant tower in Copenhagen.42 A.  C.S. Peirce’s Theory of Signs It is easy to see that symbols carry complex, esoteric, and varied meanings, but how do we construct or develop a system or method for interpreting these symbols? One helpful starting point is the philosopher Charles Sanders Peirce’s theory of signs. Pierce defines a sign as “something which stands to somebody for something in some respect or capacity….”43 This may strike us a definition that only a philosopher (or perhaps a lawyer) could love, because it seems to provide little practical guidance to someone seeking to understand a sign or symbol. But breaking down the elements of his definition can provide us with concrete insight. The first element is the sign or signifier. This may be a letter, word, or symbol. That sign is something; it is tangible and identifiable. We can directly experience the sign, whether through our eyes or our other senses. That sign stands for or represents something else. This something else Peirce calls the interpretant, or that which is represented. The something else is itself an object, a signified or referrant. And the meaning of this sign is always “to 37   Shukavak N. Dasa, A Hindu Primer: What is the Meaning of the Swastika?, available at (retrieved 27 January 2012). 38   Encyclopedia Brittanica (15th ed.), s.v. “Swastika.” 39  Idem. 40  See (retrieved 14 January 2012). Original on display at Cabinet des Medailles, Paris. 41   See (retrieved 29 January 2012). 42   See    (retrieved 14 January 2012). The swastika was originally part of the company’s trademark, changed in the 1930’s because of its association with Nazism. 43  C.S. Peirce, Collected Papers of Charles Sanders Peirce (edited by Charles Hartshome and Paul Weiss; Cambridge, Massachusetts: Belknap Press of Harvard University Press, 1960), at 2:228.

The Role of Judges in Determining the Meaning of Religious Symbols  43 someone.” The role of the interpreter or group of interpreters is essential to understanding the sign. Finally, the sign is always in some respect or capacity. That is to say, it can only be understood within a context, to some people, with some selectivity, some measure of abstraction, and by the incorporation of layers of meaning. 1.  The ‘Jesus Fish’ As an example, consider the so-called ‘Jesus Fish’, a very simple drawing of a fish, often placed on the back of cars in the United States. It is, first of all, a something—a tangible, identifiable thing, made of plastic or metal. It stands for or represents something other than itself, that something else being Jesus Christ. It is directed primarily at some audience that knows how properly to interpret the symbol. It is on one level a reference to or invocation of Christ’s invitation in Matthew to become “fishers of men.”44 But it incorporates additional meanings as well. The fish symbol is a pictorial representation of the Greek word Ichthys, which was itself used as an acronym for Iesous Christos, Theou Yios, Soter, meaning “Jesus Christ, God’s Son, Savior.” This was a secret symbol used by early Christians to help them identify one another without exposing themselves to their enemies.45 We also see variations on this Ichthys symbol. Some variations add feet to the fish and inscribe “Darwin” in the body. Others make reference to sushi, sharks, the food chain, fast food, the devil, or death.46 How are we to interpret these variations? These adaptations are themselves susceptible to multiple interpretations, ranging from humour to critique, to mocking derision, to blasphemy. 2. Jewellery Symbols also show up in jewellery, from rings to bracelets to necklaces. Rings often incorporate symbols that will have different meanings to different people. Masonic rings, for example, presumably have different meaning for initiated members than they do for uninformed observers, the curious, the critical, or enemies.47 The same could be said of graduation rings, or rings with religious symbols and inscriptions. The jewellery we wear may have multiple   Matthew 4:19 (“Follow me, and I will make you fishers of men.”) New Testament, King James Version. 45   Derek Bryce, Symbolism of the Celtic Cross, (Llanerch Enterprises, 1989), p. 31. 46  See, for example http://classes.design.ucla.edu/Winter07/24/projects/huang/a/fish%20 parodies.bmp. 47   Malcolm C. Duncan, Duncan’s Masonic Ritual and Monitor (Whitefish, MT: Kessinger Publishing, 2004), p. 36. The Masonic ring incorporates a square and compass design with meaning specific to Freemasons. 44

44  Brett G. Scharffs intended audiences, with a different meaning for each audience. The familiar WWJD (“What Would Jesus Do”) inscription may be a reminder to oneself of promises or commitments made; it may be an urging to others, or it may be a method of identification, of engendering trust, of boasting, or of proselytizing. One interesting phenomenon is symbols as signs for other symbols. Bumper stickers incorporate religious symbols as letters spelling out words calling for interreligious harmony and tolerance.48 B.  Stanley Fish and Interpretive Communities One particularly important aspect of interpreting the meaning of religious symbols is the idea of an interpretive community. This idea is present in Pierce’s theory of signs, and has been robustly articulated and defended by literary and legal scholar Stanley Fish. Professor Fish highlights the limitations of authorial intent and independent text as the final adjudicators of symbolic meaning. Symbols have social meanings that rest upon cultural assumptions and depend on context, and the interpretive communities that provide that context and culture are dynamic, overlapping, and inescapable.49 Before going further, it is worth pausing to acknowledge certain important limitations of Fish’s ideas. Fish in many places seems to assert that meaning is created entirely by the interpreter or the interpretive community.50 This is an oversimplification or exaggeration. Although authorial intent may not be the only way to understand a text or symbol, it cannot be simply cast aside.51 Interpretive communities may add layers of meaning and understanding to symbols, but this does not mean that the original intentions of the author or creator of the symbol disappear. As we begin to try to understand symbols,

48   Some popular bumper stickers in the United States use familiar religious symbols, each representing a letter of the alphabet, spelling out messages like “coexist,” “tolerance,” or “interact.” For example, see . 49   Stanley Fish, Is There a Text in THis Class? (Cambridge: Harvard University Press, 1980), p. 171. “Why should two or more readers ever agree…? The answer to all of these questions is to be found in the notion of interpretive communities. Interpretive communities are made up of those who share interpretive strategies not for reading (in the conventional sense) but for writing texts, for constituting their properties and assigning their intentions … This, then, is the explanation both for the stability of interpretation among different readers (they belong to the same community) and for the regularity with which a single reader will employ different interpretive strategies and thus make different texts (he belongs to different communities) … Interpretive communities grow larger and decline, and individuals move from one to another.” 50   Fish, ibid., p. 150: “Evidence brought to bear in the course of formalist analyses—that is, analyses generated by the assumption that meaning is embedded in the artefact—will always point in as many directions as there are interpreters; that is, not only will it prove something, it will prove anything.” 51   See, e.g., E.D. Hirsch Jr., The Aims of Interpretation (Chicago: Chicago University Press, 1976), p. 11.

The Role of Judges in Determining the Meaning of Religious Symbols  45 we look to those who created or first used the symbols.52 They provide the first layer of meaning to a symbol, a meaning that remains susceptible to retrieval even after the passage of time has altered, enriched, or deepened a symbol’s meaning. This process of time, interpretation, and reinterpretation by a community adds complexity and variety to a symbol that the author most likely could not have foreseen. IV.  Courts and the Interpretation of Religious Symbols With that as a background, consider the ways in which courts have interpreted religious symbols, and the mistakes that often have been made when engaged in this task. The illustrative cases here are a mix of both the recent and the older, but they mostly come from the United States and Europe. A.  The US Ten Commandments Cases The first case, familiar to most American law students, is the case of Stone v. Graham.53 This 1980 case involved the display in a public school of the Ten Commandments. The Supreme Court applied the Lemon test54 to determine whether the Establishment Clause had been violated, and, pursuant to that test, concluded that there was no secular purpose for displaying the Ten Commandments and ordered their removal.55 The controversy over displays of the Ten Commandments did not stop with that case. Recently, Alabama Supreme Court Justice Roy Moore refused a federal court’s order to remove a display of the Ten Commandments from an Alabama courthouse. Federal district court Judge Myron Thompson held that the display violated the Establishment Clause of the First Amendment, again using the Lemon test and focusing on both the purpose and effect of the display.56 Judge Thompson ruled 52  See, e.g., Robert Morgan with John Barton, Biblical Interpretation (Oxford: Oxford University Press, 1988), p. 182. 53   Stone v. Graham, 449 U.S. 39. 54   Lemon v. Kurtzman, 403 U.S. 602: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion” (internal quotes and citations omitted). 55   Stone v. Graham, supra note 53, at 41: “The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12–17; Deuteronomy 5: 16–21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. See Exodus 20: 1–11; Deuteronomy 5: 6–15.” 56   Glassroth v. Moore, 229 F. Supp. 2d 1290, at 1293.

46  Brett G. Scharffs that Justice Moore had done more than emphasize the Ten Commandments’ “historical and educational importance” or their importance as a model of good citizenship. Instead, Judge Thompson believed that Justice Moore had “installed a two-and-a-half ton monument in the most prominent place in a government building, managed with dollars from all state taxpayers, with the specific purpose of establishing a permanent recognition of the ‘sovereignty of [the Judeo-Christian] God’”.57 Justice Moore refused to obey the order of the United States District Court, and the Alabama Judicial Commission subsequently removed him from office for insubordination.58 He then ran twice for the governorship of Alabama (unsuccessfully both times), explored a presidential candidacy, and considered another run for the office of Chief Justice.59 Alabama is not the only state to attempt to display the Ten Commandments at a courthouse or on other state property. In 2005, the US Supreme Court decided two cases involving Ten Commandments displays. In a pair of 5-4 decisions, the Court upheld the display in one case, and struck it down in the other. In Van Orden v. Perry, the Supreme Court upheld a stone display on the grounds of the Texas State Capitol; whilst in McCreary v. ACLU, the court struck down a display of the commandments on a courthouse wall in Kentucky.60 The deciding swing vote in both cases was Justice Stephen Breyer. In his concurrence in the Van Orden case, he wrote: On the one hand, the Commandment’s text undeniably has a religious message… On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display.61

And so, in Justice Breyer’s analysis, the use, context, and history of the display are decisive. In the Van Orden case, he found that the display communicates “not simply a religious message, but a secular message as well.”62 He noted the circumstances of its placement, its 40 year history, and its physical setting.63   Ibid., at 1294.   The Court of the Judiciary of Alabama, Case No. 33: In the Matter of Roy S. Moore Chief Justice of the Supreme Court of Alabama. 59   Mark Murray, ‘The Rise and Fall of Judge Roy Moore’, MSNBC, 23 May 2006, available at (retrieved 28 January 2012). 60   McCreary County v. ACLU, 545 U.S. 844; Van Orden v. Perry, 545 U.S. 677. 61   Van Orden v. Perry, ibid., at 700. 62   ibid., at 701. 63   Idem: “The group that donated the monument, the Fraternal Order of Eagles, a private civic (and primarily secular) organization, while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments’ role in shaping civic morality as part of that organization’s efforts to combat juvenile delinquency … The physical setting of the monument, moreover, suggests little or nothing of the sacred. The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the ‘ideals’ of those who settled in Texas and of those who have lived there since that time. The setting does 57 58

The Role of Judges in Determining the Meaning of Religious Symbols  47 Justice Breyer concluded by focusing on the monument’s purpose, which he deemed to be primarily non-religious.64 On the one hand, Justice Breyer seems to have articulated a reasoned and nuanced judgement, accounting for the myriad underlying purposes and effects of various monuments. But there is something unsatisfying about his search for the ‘real’ or ‘true’ meaning of these displays. We cannot help but be left with a sense that the outcome of a case like this will depend primarily on who the deciding judge is, and his or her predilections and prejudices. Judges may style themselves as ‘objective’ or neutral, but, as our introductory review of symbols and their interpretation makes clear, we ought to be suspicious about these claims to objectivity. There is something incomplete and unsatisfying about Justice Breyer’s confidence that he (and he alone among his Supreme Court colleagues) has differentiated the ‘real’ meaning of these two displays, which after all are the same symbol. The US Supreme Court, of course, was on thin ice, sitting in a courtroom that had incorporated on both its exterior and interior walls depictions of Moses and the Ten Commandments.65 Other cases involving religious symbols can decline into the silly or absurd. The US crèche cases provide the most notorious example. In Lynch v. Donnelly, the US Supreme Court held that a crèche display did not violate the Establishment Clause even though other such displays had.66 The defining difference was the presence in this case of context. In this display, the city had included Santa Claus, his house, candy striped poles, reindeer, a Christmas tree, and carollers. In the Supreme Court’s view, these and other symbols contextualized the crèche into a symbol that was, overall, not primarily religious.67 Indeed, some of the aspects of the display had little or nothing to do with Christmas, such as a clown, and elephant, and a teddy bear.68

not readily lend itself to meditation or any other religious activity … As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to ‘engage in’ any ‘religious practic[e],’ to ‘compel’ any ‘religious practic[e],’ or to ‘work deterrence’ of any ‘religious belief.’” 64   Ibid., at 704: “where the Establishment Clause is at issue, we must distinguish between real threat and mere shadow. Here, we have only the shadow.” 65   The Supreme Court Building incorporates various sculptures of lawgivers, including secular figures, such as Napoleon, Solon, and Hammurabi, and religious lawgivers, including Moses and Mohammed. 66   Lynch v. Donnelly, 645 U.S. 668. For a counter-example, see County of Allegheny v. ACLU, 492 U.S. 573. 67   Ibid., at 680. 68   Ibid., at 671.

48  Brett G. Scharffs In Lynch, again applying the Lemon test and focusing on the context of the display, the Court concluded that there was insufficient evidence to support a finding of a “purposeful or surreptitious effort to express some kind of subtle government advocacy” of religion.69 In fact, it said that the display only happened to coincide with some religious meaning, and there was no evidence of excessive entanglement between religion and state.70 One cannot but help having the sense that the religious symbol was approved precisely because it was shorn of all religious meaning, that it was permissible so long as it was not really serious or sincere.71 B.  Robert Cover and the Jurisgenerative and Jurispathic Faces of the Law As we begin to explore how to understand religious symbols, the work of law professor Robert Cover is helpful, particularly his masterwork, Nomos and Narrative.72 Cover characterizes a “nomos” as a socially constructed ordering of experience. There are two ideas here that are important about the nomos. First is that it is normative. In other words, it is based on values of shoulds, oughts, and distinctions between good and bad. It is not merely descriptive. Next, it expresses itself in narratives or stories. According to Cover, there are two faces of the law—the jurisgenerative and the jurispathic. By “jurisgenesis”, he means the process of creating legal meaning. “We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void.”73 And so, one of the forces at work in the law is jurisgenesis, by which we create legal meaning. The other force he calls “jurispathic”.74 This is the power, wielded largely by judges, to decide among multiple meanings. Judges have litigants before them, each with a different idea about what a text or rule means, and the judges are often pushed to a choice. In creating a nomos, Cover says, there are two processes involved. On the one hand is the paideic or world-creating virtue, and on the other is the   Ibid., at 680.   Ibid., at 682. 71   G. Bradley, Church-State Relationships in America (New York: Greenwood Press, 1987), p. 145 (quoted in Richard S. Myers, ‘Establishment Clause and Nativity Scenes’, 77 Kentucky Law Journal (1988–1989), p. 95: “the crèche could be recognized as the Christian symbol that it is and not as some neutered, universal folk symbol.” See also Lynch, ibid., at 712 (J. Brennan, dissenting): “To suggest, as the Court does, that such a symbol is merely ‘traditional’ and therefore no different from Santa’s house or reindeer is not only offensive to those for whom the crèche has profound significance, but insulting to those who insist for religious or personal reasons that the story of Christ is in no sense a part of ‘history’ nor an unavoidable element of our national ‘heritage’.” 72   Robert Cover, ‘Nomos and Narrative’, 97 Harvard Law Review (1983), p. 4. 73  Idem. 74   Ibid., at 40. 69 70

The Role of Judges in Determining the Meaning of Religious Symbols  49 imperial or world-maintaining virtue.75 Both creation and preservation are important in creating nomos, including legal nomos. So we cannot simply say that we favour creation and disfavour preservation. One of the functions of courts, like the Supreme Court, is to decide among multiple possible meanings that are generated by interpretive communities. As Cover says, “[i]t is a problem of the multiplicity of meaning—the fact that never only one but always many worlds are created by the too fertile forces of jurisgenisis—that leads at once to the imperial virtues and the imperial mode of world maintenance. Maintaining the world is no small matter and requires no less energy than creating it.”76 Sometimes courts create worlds by starting or continuing a conversation with citizens or other branches of government about the meaning of a text. But when courts speak, they speak with an authority and a finality that chooses which meaning among several will be given official sanction and enjoy the coercive imprimatur of the state. Most often, when the courts speak, alternate meanings are destroyed.77 As Justice Jackson memorably described it, the Supreme Court is “not final because we are infallible, but we are infallible only because we are final.”78 Although we may resist the notion that the Supreme Court is ultimately final, Jackson’s point is nevertheless a very strong one. Jurispathic power is the power to kill legal meaning. As Cover says in Violence and the Word, “legal interpretation takes place on a field of pain and death.”79 When judges speak, individuals lose. They may lose their property, they may lose their liberty, or they may even lose their life. And so to speak of them as simple interpreters of text misses something significant about the institutional violence that they wield. As Cover explains: Judges are people of violence. Because of the violence the command, judges characteristically do not create law, but kill it. Theirs is the jurispathic office. Confronting the luxuriant growth of a hundred legal traditions, they assert that this one is law and destroy or try to destroy the rest.80

Nevertheless, Cover makes clear that maintaining the world is necessary. A community that is exclusively creative, one that is in the grip of competing jurisgenerative visions, will splinter and fall apart.81 The centre will not hold. One job of judges is to decide among competing conceptions, even if it means eliminating others.   Ibid., at 60.   Ibid., at 16. 77   Ibid., at 60. 78   Brown v. Allen, 334 U.S. 443. 79   Robert Cover, ‘Violence and the Word’, 95:8 Yale Law Journal (1986), p. 1601. 80   Cover, ‘Nomos and Narrative’, supra note 72, p. 54. 81   Ibid., pp. 40–41. 75 76

50  Brett G. Scharffs Cover also notes that judges are not only people of violence, they are “also people of peace. Among warring sects, each of which wraps itself in the mantle of law its own, they assert a regulative function that permits a life of law rather than violence.”82 When the judge speaks and destroys alternate meanings, it also enables us to live together in peace because we no longer have to fight about what a particular text or symbol means. C.  The Interpretation of Symbols and the Jurispathic Office Cover’s central point is that there is a strong link between symbols and judicial violence. When judges declare authoritatively what a symbol means, they are acting in a paradigmatically jurispathic manner. Declaring what symbols mean is sometimes necessary, but oftentimes it is not. My primary suggestion is that judges should avoid unnecessary exercises of their jurispathic office when confronted with religious symbols. There are many reasons for this. One is the very nature of symbols, which as we have seen is to generate and sustain multiple meanings that can usually peaceably coexist. We have also seen that meanings vary from community to community, and that meanings grow and change over time. Society should be allowed to develop multiple jurisgenerative conceptions of what symbols mean. Precise definitions and contours are often neither possible nor desirable. Alternative interpretations and conceptions can co-exist, overlap, and even compete without the need for judicial interference. The meaning of symbols need not be written in stone (even if the symbol is rendered in stone). Consider several examples, some in which courts exercise a jurispathic approach and others in which they preserve competing jurisgenerative visions of what symbols mean. 1.  The Mount Soledad Cross Case In the Mount Soledad case (the San Diego Cross case), we see a prime specimen of a jurispathic court.83 The cross had been up for years, and was owned and maintained by a non-profit, private corporation, and had been dedicated as a tribute to fallen American servicemen. The Ninth Circuit, in holding that the cross was unconstitutional, wrote as follows. “Overall, a reasonable observer viewing the Memorial would be confronted with an initial dedication for religious purposes, its long history of religious use, widespread public recognition of the Cross as a Christian symbol, and the history of religious discrimination

  Ibid., p. 53.   Jewish War Veterans v. City of San Diego, 629 F.3d 1099.

82 83

The Role of Judges in Determining the Meaning of Religious Symbols  51 in La Jolla.”84 The Circuit concluded that the monument “primarily conveys a message of government endorsement of religion.”85 This is a classic example of a court exercising its ‘world-maintaining,’ imperial, jurispathic role. By declaring definitively what the monument means, the court discounts and discredits other meanings, and converts the symbol into something even more divisive than it was before. No longer can critics look at the monument and say, “Well at least it is just or partly a war memorial.” Proponents of the monument have had something important to them removed based upon an interpretation of its meaning with which they strongly disagree. They have been told that it is a symbol of religious intolerance, and must be eliminated. The Ninth Circuit denied a motion to rehear the case en banc.86 Writing for the dissent, Judge Carlos Bea quoted Gertrude Stein, “a rose is a rose is a rose.” The judge then said: Stein wrote this sentiment to express the flower’s indescribable, unchangeable essence. The panel appears to have transmogrified Steins ode to a rose into a new rule of law—‘a cross is a cross is a cross.’ Alas, that is neither good poetry nor valid law. Unlike roses, religious symbols can have multiple meanings, just as the Ten Commandments monument did in Van Orden.87

Judge Bea’s dissent exemplifies the jurisgenerative approach, saying that we do not have to define, simply and forever, what the cross means. It can have multiple meanings, and in recognizing its multiplicity of meanings, we are not forced into the corner of declaring it a violation of the Establishment Clause. 2.  The Utah State Trooper Memorial Cross Case A similar jurispathic approach was taken by the Tenth Circuit in a case involving memorial roadside crosses erected to honour fallen officers.88 The Tenth Circuit did not hesitate to declare its authoritative (and rather superficial) opinion of what the memorial crosses mean: “We hold that these memorials have the impermissible effect of conveying to the reasonable observer the message that the state prefers or otherwise endorses a certain religion.”89 Note the casual confidence with which the court states the opinion of a reasonable observer, and what the message of the symbol must be. Again the court takes a symbol with multiple meanings and reduces it by declaring an authoritative

  Ibid., at 1122.   Ibid., at 1125. 86  Idem.. 87   Ibid., at 1091. 88   American Atheists, Inc. v. Duncan, 637 F.3d 1095. 89   Ibid., at 1112. 84 85

52  Brett G. Scharffs meaning. The United States Supreme Court recently denied certiorari in this case.90 3.  The European Court’s Headscarf Cases In another context, consider the European Court of Human Rights cases involving headscarves.91 Here the court does not clearly explain what the headscarf means, but they speculate that it is coercive to women. Note the court’s language in the Sahin case from Turkey: When examining the question of the Islamic headscarf in the Turkish context, it must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it … in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith.92

And so, the court suggested, the banning of the headscarf was necessary to a free society. Interestingly, the government in Turkey over the last nine years has revised that law. I was in Istanbul in June and October 2011, making presentations on conferences about proposals for a new Constitution in Turkey, and about half the women in the audience were wearing headscarves and about half were not. The only thing that concerned me was that the ones wearing headscarves tended sit with others wearing the headscarf, while those without the headscarf largely kept to themselves as well. These headscarf cases are another example of a court exercising its jurispathic function. The courts assumptions are questionable, presuming to say that the headscarf is a symbol of inequality, that it is a coercive symbol, and that wearing it is a misunderstanding of Islam and a misunderstanding of what equality requires. One thing that we must understand is how varied the headscarf may be, and that its meaning and significations may be equally varied. The shuttlecock burqa, for example, covers the entire body, including eyes and mouth. The niqab is an extensive covering, but leaves the eyes visible. Some headscarves are designed for sporting or fashion, with colourful prints and designs. Many women have fought for the right to continue wearing the headscarves while competing in organized sports. The chador is another style of covering, almost like a cloak, that leaves the face uncovered. While we tend to think of head coverings as mostly an Islamic issue, this is both oversimplified and inaccurate. When I was teaching about the headscarf cases recently in Hungary, a student from Kenya told me about a case in that   Utah Highway Patrol Association v. American Atheists, Inc., 132 S. Ct. 12.  E.g., Leyla Sahin v. Turkey, supra note 3. 92   Ibid., para. 115. 90 91

The Role of Judges in Determining the Meaning of Religious Symbols  53 country wherein the women and girls of a conservative Christian group wore head coverings. The scarves were banned, and the Kenyan courts upheld the ban, following the same reasoning as the ECHR in the French headscarf case.93 Headscarves are found in a variety of religious traditions. Christian nuns and monks wear distinctive head coverings denoting their orders or ranks. Eastern orthodox priests distinguish themselves with headgear, and the familiar Jewish yarmulke is used by many Jewish sects in a variety of contexts and circumstances. But not just Christians and Jews employ scarves and other coverings. The keffiyeh is the traditional scarf worn by Arab peasants, and has become a symbol of Arab and Palestinian nationalism. Yasser Arafat was seldom without this scarf, and Lawrence of Arabia wore one as well. Even more interesting is the use of head coverings and hats in academic dress. After all, the banning of head coverings in the school and university context is ironic in light of the decorative and impractical headgear we see in academic pomp and circumstance. Wearing these head coverings may reasonably be viewed as being quite coercive. What is surprising is that the European Court was so quick to draw conclusions about the meaning of the headscarf. It is striking that the court so confidently, boldly, and conclusively asserts an authoritative meaning of the headscarf, when in fact it may mean many things at many times to many people. Acting in a classically jurispathic manner, the court destroys and discredits (or at least tries to destroy and discredit) any alternative meanings. The headscarf could stand, as the court thinks, for submission to husbands and fathers, for inequality, and for oppression. Or it could stand for obedience, modesty, and submission to God. In some cases it may be obligatory, or in some cases it could be voluntary. As a result of the court’s decision, the headscarf may come to symbolize courage and autonomy in taking a stand in protest against the omnipresent and omnicompetent state. More likely, the headscarf means all these things at once, depending who is doing the interpreting. 4. Lautsi We see a counter-example in the ECtHR’s Lautsi case, the case about the crucifix hung in Italian classrooms.94 The Grand Chamber’s final judgement held that the Italian law requiring the display of the crucifix in public school classrooms did not violate the European Convention on Human Rights. It is important to note the double standard employed by the court, upholding the mandatory use of an important piece of Christian iconography, while denying 93   Ndanu Mutambuki & 119 Others v. Minister for Education and 12 Others [2007] eKLR. Petition 407 of 2007. 94   Lautsi and Others v. Italy [Grand Chamber], supra note 1.

54  Brett G. Scharffs the right of individual Muslim girls and women the right to use a similarly important symbol. What we have in Lautsi is a national law requiring display of the crucifix in classrooms at public schools. In March 2011, the Grand Chamber held that this law was within the margin of appreciation accorded to member states of the Council of Europe, basically meaning that Italy did not abuse its discretion under the European Convention in promulgating the law. Because it was within the country’s discretion, it did not violate Article 2 of Protocol 1, which guarantees the right to education and the right of parents to ensure such education is in conformity with their own religious and philosophical convictions. Neither did it violate Article 9, dealing with thought conscience and religion, nor Article 14, dealing with discrimination. The initial Chamber judgement took the view that while the crucifix may have a plurality of meanings, the Christian, religious meaning was dominant. Thus the display was “incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education.”95 To the lower Chamber, the compulsory presence of the crucifix clashed with secular principles and convictions, and could be emotionally disturbing for nonChristian or atheist pupils.96 The Grand Chamber rejected this line of argument. While acknowledging that the crucifix was “above all a religious symbol,” the Grand Chamber noted that the crucifix was part of Italy’s historical development, with both religious and cultural connotations, and that the crucifix was part of a tradition of Italian identity that Italy considered it important to perpetuate.97 They added that, “beyond its religious meaning, the crucifix symbolizes the principles and values which formed the foundation of democracy and western civilization, and that its presence in classrooms was justifiable on that account.” Most significantly, the Grand Chamber declined to articulate a specific, legally binding conclusion about the final meaning of the crucifix. The Grand Chamber was especially reticent to intervene given that the domestic Italian courts had as yet refused to rule on the matter. The Grand Chamber exercised what Alexander Bickel described as passive virtue, refusing to exceed the bounds of its expertise.98 The Grand Chamber’s restraint allows a continued multiplicity of meanings for the cross, a jurisgenerative outcome. Here the concurring opinion of Judge Power is instructive. Judge Power notes: “The Grand Chamber has found that the presence of the crucifix is,   Lautsi v. Italy [Second Section decision], supra note 1, para. 57.   Ibid., para. 55. 97   Ibid., para. 67. 98   Alexander M. Bickel, The Least Dangerous Branch (New Haven: Yale University Press, 1962), p. 111. 95 96

The Role of Judges in Determining the Meaning of Religious Symbols  55 essentially, a passive symbol and it regards this point as being of great importance having regard to the principle of neutrality.”99 Judge Powers agrees but shifts focus from the symbol’s passivity to whether or not it is coercive. Symbols, Judge Power points out, “may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or an indoctrinating manner.”100 Judge Power notes that the evidence in the case suggests that the Italian schools are open to a variety of religions “and there is no evidence of any intolerance shown towards non-believers or those who hold non-religious philosophical convictions.”101 He points out that, in contrast to the more secularist France, Islamic headscarves may be worn in school, and Muslim holidays such as Ramadan are often celebrated. The meaning of the crucifix in Italian schools, Judge Power argues, must be understood within this context of religious tolerance. Judge Power suggests that in such a context, a sustained and meaningful dialogue can take place about what symbols, including religious symbols, mean: Within such a pluralist and religiously tolerant context, a Christian symbol on a classroom wall presents yet another and a different world view. The presentation of and engagement with different points of view is an intrinsic part of the educative process. It acts as a stimulant to dialogue. A truly pluralist education involves exposure to a variety of different ideas including those which are different from one’s own. Dialogue becomes possible and, perhaps, is at its most meaningful where there is a genuine difference of opinion and an honest exchange of views. When pursued in a spirit of openness, curiosity, tolerance and respect, this encounter may lead toward greater clarity and vision as it fosters the development of critical thinking.102

Judge Power’s defense of pluralism in the face of secularism is fully consistent with viewing symbols as creating an occasion for jurisgenesis rather than creating a need for jurispathic absolutist resolution of what a symbol means. The key factors for Judge Powers, which helps set the boundaries of when the jurispathic judicial arts may be necessary, are coercion and consistency. Here the symbol does not coerce action, and other symbols are also tolerated. This approach may be the most respectful of the jurisgenerative potential of symbols, allowing symbols that do not coerce when other symbols are also included. It would be a mistake to simply say that whatever the Court decides, it acts equally jurispathically. Banning the crucifix, as the initial Chamber judgment

  Lautsi and Others v. Italy [Grand Chamber], supra note 1, Concurring Opinion of Judge Power. 100  Idem. 101  Idem. 102  Idem.  99

56  Brett G. Scharffs did, rested upon a firm and confident finding by the Court of what the symbol means; allowing the crucifix, as the Grand Chamber did, allows the conversation to continue.103 The meaning of the crucifix, as well as whether it is preferable or not to require its display in public classrooms, is a conversation that will undoubtedly continue, both within the schools and in Italian politics. D.  The Meaning of the Cross Lautsi, like so many other cases, involves a familiar yet divisive symbol, the crucifix, rather than a simple Latin cross.104 But what does the cross really mean? As a mere shape, two intersecting lines carry no particular inherent meaning. Crosses have been used to symbolize railroad crossings, mathematical functions like addition and multiplication, and markers for hospitals and medical centres. One of the most infamous symbols in America’s turbulent racial history is the burning cross, often used by racist organizations like the Ku Klux Klan to harass and intimidate.105 But even this symbol has a richer history, originally being used in the Scottish highlands to summon the clans for war.106 The crusader’s cross had a very different meaning for those wearing it on their shields and armour than it did for those facing them in battle. Soccer players and other athletes—our modern day gladiators—often incorporate crosses into their kits and uniforms. In fact, a Turkish lawyer sued Italian

103   Ibid., para. 66. “The Court further considers that the crucifix is above all a religious symbol. The domestic courts came to the same conclusion and in any event the Government have not contested this. The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive at this stage of the Court’s reasoning.” It notes that Italian courts have taken different views with respect to the meaning of the crucifix, notes that the Italian Constitutional Court has not given a ruling on the matter, and concludes, “[i]t is not for the Court to take a position regarding a domestic debate among domestic courts” (ibid. at para. 68). Judge Power’s concurrence makes even clearer the virtue of allowing a pluralism that does not descend into a strident secularism: “Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind, the Chamber Judgment was striking in its failure to recognise that secularism (which was the applicant’s preferred belief or world view) was, in itself, one ideology among others” (Concurring Opinion of Judge Power, at para. 3). Judge Power highlights the responsibility of the courts and the state to remain neutral and allow a plurality of meanings and doctrines. It recognizes that when courts ban a symbol, they are in fact taking sides, while if they allow a symbol, they also allow continued debate and discussion among citizens and legislators. Allowing a symbol does not dictate what the symbol means, whereas disallowing it rests upon a determination of the symbol’s meaning. 104   The crucifix, which depicts the body of Christ, is distinct from the cross. Here my comments focus more broadly on the meaning of the cross. 105   See      (retrieved   29 January 2012); and (retrieved 29 January 2012). 106   See .

The Role of Judges in Determining the Meaning of Religious Symbols  57 soccer team Inter Milan over the prominent red cross that adorns their jerseys, calling it a symbol of the crusades and bloody conquest against Muslims.107 Many sovereign flags include crosses, including Switzerland, Jamaica, and the United Kingdom. The so-called Southern Cross, a constellation of four stars visible in the South Pacific, is included in the emblems of Australia, New Zealand, and Samoa. American state flags with variations of crosses include Alabama, Florida, Mississippi, New Mexico, Maryland, and Hawaii. Beyond the cross, many sovereign countries have incorporated religious symbols, such as the Ethiopian flag, which has used both the Lion of Judah and the Star of Solomon. Mongolia and South Korea use Daoist symbols, and of course many countries include the Islamic Star and Crescent. V. Conclusion I would like to conclude by offering some thoughts about what crosses may mean in the context of cemeteries and burial grounds. The United States government currently offers nearly 50 emblems of belief, available to be put on headstones in military cemeteries, and a clear process of applying for additional emblems.108 This seems to be a jurisgenerative approach, wherein the meaning of current religious symbols, including the cross, is not limited, while other symbols are allowed to flourish as well. The Cross of Sacrifice is a monument designed by Sir Reginald Bloomfield and is usually erected in cemeteries holding the bodies of fallen soldiers of the British Commonwealth. One such Cross stands in Arlington National Cemetery, honouring fallen American citizens who died in service of Canadian and British forces in the First and Second World Wars. The Cross of Sacrifice is typically a freestanding Latin cross, ranging in height from 18 to 32 feet. On the face of the cross is a bronze sword, face down. The cross is usually mounted on an octagonal base. It is a moving example of the richness of the cross’s symbolism. The cross represents the faith of the majority of the dead, most of whom were Christian, while the sword represents the military nature of the cemetery. The downward pointing orientation of the sword shows that the battle is over, and that the fallen are now mourned. The tip of the sword is thrust into the earth, suggesting the idea that

107   Richard Owen, ‘Muslim Lawyer Sues over Inter Milan “Crusaders” kit’, Times Online, 11 December 2007 (republished at , retrieved 29 January 2012). 108   See (retrieved 29 January 2012).

58  Brett G. Scharffs swords have been converted into ploughshares.109 The cross and sword, among other meanings, both stand as universal symbols of sacrifice and death.110 When confronting symbols, courts would do well to be more aware of the jurispathic tendencies of the judicial office—its proclivity to kill alternative conceptions of what symbols mean and to adopt a single, ‘official’ conception. Rather than declaring definitively what symbols mean, courts should more often adopt a modest posture. Instead of taking sides about what a contested symbol ‘really’ means, courts can often recognize that symbols by their very nature mean many different things to many different people. By refraining from taking sides between those who insist upon imposing a single meaning upon those symbols, courts can allow differing jurisgenerative visions to coexist and compete with each other for our hearts and minds. When courts give official sanction to a particular interpretation of a symbol, this has the jurispathic effect of killing other competing interpretations. Generally, this is not simply unnecessary violence; it is deeply antithetical to the very character and purpose of symbols.

109   See Isaiah 2:4 (“They will beat their swords into plowshares and their spears into pruning hooks. Nation will not take up sword against nation, nor will they train for war anymore” (Old Testament, King James Version); see also Micah 4:3. 110  See (retrieved 29 January 2012).

LIMITATIONS OF SUPRANATIONAL JURISDICTION, JUDICIAL RESTRAINT AND THE NATURE OF TREATY LAW Jean-Marc Piret I. Introduction In March 2011 the Grand Chamber of the European Court of Human Rights (ECtHR) reversed the Chamber judgment in the case of Lautsi v. Italy.1 In November 2009 the Chamber had ruled that the compulsory display of a crucifix in the classrooms of Italian public schools violated the right to freedom of conscience and of religion of the Lautsi children and the right of the parents to educate their children in accordance with their own religious beliefs or philosophical convictions. Both these rights are guaranteed by the European Convention of Human Rights (Article 9 of the ECHR and Article 2 of Protocol I). According to the Chamber the principle of confessional state neutrality can be derived from these rights. This principle has not only been recognised by the supreme or constitutional courts of several European countries such as Germany, Switzerland or Poland; it has also been derived from the Italian Constitution by the Italian Constitutional Court as one of the fundamental principles (laicità). The Chamber held that this principle is of special importance in state schools since pupils are present in that environment under a compulsory school attendance law from which they can extract themselves only if their parents make disproportionate efforts and financial sacrifices. Even if no one in a pluralistic society can claim to be spared from perceiving the manifestations of religious faith and practice by his fellow citizens, this is different when it is the state that exposes individuals without possibility to escape to the influence of the symbols of a particular religious faith. The Chamber emphasized that the negative right to freedom from religion deserved special protection against the expression of a confessional belief by the state itself through the display of a symbol of which the significance is predominantly religious. The Chamber ruling provoked an unprecedented flood of reactions and commentaries both for and against the ruling. In an article about the Chamber judgment that was published in the Dutch Journal of Constitutional Law, 1   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (Grand Chamber), No. 30814/06 [Grand Chamber decision or Lautsi II]; and Lautsi v. Italy, 3 November 2009, European Court of Human Rights (Second Section), No. 30814/06 [Chamber decision or Lautsi I].

60  Jean-Marc Piret I wrote that the Court had ironed out the contradictions between the domestic courts in matters concerning the public display of religious symbols.2 The Italian Court of Cassation, which is the highest Court in civil and penal matters, had ruled that the display of a crucifix in Italian polling stations constituted a violation of the principle of state neutrality in religious matters. In the same spirit, the Italian Constitutional Court had issued several rulings in which it underscored that the principle of laicità from which the duty of state neutrality is derived, was fundamental to the constitutional order. On the other hand, the Italian administrative courts up to the highest level, the consiglio di stato, had found no objection to the display of the crucifix, because it had to be interpreted as a symbol, not only of universal Christian love and religious tolerance but even of laicità. We should not focus on the—in my opinion—obvious absurdity of this interpretation according to which the core symbol of a particular religious belief is also a symbol of state neutrality. More important is the fact that the different levels of administrative jurisdiction repeatedly confirmed and maintained this interpretation. I will come back to this issue. The storm of protest that rose after Lautsi I shows that the Chamber had underestimated that large majorities in some European countries are devoted to their cultural and religious heritage and to the public visualization of that heritage, while they at the same time recognize the freedom of conscience and religion. There is no consensus throughout Europe about the best way to render compatible the right to freedom of conscience and the existing religious pluralism on the one hand with national preferences for the majority-religion on the other. Personally I think that religious and philosophical neutrality of the state can best be achieved through public secularism understood as a normative constitutional doctrine which separates the religious realm from state politics and takes a stance of equidistance towards any religious creed as well as toward agnosticism or atheism. Such a conception of secularism as a constitutional doctrine should be carefully distinguished from state atheism, antireligious activism or any other identification of the state with a particularistic creed or philosophy of life. The constitutional doctrine of the secular state implies respect for freedom of and from religion and for all religious practices in society as long as they are compatible with public order and as long as they do not infringe on the analogical rights and freedoms of others. Secularism understood as a normative constitutional doctrine in my view is the most adequate model to keep the peace in multicultural and religiously pluralistic societies and to combine tolerance and respect for diversity without the state 2   Jean-Marc Piret, ‘Straatsburg en de Levensbeschouwelijke Neutraliteit van de Italiaanse Staat: een Commentaar op Lautsi t. Italië (EHRM 13 oktober 2009)’, 3 Tijdschrift voor Constitutioneel Recht (2010), pp. 307–314.

Limitations of Supranational Jurisdiction, Judicial Restraint  61 becoming an easy prey to ever more particularistic claims for recognition and financial support. According to this conception of public secularism it is not for the state to take sides in matters about philosophies of life or religion and it is not for the state either to financially subsidize religious practices, denominational schools or any other religious or anti-religious activities. In my opinion the French ‘laïcité’ and the American legal doctrine concerning the ‘wall of separation’ between church and state, are the two types of national constitutional constructions which correspond most closely to the described normative model of public secularism. But we should immediately add that reality is always much more complex than our normative frameworks and hence accommodations of the theoretical ideal to types of limited and indirect support of the majority religion and to subsequently raised reasonable demands for recognition and equal treatment of minority religions, are not incompatible with these theoretical ideals. The conditions for such accommodations to be acceptable are that they should be the exception to the rule and that public funds should never be granted for the advancement of one particular belief but only to enhance the realisation of secular goals through the support of different organisations some of which may have a religious affiliation. From the perspective of this normative constitutional doctrine of public secularism the Chamber judgement in the Lautsi case could count on my sympathy. For a crucifix is the core symbol of one particular religion, Catholicism, and as such it should not be exhibited in classrooms of public schools, because this would at least create an objective impression of partiality and identification of the state with one particular religion at the exclusion of all others. But despite that, I nevertheless think that there are very good reasons to consider that the decision of the Grand Chamber which overruled the Chamber Judgement, is the better of the two rulings. To assess these reasons, it is important to understand that the constitutional model of separation of church and state has been realised nowhere in its theoretical purity, and when one looks closely into the different constitutional arrangements throughout Europe, it becomes obvious that the strict separationist model is in actual fact a minority position. That means that expressing a preference for separationism in relation to a state that has a different constitutional framework with regard to the relation between religion and state, becomes a matter of ideological choice and a matter of political militancy and hence this is an attitude that is appropriate for a citizen or an interest group expressing their political preferences, but not for an international human rights court. The supporters of Lautsi I could retort that even if the separationist stance is not universally accepted in Europe, this is different for the principle of religious neutrality of the state, because it can be derived from the rights protected under Article 9 of the Convention and Article 2 of Protocol I. But even that is an overstatement and not a correct interpretation of the Convention as I will show in the subsequent paras.

62  Jean-Marc Piret One could found the opinion that the Grand Chamber’s judgement is to be preferred on purely pragmatic grounds analogous to the reasons given in a comparable context by Jules Ferry, one of the architects of the French laïcité. Although Ferry was an anticlerical activist and the ‘father’ of the French system of public education at the beginning of the twentieth century, he did not want to force the Catholics to remove the crucifixes right away when their parochial schools were transformed into public schools by the French government. Ferry did not want to intensify an already open conflict with the Catholics and he was cautious to avoid that the anti-clerical battle against church interference with state affairs would degenerate in an anti-religious crusade aiming to extirpate all religious elements from society.3 But as valuable as these pragmatic reasons in favour of political moderation were in France at the beginning of the twentieth century, and as valuable as they are today, they should not distract us from the more principled legal and political arguments for which Lautsi II, which denies that the crucifix in Italian public schools constitutes a violation of rights protected under the ECHR, should be preferred to the Chamber judgement. II.  Reactions to Lautsi I: Politicians and Interest Groups There were many emotional reactions to the chamber ruling.4 Crosses were painted on the walls of the premises of the Italian radical party (Radicali Italiani), who had publicly supported the Chamber ruling. The Lautsi-Albertin family was harassed, their house was plastered with crosses and their pictures were put on posters with the inscription “wanted”. The Italian minister of defence Ignazio La Russa reached a low point of shamelessness by ranting on for minutes against the Chamber ruling in a TV talk show. He said that the crucifixes would be maintained in all the public buildings and shouted repeatedly “they can die”, together with that “fake international organisation that counts for nothing”.5 In the European Parliament several interest groups and political fractions campaigned for and against the ruling. Motions for resolutions for and against the ruling were issued. That led sometimes to unexpected coalitions. The socialist fraction joined the right wing in support of a draft resolution that

3   Ferry once said: “My combat is the anti-clerical one, but the anti-religious struggle, never, never.” Cf. Jean Baubérot, Histoire de la Laïcité Française (Paris: Presses Universitaires de France, 2000), p. 52. 4   Cf. European Parliament Platform for Secularism in Politics, ‘Freedom of Thought, Conscience and Religion: Lautsi v Italy’, available at . 5   Available at .

Limitations of Supranational Jurisdiction, Judicial Restraint  63 claimed the right to display religious symbols on the basis of the subsidiarity principle.6 In reaction to that the European environmental parties issued a counter resolution about human rights, religious symbols and subsidiarity with the demand that the Lautsi I ruling should be fully complied with. Among other things the resolution also ridiculously stated that “only states based on the principle of the separation of church and state—as opposed to theocratic states—can find the proper solutions to safeguard everybody’s right to freedom of thought, conscience and religion, the right to education and the prohibition of discrimination”.7 As if England and Denmark, which have no sep­aration of church and state but a state church system, or Germany and Belgium, which have a system of officially recognized religions that receive a preferential treatment, would not be capable of respecting the freedom of conscience and of religious minorities. In a vigorous reaction to the Chamber ruling David Pollock, president of the European Humanist Federation (EHF), argued that if the crucifixes were not banned from the classrooms of public schools, then it would become possible under the subsidiarity principle in the future that elementary rights of the Roma would be violated or suspects of terrorism would be summarily executed. According to Pollock a majority is never entitled to remove the rights of even one individual contrary to the law and the Convention.8 But what about restrictions of rights recognized under the Convention in accordance with the law, with rules of proportionality and with other criteria developed by the ECtHR? Apparently Pollock denies right away that such rules do apply in this case, but he does not give one conclusive argument why that is so. In Italy more than hundred organisations that support the separation of church and state reacted to Lautsi I in an open letter to the Council of Europe.9 A lot of these reactions that were quickly written and posted on the internet stood out for their superficiality and lack of knowledge about the historical complexity of the relations between religion and state throughout Europe. III.  Reactions to Lautsi I: Third Party Interveners The intellectual level of the discussion rose significantly with the legal memoranda of different third party interveners that had been accepted to expose  Available at . 7  Available at . 8  Available at . 9   Available at . 6

64  Jean-Marc Piret their view on the case before the Grand Chamber. In my opinion the Memorandum of the European Centre of Law and Justice (ECLJ) that was a forceful critique of Lautsi I stood out for the quality of its inquiry into the complex relations between religion and state in Europe and for the profound knowledge of the relevant case law of the ECtHR.10 On 30 June 2010, the Grand Chamber held a public hearing and here the opponents of the Chamber ruling were again imposing. That was the case with the counsel representing the state and even more so with the elegant and rhetorically ingenious plea of Professor Joseph Weiler, who represented a group of states that opposed the Chamber ruling. The ECLJ-memo written by Grégor Puppinck en Kris Wenberg argued that the decision of the Chamber to translate the freedom of religion and conscience guaranteed by Article 9 of the European Convention and the right of parents to raise their children in accordance with their own religious or philosophical convictions into a requirement of complete confessional neutrality, was a profound misconception, not only of the Convention, but also of the relevant case law of the Court. In the Belgian linguistic case of 1968, the Court had explicitly stated that in sensitive matters it was important to take into account the domestic arrangements in the member states and that it could not supersede the competent domestic authorities “for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention”.11 On the substantive matter, the memo argues that a crucifix, in the absence of any explicit directive concerning its significance or how to behave in its presence, cannot be seen as a state regulation about the appropriate way to think in religious matters or about what one should or should not believe. And if such a symbol should have an emotional influence on the school children, it does not reach the intensity that constitutes a violation of the Convention. The Chamber erred because it applied inadequate criteria that are normal for secularist states such as France or Turkey but do not fit to the Italian reality concerning church-state relations. With regard to the relations between religion and state Europe is a colourful patchwork of very different constitutional designs. The revision of the Lateran treaty of 1929, which resulted in the additional protocol to the treaty that was ratified in 1985, should be borne in mind. With that revision of the treaty Italy made an end to the status of the Catholic Church as a state church and explicitly recognizes that the state and the church are

10   ECLJ memorandum, available at . 11   Belgian Linguistic Case, 23 July 1968, European Court of Human Rights, Nos. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; and 2126/64.

Limitations of Supranational Jurisdiction, Judicial Restraint  65 “each in their own order, independent and sovereign”.12 But that does not amount to a strict separation of church and state, as the whole document testifies of different sorts of cooperation and interaction between the two. Article 9, second para., of the agreement provides that: the Italian Republic, recognizing the value of the religious culture and considering that the principles of the Catholic Church are part of the historical heritage of the Italian people, shall continue to assure, within the framework of the scope of the schools, the teaching of Catholic religion in the public schools of every order and grade except for Universities. With respect for the freedom of conscience and educational responsibility of the parents, everyone shall be granted the right to choose whether or not to receive religious instruction. When they enrol, the students or their parents shall exercise this right at the request of the school authority and their choice shall not give rise to any form of discrimination.13

This provision integrates the interest in conservation of the religious heritage into the constitutional framework of the Italian Republic and makes it compatible with freedom of conscience and religion and with the parental freedom to educate children in accordance with philosophical or religious convictions that are not those of the majority religion. Notwithstanding this freedom of conscience, the conservation of the religious heritage becomes a public interest of the Italian state through Article 9, second para. of the agreement, regardless of whether public secularists—such as myself—like that or not. As the ECLJ-memo correctly underscores, the Lautsi I ruling does not even mention this aspect of the Italian constitutional framework. Therefore the Chamber loses sight of the legal approval of an impor­ tant aspect of the cultural dimension of Italian public life and erroneously considered it to be legitimate to impose a vision of state neutrality on Italy that does not fit with the complex and historically grown relation between religion and state in that country. As the ECLJ-memo pertinently argues, there is no legal ground for imposing such a uniform conception of state neutrality under the ECHR. The ECLJ-memo further argues that this conclusion can also be drawn from the case law of the Court. In view of the absence of a uniform conception of the relation between religion and state in Europe, there should be granted a wide margin of appreciation to the members of the Council of Europe. That was the opinion of the Court in Leyla Sahin v. Turkey14, where the question rose whether it was legitimate under the Convention that the Turkish authorities

12   Article 1 of the Agreement between the Italian State and the Holy See, available at . 13  Idem. 14   Leyla Sahin v. Turkey, 10 November 2005, European Court of Human Rights (GC), No. 44774/98.

66  Jean-Marc Piret forbid a student to wear an Islamic headscarf while attending university courses. In this ruling the Court explicitly admits that: it is not possible to discern throughout Europe a uniform conception of the significance of religion in society … and the meaning or impact of the public expression of a religious belief will differ according to time and context … Rules in this sphere will consequently vary from one country to another according to national traditions … Accordingly, the choice of the extend and form such regulations should take, must inevitably be left up to a point to the State concerned, as it will depend on the specific domestic context …15

Consequently the Court underscored the need to draw on the conception of secular politics that was elaborated in the national constitutional order and in the case law of the national constitutional court. Within the limits imposed on them by the Convention, each member state has room for manoeuvre to deploy its own conception of the relation between religion and politics. IV.  The Court’s Case Law Grégor Puppinck and Kris Wenberg, the authors of the ECLJ-memo, went on to substantiate their view by analyzing the remaining relevant case law. As the ECLJ is a conservative Christian think-tank, a club with a mission so to speak (which is perfectly legitimate, but does not a priori guarantee an unbiased analysis of the case law), I wanted to check whether their interpretations were not tendentious. After careful reading of the cases, I could only admit that they were right: Lautsi I constituted quite definitely a bigger departure from the previous case law than I initially thought. With regard to the setting of the curriculum for state schools the Court held in Kjeldsen, Busk Madsen and Pedersen v. Denmark: in particular, the second sentence of Article 2 of the Protocol does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable … the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.16

  Ibid., para. 109.   Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Nos. 5095/71, 5920/72, 5926/72, para. 53. 15 16

Limitations of Supranational Jurisdiction, Judicial Restraint  67 This has become a canonical citation that has been ritually repeated since then in all the major cases pertaining to Article 2 of Protocol I. In Folgerö v. Norway the Court held that although the teaching course of KRL (Christianity, Religion and Philosophy of Life) was relatively one-sided because it paid much more attention to Christianity in its Lutheran version than to other religions and philosophies of life, that of its own could not be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination.17 The one-sidedness in the setting of the curriculum would have fallen within the margin of appreciation of the state as it ensued from the national history and tradition which was institutionalized in the Norwegian state-church system on condition that nobody would have been coerced to take KRL classes. However the Court did find a violation of the Convention because the partial exemption arrangement put a burden of justification on the shoulders of the parents that was considered unacceptable. An analogous conclusion was reached in Hasan and Eylem Zengin v. Turkey.18 Here the plaintiffs were Alevites who considered that the religion subject paid one-sided attention to the Sunni interpretation of Islam, which was the religion of the majority. Despite the fact that Turkey is a secular state, this one-sided religious education was not in itself considered to constitute a violation of the obligation of pluralism and objectivity. What did amount to a violation was that, here again, there was no sound exemption arrangement. In view of these rulings it is indeed incongruous that a symbolic remembrance of the religious heritage of the Italian culture in the public school was considered to be in breach of the Convention, despite the fact that the crucifix was not in any way accompanied by a teaching program, by any sort of indoctrination or by rules how to behave in presence of it. Considering the fact that religious courses in Italian public schools are optional; that other religions are accepted; that Islamic girls have the right to wear headscarves and that the beginning and the end of the Ramadan were often celebrated, the contention of the Italian state that the crucifix is not intended as a strong religious symbol, is not by definition false or untenable. And consequentially the decision to remind the schoolchildren of the religious heritage of the Italian culture should be considered to lie within the margin of appreciation of the state. V.  Europe’s Constitutional Pluralism Many legal and political philosophers (including myself) think that separation between religion and politics understood as a normative constitutional model 17   Folgerø and Others v. Norway, 29 June 2007, European Court of Human Rights (GC), No. 15472/02. 18   Hasan and Eylem Zengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04.

68  Jean-Marc Piret is the best available arrangement to facilitate the peaceful coexistence of different religions and philosophies of life. But the ECHR and the case law of the ECtHR do not at all imply that separationism should become a common characteristic of the constitutional systems of each member of the Council of Europe. Amongst these members there are considerable differences as to their constitutional design with regard to the relation between state and religion. Some countries have a separationist system (France, Turkey, some Swiss Cantons); others officially recognize and support a limited number of religions (Germany, Belgium); some combine a ‘separationist’ constitutional principle with a practice that is very generous and accommodationist to other religions (the Netherlands); and still others have state church systems with different degrees of openness to accommodation (England, Finland, Denmark). These different constitutional designs evolved from the specific history, the religious conflicts and political settlements in these countries. With regard to state church systems, the former European Commission of Human Rights held in 1989 that: A State Church system cannot in itself be considered to violate Article 9 of the Convention. In fact, such a system exists in several Contracting States and existed there already when the Convention was drafted and when they became parties to it. However, a State Church system must, in order to satisfy the requirements of Article 9, include specific safeguards for the individual’s freedom of religion. In particular, no one may be forced to enter, or be prohibited from leaving, a State Church.19

In view of the wording of Article 9 of the European Convention and Article 2 of the first Protocol, and in view of the fact that many of the national constitutional arrangements concerning religion and state predate the ratification of the Convention by these states, elevating the principle of complete state neutrality to a generalized norm as the Chamber in fact did in Lautsi I cannot be a correct interpretation of the Convention, however much public secularists may think that such neutrality would be desirable. By ruling as if there was a consensus about that desirability, the Court lost sight of reality. And by trying to impose such complete state neutrality, it lost sight of the subsidiary nature of its jurisdiction. Or to cite the forceful conclusion of the ECLJ-memo with which even a public secularist as myself can fully agree: “the Convention was not designed to erase the religious roots of member states or to obliterate their memory from public education. Rather the states contracted as parties with the full understanding that they were free to choose their own form of relationship between state and church, including within their educational systems.”20   Darby v. Sweden, 9 May 1989, European Commission on Human Rights, No. 11581/85.   ECLJ memorandum, supra note 10, at Conclusion.

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Limitations of Supranational Jurisdiction, Judicial Restraint  69 That the mandatory crucifix creates an objective impression of an at least partial identification of the state with one particular religion is obvious. But this assertion cannot be produced as if it were a highly critical insight that were denied by the Italian State, as this non-neutrality, or better, this incomplete neutrality, is an intrinsic part of the Italian constitutional design, which is enshrined in the additional protocol to the Lateran Treaty of 1985. VI.  The Spectre of State Atheism During the oral hearings the counsel of the government added another argument against Lautsi I that must have stirred the heartstrings of the judges from former communist regimes. They reminded the Grand Chamber and the audience of the fact that the most systematic and grave violations of the freedom of conscience and religion had been perpetrated by 20th century state atheism and not by European democracies who whish to preserve the religious roots of their national culture. According to the advocates of the state, the Lautsis wanted to eradicate the social dimension of the majority religion on the basis of an absolutist interpretation of their own negative right to freedom from religion. In that perspective there is a difference between preserving an already naked wall in the name of neutrality and stripping a wall of a symbol that had been there for a very long time. Moreover, the fact that the Lautsis are atheists, which their attorneys have tried to gloss over, made it easy for the opponents of Lautsi I to stigmatise their complaint as an action that was itself ideologically biased, and that tried to impose state atheism disguised as a claim to neutrality. This reproach would have been impossible to make if the complaint against the crucifix had been filed by a Muslim, a Jew, a Sikh or any other believer. In my opinion the blame of wanting to impose state atheism in Italy was not a fair assessment of the intention of the Chamber ruling, which explicitly interpreted confessional neutrality as impartiality of the state and equidistance to all religious beliefs. And again, I think that there are very convincing arguments why classroom walls stripped of all religious and ideological symbols are the best way to send out the message of state neutrality. But the most convincing arguments cannot do away with the fact that this robust and consistent form of state neutrality does not fit into the Italian constitutional framework and that it is neither warranted by the Convention. In this context the contention of the advocates of the government that the right not to be disturbed by a factor in the environment that is an intrinsic part of the majority culture is not protected by the Convention, becomes understandable. If some revolutionary party would want to purge Italian culture of all its Christian symbols in the public sphere, it would face a rather daunting task. From the Gregorian

70  Jean-Marc Piret calendar to the public holidays, the vast majority of which are Christian feasts and from the omnipresent churches and cathedrals to institutions such as marital monogamy. And in order to realise such a plan with a view to erasing an important part of the cultural heritage of a people from public visibility, that party would have to exercise state power in a totalitarian fashion. Only the Jacobin terror regime during the French Revolution or Russian Stalinism succeeded in realising such a wicked undertaking for some time. Obviously, it is ridiculous to read Lautsi I as if such an intention were the underlying rationale of the ruling. And yet some of the opponents of the Chamber ruling stretched their insinuations in a rhetorically effective manner in that direction. VII.  The Plea of Joseph Weiler before the Grand Chamber The final attack of the anti-Lautsi I campaign was launched by Joseph Weiler, professor at the New York University Law School. He was counsellor on a pro bono basis for Malta and seven other governments. In the specific context of the case, it was an expressive gesture that Weiler, who is a Jew, wore a kippah while he made his plea before the Grand Chamber at the oral hearing. A practising Jew who defends the presence of a crucifix in public schools, this is indeed a remarkable scene. This situation is especially unexpected when one realises that there has been a long tradition of Catholic anti-Judaism specifically related to the crucifixion of Jesus Christ.21 And besides the vast majority of the American Jews have traditionally been the most ardent supporters (in coalition with mainstream Protestantism) of the American wall of separation between church and state.22 Weiler praised the cultural and constitutional diversity in Europe and underscored that total religious state neutrality had never been the rule in Europe. The duty to respect freedom of and from religion is a common constitutional asset of Europe. But these obligations are also counterbalanced by a considerable liberty for the states as to the presence and visibility of religion in the public square. France has a separationist regime but on the other side of the channel, in England, the Queen is head of the Anglican Church; and prominent church leaders have a seat in the House of Lords. 21   This anti-Judaism was based on the gospels of John: 8:44 and Matthew: 27:25. See also the significance of the ‘improperium’ or ‘reproaches’ of Christ to his people in the traditional Catholic liturgy. 22   This support for public secularism goes no longer without saying, as things are evolving in the US. American anti-Catholicism has lost much of its intensity and new coalitions between growing numbers of evangelicals, fundamentalists, conservative (southern) Baptists, Catholics and orthodox Jews are emerging in favour of state funding for religious schools. Cf. John C. Jeffries, Jr. and James E. Ryan, ‘A Political History of the Establishment Clause’, Public Law and Legal Theory Research Paper Series draft available at .

Limitations of Supranational Jurisdiction, Judicial Restraint  71 The national anthem is a prayer to God to save the Queen, and the cross figures in the flag. If one would adopt the logic of Lautsi I, a display of a picture of the Queen in a public school would have to be prohibited. And this would equally be the case with reading the Irish Constitution in an Irish classroom or the German Constitution in a German classroom, for the preamble of the former refers to the Holy Trinity and to Jesus Christ and the preamble of the latter proclaims that the German People give themselves their Constitution in full awareness of their “responsibility before God”.23 To Weiler such an obligation to become a laïc state would herald a new era of European uniformity and bring an end to its rich and proud constitutional diversity. I agree with Joseph Weiler that this would be regrettable, but I also think that there is no chance whatsoever that such a program of uniformization backed up by the ECtHR would ever succeed because it would never be accepted by the peoples of the states that would be affected by it. In line with the ECLJ-memo, Weiler also underscored the subsidiary nature of the Court’s jurisdiction. Italy has the right to evolve to more laïcité, but it is for the Italians to choose whether they want this or not. The consequence of the Lautsi I ruling is that Italy is obliged to evolve to more laïcité; and that is not a correct interpretation of the Convention. If the peoples of Europe want to let their constitutional systems evolve with regard to the relation between religion and state, they can do so, but it is not for the ECtHR to decide that. As a rhetorical summit of his plea Weiler said that to introduce an obligation to embrace a uniform type of state-church relation throughout Europe, would be an Americanization of Europe that would put an end to the proud European constitutional diversity. Americanization in two respects: firstly by introducing a uniform constitutional arrangement of the relation between religion and the state; and secondly by erecting a rigid separationist stance as a common European obligation. VIII.  The Grand Chamber Ruling It is crystal clear that the Grand Chamber has been profoundly influenced by the central anti-Lautsi I arguments of the different third party interventions that I discussed. The Grand Chamber takes the justified criticism from different parties that the Court is not a constitutional court seriously. To render a 23   The relevant quote in the Irish constitution reads: “In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ…” As for the German Grundgesetz, it starts with “Im Bewusstsein seiner Verantwortung vor Gott und den Menschen … hat sich das Deutsche Volk kraft seiner Verfassungsgebenden Gewalt dieses Grundgesetz gegeben.”

72  Jean-Marc Piret judgement about the compatibility of the crucifix with the Italian constitutional principle of ‘laicità’ is not a task for the European Court. Reading between the lines, this means that the Italian Courts which disagree on the subject should solve this problem themselves and that the Chamber erred when it thought that it was entitled to decide the matter instead of the Italian legal order. Therefore the Grand Chamber holds in Lautsi that “it is not for the Court to take a position regarding a domestic debate among domestic courts” (para. 68). I think that this is a correct assessment, because the Chamber ruling implied a legally unwarranted value judgement about the legitimacy of the Italian constitutional order without clear evidence that the state had violated the rights of the Lautsis, or even worse, that such violations are structurally linked to the Italian constitutional design of state-religion affairs. The Grand Chamber was therefore right when it tightly framed the Lautsi case to the question whether the right of the parents to educate their children in accordance with their own religious or philosophical convictions had been violated, thereby considering Article 2 of Protocol I in matters relating to education as the lex specialis in relation to Article 9 of the Convention. In accordance with the relevant case law the Grand Chamber holds that the setting and planning of the curriculum fall within the competence of the contracting states including the incorporation of religious and philosophical matters, as long as these teachings do not amount to indoctrination or proselytism. The continuation of the tradition to display a religious symbol in the classroom that confers on the country’s majority religion a preponderant visibility in the school environment, falls also within the margin of appreciation of the state on condition that this does not imply a process of indoctrination and does not infringe upon the rights of parents in religious and philosophical matters. In view of the fact that the display of the crucifix did not imply any further compulsory teaching or didactic speech about Christianity; that it does not demand acts of devotion or worship (to the court it is only a “passive symbol”); that the Italian public school environment is open and tolerant to other religions and to nonbelievers; that pupils are free to wear Islamic headscarves and that optional religious education could be organised for other religions, the Grand Chamber concluded that there had been no violation of the relevant rights of the Convention. Although it may not be ruled out that some persons can be offended by the contemplation of the crucifix, it does not appear from the facts that Mrs Lautsi’s children have been emotionally disturbed to a damaging degree or that they have been coerced into a belief or a conviction which they or their parents did not chose themselves. As Judge Rozakis pertinently added in his concurring opinion, even if the display of the crucifix objectively affects neutrality and impartiality, the core question is whether in the present case it does so to an extend that justifies the finding of a breach of the Convention. In that regard

Limitations of Supranational Jurisdiction, Judicial Restraint  73 Judge Power rightly remarks in her concurring opinion that the test under Article 9 is not whether something is subjectively perceived as “offensive”, but whether someone is coerced into a belief that violates his or her freedom of conscience or whether she or he has been actively hindered in his freedom of religion. IX.  Of ‘Strong’ v. ‘Passive’ Symbols One could wonder why the mandatory crucifix in the Italian public school is qualified as a “passive symbol” while in other cases, the Islamic headscarf of Mrs Sahin,24 or even better, the headscarf of Mrs Dahlab,25 who was a teacher in a Swiss public school, was qualified by the Court as a strong religious symbol. But I am afraid that this question is misleading because it suggests that the state and the classroom walls have more rights to religious freedom than the teacher or the pupils in the classroom, and that is a fallacious comparison. What should be compared are two types of restriction of human rights and the different contexts in which they occur: the restriction of the positive religious freedom of Mrs Dahlab who was not allowed to wear an Islamic headscarf by the authorities of the Canton of Geneva and the restriction of the negative religious freedom (freedom from religion) of the Lautsis who claimed the right not to be confronted with the core symbol of the majority religion, by the Italian state. All too often cases are compared in an abstract manner, without taking into account all the relevant circumstances and differences. Such an abstract comparison easily leads to false conclusions. In the Dahlab case the teacher was subject to the duty of neutrality of teachers in public schools during school time. In Switzerland the Cantons are autonomous to choose their own regime of relations between the authorities and religion. There are Cantons with an official cantonal church (‘Landeskirche’), cantons which officially recognize religions (mostly Catholic and Reformed Evangelical and sometimes also the Jewish religion) and finally also two cantons which have opted for a separationist regime, Neuchatel and Geneva. Since 1907 the Canton of Geneva, where Mrs Dahlab was a teacher, had chosen very decisively for a separation between church and state and a confessionally neutral public education system.26 The Court took also into consideration that Mrs Dahlab taught very   Leyla Sahin v. Turkey, supra note 14.   Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, No. 42393/98. 26   From Article 164 et seq. of the Constitution of Canton of Geneva follows a clear separation between church and state and a prohibition to finance churches or religions with public money. Cf. . The duty of confessional neutrality of public education is derived from Art. 6 of the law on Public Education. Cf. . 24 25

74  Jean-Marc Piret young children and held that in view of all these facts, the judgement that the duty of neutrality trumped Mrs Dahlab’s freedom of religion lies within the margin of appreciation of the competent Swiss authorities. Yet the Lautsi case is different. Here the Italian authorities and the domestic administrative courts only judged that the negative religious freedom of the Lautsis did not trump the right of the Italian state to display the core symbol of the majority religion in public schools. This decision was reached also in view of the constitutionally enshrined historical significance of Catholicism in Italy and it was all the more justified since the positive freedom of religion of the Lautsis was not hindered in any way. The Italian state is willing to respect religious freedom and freedom of conscience, but not in a way that stretches confessional neutrality to its utmost consequences. In my opinion the Grand Chamber correctly decided that this choice falls within the margin of appreciation of the state as there is no ground under the Convention to oblige a party to embrace radical state neutrality which equates to a regime of laïcité. The Convention warrants freedom of religion and freedom of conscience and the duty of state neutrality is only a derivation thereof. But the extension of state neutrality to its utmost consequences is not the logical complement of the Convention rights. X.  The ECtHR Is Not the Supreme Court of Europe We already saw that Lautsi I is not in accordance with the relevant case law of the European Court. On the other hand, when we compare these cases with Folgerø and Zengin, we should not stifle the fact that in both cases the defendant states were found in breach of the Convention because there was no sound exemption arrangement. In Italian public schools though, there is no exemption or escape from the visible presence of the crucifix. But as the Grand Chamber correctly argues: there is a big difference between “teaching” and the contemplation of a symbol without any explanation as to its actual significance. Nevertheless the absence of any escape route was also the reason why the German Constitutional Court found the regulations concerning the mandatory display of a crucifix in the classrooms of Bavarian state schools in violation with the principle of religious neutrality derived from the federal German constitution.27 But this particularly highlights also the difference with Lautsi I: the ECtHR has not a role that can be compared to the German Bundesverfassungsgericht. It is not a constitutional Court that has jurisdiction to check whether the Italian regulations about the crucifix violate Italian constitutional principles. Neither does it have jurisdiction to ‘derive’ a principle of   Kruzifix, BVerfGE 93, 1 [16 May 1995].

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Limitations of Supranational Jurisdiction, Judicial Restraint  75 consistent state neutrality from the Convention in an analogous manner as the Bundesverfassungsgericht derived this principle from the Federal German Constitution. And yet the Chamber found the crucifix inherently a strong religious symbol that objectively violated the pupils’ entitlement to negative freedom of conscience (freedom from religion) and the parents’ liberty of education. With this interpretation the Court denied the state’s competence to give a stipulative definition of the significance of the crucifix, the plausibility of which could have been tested by the Court by checking all the accessory claims of the government about the religious ‘passivity’ of the symbol and its strength in sending a signal of openness and tolerance. In doing so the Chamber not only denied that this power to define was the prerogative of democratic state power, but it arrogated the power to define the significance of the crucifix for itself and thereby it acted as if it were a Constitutional Court. Of course the Chamber only ventured itself into constitutional high ground because the Italian Constitutional Court had derived the principle of denominational state neutrality as a fundamental principle of the Italian Constitution and the penal division of the Court of Cassation had ruled that the crucifix infringed the principle of laicità and the impartiality of the state and that it constituted a violation of the freedom of conscience of those who did not accept that symbol. But this line of interpretation was blatantly contradicted by the Italian administrative jurisdiction, which was more or less in line with the crucifix-theory presented by the government and went even further by asserting that the crucifix inter alia symbolized all that was implied by the concept of laicità. As I already mentioned, I do not think that this substantive interpretation by the Italian administrative courts has much credibility (and neither did the Chamber). But that leaves untouched that the administrative courts had jurisdiction to decide this case and that they stuck to their interpretation. In that light it was a bridge too far for the Chamber to decide which line of interpretation was the right one in a dispute amongst domestic courts, especially since the Constitutional Court had declared itself incompetent in the Lautsi case because the regulations imposing the display of the crucifix had not the status of a formal law. In doing so the Constitutional Court had indicated implicitly that the administrative Courts were the competent jurisdiction as long as the legislator had not enacted a formal law that settled the matter of the crucifix and that could have been subjected to a control of constitutionality. And hence it is not the credibility of the administrative rulings on the substantive level (or the lack thereof) that is most important. What is important here is the question: who is competent? Is it the Italian administrative jurisdiction as the decision of the Constitutional Court implied? Or is it legitimate for the ECtHR to settle the matter in a manner that did not restrict itself to the tightly framed question whether the rights of the Lautsis had been violated, but that

76  Jean-Marc Piret contained also a judgment about the significance of the crucifix in the public school environment that denied the prerogative of the state to define what the significance of that symbol was? Let me try to answer the question by making a comparison. In 1989 the US Supreme Court ruled that the County of Allegheny had violated the First Amendment’s Establishment Clause because it had allowed a Roman Catholic society to display a crèche representing a nativity scene on the grand staircase of the County Courthouse in downtown Pittsburg. The Court held that the question whether a symbol has a predominantly religious significance depends on the specific setting. The crèche included “figures of the infant Jesus, Mary, Joseph, farm animals, shepherds, and wise men all placed in or before a wooden representation of a manger, which has at its crest an angel bearing a banner that proclaims Gloria in Excelsis Deo!”.28 This praise to God was judged to be indisputably religious, even sectarian, “just as it is when said in the gospel or in a church service”. Nothing in the context of the display distracted from the religious significance of the crèche in opposition to another case where the Court considered that the crèche, which was mixed with secular symbols, had a legitimate secular purpose within the context of a holiday display meant to celebrate the season and the origins of Christmas, which was considered to be a part of Western culture.29 By permitting the display of the crèche on the grand stairway, the most impressive part of a building that is the seat of county government, an unmistakable message in support of the Christian praise to God was sent to the public. As the Establishment Clause of the First Amendment to the US Constitution means at the very least that government may not demonstrate an endorsement or a disapproval of one particular creed including a preference for Christianity over other religions, the display of the crèche was unconstitutional (5–4). In the same ruling, a different majority (6–3) held that the display of a large Christmas tree in combination with a menorah and a sign saluting liberty did not violate the Establishment Clause because the specific setting of these objects could not likely be perceived as an “endorsement” or a “disapproval” of particular religious beliefs and “must be understood as conveying the city’s secular recognition of different traditions for celebrating the winter-holiday season”.30 The difference between the unconstitutional display of the crèche and the constitutional display of the three other symbols depended on a casuistic finding based on all the contextual elements of the specific setting. But the Justices strongly disagreed about the finding. Four of them found that both displays 28   County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 [1989], opinion of the Court written by Justice Blackmun. 29   Lynch v. Donnelly, 465 U.S. 668 [1984]. 30   County of Allegheny v. American Civil Liberties Union, supra note 28.

Limitations of Supranational Jurisdiction, Judicial Restraint  77 were constitutional. Three Justices found both displays were unconstitutional. The whole outcome of the case, including the different legal qualification of the two displays was largely dependent on two justices who found the crèche unconstitutional and the group of symbols with the menorah constitutional. This shows that not only reasonable citizens but even highly educated legal professionals can profoundly disagree as to the meaning of ‘religious’ symbols in a specific context. In so far there is not so much difference with the Lautsi case where the meaning of the crucifix as a predominantly religious symbol capable of carrying also certain secular meanings, was highly disputed. However, the true difference between these US Establishment Clause cases and Lautsi I, is that the legitimacy and jurisdiction of the Supreme Court, as divided as this Court sometimes can be, and as divided as it was in the case of the crèche v. the menorah group, were never seriously disputed. The same cannot be said about the ECtHR after Lautsi I. Why that difference? As Lord Hoffmann so pertinently argued in his speech about The Universality of Human Rights, the main reason for the great respect that the Supreme Court enjoys in the US is that it has constitutional legitimacy.31 It is an “American Court, created by the Constitution, appointed by the President, confirmed by the Senate, an essential and historic part of the community which they serve.”32 They have a special constitutional legitimacy to interpret the meaning and the scope of application of the US Bill of Rights. For human rights may be universal on the abstract level, but they are national in their application, because when they are confronted with “the messy detail of concrete problems … their application requires trade-offs and compromises, exercises of judgment which can be made only in the context of a given society and its legal system”.33 The ECtHR lacks this level of legitimacy, as it is not the Constitutional Court of the United States of Europe. The fact that 47 states adhere to an identical codification of human rights does not mean that they agreed to have all the same penal procedures; the same asylum procedures or the same constitutional arrangements regarding the relation between religion and the state. And that implies that the application of the abstract human rights can differ between states without such being a violation of the Convention. The Strasbourg Court has no mandate to unify the many national laws of the member states of the Council of Europe that have human rights implications, or to lay down a federal law of Europe by means of judicial human rights activism.34 The ECtHR should restrict itself to the role of a guardian who watches over the serious 31   Cf. Lord Hoffmann, ‘The Universality of Human Rights’, speech available at< http://www .judiciary.gov.uk/Resources/JCO/Documents/Speeches/Hoffmann_2009_JSB_Annual _Lecture_Universality_of_Human_Rights.pdf>. 32   Ibid., at 8. 33  Idem. 34   Ibid., at 12

78  Jean-Marc Piret human rights abuses, rather than arrogating itself the right to replace elected governments and domestic courts in the job of meticulously balancing the rights of individuals or minorities against legitimate countervailing interests. Striking examples of a Court “unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States”35 have been given, not only by Lord Hoffmann, but also by Marc Bossuyt, the actual president of the Belgian Constitutional Court.36 Lord Hoffmann gives another important reason why the ECtHR lacks this constitutional legitimacy and hence should be very cautious in extending its tendency toward judicial lawmaking: “The court now has 47 judges, one for each member state of the Council of Europe. One country, one judge; so that Liechtenstein, San Marino, Monaco and Andorra, which have a combined population slightly less than that of the London Borough of Islington, have four judges and Russia, with a population of 140 million, has one judge. The judges are elected by a sub-Committee of the Council of Europe’s Parliamentary Assembly, which consists of 18 members chaired by a Latvian politician, on which the UK representatives are a Labour politician with a trade union background and no legal qualifications and a Conservative politician who was called to the Bar in 1972 but so far as I know has never practised. They choose from lists of 3 drawn by the governments of the 47 members in a manner which is totally opaque.”37 An international Court composed in such a manner and lacking constitutional legitimacy is arrogating itself the role under the Convention to decide whether the government of the UK had struck the right balance between the interests of the local residents and the economic interests of the country concerning night flights at Heathrow.38 This is only one of the examples given by Lord Hoffmann. He is perfectly right to think that this is ludicrous. As if the elected government from a country that has integrated the ECHR in its constitutional framework through the UK Human Rights Act (1998), and whose decisions are checked by the domestic courts, could not decide this for itself. The research of Marc Bossuyt shows that the Strasbourg Court also regularly walks on “thin ice”39 in asylum cases. Instead of exercising a ‘marginal   Ibid., at 14.  Bossuyt is also former Chairperson of the UN Human Rights Commission. Cf. Marc Bossuyt, Strasbourg et les Demandeurs d’Asile: des Juges sur un Terrain Glissant (Brussels: Bruylant, 2010); and Marc Bossuyt, ‘Judges on Thin Ice: The European Court of Human Rights and the Treatment of Asylum Seekers’, 1–2 Inter-American and European Human Rights Journal (2010), pp. 3–48. 37  Hoffmann, supra note 31, at 23. 38   Hatton and others v. United Kingdom, 8 July 2003, European Court of Human Rights (GC), No. 36022/97. 39  Bossuyt borrows that expression from Wilhelmina Thomassen, the former Strasbourg judge of the Netherlands who used it to qualify the subjective character of the Court’s 35 36

Limitations of Supranational Jurisdiction, Judicial Restraint  79 review’ of the decisions of the competent national authorities, limiting itself to check whether national legislation and decisions of highest domestic courts are not manifestly unreasonable or in clear violation of Convention rights, the Court “goes very far in re-examining the merits of asylum applications, including the credibility of the applicants”.40 In operating this way the Court empowers itself not only to function as an international Court which controls whether the domestic legislation and procedures are in conformity with the Convention, but also as a Court of Appeals re-examining the substantive content of asylum cases, as a Court of Cassation assessing whether the domestic law has been correctly applied and as an interim injunction judge deciding provisional measures.41 No domestic Court is capable of cumulating all these functions, but the Strasbourg Court thinks she can. To paraphrase Lord Hoffmann: what grandeur to combine the legislative power to decree the content of the European public order with the attention to detail of the judge of fact confronting himself with the messy detail of concrete cases! It is however out of the question that the state parties had ever the intention to entrust the Court with such herculean judicial powers. In view of these facts, it is hardly surprising that the legitimacy of the Court is eroding, as the ongoing actual discussion in the UK, in the Netherlands and elsewhere shows. The member states of the Council of Europe all recognize the jurisdiction of the Court in all matters concerning the interpretation and application of the Convention and Article 32 provides that the Court is itself competent to decide whether or not it has jurisdiction over a case whenever a dispute should arise about that issue. This is far reaching because it means that the Court itself and not the state parties decide whether the Court is competent in any case pertaining to human rights. However, that does not imply that the state parties have surrendered their legislative sovereignty in a multitude of matters pertaining to human rights to the Strasbourg Court. They remain independent nations with their own legal system and the competence to wield their power of self-government and to let their own judicial bodies check these powers. In spite of that, the ECtHR on numerous occasions has lost sight of the subsidiary assessment of the reliability of the account given by asylum seekers. Cf. Concurring opinion of W. Thomassen to Said v. Netherlands (reference by Bossuyt, supra note 36. ‘Judges on Thin Ice’). 40  Bossuyt, supra note 36 (‘Judges on Thin Ice’), at p. 47, writes that “the situation becomes untenable if respect for the Convention would require that remedies exercised against the expulsion measure would suppose a re-examination of the political situation in the country of origin. The alleged new developments should not be examined by the instance of remedy against the expulsion measure but in the framework of a new application before the body competent on the merits. If the domestic legal system does not anticipate highly accelerated and shortened procedures in case so-called ‘new’ applications are submitted successively by the same person, those allegations will trigger a ‘carrousel’ phenomenon which would prevent any decision from ever becoming enforceable and thus from ever being enforced.” 41   Ibid., p. 47.

80  Jean-Marc Piret nature of its jurisdiction and has not taken the doctrine of the margin of appreciation nearly far enough. With regard to this doctrine, the Court often refers to the argument that in matters of expediency (and within the limits of the Convention) deference to the national authorities has to be granted because they are better placed to have an intimate knowledge of the problems, needs and sensitivities of their own society. But as Lord Hoffmann pertinently points out, in this way the Court treats the margin as a matter of concession to a member state; it abstains itself from exercising its vast jurisdiction over any matter pertaining to human rights when it thinks that the local political and judicial authorities are better equipped to do so. In addition, the argument in favour of deference should be premised on the lack of constitutional legitimacy: the European Court has no right to intervene in matters on which a member state has not surrendered its sovereign legislative powers. In the words of Lord Hoffmann, “[e]ven if the Strasbourg judges were omniscient, knowing the true interests of the people of the United Kingdom better than we do ourselves, it would still be constitutionally inappropriate for decisions of the kind which I have been discussing to be made by a foreign court.”42 XI.  Judicial Restraint, Subsidiarity and the Nature of Treaty Law Some have stigmatised the Grand Chamber ruling in Lautsi as a capitulation of the Court for a “Holy Alliance” against Lautsi I and in favour of a “rechristianisation” of Europe.43 This alliance unites Catholics, Orthodox Christians, and according to some there is even a connection with fundamentalist American evangelicals through the relations between the ECLJ and its American equivalent, the American Centre of Law and Justice, a very active conservative Christian pro-life law firm often acting as the opponent of the well known American Civil Liberties Union (ACLU) in filing Amicus Curiae briefs on the occasion of cases that have to be decided by the Supreme Court.44 Even if there can be no doubt that these ad hoc coalitions have been active in the Lautsi case, there is however no reason to believe in an obscure conspiracy initiated for the purpose of starting a new crusade against public secularism and in favour of a new Christian theocracy. The precarious unity of all these different Christian churches and interest groups was not so much in favour of the mandatory   Lord Hoffmann, supra note 31, at 26.   See for example the press release from the Brussels Centre d’Action Laïque, available at which speaks of a “holy alliance” between Armenia, Malta, Lithuania, San Marino, Monaco, Russia, Greece, Bulgaria, Romania en Cyprus. 44   Cf. Pasquale Annichino, ‘Winning the Battle by Losing the War: The Lautsi Case and the Holy Alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to Reshape European Identity’, 6 Religion & Human Rights (2011), pp. 213–219. 42 43

Limitations of Supranational Jurisdiction, Judicial Restraint  81 Catholic crucifix (which some protestant denominations taking the sola scriptura rule strictly, reject as blasphemous by the way) but it was predominantly directed against what was interpreted as a court ruling that could be the beginning of an aggressive secularist judicial policy resulting in the purge of all kinds of public manifestations of religion in Europe. I think that this is an overreaction, for it was certainly not the intention of the Chamber, presided over by Judge Tulkens, to erase all things religious from the public square no matter what the context of their appearance is. Nevertheless its ruling rested on the erroneous assumption that there is a wide European consensus on the obligation to adopt a robust separationist stance. The reasoning in Lautsi I understands separationism and public secularism as a common European asset, which is obviously false. Recently I was kindly invited to attend a seminar where Françoise Tulkens held a lecture on the subject of the impartiality of the state after Lautsi II. The seminar was organised by The Perelman Institute of Philosophy of Law and the Institute of European Studies (at the Université Libre de Bruxelles) in cooperation with the Centre d’Action Laïque. Something struck me in the statement of Tulkens. She persisted in the affirmation that until Lautsi II there had been a consensus (she did not say a ‘European’ consensus, but a consensus within the ECtHR) about the “principle of laïcité” and about the duty to state neutrality. When she explained what she referred to as “laïcité”, it appeared to be a plurality of things, some of which are accepted principles under the Convention, but not all of them are. She mentioned the freedom of and from religion; respect for pluralism in education; respect for the convictions of the parents, and also the duty of impartiality and neutrality. But the problem is that the ‘robust’ concept of state neutrality understood as a requisite to achieving impartiality as it is developed in Lautsi I, is tending toward the concept of laïcité as it is understood in France where it is enshrined in the constitution and where it implies a clear separation between religion and the state. That is not a constitutional arrangement about which there is a consensus in Europe, to say the least. Quite to the contrary, laïcité in that meaning is clearly a minority position in Europe. In many European countries including Belgium, the Netherlands, Germany or England, the plea in favour of such a robust separationist stance is also a (perfectly legitimate) militant position, an ideological choice of citizens who want that in their country religion and the state become less entangled and that the state stops any funding that directly or indirectly serves the advancement of religion. And in that militant sense the separationist position is not neutral, as Joseph Weiler and the ECLJ rightly underscored. Judge Tulkens seems also rather critical about the margin of appreciation doctrine.45 She points out that 45   Cf. F. Tulkens and L. Donnay, ‘L’Usage de la Marge d’Appréciation par la Cour Européenne des Droits de l’Homme : Paravent Juridique Superflu ou Mécanisme Indispensable par Nature?’,

82  Jean-Marc Piret this doctrine could possibly result in lower standards of human rights protection and in a “de jure and de facto abdication of the responsibility of the judge”.46 In her Brussels statement Tulkens made an interesting distinction in that respect between a doctrine of judicial construction trying to influence the factual level of consensus starting from a strong normative rights conception and an alternative doctrine which does the opposite and accepts a wide margin of appreciation for the states when the question at hand is controversial in Europe. The first position, which I will call ‘activist’, assigns normative priority to (a civil libertarian interpretation of) human rights principles. When state practice does not conform to this ideal, it should be sanctioned and reformed.47 That position is symptomatic of the way some judges and legal academics specialised in human rights think. They do not think politically even in political matters. Or more accurately, they are in denial that certain legal matters are also highly political and they especially do not want to admit that their own legal thinking about these matters has political consequences, even if it obviously has. The consequence is that they are inclined not to defer the political judgements to the competent and democratically accountable bodies, as they should. They rather conceal their own political judgements behind highly 1 Revue de Science Criminelle et de Droit Pénal Comparé (2006), pp. 3–23. The authors write that they are “neither allergic nor particularly enthusiast disciples of the margin of appreciation” (at p. 3 – my translation). In fact they are more critical than neutral in regard to the doctrine of the margin of appreciation. To them it “should and cannot be used or conceived as a method to spare national sovereignty” (at p. 15 – my translation). But is not national sovereignty another word for democratic self-determination (at least in the free world)? Although they admit this when summarizing the “advantages and disadvantages” of the doctrine (at pp. 20–22), it is obvious that there is more criticism than there is praise in their assessment of the margin of appreciation. They deplore that the margin leads to legal insecurity and they cite the partly dissenting opinion of the Belgian Judge in Z. v. Finland, 25 February 1997, European Court of Human rights, No. 22009/93. In this opinion De Meyer formulates a scathing disapproval of the margin of appreciation doctrine, which should be “banished” from the reasoning of the Court and “abandoned without delay” because it is characteristic for legal relativism incompatible with human rights. When human rights are concerned, “it is for the Court, not each state individually” to decide what is the precise boundary not to be overstepped, and “the Court’s views must apply to everyone within the jurisdiction of each state”. This is the kind of absolutist ‘rights talk’ of which the self-aggrandizement of the Court is made. It is unable to acknowledge that the application of human rights in a concrete context always requires trade-offs and compromises, prudent exercises of judgment and balancing of different legitimate interests which can be achieved only in the context of a specific society and its legal system. This type of thinking could potentially lead to a regime that is even more unaccountable than a ‘gouvernement des juges constitutionnels’. 46   Tulkens and Donnay, ibid., at p. 22. 47   According to G. Letsas that position is developed by Judge Rozakis in several of his separate opinions. Cf. G. Letsas, ‘Judge Rozakis’s Separate Opinions and the Strasbourg Dilemma’, 2011, paper available at . According to Letsas, Judge Rozakis tries to “steer the Court away from consensus and the margin of appreciation, away from judicial formalism and deference, towards the systematic development, through its case law, of substantive constitutional principles for the whole of Europe.” Yet in Lautsi II Rozakis concurred with the majority because he considered that the human rights interference was not of an intensity that constituted a violation of the Convention.

Limitations of Supranational Jurisdiction, Judicial Restraint  83 sophisticated ‘rights talk’. They achieve this by reasoning out of a frame of reference where rights naturally trump the majority will expressed through the legislator. To put it in a slightly exaggerated way: countermajoritarianism is their credo. But this countermajoritairianism is denying its political nature behind a façade of a self-declared ‘highly principled’ ‘rights-based constitutionalism’ that should be upheld according to the activists regardless of political dissensus amongst the European countries.48 Now let there be no misunderstanding about this: of course the curtailing of the will of majorities is inherently linked to the protection of human rights and it is to the credit of judges when they courageously issue these countermajoritarian judgements each time when it is necessary and legitimate under the Convention. But sometimes activists tend to forget that this is not always necessary and that individuals or minorities are not necessarily always right, however noble their protection may be in many cases. There is even a more important reason why the heralds of countermajoritarian “rights-based constitutionalism” would be well advised to exercise a little bit more self-restraint. And that is the plain fact that there is no basis in international law to invent new rights and obligations that are too far removed from the basic meaning of the wording of the Convention, especially when there is no consensus about these alleged rights and obligations among the state parties. In such cases when the rights of individuals are restricted in a modest way on the ground of legitimate countervailing interests, a policy of judicial activism that tramples on the will of the majority is not only unwarranted by the Convention, it is also not in the interest of the Court, for it will undermine its legitimacy. Especially when it comes to the assessment of constitutional arrangements and legal rules that are based on national customs or that are the result of painful political compromising, the Court should take an attitude of judicial restraint. It should then restrict itself to a modest role of a linesman who controls whether the state not crosses the lower limit of human rights protection in the light of the relevant criteria for assessing the acceptability of human rights restrictions (legality, proportionality, necessity in a democratic society in order to guarantee the rights of others or to maintain public order, security, etc.). The doctrine of the margin of appreciation is not only a pragmatic instrument of deference to the state authorities in matters of expediency, when the local authorities are better equipped to acquire knowledge of the needs of the society and in order for the Court to avoid too much protest and the 48   Cf., for example, G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007); Susanna Mancini, ‘The Crucifix Rage: Supranational Constitutionalism Bumps against the Counter-Majoritarian Difficulty’, European Constitutional Law Review (2010), pp. 6–27.

84  Jean-Marc Piret concomitant loss of legitimacy. In my opinion it is also a doctrine that should be embraced for normative reasons. The role of the supranational jurisdictional sovereign, who dictates uniform arrangements to states which do not want them, does not fit the Court. The subsidiary nature of the jurisdiction of the Court is twofold. It should not only respect the priority of the national constitutional and legislative bodies, it should also defer to the domestic highest and constitutional courts when it comes to determining the specific ways in which the Convention rights are enforced within the national legal order. The greater the constitutional and political diversity throughout Europe is, the wider the margin of appreciation will have to be. And pace the Chamber in Lautsi I, to understand this, one has not even to think politically. For the reason why the ECtHR should not try to introduce new rights and obligations when the factual situation among the members of the Council of Europe is one of profound pluralism, is also genuinely legal. It is legal and political because it is related to the very nature of treaty law. Setting aside some rules of ius cogens (of which the content and the scope are to a certain extent controversial), it is a fundamental principle of positive international law that states can only be bound by the rules they explicitly accepted and consented to in treaty provisions. Countries can also be bound through state practice leading to the development of customary international law. Yet they can also contract out of certain developing rules of customary international law by their express and consistent opposition to the formation of these rules. This is because customary international law is itself a derivation of factual state practice. If states do not accept certain treaty provisions and expressly dissociate themselves from the formation of certain rules of customary international law, they stay outside the binding normative regime of these rules (again, except for ius cogens and the Martens Clause which draw the line of minimal standards of civilized conduct49). Hence the binding force of a treaty is by all means conditional on the prior consent of the state. Treaty law is consensual law and that is the normative reason why the absence of consensus should steer the ECtHR toward deference and recognition of a wide margin of appreciation for the national authorities. Over the years the Court has consistently held that the Convention should be interpreted as a ‘living instrument’ which implies that the content and the scope of the Convention rights can evolve, as they have to be interpreted under ‘present day conditions’. The need for a certain level of interpretive openness follows also from the abstract and broad formulation of the rights and the concepts in the substantive provisions of the Convention. It is clear that the

49  For that reason there is also no possibility of balancing the rights guaranteed under Article 3 of the ECHR (the right not to be tortured).

Limitations of Supranational Jurisdiction, Judicial Restraint  85 right to privacy for example has much wider ramifications in our era of internet and cyberspace than at the time the Convention was drafted. To take another example, the meaning of concepts such as “cruel punishment” and “torture” has evolved as the general public has become more sensitive to all kinds of physical and mental abuse of persons by state officials. Therefore it is not surprising that the Court recognises increasingly high standards in the area of protecting essential human rights and fundamental freedoms.50 The Court has also been creative in the development of the doctrine of “positive obligations” as these are an implication of Article 1 of the Convention. But the Court also recognizes that there are limits to the ‘evolutive’ interpretation of the Convention.51 In matters about which there are profound differences of opinion between the member states an authoritative Court such as the ECtHR that has been set up to give a binding interpretation of the European Convention cannot exceed its own jurisdiction by giving interpretations of human rights which are not clearly warranted by the wording of the treaty and which are rejected by some of the state parties because they constitute a de facto amendment of the Convention which they not only did not choose, but which they reject.52 Therefore the interpretive activity of the Court should have a modest character of judicial restraint with regard to matters about which there is a plurality of legitimate options and no consensus amongst the members of the Council of Europe. And even if there is a growing consensus, that may not be enough to legitimately override the will of some dissenter states when the matter at stake is delicate and rooted in deep moral convictions of a people. Accordingly, the interpretive activity of the Court cannot legitimately have a character of judicial activism that brings the Court to outpace the states by promulgating new obligations that have no basis in the text of the treaty and that lack support in some of the member states. Such an unwarranted amendment of the 50   Selmouni v. France, 28 July 1999, European Court of Human Rights, No. 25803/94. For other examples of rising standards of human rights protection under the Convention, see J.-P. Costa, ‘On the Legitimacy of the European Court of Human Rights’ Judgments,’ 7(2) European Constitutional Law Review (2011), pp. 173–182. 51   In 1986 (Johnston et al. v. Ireland, 18 December 1986, European Court of Human Rights, No. 9697/82) the Court declined to read a right to divorce into the Convention. In 2002 the Court refused to read a right to assisted suicide into the Convention, even if it recognized the right to individual self-determination under Article 8 (Pretty v. UK, 29 April 2002, European Court of Human Rights, No. 2346/02). In 2010 the Court denied that a right to marry for homosexual couples could be read into Article 12 of the Convention and held that this should be left to regulation by the state (Shalk and Kopf v. Austria, 24 June 2010, European Court of Human Rights, No. 30141/04). Cf. Costa, idem. 52   As a general rule of interpretation, Article 31(1) of the Vienna Convention on the Law of Treaties provides that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. A special meaning shall only be given to a term “if it is established that the parties so intended” (ibid., Article 31, para. 4).

86  Jean-Marc Piret Convention by means of activist human rights interpretation constitutes a fundamental criticism and even a censure of the domestic constitutional order of one of the member states and an indirect rejection of the principle of democracy within that state. In order to avoid this, the Court should restrict itself in that type of situations to providing minimum standards of human rights protection. The majority of the members of the Council of Europe had already settled constitutional arrangements concerning the relations between religion and state before they acceded to the treaty. And even if their constitutional frameworks may evolve over time, certainly none of the member states had the intention of putting their pre-existent national traditions and constitutional models at the free disposition of the Strasbourg Court. In ruling that the public school environment in Italy should be entirely secular and devoid of all religious symbolism, the Chamber exceeded its jurisdiction. In view of these considerations Lautsi II is not a ruling wherein the court capitulates for a ‘holy alliance’ of new ecumenical Christian crusaders, as some suggest. It seems much more accurate to see it as a landmark ruling where the Court reaffirms the limitations and the subsidiary nature of its jurisdiction. The impression that Lautsi II might be illustrative for a new trend seems to be confirmed by at least two other recent rulings of the Court that grant a wide margin of appreciation to the states: A. B. and C. v. Ireland (2010) and S.H. and others v. Austria (2011).53 In the first case the Court denies that the Irish prohibition of abortion constitutes a violation of the right to private and family life under the Convention (Article 8). Here the Court even went a step further than in Lautsi II. For it held that a broad margin of appreciation is to be accorded to the Irish state in determining the right balance between the protection of profound moral values (including the protection of unborn life) and the right to private life under Article 8. The Court granted that wide margin of appreciation regardless of the fact that it recognized the existence of a growing European consensus towards allowing abortion on broader grounds. This confirms the point about the nature of treaty law that I am trying to make here: with their accession to the Convention the Irish never agreed to an understanding of the right to privacy or family life that would imply a right to abortion, which they have always rejected. And it is not for the Court to bully them into the acceptation of such a ‘right’ (even if I personally think that the Irish law on abortion is archaic). Together with four other judges, Rozakis and Tulkens dissented on the ground that the growing European consensus on the

53   A. B. and C. v. Ireland, 16 December 2010, European Court of Human Rights (GC), No 25579/05; and S.H. and others v. Austria, 3 November 2011, European Court of Human Rights (GC), No. 57813/00.

Limitations of Supranational Jurisdiction, Judicial Restraint  87 right to abortion overrides the right of the Irish to legislate otherwise. The fact that under Irish law there is still a possibility to lawfully travel abroad for abortion is not an excuse for the dissenters. I think that the argument about the overriding consensus is unacceptable in this case, because it implies that the Irish people would have surrendered their legislative sovereignty on abortion by signing a treaty containing not a single word on that matter. The dissenting judges erroneously think that the ECtHR is mandated to act as if it were the Constitutional Court of Europe, empowered to declare ‘unconstitutional’ the Irish anti-abortion legislation in a way analogous to what the US Supreme Court did in Roe v. Wade. Of course I am not contending that Rozakis, Tulkens (and the other dissenting judges) do not know that the ECtHR is not a Constitutional Court.54 What I am arguing is that their doctrine of judicial construction, which is in favour of a strong normative interpretation of the Convention rights, has ‘activist’ consequences. And that may be a doctrine that suits a constitutional Court such as the US Supreme Court55 but not the ECtHR, whose jurisdiction ensues from a treaty that has not mandated the Court to such activist judicial lawmaking. I think that the activist temptation is drawing on a misleading language that has been increasingly used by scholars in international law. And that is the language about the “European constitutional order”. This language may be justified to a certain extent when speaking of the incremental process of integration of the European Union. And even in that case one should be cautious, as there may potentially rise serious conflicts between EU norms and national constitutional norms, as was exemplified by the ruling on the treaty of Lisbon by the German Constitutional Court.56 But the concept of a “European constitutional order” is inappropriate when we speak about the Council of Europe which is immensely far removed from being a United States of Europe. The Council of Europe may be qualified as an association of states that aspire to be a community of shared values which are embodied in the Convention. But the plain fact that the Committee of Ministers has been entrusted with supervising the execution of the judgements of the ECtHR demonstrates that the Convention system is ultimately a joint political project of the state parties where the Court has an important but subsidiary role.

54   See for example F. Tulkens, ‘The ECHR and Church-State Relations: Pluralism vs. Pluralism’, 30:6 Cardozo Law Review (2009), at p. 2576. 55   Even that is highly controversial though, and in that respect Roe v. Wade, 410 U.S. 113 [1973], is an excellent example. 56   Bundesverfassungsgericht, 30 June 2009, 2BvE 2/08; J.-M. Piret, ‘Soevereiniteit in Tijden van Internationalisering: Rehabilitatie van een Verguisd Concept’, in M.-C. Foblets et al (eds.), Liber Amicorum René Foqué (The Hague: Boom Juridische Uitgevers, 2012), pp. 421–438.

88  Jean-Marc Piret XII. Conclusion Rather than a Europe-wide offensive of rechristianisation that is going to crush dissenters, agnostics and atheists, Lautsi II has everything to do with a reframing of the scope of jurisdiction of the Court to more realist and modest proportions. With this readjustment the default position in controversial affairs will become judicial restraint and deference to the national legal order, as it should be when there are no grave human rights violations at issue.57 Such a limitation of jurisdiction has nothing to do with being for or against Christianity because tomorrow it can be just as well invoked to let the French government defend and maintain its robust version of public secularism. Ronald Dworkin once drew a distinction between two types of judicial restraint: political scepticism and deference.58 The first denies that individuals have moral rights against the state beyond what is expressly granted to them in the Constitution. The theory of judicial deference assumes that citizens do have such moral rights beyond what the law expressly grants them, but it points out that the character and scope of these rights are debatable and argues that sometimes political institutions rather than courts are competent for deciding which rights should be enforced against the majority and at what cost. When taking this distinction of Dworkin as a reference, my position is not the sceptic one and neither the activist, but the position in favour of deference. As I already mentioned, I think that individuals have rights against the majority and as a general rule “decisions about rights against the majority are not issues that in fairness ought to be left to the majority”.59 Hence courageous countermajoritarianism is regularly needed in human rights protection. But one should thereby also take into account the nature of the right at stake, the level of seriousness and intensity of a restriction and the reasons for that restriction. That is where the theory of deference comes into play. The case at hand concerned a restriction of the negative right to freedom of conscience (freedom from religion) through the traditional display of the core symbol of the majority religion in public schools, a tradition that is intrinsically linked with the preservation of cultural heritage and collective identity. A maximalist interpretation of the right to freedom from religion that amounts to a claim to be spared at any time of the contemplation of exterior manifestations of the majority religion, even when one is not coerced in words or deeds to embrace 57   For a plea in favour of deferential judicial review and the margin of appreciation as general instruments for preventing conflicts between different levels of jurisdiction, see J. Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, 17:1 European Law Journal (2011), pp. 80–120. 58  Ronald Dworkin, Taking Rights Seriously (London: Duckworth & Co, 1987 edition), at p. 138. 59   Ibid., at p. 142.

Limitations of Supranational Jurisdiction, Judicial Restraint  89 that religion and stays otherwise free to reject it or to embrace another religion, to be agnostic or atheist, is no longer a form of necessary protection of individuals or minorities against the tyranny of the majority. It is rather a manifestation of a potential tyranny of the minority and an indication of intolerance as well as of a low frustration threshold. Even if it cannot be denied that the crucifix objectively creates the impression that the state identifies itself to a certain extent with one particular religion, “the core question is … whether it does so to an extent that justifies the finding of a breach of the Convention,” as Judge Rozakis pertinently writes in his concurring opinion in Lautsi II. With its judgement that there is no evidence that such a violation exists in the Lautsi case, the Grand Chamber wisely returned to a modest operational mode of judicial restraint from which the Chamber judgement constituted a departure in breach of the subsidiary nature of its jurisdiction. In controversial cases such as this one, it is always necessary to go back to the exact wording of the Convention. When one does that, it is crystal clear that Article 9 of the European Convention and Article 2 of Protocol I do not prohibit a state church; that they do not oblige and neither prohibit the parties to embrace a separation of church and state or laïcité. The state does not even have to be religiously neutral. Compelling under the Convention is merely that the state should guarantee freedom of conscience and religion, should not indoctrinate children, and should respect the pedagogical freedom of the parents. As Judge Bonello correctly underscores in his concurring harangue: all the rest, such as laïcité, separation of church and state, neutrality conceived as equidistance etc., are optional constitutional arrangements which a state can invest in or not and should be left over to the national, democratically legitimated legislative bodies. There is no mention of them in the Convention and they are not necessary constitutive elements of the freedom of conscience and religion. This should be admitted, even by public secularists (such as myself) who are sincerely convinced that the place of the crucifix is either in the church or in a private place, but not in the classrooms of the public school. Although this may sound a bit like an inner conflict, it is no inconsistency. Quite to the contrary, it is an insight that results from an analytical distinction between a personal conviction and what is de iure binding under the European Convention of Human Rights, which is not a treaty that has been drafted to erase the proud European constitutional and cultural diversity.

PART II

SYMBOLS, EDUCATION, INDOCTRINATION & PROSELYTISM

CRUCIFIXES, CLASSROOMS AND CHILDREN: A SEMIOTIC COCKTAIL Alison Mawhinney* I. Introduction At the heart of the Lautsi case there is a straightforward human rights question to be addressed: does human rights law permit the display of religious symbols in state classrooms? In its assessment of the case, the Grand Chamber recognises this and agrees that this is its exclusive task: the only question before [the Court] concerns the compatibility, in the light of the circumstances of the case, of the presence of crucifixes in Italian State-school classrooms with the requirements of Article 2 of Protocol No. 1 and Article 9 of the Convention.1

Nevertheless, despite the clear exposition of its goal, the Grand Chamber of the European Court of Human Rights (ECtHR) is unsuccessful in its mission on two accounts. First, it fails to engage with the standards of Article 2 of Protocol I to the European Convention on Human Rights (ECHR or the Convention) and instead invokes the margin of appreciation to allow Italy to decide whether the display of crucifixes in its schools can be justified by the need to ‘perpetuate a tradition’.2 Second, the judgement of the Court focuses its attention solely on the provisions of Article 2 of Protocol I and ignores the rights guaranteed to parents and children under Article 9 of the ECHR.3 This chapter sets out and examines the standards relevant to a discussion of rights under Article 2 of Protocol I. It argues that the Court fails to engage with the necessary standards by too readily accepting that there was no evidence that the crucifix could have an influence on pupils. This unfortunate approach meant that an opportunity to elaborate on the scope of the applicable provisions to cases concerning the display of religious symbols by the state was missed. The chapter proposes that a semiotic approach to the facts in the Lautsi

*  The author would like to acknowledge with thanks Iorwerth Griffiths for his insightful comments on an earlier draft. 1   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (Grand Chamber), No. 30814/06, para. 57. 2   Ibid., para. 68. 3   See Jeroen Temperman, ‘Lautsi II: A Lesson in Burying Fundamental Children’s Rights’, 6(3) Religion and Human Rights – An International Journal (2011), pp. 279–283.

94  Alison Mawhinney case—and in other cases dealing with religious symbols—is of value in allowing the Court to tackle cases of this nature and properly assess the issues. In particular, it is argued, a semiotic perspective would call attention to the fact that the meanings of symbols cannot be controlled or prescribed by governments. On the contrary, symbols convey multiple meanings and are incapable of passivity. II.  Relevant Standards A.  Objectivity and Indoctrination Strasbourg case law dealing with the place of religion in state schools sets out three norms that flow from Article 2 of Protocol I and the right of parents to educate their children in conformity with their own convictions. In the seminal case of Kjeldsen, Busk Madsen and Pedersen v. Denmark in which Christian parents objected to the integration of sex education with the teaching of other subjects, the ECtHR articulated two of these standards.4 First, it held that, under Article 2 of Protocol I, states must take care that schools convey religious or philosophical knowledge in an “objective, critical and pluralistic manner”.5 It noted that schools are free to impart knowledge of a directly or indirectly religious or philosophical kind, and that parents may not object to the integration of such teaching in the school curriculum provided that this standard is met. Second, the Court stressed that “the State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit of what must not be exceeded”.6 The use of the term ‘indoctrination’ is a direct reminder of the impetus behind the drafting of the second sentence of Article 2 of Protocol I. The central concern had been to ensure that States could not use the public education system to impose a particular ideology or set of beliefs on children and youth without the consent of their parents.7

4   Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, European Court of Human Rights, Nos. 5095/71; 5920/72; 5926/72. 5   Ibid., para. 53. 6  Idem. 7   As Sir David Maxwell-Fyfe, a British lawyer involved in the drafting process, put it “the object of this Article is to meet what we all know was a terrible aspect of totalitarianism, namely, that the youth of the country were brought up so much under the dogmatic teaching of totalitarianism by the agencies or para-agencies of the State that it was impossible to bring them up in their own religious and philosophic beliefs.” Quoted in Malcolm Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997).

Crucifixes, Classrooms and Children: A Semiotic Cocktail  95 In interpreting Article 2 of Protocol I in the above manner, the Court noted that these norms were consistent “with the general spirit of the Convention itself, an instrument designed to maintain and promote the ideals and values of a democratic society” as well as with the first sentence of Article 2 of the Protocol and Articles 8 to 10 of the Convention.8 In Kjeldsen, the Court found that the disputed legislation authorising compulsory sex education did not offend the applicants’ religious and philosophical convictions under Article 2 of the Protocol. Its reasoning was premised on the two norms identified above. First, the Court noted that the knowledge to be conveyed would be precise, objective and scientific and was “principally intended to give pupils better information”.9 The teaching thus met the criteria of objective, critical and pluralistic.10 Secondly, the fact that no one specific kind of sexual behaviour was advocated by the curriculum convinced the Court that “in no way” did the legislation amount to an attempt at indoctrination.11 It noted, in particular, that the curriculum “does not make a point of exalting sex or inciting pupils to indulge precociously in practices that are dangerous for their stability, health or future or that many parents consider reprehensible”.12 This lack of an attempt to promote a certain type of attitude or behaviour was hence instrumental in allowing the court to conclude that the state was not pursuing an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. In addition to laying down the initial principles deriving from Article 2 of Protocol I, the Kjeldsen case was also significant in giving tacit approval to the notion that the existence of opt-out mechanisms would allow states to teach doctrinal knowledge in schools. In rejecting an argument of the Danish Government that children could only be exempted from classes offering religious instruction of a denominational character and not from other classes, the Court acknowledged that such doctrinal teaching could take place in schools and that pupils not wishing to take such instruction should be exempted.13 Hence, despite its stimulation that religious or philosophical knowledge should be conveyed in an ‘objective, critical and pluralistic manner’ and that there should be no aim of indoctrination, it was able, without difficulty, to accept that such teaching could take place provided parents’ had a right to   Kjeldsen, Busk Madsen and Pedersen v. Denmark, supra note 4, para. 53.   Ibid., para. 54. 10   The Court did note that the curriculum dealt with considerations that “are indeed of a moral order, but they are very general in character and do not entail overstepping the bounds of what a democratic State may regard as the public interest” (idem). 11  Idem. 12  Idem. 13   Ibid., para. 51.    8    9

96  Alison Mawhinney withdraw their children from the instruction. This approach by the Court is an example of what Taylor has termed “decisions based on available alternatives” whereby the Court avoids making a determination of a breach of a Convention right when it is “possible to rely instead on the availability of choice”.14 In the case of the teaching doctrinal religious education in schools, the alternative which the Court falls back on is the opt-out mechanism.15 The ease with which the Court accepted that the existence of opt-outs could save what may otherwise be a breach of Article 2 of Protocol I is a reflection of two considerations. First, opt-out mechanisms or ‘conscience clauses’ had existed in the legislation and constitutions of most Member States long before the arrival of the European Convention of Human Rights. They were, for the most part, seen as an accepted means of protecting minority rights in education. Second, it allowed the Court to avoid entering a debate over the teaching of religion in schools. While the use of opt-outs raised questions as to how the Court’s stated overall aim of Article 2 of Protocol I could be achieved—“[t]he second sentence of Article 2 (P1–2) aims in short at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the ‘democratic society’ as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised”16—it did provide a pragmatic and uncontroversial means of interpreting this article. However, as discussed below, while the reliance on opt-outs may in theory offer a means of protecting religious liberty in schools when dealing with religious education classes, it cannot be an option when the issue of the pervasive display of religious symbols in schools presents itself.17 Subsequent judgments dealing with Article 2 of Protocol I have reiterated the standards first set out in the Kjeldsen case, including the use of the optout as a means of allowing doctrinal religious teaching to take place in schools. Indeed much of the case law since Kjeldsen has been concerned with the question of whether opt-out mechanisms in Member States’ education

14  Paul Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2005), pp. 135–136. 15   This approach by the European Court of Human Rights is mirrored in the practice of the UN Human Rights Committee. For example, in Hartikainen v. Finland the Committee held that denominational instruction could not be taught in schools unless alternative provision was made for those not wishing to participate. Erkki Hartikainen v. Finland, Views of 9 April 1981, Human Rights Committee, Communication No. 40/1978. 16   Kjeldsen, Busk Madsen and Pedersen v. Denmark, supra note 4, para. 50. 17   For an argument that opt-outs fail to respect and protect the right to freedom of thought, conscience and belief of minority belief individuals in schools, see Alison Mawhinney, ‘The OptOut Clause: Imperfect Protection for the Right to Freedom of Religion in Schools’ 2 Education Law Journal (2006), pp. 102–115.

Crucifixes, Classrooms and Children: A Semiotic Cocktail  97 systems worked sufficiently to protect the parental right found in Article 2 of Protocol I.18 In Folgero v. Norway, the Court was asked to examine the adequacy of the scheme of partial exemptions operated by the national authorities.19 In its judgement, it took the opportunity to expand on its understanding of the types of situations and activities that would constitute indoctrination. Norway had proposed to introduce ‘differentiated teaching’ whereby children, whose parents had requested an exemption to respect their religious and philosophical convictions, would remain in the class and observe a religious activity rather than participate in it.20 The applicants claimed that this “presupposed that one could ‘learn’ the text (notably prayers, psalms, Biblical stories and statements of belief) without being subjected mentally to what constituted or might constitute unwanted influence or indoctrination”.21 The Court too was unconvinced that this proposal would adequately protect the right found in Article 2 of Protocol I. In its view “this distinction between activity and knowledge … seems likely to have substantially diminished the effectiveness of the right to a partial exemption as such” and went on to conclude that: this could hardly be considered consonant with the parents’ right to respect for their convictions for the purposes of Article 2 of Protocol No. 1, as interpreted in the light of Articles 8 and 9 of the Convention. In this respect, it must be remembered that the Convention is designed to ‘guarantee not rights that are theoretical or illusory but rights that are practical and effective’…22

B.  ‘Free of Proselytism’ Until recently the requirement to convey religious or philosophical knowledge in an ‘objective, critical and pluralistic manner’ and the prohibition on the aim of indoctrination constituted the two core principles applied in cases arising under Article 2 of Protocol 1. However, with the 2006 decision in Sefika Köse v. Turkey, an additional standard was added and has been present in relevant court judgments since, including the Lautsi judgment.23 This third central standard is the requirement on the State to maintain an atmosphere in schools that is free of any proselytism. 18  E.g., Angeleni v. Sweden, 3 December 1987, European Commission of Human Rights, No. 10491/83; Bernard and Others v, Luxembourg, 8 September 1993, European Commission of Human Rights, No. 17187/90; C.J., J.J. and E.J. v. Poland, 16 January 1996, European Court of Human Rights, No. 23380/94. 19   Folgero v. Norway, 29 June 2007, European Court of Human Rights, No.15472/02. 20   Ibid., para. 99. 21   Ibid., para. 62. 22   Ibid., para. 100. 23   Şefika Köse and 93 Others v. Turkey, 24 January 2006, European Court of Human Rights, No. 26625/02.

98  Alison Mawhinney In Köse, a case concerned with a ban on wearing the Islamic headscarf in schools, the Court observed that “the second sentence of Article 2 principally implies that the State, in fulfilling the functions assumed by it with regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner in a calm atmosphere free from unrestrained proselytism”.24 It further noted a duty on the state to ensure that any manifestations of religious belief on school premises did not “become ostentatious and thus a source of pressure and exclusion. The need for such care is made all the more acute by the fact that the meaning or impact of the public expression of a religious belief will differ according to time and context”.25 The Court thus suggests that certain displays of religious belief, if overly explicit, may place pressure on other students to conform to that practice or lead to sense of exclusion, presumably from their peer group and school community. In this particular case, the Court chose not to examine the issues of proselytism and the ostentatious display of religious symbols further, finding that the complaint under this head was manifestly ill-founded. The requirement on the state to maintain an environment free from proselytism is seen again in the 2007 case of Zengin v. Turkey which examined a refusal by the authorities to a request for an exemption from religion classes.26 Hence while the standard was introduced in a case which in essence dealt with symbols in schools, that is, the wearing of headscarves, the norm was reiterated in a more typical Article 2 of Protocol 1 case dealing with the religious education curriculum. In Zengin, the Court talked of “misplaced proselytism” rather than “unrestrained proselytism”: the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind with regard to religion … in a calm atmosphere which is free of any misplaced proselytism … The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.27

The Court went on to find that the religion class taught in Turkish schools provided instruction in a specific religion and that the exemption procedure operated by the national authorities did not provide adequate protection to the  Idem.  Idem. 26   Hasan and Eylem Zengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04. 27   Ibid., para. 52. 24 25

Crucifixes, Classrooms and Children: A Semiotic Cocktail  99 right found in Article 2 of Protocol 1. In other words the child was exposed to teaching which was not ‘objective, critical and pluralistic in manner’ and which would leave the child vulnerable to misplaced proselytism. Arguably, in this case, the Court could have relied solely on the ‘objective, critical and pluralistic’ standard to reach its conclusion but it choose instead to restate the Köse norm which places a duty on States to ensure proselytism does not take place in schools. In the Latusi judgement the triad of standards noted above is seen again, this time with no qualification before the ‘proselytism’ standard. The State is directed: to take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that the States must not exceed.28

Before the Köse judgement, the only reference made by the Strasbourg organs to proselytism in the context of Article 2 of Protocol 1 was to do with the possible action of a given school or teacher who may, in contravention of school regulations, indulge in inappropriate proselytism when teaching religious education and other classes. For example, in Kjeldsen, the Court stated that “the competent authorities have a duty to take the utmost care to see to it that parents’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism”.29 However, the norm as introduced in Köse, and subsequently reiterated, refers to a broader state duty, one which requires States to maintain a school atmosphere free from any proselytism. In sum, Article 2 of Protocol I provides three critical elements or standards relating to the place of religion in school. First, information or knowledge included in the curriculum must be conveyed in an objective, critical and pluralistic manner. Second, States are forbidden to pursue an aim of indoctrination. In none of these cases did the Court seek proof that indoctrination had indeed been successful; it was sufficient that there was evidence that indoctrination may take place. In the majority of cases dealing with Article 2 of Protocol I, this involved looking at the aim and contents of religious education curriculum. Finally, the state must maintain a school atmosphere free of proselytism, a standard introduced in a case involving religious symbols. Here again the Court was not concerned as to whether proselytism had been   Lautsi and Others v. Italy, supra note 1, para. 62.   Kjeldsen, Busk Madsen and Pedersen v. Denmark, supra note 4, para. 54.

28 29

100  Alison Mawhinney successful but whether such symbols could result in a source of pressure and exclusion on students. A final note to be made about these norms is that the Court has been consistent in making it clear that the standards apply to all areas of school regulation and are not simply restricted to the school curriculum. In Folgero, for example, it noted that the State should respect parents’ convictions throughout the entire State education programme: “That duty 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.”30 III.  Proselytism, Indoctrination and State Obligations At first sight, the standard of maintaining an atmosphere free of proselytism appears similar in nature to the standard which prevents states from pursuing an aim of indoctrination. Each aims to ensure that a child is not subject to coercion from the state to adopt a religion or belief which would not be in accordance with the religious or philosophical convictions of the child’s parents.31 It may be argued, however, that proselytism can be distinguished from indoctrination on the basis of the differing degree of free will which exists in each process. Indoctrination suggests the teaching of one particular attitude or set of beliefs in a manner that does not allow for critical questioning. Desmond Clarke argues that indoctrination is best understood as “causally determining the beliefs of another through non-rational procedures”, where rationality is “primarily concerned with the way in which one acquires one’s beliefs, not with their ultimate truth or plausibility”.32 For Clarke, “the opposite to a rational acceptance of beliefs is any procedure which precludes the possibility of doubting, testing etc., as may seem appropriate”.33 As already noted, Strasbourg case law makes clear that the teaching and promotion of one specific kind of moral behaviour or one specific religion would amount to indoctrination,

  Folgero v. Norway, supra note 19, para. 84.   This aim, of course, is similar to the Article 9 right not to be subject to coercion that may impair one’s freedom to have or to adopt a religion or belief of one’s choice except that under Article 2 of Protocol I the right must be framed in terms of the parental right to educate one’s children in accordance with one’s own religious and philosophical convictions. However, unlike the Article 9 right, the provision found in Article 2 of Protocol I is intended to be free of any limitation and thus cannot be subject to “such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others” (Article 9, para. 2). 32   Desmond Clarke, Church and State: Essays in Political Philosophy (Cork: Cork University Press, 1984), p. 215. 33  Idem. 30 31

Crucifixes, Classrooms and Children: A Semiotic Cocktail  101 unless a right to withdraw from such teaching was permitted. It also suggests that the forced observation and knowledge of religious practices would constitute indoctrination. In contrast to indoctrination, proselytism may be viewed as a manifestation of the right to freedom of religion whereby a person presents her views in a persuasive manner to another. However, its treatment in Article 9 case law has not been uncontroversial and debates have come to centre on distinguishing between acceptable and ‘improper’ proselytism, with the later being held to be incompatible with respect for the freedom of thought, conscience and religion of others.34 In the 1998 case of Larissis v. Greece military officers were convicted for attempting to proselytise some of the men under their command.35 The Court held that this attempt at proselytism by senior officers was an abuse of power. By contrast it found that similar proselytising attempts with civilians were not inappropriate as civilians were not subject to the same constraints as the junior airmen: “what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of military life, be viewed as a form of harassment or the application of undue pressure in abuse of power”.36 It is clear that structure of military life was the decisive consideration in the judgment. Recognition was given to the fact that attempts at proselytism in this context approximated coercion given the power relationship between the proselytiser and the proselytised, and the inability of the junior officers to remove themselves from the work environment in which the proselytism occurred. A similar argument may be made out with respect to proselytism in schools. In schools, there is a hierarchical relationship and power imbalance between the school authorities and pupils. Children are obliged to attend school and cannot choose to absent themselves from the school environment in which the proselytism may take place. Further, students, particularly younger children, may not have the capacity and knowledge to challenge the views presented by the proselytiser and to this extent free will cannot be said to exist in any meaningful way. In this context, proselytism closely approximates indoctrination and suggests that all forms of proselytism should, like indoctrination, be prohibited in schools unless an opt-out is possible. However, while the standards may approximate to terms of content and scope in a school environment, they differ in the type of duty that each places 34   See, for example, Kokkinakis v. Greece, 25 May 1993, European Court of Human Rights, No. 14307/88, and the partly dissenting opinion of Judge Martens. 35   Larissis and others v. Greece, 24 February 1988, European Court of Human Rights, Nos. 23372/94; 26377/94; 26378/94. 36   Ibid., para. 51.

102  Alison Mawhinney on the state. The duty not to indoctrinate generates a negative obligation on the state to refrain from activities and practices that would involve the teaching or transmission of one particular attitude or set of beliefs in an unreflective manner. A breach of this duty would involve a finding that the state, in its aims and actions, set out to promote one specific type of set of beliefs, for example, through the teaching of one specific religion or through the forced participation in religious activities. By contrast, a duty to maintain an atmosphere free of any proselytism, including misplaced proselytism, places a positive obligation on the State to take steps to ensure that proselytism does not take place. This would require it to ensure that children were not exposed to beliefs, practices and symbols that may be ‘a source of pressure and exclusion’ in an environment in which they may be incapable of challenging the proselytising practice by reason of a lack of maturity and the power imbalance between the school authorities and the children. IV.  Lack of Recourse to Opt-outs The majority of cases examined under the second sentence of Article 2 of Protocol I have been concerned with the examination of the aims and the nature the religious education curriculum in state schools and the associated opt-out provision. By contrast, the Lautsi case was the first to force the Strasbourg Court to confront squarely the question of the display of religious symbols in state classrooms.37 Opt-out provision could not be considered a potential remedy to the practice of displaying religious symbols in this manner. Unlike timetabled doctrinal teaching, a child cannot be opted out of the influence of this practice, no matter how that influence may be appraised. As already noted, the Strasbourg Court has relied on the opt-out mechanism to protect the right to freedom of religion of those who do not wish to participate in doctrinal religious instruction classes. The approach has led it to set clear standards with respect to the place of religion in state schools. This, in turn, has allowed the Court to maintain a delicate balance, namely to uphold the original purpose of Article 2 of Protocol I—preventing the state from inculcating beliefs in children which would be contrary to their parents’ religious and philosophical convictions—while at the same time allowing states to continue a historical tradition of giving religious instruction in state schools. However, the absence of recourse to opt-outs in the Lautsi case presented the Court with two central unavoidable questions. First, what is the influence

37  In Şefika Köse and 93 Others v. Turkey, supra note 23, the Court did not have to examine the issues having found the complaint to be manifestly ill-founded.

Crucifixes, Classrooms and Children: A Semiotic Cocktail  103 of a religious symbol on classroom walls in a state school?38 And second, how to assess any such influence against the standards of Article 2 of Protocol I? The Grand Chamber in its judgment dispensed with this complex task in a brisk manner. It held that: there is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed.39

It adopted the Italian Government description of the crucifix as a ‘passive symbol’ observing that: 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…It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.40

Hence, the Court, by concluding that there was no evidence that the display of crucifixes may have influenced pupils, sidestepped the challenge posed by the second key question: the need to assess any such influence against the standards of Article 2 of Protocol I. The brevity of the Grand Chamber’s reasoning of the central concerns of the case is surprising. The case dealt with an essential aspect of freedom of religion which the Court had not been asked to confront up to then—the display of religious symbols by the state—and one of importance to all the member states. In refusing to contemplate that the display of a crucifix may have an influence on pupils, any discussion as to the applicable standards to apply in cases dealing with the place of religious symbols in public spaces was foreclosed. Perhaps most disquieting of all was a failure by the Court to acknowledge the deeply semiotic function of religious symbols. A semiotic perspective on the Lautsi case casts doubt on some of the underlying assumptions made by the Court in the course of its judgment and suggests that questions around the influence of religious symbols need to be treated with much greater caution.

38   The Court had previously had the opportunity to consider religious symbols in schools within the context of Article 9 cases concerning bans on the wearing of headscarves by Muslim students and teachers. See, for example, Sahin v. Turkey, 10 November 2005, European Court of Human Rights, No. 44774/98, where the case concerned the wearing of a headscarf by a university student; and Dahlab v. Switzerland, 10 November 2005, European Court of Human Rights, No. 42393/98, where the applicant was a teacher. The Court found no violation of Article 9 in either case. However, each judgement has been widely criticised for the way in which the Court imputed values and influence to the wearing of the headscarf for which no evidence was adduced. 39   Lautsi and Others v. Italy, supra note 1, para. 66. 40   Ibid., para. 72.

104  Alison Mawhinney V.  Lautsi: A Semiotic Challenge Semiotics is concerned with the study of signs and their meaning. Semioticians not only study signs but they are also concerned to understand how meaning is formed. In other words, they study how people interpret a sign, and how they draw on cultural or personal experience to understand a particular sign. In this process it is recognised that not only will the sign itself carry meaning but that the meaning attaching to a sign will be influenced by the way the symbol is organised into systems and the context in which they appear. The literature on semiotics is vast.41 However, a simplified overview would hold that the sign is the building block of semiotic theory and comprises the signifier and signified. The signifier is the physical manifestation that refers to a concept, which is the signified. A sign is a sign because it has meaning. A red light (signifier) is connected to the concept of stop (signified). The red light being made up of the signifier and signified is a sign. A purple light would be a signifier in its loosest sense of being a physically observable light; but would lack a signified since purple light has no concept to which it refers. It is therefore not a sign. In the context of this chapter, a few other features of semiotics are worthy of note. A connotation is a sign with a cultural meaning and a collection of related connotations is bound by a paradigmatic relation. Signs in a paradigmatic relation obtain their meaning from their association with other signs in that paradigmatic relationship. The red light has the connotation of ‘stop’ and possesses this because it is part of a paradigmatic relationship with other road traffic signs. It is at this point the concept of a code emerges. Codes are semiotic systems—systems of signs—that influence behaviour. Codes influence behaviour because they are semiotic systems that connect with social structure and value systems. A red light causes one to stop not because it is a sign within the paradigm of road traffic signs but because road traffic signs are a semiotic system that is connected to social structure via law. Codes that reinforce or fit with structures of power can be classed as ideologies. In the red light example, obedience to the law will be the ideology that determines why some people will stop at a red light despite there being no impediment to proceed and no law enforcement in the vicinity. Such is the power of the sign of the red light.

41   See, for example, Charles W. Morris, Writings on the General Theory of Signs (Den Haag: Mouton, 1971); David Holdcroft, Saussure: Signs, Systems and Arbitrariness (Cambridge: Cambridge University Press, 1991); Robert Hodge and Gunther Kress, Social Semiotics (Cambridge: Polity, 1988); Roland Barthes, Mythologies (New York: Hill & Wang, 1957); Gary Genosko, Baudrillard and Signs: Signification Ablaze (London: Routledge, 1994).

Crucifixes, Classrooms and Children: A Semiotic Cocktail  105 This necessarily brief introduction to semiotics is sufficient to call into question the acceptance by the court of the passivity of the symbol of the crucifix. If the red light contemplated above is replaced with the crucifix then semiotic analysis would reveal the crucifix as an ideological code. Firstly, the crucifix is a sign that has a cultural meaning, or connotation, and is related to other signs in the religious paradigm of Christianity. As a belief system Christianity is a semiotic system that influences behaviour and, as it creates meaning to structure aspects of everyday life, it is an ideology. The crucifix is therefore a sign that is a code within the ideological semiotic system of Christianity. The crucifix cannot therefore be a passive symbol as it is a code linked to an ideological semiotic system: it is the red light. A passive symbol would not have this characteristic. A circle in every classroom, for example, would be passive since it would not convey any meaning. It would be the equivalent of the purple light, a symbol but not a sign. It can therefore be argued that the crucifix as a code links each classroom to the ideology of Christianity. Having established the non-passivity of a sign, the attention of semiotic theory at this point turns to the act of interpretation as well as the position of the interpreter. In Lautsi, the Italian Government, while recognising that the crucifix could be perceived as a religious symbol, argued that the presence of crucifixes in the classroom was “the expression of a ‘national particularity’, characterised notably by close relations between the State, the people and Catholicism attributable to the historical, cultural and territorial development of Italy”.42 However, the interpretation of a sign cannot be controlled or prescribed. As Angela Carmella observes, in discussing the semiotic impact of religious symbols on public property: the particular messages that are conveyed will necessarily be indeterminate. Religious groups cannot control the meanings their symbols convey. Of course they may intend a particular meaning, but it is not possible to ‘fix’ that meaning because viewers will interpret the symbol based on histories and contexts beyond the group’s control. The cross, for instance, conveys innumerable messages; its meaning varies even among Christians.43

Hence, an act of interpretation does not happen in a vacuum and, in the Lautsi case, the crucial factors structuring this act are the particular setting within which the act of interpretation takes place and the wider social setting. The particular setting is a state school where the crucifix must be displayed on the wall of every classroom. Given the compulsory nature of education,

  Lautsi and Others v. Italy, supra note 1, para. 36.  Angela C. Carmella, ‘Symbolic Religious Expression on Public Property: Implications for the Integrity of Religious Associations’, 38 Florida State University Law Review (2010–2011), pp. 482–536. 42 43

106  Alison Mawhinney pupils must attend the school until a certain age. As an educational establishment, the school provides a setting in which children are taught right and wrong, and where teachers are seen as authority figures. These features have a structuring effect on interpretation by conferring validity and legitimacy to signs that are displayed within its premises. The act of interpretation also takes place within the broader social context in Italy, where Catholicism is the religion of the majority of the population. The crucifix is an established sign within this wider ideological semiotic system and, by its presence in the classroom setting, it draws the classroom into that semiotic system.44 It should be noted that the act of interpretation may be complicated when two semiotic systems are linked by the appropriation of a sign from one system to purposively link that system to the other. Governments, for example, use signs for their own semiotic purposes. At times they may draw on the coded meaning of a sign from one semiotic system to link to another semiotic system. The purpose of this linking would be to benefit from the strength of the other semiotic system and use this to reinterpret or accord legitimacy to their desired interpretation of their own system in order to achieve a particular goal. It could be argued that Italy draws on the coded religious meaning of the crucifix and links it to Italian identity to convey its own semiotic message that only those who are Catholics are ‘true Italians’. A reinterpretation of this nature privileges some sections of society, and in this way creates ‘insiders’. As a consequence, the process therefore has the additional semiotic function of rejecting those who do not share this sign, who then become outsiders in society.45 When crucifixes are displayed in schoolrooms the principal interpreters of the sign are children. While older people generally possess the resources— knowledge and experience—to make informed choices and might reasonably be expected to have a heightened capacity to interpret the meaning of signs, children are not similarly equipped. Adults may understand a message, appraise it and possibly choose to step outside it. Children, however, lack these necessary skills and are more susceptible to dominant sign systems. Children regularly imitate sign systems seen around them, for example, cowboy films for boys and ideals of femininity in Barbie dolls. A young girl will see herself as

44   The view that greater care needs to be exercised in the case of children and young people than in the case of the more mature is a widely accepted one. As noted by the Chief Justice of the US Supreme Court “indoctrination is more effective in inverse proportion to the age and maturity of the subject”, Titlon v. Richardson, 403 US 672 (1971). 45   As Carmella has noted, the US courts have tended to “focus on those who do not share the symbols and who suffer ostracising effects of the display”. See, for example, 42 Cnty. Of Allegheny v. ACLU, 492 U.S 573 (1989) at 626 (Justice O’Connor concurring) “conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favoured members of the political community”. Carmella, supra note 43, p. 491.

Crucifixes, Classrooms and Children: A Semiotic Cocktail  107 a girl and then observe and respond uncritically to the dominant ideology of what girls like and should look like. The susceptibility of children to a pervasive message presented in an uncritical manner is a fact recognised by Strasbourg case law which has consistently drawn attention to the impressionable age of children. In its decision in Çiftci v. Turkey, the Court stressed that domestic regulations on education must not pursue an aim of indoctrination that might be regarded as not respecting the parents’ religious and philosophical convictions.46 In doing so, it concurred with domestic regulations that prevented Koranic teaching to children who had not completed primary schooling on the basis that “this precondition sought to limit the possible indoctrination of minors at an age when they asked many questions and could be easily influenced by Koranic classes”.47 The impressionable age of young children was also noted in Dahlab v. Switzerland where the Court observed that the pupils taught by the applicant “were aged between four and eight, an age at which children wonder about many things and are also more easily influenced than older pupils”.48 This observation was expressed again in Folgero v. Norway where in the Court’s view “it can be assumed that participation in at least some of the activities concerned, especially in the case of young children … would be capable of affecting pupils’ minds in a manner giving rise to an issue under Article 2 of Protocol No. 1”.49 The age of impressionability clearly cannot be fixed and would depend on context as well as the maturity of the child. However, the Court has noted that older children may also be ill-equipped to interpret religious symbols that are present in the school environment. For example, with respect to compulsory school rules on dress, the Court noted in Köse v. Turkey that: school rules of this kind are general rules that apply to all pupils independently of their religious beliefs and serve among other things the legitimate aim of preserving the neutral character of secondary education, which is intended to protect adolescents when they are at an impressionable age.50

The susceptibility of children of this age was also considered a relevant factor in the 2012 case of Vejdeland v. Sweden. In arriving at its decision that conviction for the distribution of homophobic leaflets in a secondary school was not contrary to freedom of expression, the Court took into consideration that the leaflets were left in the lockers of young people who were “at an impressionable and sensitive age and who had no possibility to decline to accept them”.51   Çiftçi v. Turkey, 17 June 2004, European Court of Human Rights, Application No. 71860/01.  Idem. 48   Dahlab v. Switzerland, supra note 38. 49   Folgero v. Norway, supra note 19, para. 94. 50   Şefika Köse and 93 Others v. Turkey, supra note 23. 51   Vejdeland v. Sweden, 9 February 2012, European Court of Human Rights, No. 1813/07, para. 56. 46 47

108  Alison Mawhinney VI.  The Grand Chamber Judgement A.  A Missed Opportunity An engagement with semiotic theory offers an approach to tackling the first of the two key questions facing the Grand Chamber in its assessment of the Lautsi case: what is the influence of a religious symbol on classroom walls in a state school? First, and most fundamentally, it questions the Court’s statement that “there is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils”.52 This assertion ignores the claim of the applicant that the crucifix was “a symbol of the dominant religion”53 and that “it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible”.54 The applicant clearly identifies the crucifix with Catholicism and with the social structure and value systems of that ideological semiotic system, a system that she sees imported into the classroom through the compulsory display of the crucifix. Thus it cannot be a passive symbol. On the contrary, it is capable of conveying messages. A semiotic approach suggests that the nature and impact of the messages conveyed depends on both the act of interpretation and on the position of the interpreter. As noted above, in the Lautsi case the act of interpretation and on the position of the interpreter would involve considering of the following factors: the particular setting of the display (public school, compulsory attendance, a learning environment, power-imbalanced relationships, no optout possibility); the wider social setting (dominant majority religion) and position of the interpreter (impressionable age, absence of critical discussion of the symbol). In addition, a semiotic approach would highlight the possibility of the coded meaning of a sign within one semiotic system (for example, Cathol­ icism) being linked to another semiotic system (the concept of the Italian identity) in order to achieve a separate and distinct semiotic aim. However, the approach taken by the Grand Chamber, with its hasty denial of any evidence of influence, foreclosed discussion of the impact which the messages conveyed by the display of the crucifix may have on pupils. This, in turn, meant that the Court missed an opportunity to set out and discuss the scope of the standards of Article 2 of Protocol I as they should apply to cases dealing with influence of the display of religious symbols by the state. Such a task would, of course, be a highly complex and demanding one. A semiotic perspective identifies the key underlying problem: the meanings

  Lautsi and Others v. Italy, supra note 1, para. 66.   Ibid., para. 41. 54   Ibid., para. 42. 52 53

Crucifixes, Classrooms and Children: A Semiotic Cocktail  109 conveyed by a symbol cannot be controlled. The Italian Government may believe it is sending a particular message by requiring the compulsory display of the crucifix in schools but there is no guarantee that people will interpret the sign in the manner intended by the Government. Given this central conundrum, can the information conveyed by the crucifix be said to be ‘objective, critical and pluralistic’? Can the state be said to be pursuing an aim of indoctrination in demanding that each classroom displays a crucifix? Is the state maintaining a school atmosphere free of any proselytism when crucifixes are evident throughout the school? None of these questions can be answered simply. Nevertheless, given that each is an established standard flowing from Article 2 of Protocol I, there is an onus on the Court to address them within that context. In this task, it is suggested that a semiotic perspective is helpful in highlighting the complexities and structuring an approach to any appraisal. Recognition and consideration of the factors connected to an act of interpretation and the position of an interpreter could provide guidance to the weight to be placed on what, of necessity, will often be a subjective claim. For example, it would seem unlikely that the threshold of indoctrination would be reached by the display of a religious sign such as to conclude that the state had breached its duty not to pursue an aim of indoctrination. However, the Court could take cognisance of the fact that governments may draw on the coded meaning of a sign from one semiotic system to link to another system for their own semiotic purposes and hence explore this aspect of indoctrination. When examining the duty to create an atmosphere free of proselytism, the Court may pay particular heed to the age of the interpreter and the particular setting of the symbol in investigating whether the pervasive display of a crucifix in an educational environment could have a proselytising effect. And when assessing the duty to convey knowledge or information in an objective, critical and pluralistic manner, the Court may choose to explore the position of religion in the wider social context to evaluate how this may influence how the child interprets the message being sent by the display of a crucifix on a classroom wall. B.  Abandoning the Standards The Grand Chamber’s swift and superficial appraisal of the applicant’s claim for a breach of Article 2 of Protocol 1 and its subsequent recourse to a margin of appreciation approach risks weakening the standards of the right to freedom of religion in two significant ways. First, in finding that the “applicant’s subjective perception is not in itself sufficient to establish a breach” and by failing to take the opportunity to elaborate further, it suggests that existing standards associated with the right are insufficient and not applicable to cases

110  Alison Mawhinney concerning the display of religious symbols.55 Instead of tackling the application of the established standards to this admittedly complex case, it chooses to abandon them in favour of a margin of appreciation approach. Second, the Grand Chamber justified the granting of a substantial margin of appreciation by pointing to the diversity of law and practice between member states on the issue of the presence of religious symbols in state schools56 and by the need to “perpetuate a tradition” which demands that crucifixes are displayed in state classrooms.57 The relevance of the first reason to justify the width of the margin is reduced by the argument that the standards relevant to this case are clear, albeit that their mode of application to the facts in Lautsi is a novel challenge for the Court. Collectively, and at a minimum, the standards forbid the transmission to children of beliefs that would not be in accordance with the religious or philosophical convictions of the parents. The acceptance by member states of this baseline norm is evidenced by the practice of all member states in making provision for the right of parents to withdraw their children from any teaching which would conflict with their convictions. This common practice demonstrates a European-wide consensus on the essential concern of Article 2 of Protocol I, which is to prevent states using the public education system to impose a particular ideology or set of beliefs on children without the consent of their parents. The fact that there may be diversity in Europe in the law and practice with regard to the presence of religious symbols in state schools does not justify allowing a member state to evade its clearly established responsibilities under Article 2 of Protocol 1. The relevance of the second justification—the need to ‘perpetuate a tradition’ which demands that crucifixes are displayed in state classrooms—is reduced by the argument that the right found in Article 2 of Protocol I is not subject to restrictions. While Article 9 (freedom of thought, conscience and religion) sets out limitations on the rights found in that provision, Article 2 of   Ibid., para. 66.   The Grand Chamber’s view on the diversity of European law and practice in this area was derived from comparative-law materials which it presented in its judgment (ibid., paras. 26–28). This view was criticised by Judge Malinverni in a dissenting opinion to the majority judgement of the Grand Chamber: “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 …) 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” (para. 1). The quality of the comparative-law materials on which the Grand Chamber’s important conclusion was reached may be criticised for its brevity, generality and, at times, inaccuracy. It notes, for example, that religious symbols are found in state schools in Ireland. Given that the vast majority of schools in Ireland are religious schools, this claim is highly misleading. See Alison Mawhinney, ‘Freedom of Religion in the Irish Primary School System: A Failure to Protect Human Rights?’ 3 Legal Studies (2007), p. 385. 57   Lautsi and Others v. Italy, supra note 1, paras. 68–70. 55 56

Crucifixes, Classrooms and Children: A Semiotic Cocktail  111 Protocol I is intended to be free of any limitation.58 To suggest that the prohibition on indoctrination and proselytism, and the requirement to convey knowledge in an objective, critical and pluralistic manner may be disregarded in order to perpetuate a majority preference is to undermine substantially the purpose of Article 2 of Protocol 1 and the protection it offers against inappropriate state interference in the religious and philosophical education of children. VII. Conclusion The display of religious symbols in state schools presents the European Court of Human Rights with different concerns to the teaching of timetabled doctrinal teaching. Children cannot be opted out of the influence of such symbols. Instead the attention of the Court must focus on whether a symbol has an adverse influence on a child which is contrary to Convention standards. The Grand Chamber in its judgment in the Lautsi case chose not to apply these standards and suggested that the right found in Article 2 of Protocol 1 may be restricted by a majority preference. This chapter argued that a semiotic approach to cases involving the display of religious symbols could assist the Court in identifying the issues and developing a methodology through which to apply the relevant standards. Above all, a semiotic perspective would stress that symbols convey multiple meanings, that the meanings of symbols cannot be controlled or prescribed by governments and that ‘passive symbols’ do not exist. A religious symbol, whether displayed by the state or a citizen, is capable of conveying and invoking profound cognitive and emotional meanings. The European Court of Human Rights has a responsibility when adjudicating on such matters to ensure that fundamental rights are not diluted. This responsibility should not be escaped simply by invoking the margin of appreciation.

 See supra, note 31, on the possible restrictions under Article 9, para. 2, of the ECHR.

58

FREEDOM OF RELIGION V. FREEDOM FROM RELIGION: PUTTING RELIGIOUS DICTATES OF CONSCIENCE (BACK) ON THE MAP Stijn Smet* I. Introduction More than two centuries after the Enlightenment, fierce debates on the place of religion in public life remain commonplace in Europe. Faced with increasing demands by members of minority religions, many European States are struggling to get to grips with seemingly insurmountable disagreements on the proper role of (freedom of) religion in the continent’s pluralistic societies. Against a secular backdrop that has traditionally emphasised a strict division between public and private life, several States have resorted to measures that— quite literally—focus on hiding the problem from sight. Think for instance of the ban on face-covering veils in France and Belgium, the Swiss ban on the construction of minarets, or legislation in several countries prohibiting the wearing of the Islamic headscarf in public institutions. It is no coincidence that these measures almost invariably target Muslims, since it are primarily their demands to be able to manifest their religious beliefs in public that challenge the dominant, secular understanding of the public space in many European States. As a supranational court, the European Court of Human Rights (ECtHR; the Court) has played a central role in the legal debate on the place of religious freedom in Europe’s pluralistic democracies. It has dealt, inter alia, with cases involving criminal conviction of military officers of the Greek air force, members of the Pentecostal Church, for proselytism;1 dismissal of a Swiss public schoolteacher for wearing the Islamic headscarf in class;2 the banning of a

*  Earlier versions of this paper were presented at the Law and Religion Scholars Network Conference, 17 May 2011, Cardiff, the United Kingdom and at the Venice Academy of Human Rights, 11–16 July 2011, Venice, Italy. I am indebted to Lourdes Peroni, Eva Brems, Ayelet Shachar, Jeroen Temperman and Saïla Ouald Chaib for their insightful comments. Any shortcomings or errors remaining are my own. The Research presented in this contribution was made possible thanks to funding by the Bijzonder Onderzoeksfunds (BOF) of the Flemish Community and was conducted in the Framework of the project “Strengthening the European Court of Human Rights: More Accountability Through Better Legal Reasoning”, funded by the European Research Council (ERC). 1   Larissis and Others v. Greece, 24 February 1998, European Court of Human Rights, Nos. 23372/94; 26377/94; 26378/94. 2   Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, No. 42393/98.

114  Stijn Smet Turkish student from Istanbul University for wearing the headscarf;3 and demands to remove the crucifix from Italian public school classrooms.4 An abundance of legal scholarship is already available on the topic, analysing and critiquing the freedom of religion case law of the ECtHR. Rather than rehearsing the existing critiques, the present contribution will approach relevant ECtHR judgments from an alternative angle, analysing them through the lens of conflicting human rights, an area underexplored in legal scholarly work.5 Following theoretical exposés on conflicts between human rights and on secular principles (sections II and III), this contribution will offer an analysis of ECtHR judgments on proselytism (section IV) and headscarves in educational institutions (section V). In each of the discussed cases the domestic authorities interfered with the applicant’s freedom of religion (partly) in order to protect the religious freedom of others. As such they reveal an apparent tension between freedom of religion and freedom from religion. The current contribution will demonstrate how secular principles, properly understood, may assist in the development of a framework for the resolution of such conflicts. Building on the developed framework, and based on a critical deconstruction of the Court’s case law on headscarves, this contribution will further demonstrate how a focus on conflicts between rights may inform the expounding of a theoretical argument for a modified conception of secularism in Europe (sections VI and VII). The contribution will finally illuminate the implications of the advocated move towards an alternative conception of secularism for the right of individuals to wear religious symbols in public institutions as well as for the power of the state to order the display of such symbols in public buildings (section VII). II.  Conflicts between Human Rights The study of conflicts between human rights is particularly valuable because they challenge the usual paradigm of human rights adjudication by the ECtHR. Under the European Convention on Human Rights (ECHR; the Convention), Convention rights are principally awarded higher weight than the public interests invoked by governments to justify their limitation. This follows from the   Leyla Şahin v. Turkey, 10 November 2005, European Court of Human Rights, No. 44774/98.   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights, No. 30814/06. 5   Notable exceptions are Eva Brems (ed.), Conflicts between Fundamental Rights (Antwerp: Intersentia, 2008) and Peggy Ducoulombier, Les Conflits des Droits Fondamentaux devant la Cour Européenne des Droits de l’Homme, PhD thesis, Strasbourg, 2008 (on file with author). However, neither of these works deals with the tension between freedom of religion and freedom from religion examined in this contribution. 3 4

Freedom of Religion v. Freedom from Religion  115 principle that limitations on the rights enshrined in the Convention are to be interpreted restrictively.6 Consequently, when the freedom to manifest one’s religion has been interfered with, such interference can only be justified if the strict conditions of the limitation clause of Article 9 ECHR—prescribed by law, pursuant to a legitimate aim and the proportionality test—have been met.7 Thus, protection of the right is the rule, legitimacy of the interference the exception. However, the logics behind this paradigm—the a priori higher weight accorded to Convention rights over non-rights considerations—no longer apply in cases involving conflicts between Convention rights. If interference with an applicant’s freedom of religion takes place so as to protect the freedom of religion of others, the indivisibility of human rights precludes the Court from granting a priori higher weight to either Convention right. Moreover, if principled higher weight would still be accorded to the freedom of religion of the applicant, the outcome of the Court’s judgment would, due to the necessarily vertical nature of the proceedings at the Court,8 be susceptible to an element of arbitrariness: it would be liable to be prejudiced by the result of the domestic proceedings. This argument can best be illustrated by way of a fictional example involving a Jehovah’s Witness who has attempted to convince another person to change her religion. If the Jehovah’s Witness is convicted for proselytism by the domestic courts and brings her case to the ECtHR, and the Court were to follow the traditional adjudication paradigm, her right will receive a priori higher weight than the religious freedom of the addressee of proselytism, who is not directly involved in the Court proceedings. However, if the outcome of the domestic proceedings are different—the Jehovah’s Witness is not convicted—the ‘victim’ of the alleged proselytism may argue that the State failed to protect her and may thus claim violation of her freedom of religion at the ECtHR. In this event her right will receive a priori higher 6   Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” v. Belgium, 23 July 1968, European Court of Human Rights, Nos. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, para. 5; Klass and Others v. Germany, 6 September 1978, European Court of Human Rights, No. 5029/71, para. 42; Sunday Times v. The United Kingdom (No. 1), 26 April 1979, European Court of Human Rights, No. 6538/74, para. 65; Stoll v. Switzerland, 10 December 2007, European Court of Human Rights, No. 69698/01, para. 61; Demir and Baykara v. Turkey, 12 November 2008, European Court of Human Rights, No. 34503/97, para. 146. 7   Art. 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950 (hereinafter European Convention on Human Rights; the Convention; ECHR). 8   The ECHR only has indirect horizontal effect: if a case involved two or more opposing individuals (or groups of individuals) at the domestic level, each of whose Convention rights were (potentially) at stake, the nature of the conflict is transferred to a vertical one at the ECtHR, where the applicant claims a violation of the Convention by the State, which as a result becomes the sole respondent.

116  Stijn Smet weight. Yet, the Court’s reasoning in cases of conflicts between Convention rights should not be prejudiced by who happens to directly invoke their Convention right as applicant.9 The only way for the Court to avoid such arbitrary ‘contamination’ of its judgments is to develop a specific reasoning for the resolution of conflicts between Convention rights, which inter alia requires treating both Convention rights ab initio on an equal footing. In that respect and importantly, Article 9 ECHR distinguishes the freedom to have and change a religion or belief from the freedom to manifest it and accords differing levels of protection to each. While the freedom to manifest one’s religion is subject to the limitation clause of the second para. of Article 9, the same does not hold true for the freedom to have a religion. Thus, the forum internum receives absolute protection under the ECHR, while the forum externum receives relative protection.10 This difference may prove particularly relevant in cases of conflicts between rights. If one person uses her freedom to manifest her religion in a manner that would impair the freedom of another to hold her religion, prima facie the latter’s right should prevail as it is absolute. However, the question then becomes: how to determine when the forum internum has been breached? In this contribution the author will attempt to provide an answer to that question by examining the role of secular principles in resolving tensions inherent in proselytism, headscarf and crucifix cases. III.  Secular Principles as a Guide to Understanding the Limits of Freedom of Religion When engaging in discussions on the role of secularism in determining the place of freedom of religion in public life, it is vital to clarify the understanding of secularism one employs to avoid the confusion that all too often goes hand in hand with these discussions. In the context of this contribution, the primary distinction to be made is one between secularism as a personal worldview—a secular person being an individual who does not refer to transcendental forces   Recent statistics released by the Court confirm that, once a case makes it past the admissibility stage, protection of the right under which the applicant brings her case to Strasbourg is the rule, while protection of the other interest at stake (traditionally a public interest, but in cases of conflicting human rights often another person’s Convention rights) remains the exception. See Council of Europe, Statistics on Judgments by State, September 2011, available at (accessed 13 December 2011), p. 15 (demonstrating that in 83 per cent of admissible cases a violation is found and in six per cent no violation; the remaining cases are struck off the list, end in friendly settlement or result in “other judgments”). 10   Isabelle Rorive, ‘Religious Symbols in the Public Space: In Search of a European Answer’, 30 Cardozo Law Review (2008–2009), pp. 2673–2674; Dominic McGoldrick, Human Rights and Religion – The Islamic Headscarf Debate in Europe (Oxford/Portland: Hart Publishing, 2006), p. 246.    9

Freedom of Religion v. Freedom from Religion  117 in the life choices he makes11—and secularism as a constitutional principle. While the first—individual—conception of secularism opposes itself to religious worldviews, the latter—societal—conception of secularism attempts to provide an answer to the religious fragmentation in pluralistic societies.12 The secular state offers reasons for its decisions and policies that are based on reason and are thus open to acceptance by everyone and not only to the members of a particular faith, thereby ensuring equality among citizens.13 When exploring secularism as a guiding principle for state conduct, the ideal secular model described by Michel Rosenfeld is a useful starting point for debate. According to Rosenfeld the ideal secular model of the Enlightenment entails (i) that religion should be expelled from the public sphere and the state should be neutral with respect to religion, by neither favouring nor disfavouring it; and (ii) that the state be equally protective of its citizens’ freedom of and freedom from religion within the private sphere.14 However, this does not mean that states should necessarily adhere to this particular model. Rosenfeld simply extracts it from the ideals of the Enlightenment. In fact, he goes on to find that it poses many difficulties and concludes that it can never be achieved in reality. The constitutional practice in all Member States of the Council of Europe is thus different from the described model, offering a wide variety of State and religion models. These range from strong secular models that would ban all religious manifestations from (at least) public institutions (Turkey, France), sometimes referred to as militant secularism,15 to pluralistic models that nonetheless reveal a strong constitutional link with an established church (Greece, the United Kingdom), and states that fall in between (Spain, Switzerland).16 Despite the disparity in secular models in the Council of Europe region, it is submitted here that three common principles (two value principles and one means principle) of secularism can be identified.17 Secularism firstly aims to ensure equal respect for the (non-)religious convictions of all people living together in a pluralistic democracy. Secular states secondly rely on neutrality as 11   Guy Haarscher, ‘Religious Revival and Pseudo-secularism’, 30 Cardozo Law Review (2008– 2009), p. 2799. 12   Ibid. at 2800. 13  Idem; Andras Sajó, ‘Constitutionalism and Secularism: The Need for Public Reason’, 30 Cardozo Law Review (2008–2009), p. 2401. 14  Michel Rosenfeld, ‘Introduction: Can Constitutionalism, Secularism and Religion be Reconciled in an Era of Globalization and Religious Revival?’, 30 Cardozo Law Review (2008– 2009), p. 2333. 15   Ibid. at 2349. 16  McGoldrick, supra note 10, p. 120 and pp. 132–133; Rosenfeld, supra note 14, p. 2349. 17   The selection of these principles is based on (but also partly deviates from) Jocelyn Maclure and Charles Taylor, Laïcité et Liberté de Conscience (Paris: La Découverte, 2010), p. 10; Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008).

118  Stijn Smet a means to achieve that equality aim: the state should refrain from endorsing a particular religious outlook in order to ensure that its citizens are treated with equal respect.18 Thirdly, equal respect for everyone’s (non-)religious convictions further entails respect for every individual’s autonomy in developing and/ or manifesting their (non-)religious worldview.19 This chapter engages with the three cited principles, with a view to (i) developing a framework for the resolution of conflicts of freedom of religion and (ii) offering a theoretically sound argument on the relationship between freedom of religion and secularism in Europe’s pluralistic democracies. The construction of this theoretical argument, in the process of which the content of the mentioned principles will be clarified, will be rooted in a critical deconstruction of the reasoning of ECtHR cases on proselytism and headscarves. IV.  Proselytism, Autonomy and Coercion: A Framework for the Resolution of Conflicts of Freedom of Religion At first sight, proselytism cases reveal a conflict between human rights, since both the proselytiser and the addressee may invoke their freedom of religion. The proselytiser may argue that preventing her from performing her (perceived) religious duty to convert others violates her freedom to manifest her religion. The addressee, on the other hand, may argue that the proselytiser unduly interferes with her freedom to have a religion and that she should be protected from such behaviour by the State. The ECtHR has dealt with the difficulties raised by this conflict in a number of cases. Particularly relevant in the context of this contribution is the case of Larissis and Others v. Greece, involving the criminal conviction of officers of the Greek air force, members of the Pentecostal Church (a Protestant Christian denomination which propagates the duty of all believers to engage in evangelism), for proselytism of both civilians and lower ranked military officers. In Larissis, the Court distinguished between the proselytism of civilians and subordinated military officers, thus offering important insights into how tensions between freedom of religion and freedom from religion may be resolved. Regarding lower ranked military officers, due to the hierarchical structures inherent in the armed forces, the Court held that: what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of military life, be

  Nussbaum, ibid., p. 229; Maclure and Taylor, ibid., pp. 30–31 and p. 40.   Maclure and Taylor, supra note 17, p. 31.

18 19

Freedom of Religion v. Freedom from Religion  119 viewed as a form of harassment or the application of undue pressure in abuse of power.20

The Court consequently ruled that, even if pressure was not applied consciously, the acts of the applicants had nonetheless led to a situation in which the airmen “felt themselves constrained and subject to a certain degree of pressure owing to the applicants’ status as officers” and “must have felt to a certain extent constrained, perhaps obliged to enter into religious discussions with the applicants, and possibly even to convert to the Pentecostal Faith”.21 However, the Court ruled in the opposite manner with regard to the proselytism of civilians. Most notably, it did not consider them to stand in a particularly vulnerable relationship towards the applicants: The Court finds it of decisive significance that the civilians whom the applicants attempted to convert were not subject to pressures and constraints of the same kind as the airmen.22

Two important conclusions can be drawn from the Larissis judgment. First, power over subjects that are particularly vulnerable to pressure is an important element in the Court’s reasoning. Secondly, by using the terms ‘constrained’ and ‘obliged’ when describing the impact of the proselytism on the lower ranked military officers, the Court indicates that it considers them to be the victims of coercion on the part of the proselytisers. Both elements signal that the Court attaches a decisive role to autonomy in determining how conflicts of freedom of religion ought to be resolved. Relying on autonomy, the Court’s ruling in Larissis can be read as proposing a specific resolution to the conflict of freedom of religion inherent in proselytism cases. This solution is in line with the assumption made above concerning the relationship between the forum internum and the forum externum. It entails that, if the addressee finds herself in a particularly vulnerable relationship towards the proselytiser, who in turns stands in a position of authority or power vis-à-vis the addressee, measures may be taken to protect the latter’s autonomy, provided it is effectively impaired. However, if the proselytism does not impair the addressee’s autonomy, the conflict is decided in favour of the proselytiser. One might argue that the last situation does not even entail a genuine conflict, since it is difficult to perceive how the addressee’s freedom of religion was actually affected in the absence of any effective coercion or indoctrination.

  Larissis and Others v. Greece, supra note 1, para. 51.   Ibid., paras. 52–53 (emphasis added). 22   Ibid., para. 59. 20 21

120  Stijn Smet V.  The Framework Misapplied: The ‘Proselytising Effect’ of Headscarves? Over the past decade, the ECtHR has dealt with several applications by teachers/professors and pupils/students who were banned from wearing the Islamic headscarf in public institutions.23 Since none of the applicants in these cases wore the headscarf with the intention of convincing others to change their religion, they raise different issues from Larissis. However, this has not stopped the Court from attributing a ‘proselytising effect’ to the headscarf, thus reading a conflict between different persons’ freedom of religion into these cases. This section will argue that the approach of the Court is incorrect and will demonstrate that these cases do not, upon closer examination, entail a conflict between human rights. A.  Dahlab v. Switzerland Ms Dahlab was a teacher in a public primary school who, subsequent to her conversion to Islam, started wearing the headscarf, also in class. Four years later, and despite the absence of any complaints, the Directorate General for Primary Education prohibited Ms Dahlab from wearing her headscarf at school, arguing that it constituted “an obvious means of identification imposed by a teacher on her pupils, especially in a public, secular education system”.24 The applicant appealed against the decision, but it was upheld by the Swiss courts. In her application to the ECtHR, Ms Dahlab complained that the prohibition violated her freedom of religion. The Court would declare her application inadmissible. In its decision, the Court was well aware that there had not been any specific complaints against the attitude or the teaching quality of the applicant.25 It also accepted that the applicant did not “appear to have sought to gain any kind of advantage from the outward manifestation of her religious beliefs”.26 It therefore had to resort to a rather abstract argument to justify declaring the application manifestly ill-founded: The Court accepts that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children. The applicant’s pupils were aged  Apart from the cases discussed here, see also Kervanci v. France, 4 December 2008, European Court of Human Rights, No. 31645/04; Dogru v. France, 4 December 2008, European Court of Human Rights, No. 27058/05; Köse and 93 others v. Turkey (dec.), 24 January 2006, European Court of Human Rights, No. 26625/02; Kurtulmuş v. Turkey (adm.), 24 January 2006, European Court of Human Rights, No. 65500/01. 24   Dahlab v. Switzerland, supra note 2, p. 2. 25   Ibid., p. 13. 26  Idem. 23

Freedom of Religion v. Freedom from Religion  121 between four and eight, an age at which children wonder about many things and are also more easily influenced than older pupils. In those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect …27

The Court concluded that, having regard to the tender age of the children, the national authorities had not exceeded their margin of appreciation and dismissed the application. The Court’s decision in Dahlab has been heavily criticized by scholars.28 This criticism is certainly justified, especially where it concerns the Court’s inappropriate statements on the Islamic headscarf and its gender argument. In Dahlab, the Court ignores the different streams and attitudes within Islam towards the headscarf, disregards the varying reasons why Muslim women wear it and denies these women, including Ms Dahlab, agency.29 Since the gender criticism road has been well travelled in previous scholarly work, it does not, however, require further treading here. Yet, another element of this case has received comparably less attention. It is to that element that this contribution will now turn. The Court’s negative statements on Islam and Muslim women in Dahlab appear wholly unnecessary, as it had already raised a prima facie valid argument to support its ruling. This argument was based on a conflict between Ms Dahlab’s freedom to manifest her religion (forum externum) and her pupils’ freedom from religion (forum internum). The Court relied in essence on the interconnection between the young age of the children, the position of authority of Ms Dahlab, her function as a civil servant with a duty of neutrality and the proselytising effect her headscarf may have had on the children, to justify a restriction of her freedom to wear the headscarf. Applying the framework for the resolution of conflicts of freedom of religion developed above, it appears possible to construct a theoretical argument in defence of the pupils’ freedom from religion—and thus also of the Court’s ruling in Dahlab. But does it hold water? The argument, which at first sight

 Idem.  See, for example, Carolyn Evans, ‘The “Islamic Headscarf ” in the European Court of Human Rights’, 7 Melbourne Journal of International Law (2006); Julie Ringelheim, ‘Droit et Religion dans l’Europe des Juges – La Jurisprudence de la Cour Européenne des Droits de l’Homme’, in M-C. Flobet et al. (eds.), Convictions Philosophiques et Religieuses et Droits Positifs (Brussels: Bruylant, 2010), p. 515. 29   See also Evans, ibid., pp. 65–66; Julie Ringelheim, Diversité Culturelle et Droits de l’Homme. l’Émergence de la Problématique des Minorités dans le Droit de la Convention Européenne des Droits de l’Homme (Brussels: Bruylant, 2006), p. 133, with references to further sources; Joan W. Scott, Sexularism, Robert Schuman Centre for Advanced Studies Distinguished Lectures, 2009, available   at   , accessed 29 July 2011, pp. 9–12; John Borneman, ‘Veiling and Women’s Intelli­ gibility’, 30 Cardozo Law Review (2008–2009), pp. 2745–2760. 27 28

122  Stijn Smet may appear convincing, would run somewhere along the lines of Joel Feinberg’s child’s right to an open future.30 Because young children of the age of the pupils in Dahlab (four to eight years old) are primarily characterised by their vulnerability and only have a limited—slowly growing—potential for autonomy, they are generally considered to not have a right to freedom of religion in the same sense as adults do.31 Young children are simply not able to critically reflect upon (non-)religious views, nor are they able to develop their own.32 Assigning them a full-fledged right to freedom of religion is therefore not possible, nor desirable. However, what is possible—and desirable—is granting children what Feinberg terms ‘anticipatory autonomy rights’.33 These are “rights that are to be saved for the child until he is an adult, but which can be violated ‘in advance’, so to speak, before the child is even in a position to exercise them”.34 Under Feinberg’s reasoning, young children’s freedom of religion would fall in this category of rights that may be violated when undue influence exercised by an authority figure limits their future autonomy. Certainly this sort of argument should be discarded as overly paternalistic when considering older children (of secondary school age). Their developing autonomy and ability to critically reflect on (non-)religious views should be recognised.35 Rather than being hindered by exposure to the (non-)religious views of others, older children will arguably benefit from contact with religious diversity in the development of their own (non-)religious convictions and their identity. Banning secondary school teachers from wearing the headscarf to protect the freedom from religion of their pupils is thus an unconvincing and disproportionate measure. However, do not at least young children in primary schools deserve to receive an education in public schools free from religion, along the lines of the French conception of laïcité in the common school?36 Does their anticipatory autonomy right to freedom of religion not deserve protection from undue interference by their teacher, who they regard as a role model and may wish to emulate? 30   Joel Feinberg, ‘The Child’s Right to an Open Future’, in Randall R. Curren (ed.), Philosophy of Education: An Anthology (Oxford: Blackwell, 2007), pp. 112–123. 31   Ibid., 112; Harry Brighouse, ‘How Should Children Be Heard?’, 45 Arizona Law Review (2003), p. 704; Sigal B. Benporath, ‘Autonomy and Vulnerability: On Just Relations Between Adults and Children’, 1 Journal of Philosophy of Education (2003), p. 132. 32   Ralph W. Hood Jr. et al., The Psychology of Religion: An Empirical Approach (New York: The Guilford Press, 2007), pp. 79, 82 and 126. 33  Feinberg, supra note 30, p. 112. Harry Brighouse uses the similar concept of future agency interests: Brighouse, supra note 31, p. 701. 34  Feinberg, supra note 30, p. 112. 35   Hood Jr. et al., supra note 32, pp. 79, 82 and 126. Eva Brems, ‘Above Children’s Heads: The Headscarf Controversy in European Schools from the Perspective of Children’s Rights’, 14 International Journal of Children’s Rights (2006), p. 131. 36   Kevin Williams, ‘Religious Worldviews and the Common School: The French Dilemma’, 41 Journal of Philosophy of Education (2007), p. 676.

Freedom of Religion v. Freedom from Religion  123 Thus formulated, the argument from the child’s right to an open future may appear to offer strong support to the Court’s ruling in Dahlab. However, several counterarguments can be raised that drastically undercut it and ultimately deprive it of most, if not all, of its strength. In its most convincing form, the argument presupposes that the pupils were being indoctrinated by Ms Dahlab. Yet, Ms Dahlab was merely wearing her headscarf. Unlike the applicants in Larissis she had no proselytising intentions and did not behave in a manner that may on any reasonable understanding of the term be construed as indoctrination of her pupils. If the argument is weakened to one based on influence rather than indoctrination to accommodate the first objection, it loses much of its strength. Many environmental factors influence children’s development and their (non-)religious views.37 Why single out the potential influence of the teacher as a factor to be eliminated? Moreover, barring any strong form of indoctrination, children retain the possibility to change their views later on in life, mitigating any damage done to their anticipatory autonomy rights. Furthermore, the argument based on undue influence by teachers on their pupils rests on the unspoken but widespread assumption that pupils view their teachers as role models that they wish to emulate (in Ms Dahlab’s case the fear would be that non-Muslim pupils in her class would turn Muslim because they want to be like their teacher or that young Muslim girls would start wearing the headscarf under their teacher’s influence).38 Yet, no empirical evidence exists to support this assumption.39 Rather to the contrary, recent studies have indicated that pupils do not see their teachers as role models that they want to emulate.40 Ultimately, no evidence exists to substantiate the unsupported claim in Dahlab that exposure to a headscarf worn by a teacher may in any way influence even very young children’s religious convictions. In this respect it is worth noting that the ECtHR, in its recent Lautsi judgment on the display of crucifixes in Italian public classrooms,41 has explicitly recognised that no evidence exists “that the display of a religious symbol on classroom walls may have an influence on pupils”.42 One of the shortcomings of the Dahlab decision is precisely the unsubstantiated suppositions by the Court on the ‘proselytising 37   Hood Jr. et al., supra note 35, p. 111; Sylvie Langlaude, ‘Children and Religion under Article 14 UNCRC: A Critical Analysis’, 16 International Journal of Children’s Rights (2008), p. 478. 38   Patricia Bricheno and Mary Thornton, ‘Role Model, Hero or Champion? Children’s Views Concerning Role Models’, 49 Educational Research (2007), pp. 383–384. 39  Idem. 40   Ibid., pp. 383–386, referencing further studies and demonstrating that out of a sample of 379 pupils, aged 10 and 11 and 14 to 16, a mere 2.4 per cent referred to their teacher as a role model. The study concludes that children may look up to and respect their teachers, but do not appear to wish to be like them. 41  The Lautsi case is discussed extensively below, footnotes 95–126 and accompanying text. 42   Lautsi and Others v. Italy, supra note 4, para. 66.

124  Stijn Smet effect’ of the headscarf and the lack of appraisal of the actual evidence in front of it. Ultimately, the theoretically defensible argument based on the need to protect the anticipatory autonomy rights of Ms Dahlab’s pupils fails when considering the concrete evidence countering it. Applying the Lautsi reasoning ex post facto, it is indeed difficult to imagine how Ms Dahlab, who is moreover an individual exercising her freedom to manifest her religion and not a State using its power to order the display of a religious symbol in a public institution, could have influenced the pupils in her classroom by wearing a religious symbol, in the absence of any proselytising behaviour on her part. Nevertheless, the Grand Chamber ruling in Lautsi attempted, unconvincingly, to distinguish Lautsi from Dahlab, presumably in an attempt to save the Court’s standing case law on the headscarf.43 This distinction between both cases and the religious symbols involved therein is not only artificial, it is also not necessary from a doctrinal viewpoint. If a new case concerning a ban on headscarves in public schools would come before the ECtHR the outcome would, despite what one might have hoped for following Lautsi, most likely involve the Court simply referring to its Lautsi reasoning on the margin of appreciation44 to dismiss the applicant’s claim, thus also ‘protecting’ its erroneous headscarf jurisprudence. B.  Leyla Şahin v. Turkey The case of Şahin did not concern a teacher in a primary school, but a university student. It thus raises distinct issues from those present in the Dahlab case. Following the issuance of a new circular at Istanbul University, calling upon university personnel to bar students wearing the headscarf or a beard from admission to university premises, Ms Şahin was denied access to classes and exams. After her participation in a protest against the new circular, she was suspended for one semester. Ms Şahin subsequently decided to leave Istanbul University and completed her studies in Vienna. In her application to the ECtHR, Ms Şahin complained that the headscarf ban at Istanbul University had violated her freedom of religion. The Grand Chamber of the Court would eventually dismiss her claim, relying in essence on three arguments: gender equality, protection of the rights of others and protection of secularism. The latter two will be analysed here.45   Ibid., para. 73.  See infra, footnotes 99–100 and accompanying text. 45   As previously indicated, this contribution focuses on conflicts between different persons’ freedom of religion and the role of secular principles in their resolution. It is therefore less concerned with the gender argument in Leyla Şahin. However, for reasons mentioned above (see footnote 29 and accompanying text on Dahlab), the gender argument of the Court needs to be rejected in Şahin too. For further reading, see for example Evans, supra note 29; Ringelheim, supra note 29; Nicholas Gibson, ‘An Unwelcome Trend: Religious Dress and Human Rights 43 44

Freedom of Religion v. Freedom from Religion  125 After granting a broader margin of appreciation to the Turkish authorities in Şahin, the Court firstly accepted the Turkish conception of secularism, which entails banning all religious symbols from the entire public sphere, confirming that it was consistent with the values underpinning the Convention.46 In this regard, Ingvill Plesner has expressed fears that the Court’s jurisprudence on the headscarf indicates a move towards a “fundamentalist approach of secularism”.47 However, Julie Ringelheim doubts whether it was truly the intention of the Court to validate Turkey’s conception of secularism, since it would imply that the Court supports a strict prohibition on the wearing of religious symbols in the entire public sphere.48 This contribution adds to that debate by arguing that more recent jurisprudence of the Court has shown that Plesner’s fears were not justified and that Ringelheim’s assumption that the Court did not wish to endorse a militant version of secularism is closer to the truth. Most notably, in Ahmet Arslan v. Turkey the Court condemned Turkey for having arrested and convicted members of a minority religious group for wearing their religious attire on the streets.49 The Court hence certainly does not support a militant version of secularism that would ban all religious symbols from the entire public sphere. The question of public institutions, however, remains debated. Particularly relevant for the current contribution is the Court’s emphasis in Şahin on the impact that the headscarf may have in the Turkish context on those who choose not to wear it.50 Implied within this argument is a double consideration. The first is a fear of proselytism, that somehow Ms Şahin will impair the religious freedom of other students by wearing the headscarf, which is described by the Court as “a symbol that is presented or perceived as a compulsory religious duty”.51 Since the majority of the Turkish population is Muslim, the Court can reasonably be understood to mean that other female students should be free to choose not to wear the headscarf and that Ms Şahin’s wearing hers may somehow coerce them in this regard.52 A concern for the Following Leyla Şahin vs Turkey’, 25 Netherlands Quarterly of Human Rights (2007), pp. 599–640. 46   Leyla Şahin v. Turkey, supra note 3, para. 114. 47  Ingvill T. Plesner, The European Court on Human Rights between Fundamentalist and Liberal Secularism, available at (accessed 17 January 2011), p. 16. 48  Ringelheim, supra note 29, p. 538. 49   Ahmet Arslan and Others v. Turkey, 23 February 2010, European Court of Human Rights, No. 41135/98. For further reading on this case, see for instance Malcolm D. Evans, ‘From Cartoons to Crucifixes: Current Controversies Concerning the Freedom of Religion and the Freedom of Expression before the European Court of Human Rights’, 26 Journal of Law and Religion (2010–2011), pp. 345–370. 50   Leyla Şahin v. Turkey, supra note 3, para. 115. 51  Idem. 52   See also Sylvie Langlaude, ‘Indoctrination, Secularism, Religious Liberty and the ECHR’, 55 International and Comparative Law Quarterly (2006), p. 932.

126  Stijn Smet autonomy of Ms Şahin’s fellow students thus (partly) underlies the Court’s finding in favour of Turkey. The second consideration entailed in the Court’s concern for the rights of others in Şahin is a fear of extremism. In its judgment, the Court explicitly refers to the existence in Turkish society of extremist political movements that seek to impose their religious symbols and conception of a society founded on religious precepts on the rest of the population.53 When looking at the case as one potentially involving a conflict between the freedom of religion of Ms Şahin and the freedom from religion of her fellow students, it is clear that the case for a conflict is even weaker than in Dahlab. Ms Şahin was a university student, a peer to her fellow students. Unlike Ms Dahlab she was thus not in a position of authority or power. Moreover, the potential ‘victims’ of any—unintended—indoctrination by Ms Şahin were not very young children, but adults pursuing university studies.54 Contrary to the Court’s assumption, there is thus no reason to believe that their autonomy would be affected simply by being confronted with Ms Şahin’s headscarf. Therefore, not even a theoretical argument for the protection of the freedom from religion of others could be construed in support of the proselytism argument in Şahin, let alone a convincing one. The ‘proselytising effect’ argument relied on by the Court in Şahin hence needs to be rejected. The Court’s argument on the need to protect secularism in Turkey, which is closely linked to the fear that a takeover by extremist groups may violate the rights of the Turkish population, likewise needs to be rejected. In its judgment in Şahin, the Court seems to assume that by prohibiting Ms Şahin from wearing her headscarf, Turkey is legitimately avoiding a situation in which universities would be taken over by extremists. Yet, this argument is utterly unconvincing. It is beyond doubt that Ms Şahin would not have singlehandedly created an extremist environment in the university. She could not be considered the harbinger of such extremism simply by wearing the headscarf. Nevertheless, the Court somehow finds the language it needs in order to allow Turkey to prohibit her from doing so to prevent a merely speculative threat, unsupported by concrete evidence. Relying on a combination of speculation and aggregation of interests (the protection of all university students and by extension the entire Turkish population) to deny the individual rights of one person (Ms Şahin), which are actually at risk, is a dangerous evolution for the protection of the individual rights guaranteed by the Convention. By over-emphasising the importance of secularism in Şahin, despite the absence of any concrete and proven threats to the rights of others, the Court

  Leyla Şahin v. Turkey, supra note 3, para. 115.   This argument was also raised by Ms Şahin (Leyla Şahin v. Turkey, ibid., para. 101), but the Court did not address it. 53 54

Freedom of Religion v. Freedom from Religion  127 falls into the ‘secularist’ trap aptly described by Charles Taylor. Taylor convincingly argues that one of the basic difficulties with secularism is that it is often misrepresented as defining the relations between the state and religion, while it should in fact be concerned with finding the correct response to diversity and with protecting each person’s liberty and equality.55 When the latter elements fall away, as was effectively the case in Şahin, what is left—protecting closed neutrality as an aim in itself, by banning religion and all religious symbols from the public sphere—is not sufficient to justify impairment of a person’s freedom of religion. Why this is the case will be explained in the next sections, where a shift towards open neutrality will be advocated. VI.  The Court and the Pitfalls of Secularism It is submitted here that the Court relies on a liberal-individualistic understanding of secular principles to resolve cases involving (apparent) conflicts between different persons’ freedom of religion. The Court (i) heavily—and in the headscarf cases unjustly—emphasises the autonomy of the ‘victim’, while it paradoxically does not always recognise the autonomy of the applicant (Dahlab and Şahin); and (ii) strongly relies on the importance of freedom of choice in religious matters. As a result, the Court’s jurisprudence has—willingly or unknowingly—stumbled into the most important pitfalls of a conception of secularism that continues to gain ground in Europe; one based on closed neutrality, restricting to a greater or lesser extent (depending on the country) the presence of religion in public life. The first problem associated with a conception of secularism based on closed neutrality is that it tends to favour the dominant, mainstream forms of Christianity (Catholicism, Protestantism and Orthodox Christianity) when it comes to the freedom to manifest one’s religion. This should not come as a surprise, since secularism came to fruition against a Christian background. Their mutual influence is often overlooked when secularist values and rules are defended. It is assumed that, being secular, they are necessarily neutral. But in reality secularism still imposes a greater burden on minorities who are not aligned with the practices of the dominant, Christian, majority.56 The Court is certainly not immune to a blatant disregard for the historic bond between secularism and the mainstream forms of Christianity. This is particularly clear in

  Charles Taylor, ‘The Meaning of Secularism’, The Hedgehog Review (2010), pp. 25 and 33.  See, for instance, Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001), pp. 75–76 (Shachar makes this argument when analysing secular rules on marriage and divorce, but it can be extended into a general argument). 55 56

128  Stijn Smet the landmark case of Kokkinakis v. Greece in which the Court explicitly relied on a Catholic source to determine the difference between (accepted) Christian witness and (to be combated) ‘improper’ proselytism: a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up … under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian … The latter represents a corruption or deformation of it … [and] is not compatible with respect for the freedom of thought, conscience and religion of others.57

It is remarkable that the Court would simply endorse the distinction made by the Catholic Church, without attempting to offer its own definition of ‘improper’ proselytism. This peculiar element in the Court’s reasoning already signalled a bias towards mainstream forms of Christianity in one of its first freedom of religion judgments. Muslims arguably suffer the greatest impact from secularism’s favouring of mainstream forms of Christianity. In many European States their practices are criticized and restricted to protect secular values, while the same secular system offers preferential treatment to members of the majority religion.58 This is particularly true for the practice of wearing religious symbols. In this respect, two separate elements should be discussed: the first concerns the visibility of the symbols, the second the values associated to these symbols by the majority. Regarding the second element, Susanna Mancini has convincingly demonstrated that in Europe Christian symbols are watered down and interpreted in cultural rather than religious terms, while Islamic symbols are viewed with suspicion, since they are perceived as expressions of values incompatible with liberal and democratic values.59 In Lautsi v. Italy the Italian government explicitly relied on such an argument before the Grand Chamber, stating that the crucifix “could be perceived not only as a religious symbol, but also as a cultural and identity-linked symbol, the symbol of the principles and values which formed the basis of democracy and western civilisation”.60 Based on her analysis of the Court’s case law, Mancini concludes that the ECtHR is also guilty of the described prejudices: Christianity is defended even at the expense

57   Kokkinakis v. Greece, 25 May 1993, European Court of Human Rights, No. 14307/88, para. 48. 58   See Sajó, supra note 13, p. 2402. 59   Susanna Mancini, ‘The Power of Symbols and Symbols as Power: Secularism and Religion as Guarantors of Cultural Convergence’, 30 Cardozo Law Review (2008–2009), p. 2631. 60   Lautsi and Others v. Italy, supra note 4, para. 36.

Freedom of Religion v. Freedom from Religion  129 of individual rights,61 because it is perceived as consistent with the Convention system, while Islam can be restrictively regulated because it threatens democratic values.62 Reading the Court’s case law on the Islamic headscarf, it is difficult to escape the conclusion that the Court is indeed biased against Islam in general and the headscarf in particular. Connected to the first element of ‘culturization’ of Christian symbols is the element of visibility. In Christianity, wearing religious symbols is not a common practice. Christians may choose to wear a necklace with a crucifix, but it is generally not perceived as a religious duty. Moreover, the necklace is scarcely visible and if it is, this can easily be remedied by wearing it underneath clothing. Yet, several minority religions in Europe have more visible religious symbols, such as the Sikh turban, the Jewish kippa and the Muslim headscarf, which cannot always be hidden from sight and the (visible) wearing of which is  often motivated by a desire to adhere to religious prescripts and values. The secular model, interpreted as requiring the banishing of all religion from the public space, takes issue with these symbols precisely because they are so visible.63 Yet, it can hardly be held against the religious minority that their symbols happen to be easier recognisable than those of mainstream Christianity. In a way, Muslim women (and Sikh or Jewish men) are penalised for not having a less visible symbol, like Christians do.64 By defining neutrality as requiring the absence of religious symbols in public life, secularism thus primarily affects mem­bers of minority religions.65 The accommodation of the ‘own’ majority religion becomes even more apparent when considering laws that only ban ‘ostentatious’ religious symbols in public institutions, thus effectively protecting Christians who want to continue wearing their necklace (if need be underneath clothing), and laws that go as far as including an exception for Christian symbols.66 61  Mancini, supra note 59, p. 2661. Mancini refers particularly to Müller and Others v. Switzerland, 24 May 1988, European Court of Human Rights, No. 10737/84; Otto-PremingerInstitut v. Austria, 20 September 1994, European Court of Human Rights, No. 13470/87; and Wingrove v. The United Kingdom, 25 November 1996, European Court of Human Rights, No. 17419/90. Note that Lautsi and Others v. Italy had not yet been decided at the time of Mancini’s publication, but the Court’s acceptance of the display of Christian crucifixes in classrooms in that case is in line with Mancini’s findings. 62  Idem. 63  See also Brenna Bhandar, ‘The Ties that Bind: Multiculturalism and Secularism Reconsidered’, 36 Journal of Law and Society (2009), pp. 301–326. 64  Nussbaum, supra note 17, p. 116 and pp. 118–119. 65   Idem.; Maclure and Taylor, supra note 17, pp. 93–94; Rajeev Bhargava, States, Religious Diversity, and the Crisis of Secularism (2011), available at (accessed 4 April 2011), p. 1. 66   For an example of the former, see Article L141-5-1 of the French Educational Code, introduced by the Law of 15 March 2004 on the wearing of religious symbols in public educational

130  Stijn Smet Arguably, when proclaiming laws that forbid individuals from wearing religious symbols in public institutions States err, confusing the equal respect aim of secularism with the neutrality means to achieve that aim. The aim of equal respect demands that the state and its employees remain neutral: while providing public services they should not discriminate individuals making use of those services on the basis of their (non-)religious convictions. Because clothes cannot discriminate,67 the focus should herein lie on civil servants’ behaviour, not on what they happen to be wearing (be that religious garments or otherwise). Yet, the ECtHR is clearly not convinced of this type of reasoning. Instead, by describing the Islamic headscarf as a “powerful external symbol” (emphasis added),68 it accords excessive weight to the visibility of the symbol itself, ignoring the behaviour of the person wearing it. As can be noticed in Dahlab and Şahin, this allows the Court to shift the discussion away from the agency of the individual wearing the headscarf, whilst over-emphasising the autonomy of the individuals confronted with it. The second problematic aspect of a conception of secularism based on closed neutrality lies in the way in which it deals with the externalisation of ‘religious dictates of conscience’.69 By creating a public/private dichotomy and banning religion (to some extent) from the public sphere, closed neutrality creates a distinction between having a religion and manifesting it, restricting the latter in the name of protecting neutrality. Yet, this strict dichotomy is false.70 It ignores the fact that a closed conception of neutrality may be more easily accommodated by mainstream Christians, than by members of minority religions who perceive visible manifestation of their religion, also in public, as a religious dictate of conscience. It is submitted here that this second problematic feature of a conception of secularism based on closed neutrality primarily stems from reliance on a liberal-individualistic understanding of free­dom of religion that over-emphasises choice,71 which is also present in the institutions. The new Article bans “dans les écoles, les collèges et les lycées publics … de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse.” (emphasis added). For an example of the latter, see para. 86 (3) of the School Law (Schulgesetz) of the German Land of Hesse, prohibiting teachers in public schools from wearing religious symbols, but emphasising that account must be taken of the Christian tradition of Hesse in the interpretation of that prohibition. 67   Exceptions of course exist. It is for instance unacceptable for a civil servant to wear an armband with a swastika on it. But such exceptions only apply to symbols that are inherently discriminatory towards outsider groups, which is not the case for religious symbols of the type kippa, turban or headscarf. 68   Dahlab v. Switzerland, supra note 2, p. 13; Leyla Şahin v. Turkey, supra note 3, para. 111. 69   Michael J. Sandel, ‘Religious Liberty – Freedom of Conscience or Freedom of Choice’, Utah Law Review (1989), p. 611. 70  Borneman, supra note 29, pp. 2746–2747. 71   See, in a similar vein, Peter G. Danchin, ‘Islam in the Secular Nomos of the European Court of Human Rights’, 32 Michigan Journal of International Law (2011), p. 725.

Freedom of Religion v. Freedom from Religion  131 case law of the ECtHR.72 Over-reliance on freedom of choice, secularism’s inheritance from a Christian (Protestant) understanding of freedom of religion,73 fosters the assumption that everyone is to a large extent free to choose their religion, to choose which rules to follow within that religion and to choose when to adhere to them. Under this understanding of religious freedom, choice is what ultimately rules one’s religious beliefs, not conscience and adherence to religious prescripts and values. This predominant understanding of religious freedom in Europe has also nested itself firmly in the Court’s case law. The consequences of a heavy emphasis on freedom of choice in the Court’s freedom of religion case law become particularly clear when comparing the Court’s Article 9 case law with its case law under other Convention Articles. As observed by Saïla Ouald Chaib, the ECtHR and European Commission of Human Rights (ECommHR; the Commission) appear to apply different standards in cases involving the dismissal of religious believers by their employer for reasons related to their adherence to (perceived) religious duties, than they do in similar cases brought by applicants under other Convention Articles.74 In the former type of cases, the Court has repeatedly held that the applicant could have resigned from her job to protect her freedom of religion, while it has refused to use a similar argument in the second type of cases. This difference in reasoning appears to particularly affect members of minority religions. This for instance happened to a Seventh Day Adventists who had unsuccessfully requested his employer for a slight modification of his work schedule to be able to observe the Sabbath (which in Seventh Day Adventism does not fall on the Catholic Sunday, instead starting on Friday after sunset).75 He brought his case to Strasbourg where, startlingly, the Commission, in rejecting his claim, held that “having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion”.76 Yet, the Court explicitly rejected such an argument based on the applicant’s freedom to search for a different job when it was invoked by the government in a recent discrimination case concerning the Russian army, because the applicant should not be

72  See, for instance, Jehovah’s Witnesses of Moscow and Others v. Russia, 10 June 2010, European Court of Human Rights, No. 302/02, para. 119 (“choices that people may make in pursuance of the religious standard of behaviour within the sphere of their personal autonomy”). 73  Danchin, supra note 71, pp. 680–681 and 712. 74   Saïla Ouald Chaib, ‘Religious Accommodation in the Workplace: Improving the Legal Reasoning of the ECtHR’, in Katayoun Alidadi et al. (eds.), A Test of Faith? Religious Diversity and Accommodation in the European Workplace (Aldershot: Ashgate, forthcoming 2012). 75   Konttinen v. Finland (adm.), 3 December 1996, European Commission on Human Rights, No. 24949/94. 76  Idem.

132  Stijn Smet made to choose between his job and his individual rights.77 The Court also did not rely on the ‘freedom to resign’ argument when an applicant complained of a violation of his right to private life after he was dismissed as an organist for the Catholic Church for having engaged in an extramarital relationship,78 nor did it do so when a teacher complained of a violation of her freedom of expression after she was dismissed on account of her political views.79 Instead, the Court found a violation in both cases. It appears as though the Court is indeed more lenient on the Member States’ positive obligations in work-related freedom of religion cases—especially when these concern individuals belonging to minority religions who wish to adhere to religious prescripts and values—than it is under other Convention rights with a limitation clause.80 This contribution argues that this difference can be traced back to over-reliance on freedom of choice in religious matters, causing the Court to ignore the importance the applicant may attach to her desire to adhere to religious prescripts and values, also in her public life. Although it did not state so explicitly in the discussed cases, the Court appears to assume that the Muslim applicants in Dahlab and Şahin, for instance, could—or even should—have simply chosen to comply with secular demands to remove their headscarves in order to be able to continue their employment or studies. The Court’s emphasis on freedom of choice is particularly problematic from the viewpoint of religious minorities, especially those—such as Muslims—for whom adherence to religious prescripts and values is vital to their conception of the good life. In shifting the focus away from religious dictates of conscience and towards a freedom of choice conception of religious freedom the Court risks losing sight of what could arguably be considered one of its primary functions: acting as a counter-majoritarian institution in the protection of individual human rights, against abuse of power by the majority.81 As a supranational institution it is ideally placed to rise above the threat of majoritarian bias inherent in Europe’s pluralistic democracies: it is the majority in power that constructs the language citizens can use to bring their claims for recogni­ tion forward. When the majority fails to recognise minority claims as raising 77   Konstantin Markin v. Russia, 7 October 2010, European Court of Human Rights, No. 30078/06 (note that this case has been referred to the Grand Chamber; the hearing took place on 8 June 2011). 78   Schüth v. Germany, 23 September 2010, European Court of Human Rights, No. 1620/03. 79   Vögt v. Germany, 26 September 1995, European Court of Human Rights, No. 17851/91. 80   See also Tom Lewis, ‘What Not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’, 56 International and Comparative Law Quarterly (2007), pp. 398–401. 81   See, for instance, Alekseyev v. Russia, 21 October 2010, European Court of Human Rights, nos. 4916/07, 25924/08 and 14599/09, para. 81; Dissenting opinion of Judges Costa, Ress, Türmen, Zupanćić and Steiner in Hatton v. The United Kingdom, 8 July 2003, European Court of Human Rights, No. 36022/97, para. 14.

Freedom of Religion v. Freedom from Religion  133 genuine human rights concerns, the ECtHR is one of the few institutions able to correct such bias. Yet, what transpires from the Court’s case law is that, rather than offering a counterweight to the majoritarian conception of religious freedom, it confirms its excessive reliance on freedom of choice. This leads the Court to fail to understand what is truly at stake in these cases: a justified claim from members of minority religions for genuine respect for their desire to adhere to religious prescripts and values, also in their public lifes. Inter alia because the individualistic freedom of choice paradigm threatens to undervalue the importance of (perceived) religious duties, Michael Sandel rejects it. Instead he points to the role cultural, familial and other contexts play in determining and guiding a person’s religious beliefs and advocates the freedom of conscience paradigm.82 This paradigm emphasises the importance of religious duties and understands religious liberty as the right to exercise those duties according to the dictates of conscience, not as the right to choose religious beliefs.83 In a different, but related vein Joan Scott reminds us that not all religious decisions and actions of individuals are necessarily best captured in the language of autonomy.84 Instead she emphasises the importance of agency as self-governance, as a “strong assertion of the right to have one’s religion recognized as an integral aspect of a self—even if that self has been given over to, or realized through, submission to God”.85 It can be concurred with Sandel and Scott that the time has come for the Court to attach increased importance to the agency of the religious applicant and the role her religion and religious prescripts and values play in the formation of her identity. This entails that the Court reconsider its current overemphasis of freedom of choice when evaluating the importance of the freedom to manifest one’s religion. However, adherence to the freedom of conscience paradigm of Michael Sandel is not necessarily to be preferred in its entirety. It also faces considerable objections. Most significantly, Sandel’s insistence that “[w]here freedom of conscience is at stake, the relevant right is to exercise a duty, not make a choice”86 undervalues the importance of autonomy, understood as the ability to formulate and follow (to some extent) one’s own conception of the good life.87 Sandel ignores the reality that some people freely aban­don or change religion, sometimes multiple times over the course of their lives, while others freely decide to not follow a certain practice generally perceived

 Sandel, supra note 69, p. 610.  Idem. 84  Scott, supra note 29. See also Lewis, supra, note 80, pp. 403–405. 85   Scott, ibid., p. 11. 86  Sandel, supra note 69, p. 611. 87   See, for instance, Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), pp. 369–37. 82 83

134  Stijn Smet to be a duty under their religion. Moreover, if the freedom of conscience paradigm is followed, religious duties receive near absolute protection, rendering it inapt at dealing with cases where the human rights of others are at stake. Despite Sandel’s assertion that coercion in matters of religious beliefs is not possible—“belief is not the sort of thing that coercion can compel”88—in reality it is a genuine threat against which individuals, especially if they are in a particularly vulnerable situation, should be protected, as borne out by the facts of Larissis. VII.  Towards an Alternative Conception of Secularism Having addressed the identified shortcomings of a conception of secularism that prescribes closed neutrality, this section argues that a move towards an alternative conception of secularism, one based on open neutrality is required. ‘Open neutrality’89 entails principally allowing all (non-)religious convictions and their symbols in the public sphere. Since it is also premised on equality, the aim of neutrality—ensuring equal respect for the convictions of all citizens in a pluralistic democratic society—is maintained. Under open neutrality no particular (non-)religious view is favoured, nor disfavoured. At the same time, the conception of secularism based on open neutrality has the advantage that it takes everyone’s freedom to manifest their religion seriously. Members of minority religions are thus no longer put in a disadvantaged position. However, the case law analysis presented in this chapter has also demonstrated that open neutrality should not be allowed free reins. It should be coupled to a double limitation, justified by the need to protect the primary values of secularism: equal respect and autonomy. The protection of autonomy, understood here as the ability to formulate and follow (to some extent) one’s own conception of the good life and to be free from coercion in the process, is particularly relevant when considering the freedom of an individual to manifest her religion. Although respect for her own agency and autonomy demand that she be principally allowed to manifest her religion both in private and in public, limitations on her right nonetheless remain justified when she impairs the autonomy of others. However, this limitation should be construed strictly. The state can only intervene when the forum internum of others is effectively violated, which will often (but not necessarily) occur when the ‘victim’ finds herself in a vulnerable situation towards the ‘aggressor’. The critical analysis of  Sandel, supra note 69, p. 610.   See, for instance, BVerfGE 1436/02, 24 September 2003, Constitutional Court of Germany, para. 43. 88 89

Freedom of Religion v. Freedom from Religion  135 the ECtHR’s case law above has revealed that, while this condition was met in Larissis (proselytism of subordinates) it was (pace the Court) not met in the headscarf cases. Limitations on the freedom to manifest a religion may thus be justified to protect individuals from active proselytism when it impairs their autonomy, but are not justified when it comes to religious symbols worn by private citizens in the streets, pupils at school and students at universities. Insofar as they are based on the limitation from autonomy, restrictions on the freedom of teachers to wear religious symbols in public educational institutions are also incompatible with the alternative conception of secularism, barring any evidence of effective impairment of the autonomy of pupils and students. Yet, when it comes to this category of individuals that are not just private citizens, but are also civil servants, further considerations are required. Because they represent the state when fulfilling their official functions, in many European States civil servants are said to be bound by a duty of neutrality and should therefore not wear religious symbols. Here it becomes crucial to insist on disentangling the means that neutrality is from its aim of ensuring equal respect for everyone’s (non-)religious convictions. Any limitations imposed on civil servants exercising their freedom to manifest their religion should aim to ensure equal respect for the (non-)religious convictions of all individuals making use of the public service, not on a need to protect neutrality as a value in itself. When framing the issue correctly, it becomes difficult to see exactly how civil servants fail to ensure equal respect by wearing religious symbols, as long as they treat everyone with equal respect in their actions.90 Some may object to this argument, insisting that it is not so much neutrality itself as the appearance of neutrality that is important here. The argument then goes that civil servants should refrain from wearing religious symbols to ensure that the public institution they represent is seen to be neutral by the persons making use of its services. However, such argument commits the recurring error of presupposing neutrality to be a value in itself, disregarding the fact that it should remain a means to protect equal respect. Moreover, following the argument from appearance of neutrality causes a relapse in the above described shortcomings of disregarding the importance of (perceived) religious duties and disproportionately affecting members of religious minorities, thus indirectly discriminating them.91 Finally, as Malcolm Evans has argued, the argument from appearance of neutrality is no longer in line with the current stance of the ECtHR’s case law. Following the Grand Chamber’s judgment in the Lautsi case, the “focus is now placed on the substance, rather than the 90   See also Maclure and Taylor, supra note 17, pp. 58–59; Matthias Mahlmann, ‘Religious Tolerance, Pluralist Society and the Neutrality of the State: The Federal Constitutional Court’s Decision in the Headscarf Case’, 4 German Law Journal (2003), p. 1115. 91  Nussbaum, supra note 17, pp. 118–119 and p. 349.

136  Stijn Smet appearance, of the enjoyment of the freedom of religion … It is no longer about ‘being seen to be neutral and impartial’ to the external observer”.92 While it remains to be seen whether the Court will also stick to this argument in future cases involving individuals wearing religious symbols in public institutions,93 this shift of focus by the Court is generally to be welcomed. The second limitation on open neutrality—protection of equal respect—is particularly relevant when evaluating state conduct.94 The state should refrain from favouring or disfavouring any specific (non-)religious conviction in its actions to ensure that its citizens are treated with equal respect for their (non-) religious convictions. This principle becomes especially important when the state displays religious symbols in public institutions. This was for instance the case in Lautsi v. Italy, the (in)famous ECtHR case involving display of the crucifix in Italian public school classrooms.95 The parents of two pupils had complained of the presence of the crucifix in the children’s classroom, requesting its removal. The Italian courts held against them and the case eventually reached the ECtHR.96 In its judgment, the Grand Chamber of the Court held

  Malcolm D. Evans, ‘Lautsi v. Italy: An Initial Appraisal’, 6 Religion and Human Rights (2011), pp. 243–244. 93   In this respect, it might be particularly interesting to follow the case of Eweida v. The United Kingdom, communicated to the ECtHR on 12 April 2011, regarding a Coptic Christian applicant who was initially barred from visibly wearing a crucifix on a necklace by her private employer (British Airways). Most notably, British Airways has already changed its policy. With effect from 1 February 2007, the visible display of religious and charity symbols are permitted where authorised. Certain symbols, such as the cross and the Star of David, were given immediate authorisation. 94   This contribution is only concerned with tensions between freedom of religion and freedom from religion. As a result, it does not address the conflict between one individual’s freedom of religion and the freedom from discrimination of others. This explains why it does not engage with cases such as Ladele v. The United Kingdom, 12 April 2011, European Court of Human Rights, No. 51671/10 (involving the refusal by a Christian civil servant to conduct civil partnership ceremonies for homosexual couples). 95   Lautsi and Others v. Italy, supra note 4. Note that this case does not involve a conflict between one person’s right to freedom of religion and the freedom from religion of others. Instead, it concerns a tension between the power of the State to endorse a particular religion and the freedom from religion of others, as well as the equal respect the State should show for the (non-)religious convictions of all its citizens. However, given the particular relevance of the Lautsi case for the alternative conception of secularism developed in this contribution, it is treated extensively here. 96   Note that Italian judicial opinion is divided on the question of the constitutionality of the presence of the crucifix in public buildings, with some courts having declared such presence unconstitutional (including a case at the Court of Cassation in which the presence of crucifixes in polling stations was declared unconstitutional because it infringed the principle of secularism and the impartiality of the State). See Andrea Pin, ‘Public Schools, the Italian Crucifix, and the European Court of Human Rights: The Italian Separation of Church and State’, 25 Emory International Law Review (2011), pp. 95–149, particularly p. 138; Lautsi and Others v. Italy, supra note 4, para. 23. 92

Freedom of Religion v. Freedom from Religion  137 that the Convention rights of the parents and the children (the children’s right to education, the parents’ right to ensure their children’s education in conformity with their own religious and philosophical convictions and the children’s and parents’ freedom of religion) had not been violated. The Court thereby relied heavily on its margin of appreciation doctrine, giving considerable leeway to the State to regulate the presence of religious symbols in public schools.97 The Court consequently held, also because it did not consider it its role to rule on the compatibility of the presence of the crucifix in public school classrooms with the principle of secularism as enshrined in Italian law,98 that it was under a duty in principle to respect the Member States’ decisions on the place of religion in educational institutions.99 The only clear limit it imposed on the margin of appreciation of the Member States—and thus also the only room it left for its own European supervision—was the presence of indoctrination: the decisions made by the state should not lead to a form of indoctrination.100 In this respect, the Court held that “[t]here is no evidence before [it] that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed”.101 It did recognise 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”.102 However, this was considered insufficient to “denote a process of indoctrination on the respondent State’s part”.103 The main reasoning of the Court in Lautsi closely resembles the type of argument that was presented in this chapter against Dahlab.104 It is thus—at least implicitly—based on an argument from the autonomy of the pupils in the classrooms.105 Yet, when analysing the facts of this case from the angle of the alternative conception of secularism advocated in this chapter, the crucial consideration is not one of autonomy, but one of equal respect. In this context, the crucial difference between the state and individuals is that the latter exercise   Lautsi and Others v. Italy, supra note 4, paras. 68–70.   Ibid., para. 57.  99   Ibid., para. 69. 100  Idem. 101   Ibid., para. 66. 102   Ibid., para. 71. 103  Ibid. 104  Crucially, however, and as explained above (footnote 44 and accompanying text) the Court attempted – unconvincingly in this author’s appraisal – to distinguish Lautsi from Dahlab. 105   See however Jeroen Temperman, ‘Lautsi II: A Lesson in Burying Fundamental Children’s Rights’, 6 Religion and Human Rights (2011), pp. 279–283, criticizing the Grand Chamber for ignoring the children’s rights angle of the Lautsi case and arguing that the outcome might have been different had it also examined the claims of the children in full, instead of dismissing them for the reasons given in connection with its examination of the parent’s case.  97  98

138  Stijn Smet their freedom of religion when wearing religious symbols, while the state has no such right and merely exercises its power when ordering the display of crucifixes in public schools.106 By ordaining the presence of crucifixes in public school classrooms, the state signals its preference for Christianity to the exclusion of all other (non-)religious convictions.107 This may not constitute a form of indoctrination violating individuals’ autonomy, but it is at odds with the duty of the State to treat all adherents to (non-)religious convictions with equal respect by not according preference to one particular faith. The argument against the exclusive display of the crucifix on the walls in public school classrooms is further strengthened when considering the message such display sends. Despite the ECtHR’s description of the crucifix in Lautsi as an “an essentially passive symbol” that “cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities”,108 the state is sending an active message when ordering the display of the crucifix. That message is that the crucifix, the core symbol of Christianity, is so important to the state and the schools that it should be displayed on the walls. In doing so, the State can be regarded as exercising its power to effectively exclude atheists and adherents to other faiths than Christianity.109 To counter the detriment caused to the equal respect for the convictions of non-adherents of the particular faith represented by the crucifix, currently given preponderant visibility in public schools in several European States, those States should either remove the crucifix to ensure equal respect through closed neutrality110 or leave it, while adding symbols reflecting the (non-) religious views of all the pupils (and possibly their parents), thus ensuring equal respect through open neutrality. However, translating the argument from equal respect presented here into the language of Convention rights, which is the only one the ECtHR can speak in its judgments, is particularly complicated. At first sight, it is difficult to see how the argument from equal respect might tie in with any Convention right in

106   See also Maclure and Taylor, supra note 17, p. 51; Jeroen Temperman, ‘State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle, the Right to Adequate Education, Children’s Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers’, 32 Human Rights Quarterly (2010), p. 885. 107   See also Temperman, ibid., p. 882. 108   Lautsi and Others v. Italy, supra note 4, para. 72. 109   See also Nussbaum, supra note 17, p. 252. 110   Equating the empty wall with atheism (thus representing a non-neutral solution) is not justified, since the decision to leave the wall empty will be based on a desire to not show any preference towards any (non)religious conviction, rather than one inspired by atheist convictions.

Freedom of Religion v. Freedom from Religion  139 circumstances such as those present in the Lautsi case.111 Such an argument may be easily employed in jurisdictions that have an Establishment Clause, such as provided for in the First Amendment of the US Constitution, which is moreover protected by a Constitutional Court, such as the US Supreme Court. However, the Council of Europe system lacks both: the ECHR does not contain any provision similar to the Establishment Clause and the ECtHR does not currently function as a ‘European’ Constitutional Court. Instead, the Court deals exclusively with applications for the protection of individual human rights and generally on a case-by-case basis.112 There is therefore good cause to accept that it is not the ECtHR’s place to deliver a constitutional ruling on such matters as the appropriate relationship between religion and State in Europe, barring any demonstrated impact on the Convention rights of individuals living in one of those States.113 This explains why the Grand Chamber of the Court, unlike the Chamber, shied away from any concrete assessment of the duty of neutrality of the State in its judgment.114 Although the Grand Chamber was wise to not go beyond its legitimate function in Lautsi by plunging into constitutional matters, an argument from equal respect could arguably have been brought into the Court’s reasoning via a non-discrimination claim. Evaluating such a claim would have been fully consonant with the Court’s function. Avoiding the establishment route by choosing the discrimination path would moreover fair better in a Europe that is home to many diverse secular models, including those providing for an established church. As Peter Danchin has argued in that respect, “[g]iven Europe’s deep history of church-state entanglement, neutrality in this context must mean non-discrimination rather than non-establishment.”115 The applicants in Lautsi could have gone down that road. They could have argued that, in displaying only the crucifix in public schools classrooms, the Italian State had failed to treat them with equal respect and had thus discriminated them. However, the Lautsi judgment demonstrates that, although the applicants had invoked Article 14 of the Convention, they had submitted little argument

 For a similar argument, see Carolyn Evans, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2001), pp. 237–244. 112   The recent introduction of the pilot-judgment procedure moves away from a strict caseby-case analysis, but is only used sporadically and does not detract from the fact that the ECtHR does not rule as a constitutional court. In that respect, the Chamber ruling in Lautsi was rightly criticised for having taken on a constitutional function for which it had no basis in the Convention. 113   See also the concurring opinion of Judge Bonello in Lautsi and Others v. Italy. 114   The Grand Chamber limited itself to one short reference among the general principles. See Lautsi and Others v. Italy, supra note 4, para. 60: “In that connection, it should be pointed out that States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs.” 115  Danchin, supra note 71, p. 671. 111

140  Stijn Smet in support of that claim, which was swiftly dismissed by the Court.116 It is thus difficult to speculate on whether the Court would be receptive to the argument from equal respect raised in this contribution. Nevertheless, considering the Court’s reluctance to deal with cases under Article 14 and in light of the narrow view it generally takes in discrimination cases—focusing on formal discrimination—the Court’s openness towards the equal respect argument appears doubtful.117 Moreover, even if it would consider applying Article 14 in conjunction with Article 9 (or Article 2 of Protocol 1), the respondent government could still raise an argument that there was an objective and reasonable justification for the differential treatment. The most likely candidate for such a justification for awarding preponderant visibility to the majority’s religious symbol—and to deny such visibility to the symbols of other (non-)religious convictions—would be the perpetuation of a tradition. In Lautsi the Italian government argued that the presence of the crucifix was “the expression of a ‘national particularity’, characterised notably by close relations between the State, the people and Catholicism attributable to the historical, cultural and territorial development of Italy and to a deeply rooted and long-standing attachment to the values of Catholicism”.118 The government maintained that this justified “[k]eeping crucifixes in schools [as] a matter of preserving a centuries-old tradition”.119 The Italian government was supported in this argument by a wide coalition of States, think tanks, Members of the European Parliament, the Vatican and the Russian Orthodox Church, among others.120 In its Lautsi judgment, the Grand Chamber of the Court recognised that “the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State”.121 In previous case law the Court had moreover already held that the Christian history and tradition of European countries justified according a larger part of religious or ethical classes to Christianity, without this leading to a finding of indoctrination.122   Lautsi and Others v. Italy, supra note 4, para. 81.   On the Court’s narrow view in discrimination cases, see Alexandra Timmer, ‘Toward an Anti-Stereotyping Approach for the European Court of Human Rights’, 11 Human Rights Law Review (2011), pp. 707–738. 118   Lautsi and Others v. Italy, supra note 4, para. 36. 119  Idem. 120   See the third party interventions to the Lautsi case; Pope Benedict XVI, Address of His Holiness the Pope Benedict XVI to the Members of the Diplomatic Corps, 10 January 2011, available at (accessed 12 December 2011); Patriarch Kirill, Patriarch Kirill Supports Italian Government over European Court’s Decision to Ban Christian Symbols in Schools, 26 November 2009, available at (accessed 12 December 2011). 121   Lautsi and Others v. Italy, supra note 4, para. 68. 122   Folgerø and Others v. Norway, 29 June 2007, European Court of Human Rights, No. 15472/02, para. 89. Note, however, that a reference similar to “the place occupied by 116 117

Freedom of Religion v. Freedom from Religion  141 Considering the wide variety of Church-State models in the Council of Europe region and since discrimination on the basis of religion does not trigger rigorous supervision on the part of the Court (unlike in case of, for instance, allegations of racial discrimination), the Court would moreover likely accord a wide margin of appreciation to the Member States under a potential Article 14 analysis on the preponderant visibility of crucifixes in public institutions, just as it did in Lautsi under the Article 2 Protocol 1 analysis. Even if the award of a wide margin of appreciation by the Court is notorious for being a prelude to the finding of a no violation, the matter is not necessarily entirely resolved simply by it being granted. Indeed, the Grand Chamber added in Lautsi that the reference to a tradition cannot relieve a Contracting State of its obligation to respect the Convention rights.123 In that respect, historical contingency need not lead to future determinacy. Indeed, judicial opinion within Italy has already shown itself to be divided on the constitutionality of the presence of the crucifix in public buildings, signalling that the force of the ‘tradition’ may be waning.124 Moreover, as with any suspect category of defences,125 one must also delve beneath the invocation of a tradition, questioning the actual damage the majority would incur were the tradition to cease to exist. In this respect it is particularly important to resist any conflation of the State with the religious majority. “[T]he right of society, as reflected in the authorities’ measure in maintaining crucifixes on the walls of State schools, to manifest their (majority) religious beliefs”,126 does not exist. There is only the interest of the majority to see its religious symbols displayed in public and the power of the State to make that happen. When framed correctly, it is difficult to see what the former would lose were the latter to decide to use its power to change the status quo, at least if it would do so by prescribing open neutrality, leaving the crucifix, but also allowing the display of the symbols of adherents to other (non-)religious views. While it remains true that it is arguably not up to the supranational ECtHR to impose a uniform ruling in this matter, seeing as it is ultimately more closely Christianity in the national history and tradition of the respondent State” in Folgerø is absent in the case of Hasan and Eylem Zengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04, which raises near identical issues, but where the Court instead refers to “the fact that, notwithstanding the State’s secular nature, Islam is the majority religion practiced in Turkey” (para. 63). This may be read as an example of how, in the eyes of the Court, Christianity can have a place in a country’s history and tradition (positive), while Islam is merely present (tolerated) in Turkey. 123   Lautsi and Others v. Italy, supra note 4, para. 68. 124  See supra, note 96. 125   That invocation of a tradition to defend certain practices is suspect, and should at the very least be assessed thoroughly before it is accepted, can for instance be seen from the fact that in many European States traditional values were, not so long ago, invoked to defend the exclusion of women from voting and the prescription of criminal punishment of homosexuals. 126   Concurring opinion of Judges Rozakis and Vajić in Lautsi and Others v. Italy.

142  Stijn Smet related to constitutional questions than to human rights concerns, equal respect should be ensured through open neutrality in those European States that currently impose the display of the crucifix in public institutions, even if this position will certainly elicit further questions as to its practicality and as to which views, convictions and beliefs merit display. VIII. Conclusion Based on a critical analysis of the ECtHR’s case law on proselytism and headscarves, this contribution has defended a comprehensive position on the tension between freedom of religion and freedom from religion in Europe. It has done so by taking conflicts between human rights seriously, as well as the role secular principles may play in their resolution, when interpreted correctly. In the process, the contribution has also taken a position on the relationship between secularism and freedom of religion in Europe’s pluralistic democracies. In order to address the most important shortcomings of a conception of secularism based on closed neutrality, a modified conception of secularism has been advocated. This alternative conception requires a move towards open neutrality, principally allowing all (non-)religious manifestations and symbols in the public sphere. Since the alternative conception remains premised on the secular values of equal respect and autonomy, the aim of neutrality—not favouring, nor disfavouring any (non-)religious conviction—is maintained. At the same time, however, it has the advantage that everyone’s right to manifest their religion is taken seriously. Yet, in this chapter it has also been argued that open neutrality should not be allowed free reins. It should be coupled to a double limitation, justified by the need to protect equal respect and individuals’ autonomy. Finally, connecting back to the ECtHR’s jurisprudence, the contribution has demonstrated that compelling reasons exist for the Court to recognise the importance the applicant before it attaches to her religion and religious prescripts and values, instead of dismissing her claims as relating to something trivial. By adopting this approach, which particularly involves rethinking its over-reliance on a freedom of choice conception of freedom of religion, the Court may ensure that also the applicant’s agency, autonomy and identity will be taken seriously.

RELIGIOUS SYMBOLS IN THE PUBLIC SCHOOL CLASSROOM Jeroen Temperman* I.  Of Symbols, State Education, and Relevant Human Rights Questions States are under international human rights obligations to make available free and compulsory primary school education and to make generally available secondary education—access to such state education must be universally guaranteed. State education must be provided in an objective, critical and pluralistic manner, free from religious coercion or misplaced proselytism. This host of positive and negative obligations in the combined areas of public education, curriculum-building, and the protection of religious liberty may have different legal ramifications depending on the peculiarities of the case. Notably, situations where acts of the State adversely impact access to education and conscientious liberties of child or parent differ from instances where the acts of other individuals could affect access to education and religious freedoms, considering the fact that in the latter scenario different individuals typically have competing human rights claims. What is most remarkable in the European Court of Human Rights’ (ECtHR) symbols jurisprudence is that more often than not a number of decisive preliminary questions are not raised, let alone satisfactorily addressed. Who in symbols cases—and the variety of scenarios imaginable therein—can be identified as ‘rights holders’, and how far do concomitant obligations on the part of the state as principal duty bearer stretch? Under what circumstances may State neutrality be considered a legitimate ground for limiting fundamental rights? And who is actually supposed ‘to be neutral’ according to human rights law— States, buildings, the ‘public square’, civil servants, teachers, students, and/or pupils? When does a symbol ‘interfere’ with the rights and freedoms of others or public order? And who is to prove that? Also, what are the exact standards of proof in symbols cases? Consequently, the increasingly pertinent question emerges if and to what extent (international) courts may interpret and explain the ‘meaning’ of symbols. If symbols do not have monolithic meanings that can be grasped by judges, the question is what, then, could be seen as more objective points of departure leading and informing a sound human rights analysis. *  Thanks to Malcolm Evans and David Pollock for their comments on a draft of this chapter (usual caveats apply).

144  Jeroen Temperman II.  Of Applicable Rights, Including the ‘Rights of Others’ When individuals wear religious attire or display religious symbols in public schools, a number of (specific elements of) human rights provisions will or might be engaged. The state could decide to restrict this display or the state could tolerate it; in both scenarios human rights provisions will be triggered. Setting aside for the time being all questions of legitimacy, any restriction— from national prohibitions to local bans to more individualized sanctions1—of the individual display of symbols inevitably amounts to minimally an ‘interference’ with the freedom to practise a religion of belief (the forum externum). In this regard it is crucial to observe that the freedom to manifest a religion is granted “in public or private”.2 Thus, in principle there is a right to observe one’s religion, including through the display of religious symbols, at a public school. This means that a limit put thereon by the state requires a special justification. This holds true for individuals regardless of their capacity—pupil, student, teacher, school principal, or caretaker (“everyone has the right”)—albeit that the individual’s capacity may play a role in the context of ‘necessity tests’ and potential ‘balancing exercises’.3 In addition to the rights of the symbol-displayer, there may be other rights at stake, notably other persons’ rights—the rights of the symbol-viewer—to freedom of and freedom from religion. The latter negative religious liberties are typically engaged, or triggered,4 in the event that symbols are officially or de facto tolerated by the state. With respect to these negative religious liberties, one may think, in the most extreme case, of religious coercion. The United Nations ICCPR makes this most explicit by providing that “[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice”.5 But also short of outright religious indoctrination, brainwashing or forced conversions, other policies or practices can be in breach of the ramifications of negative religious liberty. One may think of compulsory religious oaths schemes for entering public office.6 Certain optional

  And regardless of whether the legal restriction may result in fines, expulsion from school, an official admonition to remove the symbol, or the dismissal of a non-compliant teacher, etc. 2   Article 18, para. 1, of the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, of 16 December 1966 [ICCPR]; and Article 9, para. 1, of the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5, 213 U.N.T.S. 222, of 4 November 1950 [ECHR or European Convention]. 3   See section III, infra. 4   Again, we are not yet considering questions as to breaches of rights, solely prima facie applicability. 5   Article 18, para. 2, ICCPR. 6   Buscarini and Others v. San Marino, 18 February 1999, European Court of Human Rights, No. 24645/94. 1

Religious Symbols in the Public School Classroom  145 religious oath schemes, too, are objectionable for reasons of negative religious freedom.7 Oath of office regulations that are premised on religious oaths being taken as a rule, whilst secular affirmations are regarded as the tolerated exception, could still lead to situations where one is forced to choose between revealing one’s—lack of—religious belief or surrendering the dictates of one’s conscience. Generally speaking, then, access to education rights and religious freedoms (of others) may be engaged inasmuch as individually displayed symbols may impose a conscientious obstacle to enrolling or remaining in those public schools where this display is permitted by the state. One may think of parents that have opted for the public school system precisely out of a (perceived) need for a religiously-neutral and symbol-free educational environment, thus nipping in the bud any peer pressure (vis-à-vis child) or community pressure (visà-vis parents and child) to observe religious dress codes.8 Turning to state-imposed symbols in public schools, the most striking difference is that as far as the display of the symbol is concerned there is no clear rights holder here. The state or state schools as such do obviously not enjoy a right to manifest a religion (under international law). What we face here is not necessarily an internationally guaranteed legal entitlement of the symboldisplayer, but an interest of the state and likely one of the religious majority; an interest to perpetuate a long-observed, precious tradition. It is doubtful whether we can deem this a collective manifestation of belief within the ambit of the individual right to freedom of religion or belief. That individual right certainly has a collective dimension: the individual is also entitled to worship, teach, practice and observe a religion together with others. This recognition of collective manifestations of belief does indeed include a right of individuals and religious institutions to publicly display their religious symbols. However, this same recognition does not quite entail a clear-cut fundamental right of the dominant religion to place its symbols in all (state) buildings it sees fit. For the present purposes,9 what matters most is that the lack of a clear-cut human rights entitlement on the part of the symbol-displayer (the state) also means that conflicts of rights are not as evident here as they are in the area of individually-displayed symbols. Yet when we turn again to the flipside, the symbol-viewers (individuals), we must observe that they remain entitled to a 7   Alexandridis v. Greece, 21 February 2008, European Court of Human Rights, No. 19516/06. 8   Some of the ideas presented in relation to this point–see also section III, infra–have benefited from on-going discussions on these matters with Professor Wibren van der Burg (usual caveats apply). 9   In this same section, infra, we will return to the question whether or not the religious majority has a legal entitlement to having religious symbols displayed within public schools, or whether that interest falls short of a human rights entitlement.

146  Jeroen Temperman mix of fundamental religious and educational rights. Crucially, however, in this scenario of state-imposed symbolism we are not speaking of fundamental rights and freedoms ‘of others’, but of primary rights holders vis-à-vis the state. Thus, negative religious liberties and universal access to public education are engaged here not as potential limiting factors but as legal entitlements of primary rights holders. None of this implies that individuals displaying religious symbols ought always to ‘win’ their cases, or that symbol-imposing states—acting for the religious majority—ought to lose them as a matter of course or whenever challenged. However, these observations do impact on how religious sym­ bols  questions are to be framed within the human rights framework, espe­ cially  when we take account of the special context that is provided by state education. Applying these preliminary observations to the recent Lautsi case,10 the crucifix-in-public-school-classrooms case, the following is remarkable. First and foremost, the Grand Chamber does not spell out that this case is not evidently one of clashing religious rights. Quite the contrary, the Court accepts the position of the Italian Government which had argued that “account should be taken of the fact that the Catholic religion was that of a large majority of Italians … [T]he Court should acknowledge and protect national traditions and the prevailing popular feeling…”11 Just short of recognizing this as a ‘right’, the Grand Chamber sanctions Italy’s and all catholic Italians’ “decision” to perpetuate the crucifix tradition.12 Some of the concurring Judges reveal they do consider the case as a clear-cut clash of religious rights: the rights of non-believers and religious minorities versus—and as outvoted by—the rights of all catholic Italians. Judges Rozakis and Vajić refer to a “right of society, as reflected in the authorities’ measure in maintaining crucifixes on the walls of State schools, to manifest their (majority) religious beliefs”.13 Accordingly, for these Judges this case boils down to one straightforward question: “Does this right [of society] … override the right of parents to educate their children in accordance with their religion and … their philosophical convictions?”14 Interestingly, and perhaps indicative of the tenability of the previous proposition, elsewhere these two Judges correct themselves when they refer to “the

10   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (Grand Chamber), No. 30814/06 (also referred to as the Grand Chamber decision). Lautsi v. Italy, 3 November 2009, European Court of Human Rights (Second Section), No. 30814/06 (further also referred to as the Chamber decision). 11   Lautsi and Others v. Italy, ibid., para. 37. 12   Ibid., para. 68. 13   Concurring Opinion of Judge Rozakis, Joined by Judge Vajić, to Lautsi and Others v. Italy (emphasis added). 14  Idem.

Religious Symbols in the Public School Classroom  147 right or interest of at least a very large segment of society to display religious symbols as a manifestation of religion”.15 Concurring Judge Bonello, too, literally balances the religious liberties of catholic Italians with the rights of minority believers (the Lautsis): “If the parents of one pupil claim the right to have their child raised in the absence of a crucifix, the parents of the other twentynine should well be able to claim an equal right to its presence”.16 Judge Bonello elaborates on this point: All the parents of all the thirty pupils in an Italian classroom enjoy equally the fundamental Convention right to have their children receive teaching in conformity with their own religious and philosophical convictions, at least analogous to that of the Lautsi children. The parents of one pupil want that to be ‘non-crucifix’ schooling, and the parents of the other twenty-nine, exercising their equally fundamental freedom of decision, want that schooling to be ‘crucifix’ schooling. No one has so far suggested any reason why the will of the parents of one pupil should prevail, and that of the parents of the other twenty-nine pupils should founder. The parents of the twenty-nine have the fundamental right, equivalent in force and commensurate in intensity, to have their children receive teaching in conformity with their own religious and philosophical convictions, be they crucifix-friendly or merely crucifix-indifferent. Ms Lautsi cannot award herself a licence to overrule the right of all the other parents of all the other pupils in that classroom, who want to exercise the same right she has asked this Court to inhibit others from exercising.17

If we follow that type of reasoning, we have to make an inventory in each and every public school classroom in Europe to discern what the majority religion is—and if so desired by the latter, stick the triumphant symbol to the wall of that classroom. There are, however,18 very plausible human rights claims and arguments why the parental liberties’ argument does not cut both ways. Collective positive freedom of religion does not include an unlimited entitlement for beneficiaries of that fundamental right to gear state institutions towards religion’s needs in any way the adherents of the majority religion see fit; whilst individual negative religious freedom guards against the threat of religious coercion, and has special significance in those areas where the state faces positive duties to make available socio-economic goods, such as education. The state is indeed under negative and positive obligations to make public school education available and universally accessible. Thus, it is in fact typically the case that the presence of a state-imposed symbol does, prima facie,   Ibid., opening sentences (emphasis added).  Concurring Opinion Judge Bonello to Lautsi and Others v. Italy, para. 3.6 (emphasis added). 17   Ibid., para. 3.5 (emphasis added). 18   As early as the Enlightenment and the French and American Revolutions, these reasons were, pace Judge Bonello, regularly ‘suggested’. If fact, these arguments were en vogue for such a long time, they managed to find their way into the International Bill of Rights. 15 16

148  Jeroen Temperman engage religious and educational freedoms whilst the absence of state symbols does not, prima facie, engage those same freedoms. The best way to come to realize that point is to consider the reverse situation: a state that actually refuses to honour the majority’s wishes to display one particular religious symbol in all public school classrooms.19 The refusing state does not through its actions engage the educational and religious rights of children and parents. Under international law the state is obliged to organize public school education freely accessible to all regardless of religious or nonreligious affiliation;20 the state is under no obligation to organize—and not even to fund21—religiously-oriented education. In fact, with respect to the latter type of private education the obligations of the state are chiefly of a negative nature: a duty not to unduly interfere with private parties’ endeavours to provide for alternative schooling.22 These internationally codified residual rights make the fact all the more apparent that the refusing state in no way whatsoever interferes with religious or educational rights. For parents that do not wish to send their child to public schools—they may indeed very well have conscientious scruples over the fact that those schools are ‘too public’ for their liking, i.e. deliberately pluralistic and not religion-minded in a confessional sense—have a right to opt for private, denominational schooling created outside the state educational system.23 Those same residual rights also guarantee ‘crucifix schooling’ (as Judge Bonello puts it) or, for that matter, any other

19   Or a state that would indeed remove all such already present symbols from public schools walls, thus ceasing a long-established tradition. Let us generally refer to these possibilities as the ‘refusing state’. 20   Article 28, paras. (a) (primary education) and (b) (secondary education), of the Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49, of 20 November 1989 [CRC or Children’s Rights Convention]. See also Article 13, para. 2(a) (primary education) and 2(b) (secondary education), of the International Covenant on Economic, Social and Cultural Rights, of 16 December 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., art. 26, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 [ICESCR]. 21   In relation to the creation of religious schools, church autonomy and the right to freedom of association naturally resists radical state interference: states may only insist on certain minimum standards pertaining to what subjects are included in the curriculum and pertaining to the desired overall quality (see sources in note 23, infra, for details). The question whether it is right or wrong that the state is (permitted yet) not obliged to fund religious schools is an altogether different question and does not distract from the arguments presented here. It goes without saying that if the state should decide to fund private, denominational education, such funding must be allocated in an equitable and egalitarian fashion. Cf. Human Rights Committee, Arieh Hollis Waldman v. Canada, Communication No. 694/1996, U.N. Doc. CCPR/C/67/D/ 694/1996, Views of 5 November 1999. 22   It may be repeated that some positive obligations can be discerned too; i.e., in relation to safeguarding minimal quality requirements. 23   International human rights law safeguards the possibility for parents to opt-out of state schooling and send their child to private educational institutions. See, e.g., Article 13, paras. 3 en 4, of the ICESCR. See also Art. 5, para. 1(b), of the Convention Against Discrimination in Education, of 14 December 1960, UNESCO, 11th Sess., 429 U.N.T.S. 93.

Religious Symbols in the Public School Classroom  149 forms of confessional observance on the part of the school authorities that would not be appropriate within the public educational framework.24 Thus, the Lautsi Grand Chamber decision’s implicit—and the concurring opinions’ explicit—understanding that parental liberties mean within the public school context whatever the religious majority desires them to mean, is unsustainable from the perspective of international human rights standards. In what follows in this section (on children’s autonomous freedom of religion and educational rights), it becomes even more apparent how the ECtHR increasingly construes relevant Convention rights in ways that are incompatible with equivalent UN standards. The analysis so far has provided an overview of which rights may or may not be triggered by the different types of symbols cases. Further applying the inventory made to the Lautsi case, it is first of all remarkable how narrow a yardstick the ECtHR uses in its human rights analysis.25 Notably, the Grand Chamber analyses the Lautsis’ claims exclusively in the light of Article 2 of Protocol I to the ECHR. On close reading the yardstick is even narrower than that: the Grand Chamber solely looks into the “right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions” (i.e., the second sentence of said provision). The right to education itself, mentioned in the first sentence of Article 2 of Protocol I, remains largely unaddressed. Also, the Grand Chamber considers “that no separate issue arises” under the freedom of thought, conscience and religion, Article 9, of the Convention.26 In relation to Ms Lautsi’s claim specifically, the Grand Chamber explains why it exclusively concentrates on the second sentence of Article 2 of Proto­ col I by postulating that parental liberties can be considered the lex specialis in the case at hand.27 In the light of the system and wording of the European Convention this stands to reason: Ms Lautsi is above all concerned with ensuring that she can raise and educate her children in ways she sees fit, that is, according to the dictates of her conscience. Those concerns interact clearly strongly with her own conscience and beliefs, and her own religious liberties, 24   To be sure, the residual rights argument does not cut both ways either: everyone, including minority believers, must have access to genuine public schooling. It is the state’s obligation to provide that and that alone. This means that minority believers or non-believers may not be expected to rely on a ‘residual right’ to create sufficiently public schooling themselves in the event the state fails to do so. Put differently, a state that takes access of minorities to socioeconomic goods seriously makes sure that the latter are guaranteed a primary, not a residual right to that effect. 25  This section draws on Jeroen Temperman, ‘Lautsi II: A Lesson in Burying Funda­ mental Children’s Rights’, 6(3) Religion and Human Rights – An International Journal (2011), pp. 279–283. 26   Lautsi and Others v. Italy, supra note 10, paras. 77 and 78. 27   Ibid., paras. 59–60.

150  Jeroen Temperman though her freedom of religion or belief per se may not be at stake in this case. The United Nations’ ICCPR, contrary to the European Convention, lists these parental liberties as an integral part of the freedom of religion clause,28 rather than as a part of the right to education clause, making a much stronger link possible between one’s own religion, one’s own religious liberties, and the related right to ensure that the education of one’s children is in line with personal religious convictions. The European Convention system has opted for a slightly different approach by merging parental liberties with educational rights. Be that as it may, as far as the Lautsi children are concerned, who are separate applicants to the case,29 there can be no question of lex specialis here, at least not for the full 100 per cent of their claims. The Lautsi children enjoy two fundamental rights here: a right to freedom of religion or belief and a right to (access to) public school education. This is the very reason they are individual applicants to the case—the rights and interests of the different applicants to this case do not fully coincide. Specifically, the relevant children’s rights are larger in scope than parental liberties. The European Court’s automatic identification of parental liberties as the lex specialis in cases of freedom of religion that involve children is not at all self-evident if we look at the UN Convention on the Rights of the Child and the workings of the Committee on the Rights of the Child.30 Taking the “best interests of the child” and the “evolving capacities of the child” seriously, circumstances can be such that children’s conscience and their interests in access to public school education engage autonomous rights. There obviously exists tension between ‘parents liberties’ (to ensure the religious and moral education of their children in conformity with their own convictions)31 and children’s autonomous right to freedom of religion or belief

  Art. 18, para. 4, ICCPR.   Lautsi and Others v. Italy, supra note 10, para. 1 (note also the title of the Grand Chamber case). 30   Cf. Jeroen Temperman, ‘State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle, the Right to Adequate Education, Children’s Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers’, 32 Human Rights Quarterly (2010), pp. 869–872. Article 3 of CRC provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” (see also Articles 9, 18, 20, 21, 37, and 40 on the child’s best interest principle). See Article 5 of CRC on the evolving capacities of the child doctrine. Importantly, the evolving capacities doctrine is once repeated by CRC to additionally underscore its importance in one particular area– not coincidentally, the article dealing with the child’s right to freedom of religion. 31   In addition to the second sentence of Article 2 of Protocol I to the ECHR, see Art. 14, para. 2, of CRC; Art. 18, para. 4, ICCPR; Art. 13, para. 3, of ICESCR; Art. 5, paras. 1 and 2, of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted 25 November 1981, G.A. Res. 36/55, U.N. GAOR, 36th Sess., U.N. Doc. A/RES/36/55 (1981). 28 29

Religious Symbols in the Public School Classroom  151 and their right to education.32 With the entry into force of the Children’s Rights Convention in 1990, at the global (UN) level the paradigm has shifted from always decisive parental rights to the recognition that children’s rights may function autonomously with parental rights being accessory. This holds true for situations revolving around legally non-mature children that de facto are mature enough to form an opinion and speak their mind.33 The Convention on the Rights of the Child provides that “States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right [to freedom of religion or belief] in a manner consistent with the evolving capacities of the child.”34 Parental guidance, in the words of Brems, “has to recede as the child’s capacities evolve”.35 This means that when parents and child disagree about the desired form of education, under CRC standards it is anything but a foregone conclusion that parental liberties trump. This contrasts sharply with ECtHR’s practice of deeming parental liberties automatically lex specialis in all freedom of religion cases that involve children. Take for instance the situation where parents want the child to take religious classes but the child does not, or vice versa. The Committee on the Rights of the Child, emphasizing “the child’s evolving capacities”,36 expressed its concern in relation to Polish practice where “students require parental consent to attend ethics courses”.37 Accordingly, the child’s autonomous right to freedom of religion or belief could prevail in case of a conflict with the parents’ wishes, merited by the de facto maturity of the child. The same could be argued with respect to disagreements over larger issues such as the more general choice between denominational and non-denominational schooling—or the still 32   Art. 14, para. 1, CRC states: “States Parties shall respect the right of the child to freedom of thought, conscience and religion.” See Art. 28 of CRC for children’s right to education. For a comprehensive study of children’s right to freedom of religion or belief as a right recognized by international law, see Sylvie Langlaude, The Right of the Child to Religious Freedom in International Law (Leiden: Martinus Nijhoff Publishers, 2007). 33  Cf. Eva Brems, Article 14: The Rights to Freedom of Thought, Conscience and Religion (A Commentary on the United Nations Convention on the Rights of the Child (Leiden/Boston: Martinus Nijhoff Publishers, 2006), p. 25. In this context it is worth emphasizing that the children’s right to freedom of religion or belief as incorporated into CRC is of a later date than the ICCPR and CRC could be considered the lex specialis in this context. The ICCPR spoke of the “liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions” (emphasis added); whereas CRC mentions the “rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child” (emphasis added). 34   Art. 14, para. (2), of CRC (emphasis added); for a study on this parameter its legal relevance, see G. Lansdown, The Evolving Capacities of the Child (Florence: UNICEF Innocenti Research Centre, 2005). 35  Brems, supra note 33, p. 26. 36   Ibid., para. 33. 37   CRC/C/15/Add.194 (2002), para. 32.

152  Jeroen Temperman larger questions as to ‘belonging’ to a certain religion (or not). The Committee may not be in a position to fix in an absolute fashion the precise age when the child is empowered to make such decisions autonomously. However, from the fact that the Committee on the Rights of the Child requires (under the state reporting procedure)38 information on the legal age for choosing a religion or attending religious school teaching it transpires that autonomous children’s rights are ideally granted some time before reaching legal majority.39 All things considered, the precise moment indeed depends on the de facto maturity of the child, i.e. his or her ability to articulate a personal opinion on any of these matters. But once we decide to take that personally expressed opinion seriously, it in fact becomes the state’s duty, as Brems argues, “to guard the limits of parental direction in matters of religion and conscience, and if necessary to offer protection to children against infringement of their freedom of thought, conscience and religion by their parents.”40 In conclusion, in the light of the foregoing it is obscure why the Grand Chamber deems so uncritically that in relation to the Lautsi children, too, no separate issue arises under the right to freedom of thought, conscience and religion. Children, the persons presently subjected to the practice we are discussing, may very well have an opinion and, what is more, some first-hand experience on ‘crucifix schooling’. In Lautsi, the second and third applicant were quite young at the material time; yet the point here is that by declaring parental liberties lex specialis from the outset and without any concrete reasons in the way of substantiation, the Grand Chamber never seriously entertained the possibility that children may have a bone to pick in this type of cases. Further, in the Lautsi case both the Chamber and the Grand Chamber largely ignore the right to education per se.41 The Grand Chamber devotes precisely 38   Committee on the Rights of the Child, General Guidelines for Periodic Reports (CRC/C/58, 1996), para. 24. 39   Cf. Brems, supra note 33, p. 30; she notes that some states have adopted legal provisions in that respect. E.g., Germany has stipulated that children can make these choices autonomously from age 14: Religious Education Act, RGBl S. 939, of 15 July 1921; while the Swiss Civil Code sets this age at 16 years. 40  Brems, supra note 33, p. 29. 41   The near-exclusive focus on parental liberties is all the more remarkable as it transpires from the facts of the case that the second and third applicants, being the children, did indeed claim a violation of the right to education before the European Court. Lautsi and Others v. Italy, supra note 10, para. 29 provides (in part): “The applicants complained of the fact that crucifixes were affixed to the wall in the classrooms of the State school attended by the second and third applicants. They argued that this infringed the right to education, guaranteed by Article 2 of Protocol No. 1”. The Chamber, in the first Lautsi decision, supra note 10, considered that both article 2 of Protocol I and article 9 of the Convention were relevant. When taken in conjunction and applied to the facts of the case, the Chamber’s Second Section held that the compulsory display of crucifixes does restrict the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe. However, the right to education per se is addressed rather marginally.

Religious Symbols in the Public School Classroom  153 one paragraph to what it calls the “case of the second and third applicants”, which consists of no more than 4 sentences that are worth quoting in full: The Court considers that, when read as it should be in the light of Article 9 of the Convention and the second sentence of Article 2 of Protocol No. 1, the first sentence of that provision guarantees schoolchildren the right to education in a form which respects their right to believe or not to believe. It therefore understands why pupils who are in favour of secularism may see in the presence of crucifixes in the classrooms of the State school they attend an infringement of the rights they derive from those provisions. However, it considers, for the reasons given in connection with its examination of the first applicant’s case, that there has been no violation of Article 2 of Protocol No. 1 in respect of the second and third applicants. It further considers that no separate issue arises in the case under Article 9 of the Convention.42

This paragraph in Lautsi is premised on rather serious errors. “The reasons given in connection with its examination of the first applicant’s case”—i.e. the reasons given why Ms Lautsi’s parental liberties were not infringed—are nowhere near sufficient to establish that the Lautsi children’s religious and educational rights were not breached either. Also, being “in favour of secularism” is—indeed—not what triggers religious and educational rights of those subjected to ‘crucifix schooling’, but the internationally codified agreements that oblige states to design a public school environment that is universally accessible and respective of minority beliefs. The upshot of the Grand Chamber’s approach is that children’s negative religious liberties and access to public education rights do not get serious attention; the same goes for access rights to socio-economic goods of minorities in general. III.  Of Burdens and Standards of Proof A host of human rights norms is triggered by the public display of religious symbols. The circumstances of the case—who displays the symbol, who views the symbol, and within what specific setting—further impact threshold and evidentiary matters, questions concerning the legitimacy of invoked grounds for restriction, questions as to the ‘necessity’ and ‘proportionality’ of interferences, the existence of a ‘pressing social need’, and relevant ‘balancing’ exercises. In Lautsi, the Grand Chamber held that “[t]here is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process   Ibid., para. 78 (emphasis added).

42

154  Jeroen Temperman of being formed.”43 The well-known Dahlab v. Switzerland case dealt with the question whether the authorities were permitted to forbid Mrs Dahlab from wearing an Islamic headscarf whilst acting in her capacity as primary school teacher. Here the Court argued in relation to the potential effects of (these) religious symbols: The Court accepts that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children. The applicant’s pupils were aged between four and eight, an age at which children wonder about many things and are also more easily influenced than older pupils. In those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect…44

Accordingly, the European Court of Human Rights considers that in the absence of proof to the contrary in cases involving state display of symbols (notably, crucifixes) in public schools, it may be assumed that the symbol has no adverse effects on the rights of others; whereas in the absence of proof to the contrary in cases involving the individual display of symbols (notably, Islamic headscarves) it may be assumed that the symbol does have adverse effects on pupils. From the perspective of individual human rights protection, these a priori assumptions are odd—they are much odder still if we consider the arbitrary premises on which the Court bases these presuppositions. It appears that the Court’s decisions to fix the burdens and standards of proof the way it does is importantly premised on the concepts of ‘essentially passive symbols’ (such as, in the eyes of the ECtHR, the crucifix) and ‘powerful external symbols’ (such as, according to the ECtHR, the Islamic headscarf).45 Much has been written on these characterizations, also in this volume.46 Doubtless, those labels have triggered so much debate as they are rather arbitrary and odd in and for themselves. The Grand Chamber in Lautsi was right in concluding that “the facts of the two cases [Lautsi v. Dahlab] are entirely different”47—however, both the reasons given for that conclusion and the consequences attached to it are wrong. From the Lautsi judgement’s context, it transpires that the crucifix is “passive” chiefly on account of it being “on a wall”.48 The crucifix is furthermore deemed passive as it “cannot be deemed to   Ibid., para. 66.   Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, No. 42393/98, p. 13 (emphasis added). 45   Lautsi and Others v. Italy, supra note 10, para. 72 (“a crucifix on a wall is an essentially passive symbol”). 46   See particularly the chapter by Andreescu & Andreescu, who identify three possible meanings of the ‘passiveness’ of a symbol. 47   Lautsi and Others v. Italy, supra note 10, para. 73. 48   Ibid., para. 72. 43 44

Religious Symbols in the Public School Classroom  155 have an influence on pupils comparable to that of didactic speech or participation in religious activities”.49 These observations hardly serve as sound distinguishing factors: Mrs Dahlab did not use her headscarf as part of “didactic speech or participation in religious activities”—she was wearing one whilst teaching. Likewise, crucifixes were hanging on school walls whilst teaching took place. Considering the crucifix an “essentially passive” symbol is plainly arbitrary and truly uninformed according to semioticians. Equally arbitrary is the presupposition that a crucifix on a wall cannot be deemed to have an influence on pupils, or that sign-language necessarily has less impact than ‘didactic speech’. Most if not all persons that observe the crucifix on a classroom wall will consciously or sub-consciously make the link between the signifier and the signified, that is, will match the symbol and the religion that is always/mostly/typically signified by it. What precisely happens in that continuous process of identification and re-identification may play out differently for different persons—yet in all instances that non-verbal sign-language is as active as can be. In fact, its activeness may become multiplied by the particular setting in which it takes place, in our case state education, a compulsory setting where youths are also initiated in the basics of what is right and what is wrong.50 The ECtHR, however, does not cite any authority when it concludes that certain symbols are ‘passive’ and others would be ‘powerful’—it seems to be basing itself purely on common sense. How ‘common’ that sense really is becomes painfully evident when we reverse everything the European Court claims in this regard. A religious symbol on a wall of a state building is ‘active’, ‘strong’, ‘powerful’, ‘external’’ or ‘political’, etcetera, in so far as most if not all people perfectly understand it is the state that has ordered or sanctioned it to be there, thus seemingly indicating a religious preference or at least attaching its seal of approval to what would typically be the dominant religion whilst refraining from bestowing any such seal of quality upon minority religions or non-religious faiths. Religious symbols or attire displayed by individuals, on the other hand, are ‘passive’, ‘internal’, ‘weak’, ‘non-political’, etcetera, in so far as most if not all people—notably those accustomed and content to live in a pluralist and tolerant society—perfectly understand that this symbol indicates a personal religious preference and, in the absence of concrete evidence to the contrary, no coercive attempt to impose on others that preference. From the perspective of parental liberties, the latter train of thought is certainly a very plausible one. How clear, scientifically speaking, any of those messages

 Idem.   Cf. Mawhinney’s contribution to this volume. See her chapter for a fascinating introduction into the discipline of semiotics. 49 50

156  Jeroen Temperman stemming from symbols in actual fact are to (young) children remains to be seen.51 The point here is that the Court’s a priori presuppositions are shady at best given that they can so easily be reversed—and come out stronger. All things considered, the ECtHR should not engage in its private ‘common sense’ deconstructions of the meaning of symbols in the first place. A fortiori, international monitoring bodies should refrain from construing non-Western symbols as quintessentially illiberal since the Court is not qualified to make such assessments; and at any rate, there will always be sufficiently objectifiable factors present in symbol cases on which to base a critical and balanced human rights analysis. The best example of how this can go dreadfully wrong was in Dahlab, where the Strasbourg Court notoriously claimed that the headscarf: appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and nondiscrimination that all teachers in a democratic society must convey to their pupils.52

In Sahin, too, the wearing of Islamic headscarves is deemed synonymous with practices that are inherently coercive, necessarily reflect a degree of submission of women to men, thus affecting gender equality as a matter of course.53 This ‘jurispathic’ role of courts is, as Brett Scharffs argues, “to some extent inescapable and necessary. After all, the law as a normative institution is not just about creation, but preservation as well. A community that is exclusively creative, one that is in the grip of competing jurisgenerative visions, will splinter and fall apart. The centre will not hold. One job of the judge is to decide among competing conceptions, even if it means eliminating others.”54 However, jurispathic judges—like the European Court of Human Rights in the headscarf cases—risk overstepping the mark. Scharffs contends the following in particular reference to national (French) law and courts, but the argument very much applies to international monitoring bodies too: Judges, confronted with too much creativity in the elucidation of normative meanings by various communities within the polis, decide for one, put the 51   See text around note 69, infra, on the declining value of the ‘teachers-as-role-models’ argument. See also previous note and particularly the contribution by Mawhinney in this book, on state symbols. 52   Dahlab v. Switzerland, supra note 44, p. 13. 53   Leyla Sahin v. Turkey, 10 November 2005, European Court of Human Rights, No. 44774/98, para. 115 (seconding the Chamber’s considerations to that effect) and para. 116 (underscoring the “equality before the law of men and women”). 54  Brett G. Scharffs, ‘Four Views of the Citadel: The Consequential Distinction between Secularity and Secularism’, 6:2 Religion & Human Rights (2011), p. 124. See also Scharffs’s chapter on ‘jurispathic’ v. ‘jurisgenerative’ judicial interpretation in this book.

Religious Symbols in the Public School Classroom  157 coercive power of the state behind it, and in so doing destroy or attempt to destroy all other competing meanings. Thus, for example, when a … legislature or court determines that the headscarf is a symbol of oppression, its decision carries with it the coercive power of the state, and its determination of what the headscarf ‘means’ is jurispathic—it kills (or at least tries to), in a decisive and conclusive way, alternative meanings … Muslim girls or women may have a different understanding of what the headscarf means, but when the state declares in an authoritative, official voice, those alternative meanings are not just undermined, they are delegitimized.55

This basic understanding of what type of arguments courts may accept at face value, and what type of arguments they may not, impacts evidentiary questions; notably, it will influence the burdens and standards of proof in symbols cases. Perhaps the ECtHR could have invited expert testimony critically elucidating the potential effects state or individually displayed symbols have on other people (from for instance semioticians, child pedagogy and child psychology experts in Dahlab and Lautsi).56 When the government invokes grounds for restriction that are based on alleged ‘proselytizing effects,’ such a reality check—a moment to pause and reflect informed by experts—would not be out of the question. In relation to allegations of symbols’ inherent womenunfriendliness, or inherent illiberal significance, etc, it is more difficult to see how the ECtHR could invite sound expert testimony that would objectively explain the ‘meaning’ of a symbol, for the plain and simple reason that there is no monolithic ‘meaning’ of for instance the Islamic headscarf out there that could with absolute authority be grasped—not even by experts. In cases like Sahin and Dahlab the Court could, however, relatively straightforwardly question if not falsify underlying Governmental assertions that a certain symbol does have one meaning and that this meaning is necessarily coercive.57 That said, in symbols cases it is typically not actually necessary to invite expert data to settle these cases—as long as we consider the proper mechanisms of human rights law and the derived equitable burdens and standards of proof. In the final analysis, the issue of proof of (the absence of) adverse effects is typically the state’s problem first and foremost—not the individual’s. This holds true for cases involving state-imposed symbols as well as for cases revolving around restrictions of individually-displayed symbols. This point requires   Ibid., p. 123. In her dissenting opinon, Judge Tulkens argued and warned against too jurispathic an approach in Sahin. Dissenting Opinion of Judge Tulkens in Sahin, paras. 11–12. 56   Mawhinney’s contribution to this volume is a case for a more multi-disciplinary approach to this type of cases, notably legal reasoning must incorporate insights from semiotics. 57   For instance, by giving a voice to the very women that have a stake in the case at hand. As Judge Tulkens argues, “[w]hat is lacking in this debate is the opinion of women, both those who wear the headscarf and those who choose not to.” Dissenting Opinion of Judge Tulkens in Sahin, supra note 55, para. 11. 55

158  Jeroen Temperman some closer inspection of these cases, linking questions of standards and burdens of proofs to our observations concerning applicable rights as outlined in the previous section. In restriction cases such as Dahlab and Sahin, at the outset of a legal analysis human rights law is in principle on the side of the ‘symbol-displayer’. The individual, be it a teacher, student or pupil, enjoys after all a fundamental right to manifest a religion both “in public or private”. Any state measure affecting this freedom minimally amounts to an interference with the forum externum.58 The latter freedom is clearly not absolute, but the state will need to substantiate an overriding need to interfere with this freedom, citing accepted grounds for restriction. In symbols cases potential legitimate grounds are “the protection of the rights and freedoms of others” and conceivably “the protection of public order” or “public safety”.59 If the symbol-displayer is an individual, and thus a primary human rights holder vis-à-vis the state, a purely theoretical need to interfere with fundamental rights can hardly ever be considered legitimate— one would assume and hope. Such is however precisely what occurred in Dahlab. The fact that “it cannot be denied outright” that Islamic headscarves “might have some kind of proselytising effect”, as such, is far too abstract and vague a ground to be considered truly legitimate. Only by granting the state an excessively wide margin of appreciation, in one and the same act destroying the very core protection guaranteed by the fundamental right to freedom of religion, could this defence be accepted by the European Court. The Court in Dahlab in fact concedes there was no actual clash of rights, only an academic one.60 It is true that mere threats to the rights of others may under— exceptional—circumstances justify interferences. However, in that case some minimum proof of that risk must be presented by the state. The state may be considered best positioned to make assessments as to certain threats—it is not denied that margins of appreciation do need to play a role here. Yet in order to prevent restrictions from being exclusively based on groundless fears, some minimal substantiation on the part of the state may be expected; moreover, the level of international supervision should minimally include the possibility to

58  In Dahlab, supra note 44, too, which concerns a teacher, dress rules amount at least to an interference according to the ECtHR (at pp. 11–12 reference is repeatedly made to the interference). 59   Art. 9, para. 2, ECHR lists the accepted grounds for limitation. In Dahlab (ibid., p. 9) the Government argued that the aims pursued “were undeniably legitimate and were among those listed in the second paragraph of Article 9 of the Convention. In their submission, the measure prohibiting the applicant from wearing an Islamic headscarf was based on the principle of denominational neutrality in schools and, more broadly, on that of religious harmony.” The Court reformulates (and accepts) these aims as “the protection of the rights and freedoms of others, public safety and public order” (ibid., p. 11). 60   Ibid., p. 12 (“potential interference”).

Religious Symbols in the Public School Classroom  159 pronounce the absence of a ‘pressing social need’ (to restrict) in the event a state does not present that minimal case.61 Put differently, at this stage of our human rights analysis the onus to prove adverse effects still lies squarely on the state. It cannot reasonably be expected from the symbol-displayer, who in principle does nothing more than exercise a fundamental right, to prove that she does not abuse her right (at least, not as long as the state has not provided anything in the way of proof that such would be the case, i.e. some minimal case warranting a reversal of the burden of proof). Following that reasoning, it is all the more remarkable that the fact that the municipal school authorities in Dahlab had not received a single complaint from parents in relation to her wearing a headscarf is nowhere considered to be a relevant factor by the ECtHR.62 After all, such facts are indicators or initial proof (i) that what we are dealing with is a ‘normal’ exercise of a fundamental right and that abuse of rights allegations seem groundless; (ii) that ‘rights-ofothers’ and ‘public order’ limitations advanced by the state prima facie lack real weight (i.e., a ‘pressing social need’ to restrict is lacking); and (iii) that the religious manifestation is in principle still ‘covered’ by human rights law, requiring further substantiation from the state as to the necessity of the interference (i.e., in addition to ‘we fear this individual display may harm others’). None of this goes to show that it is completely out of the question that the restricting state ‘wins’ a case against an individual symbol-displayer. The analysis so far solely reiterates what human rights protection of the freedom to manifest a religion is all about: when states restrict personal manifestations of religion, a substantiation of the necessity and proportionality of the invoked ground for limitation is required. If the aim invoked is the safeguarding of the rights of others, that substantiation may be expected to be particularly thorough if a clash of rights is not something evident. Specifically, if children/parents do not quite feel that their rights are at stake, the state may not seize their rights as an abstract ground for limiting individual religious manifestations. It cannot be ruled out, however, that the state successfully establishes that adverse effects on the rights of others are so imminent that state interference is warranted (or, alternatively, that this risk has been established to the extent that the burden of proof shifts to the symbol-displayer to dispel the information

61   Cf., mutatis mutandis, Dissenting Opinion of Judge Malinverni Joined by Judge Kalaydjieva to Lautsi and Others v. Italy, para. 1. 62   Dahlab v. Switzerland, supra note 44, p. 1: “the schools inspector … informed the Canton of Geneva Directorate General for Primary Education that the applicant regularly wore an Islamic headscarf at school; the inspector added that she had never had any comments from parents on the subject”. And ibid., p. 4: “In displaying a powerful religious attribute on the school premises–indeed, in the classroom–the appellant may have interfered with the religious beliefs of her pupils, other pupils at the school and the pupils’ parents. Admittedly, there have been no complaints from parents or pupils to date” (ECtHR quoting domestic proceedings).

160  Jeroen Temperman presented by the state). For instance, a state may be able—unlike Switzerland in Dahlab—to bring to the attention of the Court particular facts indicating that the display of the religious symbol is accompanied by active acts of improper proselytism on the part of the teacher. There are also circumstances imaginable that potentially warrant state interference with the manifestation of religion for reasons that go beyond those pertaining to the individual behaviour of the symbol-displayer. As those external reasons, reasons beyond our own control, are naturally particularly difficult to stomach, we must tread very carefully here. It should be emphasized that any such reasons—if valid at all—must be construed very narrowly, must as a matter of principle be considered as temporary, and must very thoroughly be substantiated by the state. Let us consider the example where a public school receives complaints from parents that have concrete reason to fear their child may be pressured into accepting religious dress codes they themselves, parents and child, do not wish to observe. Under such circumstances, and if state or school authorities can prove concrete peer pressure (non-observing children are reproached by children of religious parents) as a part of wider patterns of general community pressure (many religious parents want their children to observe religious garb rules in a particular school, particular quarter of district or other well-defined locality), the introduction of temporary and targeted neutral dress rules may be said to serve a legitimate aim. It cannot be overemphasized that none of these factors—religious demography, possibility of community or peer pressure, etcetera—ever justify sweeping national bans on the individual display of religious dress and symbols for the simple reason that such a measure is bound to fail the proportionality test. In all Western European states that have recently introduced such drastic—draconian—bans lesser interfering measures were possible, namely a law authorizing the local authorities (school boards, municipal/borough administrations or other local administrative units) to adopt designated and temporary measures to pacify recorded instances of religious pressure. Also, the higher the form of education, the higher the standards of proof regarding the necessity of such measures may be expected to be. In this regard, mature university students, such as in Sahin, can be meaningfully distinguished from primary school children, such as in Dahlab.63 Admittedly, that is a ‘common sense’ distinction and deconstruction too. Yet this distinction does not boil down to venturing into the meanings of symbols per se, but rather reflects the internationally recognized acknowledgment that the less mature and empowered people are in cases of conflicting freedoms of conscience, the stronger the protection of these ‘rights of others’ may be expected to be. 63   To be sure, note that in Dahlab, ibid., neither religious pressure by the teacher nor community or peer pressure by parents or children to wear a headscarf was proven by the state.

Religious Symbols in the Public School Classroom  161 International children’s rights discourse on the ‘best interest of the child’ and the ‘evolving capacities of the child’ are reasonably objectifiable criteria that in fact allow us to circumvent doctrinal debate about symbols per se. In addition to the “protection of the rights and freedoms of others”, the need to preserve the non-denominational character of the state and state schools (or more generally, the ‘neutrality’ of the state; or more narrowly, the ‘secularity’ of the state) is typically advanced by the state as a ground to interfere with the display of symbols in those symbols cases where individuals act as symboldisplayer.64 State neutrality is a legitimate ground for limitation only insofar as it can be deemed a prerequisite for the protection of the rights of others and for public order.65 This possible ground for interfering with the display of symbols begs the question what (acts, situations) could actually be said to ‘affect’ the neutral character of the state or of the state school system specifically. In other words, who may be expected ‘to be neutral’? And to what extent? It is possible to distinguish teachers from ‘the state’ itself. Obviously the distinction between teachers and pupils/students is also significant in the present debate. Let us start with the latter point. Though certainly entering the ‘public realm’ in abstracto, public school pupils do not represent the state in any way whatsoever inasmuch as they simply make use in a private capacity of a service—a compulsory one in case of primary school education66—that is provided by the state. The same goes for university students, though they enter this public space on a more voluntary basis. It may be reiterated once more that freedom of religion or belief is in principle protected “in public or private”. Accordingly, in the absence of extreme circumstances (proven community and peer pressure, religious strife) it can hardly ever be considered necessary to altogether ban the display of individual religious symbols from the public school system for that system to be and remain non-denominational (or ‘neutral’, or ‘secular’). The display of religious symbols by individuals, if there are no concrete indications—beyond unsubstantiated fears—that such display is accompanied by or triggers religious pressure, does not show the failure of state neutrality. If anything, it shows there is equal respect for the manifestations of different beliefs by individuals, also in public. To the extent that pupils/students can be said to ‘affect’ 64   E.g., in Dahlab, ibid., p. 2 (“the strict obligation of denominational neutrality”), p. 4 (“the principle of denominational neutrality”). 65  In Dahlab, ibid., p. 4, it was concluded during the domestic procedure that the “impugned decision is fully in accordance with the principle of denominational neutrality in schools, a principle that seeks both to protect the religious beliefs of pupils and parents and to ensure religious harmony, which in some respects is still fragile”. The European Court, ibid., p. 12, underscores several times (by implication) the “denominational neutrality” of the public school system as a legitimate ground for restriction. 66   Secondary schooling is typically largely compulsory too, depending on national legislation on compulsory education and the fixed school-leaving age.

162  Jeroen Temperman the neutrality or secularity of the state non-verbally and inadvertently, such is in principle covered by their right to observe their religion “in public”. Consequently, the denominational neutrality card should not uncritically be accepted when played out against pupils/students.67 With respect to public school teachers the situation is different inasmuch as the link between these individuals and the state—and the latter’s need to observe neutrality—is a closer one.68 That arguably holds true regardless of the question whether or not public school teachers are appointed as civil servants under domestic law. On the face of it, then, that fact may lend some support to abstract argumentations premised on ‘teachers-as-role-models’ in conjunction with the argument that public service workers expressly or implicitly wave some of their rights when they enter their function. Still, though, the neutrality argument in the present context should not be accepted as a wholesale justification. Despite the fact that some deference to the state’s position on any of this may be in order, not all abstract arguments should be uncritically accepted. First, note that the argument that teachers function as a ‘role-model’, and that especially younger pupils would be likely to copy the behaviour of this authoritative figure, does not find an equivalent in the relevant contemporary scientific research.69 That observation casts serious doubt on the assumption that teachers’ attire and symbols as such (i.e., in the absence of express proselytizing behaviour) “might have some kind of proselytising effect” (i.e., the Dahlab formula). In the light of the foregoing discussion on the position of international judges, the question is whether international monitoring bodies should (by virtue of granting states a wide margin of appreciation) acquiesce in abstract proselytism arguments or whether instead critical inquiries into the exact necessity of the symbol/dress ban are in order. Considering the fact that we are dealing with a symbol-displayer as individual rights holder, international scrutiny is most certainly in order. If special proof of the risk of proselytism is required in order to decide the case, it is the state that faces the evidentiary burden—individuals, also in their capacity of teachers, in principle exercise a fundamental right. That is, unless we should conclude that public service workers are deprived of certain rights or at least of the public dimensions thereof. That is precisely the gist of the related waver-of-rights argument: regardless of whether they are formally under the domestic laws considered civil servants or not, public school teachers work for a public institution, a position they have voluntarily taken up. In contrast to the position of pupils/students, one could accordingly   See also Dissenting Opinion of Judge Tulkens in the case of Leyla Şahin v. Turkey, para. 5.   Cf. ibid., para. 7. 69   See Stijn Smet’s contribution to this volume, particularly section V of his chapter and the there cited child psychological and pedagogical research. 67 68

Religious Symbols in the Public School Classroom  163 consider—the argument goes—that teachers represent the state to some extent, and at any rate may be expected to abide by certain professional duties that come with working for a public institution. But abstract fears alone again ought not to be all-decisive at this specific junction of our symbols discussion. To a considerable extent, the public manifestation of religion by individuals through the use of symbols is only as problematic as states make it and want it to be. Certainly, there may be niches of the public square where strict denominational neutrality cannot be subject to any compromise (e.g., the impartial appearance of the judiciary); however, not all that is deemed ‘public’ is necessarily or automatically adversely affected by the individual display of symbols. In some parts of Europe individually displayed symbols by for instance policemen is ever so unproblematic and has not led to public indignation—importantly because it is legally not treated as a problematic issue. This almost appears a self-enhancing principle: the less the state panics about the individual display of religious symbols in public places, even where it concerns public service workers, the more visibly and literally pluralistic and equally respective of symbols the state is and appears, and the more likely it is that the symbol-viewer, in turn, finds it rather normal that s/he is confronted with a personal religious symbol in the public space. Unfortunately, the flip-side seems to hold equally true: political and legislative panic may very well foster societal panic. Also note in this regard that the vehement and obstinate rejection of individual religious symbols from public spaces is very symbolic in its own right: religion as something ‘for at home’. And: only persons that show no sign of religion may be expected ‘to serve the public well’. Let us turn now to the altogether different situation where the state acts as symbol-displayer and where individuals are rights holders chiefly as symbolviewers. None of the above goes to show that states are free to display any symbol they see fit, anywhere they see fit. It may be reiterated that where the state acts as symbol-displayer we can hardly consider the state to qualify as rights holder under international human rights law. Human rights arguments— which, alarmingly, can actually be found in Lautsi—premised on the a priori overruling force of perpetuating majority traditions are flimsy indeed.70 There is no such thing as a right of the dominant religion to display symbols inside the public premises of its choosing. That practice is a possibility, indeed a “tradition”,71 but in line with what we have seen a rather objectionable one from the perspective of the requirements of freedom of religion or belief, equality before the law, and equal access to public services. The state that would downright refuse the display of symbols of the dominant religious tradition in public  See supra, text at notes 7–23.   In the words of both the Italian Government and the Grand Chamber, Lautsi and Others v. Italy, supra note 10, resp. paras. 36–37 and paras. 67–68. 70 71

164  Jeroen Temperman schools would not interfere with any fundamental right, a position further supported by the existence of residual religious and educational rights.72 It is indeed precisely the existence of the right of churches, religious communities, and private school boards, to design alternative schooling with an expressly non-critical, deliberately non-objective, and distinctly non-pluralistic teaching environment, that makes it all the more important for states to keep public school education truly public. ‘Crucifix schooling’ is fully guaranteed by international law, but not inside state-run institutions. Proselytizing young, impressionable pupils is fully accepted by international law, but non-state entities will have to organize that for themselves. Mindful of those preliminaries, let us further consider the position of the display-viewer, the latter’s fundamental rights and especially the derived equitable burdens and standards of proof in cases where the state imposes the symbol or sanctions the perpetuation thereof. The Grand Chamber in Lautsi applies as key yardstick the question as to whether the crucifix indoctrinates pupils.73 There are two issues here: (i) whether that is an adequate human rights test in this case?; and (ii), once we have established the right test, who is to prove/falsify any adverse influence? The very narrow indoctrination test the Grand Chamber (chiefly) applies can be criticized for various reasons. First and foremost, this test departs from the comprehensive ‘pluralism in education’ and ‘non-proselytism’ tests formulated and applied by the Court in public education cases. From for instance Folgerø it follows that the public school framework and curriculum must be designed in a way so that it can be guaranteed that children are taught in an objective, critical and pluralistic manner.74 The fact that the state has not expressly pursued an aim of indoctrination does not quite ensure that public school education is sufficiently pluralistic or universally accessible. As the Court postulated in Folgerø, “abuses can occur as to the manner in which the [educational legislation’s] provisions in force are applied by a given school or teacher and the competent authorities have a duty to take the utmost care to see to it that parents’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism”.75 For sure, the high-threshold question as to whether outright coercion takes place is certainly one of the most pertinent questions when we are dealing with cases where individuals display symbols and where other individuals simultaneously hold rights as symbol-viewers. In those cases we need to know more  See supra, text at notes 7–23.   Lautsi and Others v. Italy, supra note 10, para. 62. 74   Cf. Mawhinney’s and Pierik’s contributions to this volume (see section III of Mawhinney’s chapter; and see section III of Pierik’s chapter). E.g. in Folgerø and Others v. Norway, 14 February 2006, European Court of Human Rights, No. 15472/02, paras. 84–102. 75   Folgerø, ibid., para. 84(i) (emphasis added). 72 73

Religious Symbols in the Public School Classroom  165 or less precisely the adverse effects to know how to justly balance competing fundamental rights claims. Put differently, to restrict the individual display of religious symbols a degree of abuse of religious rights must be substantiated: it must become evident that we are dealing with an extraordinary case in which the individual indeed seeks to indoctrinate others or indeed minimally engages in so-called “improper” acts of proselytism.76 The position (superior, teacher, etc) of the symbol-displayer may certainly be taken into account so as to judge the latter; however, the fact in itself that a person decides to display a religious symbol does not amount to a clear aim of improper proselytism (for it is covered by a human right to behave in that way). In short, we need to assess the actual behaviour of the symbol-displayer in order to make up the final balance. In the case of state-imposed symbols ‘misplaced proselytism’ is rather easily prima facie established, for most if not all proselytizing endeavours on the part of the state are misplaced. What would in the civilian world—especially in a pluralistic and tolerant world where one is perfectly accustomed to diversity— be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of compulsory public schooling, be viewed as a form of undue pressure in abuse of power.77 In addition to the outlined negative religious liberties, in those cases where the state imposes the symbol, and where the symbol-viewer is consequently the principal rights holder, important questions emerge regarding equal access to public services. Thus, our next question is whether the state may present parents/children with conscientious dilemmas in the area of the ‘compulsory public good’ that is primary school education. Specifically, the dilemma is a forced choice between surrendering access to state education or surrendering one’s (non-)religious conscience.78 Judge Bonello finds it absurd that anyone 76   Whereas the ECtHR speaks of “misplaced” proselytism (Folgerø, idem; see also Hasan and Eylem Zengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04, para. 52) or “unrestrained” proselytism (Şefika Köse and 93 Others v. Turkey. 24 January 2006, European Court of Human Rights, No. 26625/02) in relation to state obligations in the area of public schooling; in relation to horizontal individual acts, the decisive factor is the ‘properness’ of proselytism. Cf. Kokkinakis v. Greece, 25 May 1993, European Court of Human Rights, No. 14307/88, paras. 48–49 (“improper proselytism”); and Larissis and others v. Greece, 24 February 1988, European Court of Human Rights, Nos. 23372/94; 26377/94; 26378/94, para. 45 (“improper proselytism”). 77   This is the Larissis formula (ibid., there employed to contrast the civilian world with the confined and hierarchical world of the military), here applied to compare the civilian world with areas where states exercise public authority. Again, this is not to say that all civilian display of symbols is necessarily innocuous: how free others in the civilian world are exactly ‘to accept or reject’ would depend on the context, and particularly on the behaviour of the symbol-displayer. 78   The fact that this is a real issue and not an academic one, and also that it is experienced beyond the realm of predominantly Catholic states, is reported by, e.g., Charles Russo in relation to Republika Šrpska. If religious (in this case Christian Orthodox) symbols are present in each and every public school throughout the state, children of non-believers or those belonging to

166  Jeroen Temperman could, on grounds of religious liberty, find issue with a crucifix in a schoolroom.79 But perhaps it is not quite so unimaginable or unreasonable that parents that send their child to such a ‘public’ school are very anxious that the state favours the predominant religion—favours it to the extent that the state goes out of its way ensuring an official salute to this religion in each and every state school—and that this very fact alone objectively, rather than subjectively,80 undermines the public quality of state schools their children, and they themselves on account of their parental liberties, are entitled to.81 In the event that Italy had adopted a law requiring all public schools to henceforth display a symbol representing—equally unambiguously82— atheism in each and every public school classroom, a breach of the Convention could be established likewise. Indeed, one wonders what the third party interveners’ reactions would have been should the Strasbourg Court, for instance, have condemned the Czech Republic—a somewhat more likely example with >50 per cent of the population consisting of atheists, agnostics, non-believers or no-organized believers— on account of a federal law requiring that on each and every state school wall an A (for Atheism) be painted (or any other wellknown atheist sign).83 A state that imposes a crucifix in a public school classroom suggests that the religion that is thereby symbolized is the exemplary religion. A state that paints an Atheism sign on each and every public classroom wall suggests that pupils are well-advised to denounce all religion. Such state-imposed symbolism interferes with the right to freedom of thought, conscience or religion of parents and children—even if the atheistic or religious majority share a heartfelt wish to perpetuate that tradition. And in either scenario there may very well be

minority religions may not have genuine access to public school education. Charles J. Russo, ‘Religion and Education in Bosnia: Integration Not Segregation?’, 3 Brigham Young University Law Review (2000), p. 945. 79   Concurring Opinion Judge Bonello to Lautsi and Others v. Italy, paras. 2.8–2.9. 80   The Grand Chamber held in Lautsi that “the applicant’s subjective perception is not in itself sufficient to establish a breach of Article 2 of Protocol No. 1” (Lautsi and Others v. Italy, supra note 10, para. 66). 81   Needless to say, here residual rights of parents (in this case the rights of the non-religious to arrange private education) do not remedy the situation: it is the state’s duty under international law to make available public education with adequate curricula, teaching methods, and to ensure universal access to state-organized education, which includes avoiding policies that could cause conscientious obstacles to universal access and enrolment. 82  E.g. the different variations on the A-symbol. See . Or think of the different ‘No Religion’ symbols: i.e. a cross, the word ‘God’, or the word ‘religion’ placed against the background of a prohibited-sign. The A-symbol is most apt for the purposes of the analogy drawn here with religious symbols. ‘No Religion’ symbols are overly anti-religious, rather than positively representing a non-religious (atheism, agnosticism, etc) faith. 83   See previous footnote. To be sure, the Czech Republic has adopted no such ludicrous policy.

Religious Symbols in the Public School Classroom  167 parents that cannot enrol their child in any such ‘public’ school without doing serious harm to their conscience. Note that we are talking about (relatively) unambiguous religious symbols (e.g., a crucifix) and equally (relatively) unambiguous atheist signs (e.g., said A-signs). False analogies ‘demonstrating’84 the innocuous nature of imposing on all the symbol of the dominant religion are easily made. The fact that we also see many ‘secular’ symbols in the public square is quite beside the point. Also, comparing ‘crucifix schooling’ with widespread forms of religious symbolism practised more generally in other areas (e.g., on flags or coats-of-arms) does not distract from sincere access issues in relation to public education caused by the former practice. Thus, in the area of state symbols the risk for actual indoctrination is only one concern. The state’s obligation to ensure that everyone can enrol in public schools without conscientious trouble is as important. It is odd why the European Court of Human Rights has not quite recognized this concern in relation to public education, as it has elaborated on this requirement in other areas of law and policy-making. Religious oaths of office—a widespread ‘tradition’ too in Europe and elsewhere85—are not problematic because of a scientifically proven risk that the oath-taker will subsequently be a devout adherent to the dominant religion, but mainly because such oath schemes signal that ‘normally’ the incumbent office holder adheres to the dominant religion. This is precisely the reason that even certain optional religious oaths schemes (if the religious oath is the rule and the secular affirmation the tolerated exception) are objectionable from a human rights perspective: the assumption is that ‘normal’ office holders adhere to the religion or God sworn to. Moreover, nonbelievers or members of minority religions are forced to reveal that they do not share that dominant faith if they want to take the secular affirmation—or alternatively feign the religious oath contrary to their conscience.86 By and large the same goes for public education (and many other public services for that matter): even short of establishing the precise decree of indoctrination the conclusion must be that there is no place for religious symbols on walls of state school premises. There the main concern is that parents/children may reasonably think the state takes sides in religious matters—the message is: the normal religion in this class is x. Even if that is not officially the intended message, and even if the state otherwise formally promotes pluralism, it is in this situation that it “cannot be denied outright”—to use the Dahlab formula—that

84   One is invited to consult the third party interventions in Lautsi for some examples (Lautsi and Others v. Italy, supra note 10). 85   Jeroen Temperman, State–Religion Relationships and Human Rights Law (Leiden/Boston: Martinus Nijhoff Publishers, 2010), pp. 316–320. 86   Cf. Alexandridis v. Greece, supra note 7; and Buscarini and Others v. San Marino, supra note 6, for examples of respectively optional and compulsory religious oath of office schemes.

168  Jeroen Temperman ostensible religious preferences on the part of the state may impact every day school life. Consequently, parents objecting to the symbol’s presence in their children’s public school have a prima facie human rights case. Accordingly, the onus must be on the state to substantiate what measures it has taken to make absolutely sure that the symbol policy does not negatively affect public education. It is quite remarkable that the fact that “no evidence” was brought “before the Court”87 on the symbol policy’s effects in Lautsi is held against the applicant. The nature of the Italian policy means that all public schools are obliged to display the crucifix with no possible local exceptions or opt-outs. Somewhat different is the situation where the display is in principle prescribed by national or local regulations, but where schools must remove the symbols in case of complaints by parents—a decent attempt at ‘treaty-conform interpretation’ found in some of the jurisprudence stemming from constitutional, supreme or other courts in Europe (notably Spain).88 What remains problematic in that situation, however, is that adherents of minority beliefs or non-believers are forced to reveal that they do not share the dominant religion and that they in fact find issue with a tradition cherished by the majority. The risk for ostracization or other repercussions alone could make affected persons decide to rather surrender their conscience and not speak out. The public space is created by the liberal state as a universally accessible domain precisely with a view towards guaranteeing that the state itself will never—be it deliberately or inadvertently—force such dilemmas on any of its inhabitants. Here the analogy with opt-outs to religious instruction in public schools is quite apt. There is increasing evidence available that opt-out provisions are the problem rather than the solution (to the compulsion element of religious instruction in public schools).89 The traditional view, formulated by most international monitoring bodies, including the UN Human Rights Committee and the ECtHR,90 is that there are two main ways for the state to fulfil its   Lautsi and Others v. Italy, supra note 10, para. 66.   For more examples of how domestic courts have pacified state symbols questions, see the detailed country studies in the comparative part of this volume (Part V). 89   Alison Mawhinney et al., Opting Out of Religious Education: The Views of Young People from Minority Belief Backgrounds (Belfast: Queen’s University Belfast, 2010); Yuko Chiba and Alison Mawhinney, ‘Religious Education, Opt-Outs and Freedom of Religion in Schools’, in Welfare of the Child and Beliefs of the Parents (Cyprus: University of Nicosia Press, 2010); Alison Mawhinney, Submission to the Human Rights Committee with Respect to the Third Periodic Report of Ireland [NGO Information], March 2008 (this shadow report is a response to U.N. GAOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/IRL/3, paras. 409–11); Alison Mawhinney, ‘Freedom of Religion in the Irish Primary School System: a Failure to Protect Human Rights’, 27(3) Legal Studies (2009); Alison Mawhinney, Freedom of Religion and Schools: the Case of Ireland (Saarbrucken: VDM Verlag, 2009). 90   See, e.g., Folgerø and Others v. Norway, supra note 74; and Leirvåg v. Norway, 3 November 2004, Human Rights Committee, Communication No. 1155/2003. 87 88

Religious Symbols in the Public School Classroom  169 relevant human rights obligations. It either creates an educational system and a public school curriculum in a designedly pluralistic manner; or, alternatively,  in case it does allow confessional religious instruction (i.e., religious education going beyond neutral courses about religions) in public schools, the state lives up to its commitments if it grants adequate opt-out rights.91 However, if we consider the every-day reality of school-life and the practical limitations of these opt-out schemes, it becomes clear that exemption policies can neither prevent nor remedy a number of fundamental concerns. One may think of privacy concerns (in relation to the intimacy of one’s beliefs), ostracization (the opted-out child may be deemed ‘different’ by its peers), or personal identity-issues (the opted-out child, temporarily removed from its peers, itself discovers that it is somehow ‘different’). Both parents and child sacrifice at least a degree of privacy of their inner-most dictates of their conscience whenever they make their grievances public so as to obtain the exemption. Naturally, the precise degree depends on what information is required, but at any rate the burden is on parent/child to reveal that they wish to deviate from orthodoxy, that they are not a normal case. Thus, the interrelated issues of potential marginalization, young pupils’ identity issue, and forced disclosure of (aspects of) non-orthodox beliefs, provide a firm case against doctrinal religious instruction in public schools per se. If opt-outs do not remedy the compulsion element of doctrinal religious instruction in state schools, international monitoring bodies should revise their approach and their tests accordingly.92 With respect to ‘crucifix schooling’, it is equally clear that neither individualized opt-outs nor the possibility of school opt-outs can fully remedy the situation as long as those exemptions are 91   Unlike the issues discussed in what follows, a number of problems surrounding opt-out schemes can be fixed. First of all, opt-out clauses are, naturally, not adequate remedies if the subject of religion is too closely integrated with the curriculum (like in Ireland, for instance). Thus, the religion subjects must be taught separately at times known to parents in advance. Exemption schemes must be non-discriminatory. People of all religious denominations must be in a position to avail of the opt-out provisions: also parents/children that nominally adhere to the dominant religion must be in a position to opt-out. After all, what counts is not one’s religious affiliation but whether religious instruction is desired or conscientiously objected to. Religious parents, too, may very well decide to either privately teach religion to their children or to actually let the child freely discover this for itself. See, mutatis mutandis, Hasan and Eylem Zengin v. Turkey, supra note 76. Furthermore, exemption schemes in practice do not work if they are not transparent and if parents and pupils are not informed about their rights. The Committee on the Rights of the Child criticized Poland in this respect, observing that “despite regulations guaranteeing that parents can choose for their children to attend ethics classes instead of religion classes in public schools, in practice few schools offer ethics courses to allow for such a choice and students require parental consent to attend ethics courses.” Concluding Observations: Poland, adopted 4 October 2002, U.N. GAOR, Comm. on Rts. of the Child, 31st Sess., U.N. Doc. CRC/C/15/Add.194 (2002), para. 32. 92   Something that cannot be emphasized enough is that such an approach does not prejudice in any way whatsoever the possibility of religious instruction in private denominational schools. Internationally recognized residual rights to that effect exist.

170  Jeroen Temperman dependent on parents/children coming forward with ‘sustained complaints’. The policy under which local (school) authorities are mandated to cease crucifix schooling in the light of complaints could perhaps be applauded as an interim solution. Taking privacy rights, the best interest of the child, and nonpersecution on religious grounds seriously, ultimately means that the state must pro-actively guarantee that public goods remain universally accessible and not leave that to the bravest among the unorthodox. IV.  Of Margins of Appreciation and the ‘Court’s own Legitimacy’ It perfectly stands to reason that States ensure that public schools uphold their public character so that all who wish or are legally obliged to attend may do so without conscientious scruples. By way of conclusion, let us reflect on an issue that importantly underlies the Grand Chamber decision in Lautsi: the implicit—and at times rather explicit—understanding that the Chamber’s Second Section had overstepped the mark, had unacceptably interfered with a purely internal Italian affair, added to a real sense of fear that Italy would never have complied with the first Lautsi judgement—governmental representatives had indeed expressed Italy would most definitively not.93 In other words, this decision would fit in a series of overly intrusive Strasbourg judgements (e.g., UK’s reaction to the judgement in Hirst,94 and other such instances) potentially undermining the Court’s legitimacy. One question is whether the first Lautsi decision indeed falls within this pattern of risky ‘activist’ decisions or whether different players in the Lautsi saga have tried to convince us it falls in that category whilst it actually does not. The second question is whether we should care (this time) if that were the case. Let us start with the latter issue of judicial activism. Perhaps it is too easy to rebut that concern by postulating that it is the moment the European Court becomes overly preoccupied with its own legitimacy—to the extent that it would even a priori weight it as a swaying factor—that its legitimacy receives the biggest blow. Certainly, no one benefits from an exodus from the Convention. But in this area, too, reality checks are in order. It should be borne 93   Not least eloquent were the concerns voiced by the Italian minister of defence, Ignazio La Russa, who stated on television: “Anyway, we won’t take away the crucifix! They can die! The crucifix will remain in all school’s rooms, in all public rooms! They can die! They can die! Them and those fake international organizations that count for nothing!” (interview available at ). Silvio Berlusconi heavily criticized the first Lausti decision too. E.g., Reuters, ‘Berlusconi Says Crucifix Ruling Denies Europe’s Roots’, 4 November 2009, available at . 94   Hirst v. the United Kingdom (No. 2), 6 October 2005, European Court of Human Rights (GC), No. 74025/01, on prisoners’ right to vote.

Religious Symbols in the Public School Classroom  171 in mind that minority protection is by definition an unpopular enterprise. The at least partially successful Europe-wide (legal) emancipation of first homosexuals and later transsexuals, importantly fostered by the Strasbourg Court’s case law, would not have been possible if the Court at the relevant time had been preoccupied with its own legitimacy. True, relevant judgements were jurisprudentially carefully premised on European legal and societal changes; but in reality these decisions were very much in the face of alarming prejudices and on-going legal and societal discrimination in many parts of Europe. But what matters most some decades down the line is that despite initial scruples on the part of some governments these European judgements made headway into many national jurisdictions. Sometimes Strasbourg gently moulds a common European position. For if we have to wait for all member states to first convince their religious majorities that this is the way to go, we may have to wait for ever. Defenders of tradition will call it ‘activist’ or at least ahead of its time—defenders of minority rights will call it the pivotal catalyst and occasionally necessary counter-majoritarian role that comes with collectively agreeing to a European social contract. Following an early Strasbourg decision on gay rights, the Cypriot Judge Zekia predicted public outcry in Christian Europe surely affecting the position of the Court95—he was wrong. Many equivalent verdicts followed swiftly concerning other European countries,96 many a law was changed, and legal emancipation made considerable headway, mutually reinforcing with gradual societal emancipation. As Eric Heinze argues, “[w]henever other arguments run out, omens of ‘outcry’ and ‘turmoil’ based on ‘centuries old’ beliefs, are invoked. It is an age-old tactic, used in the denial of the most fundamental rights, from suppression of alternative political or religious viewpoints, to slavery and racial discrimination, to subjugation of women”.97 Strikingly, those same majoritarian arguments—accompanied by the complete denial of minority rights—advanced by Judge Zekia can thirty years later almost verbatim be found in the Grand Chamber’s reasoning and in the appended arguments of

95  Dissenting Opinion of Judge Zekia in Dudgeon v. United Kingdom, 22 October 1981, European Court of Human Rights (GC), No. 7525/76: “Christian and Moslem religions are all united in the condemnation of homosexual relations and of sodomy. Moral conceptions to a great degree are rooted in religious beliefs … All civilised countries until recent years penalised sodomy and buggery and akin unnatural practices … While on the one hand I may be thought biased for being a Cypriot Judge, on the other hand I may be considered to be in a better position in forecasting the public outcry and the turmoil which would ensue if such laws are repealed or amended in favour of homosexuals either in Cyprus or in Northern Ireland. Both countries are religious-minded and adhere to moral standards which are centuries’ old.” 96  For the inevitable decision regarding Cyprus, see Modinos v. Cyprus, 22 April 1993, European Court of Human Rights, No. 15070/89. 97   Eric Heinze, Sexual Orientation: A Human Right – An Essay on International Human Rights Law (Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1995).

172  Jeroen Temperman the concurring Judges in Lautsi (i.e., those arguments premised on the Italians’ right to perpetuate a majority religious tradition). Judge Zekia argued: we must not forget and must bear in mind that respect is also due to the people holding the opposite view, especially in a country populated by a great majority of such people who are completely against unnatural immoral practices. Surely the majority in a democratic society are also entitled … to respect for their religious and moral beliefs and entitled to teach and bring up their children consistently with their own religious and philosophical convictions. A democratic society is governed by the rule of the majority. It seems to me somewhat odd and perplexing, in considering the necessity of respect for one’s private life, to underestimate the necessity of keeping a law in force for the protection of morals held in high esteem by the majority of people.98

In Lautsi, the third party interveners, the Government of Italy and some of the concurring Judges, rather went out of their way to create a picture of the case showing that what we are dealing with is not even a real human rights case— what we are dealing with, surely, is but a militant atheist looking for a game of rough-and-tumble, abusing her so-called rights in the process. Rough-andtumble is what Ms Lautsi got—probably a bit more than she bargained for.99 But the only question that should matter for the European Court is whether the applicant has standing and a prima facie case, that is, a case that is not manifestly ill-founded. Particularly the access to education angle to the case made it prima facie founded, considering the fact that it is within states with an overwhelming religious majority where, moreover, official or de facto ties between the state and the dominant church exist, that states should be all the more vigilant that this situation does not hamper access to socio-economic goods by minority groups or non-believers.100   Dissenting Opinion of Judge Zekia in Dudgeon v. United Kingdom, supra note 95.   It has been reported that she and her children were harassed; that crosses were painted on her house; and that “wanted” posters with pictures of the Lautsi family were put up by a mayor/ MP. See, e.g., Human Rights Forum, ‘A Tale of Two Courts – Part Two: The Reactions to the Lautsi v. Italy Chamber Judgment’, available at . Note that these fairly sensationalist facts serve a substantive argument as well: if there is any truth to these reports, this shows once more that the otherwise fairly agreeable solution of having local school boards, upon receiving sufficient complaints from parents, decide on a case-by-case basis whether or not religious symbols are removed, is ultimately not a satisfactory resolution. Non-religious parents or adherents of minority religious are still forced to choose between surrendering their conscientious objections (enrol their child to a school that is not sufficiently pluralistic and public) or facing the wrath of the community. As has been argued throughout, the state is under a human rights obligation to refrain from imposing such dilemmas on people. 100   In the words of the UN Human Rights Committee: “The fact that a religion is recognized as a state religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant … In particular, certain measures discriminating against the latter, such as measures restricting eligibility for government service to members of the predominant       98       99

Religious Symbols in the Public School Classroom  173 Never has the Court been so actively lobbied to reverse a judgement as in Lautsi, with numerous religion-based organizations impressively channelling the indignation by joining forces and by mobilizing civil society, politicians and academic scholars to intervene for their cause. The Grand Chamber all too eagerly took the bait. If ‘the Court’s legitimacy’ was what was on the line, one may very well wonder whether the precise fashion in which the Grand Chamber divulged its U-turn to the world was particularly helpful. For some are bound to perceive the case as yet another reiteration of the fact that Muslims statistically have a hard time winning their cases in Strasbourg; whereas Christians, or ‘Christianity’ as the case may be, win them as a matter of course—be it in the area of defamation cases, education cases, symbol cases, political association cases, etc. Where some may see latent double standards, others may experience the Court’s symbols jurisprudence even as expressions of xenophobia, notably in relation to the Court’s arbitrary substantive qualifications regarding to the ‘meaning’ of Western v. non-Western symbols. Be that as it may, inexplicable decisions regarding the burdens and standards of proof in personal attire and state-imposed symbols cases are for sure bound to affect the Court’s legitimacy in the long run. The same holds true for the Court’s downplaying of minority rights in pluralist societies and the Court’s simultaneous upgrading of orthodox morality to the level of absolute legal entitlements. European Court judges firing ad hominems at applicants,101 or presenting us with their personal declarations of faith,102 is not likely to benefit the Court’s legitimacy either. In sum, a catalyst and occasionally counter-majoritarian European Court is merited when minority rights are really on the line—the Italian Government’s and concurring ECtHR judges’ interventions in the whole Lautsi saga are religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26…” Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Art. 18), CCPR/C/21/Rev./Add.4 (1993), para. 9. 101   Concurring Opinion of Judge Bonello to Lautsi and Others v. Italy, paras. 1.5 and 1.6. 102   Judge Bonello refers to the crucifix as “a timeless symbol of redemption through universal love”. Admittedly, he puts these words in the mouth of others, namely “millions of Europeans”, but it nonetheless is his choice of words. The full sentence reads: “It would have been quite bizarre, in my view, for this Court to protect and redeem an under-the-counter, over-theborderline discharge of nauseous obscenity on the ground of its distinctly faint ‘European heritage’ merit, and, in the same breath, deny European heritage value to an emblem recognised over the centuries by millions of Europeans as a timeless symbol of redemption through universal love” (ibid., para. 4.1). The comparison he makes is in reference to another case recently decided by the Court (Akdaş v. Turkey, 16 February 2010, European Court of Human Rights, No. 41056/04) in which the Court had deemed Turkish criminal and other sanctions (notably the banning of the book) imposed on the Turkish publisher of the novel Les Onze Mille Verges by Apollinaire a violation of the freedom of expression. Bonello was displeased with the Court’s saving this “smear of transcendental smut” (ibid., para. 4.1). After all—so he reasons— “Wikipedia classifies this work as ‘a pornographic novel’” (ibid., para. 4.1, fn 3).

174  Jeroen Temperman worrying demonstrations of how seriously the rights of the non-religious are taken—even if that means that states and the orthodox religious establishment do not get precisely what they want. But all the previous considerations do not distract from the announced second point: the first Lausti decision was not an earth-shattering decision. It was not tremendously far-reaching or excessively intrusive; and it was in actual fact not in the face of widely varying state practice in Europe. The backlash to Lautsi I was brilliantly orchestrated and overstated and—it is safe to say with the benefit of hindsight—very successful.103 But let us be clear: the Chamber did not rewrite European history, did not for once and for all eradicate all religious symbols from the public domain, and did not install a Europe-wide once-size-fit-all regime of stringent laïcité. What the Chamber did was concluding that in relation to one well-defined and confined element of the public space—the public school framework—a number of solid human rights reasons exist that require that space to be truly universally accessible; something that does not prejudice the possibility that dominant religions are generally more visible in public, and not affecting in any way whatsoever denominational schooling.104 A decision like that is not revolutionary. It is what Europe by and large already thinks and does. In Lautsi II, the Grand Chamber can hardly wait to adopt a wide margin of appreciation.105 One of the decisive reasons cited in that regard is the claim that the matter at hand would not yet have yielded a consensus in Europe. The little exercise106 in comparative European state practice presented in the Grand Chamber judgement is, however, a fraud. Or in any event it is highly misleading. State practice is not so divided as the Italian Government, third party interveners, and ultimately the Grand Chamber, want us to believe. If one is adamant to prove a diverse European practice, this 103   An interesting behind-the-scenes report on the strategies used by religious organizations, from American Evangelicals, to the Holy See, to the Russian Orthodox Church—wary that Lautsi I could have had local ramifications by way of jurisprudence citing the Strasbourg Court’s precedent—to reverse the first Lautsi judgement is presented by Pasquale Annicchino, ‘Winning the Battle by Losing the War: The Lautsi Case and the Holy Alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to Reshape European Identity’, 6(3) Religion & Human Rights (2011), pp. 213–219. 104   The gist of the first Lautsi decision (supra note 10) is–it will be clear–largely applauded here. However, the Chamber’s exact reasoning is not entirely seconded. It follows from the above discussions that the Chamber could have elaborated much more extensively on the equality before the law and the access to public education angles to the case (i.e., in addition to the freedom of religion of parents and child angle). Although the Chamber presented a number of solid arguments, important complementary considerations were omitted, and the judgement would at any rate have benefitted from a more robust and rigorous analysis. 105  On the extraordinary adoption of a (very) wide margin of appreciation, see Kristin Henrard, ‘Shifting Visions about Indoctrination and the Margin of Appreciation Left to States’, 6(3) Religion and Human Rights (2011), pp. 245–251. 106   And uncritically copied from third-party interveners. See Section III of–what is ironically part of–“The Facts” of the judgement (Lautsi and Others v. Italy, supra note 10).

Religious Symbols in the Public School Classroom  175 is easily done by generally answering the question as to what types of practice on state symbolism are out there. One will find, as the Court does, that a small number of states expressly prohibit state authorities from displaying religious symbols; a small number explicitly prescribe them; and “[i]n the great majority of member States of the Council of Europe the question of the presence of religious symbols in State schools is not governed by any specific regulations.”107 On the face of it, then, practice is indeed as diverse as can be. Yet, no information is presented on the question to what extent particular states have not adopted specific regulations for the plain and simple reason that it is legalpolitically self-evident that federally prescribing religious symbols in all public schools is unconstitutional/contrary to fundamental rights/problematic in the light of the neutrality of the state, etc.108 One needs only to slightly fine-tune the comparative research question in order to straightforwardly establish a common European position: How many European states in the twenty-first century, as per federal legislation, compulsorily (i.e. required as per a state regulation) prescribe the display of the religious symbol of the majority religion in each and every public school classroom? The answer is: so few that a clear common European position comes to the fore indicating that this practice is no longer acceptable.109 The presence/absence of a common European position, particularly in relation to the problématique of ‘majority morals’, is subject to a long-standing debate. Importantly, the UN Human Rights Committee has expressed its sensible and well-balanced position on this point indicating “that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.”110 Other monitoring bodies have gone even beyond that, declaring that perpetuating dominant traditions shall never be considered a legitimate reason for circumventing the human rights obligations

  Ibid., paras. 26–27.   It is one-sidedly and misleadingly pointed out in said overview that in some states without formal legislation on the matter, religious symbols can nevertheless be found in state schools (ibid., para. 27). No effort whatsoever is made to look into the flip-side: states without concrete legislation that do not place religious symbols on public school walls, as that would not even occur to the powers that be, given the obvious constitutional or other legal constraints to that effect. 109   Knowing how to frame the question is crucial to establishing or ruling out, as the case may be, a common European standard. Unfortunately, there is little consistency or transparency to the ECtHR’s approach in this regard. See Mónika Ambrus, ‘Comparative Law Method in the Jurisprudence of the European Court of Human Rights in the Light of the Rule of Law’, 2:3 Erasmus Law Review (2009), particularly pp. 362–367. The ECtHR often follows the findings presented by an amicus, though the presented levels of abstraction vary widely. 110   Human Rights Committee, General Comment No. 22 (supra note 100), para. 8. 107 108

176  Jeroen Temperman owed to minorities.111 The European Court of Human Rights proves to be most susceptible to the perpetuating-a-religious-tradition card. However,112 any perceived pluralism at the European level can hardly be considered a sound reason for destroying pluralism at the national level.

111  E.g., Committee on the Elimination of Discrimination against Women, General Recommendation 21, Equality in Marriage and Family Relations (Thirteenth session, 1992), U.N. Doc. A/49/38 at 1 (1994), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 250 (2003), paras. 15–17 and 50; Committee on the Elimination of Discrimination against Women, General Recommendation 23, Political and Public Life (Sixteenth session, 1997), U.N. Doc. A/52/38/Rev.1 at 61 (1997), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 260 (2003), paras. 20, 27, and 44; Committee on the Elimination of Discrimination against Women, General Recommendation 19, Violence against Women (Eleventh session, 1992), U.N. Doc. A/47/38 at 1 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 243 (2003), paras. 11, 20, 21 and 23. See Artt. 2(f) and 5(a) of Convention on the Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, of 18 December 1979 (entered into force 3 September 1981). 112  Professor Renáta Uitz made–far more eloquently–a comment along these lines at a Seminar on Lautsi held in Budapest (International Workshop on ‘Perspectives on the European Court’s Italian Crucifix Decision’, Central European University, 8 June 2011, Budapest, Hungary)–credits go to her (usual caveats apply).

PART III

STATE NEUTRALITY & RELIGIOUS SYMBOLS

THE QUEST FOR NEUTRALITY AND THE STENCH OF HISTORY Wouter de Been* I. Introduction On 18 March 2011 the Grand Chamber of the European Court of Human Rights (ECtHR) poured cold water on the hopes raised earlier by a Chamber of the Second Section that the mandatory presence of a crucifix in the Italian classroom would be found an inadmissible form of discrimination against non-Christian and non-religious students.1 For many Lautsi had been a clearcut case. For all the different arrangements designed to mediate the relationship between Church and State in Europe, at least overt state support for a particular religion had become unacceptable in the 21st century. The state could no longer be seen to favour the religious beliefs of one section of the population over the religious or non-religious world views of others. Yet, the Grand Cham­ber dashed raised hopes. It decided that also the Italian practice of a mandatory crucifix in the classroom of public schools was something that fell within the margin of appreciation. The disappointment over the reversal by the Grand Chamber among many specialists in the field is still palpable. For many, the Laut­si judgment is a victory of traditionalism over progress. It is a relapse into an outmoded way of privileging the dominant religion; into a way of doing things that many had hoped the European Convention would move us away from. In this contribution, I will call into question this common reaction against the Lautsi judgment. A rule that mandates a crucifix in public schools can be reconciled with basic guarantees of freedom of religion like the ones set out in Article 9 of the European Convention on Human Rights (ECHR), depending on the circumstances. Much of the analysis will turn on the question of neutrality and the need for the state to pursue it. To structure the argument, I will first introduce an authoritative conceptual distinction between different types of neutrality proposed by Wibren van der Burg and Roland Pierik. Van der Burg and Pierik argue that a distinction can be made between two main types of neutrality: exclusive neutrality and inclusive neutrality. This last type of *  This work is part of the research programme: “Reconstructing Political Philosophy and Legal Doctrine: Doing Justice to Dynamics and Hybrid Identifications,” which is (partly) financed by the Netherlands Organisation for Scientific Research (NWO). 1   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (Grand Chamber), No. 30814/06; and Lautsi v. Italy, 3 November 2009, European Court of Human Rights (Second Section), No. 30814/06.

180  Wouter de Been neutrality, in turn, can take the form of inclusive proportional neutrality or inclusive compensatory neutrality. Public institutions can pursue neutrality by steering clear of all the different religions and comprehensive doctrines in society and assuming the position of the honest broker—exclusive neutrality. They can maintain neutrality by organizing an institution, or providing a service, in such a way, that it includes all the different religions and views of the good in a particular constituency—inclusive proportional neutrality. Or, they can adopt a position where they do not only reflect the diverse views and religions in society, but also compensate for any entrenched disadvantages that certain minorities may have—inclusive compensatory neutrality. Although in principle Van der Burg and Pierik prefer inclusive neutrality, they argue that the other types of neutrality may be more suitable for certain contexts.2 The composition of the teaching staff may be a matter of inclusive neutrality—the teaching corps of public schools should reflect the diversity of society and roughly represent the different groups that make it up. Yet, the question of the placement of a particular religious symbol in the classrooms of public schools— the question addressed in the Lautsi case—is more suitably resolved with the rationale of exclusive neutrality—public schools, as institutions, should not be seen to support any particular religion or world view, and the symbolic representation of all the religions in a spirit of inclusive neutrality would be impracticable. The distinction between exclusive and inclusive neutrality is an intuitively appealing and parsimonious way to frame issues concerning neutrality. Moreover, it offers ways to deal with different institutional situations, where one, or the other, form of neutrality may be difficult to apply. Nevertheless, it does suffer from some serious problems. The opposition exclusive–inclusive might suggest that we are dealing with different poles of a unified concept. Yet, the way in which neutrality is conceptualized in the twin notions of exclusive and inclusive neutrality is in fact starkly different. Inclusive neutrality is a form of neutrality that revolves around balance. It seeks to achieve a degree of evenhandedness by giving every party its due. It seeks to divide public resources over the different sections of society fairly and proportionately. It is a distributive principle. (Compensatory neutrality only deviates from the principle of proportionality in that it seeks finer justice by correcting for structural or historical disadvantages.) Exclusive neutrality, on the other hand, is not aimed at balancing different religious and secular world views which are all inherently 2   For instance, Van der Burg and Pierik note in a recent article: “We may find this distinction between inclusive and exclusive neutrality under many different labels in the literature … We suggest that there is not one version which is justified in all circumstances; it depends on the context which version of neutrality is to be preferred.” Roland Pierik and Wibren van der Burg, ‘The Neutral State and the Mandatory Crucifix’, 6(3) Religion & Human Rights: An International Journal (2011), p. 268.

The Quest for Neutrality and the Stench of History  181 partial, but at framing a neutral and fair public philosophy that is not partial and that in the public sphere can substitute for the different world views abroad in society. In actual liberal democracies this often takes the shape of a secular public philosophy that can arbitrate between the different religious world views of the citizens. One of the paradigmatic cases of exclusive neutrality named by Van der Burg and Pierik is the French notion of laïcité—the secular republicanism brought forth by the French Revolution. I will argue below that the kinds of arguments that are usually advanced to support forms of exclusive and inclusive neutrality are not complementary. They are rival notions that make incompatible claims. Proponents of exclusive neutrality often equate neutrality with secularism. Secularism offers a system of universal principles based on objective reason that can arbitrate between the subjective, totalizing and contested beliefs of religious groups. Proponents of inclusive neutrality, however, are typically sceptical of such universalistic claims of objectivity and neutrality. They do not believe you can transcend the pluralism of democratic societies with any form of public reason. The best you can do, is give everybody his due according to a fair distributive procedure, for instance, through the proportionate incorporation of diverse views in the public sphere. It is important to note that the arguments marshalled in favour of exclusive and inclusive neutrality respectively, are not arguments that can easily be restricted to only certain types of situation, or that can be easily combined in a menu of options for administrators to choose from. If you believe the premise underlying exclusive neutrality, that the secular state is an embodiment of true, objective and universal principles, then why should you countenance the expression of partial, religious views of the good anywhere else in the public sphere? For the exclusive neutralist, these are not views of the good that should be accommodated in inclusively neutral arrangements, but irrational beliefs from which citizens should be emancipated. Vice versa, if you believe the premise underlying inclusive neutrality that there are a number of reasonable views of the good, none of which self-evidently deserves the exclusive privilege of informing public reason, then any form of exclusive neutrality will be looked on with suspicion. If normative principles can never be wholly neutral and public reason is necessarily partial, then its role should be minimized in all contexts. This chapter will argue from the position that informs inclusive neutrality, i.e. that a fully neutral public philosophy is unachievable and that we should be wary of public arrangements that claim to achieve such neutrality. There are a number of reasons why we should be sceptical of public principles that pretend to move us beyond the partial world views of ideology and faith. I will discuss two arguments that are central to understand why exclusive neutrality is misconceived and, consequently, why the reversal of the Lautsi judgment by the Grand Chamber is not a mistake, but a rectification. Then, at the end,

182  Wouter de Been I will suggest an alternative to exclusive neutrality that does not lose itself in a quixotic search for full neutrality and accepts the inescapable partiality of public reason. The arguments for exclusive neutrality, to begin with, often confuse secularism for public neutrality. This turns liberal democracy and the rule of law into a full-fledged secular project dedicated to the control of religious discord. Secularism, however, cannot claim sole parentage to liberal democracy and the rule of law tradition. Moreover, liberal democracies should not be organized simply to deal with religious faith as one of their paradigmatic threats. The threat for liberal democracy is not religion per se, but political zeal and fervour that fails to accept the fundamental openness and revisability of politics; a zeal which can take both a religious and non-religious form. Secondly, the understanding of symbols and symbolic meaning in the arguments criticizing the Italian policy of the mandatory crucifix is hopelessly simplistic and runs against the great advances of the last decades in our understanding of meaning and cognition. There is an untenable dichotomy between descriptive, cognitive meaning and non-descriptive, emotive, and metaphoric meaning that informs many of the arguments against the crucifix. There is a growing body of evidence that suggests that it is impossible to section off a distinct category of artefacts that send out a symbolic meaning, from another set of objects that do not. Our experience of the world is inescapably qualitative, drenched in emotive and aesthetic meaning. Consequently, taking away the cross will not result in an absence of symbols, but in a symbol of absence, a symbolic absence of religion within a ring-fenced space created by a secular initiative. There is no way for people to disentangle themselves from the projects and the aims that have shaped their society—and that they are now in turn shaping and reacting against—to adopt a position of aloof impartiality. As Judge Bonello remarked in his concurring opinion: “Like it or not, the perfumes and the stench of history will always be with you”.3 None of this, however, takes away from the problem raised by Van der Burg and Pierik that different contexts seem to demand different concepts of neutrality. It may be inescapable for people to be in a position, for principles and rules to express a slant, and for images, artefacts and spaces to take on meaning in the context of social life; this still leaves the problem of what public schools should represent in a society divided by a number of religious and secular world views. If there can be no fully exclusive neutrality, then we still need some way to make sure that institutions like public schools do not exclude or disadvantage minorities inordinately by conveying a dominant identity— whether it is religious or secular. In the final section, I will argue that we should   Concurring Opinion Judge Bonello (to Lautsi and Others v. Italy), para. 1.4.

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The Quest for Neutrality and the Stench of History  183 not think of this situation in terms of exclusive neutrality, but in terms of what Cass Sunstein and Richard Thaler have named “default positions” in public policy.4 It is not the task of a liberal democracy to make public schools neutral institutions, but to make public schools an acceptable default option for the overwhelming majority of its citizens. This means, almost by definition, that public schools have to be open to a wide range of cultural and religious backgrounds and precludes that they are organized in line with any thick conception of the good. Yet, it does not preclude that public schools somehow reflect the dominant character of their cultural setting. In an overwhelmingly Catholic country, or a country overwhelmingly attached to its Catholic past, there should be no problem with a mandatory crucifix in public schools, if those schools are open to, and respectful of, other religions and world views. In a similar vein, in an overwhelmingly secular country, or a country deeply attached to its secular traditions, there should be no problem in keeping schools meticulously free from any religious and mystic reference, as long as those schools are open to, and respectful of, children with a religious background. Of course, there is a degree of paternalism in this notion of the “default position”—indeed Thaler and Sunstein refer to their approach as “libertarian paternalism”—but such paternalism is unavoidable. A central task for public schools, after all, is to transmit and reproduce the specific cultural, secular, religious and political traditions of the communities they serve. A school that takes this task seriously, but at the same time adopts a posture of strict neutrality vis-à-vis any secular world view or religious belief a pupil might have, is an oxymoron. Taken together, the previous points add up to a conclusion that supports the Grand Chamber’s decision not to interfere with the right of the Italian state to make crucifixes mandatory in public schools. These arguments will be elaborated on in much greater detail below. The different strands of argument will then be joined together in the conclusion. II.  Whose Impartiality?; Which Neutrality? The liberal constitutional state is generally seen as a quintessentially secular achievement. It was a regime invented to move us beyond the religious wars of the 16th and 17th century. In order to escape incessant and intractable religious conflicts, religion had to be separated from the state. This history of the development of liberal constitutionalism fused the notions of secularism and neutrality together to the point where, today, state neutrality almost automatically suggests secularism. As Rawls states unequivocally in the introduction to 4   See Richard H. Thaler and Cass Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (New Haven and London: Yale University Press, 2008), pp. 83–87.

184  Wouter de Been Political Liberalism “the historical origin of political liberalism (and of liberalism more generally) is the Reformation and its aftermath, with the long controversies over religious toleration in the sixteenth and seventeenth centuries.”5 When the reformation created a plurality of religious faiths, this undermined the very basis on which people believed a political community was possible, namely unity grounded in a shared religion. For many people in 16th and 17th century Europe, religious disunity simply made toleration inconceivable, because “it meant the acquiescence in heresy about first things.”6 The emergence of liberal constitutionalism, Rawls argues, opened up a whole new understanding of social possibility, i.e.: “the possibility of a reasonably harmonious and stable pluralist society.”7 Liberal constitutionalism offered principles that were independent of any religious authority; principles that were based on a form of common moral reasoning comprehensible to any reasonable person. These principles for the first time made it possible for people with different beliefs and committed to different religious doctrines to imagine living together in a single political community. Secularism is also a central to the French notion of laïcité. French republicanism was a conscious attempt to unravel the way in which the Catholic Church and the state were closely intertwined during the Ancien Régime. Religion had to be driven out of the public sphere, among other things, to enable people to choose freely for their religion. As the present French Constitution claims in its first Article, “France shall be an indivisible, secular, democratic and social Republic.” Moreover, the Article continues, France shall be a republic which “shall guarantee equality before the law of all citizens without distinction according to origin, race or religion. It shall respect all beliefs.” Article 1 is a paradigmatic statement of the laicist form of exclusive neutrality. It banishes religion altogether from public sphere, so that the state can treat all religions equally. In other words, religions are denied any public role as a group, or institution, but individual believers are granted all basic rights and freedoms as individual citizens in the privacy of their own homes. With respect to religious symbols like the crucifix this principle has clear implications. There can be no public endorsement of a particular religion in public space. For public institutions to display a religious symbol would be to declare support for a specific religious conviction. The only proper public values are secular, laicist values. Indeed, French laïcité has a long history of concern about public images and their effect. Great sensitivity to the importance of public symbols was a central aspect of the French Revolution. According to historian Simon Schama, the Revolution of 1789 was a concerted attempt   John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. xxiv.  Idem. 7   Ibid., p. xxv. 5 6

The Quest for Neutrality and the Stench of History  185 “to replace the visual reference points of the old France with a whole new world of morally cleansed images.”8 It was an attempt, in the words of the Jacobin Fabre d’Eglantine, to create a new “empire of images”.9 In Revolutionary France this commitment to remove any reference to the Ancien Régime was taken to extremes: Aristocratic references to kings and queens were removed from playing cards, religious references in the calendar and the names of the weekdays were changed, “saint” was removed from street names, and religious images and symbols were smashed in a campaign of dechristianization. This radical vision of laïcité is a thing of the past. Yet, even though today’s milder notion of laïcité lacks the revolutionary zeal, it does still share a kindred attitude. Proponents of laïcité do not go to the same lengths to purge society of references to religion, but laïcité is still characterized by a suspicion of expressions of religious faith in the public sphere. The recent French ban on the full Islamic veil in public places like schools is the latest example of this scepticism. The question is whether this historically grown, and widely accepted, understanding of the liberal state as the secular arbiter between contending religious world views is really an adequate model for the policing of the religious pluralism of today? Is a conflation of secularism and neutrality really the best way to confront the problem of religious diversity? In his essay, ‘Drawing the Line: Religion and Politics’,10 Michael Walzer claims that we should not simply apply the classic liberal notion of the separation of church and state, and religion and politics, unquestioningly, but ask ourselves what problem this separation was meant to resolve in the first place. What was problematic about religion, Walzer argues, was not so much the particular substantive beliefs and convictions that attach to this, or that, religion. What was problematic about religion was that these beliefs or convictions would be pursued with religious zeal. What the separation of church and state was supposed to legislate out of liberal democracy was a politics of conviction, a politics aimed at the realization of the Kingdom of God in the here and now. Democratic politics always needs to remain tentative, revisable, open to challenge. There is no place for finality in liberal democracy. Hence, what the separation of church and state is meant to guarantee is not an antiseptic secular space free from religion, but a this-worldly and temporary public life free from finality. In the 18th century the temporariness was mainly threatened by religious zealotry and intolerance. Yet, since then, western democracies have not only experienced secular    8   Simon Schama, Citizens: A Chronicle of the French Revolution (London: Penguin, 1989), p. 771.    9   Idem (quoted by Schama). 10   Included in Michael Walzer, Thinking Politically: Essays in Political Theory (New Haven and London: Yale University Press, 2007), Ch. 10.

186  Wouter de Been zealotry in the shape of totalitarian ideologies, but also benign and democratic religious movements that broadly accept the temporality and limits of democratic politics. This means that the separation of church and state should not be understood as a principle that safeguards the public space from any infection of the religious beliefs of its citizens, but as a principle that requires ‘that the engaged citizens, religious and secular, be prevented in exactly the same way from achieving anything like total victory.’11 Walzer’s analysis of the relationship between church and state, religion and politics, takes cognizance of a number of historical experiences that are difficult to square with an understanding of liberal democracy as a purely secular conception. The greatest change in the liberal, constitutional model of the United States in the last century, for instance, was brought about by the civil rights movement in the 1950s and 1960s, a movement led by Martin Luther King, a Baptist minister steeped in the culture and verbal imagery of the Baptist Church. Even though the rhetoric of the civil rights movement drew heavily on scripture and spirituals—especially the story of Exodus, leading the people out of slavery into the Promised Land12—the vision conjured up was not one of a Christian nation reserved only for true believers, but one of a place where people of all colours and faiths would live peacefully side by side. The last line of King’s famous ‘I have a dream’ speech encapsulates this mix of religious inspiration and liberal democratic values quite well: when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual: ‘Free at last! Free at last! Thank God Almighty, we are free at last!’13

Secular liberals in the United States may claim that there is a wall of separation between the church and the state, and that there is no place for religion in democratic deliberation, but the inspiration behind a central facet of the American constitutional order was not Kantian philosophy, but a religiously inspired vision of Jews, Gentiles, Protestants and Catholics holding hands and singing a Black spiritual together.14   Ibid., p. 160 (emphasis in original).   For the importance of Exodus for the western political tradition, see Michael Walzer, Exodus and Revolution (New York: Basic Books, 1985). 13   Martin Luther King, ‘I have a dream’, speech held at Lincoln Memorial, Washington D.C., 28 August 1963, available at (accessed 9 February 2012). 14   See also the discussion of Martin Luther King by Charles Taylor and Jürgen Habermas in: Eduardo Mendieta and Jonathan VanAntwerpen, The Power of Religion in the Public Sphere (New York: Columbia University Press, 2011), p. 63 and p. 65. 11 12

The Quest for Neutrality and the Stench of History  187 In a similar vein, French proponents of laïcité may conceive of the French Republic as a victory of secular reason over tradition, of republican autonomy over a Catholic culture of acquiescence and deference to authority. Yet, for Polish people this embrace of secularism and concomitant rejection of religion puts things exactly the wrong way around. In Poland the reintroduction of democracy and fundamental rights is widely attributed to Pope John Paul II. His momentous visit in 1979—incidentally, a visit that coincided with the 900th anniversary of the death of St Stanislaus, the patron saint of Poland remembered for his opposition to the evils of unjust government—is commonly regarded as the event that inspired the Solidarity Movement and that formed the start of the great democratic revolutions of Eastern Europe. Secularism, on the other hand, is something associated with the drab state ideology that was imposed by Communist Apparatchiks and, ultimately, forced unto Poland with the threat of Soviet military might. The notion that the neutrality of the public sphere can only be ensured through an exclusively secular rationale does not accord with Polish experience. Indeed, Polish people have experienced what Walzer lists as an equal threat to democratic society; a secular world view that is pursued with religious zeal and that does not accept the temporariness and revisability of politics. In the 17th and 18th century the separation of church and state, and religion and politics, may have been a good proxy for what is imperative for liberal democracy, namely the separation of projects that aim at finality and permanence from a public sphere that always needs to stay open and revisable. Yet, today threats to the open character of liberal democracy come in different guises, both secular and religious. Hence, as Veit Bader has rightly pointed out “all defenders of ‘truths,’ whether religious or secular (philosophical, scientistic or professional/‘expertocratic’” need to learn “how to resolve their respective ‘fundamentalist dilemma.’”15 The temptation of absolutism, in other words, is not a purely a religious phenomenon: Since ‘error has the same rights as truth’, fundamentalist interpreters of religions certainly have (had) to learn to resist the temptation of ‘theocracy’. Yet the same holds for philosophers and all kinds of scientific and professional experts: they have to learn to stem the philosophical ‘conquest of politics’ and the temptation of expertocracy. In short, it is crucial not to understand or phrase the conflict between political ‘absolutism’ (of all sorts) and priority for democracy in terms of ‘religious fundamentalism’ versus ‘secularism’.16

15   Veit Bader, ‘Public Reason or Moderately Agonistic Democracy?’, in Geoffrey Brahm Levey and Tariq Modood (eds.), Secularism, Religion and Multicultural Citizenship (Cambridge: Cambridge University Press, 2009), p. 114. 16  Idem.

188  Wouter de Been Moreover, the privileging of the secular arguments for liberal democracy, Bader points out, neglects “the existence of principled religious or theological foundations of liberal democracy, in general, and freedom of conscience, in particular.”17 Foundational arguments for liberal democracy can be, and have been, furnished from religious points of view. With respect to the crucifix in the classroom this understanding of the relationship between church and state may insinuate a different conclusion than the flat rejection counselled by many secular liberals. If a nation state is made up of a big religious majority that accepts and embraces the fundamental pluralism of society, and if this nation state can provide foundational arguments for the same liberal democratic institutions that secularists argue for on the basis of the religious world view shared by a majority of its citizens, then why should this nation state be denied any reference to its Christian character in the public schools it sets up to educate its children? If the secular French republic can put images of Marianne in its public places, then why should Italy be denied to express its Catholicism through a crucifix in the classroom? It is important to note that such a simultaneous commitment to freedom of religion and to Catholicism is more or less what Italy is trying to achieve in the constitutional framework it drew up to regulate church and state relations. In Italy, the relations between the Catholic Church and the state are governed by the Lateran Pacts of 1929, which were incorporated into the Italian Constitution in 1947 and last revised in a Concordat between the Republic of Italy and the Vatican in 1984. (Revisions of the Lateran Pacts can only be modified by common agreement between Italy and the Holy See, but do not require ratification through a Constitutional Amendment.) The 1984 revision partly disentangled the Italian Republic and the Catholic Church. In its first Article the new Concordat disestablished Roman Catholicism as the sole religion and separated the Church from the state: “The Italian Republic and the Holy See reaffirm that the State and the Catholic Church are, each in its own order, independent and sovereign and commit themselves to the full respect of this principle in their mutual relations and to reciprocal collaboration for the promotion of man and the common good of the Country.” Yet this did not mean that Roman Catholicism was removed from the public sphere. With respect to public education, for instance, Italy committed itself to the education of the principles of the Catholic Church as part of the cultural heritage in public schools: The Italian Republic, recognizing the value of the religious culture and considering that the principles of the Catholic Church are part of the historical heritage of the Italian people, shall continue to assure, within the framework of the scope of   Ibid., p. 113.

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The Quest for Neutrality and the Stench of History  189 the schools, the teaching of Catholic religion in the public schools of every order and grade except for Universities. With respect for the freedom of conscience and educational responsibility of the parents, everyone shall be granted the right to choose whether or not to receive religious instruction. When they enrol, the students or their parents shall exercise this right at the request of the school authority and their choice shall not give rise to any form of discrimination.18

The special status of the Catholic Church is complemented with a general guarantee of religious freedom in Article 8 of the Constitution: “All religious denominations are equally free before the law. Denominations other than Catholicism have the right to self-organisation according to their own statutes, provided these do not conflict with Italian Law.” As a religion, Catholicism may be more equal than others in the Italian constitutional framework. Nevertheless, other religions in Italy are granted all the freedoms—both in principle and in practice—that they would enjoy in purely secular systems. Certainly, the Italian state affirms Catholicism as part of its heritage and identity. Yet, public schools in Italy are not used to actively proselytize for the Catholic Church, there is attention and tolerance for other religions, and people have the right to opt out of the religious education that is provided. In Italy, one could say, the accommodation of religious—and secular—pluralism is painted on an undercoat deeply tainted by its Catholic culture and history. Italian citizens are overwhelmingly Catholic and that has left its marks on the way Italian institutions have been set up.19 It is not at all clear why the base colour of the public sphere should be repainted in purely secular hues. Secularism is not neutral. It may define itself negatively as an absence of religion, as Craig Calhoun, Mark Juergensmeyer and Jonathan VanAntwerpen note in a recent work on ‘secularism,’ but that does not make it a substantive vacuum. We cannot accept it simply as “what is left after religion fades”.20 This way of distinguishing “secularism” from other views of the good and removing it from the debate is a conceit. Secularism clearly is a “presence,” it is “something,” it is a world view, an ideology.21 Indeed, if you look closely at the way 18   Agreement between the Italian Republic and the Holy See Signed by the Italian Republic and the Holy See on 18 February 1984, available at (consulted 30 January 2012). 19   Carlo Panara argues in a recent paper that Catholicism is increasingly undermining the secular nature of the Italian State. In Italy, however, the secular nature of liberal democracy was always attenuated by an explicit and official embrace of Catholicism. Moreover, many of Panara’s examples of a Catholic usurpation of Italy’s liberal democracy involve contentious moral issues about which people are allowed to have a difference of opinion; issues such as abortion, euthanasia, embryonic stem cell research and same-sex marriage. Carlo Panara, ‘In the Name of God: State and Religion in Contemporary Italy,’ 6 Religion & Human Rights: An International Journal (2011), p. 75–104. 20   Craig Calhoun, Mark Juergensmeyer, and Jonathan VanAntwerpen, Rethinking Secularism (Oxford: Oxford University Press, 2012), p. 5. 21  Idem.

190  Wouter de Been secularism operates in the real world in places like France, Turkey, India, or the United States, the authors claim, then in “each of these contexts, secularism takes on its own meanings, values, and associations; in no case is it simply a neutral antidote to religious conflicts.”22 III.  Symbols and Symbolic Reality The argument above supports the notion that there can be no truly neutral public reason and that it is a mistake to equate secularism with neutrality. The question is how this relates to the crucifix. The choice that exclusive neutrality seems to counsel in the crucifix case, after all, is not in favour of some contested, or contestable, secular symbol over some particularistic religious symbol. No, the choice is framed as one between no symbols, or a symbol. We can either put a crucifix on the wall—or a Star of David, or a crescent and star, or a hammer and sickle—or we can put nothing on the wall. When we talk about exclusive neutrality in the context of framing principles for the public sphere a substantive vacuum is not an option. Yet, when we talk about exclusive neutrality in the context of the symbolic representation of the state in the public sphere, then, surely, non-representation is a real choice. We can choose not to represent anything. The classroom wall can remain empty of any religious or secular symbols. In principle this would be an appealing solution. If Italy had to be conceived afresh and set up from scratch, then maybe this would be the best way to think about religious symbols in the classroom. Maybe if the classroom walls would simply be empty of any religious or secular symbols from the start, nobody would even think of them as spaces to put religious or secular symbols. Yet, we are not in some mythic founding moment. Italy is already a place and it already has schools in it. These schools already have crucifixes on their walls. These schools, moreover, were built and run by the Catholic Church in many cases. The stench of history has penetrated these institutions and the principle of exclusive neutrality is not some miracle air freshener that can drive those smells away. On the contrary, the introduction of exclusive neutrality will simply add a new odour to the mix. If the decision of the Chamber of the Second Section of the ECtHR had not been reversed, then presumably Italy would have had to remove all the crucifixes from the classroom walls. The empty walls in the classroom in that case would not come to symbolize openness and neutrality, but the victory of an avowed atheist, Mrs Soile Tuulikki Lautsi, over the established Italian practice of putting a crucifix on the classroom wall. The empty spaces that would have ensued from this victory would have gained   Ibid., p. 9.

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The Quest for Neutrality and the Stench of History  191 their own symbolic meaning. Mrs Lautsi’s victory over the Italian state would not have resulted in an absence of symbols, in other words, but in a symbol of absence, an absence, specifically, of any religious reference. In this context the empty wall would take on a wholly different meaning. The emptiness of the classroom wall would not be some untouched, virgin emptiness, but a mandated and policed emptiness. It would be a legally ring-fenced emptiness with a purpose and a history. Every time a school would violate this prohibition of religious symbols, the history of the Lautsi case would be rehearsed and it would re-charge the empty space with symbolic meaning. Just because someone’s principles are secular, does not mean they do not leave an odour. There is no escaping from the stench of history. An objection one could make to this line of argument is that it is confusing two different notions of what a symbol is. The symbol the Lautsi case addressed was a symbol that was purposely crafted and proscribed. The crucifix is a human artefact consciously placed to convey a symbolic meaning. The empty classroom wall, however, is not crafted to convey a message. If it gains any symbolic meaning, this is not a symbolic meaning mandated by the state. Rather, it is a symbolic meaning that arises spontaneously and coincidentally among the citizens. The symbolic meanings that people freely attach to certain objects or artefacts are not a concern of public policy. Such a distinction is hard to maintain, however. Symbols and their meanings are always a product of a complex interplay. They are certainly not things that can simply be stipulated by a government committee. The meaning of symbols, like all meaning, emerges and develops in social interaction. Hence, the meaning of the crucifix is not something fixed and determinate, it is an organic thing that changes and evolves from one period to another. It means something different in today’s Italy, than it did in 1861 when the Italian State was founded, or in 1929 when the relationship between the Catholic Church and Italy was recast in the Lateran Treaty. The meaning of the crucifix reflects the changing status of the Catholic Church and the diversification and modernization of Italian society. Likewise, a legally mandated empty wall will acquire symbolic meaning in the social interactions and exchanges that it will bring about. It will acquire its own significance, it own history, its own smell, in part as a result of the rationale put forward by the state to support it, and of the actions and interventions undertaken by the state to police it. The state cannot extricate itself from the meaning of the empty wall it stipulates, anymore than it can from the crucifix it mandates. Neutrality, in any strict or exclusive sense, is simply an impossible aim to achieve even when it comes to religious and public symbols. As the pragmatist philosophers presumed a century ago, and cognitive scientists have been corroborating in recent decades, people are incessant meaning-makers, they inadvertently breathe meaning into experiences, artefacts, images, actions, habits

192  Wouter de Been and institutions. We experience reality primarily in qualitative terms, John Dewey observed: “The world in which we immediately live, that in which we strive, succeed and are defeated is preeminently a qualitative world.”23 The narrow focus in the Lautsi case on the crucifix in isolation truncates this qualitative experience. When the nature of the crucifix was discussed, it was as a member of a special class of symbols that have an emotive, evocative, subjective meaning, in an otherwise quotidian and functional context. This relegation of symbolic meaning to just a narrow class of designated, official symbols blinds us to what Mark Johnson describes as the “emotional flesh and blood of actual human meaning.”24 For most people, the qualitative feel of a situation is something that is not just limited to a particular piece of symbolic imagery, but inheres in an immediate appreciation of the circumstances in their totality. The sense we make of the world is symbolic in much more profound ways. This qualitative, symbolic nature of understanding is something that law seems to have difficulty coming to grips with. Legal discourse is locked into what Johnson describes as a “conceptual-propositional” conception of meaning, which rejects emotive, qualitative, and symbolic meaning—the stuff that cognitive scientists believe most meaning is actually made of—as mere subjective attitude.25 In the legal deliberations about the Lautsi case, at least, qualitative, symbolic meaning was something that was assumed to reside principally in the symbol of the crucifix. If you take this as your point of departure, the obvious conclusion, of course, would be simply to remove such an emotionally charged symbol from the scene. Once the crucifix is gone there will no longer be any source of intangible, subjective meaning to muddy the waters and public schools can be made safe for exclusive neutrality. The way people accord meaning, however, is not something that can be corralled into a single symbol. Hence, it should come as no surprise that an overwhelming majority of Italian citizens were not persuaded.26 They did not experience the decision by the Second Chamber as an attempt to correct a historical fallacy, i.e. the display of a religious symbol that unduly stirred children’s emotions and violated the rights of minorities. On the contrary, they treated it as an imposition. For them an antiseptic space freed from the crucifix, would not be a space unburdened by any symbolic and qualitative

23   John Dewey, ‘Qualitative Thought’, in Jo Ann Boydston (ed.), The Later Works, 1925–1953 (Carbondale: Southern Illinois University Press, 1988), p. 243. 24   Mark Johnson, The Meaning of the Body: Aesthetics of Human Understanding (Chicago: University of Chicago Press, 2007), p. 53. 25   Ibid., p. 8. 26  Reuters reported that 84 per cent of Italians opposed the first Lautsi decision by the Chamber of the ECtHR and wanted the crucifix to stay in the classroom (available at , accessed 9 February 2012).

The Quest for Neutrality and the Stench of History  193 meaning, but a space overtaken by a secular outlook that did not accord with their shared convictions. If the Second Chamber framed the connection between secularism and neutrality as a matter of universal principle, Italian citizens understood it as a partisan project forced upon them by a distant European body of experts. It would be a mistake to treat this simply as a case of a misguided majority refusing to face up to a glaring injustice in Italian educational practice. Support for the crucifix in Italy went well beyond the group of practicing Catholics.27 Many Italians who are Catholic in name only, but who do not attend church or practise their religion in any meaningful way, must also have favoured the continued presence of the crucifix in the classroom. Evidently, Italian citizens did not buy the vaunted neutrality of the secularist alternative and had different ideas about how the freedom of, and freedom from, religion should be put into practice in Italy. This surplus of qualitative and symbolic meaning that went unrecognized by the ECtHR is not simply a matter of subjective experience, either. This is not an argument that turns on how people subjectively feel about things. The artefacts that surround us, the furniture of our existence, for the most part were crafted in the spirit of a certain philosophy, or conviction. The modernist movement in architecture, for instance, long before the Lautsi case was heard, already claimed: “ornament is a crime.” Modernist architects argued for a simple, functional architecture, in large part because they believed their architecture should reflect the rationality and modernity of contemporary society. They saw their architecture as a conscious departure from traditional aesthetics like the Romanesque or the Gothic style, which were rooted in the religious and spiritual culture of the medieval period. Theirs would be a new, functional and rational style for a new age. Houses were to be “machines for living” as Le Corbusier put it evocatively. Modernist architecture has since become the colloquial style of many public buildings in the West and is now often referred to simply as the International Style (or as Brutalist architecture by those who do not like it). Indeed, many of today’s school buildings look like they have been purposely designed as “machines for learning”. Are these self-consciously stark, bare and unembellished structures any less an expression of a creed, or a social vision, than the crucifix on the wall? They may be free of any symbolic imagery, but that very lack is part of the social vision of modernist architecture. In a similar vein, a school built in a neo-Gothic or Romanesque revival style does not need a crucifix on the wall to express its connection to Christian cultural traditions. This is not an argument to extend the search for neutrality beyond the crucifix into the building code and beyond, in order to banish any form of publicly 27   Even though many Italians still identify themselves as Catholic, “adherence to Catholicism has become for many merely ritual” (Panara, supra note 19, pp. 102–103).

194  Wouter de Been mandated partiality. Rather it is an argument to accept the inescapable situatedness of human beings. From the pragmatist perspective that informs this argument, neutrality and objectivity are suspect notions, not just in the field of research and scholarship, but also in the realm of legal principle. For pragmatists, people are always in a position. There is no view from nowhere. People are always in a certain place and their endeavours are always coloured by an aim, or a purpose, whether they are legal scholars, international judges, Finnish immigrants, Italian parents, school administrators, or national politicians. This casts doubt on the claim that secularism is a discourse that can completely rise above the political contestations of the different religious worldviews and can inform the ways in which the state represents itself in public in a neutral and impartial fashion. Secularism is not impartial. Moreover, secularism has its own aesthetic that is readily identifiable, even though secularists like to present it as if it was a mere absence of evocative religious imagery and symbolic meaning. This ineradicable partiality does not mean that anything goes. It still makes sense to strive for impartiality in public affairs. But it does mean that a quixotic search for total neutrality is ill-advised and that a disingenuous denial of the cultural, religious and ideological biases that attend any constitutional framework is undesirable. IV.  Choice Architecture and Default Positions An approach that might suggest a better way to think about religion in public schools is the framework that Richard Thaler and Cass Sunstein have recently suggested for dealing with the freedom of choice in public policy in their influential book Nudge. In that book, the authors argue that it is important for public officials to be very self-conscious about the way they offer choices to people, about the type of “choice architecture” they set up to define people’s options. Thaler and Sunstein use computer software as a model, to help us think about different ways to offer choices. When you install a software program on your computer, there are basically two alternatives for presenting people with choices. The first alternative is a choice with a default option. The default option is the preset option, the option that will apply if the chooser does nothing. Default options are the options that usually reflect the preferences of the great majority of users and will usually be set up to fit with the needs of the greatest bulk of people. (Although sometimes they reflect the interests of the provider of the software.) People have the option to divert from the default option, of course, but that generally demands extra effort. Diverters, at the very least, have to understand what the alternative options are and have to import their own preferences. The second alternative is required or mandated choice. Sometimes software does not provide you with a default option, but requires

The Quest for Neutrality and the Stench of History  195 you to make one choice or another. The chooser will be asked to check one of the boxes, before the program will proceed. If the chooser does nothing, nothing will happen. The mandated choice model is the alternative that people who like freedom and autonomy would prefer. It simply forces people to make their own choice.28 It is important to take note of a number of implications that follow from this way of framing people’s options. The first thing to realize is that there is no neutral way to set up a choice architecture. However the architecture is designed, there are always biases. The default option model is more susceptible to biases, of course. Defaults tend to incline towards the status quo and can easily be set up to serve other interests, than those of the user. Yet, also the forced choice model is not neutral. The way the different choices are defined, and the way they are ranked, will influence the choices people make. There is no position of innocence, or neutrality, in other words, in the way choices are framed and aligned. This leads to the second aspect of Thaler and Sunstein’s framework, namely the insight that the set-up of choice architectures is a locus for paternalism. If one, or another, option is favoured depending on the way people’s choices are organized, then the power of the choice architect should be employed to favour those options that are in people’s best interest, or that best serve the general interest. This leads to the new approach to public policy that Thaler and Sunstein argue for, namely “paternalistic libertarianism”. Pater­ nalism, Thaler and Sunstein claim in effect, is acceptable in a world where biases are unavoidable. If the different ways in which choices are presented to people have a significant effect on the choices they end up making, then it is acceptable, or even commendable, for governments to apply their know-how about these effects for the benefit of the chooser, or the society as a whole.29 A final aspect, that needs to taken into consideration is the dependence of the choice architecture on the surrounding social, economic and cultural conditions. The way choices are organized do not depend solely on the designs of the choice architect, but also on whether choices are not too complex or too demanding for people, on time restraints, on whether certain alternatives are feasible in a given context, and myriad other considerations. If we look at the relationship between church and state, and religion and politics then Thaler and Sunstein’s framework suggests an alternative way to approach those issues. Their preferred solution of a choice architecture based on the mandated choice model is something that has clear parallels with the notion of “inclusive neutrality”. In a system where public schools are organized on the principle of inclusive neutrality, all the major religious and secular   Thaler and Sunstein, supra note 4, p. 83–87.   Ibid., pp. 9–11.

28 29

196  Wouter de Been segments of society can send their children to schools that are in keeping with their view of the good. Catholic children can go to catholic public schools, protestant children can go to protestant public schools, and secular children can go to public public schools. There is no default option for the overwhelming majority of children, but a menu of choices for people to choose from. Of course, this is only a realistic possibility under certain specific circumstances. The Netherlands, where this system still exists, is a small and densely populated country where the different religious and ideological groups used to be of fairly equal size. (The secular, or at least the non-denominational group, has since grown to include a big majority of Dutch citizens.) Under those circumstances it is feasible to offer parents a menu of options of schools to go to near their place of residence in most geographical regions. Many other countries in Europe, however, do not have a history of such evenly matched religious and secular divisions. Indeed, Europe is still marked by what Jytte Klausen has named the “Augsburg legacy”. The 1555 Augsburg ‘Religionsfriede’ established the principle of cuius regio, eius religio, which stipulated that subjects should have the faith of their rulers. A principle of religious conformity, Klausen claims, that “has been a vehicle of societal integration and assimilation ever since.”30 The Augsburg legacy has created many nation states in Europe that are heavily tilted towards a single religion. Italy fits squarely into that category. In countries marked by massive adherence to a single religion, or to an abiding belief in secularism, a choice architecture based on mandated choice is not the most obvious solution. A choice architecture organized around a default position is a much more fitting option. Hence, in Italy, self-evidently, the default option would reflect the overwhelming adherence to Catholicism, while in France it would line up with the prevailing secular sentiment among French citizens. In the Italian case, this translates into public schools that fit with the sensibilities of the overwhelming majority of Italian citizens, i.e. schools that are not engaged in proselytism, that offer a standard curriculum, but that do offer religious education that reflects the majority religious culture and that do express the religious identity in the form of a crucifix. For minorities that object to these arrangements the Italian system provides opt-outs and accommodations. They cannot opt out of the presence of the crucifix, of course, but any arrangement will express a bias and the mandatory crucifix is the way the default option worked out in Italy. This is not the only way the theory of Thaler and Sunstein can be applied to religious matters, to be sure. In a recent essay the Dutch theologian Ruard Ganzevoort also employed the approach of “libertarian paternalism” to deal

30  Jytte Klausen, The Islamic Challenge: Politics and Religion in Western Europe (Oxford: Oxford University Press, 2007), p. 142.

The Quest for Neutrality and the Stench of History  197 with religious diversity.31 Ganzevoort, however, drew starkly different conclusions from Thaler and Sunstein’s theory, than the implications sketched above. For Ganzevoort libertarian paternalism is not about policies that conform to the considered majority opinion within a given political community, but about efforts to urge religious minorities, paternalistically, to accept a number of general principles that are well established in international law, such as equality for women and gay people and prohibition of cruelty to animals.32 This notion of paternalism would suggest that Italians should accept the international standards that have developed with respect to the separation of church and state and should be urged to remove their crucifixes from the walls of public schools. This would be a form of paternalism not inspired by wellconsidered majority opinions within a given democratic state, but a paternalism inspired by enlightened international opinion. In effect it is a form of cosmopolitan guardianship. To be sure, Ganzevoort is quite measured in his approach towards religious minorities. He believes religious minorities should first be encouraged to adopt a more liberal outlook through dialogue and through incentives in government policy. Only in the last resort can the government turn to legislation to prohibit certain illiberal practices. There are a number of differences between Ganzevoort’s notion of libertarian paternalism and the approach sketched above. One difference is that Ganzevoort is not thinking in terms of catering for a majority in a default option and leaving minorities the leeway to opt out of this default position. Rather, he is thinking in terms of minimum standards that will have to be applied in every sphere of social life, preferably by nudging minorities into that direction, but if need be by passing legislation. It is not so much a libertarian paternalism that leaves people choices, as a paternalistic liberalism that eggs people on to adopt key planks of a liberal consensus, ultimately by legal force. A second difference is the source of paternalism. What justifies a degree of paternalism, for Ganzevoort, is the moral force of the normative consensus of the international community. It is the evident truth of such principles as the indefeasibility of the equality of women or the inadmissibility of cruelty to animals, which allow us to ultimately coerce recalcitrant minorities to adopt these principles. The argument put forward in this chapter is in support of a paternalism that is democratically legitimated. Sometimes this democratic consensus will line up with the type of liberal values that Ganzevoort wants to promote, and with a prohibition of the crucifix in public schools, as it does in

31  R. Ruard Ganzevoort, ‘Aan de Goden Overgeleverd? Religie in een Postverzuilde Samenleving,’ in Dick Pels and Anna van Dijk (eds.), Vrijzinnig Paternalisme: Naar een Groen en Links Beschavingsproject (Amsterdam: Bert Bakker, 2011). 32   Ibid., pp. 64–69.

198  Wouter de Been France. Yet, sometimes it will be informed by a different tradition, such as Catholicism in Italy, and proscribe a crucifix in public schools. It is hard to determine how Thaler and Sunstein would think about paternalism in this case, whether they would adopt Ganzevoort’s notion and take their cue from the values that have been crystallizing in international law and among international policy elites, or whether they would defer to the settled and democratically expressed traditions and preferences at the national level. There is a clear libertarian-democratic strain in their argument, to be sure, that is missing in Ganzevoort’s approach. Yet, at the same time, Thaler and Sunstein seem weary of the rationality of the ordinary citizen, which is an aspect that is in keeping with Ganzevoort. At any rate, this chapter argues that it makes most sense to think of libertarian paternalism as something that is informed by the substantive values that have clear and enduring democratic support. When libertarian paternalism is framed this way it offers an attractive alternative to the problematic notion of exclusive neutrality. If the circumstances allow for such a possibility the solution that provides diverse people with the highest degree of freedom and autonomy is inclusive neutrality in the taxonomy of Van der Burg and Pierik, or the mandated choice model in Thaler and Sunstein’s approach. Yet, if inclusive neutrality/mandated choice is not an option, then a model based on Thaler and Sunstein’s default option has clear advantages over the notion of exclusive neutrality proposed by Van der Burg and Pierik. Default options do not need, or claim, neutrality, whereas exclusive neutrality in the end depends on someone squaring the circle and showing that a public philosophy can both provide principles of public reason and remain neutral and impartial. Usually incantations of secularism are supposed to perform this magic, but it is a suspension of disbelief that is increasingly hard to maintain. Once secularism loses its mystique of objective reason and neutrality for people, as it did in Italy after the first Lautsi ruling, it becomes harder to use as a free-floating authoritative source that legitimizes judicial paternalism. Default positions do not depend on such objectivity, but rely on the enduring and overwhelming support within a given community for the particular shape they give to such constitutional principles as religious freedom. This is not an anything-goes argument. Rather, it is an argument in favour of a robust margin of appreciation. Obviously, there can be default positions that cross the line and that verge into set-ups that no longer respect the rights of religious or secular minorities. Default positions, if they cater to the preferences of an overwhelming majority of citizens, will tend to remain amenable to a plurality of identities. Yet, it is always possible that majorities will become overbearing and intrusive. In that case, there is certainly a role for a court like the ECtHR to condemn such practices. But it is good to remember that fundamental rights and principles can also become overbearing. They can become imperialistic and take over the space of democratic decision-making. In the

The Quest for Neutrality and the Stench of History  199 case of the mandatory crucifix in Italy the ECtHR in its first ruling seemed to have overstepped its boundary. It insisted on full, secular neutrality, while Italy opted for an acceptable default position that reflected its Catholic identity, but that ensured the rights of non-religious and religious minorities were provided for. V. Conclusion The last two decades have seen a return of religion as a topic of intense debate. The Lautsi case is only one of the focal points of this recurrent argument over the proper relation between church and state, and religion and politics. The topic of religion and politics and church-state relations is one of the traditional themes of political and legal theory, of course, with well-established theoretical oppositions that go back to the beginnings of the modern conception of the liberal, constitutional state. In a way, much of the debate remains captive within the confines of these well-trodden arguments and established conceptions. The question I have raised in this article is whether these arguments and conceptions are still fit for purpose. Religion, for the most part, is no longer under the spell of its ‘totalitarian temptation’—the primary reason religion was driven out of the public realm in the first place with the founding of modern liberal states. Indeed, in many European states religion has been domesticated into liberal democracy. Secularism, on the other hand, has hardly proven to be a secure safeguard against the drive for finality in politics. Indeed, secular philosophies presented a much greater danger to the openness and temporality of liberal democracy in the last century, than religious faith. Meanwhile religion played a direct role in some of the great advances in the spread of civil rights in the United States and Eastern Europe. Despite all these changes and developments, however, there has been a surprising return to the Enlightenment in contemporary debates about religion, as if Europe was still mired in the age of religious warfare. The remark that Charles-Maurice de Talleyrand famously made about the Bourbons seems apt for many of today’s ardent secularists: “They have learned nothing, and forgotten nothing.” They seem oblivious to the changes religion has gone through and the excess secularism can inspire, while they rehearse the same maxims that the Enlightenment philosophers employed in a different age. I have argued in this chapter that if you take the changed nature of religion seriously, this should also lead to a different conception of the relationship between church and state. If religion has exorcised its totalitarian temptation, then the argument to keep it out of public space loses much of its force. Especially since the conception of a neutral, secular public realm is itself highly problematic. The notion of exclusive neutrality needs to be rethought and

200  Wouter de Been replaced with a different conception. I have suggested the notion of a default position as an alternative. A default position does not depend on a fully neutral, public philosophy, but on a public philosophy which accords with the settled judgment of an overwhelming majority of citizens within the wide margins of basic rights and freedoms. It is an alternative that could accept a mandatory crucifix as part of an Italian conception of freedom of religion. It is an alternative, one could say, that is implicit in that most catholic (in the general sense) of European principles, the margin of appreciation.

STATE NEUTRALITY AND THE LIMITS OF RELIGIOUS SYMBOLISM Roland Pierik* I. Introduction The European Court of Human Rights (ECtHR) has concluded that the mandatory display of crucifixes in public school classrooms does not violate the European Convention.1 Many have questioned whether a supra-national court like the ECtHR is entitled to interfere in issues that are so intimately linked to the national identity of state parties. However, even if one agrees that the Court’s Grand Chamber was in the end correct not to interfere (by employing the margin of appreciation), one can still question whether a constitutional democracy like Italy is justified in enforcing an explicit Christian symbol in public schools. In this chapter, I analyze the Lautsi case from the perspective of state neutrality. It is generally acknowledged in legal and political philosophy that contemporary constitutional democracies cannot be formally linked to some religious confession, except in a vestigial and largely symbolic sense.2 Of course, modern states can never be perfectly secular and neutral toward the plurality of religions and philosophies of life. Still, as Rajeev Bhargava argues, the idea of neutrality requires a “principled distance” between religion and the state, two entities that should be seen as distinct spheres with their own respective areas.3 In this chapter, I analyze whether the wish to hold on to such a religiously inspired tradition is consistent with the idea of state neutrality, a central value of contemporary constitutional democratic states.4 Thus, the question in this chapter is whether the obligatory display of crucifixes should be considered merely to be a symbolic utterance of a ‘national par­ ticularity’ or whether the display actually breaches the principled distance *  I would like to thank Wibren van der Burg for the collaboration on a related research project on state neutrality. This paper could not have been written without the knowledge and insights I gained from this collaboration. 1   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (GC), No. 30814/06 (referred to as the Grand Chamber decision or Lautsi II). 2   Charles Taylor, ‘The Meaning of Secularism’, The Hedgehog Review (2010), p. 23. 3   Rajeev Bhargava, ‘What is Secularism for?’, in Rajeev Bhargava (ed.), Secularism and its Critics (Delhi: Oxford University Press, 1998), pp. 493–494. 4   It should be noted that the Catholic crucifix–a more or less detailed representation of the crucified Jesus–is a much more pronounced symbol than the more abstract simple cross as it is commonly used by Protestants.

202  Roland Pierik between state institutions and religion, because the crucifix is an expression of the state’s preference for a particular religion in an environment that should be devoid of such religious utterances. In the first part of the chapter (sections II–III), I analyze the arguments that were employed when the case was before the ECtHR. In the second part (sections IV–VIII), I analyze the obligatory crucifix in terms of state neutrality. I argue that the Italian insistence on holding on to the obligatory display of the crucifix is an example of what I will call the European constitutional deficit: the unwillingness or inability of European states to justify government institutions in a way that does justice to the pluralistic nature of European societies. II.  The Italian Defence of the Obligatory Crucifix Which arguments did the Italian government employ to justify the obligatory presence of crucifixes in public schools? Before the ECtHR, the Italian government followed various argumentative strategies in order to show the obligatory display of the crucifix in classrooms had nothing to do with (infringements of) state neutrality. In this section, I reconstruct the two major arguments. The first is constitutional: the government sees the display of the crucifix in state schools as ‘natural’ because it is the banner of the Catholic Church, the only church mentioned in the constitution.5 Article 7 of the Italian Constitution does indeed mention Catholicism, but it is a non sequitur to conclude that this reference provides any justification for the crucifix in state schools. Article 7 reads as follows: The State and the Catholic Church are independent and sovereign, each within its own sphere. Their relations are regulated by the Lateran pacts. Amendments to such Pacts which are accepted by both parties shall not require the procedure of constitutional amendments.

Indeed, the emphasis on the independence and sovereignty of the Italian state implies quite the opposite. In addition, the connection between the Italian state and the Catholic Church has been broken officially, when Catholicism lost its status as the state religion in 1985. The second argument, employed by the Italian government, downplays the association of the crucifix with Catholicism. Although the government acknowledges that the crucifix is primarily a religious symbol, it nevertheless emphasizes that in the context of the classroom the crucifix should primarily be understood as a secular symbol:

5   Lautsi v. Italy, 3 November 2009, European Court of Human Rights, No. 30814/06 (Chamber decision or Lautsi I), para. 11.

State Neutrality and the Limits of Religious Symbolism  203 It also had an ethical meaning which could be understood and appreciated regardless of one’s adhesion to the religious or historical tradition, as it evoked principles that could be shared outside Christian faith (non-violence, the equal dignity of all human beings, justice and sharing, the primacy of the individual over the group and the importance of freedom of choice, the separation of politics from religion, and love of one’s neighbour extending to forgiveness of one’s enemies).6

Those who think that the crucifix is solely a Catholic symbol are mistaken—or so the Italian government argues. In the classroom, the crucifix should primarily be considered a symbol of the history of Italian democracy: The democratic values of today were rooted in a more distant past, the age of the evangelic message. The message of the cross was therefore a humanist message which could be read independently of its religious dimension and was composed of a set of principles and values forming the foundations of our democracies. As the cross conveyed that message, it was perfectly compatible with secularism … In conclusion, as the symbol of the cross could be perceived as devoid of religious significance, its display in a public place did not in itself constitute an infringement of the rights and freedoms guaranteed by the Convention.7

The government thus argues that the crucifix delivers a humanist message that can be read independently of the object’s religious dimension and is composed of a set of principles and values that constitute the foundations of our democracies. The Veneto Administrative Court employed similar arguments when it rendered a judgement on the Lautsi case in 2005. Constitutional principles and Catholicism seem to run together seamlessly, for example, when the Court asserts that: with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.8

The Court thus concludes: The logical mechanism of exclusion of the unbeliever is inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity – where it is properly understood, which of course has not always been and still is not always the case, not even thanks to those who call themselves Christian … It follows that the rejection of a non-Christian by a Christian implies a radical negation of Christianity itself, a substantive abjuration; but that is not

  Ibid., para. 35.  Idem. 8   Statement of the Veneto Administrative Court, as quoted in Lautsi II, supra note 1, para. 15. 6 7

204  Roland Pierik true of other religious faiths, for which such an attitude amounts at most to the infringement of an important precept.9

In her analysis of the case, Mancini observes that this decision generated considerable amusement among constitutional law scholars, and it is not hard to see why.10 Who had expected that the obligatory crucifix in public schools provides the best symbolization of the secular character of the Italian state?11 Moreover, it is quite remarkable to conclude in a single sentence that the exclusion of unbelievers is inherent in any religious belief, that those actors are often unaware of this, but Christianity is the only exception. It is unfortunate that the Court does not elucidate why Christianity has this insight that other religions apparently lack. III. The Lautsi Case before the European Court of Human Rights When the case was brought before the ECtHR, the Court had to balance a citizen’s human right to freedom of religion (notably Article 2 of Protocol I on parental religious liberties) against the discretionary freedom of the Italian government to maintain a cherished tradition with strong religious leanings. Although the term ‘neutrality’ does not occur in either the Convention or in any of the Protocols, this term has been accepted in ECtHR case law as an obligation of the state as a safeguard for ensuring pluralism, which in turn is seen as one of the foundations of a “democratic society” within the meaning of the European Convention of Human Rights (ECHR).12 These Lautsi verdicts must therefore be considered in the context of a large body of Article 9 religious freedom jurisprudence. In the context of education, Article 2 of Proto­ col I is the lex specialis in relation to Article 9 of the ECHR. The ECtHR argues that these articles in tandem guarantee freedom of religion in education, including the freedom not to belong to a religion. This imposes a “duty of neutrality and impartiality” on the part on Contracting States.13 The Chamber’s Second Section concluded that the obligatory crucifix display violated the ECHR because states have an obligation “to refrain from imposing  Idem.   Susanna Mancini, ‘The Crucifix Rage: Supranational Constitutionalism Bumps Against the Counter-Majoritarian Difficulty’, 6 European Constitutional Law Review (2010), p. 10. 11   “A crucifix displayed in a classroom … should be seen as a symbol capable of reflecting the remarkable sources of the civil values … which define secularism in the State’s present legal order” (the Consiglio di Stato as quoted in Lautsi II, supra note 1, para. 16). 12   Kokkinakis v. Greece, 25 May 1993, European Court of Human Rights, No. 14307/88, para. 31; Bessarabia v. Moldova, 13 December 2001, No. 45701/99, para.116. For a discussion of these and related cases, see Aernout Nieuwenhuis, ‘The Concept of Pluralism in the Case-Law of the European Court of Human Rights’, 3 European Constitutional Law Review (2007). 13   Lautsi II, supra note 1, paras. 59–61.    9

10

State Neutrality and the Limits of Religious Symbolism  205 beliefs, even indirectly, in places where persons are dependent on it or in places where they are particularly vulnerable.”14 In the context of the Lautsi case, it contended that although the crucifix might have various meanings, the religious meaning is predominant, and the presence of the crucifix in classrooms goes beyond the use of symbols in specific historical contexts.15 Accordingly, the Chamber concluded that the obligatory presence of crucifixes violates Article 2 of Protocol I: The Court cannot see how the display in state-school classrooms of a symbol that it is reasonable to associate with Catholicism (the majority religion in Italy) could serve the educational pluralism which is essential for the preservation of “democratic society” within the Convention meaning of that term … It is of the opinion that the practice infringes those rights because the restrictions are incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education.16

In 2011, the Grand Chamber overturned the Chamber’s decision and concluded that the obligatory presence of crucifixes in public schools is not in violation of neutrality. However, before arriving at that conclusion, the Grand Chamber gave an illuminating elaboration of how Article 9 of the Convention and Article 2 of Protocol I impose a duty of neutrality and impartiality on Contracting States. The relevant second sentence of Article 2 reads as follows: 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.

The word “respect” implies more that simply acknowledging the rights of parents or taking them into account; instead, it implies a positive obligation on the part of the state.17 The Grand Chamber argues that Article 2 of Protocol I does not prohibit states from passing over “information or knowledge of a directly or indirectly religious or philosophical kind” through teaching or education, as long as it does not “pursue an aim of indoctrination.”18 It argues more particularly that: the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals … The setting and planning of the curriculum fall within the competence of the Contracting States.

  Lautsi I, supra note 5, para. 48.   Ibid., paras. 51–52. 16   Ibid., paras. 56–57. 17   Lautsi II, supra note 1, para. 61. 18   Ibid., para. 62. This emphasis on fighting indoctrination should be seen as a way of safeguarding pluralism as mentioned in the introduction. 14 15

206  Roland Pierik In principle it is not for the Court to rule on such questions, as the solutions may legitimately vary according to the country and the era.19

In the Folgerø case, the ECtHR accepted that Norway gave more attention in the school curriculum to Christianity than to other religions and philosophies of life, because Christianity has played such an important role in Norwegian history and tradition. In the Zengin case, Turkey was allowed to give greater prominence to knowledge of Islam in the curriculum on the grounds that, notwithstanding the state’s secular nature, Islam was the majority religion practiced in Turkey.20 However, the Grand Chamber formulates two limitations: [a]  The State [should] take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism. [b]  The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions.21

The Grand Chamber’s final verdict ignores the first (more objective) criterion and is solely based on the second. Moreover, the Court places the burden of proof on the plaintiff: There is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed … However, it is understandable that the first applicant might see in the display of crucifixes in the classrooms of the State school formerly attended by her children a lack of respect on the State’s part for her right to ensure their education and teaching in conformity with her own philosophical convictions. Be that as it may, the applicant’s subjective perception is not in itself sufficient to establish a breach of Article 2 of Protocol No. 1.22

This conclusion is striking for two reasons. First, such parental perceptions can only be subjective, so the subjective character cannot ipso facto be a reason to reject the claim. Second, it seems very difficult for Ms Lautsi to demonstrate convincingly that this concerns a case of indoctrination—as much as it would be difficult for the Italian state to show that there is no question of indoctrination. Determining whether a crucifix in the classroom leads to indoctrination   Ibid., paras. 61–62.   Ibid., para. 71, Folgerø and Others v. Norway, 14 February 2006, European Court of Human Rights, No. 15472/02; and Hasan and Eylem Zengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04. 21   Lautsi II, supra note 1, para. 62. 22   Ibid., para. 66. 19 20

State Neutrality and the Limits of Religious Symbolism  207 is more the domain of psychologists than of lawyers or individual plaintiffs before the Court. Thus, by employing the criterion of indoctrination and placing the burden of proof on the plaintiff, the Grand Chamber makes it nearly impossible for the applicant to show a breach of Article 2 of Protocol I. It seems to make much more sense to endorse the first, less subjective, criterion. To what extent is the curriculum conveyed in an objective, critical and pluralistic manner and in an atmosphere free of proselytism? This criterion does not require proof that pupils actually are or are not indoctrinated. It requires only an assessment of the way that the curriculum is set up, and whether certain elements give rise to a reasonable doubt regarding whether the curriculum is violating the requirements of objectivity and pluralism. The Italian government saw no problem because, as the state argued, the crucifix has different connotations for different people and it will always be interpreted in different ways. This may be true in general, but the case before the ECtHR was not about the philosophical question of what meanings the crucifix might or might not have in all possible contexts. The question is how pupils interpret a crucifix in their classroom. A crucifix is not an indiscriminate symbol; on the contrary, it is primarily and explicitly associated with the Catholic Church, and thus, it is explicitly employed as a logo by the Vatican. Within the Catholic Church, the crucifix is also a distinctive symbol, the sign of salvation from sin through Christ that is employed to bring followers together and to exclude outsiders. In the course of developing into adulthood, children (consciously or unconsciously) make all kinds of choices, including the choice to either endorse or not to endorse a certain religious conviction or philosophy of life. This process is difficult to fathom, but it is obvious that the everyday environment, including the school environment, affects such choices. Pupils see the same symbol on churches (predominant religious institutions) and in school (for students pre-eminently an institution of authority). How realistic is it that a student enters the classroom and thinks, look, a crucifix: the symbol of secularism and justice? Is it not more obvious that a non-Catholic scholar concludes, ok, the message is clear, the school has chosen to display this crucifix, this is clearly a Catholic area, I do not really belong here, I am tolerated at best. Especially when we employ the first, more objective criterion, it becomes clear that a governmental obligation to display the crucifix in public school classes violates the duty to create a school environment free of any proselytism that enables pupils to develop a critical mind particularly with regard to religion. Seen from this perspective, Article 2 of Protocol I is violated, whether actual pupils are indoctrinated by the crucifix or not. The Grand Chamber has shown too much respect for the discretionary freedom of the Italian government by accepting a predominant religious symbol as

208  Roland Pierik an icon of Italian national unity. The first judgement of the Court (Second Section), on the other hand, correctly employs the first criterion by concluding that the display in state school classrooms of a symbol that can reasonably be associated with Catholicism does not contribute to educational pluralism and is incompatible with the state’s duty to respect neutrality in the exercise of public authority. IV.  The European Constitutional Deficit Apart from the analysis of how the ECtHR decided the Lautsi case, one can access the crucifix question from a second angle. Is a constitutional democracy such as Italy justified in enforcing an explicit Christian symbol in public schools? The Lautsi case exemplifies very nicely the contemporary tension in European states. On the one hand, Italy considers itself a well-established liberal democracy in which constitutional values are properly secured, including the rule of law, rights of citizens and the demands of state neutrality. On the other hand, political, legal and educational institutions in such states are usually still intimately intertwined with the historically dominant religion (Christianity in its various denominations), and usually a desire exists to keep these traditions alive. What is more, in reaction to perceived threats to national unity such as globalization, mass integration, the (alleged) terrorist threat after 9/11 and the (alleged) decline of ‘Judeo-Christian values,’ such societies have reappraised these familiar symbols to reconfirm their shared identity. However, if the icons chosen are themselves controversial (i.e., a crucifix with a strong religious connotation), the desire for shared identity paradoxically turns into a means of exclusion in current multicultural societies. The desire to hold on to such comprehensive traditions in constitutional democracies leads to what we could call a European constitutional deficit: the unwillingness or inability of European states to justify (elements of) their institutions in terms that does justice to the pluralistic character of their societies and the constitutional principles the states have endorsed over the last few decades. This tension between constitutional values and Christian-inspired traditions has long remained invisible in European states. However, as a result of the increasing assertiveness of minorities (atheists and other persons with a non-Christian background), the dominance of the Christian-inspired symbols has increasingly come under discussion. The Lautsi case is a characteristic example: a centuries-old tradition is challenged by an atheist citizen, Ms Soile Lautsi. Equally telling is the reaction of Italian politicians to the initial ban by the Court. Former Italian Prime Minister Silvio Berlusconi stated, “This decision is not acceptable for us Italians. It is one of those decisions that make us

State Neutrality and the Limits of Religious Symbolism  209 doubt Europe’s common sense.”23 His defence minister, Ignazio La Russa, declared on television: Anyway, we won’t take away the crucifix! They can die! The crucifix will remain in all school’s rooms, in all public rooms! They can die! They can die! Them and those fake international organization that count for nothing!24

Instead of accusing ‘Strasbourg’ of making unjustified infringements on the Italian national identity, these politicians could also ask themselves whether their reliance on familiar symbols of national identity is still fitting in a pluralist society and whether it is consistent with the endorsed self-image of the constitutional-democratic state. V.  Exclusive and Inclusive Neutrality One of the constitutional values primarily at stake in this discussion of the obligatory display of the crucifix is state neutrality. Although ‘neutrality’ is a household term in legal analysis and in political theory, what the term implies in public policy or legal decisions is not always clear. In this section, I present a conceptual overview of relevant interpretations of what state neutrality can imply; the next section analyzes to what extent the obligatory crucifix fits within these interpretations.25 The general idea underlying the various conceptions of neutrality is that the ‘fact of plurality’ implies that citizens in a society are likely to have adopted a wide variety of plans of life and endorse different views about what makes life valuable and society good. The government should not penalize or reward any of these ideas of the good life; instead, the government should provide an impartial framework within which each citizen can pursue the good life as he or she sees it.26 This basic idea may be developed in two different ways. Exclusive neutrality contends that this impartial framework can be achieved only if the state completely disregards religious and cultural differences. This implies that religious or cultural expressions, in terms of arguments, practices and symbols, should be excluded from the public sphere, including schools. John Rawls defends exclusive neutrality when he argues that “the state is not to do

  As quoted in Mancini, supra note 10, pp. 6–7.   This TV interview can be found at: . 25   For an elaborate discussion of state neutrality and the distinction between inclusive and exclusive neutrality, see Roland Pierik and Wibren van der Burg: ‘What is Neutrality?’, Amsterdam Law School Research Paper No. 2011–20 (available at SSRN: ). In this paper we further subdivide inclusive neutrality in proportional and compensatory neutrality, a distinction that is less relevant in the context of this paper. 26   Will Kymlicka, ‘Liberal Individualism and Liberal Neutrality’, 99 Ethics (1989), p. 883. 23 24

210  Roland Pierik anything intended to favor or promote any particular comprehensive doctrine rather than another, nor to give greater assistance to those who pursue it.”27 Exclusive neutrality is usually explained in metaphors such as “hands-off ” and “difference-blind.” These metaphors suggest that the government should disregard all divisive differences among and between citizens, such as religion or culture, to ensure equal treatment.28 Indeed, exclusive neutrality seeks to exclude sources of controversy from the political decision-making process and governmental institutions. Exclusive neutrality claims the advantage that this exclusion makes it easier to arrive at decisions that everyone can support. If we can keep controversial views of the good life at bay, this will result in neutral institutions in which each person can live according to her own views of what constitutes a good life. In actual politics, this ideal of exclusive neutrality toward religion can be seen in US constitutional practice and in the dominant interpretation of the French doctrine of laïcité. The second interpretation, inclusive neutrality, does not seek to eliminate controversial views of the good life from the political sphere. On the contrary, inclusive neutrality aims to take them fully into account, with regard to justifying policies and with regard to their consequences. In political debates, references to worldviews are allowed, and in the outcome, policies and legislation should try to do justice to the views of all citizens. Citizens are free to express and organize themselves in the public sphere on a religious or cultural basis. The state can support certain religious activities, for example, allowing funding for religious schools. Inclusive neutrality tries to take account of culture and religion in the public sphere in an even-handed way by including all relevant worldviews. Inclusive neutrality implies that the state should not unfairly privilege or discriminate against some religions or philosophies of life. Instead, inclusive neutrality argues that different comprehensive views should be taken into account by making the representation of minority groups or state support for their culture proportional to their size. For example, it advocates funding for religious schools in proportion to the ratio of the adherents of the various religions. In such situations, the hands-off interpretation of neutrality is replaced by an interpretation of ‘comparable support’. VI.  Crucifixes and Neutrality In the previous section, I presented two ideal-typical conceptions of neutrality that have dominated academic debates in recent decades. In this section, 27   John Rawls, ‘The Priority of the Right and Ideas of the Good’, 17 Philosophy & Public Affairs (1988); see also John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971), p. 94. 28   Anna Elisabetta Galeotti, ‘Neutrality and Recognition,’ in Richard Bellamy and Martin Hollis (eds.), Pluralism and Liberal Neutrality (Ilford, Essex: Cass, 1999), pp. 37–38.

State Neutrality and the Limits of Religious Symbolism  211 I argue that the mandatory display of crucifixes in public school classrooms does not fit comfortably in either of the two models. Defenders of exclusive neutrality argue that respecting citizens implies that the state treats them as intelligent, autonomous beings that can decide and act on their own conceptions of the good life. Thus, citizens should be left to decide for themselves what constitutes a good life, and the government should not take a stance on those views. Thus, the government should abstain from appeals to controversial views of the good life in justifying its policies and provide an impartial framework in which various ideas of the good life can thrive equally. A symbol that is first and foremost associated with one religious confession does not fit comfortably in the framework of exclusive neutrality. Indeed, this is the argument that the Chamber (Second Section) employed when it argued “the display in state-school classrooms of a symbol that it is reasonable to associate with Catholicism [is] incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education.”29 Moreover, pursuant to this view, if citizens are to identify with the state as their state, it is important that the public domain in general and public symbols such as oaths, courtrooms and public ceremonies, are organized in such a way that all citizens can identify with them. This identification is hindered if reference is made to controversial views of life, for example, by including controversial religious or cultural symbols such as crucifixes in public schools. Moreover, this identification is hindered if the government’s justification for such a controversial symbol is phrased in terms that address only one religious group. Supporters of inclusive neutrality argue that the problem with exclusive neutrality is that it requires citizens to leave part of their identity at home when they enter the public sphere, and that it requires the state to disregard the identity of their citizens when the state tries to do justice to them. In both cases, exclusive neutrality requires disregarding a part of citizens’ personal identity, which is often very important to them. What language one speaks, which religion one practices, which culture one identifies with are all central aspects of one’s life. Prima facie, there is a good argument that neither the state nor citizens should be required to ignore this part of citizens’ identity. In the words of Veit Bader: In the end [exclusive] neutrality and fairness as hands-off would literally strip people of their histories, languages, public holidays, monuments, rituals and symbols of national identity, dress codes, public monuments, history and literature lessons in public education. The result would be the fiction of a ‘naked public square.’ [This is] neither morally required nor desirable.30   Lautsi I, supra note 5, paras. 56–57.  Veit Bader, Secularism or Democracy? Associational Governance of Religious Diversity (Amsterdam: Amsterdam University Press, 2007), p. 88. 29 30

212  Roland Pierik The alternative line of reasoning of inclusive neutrality takes this argument seriously. It also starts from the notion that citizens should be treated with equal respect and concern, but contends that the autonomous citizen should have equal opportunities to live her life according to her own view of the good life and in line with her deep-felt commitments and identities. “To treat people fairly, we must regard them concretely, with as much knowledge as we can obtain about who they are and what they care about,” Bader argues.31 Arguing from the perspective of inclusive neutrality, the crucifix can be allowed in public schools, but it should not occupy the exceptional position it now does. The crucifix should be one symbol among other religious and nonreligious symbols. At first sight, such an inclusive approach seems impractical: putting dozens of symbols of the various main religions in the classroom would still be offensive to atheists and small minorities. In addition, there seems to be no good justification why public institutions should be decorated with an abundance of such evidently biased symbols. None of the parties in the Lautsi case has proposed a solution based on the idea of inclusive neutrality.32 However, it might be interesting to elaborate this position, if only to analyze its possible implications.33 Inclusive neutrality would imply that all relevant religions and other views of life are symbolically represented in the classroom. A crucifix for Roman Catholics and a simple cross for Protestants, a Star of David for Jews, a crescent for Muslims, etcetera. In principle, this might be possible, although it might generate certain practical problems. The collection of symbols might give rise to endless debates: should Wicca symbols be included, and Zen Buddhism? Moreover, some religions and philosophies of life do not employ symbols and might even resent the use of symbols. On the other hand, the presence of a plurality of symbols might be an interesting representation of pluralism, one of the foundations of a ‘democratic society’ as aimed for in the European Convention of Human Rights. Parents, teachers and pupils (depending on their age) in a certain school can deliberate about which constellation of symbols provides the representation of the pluralist character of the micro-community. The discussion on which symbols to display in a classroom and how they should relate to another might provide an interesting instance of pluralism in action and a unique opportunity for mutual learning. It might raise questions such as the following: to what extent can   Ibid., 82.   However, Joseph Weiler, in an editorial in the European Journal of International Law, mentions this option in passing. Weiler’s position will be discussed further in the next section. Joseph Weiler, ‘Lautsi: Crucifix in the Classroom Redux (Editorial)’, 21:1 European Journal of International Law (2010). 33   Cf. Roland Pierik and Wibren van der Burg, ‘The Neutral State and the Mandatory Crucifix’, 6 Religion & Human Hights (2011), p. 272. 31 32

State Neutrality and the Limits of Religious Symbolism  213 parents claim that only their symbol should be displayed and that their symbol does not tolerate others in its presence? Parents might conclude that an empty wall is the best solution, or a wall on which all religions and philosophies of life present in that school are displayed on an equal footing. However, again, it seems highly unlikely that the end result of such a process is that only the Catholic crucifix will be displayed; the wall will either include a set of relevant symbols or be empty. The Italian constellation in which only one religion is obligatorily displayed and all others remain invisible is quite at odds with this idea of inclusive neutrality. VII.  Neutrality, Secularism and the Empty Wall In the Lautsi discussion, the term secularism is used in two quite different meanings. In one interpretation, secularism is seen as a comprehensive philosophy of the good life, on par with other religions and philosophies of life. The Grand Chamber saw secularism in this way and argued that it had a “‘level of cogency, seriousness, cohesion and importance’ required for them to be considered ‘convictions’ within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1.”34 This is the way Judge Power interprets secularism in her concurring opinion to the verdict of the Grand Chamber: A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option. The Convention requires that respect be given to the first applicant’s convictions insofar as the education and teaching of her children was concerned. It does not require a preferential option for and endorsement of those convictions over and above all others.35

This way of conceptualizing secularism seems to be patently unhelpful in a discussion on state neutrality. Of course, many present secularism as an antireligious moral or political program, the most prominent examples being Christopher Hitchens and Richard Dawkins.36 In this discussion before the ECtHR, however, the term ‘secularism’ should first and foremost be interpreted as a constitutional principle, arguing that the government should be neutral to all religious, non-religious and anti-religious ideas of the good life.37 Secularism should not be seen as one of the various comprehensive (predominantly anti-religious) philosophies of the good life. Secularism is a way for the   Lautsi II, supra note 1, para. 58.   Concurring Opinion of Judge Power to Lautsi II, pp. 44–45. 36   Richard Dawkins, The God Delusion (London: Bantam Press, 2006); Christopher Hitchens, God is Not Great : How Religion Poisons Everything (New York: Twelve, 2007). 37   Cf. Stijn Smet, Lautsi v. Italy: the Argument from Neutrality (Strabourgh Observers, 2011; accessed 23 January 2012; available at ). 34 35

214  Roland Pierik government to deal with religious pluralism, ensuring equal treatment of all citizens, regardless of their (lack of) religious conviction of philosophy of life. This confusion is most prominent in cases where authors argue that the empty wall is as biased (in the sense of a-neutral) as having a crucifix on the wall, because the empty wall should be considered a symbol of antireligiousness. For example, the Italian government criticizes the Second Section of the ECtHR because its judgement was based: on confusion between “neutrality” (an “inclusive concept”) and “secularism (an “exclusive concept”). Moreover, in the Government’s view, neutrality meant that States should refrain from promoting not only a particular religion but also atheism, “secularism” on the State’s part being no less problematic than proselytising by the State. The Chamber’s judgement was thus based on a misunderstanding and amounted to favouring an irreligious or antireligious approach of which the applicant, as a member of the Union of atheists and rationalist agnostics, was asserted to be a militant supporter.38

In a similar vein, Joseph Weiler argues: In a society where one of the principal cleavages is not among the religious but between the religious and the secular, absence of religion is not a neutral option. … In the conditions of our societies, the naked public square, the naked wall in the school, is decidedly not a neutral position, which seems to be at the root of the reasoning of the Court. It is no more neutral than having a crucifix on the wall. It is a disingenuous secular canard, the opposite of pluralism, which has to be dispelled once and for all if we are serious about teaching our children, religious and secular, Christian, Muslim and Jew, to live as a harmonious society in mutual respect.39

Neutrality is a normative ideal that can never be fully attained, and different policies will be more or less successful in achieving this ideal. And of course, the moment the crucifix is removed from Italian schools is an awkward one, and might send a certain signal to students. However, to see the empty wall as promoting a form of (anti-religious) atheism, and to argue that an empty wall is equally biased as the display of a crucifix seems to be a—wilful?—misreading of what neutrality and secularism are all about. Viewing the empty wall as one on which the crucifix is lacking, or as anti-Christian symbolism, is a quite Christian-centred approach. An empty wall is merely what it is: it is a wall without any religious and non-religious symbolism. Mocking an empty wall as “a disingenuous secular canard” is quite disingenuous itself. At the end of the day, neutrality implies that the government should not punish or reward any idea of the good life, whether religious, a-religious or

  Lautsi II, supra note 1, para. 35.  Weiler, supra note 32, pp. 4–5.

38 39

State Neutrality and the Limits of Religious Symbolism  215 anti-religious. Neutrality can never be attained in full, and different policies will be more or less successful in achieving this ideal. However, the argument cannot be reversed: not every policy is equally biased. If there are only two options available, the empty wall or the display of the crucifix, the former is, all things considered, by far the more neutral choice. VIII.  Neutrality, other Constitutional Values and the Constitutional Deficit The obligatory crucifix in public schools is at odds with the general gist of neutrality, in either the exclusive or inclusive interpretation. However, this is ipso facto not a reason why crucifixes in public schools should be prohibited in a constitutional liberal-democratic state. For one thing, modern states can never be perfectly secular and neutral toward the plurality of religions and philosophies of life. States will always contain vestigial traces of historic traditions that, more often than not, have religious roots. Moreover, neutrality is not the only foundational value of constitutional-democratic states. Neutrality is part of a larger set of ideals characterizing the constitutional order of liberal democracies, including the rule of law, fair equality of opportunity and basic rights. In a well-ordered constitutional democracy, these values have to be weighed against one another. The question, then, is not whether Italy meets the demands of perfect neutrality, either in the inclusive or exclusive interpretation. The question is whether this obligatory display of crucifixes in public schools is so much in violation of the ideal of state neutrality that, all things considered, Italy does not meet the basic standards of what counts as a constitutional democracy. Italy is not expected to offer a strictly neutral public space or to remove all contingent symbols from political, legal and educational institutional settings. A society is more than a random collection of citizens, organized according to abstract principles: “for the people to be sovereign, they need to form an entity and have a personality.”40 A society requires a shared political identity and collective agency, which is strengthened and enforced through regulation and legislation. This political identity: is usually defined partly in terms of certain basic principles (democracy, human rights, equality), and partly in terms of their historical, or linguistic, or religious traditions. It is understandable that features of this identity can take on a quasisacred status, for to alter or undermine them can seem to threaten the very basis of unity without which a democratic state cannot function.41

 Taylor, supra note 2, p. 29.   Ibid., 31.

40 41

216  Roland Pierik This shared identity is obviously built upon contingent values that, in the case of European states, are predominantly Christian in character. As Scheffler argues: In enforcing the political culture … and so in shaping the broader national culture, the state will inevitably be enforcing a set of practices and values that have their origins in the contingent history and traditions of a particular set of people. This is not in itself inappropriate, and there is in any case no alternative. The state can neither avoid promoting a national culture nor invent that culture ab initio.42

The background culture within a society has a contingent moulding during the process of nation building cannot be undone retrospectively. This implies that certain infringements of the ideal of neutrality are unavoidable and acceptable. On the other hand, this does not imply that all symbols and practices in state institutions are equally acceptable. Certain symbols in official institutions violate the “principled distance” between religion and the state and cannot be maintained in contemporary liberal democracies, even though they might have a firm historical basis in a certain society.43 In the final analysis, the obligatory crucifix in public schools does indeed violate this principled distance between state and religion. By adhering to the practice, the Italian government explicitly chooses to employ its state power to officially represent the historically dominant religion in public schools and not to represent all other religious, non-religious and anti-religious philosophies of life. Subsequently, when the government had to defend its stance before the ECtHR, it employed arguments that are persuasive only to Catholics. This attitude is a striking example of the constitutional deficit discussed in section IV: the unwillingness or inability of states to justify government institutions in a way that does justice to the pluralistic nature of its societies. In the defence before the ECtHR, the Italian government preaches only to the choir; the government makes no attempt whatsoever to provide a justification that addresses non-Catholics, nor does the government provide any argument why the crucifix would contribute to good and pluralistic education. The fact that Catholicism is the most widely professed religion in Italy does not make it a Catholic monoculture. As a result of secularization and immigration, Italy is as much pluralistic as any other western state. Why should non-Catholic or former Catholic citizens accept the provided justification of obligatory crucifixes in schools, when the very same crucifix has, over the last centuries also

42   Samuel Scheffler, ‘Immigration and the Significance of Culture’, 35:2 Philosophy and Public Affairs (2007), p. 113. 43  Bhargava, supra note 3.

State Neutrality and the Limits of Religious Symbolism  217 symbolized Crusades, the Inquisition, anti-Semitism and the subordination of women and homosexuals? On the one hand, European states nourish a self-image of being secularized. On the other hand, they are still strongly and structurally intertwined with Christianity in ways that even secular Christians hardly notice but nonetheless might have a confining effect on religious minorities.44 This constitutional deficit stems from the fact that European states do not fully recognize that residues of their Christian background are still manifest within their state institutions, that this may be at odds with their self-appointed status of constitutionaldemocratic state and that this tension is insufficiently recognized. States can counter this deficit by either justifying such controversial symbols in an open debate or by abolishing symbols that are too explicitly linked to a specific religious tradition. The democratic deficit can be further prevented by endorsing national symbols that transcend the plurality of religions and other ideas of the good life—symbols that can bind all members of society. IX. Conclusion This chapter discussed the question whether the obligatory display of crucifixes in Italian public schools can be justified. Of course, the presence of crucifixes may well be explained historically by the important role that Catholicism played in Italian history. However, a historical explanation for the existence of a certain practice is quite different from a justification of the continuity of this practice, especially in the face of serious objections against it. I have given several arguments why the presence of crucifixes in public schools is incompatible with constitutional values, especially that of state neutrality. I have also argued why I think the Grand Chamber of the ECtHR wrongly concluded that this display was not in violation of the ECHR. Joseph Weiler correctly contends the Court is a “dialogical partner with the Member States Parties to the Convention,” and that it “is simultaneously reflective and constitutive of the European constitutional practices and norms.”45 For Weiler, this is an important step to concluding that the Court should not interfere when there is diversity in the constitutional practice of the member states. I would interpret the dialogical contribution of the Court to constitutional debates in the opposite way. The Court has an important role to raise questions when the practice of a member state is in violation of the state’s own constitutional ideals and the ECHR. In cases like Lautsi, the Court should not 44  Jytte Klausen, The Islamic Challenge: Politics and Religion in Western Europe (Oxford: Oxford University Press, 2005), p. 136. 45  Weiler, supra note 32, p. 1.

218  Roland Pierik hide beyond the margin of appreciation and should enforce the Convention upon the member states. Constitutional principles must be more than a generous gesture of predominantly Christian states to religious and nonreligious minorities. When European states recognize the freedom of religion only under the condition that the hegemony of Christianity is not seriously questioned, the constitutional principle of state neutrality degenerates into a toothless tiger.

NEUTRALITY AND DISPLAYING RELIGIOUS SYMBOLS Hana M.A.E. van Ooijen* I.  Religious Symbols and Neutrality at School A school teacher is not a school wall. A headscarf is not a crucifix. So much is clear about the differences between the facts in the case of Dahlab v. Switzerland1 in 2001 and the case of Lautsi v. Italy2 ten years later. Are they clear enough to account for the divergence in the rulings of the Court in both cases? The Dahlab case revolved around a state schoolteacher’s complaint that a measure prohibiting her to wear the headscarf violated Article 9 ECHR. The Court dismissed her complaint with an intricate line of reasoning part of which concerned the incompatibility of the headscarf with neutrality. In the Lautsi case, the central question concerned the mandatory display of a crucifix in a classroom. Whereas the Chamber had considered the crucifix to be incompatible with neutrality, the Grand Chamber reversed this finding. Moreover, it qualified the crucifix at the wall as an “essentially passive symbol”3 which sharply contrasted with its earlier finding in Dahlab that the headscarf was a “powerful external symbol”4. In the Lautsi case, the Grand Chamber itself addressed the discrepancy with Dahlab by pointing out that the decision in the earlier case “cannot serve as a basis because the facts of the case are entirely different”.5 The sentence following this statement referred to the facts in Dahlab that (i) the applicant wore an Islamic headscarf and that (ii) she did so while teaching.6 The difference between the two cases concerning the compatibility of a religious symbol with neutrality can thus be related to the particular religious symbol at issue coupled with the mode of displaying. While it is appropriate to be wary of inferring doctrinal truths from the case law of the Court, it cannot *  This contribution draws on the author’s Ph.D. research, the topic of which is state neutrality and public servants displaying religious symbols. She has been conducting this research at the Netherlands Institute of Human Rights, Utrecht University. Her dissertation will be published in 2012. 1  Case of Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, No. 42393/98. All cases of the European Court of Human Rights referred to in this contribution have been consulted in the HUDOC database, via the website of the Court, available at , last accessed on 28 December 2011. 2   Case of Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (Grand Chamber), No. 30814/06. 3   Ibid., para.72. 4   Dahlab v. Switzerland, supra note 1, p. 15. 5   Lautsi and others v. Italy, supra note 2, para. 73. 6  Idem.

220  Hana M.A.E. van Ooijen be ignored that the rulings of the Court gradually elaborate conceptions of concepts. The latest building block added by Lautsi has clearly raised questions as to how the Court views neutrality and relates it to education. The brevity with which the Grand Chamber dismissed a parallel with the Dahlab case begs the question whether the compatibility with neutrality can indeed be ascribed to the symbol in question and the mode of displaying. To be sure, already at the time, the Dahlab case itself had not remained free from criticism concerning how the Court had dealt with conceptualizing the headscarf, assessing its role in teaching and judging its compatibility with neutrality.7 This contribution takes a closer look at neutrality and its role in relation to state schoolteachers. To this end, it begins with an examination of how neutrality is conceived within the ECHR context generally and in the Dahlab case specifically. Subsequently, it briefly steps back in saying a few words on the theoretical concept of neutrality. Finally, it explores divergent ways in which states have grappled with neutrality specifically in relation to state schoolteachers displaying religious symbols; it does so by highlighting cases involving state schoolteachers wearing religious symbols. Many countries have come across the issue of religious symbols in state education.8 Two of these countries have been regularly referred to as representing two extremes of a spectrum in dealing with the issue: France and England. The third country, the Netherlands, is additionally examined because of its pluralist model. The exploration of these domestic practices is made by giving a mosaic impression rather than by providing a comprehensive analysis. This neutrality tour around various contexts is used to put into perspective how religious symbols displayed by state schoolteachers relate to neutrality. II.  Gradual Development of State Neutrality in the ECHR The Court has been straightforward in declaring that democracy is the only political model compatible with the Convention.9 It has been less straightforward on church-state arrangements. As a matter of fact, it has not 7   For criticism on the decision, see, e.g., Paul Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2005), p. 256; Niraj Nathwani, ‘Islamic Headscarves and Human Rights: A Critical Analysis of the Relevant Case Law of the European Court of Human Rights’, 25:2 Netherlands Quarterly of Human Rights (2007), pp. 221–254, Anastasia Vakulenko, ‘Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends’, 7:4 Human Rights Law Review (2007), pp. 717–739. 8   Apart from the states addressed in this contribution, Germany, Belgium and Turkey are among the states where there has been a national debate on religious symbols in state education. For a thorough analysis of the headscarf debate in Europe, see Dominic McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Oxford: Hart Publishing, 2006). 9   Malcolm D. Evans, Manual on the Wearing of Religious Symbols in Public Areas (Council of Europe & Martinus Nijhoff Publishers, 2009), p. 51.

Neutrality and Displaying Religious Symbols  221 declared a particular church-state model as exclusively compatible with the Convention.10 Likewise, it has not put forward an unambiguous understanding of state neutrality; the Convention does not explicitly enshrine neutrality. The bearing of neutrality on cases involving a variety of states indicates that neutrality is not reserved to one church-state model either. State neutrality has regularly figured in Article 9 cases, to the extent that it has become part of the general principles of the Court.11 Throughout its case law, the Court has gradually shaped the general duty of the state to be neutral and impartial into more concrete obligations on the part of the state. In some cases, the Court was asked to rule on disputes between religious communities in which it articulated the duty of the state not to take sides.12 It has specified this duty to entail judicial restraint: it should not assess the legitimacy of religious beliefs or the ways in which they are expressed.13 In other cases, the Court has extended its vocabulary on neutrality to apply to other types of cases as well, including education-related cases. An important point of departure for state teaching is its crucial role in safeguarding the possibility of pluralism in education, the interest of which is the preservation of the democratic society.14 Such an association with high-minded values has been equally made in cases concerning religious symbols in state education. In these cases, the Court has linked the duty of neutrality with values like pluralism, tolerance and broadmindedness.15 It has pointed to the active stance required from the state in safeguarding these values to ensure mutual tolerance between groups. So first and foremost, in implementing irrespective which type of religion-state arrangement, the state should pursue the aims of the Convention like safeguarding pluralism and tolerance.16 States arguing that a secular school system prohibiting religious dress and symbols pursue such aims have generally been able to depend on deference of the Court. The case of Dahlab v. Switzerland has become exemplary in that regard.

10  Carolyn Evans and Christopher A. Thomas, ‘Church-State Relations in the European Court of Human Rights’, 3 Brigham Young University Law Review (2006), p. 699. 11  See, e.g., Metropolitan Church of Bessarabia v. Moldova, referred to in this context by Malcolm Evans, supra note 9, p. 44. 12   In, e.g., Hasan and Chaush v. Bulgaria, referred to by Malcolm Evans, supra note 9, p. 44. 13  Evans, supra note 9, p. 44. The case of Kosteski v. the Former Yugoslav Republic of Macedonia, 13 April 2006, European Court of Human Rights, No. 55170/00, addresses this principle. 14   Case of Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, Nos. 5095/71; 5920/72; 5926/72. 15  E.g., Leyla Sahin v. Turkey, 10 December 2005, European Court of Human Rights, No. 44774/98. 16   See Evans, supra note 9, p. 45 ff.

222  Hana M.A.E. van Ooijen III.  The Manifestly Ill-Founded Application in Dahlab v. Switzerland The applicant, Ms Dahlab, had already been working for some months as a teacher at a Swiss primary State school, when she converted to Islam and decided to wear a headscarf. After wearing the headscarf for approximately four years she was summoned by the Director General of Primary Education who asked her to stop wearing it because of incompatibility with the Public Education Act. When this request was issued in a formal ruling, the case escalated leading to proceedings before the Federal Court, which dismissed her appeal in an elaborate decision with a great emphasis on the importance of strict denominational neutrality of the State school system, which had been referred to by the domestic courts from the outset. The extensive decision of the Federal Court contained a number of considerations on the neutrality principle (which have been integrally included in the decision of the European Court).17 According to the Federal Court, the denominational neutrality principle is coupled to the separation of church and state, which is further corroborated by the secular character of the state. It considered that the neutrality principle aimed at the protection of the religious beliefs of pupils and parents as well as religious harmony. In addition, the Federal Court interweaved this main line of argument with other arguments of gender equality, the danger of provocation or conflict and the special responsibility incumbent on Ms Dahlab as both a teacher and a civil servant. In assessing the proportionality of the decision of the school, it weighed the public interest of ensuring denominational neutrality against the applicant’s individual freedom to manifest religion. In conceding that the principle of neutrality is not absolute, the Federal Court described the principle as giving consideration “to all conceptions existing in a pluralistic society”. Judging from a subsequent paragraph, it put neutrality on a par with secularism, which “seeks to preserve individual freedom of religion and to maintain religious harmony in a spirit of tolerance”. After having highlighted the special role of public education and of teachers, it implied that the applicant’s headscarf might risk religious harmony. In so doing, it casually qualified the headscarf as difficult to reconcile with gender equality. The Court included a large part of the national proceedings in its decision. Although it finally found the application to be manifestly ill-founded,18   The national proceedings on which this section draws are extensively referred to in part A (The circumstances of the case”) of the Dahlab judgement, supra note 1, pp. 1–9. 18   Whereas formally only judgements address merits, there may be quite large sections of the reasoning dedicated to the merits in an inadmissibility decision; see, e.g., Jukka Viljanen, The European Court of Human Rights as a Developer of the General Doctrines of Human Rights Law: 17

Neutrality and Displaying Religious Symbols  223 it nonetheless took the trouble of verifying the justification criteria of Article 9 (2) ECHR.19 In establishing no less than three legitimate aims20 pursued by the state, it highlighted the protection of the rights and freedoms of others when assessing whether the interference was necessary in a democratic society. The Court explained the rights and freedoms of others to refer to the right to be taught in a context of denominational neutrality. The essential consideration of the Court for its final finding can be reduced to its qualification of the headscarf. It accepted that “it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children”. It then made the following statement, the controversy of which justifies its citing in full: it cannot be denied outright that the wearing of a headscarf might have some proselytizing effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.21

The Court considered that the national authorities had not overstepped their margin of appreciation and concluded that the application was manifestly ill-founded. IV.  Swiss Strict Denominational Neutrality Part of the difference between both parties lay in how they interpreted neutrality. Whereas the Government adhered to an interpretation as elaborated on by the Federal Court, the applicant argued that the secular nature of State schools related to the teaching and not to the teachers’ dress. Furthermore, the pleadings of the Government mostly referred to abstract principles. By contrast, the applicant emphasized that her teaching had never given rise to complaints and that she had worn the headscarf for years without any problems.22 The previous section showed the strong statements with which the Court sided with the

A Study of the Limitation Clauses of the European Convention on Human Rights (Tampere: Tampere University Press, 2003), p. 8. 19   The criteria are assessed on the basis of the following questions: does the interference have a legal basis, does it pursue a legitimate aim and is it necessary in a democratic society? See, e.g., Pieter van Dijk, Fried van Hoof et al. (eds.), Theory and Practice of the European Convention on Human Rights (Antwerp/Oxford: Intersentia, 2006), p. 340 ff. 20   Viz., the protection of the rights and freedoms of others, public safety and public order. 21   Dahlab v. Switzerland, supra note 1, p. 13 (emphasis added). 22   Ibid., p. 13.

224  Hana M.A.E. van Ooijen argument of the Government without paying regard to the applicant’s arguments. It makes you wonder what ever happened to the argument of state neutrality, which was so central to the national proceedings and to the pleadings of the government. Aside from pronouncing itself clearly on the headscarf, the Court only mentioned that the state has properly weighed the protection of neutrality against the applicant’s individual religious freedom. The Court did not itself dwell on the nature of the relation between the headscarf and neutrality, but most likely agreed with the explanation of the Federal Court that the wearing of the headscarf created a possible conflict undermining the neutrality principle.23 It can be derived from the national proceedings that the Swiss interpretation of state neutrality is a secular one, closely connected to the separation of church and state and in keeping with the secular state. It strictly excluded any religious dress or symbols for state schoolteachers.24 The Court accepted the assumption that exclusion of religious symbols was necessary to prevent conflict. All in all, the Court marginally tested the arguments of both parties and went along with the Swiss interpretation of state neutrality.25 The decision of the Court shows that the incompatibility of the headscarf with neutrality indeed turned on values read into the headscarf coupled with the effect it was assumed to have on pupils. Evidently, in this case, the interpretation of neutrality was determined by the context. The Swiss school system had laid down strict denominational neutrality assuming a secular connotation. This is not necessarily what neutrality means in origin. While it is beyond the scope of this contribution to do justice to the complexity of the theoretical notion of neutrality, the next section briefly delves into the roots of neutrality. V.  State Neutrality: A Controversial Concept Whereas state neutrality may be understood as a virtually self-evident feature of modern states, it is by no means an uncomplicated or uncontroversial concept.26 To begin with, the very neutrality of state neutrality is contested as the

  Ibid., p. 7.   Strikingly, the Federal Court had conceded that the principle of neutrality is not absolute and described an understanding of the principle, which gives consideration “to all conceptions existing in a pluralistic society”. Coupled with the specific responsibility of teachers, however, the principle of neutrality was in the end equated with a principle of non-identification with a particular faith; see Dahlab, ibid., p. 5. 25   Generally, the Court applies a wide margin of appreciation to Article 9 cases. See, e.g., Carolyn Evans, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2001), p. 143. 26   John T.S. Madeley and Zsolt Enyedi, ‘Church and State in Contemporary Europe: The Chimera of Neutrality’, 26 West European Politics (2003), p. 5. 23 24

Neutrality and Displaying Religious Symbols  225 principle itself is deeply rooted in liberal ideology.27 Accordingly, it is based on a liberal worldview, which entails important assumptions about the state, individuals and values. For instance, liberalism stands or falls on individualism.28 The belief in the primary importance of the human individual exceeds any value of the collective. Therefore, the individual quest for ‘the good life’, part of which is the search for religion or belief, and the possibilities for individuals to flourish and develop take high priority.29 Other liberal values, such as autonomy and equality, can be connected to this core principle. In principle, the liberal approach requires the state not to interfere with an individual’s search for religion or belief. The individual moral primacy also implies the prevalent value of equality. The liberal portrayal of man is that he is autonomous in himself, and capable of developing, flourishing and rationally seeking for religion or belief. Underlying this image is a firm belief in foundational equality: every individual is born with the same moral worth.30 This moral worth coupled with all the other individual differences that may exist among individuals requires the state not to prefer one religion or belief over another. If it would do so, it would not treat its citizens equally.31 In the end, this touches on a core value of state neutrality: the state should not favour or disfavour any religion, nor should it favour or disfavour individuals who pursue it.32 In other words, state neutrality implies that the state refrains from giving explicit preference to a particular religion or belief and distinguishing treatment according to citizens’ religion or belief.33 Admittedly, this is still an abstract description leaving room for interpretation. Not surprisingly, numerous conceptual analyses of neutrality have further elaborated on this basic understanding by identifying typologies of state neutrality. An authoritative typology distinguishes between neutrality of justification and neutrality of consequence (or effect). As suggested by the term, neutrality of justification applies to the intention of the state; this interpretation of neutrality inhibits the 27   Ibid., p. 4. It has become the central plank of liberal thinking about the state and its ethical dimensions; see T.S. Madeley, ibid. 28   Another term used in this context is ‘self-determination’: liberals consider state neutrality as a requisite to respecting self-determination; see Will Kymlicka, Contemporary Political Philosophy: An Introduction (Oxford: Oxford University Press, 2002), p. 218. This has also been labelled self-discovery of a personal conception of the good; see Rex J. Ahdar and Ian Leigh, Religious Freedom in the Liberal State (Oxford: Oxford University Press, 2005), p. 42. 29   Rawls considered individual choice needed to find out what is valuable in life. What is more, he regards it as a violation of people’s essential interests when the state attempts to enforce a particular view of the good life on people. See Rawls, referred to by Kymlicka, ibid., p. 217. 30   Andrew Heywood, Politics (Hampshire and New York: Palgrave Macmillan, 2007), p. 46. John Gray, referred to by Ahdar and Leigh, supra note 28, p. 39. 31   See Ahdar and Leigh, supra note 28, p. 42. 32  This is based on the formulation by Steven Wall, ‘Neutrality and Responsibility’, 98:8 Journal of Philosophy (2001), p. 390. 33   Ibid., p. 228 and p. 231.

226  Hana M.A.E. van Ooijen state to take action which intends to promote or obstruct any religion or belief.34 Neutrality of consequence, on the other hand, precludes the state from taking action which, intended or not, positively or negatively, effectively affects the flourishing of any religion or belief. It may be imagined that neutrality of consequence places a much heavier burden on the state than neutrality of justification. After all, not all consequences of state action can be foreseen and therefore neutrality of consequence requires a much larger span of control for the state. This theoretical aside goes to show that the concept of neutrality leaves room for a broad array of policies. The implications of neutrality depend on how it is applied as a standard. The Swiss strict conception of neutrality pertains to the justification of its policy to exclude religious symbols. It can be argued that it ignores the consequences of the policy in possibly affecting some religions or beliefs more than others. The following sections discuss how France, the Netherlands and England respectively have grappled with neutrality in relation to state schoolteachers. VI. French Laïcité In November 2010, a state schoolteacher in Toulouse risked being dismissed for wearing a headscarf.35 Her choice to wear the headscarf at school is remarkable, considering the straightforward French policy on religious dress and symbols for state schoolteachers. In scholarly doctrine, France is portrayed as being suspicious at the least with regard to religious manifestations in the public realm.36 Critical for this picture is the French constitutional principle of laïcité, which is essential for the idea of state neutrality.37 Although some

34   See Tim Wolff, Multiculturalisme & Neutraliteit (Amsterdam: Vossiuspers/Universiteit van Amsterdam, 2005), p. 138. 35   See . 36   See, e.g., Laura Barnett, Freedom of Religion and Religious Symbols in the Public Sphere (2008, No. PRB 04-41E.), p. 29. Pierre Birnbaum, ‘On the Secularization of the Public Square: Jews in France and in the United States’, 30 Cardozo Law Review (2008–2009), p. 2431–2443., T. Jeremy Gunn, ‘Under God but Not the Scarf: The Founding Myths of Religious Freedom in the United States and Laïcité in France’, 46 Journal of Church & State (2004), p. 7; who speaks of the French dislike for religiosity, p. 8. 37   Laïcité is not exclusively French. Bedouelle points out that although laïcité is nowhere experienced like in France, other countries, such as Belgium, Italy, Spain or Portugal are familiar with similar debates. Guy Bedouelle and Jean-Paul Costa, Les Laïcités à la Française (Paris: Presses Universitaires de France, 1998), p. 3. It can be found in other countries; e.g., in Turkey, where it is labelled with the related term laiklik. See also Baubérot, who refers to research being done on Mexican and Québecan laïcité: Jean Baubérot, Histoire de la Laïcité en France (Paris: Presses Universitaires de France, 2004), p. 116 and Jean Baubérot, Laïcité 1905–2005, Entre Passion et Raison (Paris: Éd. du Seuil, 2004), p. 10.

Neutrality and Displaying Religious Symbols  227 commentators use ‘secularism’ as an English equivalent of laïcité, no English translation can actually cover the purport of this principle.38 Suffice it to describe it here as the specifically French understanding of the proper place and function of religion within the state.39 It can be found in Article 1 of the Constitution: “France est une République indivisible, laïque, démocratique et sociale …”40 The 1905 Law on the Separation of Church and State, which has further specified the principle, determines for example that the state does not recognize any religion.41 It should further be noted that this law also guarantees the freedom of conscience. This is indicative of the French conception of laïcité that considers this guarantee to constitute the very rationale of laïcité.42 This conception resonates in Article 1 of the Constitution joining the principle of laïcité, the principle of equality and the freedom of conscience.43 The conceptual complexity of laïcité left aside,44 it is worth noting that it is still designated as the cornerstone of French society.45 Laïcité implies a strict duty of

  See, e.g., McGoldrick, supra note 8, p. 38; Gunn, supra note 36, pp. 7–8; Frederick Mark Gedicks, ‘Religious Exemptions, Formal Neutrality, and Laïcité’, 13 Indiana Journal of Global Legal Studies (2006), p. 475. Baubérot offers the term laicism; see Jean Baubérot, ‘The Place of Religion in Public Life: The Lay Approach’, in Lindholm et al (eds.), Facilitating Freedom of Religion or Belief: A Deskbook (Leiden: Martinus Nijhoff Publishers, 2004), p. 441. 39  McGoldrick, supra note 8, p. 38. 40   The text of the constitution can be found on the website of Legifrance, available at . 41   Loi du 9 décembre 1905 relative à la séparation des Églises et de l’État. It is interesting to note that the French title of the law thus uses the plural of Churches. From the body text of the law, it can be derived that it aimed not even at churches but at religions (cultes). See for the text of the law, e.g., the website of the National Assembly: . One century after, this same law is still of importance for the French church-state system. 42  See, e.g., McGoldrick, supra note 8, p. 39 and p. 65. Baubérot, supra note 37, p. 117. Bedouelle, supra note 37, p. 3, Commission de réflexion sur l’application du principe de laicité dans le république (Stasi Commission), Rapport au President de la République (Paris, 2003), para. 1.2.2. Gedicks, supra note 38, p. 476, referring to Gunn. Strictly, Gunn speaks of the state protecting itself (Gunn, supra note 36, p. 9). 43   Following the aforementioned phrase, Article 1 of the Constitution determines: “Elle [la France] assure l’égalité devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion. Elle respecte toutes les croyances.” 44   Despite its long legacy, there have always been debates on the exact meaning of laïcité; see Joel S. Fetzer and Christopher Soper, Muslims and the State in Britain, France, and Germany (Cambridge: Cambridge University Press, 2005) p. 71, p. 73, and p. 76; Mukul Saxena, ‘The French Headscarf Law and the Right to Manifest Religious Belief ’, 84 University of Detroit Mercy Law Review (2007), p. 769. As McGoldrick expresses the difficulty of defining laïcité: “laïcité is a complex and ambiguous concept, and there has been an intense French debate as to its meaning and application in different contexts” (McGoldrick, supra note 8, p. 41). It is not an unequivocal concept and has inspired several conceptions, ranging from more unitary to more pluralist ideas; see Bedouelle, supra note 37, p. 2, p. 6; and Jean Baubérot, supra note 37, p. 9. 45   See Stasi Report. Also, e.g., Gunn, supra note 36, p. 10. There is consensus on the usefulness of the term; see McGoldrick, supra note 8, p. 41; Commission Nationale Consultative des Droits de l’Homme, La Laïcité Aujourd’hui (2003), p. 15 and p. 17. 38

228  Hana M.A.E. van Ooijen neutrality for the public services.46 Although this duty has not been codified explicitly, it can be clearly derived from case law.47 It means for public servants that they are prohibited from manifesting their religion or belief when in office, which includes the display of religious dress or symbols. In the field of education, this prohibition is fully applicable, as it is here that laïcité originated.48 Accordingly, state schoolteachers are subject to an absolute prohibition to wear religious dress or symbols. This approach has been confirmed on many occasions and recently in 2000. VII.  The Undifferentiated Application of Neutralité The Conseil d’Etat has followed a solid line concerning the duty of neutrality incumbent on public officials. In as early as 1912, the Conseil d’Etat took a rigid stance in the decision Abbé Bouteyre in ruling that safeguards of laïcité may even imply refusing religious individuals access to a recruitment examination.49 It has later nuanced this decision in the sense that religiosity of an individual in itself cannot lead to general ineligibility for the public service.50 More specifically, it has decided that the administration is not allowed to generally bar religious individuals’ access to the function of a teacher. It is mostly the manifestation of religious opinions which violates the principle of strict neutrality.51 In 1992, the Conseil d’Etat explicitly put forward: “Because the education is laic, the obligation of neutrality is imposed in an absolute manner on teachers who cannot express their religious belief when they are teaching.”52 46   This statement passes over the complex relation between laïcite and neutrality, but it suffices for the purposes of this contribution. See on this relation, e.g., Gérard Gonzalez, ‘L’Exigence de Neutralité des Services Publics’, in Laïcité, Liberté de Religion et Convention Européenne des Droits de l’Homme (actes du colloque organisé le 18 novembre 2005 par l’Institut de droit européen des droits de l’homme, Bruylant, 2006). 47   See, e.g., Mattias Guyomar and Pierre Collin, ‘Maîtres des Requêtes au Conseil d’Etat: Le Fait pour un Agent du Service Public de l’Enseignement de Porter un Signe Destiné à Marquer son Appartenance à une Religion Constitue un Manquement à ses Obligations’, Actualite Juridique Droit Administratif (2000), p. 602. 48   In the 1880s, the then Education Minister Jules Ferry introduced several laws implementing the principle of laïcité in education. The law of 28 March 1882 envisaged the laicization of education and introduced a moral and civic instruction. In 1886, the Loi Goblet of 30 October imposed laïcité on teaching personnel. 49   The clergyman had registered for a philosophy examination, but the minister had excluded him from the list. 50   See François Gaudu, ‘Labor Law and Religion’, Comparative Labor Law & Policy Journal (2009), p. 516. 51   Conseil d’Etat (ce), 3 May 1950, Dlle Jamet. This was confirmed in 1948 when a dismissal of a social assistant was merely motivated because of her religious opinions (ce, Dlle Pasteau, 8 December 1948). 52   “Parce que l’enseignement est laïque, l’obligation de neutralité s’impose absolument aux enseignants qui ne peuvent exprimer dans leur enseignement leur foi religieuse” (ce, 2 November 1992, Kherouaa).

Neutrality and Displaying Religious Symbols  229 In addition, this obligation primarily applies to the teacher’s professional activities. In principle, a teacher is free to develop religious activities in his private life.53 In 2000, the Conseil d’Etat has confirmed its line concerning a request of the tribunal of Châlons-en-Champagne that had delivered judgement in a case involving a state schoolteacher. In the case of Mle Marteaux,54 the tribunal requested the opinion of the Conseil d’Etat on the question whether a public official can wear symbols manifesting her55 religion or belief. It had broken down this question into three sub questions, which basically sought to know the possibility of differentiating the duty of neutrality. They did so in relation to the following three aspects: (i) the nature of the public service involved; (ii) the type of function; and (iii) the kind of religious symbols. The response of the Conseil d’Etat to these three questions was succinct and straightforward. The bottom-line was that there was no room for differentiation. That is to say, the duty of neutrality applies to the whole of public services, without distinction to the nature of the public service involved. Moreover, being a public official, one incurs the duty of neutrality, precluding him or her from manifesting his or her religion or belief altogether. There is no room for distinguishing between those with an educational task and those with a different type of task. With regard to the third question, the Conseil d’Etat reiterated that a public official violates his obligations when he manifests his religion or belief by wearing religious symbols. In other words, no room for differentiation between different types of religious symbols is built in here either. However, the Conseil d’Etat did seem to create some margin of appreciation for the judge in leaving it to the judge to determine the exact consequences. Up to today, this margin does not seem to have given much cause to be lenient with religious symbols. The case law subsequent to the case of Mle Marteaux has consistently followed the strict line of the Conseil d’Etat.56 VIII.  Dutch Implied Neutrality Unlike France, the Netherlands has not explicitly laid down its church-state arrangement in law. Although a moderate separation of church and state is in 53   ce, 28 April, 1938, Dlle Weiss. That is not to say that no limits apply at all. In their private lives, public officials are subject to the obligation of réserve. 54   ce, 3 May 2000, Mle Marteaux. 55   The questions were formulated in a gender-neutral manner, but this case concerned the wearing of a headscarf. 56   See, e.g., the judgement of a Versailles tribunal, referred to in McGoldrick, supra note 8, p. 74 and the aforementioned case of the primary schoolteacher in Toulouse. That the case law also applies to university personnel was confirmed on 26 February 2009. On that date, a Ph.D. student at University of Toulouse III who wore a headscarf when acting as a teaching assistant was dismissed. She instituted proceedings against the university with the administrative tribunal in Toulouse (Tribunal Administratif de Toulouse). On 14 April 2009, the judge decided not to suspend the dismissal.

230  Hana M.A.E. van Ooijen force,57 it falls short from being implemented as rigidly as in France. In the same vein, the Netherlands has not explicitly codified state neutrality. Neither has it implemented a rigid obligation of state neutrality for public officials. That said, there is some assumption that the state should be neutral.58 But there is no consensus as to what this neutrality encompasses exactly, on both a definitional and a more conceptual level.59 The concept of state neutrality is all the more indistinct because it is often bracketed with other ones like secularism and the separation of church and state.60 The lack of codification notwithstanding, neutrality can be derived from the combination of three constitutional provisions: Article 1, Article 6 and Article 23 of the Dutch Constitution. The first provision is prominently enshrined in the following terms: All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.61

Moreover, the right to equality has been further elaborated in the Dutch Equal Treatment Act.62 Article 6 of the Dutch Constitution protects the right to freedom of religion: “Everyone shall have the right to profess freely his religion or belief, either individually or in community with others, without prejudice to his responsibility under the law …” Article 23 concerns the freedom of education. On the one hand, it grants everyone the right to provide education (“All persons shall be free to provide education…”). On the other hand, it lays down the obligation for the state to remain neutral as to religion or belief in the education it provides (“…paying due respect to everyone’s religion or belief ”). Traditionally, these rights have been informed by the particular Dutch pillarization history. Accordingly, they have assumed a pluralistic character in 57   See, e.g., Stephen V. Monsma and J. Christopher Soper, The Challenge of Pluralism: Church and State in Five Democracries (Lanham: Rowman & Littlefield Publishers Inc., 1997). 58   E.g., W. van de Donk and R. Plum, ‘Begripsverkenning’, in W.B.H.J. Van de Donk, A.P. Jonkers et al. (eds.), Geloven in het Publieke Domein (Amsterdam: Amsterdam University Press, 2006). p. 45. 59   See Ahdar and Leigh, supra note 28, p. 87. See also Wojciech Sadurski, ‘Neutrality of Law Towards Religion’, Sydney Law Review (1989–1990), pp. 420–454, and p. 421. 60   See, e.g., Sophie van Bijsterveld, Overheid en Godsdienst: Herijking van een Onderlinge Relatie (Nijmegen: Wolf Legal Publishers, 2008), p. 3. Wibren van der Burg, Het Ideaal van de Neutrale Staat: Inclusieve, Exclusieve en Compenserende Visies op Godsdienst en Cultuur (The Hague: Boom Juridische Uitgevers, 2009), p. 18. He points out that the principle of state neutrality is wider than the principle of the separation of church and state. 61   Constitution of the Kingdom of the Netherlands (2002). A translation can be retrieved from the website of the Ministry of the Interior, , see under Constitution and democracy, and under the Netherlands constitutional state. 62   Algemene Wet Gelijke Behandeling, Wet van 2 maart 1994, houdende algemene regels ter bescherming tegen discriminatie op grond van godsdienst, levensovertuiging, politieke gezindheid, ras, geslacht, nationaliteit, hetero – of homoseksuele gerichtheid of burgerlijke staat.

Neutrality and Displaying Religious Symbols  231 giving room to a plurality of religions and beliefs, including their expression.63 This has impacted on the Dutch understanding of state neutrality. Be that as it may, recent developments are pointing to a tendency to exclude religion or belief from the public domain. For instance, intentions have been announced on a political level to enact an explicit prohibition on headscarves in the judiciary and the police.64 For now, the sector of state education has remained unaffected by such intentions. Generally, state schoolteachers have the freedom to manifest their religion or belief by wearing religious dress and symbols. The quasi-judicial body dealing with disputes on the basis of Dutch equal treatment legislation, the Equal Treatment Commission (hereinafter: the Commission),65 already endorsed this in 1999. IX.  The Teaching Trainee with a Headscarf The Commission has dealt with multiple cases involving state school teaching personnel and religious dress or symbols. The opinion of 1999 clearly illustrates some delicate considerations in such cases.66 What is more, the resemblance of some of these considerations to those in the later Dahlab case cannot be overlooked. A student at a Teacher Training College for Primary Education lodged a complaint with the Commission concerning an exclusion from an internship at a state school because of her headscarf. She stated that she had been discriminated against on the grounds of religion. Like the school in the Dahlab case, the school in the present case argued that it was bound to observe neutrality.67 In addition, it constructed its argumentation along the same lines of tolerance and gender equality. It put forward a particular image of the teaching assistant that hinged on its interpretation of the headscarf. It was outspoken in finding it “evident” that a Muslim woman 63   See, e.g., Monsma and Soper, supra note 57, p. 61 ff.; Sawitiri Saharso and Doutje Lettinga, ‘Contentious Citizenship: Policies and Debates on the Veil in the Netherlands’, 16(4) Social Politics: International Studies in Gender, State, and Society (2008), p. 462. 64  Vrijheid en Verantwoordelijkheid. Regeerakkoord VVD-CDA (Coalition agreement), available at , p. 26. This goes back to a dispute involving a deputy court clerk in 2001, prompting the then Minister of Justice to announce an explicit prohibition on religious symbols in the judiciary; see also Odile Verhaar and Sawitri Saharso, ‘The Weight of Context: Headscarves in Holland’, 7(2) Ethical Theory and Moral Practice (2004), p. 188. 65   The Equal Treatment Commission has been established by the Equal Treatment Act of 2 March 1994, Section 11. According to Section 12, the Commission may conduct an investigation to determine whether discrimination in terms of the Act has taken or is taking place. Section 13 stipulates that the Commission may make recommendations, meaning that these are not legally binding. 66   ETC opinion, CGB 1999-18, available at . 67   The character of state education has been articulated in Article 29 of the Primary Education Act. State education is to respect all religions or beliefs.

232  Hana M.A.E. van Ooijen wearing a headscarf within a classroom bears witness to “very stringent convictions”. Therefore, the school opined that she would come across as threatening to the women and girls of the same religion; to its mind, they had not lightly acquired the right to a more ‘open lifestyle’.68 The school also pointed to the exemplary function of school personnel. In its assessment, the Commission opened with some general considerations as its starting points in disputes revolving around the headscarf at a state school. Firstly, it left no room for doubt that the headscarf is a religious manifestation.69 In so doing, it emphasized its own constraints precluding it from entering into differences of opinion on theological tenets. In further assessing  the parties’ submissions, the Commission remarkably confined itself to addressing the neutrality argument. In response to this argument, the Commission stated that it had neither been put forward nor been evidenced that the student did not have the open attitude required. This sufficed for the Commission to conclude that the school had directly discriminated on grounds of religion.70 A later Ministry of Education guideline on clothing at schools and an advice of the Commission on face veils and headscarves corroborate the assumption that the wearing of a headscarf is not necessarily at odds with neutrality.71 The advice expressly laid down that state schools cannot require their teachers and pupils not to wear a headscarf. The lack of any intention to introduce a prohibition on religious dress or symbols72 at schools seems to affirm this approach. X.  English Neutrality: Similarly Implied Like the Netherlands, England lacks a written principle of state neutrality. This lack may be felt even stronger, because there is no written constitution.73   CGB 1999-18, para. 3.4.   The Commission states that “the wearing of a headscarf by an Islamic woman or girl can be one of her religious manifestations”, CGB 1999-18, para. 4.3. 70   The ETC approach is based on a specific perspective to assess complaints, i.e., the equal treatment perspective, with its legal framework being primarily the Equal Treatment Act. Therefore, its opinions are based on finding direct or indirect discrimination, rather than framing a complaint in human rights terms. 71  Advies Commissie Gelijke Behandeling inzake ‘Gezichtssluiers en Hoofddoeken op Scholen’ (16/04/2003, CGB0-advies/2003/01). It can be required from teachers that they carry out neutrality, but this is not as such impeded by a headscarf. Additionally the Guideline ‘Kleding op Scholen’ of the Ministry of Education, available at . 72   Apart from face veils, which are conceived as part of a category of garbs, separate from other religious dress. 73   The English Constitution can be said to derive from a variety of legal and extra-legal rules and practices. What is more, these rules are expectations of proper conduct rather than legal rules in the strict sense. Peter W. Edge, Legal Responses to Religious Difference (The Hague/ London: Kluwer Law International, 2002), p. 75. 68 69

Neutrality and Displaying Religious Symbols  233 Any written catalogue of rights for that matter has long been lacking.74 For a long time, the British tradition seemed to rely on the concept of tolerance,75 rather than on the tendency to provide legal protection of fundamental rights.76 For example, religious freedom has not been protected legally for a long time. It is only very recently that a new legal framework concerning religious freedom is emerging.77 First, the adoption of the Human Rights Act framed religious freedom in terms of a human right and then the Employment Equality Directives provided a relatively sound legal basis for protection against discrimination on grounds of religion. For now, the developing legal framework has culminated in the entering into force of the Equality Act 2010.78 There is not such a thing as a general principle of state neutrality. The idea of the state being neutral rather emanates implicitly from the notion of the rule of law and equality before the law. In the same vein, there is no general notion of separation of religion and state, which is not too surprising considering the established church. The suggestion has been made that the establishment may be the very reason why there is more room for religion in public.79 This resonates in the school system; many state schools have a religious character, the majority of which are Church of England schools. Additionally, there are schools without a religious character. These schools also provide religious education; an opt-out possibility for pupils safeguards neutrality.80 Otherwise, the general safeguard of equal 74   See Fetzer and Soper, supra note 44, p. 35. A specific enforcement mechanism was also lacking, see Edge, ibid., p. 78. 75   First Britain professed merely tolerance, which turned into a more full-blown recognition of rights, see Mark Freedland and Lucy Vickers, ‘Religious Expression in the Workplace in the United Kingdom’, 30 Comparative Labor Law & Policy Journal (2009); and Javier G. Oliva, ‘Religious Symbols in the Classroom: A Controversial Issue in the United Kingdom’, 3 Brigham Young University Law Review (2008), pp. 877–878. 76   It has been said that it is not innate to British tradition to legally protect civil liberties and human rights; it is here that the inclination towards pragmatism prevails; see Peter Edge and Graham Harvey, Law and Religion in Contemporary Society: Communities, Individualism and the State (Aldershot: Ashgate, 2000), p. 19. 77   See Russell Sandberg, ‘A Uniform Approach to Religious Discrimination? The Position of Teachers and Other School Staff in the UK’, in Myriam Hunter-Henin (ed.), Law, Religious Freedoms and Education in Europe (Ashgate). 78  Idem. 79   See e.g. Fetzer and Soper, supra note 44, p. 38. Modood has conducted specific research on the established church and the stance of religious minorities, and dryly observes that he has not come across one article of a non-Christian which argues against establishment, see Tariq Modood, ‘Establishment, Multiculturalism and British Citizenship’, 65 Political Quarterly (1994), p. 61. What is more, religious minorities have even emphasized the importance of a link between religion and state, Tariq Modood, ‘The Place of Muslims in British Secular Multiculturalism’, in N. AlSayyad and M. Castells, Muslim Europe or Euro-Islam: Politics, Culture, and Citizenship in the Age of Globalization, (Lanham MD: Lexington Books, 2002), p. 126. His observations are endorsed by Paul Weller, in: Edge and Harvey, supra note 73, p. 56. 80   Ann Blair and Will Aps, ‘What Not to Wear and Other Stories: Addressing Religious Diversity in Schools’, Education and the Law (2005), p. 1–22, p. 16.

234  Hana M.A.E. van Ooijen treatment can be said to protect neutrality. The idea that neutrality requires the exclusion of religious dress and symbols is not in vigour at British state schools, including those without a religious character. To the contrary, religious dress and symbols have since long been more or less accepted for pupils.81 Where possible, they have been integrated into the school uniform. For teachers, state neutrality finds expression in legal protection ensuring that they are not favoured or disfavoured for religious reasons.82 This also serves as a protection of their freedom to manifest their religion or belief by wearing religious dress or symbols. This freedom, however, may be subject to limitations. Such limitations will have to be justified through discrimination law and cannot be imposed because of principled reasons. As a consequence, the justification of such limitations automatically incurs a much more case-driven character. The following case involving a teaching assistant illustrates this.83 While the case is specific in that it concerns a face veil, it neatly presents the pragmatic manner in which the issue involving teachers wearing religious dress can be approached. XI.  The Face-Veiled Support Worker In 2007, the Employment Appeal Tribunal dismissed the appeal lodged by Ms Azmi,84 who claimed that she had been discriminated against on religious grounds.85 She had been employed as a bilingual support worker at a junior school, with children ranging from seven to eleven years old, and she had been dismissed because she wore a niqab.86 According to her job description, she supported the learning and welfare of pupils and assisted in the educational activity relating to children from ethnic minority background.87 It may be worthwhile to note that ninety-two percent of the pupils were Muslim of minority ethnic origin.88 81   As also confirmed by an elaborate review of the news articles between 1989 and 1998 in L.N. Liederman, ‘Pluralism in Education: the Display of Islamic Affiliation in French and British Shools’, 11 Islam and Christian-Muslim Relations (2000), pp. 105–117, at p. 108. See also Sevgi Kiliç, ‘The British Veil Wars’ (SSRN paper, 2008), p. 434 and 444. 82  Jeroen Temperman, ‘State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle, the Right to Adequate Education, Children’s Right to Freedom of Religion or Belief, Parental Liberties and the Position of Teachers’, 32:4 Human Rights Quarterly (2010), p. 890. 83   Although the case concerned a church school, it is telling of the English approach to religious dress and symbols, having also regard for the body of case law. 84   Employment Appeal Tribunal, Azmi v. Kirklees Metropolitan Borough Council, 30 March 2007, Appeal No. UKEAT/0009/07/MAA (available through West Law). 85   She claimed direct discrimination, indirect discrimination and harassment. 86   i.e., the Headfield Church of England (Controlled) Junior School. Many of the state schools are operated via the church but financed through the state. The defendant in this case was thus the Kirklees Metropolitan Council, see paras. 3–4. 87   The facts are derived from the case, supra note 84, paras. 1–39. 88   Ibid., paras. 3–4.

Neutrality and Displaying Religious Symbols  235 When applying for the job, she wore a black tunic and headscarf without her face being covered. She was dressed similarly during her training. It was only during the first week of the term, that she expressed the wish to either wear a face veil when working with male teachers or be exempt altogether from working with male colleagues.89 The school staff considered after deliberation that the latter was not feasible. With regard to the former request, the school director sought advice from the education department of the Metropolitan Council and allowed the claimant to wear a face veil pending the advice.90 This advice was issued, after a few meetings and observation sessions, advising against wearing a face veil.91 Following this advice, the school director and the claimant had many exchanges, in person, per telephone and mail.92 The extensive thirty-six-paragraphs-description of the facts make clear that the school did not immediately and relentlessly turn down the claimant’s request to wear a face veil. To the contrary, the school has gone at great lengths to see how her request could be reconciled with a proper exercise of her function. The school argued against her wearing the veil on the basis of practical or performancerelated93 reasons, and substantiated them with observations. It claimed, also on the basis of observations, that when she wore the veil, she was more difficult to hear, had less contact with the pupils and was overall quieter herself.94 In the end, the claimant was suspended from school. The Employment Appeal Tribunal followed the previous decision of the tribunal in finding that the indirect discrimination was justified. XII.  Multiple Roads Lead to Neutrality The colour black seems plain but in fact absorbs all frequencies of light. The same might be said of neutrality. While the idea of neutrality may seem plain at first sight, it turns out to be incredibly complex in encompassing an array of interpretations. The Dahlab and Lautsi cases indicate the possible divergence of different religious symbols in being compatible with neutrality. This contribution has examined the role of the particular religious symbol coupled with the mode of displaying in relation to such compatibility. As to the concept of neutrality, it should be emphasized that in itself, the concept leaves ample room for divergent interpretations. It does not propose a singular conception of how a state should define and shape neutrality.   Ibid., paras. 8–9.   Ibid., para. 12. 91   Ibid., para. 18. 92   Ibid., paras. 19–29. 93   Freedland and Vickers, supra note 75, p. 614. 94   Azmi case, supra note 84, para. 52. 89 90

236  Hana M.A.E. van Ooijen Depending on how the standard of neutrality is employed, state policies can vary divergently, up to the point that they even result in opposite measures. Consequently, states utilize a broad margin to interpret neutrality and to seek their own ways of embedding it in their systems and of reconciling it with other principles. The Dahlab case demonstrates how the Swiss state opted for a strict interpretation of neutrality excluding any kind of religious symbols by virtue of their religious character, irrespective of which religion they are taken to represent. Accordingly, it integrally subjected the school regime to a monolithic version of neutrality. This version of neutrality made it of secondary importance what kind of religious symbol was at issue as well as how it was displayed. That said, the Swiss state did pay regard to the alleged effect of the teacher’s headscarf on pupils. A similar interpretation of neutrality can be found in the French approach. The decision of the Conseil d’Etat made explicit how this interpretation departed from the a priori incompatibility of religious symbols with neutrality. Furthermore, it made clear how no differentiation was made at all as to the particular circumstances, such as the type of function or religious symbol in play. In contrast with this approach, the Dutch Equal Treatment Commission took a religious symbol as not necessarily signifying a lack of neutrality. Despite wearing a symbol with a religious character, the teacher was considered as still being able to observe neutrality. That this approach can be taken further in assessing the actual effect of religious symbols came to the fore in the English case. The divergent approaches of neutrality demonstrate how a varying focus in assessing the compatibility of religious symbols with neutrality can lead to varying results. A line of reasoning centring on the religious symbol runs into the following. Qualifying religious symbols as to significance as well as to meaning is a tricky business. The a priori and absolute exclusion of religious symbols in the Swiss and French approach seems appealing in its simplicity.95 Nevertheless, it still has to get around to the question whether a symbol is religious or not. Such a qualification remains open to debate and it can be asked whether it is appropriate in the first place to let the debate turn on this qualification. In the same vein, an abstract finding of the actual import of a symbol can be contested. It is difficult to definitely settle a headscarf on a teacher’s head as a powerful external symbol and a crucifix on a wall as an essentially passive symbol. Additionally, the rigour of declaring any religious symbol as incompatible with neutrality encroaches to a large extent on individuals’ religious freedom without leaving room for appropriate differentiation.

95   Cf. Douglas Laycock, ‘Formal, Susstantive and Disaggregated Neutrality Towards Religion’, 39 Depaul Law Review (1989–1990), p. 999.

Neutrality and Displaying Religious Symbols  237 Assessing the compatibility of religious symbols with neutrality can also be directed at the effect on pupils. The difficulty of such a focus lies in the objectification. What may be questionable in the approach of the Court in the Dahlab and the Lautsi case is its substantiation of its divergent findings in the effect of the symbol on pupils. In both cases, the Court pointed to the difficulty of assessing the impact of a symbol on pupils. For some reason, however, this led the Court to striking the balance disparately in both cases. In the Dahlab case, the Court concluded the exclusion of the headscarf to be justified, while in the Lautsi case, it considered the crucifix could well be displayed without harming the pupils’ freedoms. This approach begs the question as to the substantiation of these assumptions. The English approach illustrates how such substantiation may be provided. The third possible focus further indicates how balancing between infringing on teacher’s freedoms and safeguarding pupils’ rights can take place. The symbol and its effect can be held against the other circumstances, such as the rest of the school environment and the curriculum. This can be done regardless of the type of symbol and the mode of displaying. The considerations of the Court in the Lautsi case regarding the policy of the school in allowing for religious symbols and the way in which the curriculum dealt with religion seem relevant for how a symbol plays out. These three foci provide important starting points for assessing the relation of neutrality to teachers wearing religious symbols. Of these three, the latter two are most promising in objectifying the discussion. With regard to the compatibility of religious symbols with neutrality, other factors than the type of symbol and the mode of display are thus relevant. Otherwise, the dismissal of a parallel between the two cases by referring to these two factors raised more questions than it answered. Indeed, a crucifix on the school wall is not a headscarf on a teacher’s head. But instead of making the religious symbol more passive, a school wall could also be taken to represent par excellence a message of the state. After all, it is part of a state school building. Additionally, in contrast to individuals, the premises of the state do not have an individual right to counterbalance the duty of state neutrality. In other words, precisely these factors make you wonder why the Court qualified the crucifix and its effect as it did. That said, the Lautsi case has in any event made a valuable contribution in reigniting the discussion on religious symbols in state education. Its contrast with the previous seemingly straightforward case law of the Court concerning religious symbols makes clear that neutrality should not be automatically taken as justifying limitation on religious symbols. Surely, the right to wear religious dress and symbols is not unlimited. But neutrality  should not be taken as the magic word automatically providing reason for such limitation. Multiple approaches are possible in assessing religious symbols against the

238  Hana M.A.E. van Ooijen background of neutrality. While the assessment of the crucifix being com­ patible with neutrality is open to contestation, it reflects that neutrality can leave room for the display of religious symbols. Moreover, the Lautsi case neatly illustrates how the compatibility of religious symbols with neutrality can be assessed more thoroughly against the background of other circumstances. Especially this point is interesting as it enables an objectification of the assessment. In the end, neutrality is something, which can hardly be seen separate from the individuals who perceive this neutrality. Letting this perception centre on the significance and the effect of a symbol in fact testifies to the limits of a legal approach in raising theological and empirical questions. By contrast, establishing the actual awareness of neutrality on the basis of for instance how pupils are acquainted with religions through the curriculum, celebration of holidays, and the overall visibility of religion in school allows for the strength of a legal approach in carrying out a balancing test.

PART IV

COMPARATIVE PERSPECTIVES ON RELIGIOUS SYMBOLS & EDUCATION

CHRISTIANITY, MULTICULTURALISM, AND NATIONAL IDENTITY: A CANADIAN COMMENT ON LAUTSI AND OTHERS V. ITALY Richard Moon I. Introduction It is difficult to imagine a Canadian court concluding, as the European Court of Human Rights (ECtHR) did in Lautsi and Others v. Italy, that the practice of hanging crucifixes in public school classrooms is consistent with freedom of religion.1 In a series of judgments the Canadian courts have held that the state must not support particular religious practices. Most notably the courts have held that the recitation of the Lord’s Prayer as part of the opening exercises in a public school or at the commencement of a local government meeting breached the constitutional right to religious freedom. There seems little doubt that this restriction on state support would extend to the posting of religious symbols such as the crucifix on the walls of public schools or other government buildings.2 According to the Canadian courts, the constitutional right to freedom of religion does not simply prohibit state coercion in matters of religion or conscience (precluding the state from compelling an individual to engage in a religious practice and from restricting his/her religious practice without a legitimate public reason); it requires also that the state treat religious belief systems or communities in an even-handed manner.3 The state must not support the religious practices of one religious group over those of another and it must not restrict the practices of a religious group, unless this is necessary to protect the public interest. It should come as no surprise that courts in different jurisdictions interpret religious freedom in different ways. It is striking, though, that the ECtHR   Case of Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (Grand Chamber), No. 30814/06. Article 9 of the ECHR protects “freedom of thought, conscience and religion” including the freedom to change one’s religion and to manifest one’s religion. The ECtHR decision also considers Article 2 of Protocol No.1 which protects the right to education and the right of parents “to ensure such education and teaching in conformity with their own religious and philosophical convictions.” This comment will focus on Article 9 which most closely parallels “freedom of conscience and religion” under 2(a) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982. 2   As discussed below, a crucifix continues to hang in the Quebec legislative assembly. 3   Section 2(a) of the Canadian Charter of Rights and Freedoms protects “freedom of conscience and religion”. Under s.1 of the Charter the rights and freedoms are subject to limits that are “prescribed by law”, “reasonable” and “demonstrably justified in a free and democratic society”. 1

242  Richard Moon appears to adopt the same standard as the Supreme Court of Canada (SCC) for determining whether the freedom has been breached. For both courts the touchstone is ‘neutrality’. The ECtHR, like the SCC, insists that the state must remain neutral in religious matters—taking no position on issues of religious truth. There are, of course, different views about what the neutrality requirement entails. The most significant issue of whether the state should remain neutral only towards different religious belief systems or more broadly towards different world views, religious and non-religious. If the scope of the neutrality requirement is broadly defined, so that it encompasses all ‘comprehensive’ belief systems, then its demands may be weaker: for example political actors may be permitted to make judgments based on their deeper views provided they frame their public arguments in language that is accessible to others or the state may be allowed to support particular practices provided it is able to link this support to the public interest.4 While the Canadian courts have come close to saying that the state should not favour secular (non-religious) over religious belief systems, they have generally confined the application of the neutrality requirement to religious belief systems—so that the state is precluded from favouring one religious belief system over another or religious beliefs over non-religious beliefs.5 In the Lautsi decision, the ECtHR seems to rely sometimes on a broad reading of the scope of the neutrality requirement and other times on a narrower interpretation. Neutrality between different faiths can be advanced in a variety of ways. At an earlier time, when the vast majority of Canadians adhered to some form of Christianity, it may have seemed possible to base public action on widely-held religious beliefs/practices—on a common religious ground. This ‘common ground’, of course, did not always include Jews, Muslims and other groups that 4   See G. Bouchard and C. Taylor, Building the Future: A Time for Reconciliation (Government of Quebec, 2008): “In a society that is both egalitarian and diversified, the State and the churches must be separated and political power must remain neutral towards religions. To follow the tradition of Christianity and establish an organic link between the State and a specific religion would make the followers of other religions and those who have no religion second-class citizens. A modern democracy thus demands that the State be neutral or impartial in its relations with different religions. It must also treat on an equal footing citizens who embrace religious beliefs and those who do not. In other words, it must be neutral as regards different worldviews and the notions of the secular, spiritual and religious goods with which individuals identify.” State neutrality, for Taylor and Bouchard, is based not on the strict privatization of religion but rather on the State’s reliance on ‘common public values’ reflecting an ‘overlapping consensus’. 5   In the recent decision of S.L. v. Commission Scolaire des Chenes, [2012] SCC 7, Madame Justice Deschamps writing for the majority of the Supreme Court of Canada stated that “state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever …” (para. 32). It appears from these cases that the state is not precluded from favouring ‘secular’ or non-religious views over religious beliefs, although in the judgments there are moments of ambivalence about this: see for example the judgments of Justice McLachlin and Justice L’Heureux-Dube in Adler v. Ontario, [1996] 3 SCR 609.

Christianity, Multiculturalism, and National Identity  243 were then relatively small. It was achieved in English-Canada through a form of non-denominationalism—a watered-down public Protestantism composed of the shared practices of the principal denominations.6 However, with the growth of religious diversity and the rise of agnosticism or atheism, reliance on common religious grounds, if it ever was an option, is no longer one. The state may also achieve a degree of neutrality by providing even-handed support to the different religious practices or institutions in the community, as well as ensuring the availability of non-religious alternatives. The Canadian courts have held that the Charter does not preclude the state from providing financial support for religious schools or acknowledging the practices or celebrations of different religious groups.7 The state may support or facilitate religious activities, when this does not involve preference for a particular religious belief system or for religious over non-religious beliefs. This support for religious practices and institutions is based not on their truth but on more general public considerations, such as respect for the deep religious commitment of citizens, or the value of an education that is rooted in community, or the effectiveness of institutions that are run by and for religious communities. But this sort of even-handed support for different religious groups is only sometimes an option. More often the state must take collective action in the public interest based on particular values or customs. And so the requirement of state neutrality towards different religious belief systems is generally understood to entail the privatization of religion, both the exclusion and insulation of religion from political decision-making. It appears then that state neutrality towards religion is possible only if religion can be treated as simply a private matter that is separable from the civic concerns addressed by the state. But civic and spiritual concerns are often difficult to separate. The problem is not simply that religious beliefs involve claims about what is true and right, which must be viewed as a matter of judgment that is open to contest and revision within the sphere of community  debate. The more fundamental difficulty with the requirement of state neutrality is that religious beliefs sometimes have public implications. Reli­ gious belief systems sometimes have something to say about the way we should treat others and about the kind of society we should work to create.8

6   In the 1950s the term Judeo-Christian was used to acknowledge the growth of religious diversity, while holding on to the idea of a religious common ground. See Noah Feldman, Divided by God (New York: Farrar, Straus, & Giroux, 2005) at p. 167 for a discussion of the use of the term in the US. At the time, the practical advantage of the term, perhaps, was that it acknowledged Judaism in a way that connected it to Christianity. Judaism could be seen as the foundation or precursor of Christianity. 7   Reference re Bill 30, an Act to amend the Education Act (Ontario), [1987] 1 SCR 1148. 8   At the same time, the state may pursue public policies that are inconsistent with the practices or values of some religious belief systems. The focus of this paper is on state support rather

244  Richard Moon Because community life has been shaped by religious practices, or practices that have religious roots, a requirement that the state erase all traces of religion from law/civic action would limit the state’s ability to advance the collective interest. For example, the state cannot as a practical matter, ignore established social (religious) practices when fixing holidays or determining a common ‘pause day’. More significantly the state cannot ignore religious values when making political decisions. Religious beliefs sometimes address civic concerns, and are often difficult to distinguish from non-religious beliefs or values, and so cannot simply be excluded from political decision-making. Religious adherents may seek to influence political action—to support state policies that advance their religious views about what is right and just. Because the civic and spiritual spheres cannot be fully separated, the neutrality requirement can only be enforced in a selective or partial way.9 While the ECtHR and the SCC rely at least formally on a similar test for determining a breach of religious freedom, a test that emphasizes the state’s obligation to remain neutral in spiritual matters, their application of the test is guided by different understandings of the political significance of religion and more particularly the relationship between religion, civic values, and national identity. The different responses to the public display of religious symbols, and more particularly to the posting of the crucifix in state schools, reflect the different religious histories of the two political communities and their different approaches to religious pluralism. Despite its formal commitment to a neutrality requirement, the ECtHR in Lautsi seems to rely on a standard of non-coercion. The Court asks not whether the placing of crucifixes in public school classrooms amounts to state support or preference for a particular religious practice or belief system but instead whether it will have the effect of coercing students to engage in a religious practice or of indoctrinating them into a particular belief system. The Court determines that the display of a “passive” symbol in the classroom will neither coerce nor indoctrinate students. In reaching this conclusion, the Court in Lautsi seems to accept, or at least acquiesce in, two claims made by the Italian government (and adopted by the Italian courts) about the meaning of the crucifix: that it symbolizes the Italian national identity, which is tied to its history as a Christian or Roman Catholic nation, and that it symbolizes the Christian foundation of the civic/secular values of the Italian political community—the values of democracy and

than state restriction–but related problems arise and lead to partial protection of religious practice from state restriction. 9   For a more complete discussion of this, see R. Moon, ‘Freedom of Religion in the Canadian Courts: The Limits of State Neutrality’, 45(2) University of British Columbia Law Review (forthcoming 2012).

Christianity, Multiculturalism, and National Identity  245 tolerance.10 Behind the claim that the crucifix is not simply a religious symbol but also a symbol of the Italian identity and political culture, is the draw of a thicker or richer form of national identity than that offered by civic nationalism. The assumption is that Italians are held together in a political community not simply by their shared commitment to liberal values or democratic institutions but by a common culture rooted in a religious tradition—if not exactly a civil religion, then at least a Christian inspired public morality. Religion and politics are joined at the core of national identity and the root of political obligation. This link between religion and politics, though, rests on the problematic claim that the values of democracy and tolerance emerged directly from Christianity (and are the logical, even necessary, outcome of Christian doctrine) and the disturbing claim that Christianity is uniquely tied to these values. The obvious implication is that other religions, most notably Islam, lack the doctrinal resources to embrace the values of liberty and democracy and indeed are in irresolvable tension with these values. The further implication is that Muslims cannot be considered full members of the Italian civil/democratic community. The link between Christianity and Italian civil culture can be reconciled with the requirement of religious neutrality only if the courts assume a distinction between (post-)Christian secularism and political Islam. The Canadian courts’ response to this issue is different for reasons that relate specifically to their perception of the crucifix and more generally to their understanding of Canadian national identity and political culture. In a country such as Canada that has a significant Protestant community the crucifix is viewed as a distinctively Roman Catholic symbol, and not as a ‘Christian’ symbol, and certainly not as a ‘secular’ symbol. In Canada crucifixes hang in ‘Separate Schools’ (Roman Catholic schools) and are the most obvious marker of the distinction between these schools and public schools. But the larger reason for the different response is that, although religion sometimes intersects with politics in Canada, it no longer plays a role in the definition of the country’s national identity. Canada, sometime ago, embraced multiculturalism as the defining feature of its national identity and liberal-democratic values as its political bond. While there is no doubt that Canada’s moral/social culture has been shaped in different ways by the Christian faith of earlier generations, any attempt to formally link Canadian national identity to a particular religious

10   Lautsi and Others v. Italy, supra note 1, at para. 68: “The Court takes the view that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State. The Court must moreover take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development. It emphasizes, however, that the reference to a tradition cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols.”

246  Richard Moon tradition would run against the country’s self-conception as a multicultural (multi-faith) society. II.  Freedom of Religion in Canada The Canadian courts initially described Section 2(a) of the Canadian Charter of Rights and Freedoms (hereinafter s. 2(a)), freedom of conscience and religion, as the liberty to hold, and live in accordance with, spiritual or other fundamental beliefs without state interference.11 Freedom of religion, understood as a liberty, precludes the state from compelling an individual to engage in a religious practice and from restricting his/her religious practice without a legitimate public reason. In subsequent judgments, however, there has been a shift from coercion to exclusion as the wrong to which s. 2(a) responds, and from liberty to equal respect, as the interest protected.12 The commitment to the equal treatment of different religions, or state neutrality in religious matters, is affirmed by Justice Lebel in Congregation des Temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village): “This fundamental freedom imposes on the state and public authorities, in relation to all religions and citizens, a duty of religious neutrality that assures individual or collective tolerance, thereby safeguarding the dignity of every individual and ensuring equality for all”.13 More recently, Madame Justice Deschamps for the majority of the SCC in S.L. v. Commission Scolaire des Chenes reiterated the Court’s commitment to religious neutrality: “Religious neutrality is now seen by many Western states as a legitimate means of creating a free space in which citizens of various beliefs can exercise their individual rights”.14 According to the courts, the freedom does not simply prohibit state coercion in matters of religion or conscience; it requires also that the state treat religious belief systems or   R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295.   For a discussion of the shift from liberty to equality as the interest protected by s. 2(a) of the Canadian Charter of Rights and Freedoms, see R. Moon, ‘Liberty, Neutrality and Inclusion: Religious Freedom under the Canadian Charter of Rights and Freedoms’, 41 Brandeis Law Journal (2003). The Court in S.L., supra note 5, at para. 17 (which appeared just before this chapter went into proofs) seems to have embraced this reading of the cases: “The historical, political and social context of the late 20th century, the enactment of the Quebec and Canadian Charters, and the interpretation of freedom of religion by the Canadian courts have played an important role in the Quebec government’s decision to remain neutral in religious matters. While it is true that the Canadian Charter, unlike the U.S. Constitution, does not explicitly limit the support the state can give to a religion, Canadian courts have held that state sponsorship of one religious tradition amounts to discrimination against others.” 13   Congregation des Temoins de Jehovah de St-Jerome-Lafontaine v. Lafontaine (Village), [2004] 2 SCR 650, at para. 65 14   S.L., supra note 5, at para. 10. Justice Deschamps also notes that “The gradual separation of church and state in Canada has been part of a broad move to secularize public institutions in the Western world” (para.10). 11 12

Christianity, Multiculturalism, and National Identity  247 communities in an equal or even-handed manner. The state must not support or prefer the religious practices of one religious group over those of another (religion should be excluded from politics) and it must not restrict the practices of a religious group, unless this is necessary to protect an important public interest (religion should be insulated from politics). Yet the neutrality requirement has not been applied consistently. The Canadian courts have recognized that religious practices have shaped the traditions and rituals of the community and cannot simply be erased from civic life or ignored in the formulation of public policy. More significantly, the Canadian courts have indicated that legislators may draw on their religious values when determining public policy—that they should not be expected to leave their religious values at the doorstep of the legislature.15 In Big M Drug Mart, the first s. 2(a) case to come before the Supreme Court of Canada, the Court declared that the test for determining if s. 2(a) has been breached is whether the state action in question amounts to “coercion of the conscience”.16 According to Chief Justice Dickson, no one should “be forced to act in a way contrary to his beliefs or his conscience”, subject to limits necessary to protect important public interests or individual rights. The issue in Big M was whether the Federal Lord’s Day Act, which prohibited the performance of a variety of commercial activities on Sundays, breached s. 2(a) of the Charter, and if it did whether this breach could be justified under s.1, the limitations provision of the Charter. While the Court in Big M formally described the wrong addressed by s. 2(a) as coercion in spiritual matters, the Court’s finding that the Lord’s Day Act breached s. 2(a) seemed to rest on a different understanding of the wrong. The Lord’s Day Act did not require anyone to honour the Sabbath, by attending church, or reading the Bible, or reflecting upon their spiritual commitments. The Act prevented individuals from working, but did not require that they worship or even rest.17 The purpose of the law might have been simply to support those who wished to keep the Sunday Sabbath, by removing the economic costs that would result from not working on Sunday when other people (and, more particularly, other retailers) were prepared to treat it as another business day. Or its purpose might have been to encourage all individuals to keep the Sunday Sabbath, without actually requiring anyone to do so. The Court, though, seemed prepared to find a breach of religious freedom, simply because the law had a religious purpose. The fundamental objection to the Lord’s Day Act was not that it compelled individuals to keep   Chamberlain v. Surrey School District No. 36, [2002] 4 SCR 710.   Big M Drug Mart, supra note 11. I have discussed this and other state support cases case in R. Moon, ‘Government Support for Religious Practice’, in R. Moon (ed.), Law and Religious Pluralism in Canada (Vancouver: UBC Press, 2008). 17   The purpose of the law is ambiguous inasmuch as there are different views about what it means to honour the Sabbath. 15 16

248  Richard Moon the Sabbath, but that it supported or favoured the beliefs and practices of the dominant religious group. Indeed, near the end of his judgment Chief Justice Dickson declared that it was “constitutionally incompetent for the federal Parliament to provide legislative preference for any one religion at the expense of another religious persuasion.”18 In Zylberberg v. Sudbury Board of Education, the Ontario Court of Appeal ruled that the inclusion of the Lord’s Prayer in the opening exercises of public schools in Ontario was contrary to s. 2(a) of the Charter and could not be justified under s.1.19 This was the case even though students could opt out of the practice, either by remaining silent, or withdrawing from the classroom, during the prayer. The Court in Zylberberg found that the purpose of the state practice was religious, and, following the Supreme Court of Canada in Big M Drug Mart, concluded that the practice breached s. 2(a). Yet the religious purpose of the law might not have been to compel or pressure students to engage in a religious practice; but instead might simply have been to give students, who wished, the opportunity to participate in an important religious practice. The Court, however, also found that the effect of the practice was to compel students to participate in a religious practice. The Court recognized that in the public school context, children would feel pressure from their peers to recite the prayer. In the Court’s view this was enough for the prayer to be regarded as coercive—as state compulsion to engage in a religious practice. The school’s support for a religious practice amounted to religious compulsion, or pressure  to conform, because it isolated and stigmatized non-adherents. While the children had a formal right to opt out of the prayer, they would feel significant pressure to conform to the school-supported practices of the majority community. The Canadian courts’ commitment to state neutrality comes closer to the surface in the Ontario Court of Appeal decision in Freitag v. Penitanguishine.20 In that case the Court held that the practice of reciting the Lord’s Prayer at the opening of town council meetings violated the religious freedom rights of non-Christians. The Court found that the practice was coercive—that it pressured individuals to conform to the tenets of a particular faith. The purpose of the practice, said the Court, was to “impose a specifically Christian tone on the deliberations of the town council,” contrary to s. 2(a).21 Yet, it is unlikely that   Big M Drug Mart, supra note 11, at para. 134   Zylberberg v. Sudbury Board of Education, [1988] 52 DLR (4th) 577. A similar conclusion was reached in Russow v. British Columbia, [1989] 62 DLR (4th) 98 (B.C.S.C.). The Ontario Court of Appeal also held in Canadian Civil Liberties v. Ontario, [1990] 65 DLR (4th) 1, that scripture lessons in the public schools breached the Charter even though students were permitted not to attend, because these lessons involved religious indoctrination. 20   Freitag v. Penetanguishine, [1997] 47 OR 301. 21   Freitag, ibid., at 18. 18 19

Christianity, Multiculturalism, and National Identity  249 the council was trying to pressure non-Christians to say the prayer or to adhere to the Christian faith. In all likelihood, the purpose was simply to signal the importance of the Christian faith in the community or to enable Christians attending the meeting to practice their faith. Nor is it even clear that a nonChristian adult attending the council meeting would experience the prayer as pressure to adopt the Christian faith and reject her/his own belief system. Recitation of the prayer may have caused the non-Christians present at the meeting to feel uncomfortable, embarrassed, and unfairly treated, but it put no tangible pressure on them. The real objection to opening a council meeting with a Christian prayer is that it excludes non-Christians from full participation in a public meeting. More generally, it signals to non-Christians that they are not full members of the political community. The Court in Freitag recognizes this when it described the practice of saying the prayer as “exclusionary.”22 The Court went on to say that “the appellant … feels intimidation when he attends the meeting of his local Town Council. This does not mean that he is so fearful that he does not participate. He does so, but as a citizen who is singled out as being not part of the majority recognized officially in the proceedings.”23 According to this view, state support for a particular religious practice is wrong because it sends an unacceptable message of exclusion to non-adherents or because it involves treating some individuals less favourably than others on the basis of their religious membership. Individuals may promote their particular practices/beliefs (what they understand to be true) but the state is forbidden to do so. III.  The Limits of Neutrality There are two significant challenges that can be made to the neutrality requirement and the privatization of religion. The first is that the exclusion of religion from the civic sphere is not itself ‘neutral’ but instead involves a favouring of ‘secular’, or non-religious, perspectives over religious belief systems.24 The second challenge is that religion and politics cannot be fully or neatly separated, particularly at the foundation of political judgment. A.  The Exclusion of Religion as Non-Neutral At an earlier time, when all, or most, community members adhered to some form of religion, it could be claimed that the exclusion of religious practice   Ibid., at 36.  Idem. 24   This is discussed in slightly more detail in R. Moon, supra note 16, which is quoted on this point in S.L., supra note 5, at para. 30. 22 23

250  Richard Moon from the political sphere was neutral or even-handed between different religious belief systems. (In practice, of course, an imperfect form of neutrality was achieved in most Western democracies not by excluding religious values/ practices but rather by relying on ‘non-sectarian’ or shared Christian values/ practices). However, the complainants in the more recent cases in which state support for religion has been challenged are often agnostics or atheists. Their complaint in these cases is not that the state is supporting one religion over another, the religion of the majority over a minority belief system, but rather that it is supporting religious belief/practice generally, and sending a message of exclusion to citizens who are not religious, or imposing religion on them, or treating them unequally. If secularism or agnosticism, constitutes a world view or cultural identity, equivalent to religious adherence, then its proponents may feel excluded or marginalized, when the state supports even the most ecumenical forms of religious practice. But, by the same token, the complete removal of religion from the public sphere may be experienced by religious adherents as the exclusion of their world view and the affirmation of a non-religious or secular perspective, the culture or identity of one segment of the community. ‘Secularism’, in this context looks less and less like a neutral or common ground, that stands outside religious controversy, and more like a particular world view that dominates the public sphere because of the political power of its adherents.25 With the growth of agnosticism and atheism in the community, religious neutrality in the political sphere may have become impossible. What is for some the neutral ground upon which freedom of religion and conscience depends, is for others a partisan anti-spiritual perspective. The alternative is to extend the neutrality requirement to all belief systems. But if the state is required to remain neutral towards both religious and non-religious belief systems, then neutrality must be understood in a very limited or peculiar way. In Lautsi the ECtHR recognizes that the hanging of crucifixes in school classrooms may interfere with, or affect unequally, the complainant’s ‘secular’ worldview.26 While the Court appears sympathetic to Ms Lautsi’s claim, and the importance of respecting her secular belief system, its framing of the issue as a conflict between two world views, religious and secular, serves to undermine her claim. Once again if ‘secularism’ is just another worldview, analogous to (and indistinguishable from) a religious belief system, then the exclusion of religion from the political sphere would seem to involve the favouring of one worldview over another. 25   Stanley Fish, ‘Mission Impossible: Settling the Just Bounds between Church and State’, 97 Columbia Law Review (1998). 26   Lautsi and Others v. Italy, supra note 1, at para. 58: “[T]he Court emphasises that the supporters of secularism are able to lay claim to views attaining the ‘level of cogency, seriousness, cohesion and importance’ required for them to be considered ‘convictions’ within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1 …”

Christianity, Multiculturalism, and National Identity  251 ‘Secularism’, though, may be understood not as an alternative, non-religious moral system, but rather as a political commitment to the separation of religion and politics, to the withdrawal of the state from religious debate.27 The argument that the state must not support religious practice—that religion and politics must be separated—rests on the idea that religious beliefs/practices are different from non-religious beliefs/practices in a way that justifies their exclusion (and insulation) from political decision-making. Religious beliefs (values and practices) are concerned with spiritual matters, are based on faith, and are ‘inaccessible’ to non-believers. That at least is the commonly held view that lies behind the privatization of religion. Because religious values/practices are different from non-religious values/practices in both content and foundation, they ought not to be supported by the state or to play a role in political decision-making. This then leads us to the second and more basic challenge to the neutrality requirement and that is whether the religious and civil spheres of life can be separated—or put another way, whether religious beliefs are different in character or content from ‘secular’ beliefs in a way that justifies or permits their exclusion from politics. B.  The Selective Separation of Religion and Politics State neutrality in matters of religion is possible only if religion can be treated as simply a private matter—as separable from the public concerns addressed by the state. The difficulty with the neutrality requirement is that religious beliefs sometimes relate to political issues and are often similar in content and character to non-religious positions on these issues. As a consequence, it is often difficult to justify the exclusion of religion from political decision-making. This difficulty is apparent in the Canadian courts’ judgments dealing with state support for religious practices and the role of religious values in public decision-making. In pursuing civic objectives the state may sometimes find it necessary to take account of widely-followed (religious) practices. If a large part of the population is Christian, it is difficult to see how the state could not take into account the practices of this group when establishing, for example, a ‘pause day’ from work, or fixing holidays.28 Sunday is the pause day in Canada because

27  The genealogy of ‘the Great Separation’ is discussed by Mark Lilla, The Stillborn God (New York: Knopf, 2007), at 298–299: “The Great Separation did not presume or promote atheism; it simply taught an intellectual art of distinguishing questions regarding the basic structure of society from ultimate questions regarding God, the world, and human spiritual destiny … Such a theological transformation is unimaginable in many religious traditions and difficult in all of them.” 28  See R. v. Edwards Books and Art Ltd, [1986] 2 SCR 713. For a discussion of religious holidays and days of rest, see Jeroen Temperman, State-Religion Relationships and Human Rights:

252  Richard Moon it was once regarded by many in the community as the Sabbath. It would seem to be impractical, even irrational, for the state to select another pause day simply to avoid the perception that Christianity is being favoured. Sunday has become the day that most Canadians, including those who are not practising Christians, expect to stay home from work and spend time with friends and family. And, of course, there are still many Christians who believe they should not work on Sunday. While the state’s purpose in establishing Sunday as the pause day may not be to support Sunday Sabbath observance, the way in which it has chosen to advance its civic purpose has been shaped by this practice. Because community life has been shaped by religious practices, or practices that have religious roots, a requirement that the state ignore religion when making public policy or remove all traces of religion from the law or civic sphere would limit its ability to advance the collective interest. The Canadian courts have not demanded that governments (literally or metaphorically) sandblast religious symbols/practices from social and physical structures, some of which were constructed long ago.29 At the same time, though, the courts must recognize that the community’s religious history has sometimes been used by the state as an excuse or opportunity to affirm in the present the truth of a particular religious belief system. However, the more significant limit to the neutrality requirement is the Canadian courts’ acceptance that religious values have a legitimate role in political decision-making. In Chamberlain v. Surrey School District #36, Chief Justice McLachlin speaking for the majority of the Supreme Court of Canada recognized that “[b]ecause religion plays an important role in the life of many communities, the … views [of parents and law-makers] will often be motivated by religious concerns. Religion is an integral aspect of people’s lives, and cannot be left at the boardroom door”.30 It is sometimes argued that religious values should be excluded from political decision-making because state law must be based on reasons that are accessible to all members of the community.31 The claim is that because religious Towards a Right to Religiously Neutral Governance (Leiden/Boston: Martinus Nijhoff, 2011) pp. 231–236. 29   For a discussion of this point, see Bouchard and Taylor, supra note 4, at pp. 152–153. 30   Chamberlain v. Surrey School District No. 36, [2002] 4 SCR 710, at para. 19. The focus of the case was a decision by a local school board to reject a proposal to include three books depicting same sex parent families on the list of approved teaching resources for the primary grades. The appellants argued that the board, in basing its decision on religious reasons, had acted outside its mandate under the School Act of British Columbia, which provided that “[a]ll schools … must be conducted on strictly secular and non-sectarian principles”. For a discussion, see R. Moon, ‘The Supreme Court of Canada’s Attempt to Reconcile Freedom of Religion and Sexual Orientation Equality in the Public Schools’, in David Rayside and Clyde Wilcox (eds.), Faith, Politics and Sexual Diversity (Vancouver: UBC Press, 2011). 31   For example, R. Audi, Religious Commitment and Secular Reason (Cambridge: Cambridge University Press, 2000). The discussion that follows draws on R. Moon, supra note 9.

Christianity, Multiculturalism, and National Identity  253 beliefs rest on faith or familial/cultural socialization, rather than reasoned judgment, they cannot provide a publicly acceptable basis for law-making. However, two objections are often raised to the exclusion of religious values from political decision-making. The first is that religious adherents should not be prevented from making political decisions based on their deeply held values and concerns because this will have the effect of excluding them from meaningful political participation. The second, and more significant, objection is that religious and secular values are not different in any way that can justify the exclusion of the former from political decision-making. The distinction between secular and spiritual values may be challenged from two directions. It is sometimes claimed that religious values (in either some or all cases) are not beyond reasoned debate and in this respect are like secular values. At the same time, it may be claimed that fundamental secular values, such as respect for human dignity or equality, rest, no less than religious values, on a basic acceptance of their truth, and that they are simply the premises of political debate. As Charles Taylor observes, there is no clear  distinction “in rational credibility between religious and non-religious discourse”: If we take key statements of our contemporary political morality, such as those attributing rights to human beings as such, say the right to life, I cannot see how the fact that we are desiring/enjoying/suffering beings, or the perception that we are rational agents, should be any surer basis for this right than the fact that we are made in the image of God.32

If we view non-religious values/practices as part of a ‘faith-based’ worldview, then state support for such values will amount to (quasi-religious) compulsion/imposition on others who do not hold those values.33 This type of concern lies behind the now familiar liberal argument that political action, at least in its  fundamentals, should be based on values that are part of an overlapping consensus, and are not explicitly tied to a particular comprehensive belief system.34 It is sometimes suggested that a citizen or politician may be motivated by religious values when making a public policy decision, provided she/he is able to offer a secular argument for his/her decision or is able to frame her/his argument in secular terms; for example, that the proposed law will contribute to the protection of human life or the prevention of discrimination. Yet the presence   Charles Taylor, Dilemmas and Connections (Cambridge, MA: Harvard University Press, 2011), at pp. 328–329. 33   The distinction between secular and religious values is harder to maintain when we consider the religious origin of many ‘secular’ beliefs. 34   See most notably, John Rawls, Political Liberalism (New York: Columbia University Press, 1996). 32

254  Richard Moon of a parallel secular argument may not fully address the problem of inaccessibility. While a religious adherent may be able to describe his/her values to others in non-religious terms, his/her understanding of these values is tied to their religious foundation. The religious foundation of the value, which gives it meaning for the adherent, will shape its content. While the value of life, in abstract terms, may be shared by all religious and moral traditions, its implications in specific cases involving euthanasia or abortion, for example, will vary depending on its particular foundation. If religious reasons are excluded from political decision-making because they are inaccessible, the presence of a secular argument or reason that happens to coincide or overlap with the adherent’s religious reason for supporting a particular policy will not correct the problem. If the individual’s commitment to a widely-shared value such as equality is based on her/his religion, her/his particular understanding/conception of that value will be ‘inaccessible’ to others and this ‘inaccessibility’ may make debate on specific issues difficult. But, as earlier noted, inaccessibility of this kind is not peculiar to religious belief systems. We may also find it difficult to understand larger or smaller components of the non-religious perspectives— the comprehensive belief systems—of others. The problem of inaccessibility, though, is too easily exaggerated.35 ‘Inacces­ sibility’ is most obviously an issue in the case of revealed obligations that are highly specific, such as the ban on consuming pork. However, religious values that are general in character and shared by different groups in the community cannot in any practical way be distinguished from secular values. General moral claims such as ‘love thy neighbour’, or treat others as you would want to be treated, or respect the equal value of all persons, whether secular or religious in form, are the premises from which individuals debate and develop more specific claims about right and duty. Reliance by a state actor on a religious source is troubling only when the source is employed dogmatically to support beliefs that are not widely shared, even in some general form, by non-believers. As Anthony Appiah argues, we should be careful not to see our worlds as “hermetically-sealed” or as “closed off from one another.”36 Principles that are widely shared across different “comprehensive” belief systems provide the ground upon which inter-religious or religious/secular debate may occur.37 35   Jeremy Waldron, ‘Public Reason and “Justification” in the Courtroom’, 1 Journal of Law, Philosophy, and Culture (2007), at p. 112: “The difficulties of intercultural or religious-secular dialogue are often exaggerated when we talk about the incommensurability of cultural frameworks and the impossibility of conversation without a common conceptual scheme.” 36  K. Anthony Appiah, The Ethics of Identity (Princeton, NJ: Princeton University Press, 2005), p. 248. 37   Even the invocation of scripture need not be seen as precluding debate. For a particular decision-maker, scripture may provide guidance or insight in the search for what is good or

Christianity, Multiculturalism, and National Identity  255 While our understanding of the values of other people (religious or otherwise) will always be approximate or partial, we have the capacity to give practical meaning to their values and concerns and to reach some form of agreement or understanding. More than this, our attempts to understand the deep values of others may affect our own understanding of truth and right in subtle and sometimes significant ways.38 A debate about the importance, or proper understanding, of basic values that does not entirely ignore or suppress their religious foundation may be manageable and even beneficial.39 The possibility of dialogue depends not on our ability to separate ‘political morality’ from its foundations but rather on our willingness to engage with others in a way that takes their concerns and interests seriously and seeks to find common ground. While the Canadian courts have said that religious values are not constitutionally excluded from political decision-making (that religious belief may be part of the input of law making), they have at the same time held that the state must not support particular religious practices. If religious values or reasons may play a role in political decision-making but the state is precluded from supporting particular religious practices, the courts must distinguish politically acceptable religious reasons from unacceptable ones, or legitimate religiously motivated political actions from illegitimate ones. The distinction that the courts seem to rely on, if only implicitly, is between beliefs that address civic or worldly matters and beliefs that concern the worship or honouring of God. The distinction turns on the content or direction of the belief rather than its root. A religious belief should not play a role in political decision-making, if the action it calls for is spiritual in character (i.e., relates simply to spiritual concerns, involving the worshipping or honouring of God). Such an action will be seen as a ‘private’ or personal matter and labelled as a ‘practice’. However, if the belief/‘value’ relates to a civic matter (individual rights or collective welfare) then it may play a role in political decision-making. Most often the religious beliefs/values that are brought into political debate are concerned with the advancement of human welfare or public good. right; see Jeremy Waldron, ‘Two-Way Translation: The Ethics of Engaging with Religious Contributions in Public Deliberation’, in New York University School of Law: Public Law and Legal Theory Research Paper Series (Working Paper No. 10–84, December 2010). 38   Charles Taylor, Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge, UK: Cambridge University Press, 1985), at p. 130. See also Benjamin Berger, ‘The Limits of Belief: Freedom of Religion, Secularism, and the Liberal State’, 17 Canadian Journal of Law and Society (2002), at p. 52. 39   Moreover, the extent of moral disagreement within the larger community is often overstated. Indeed, as Anne Phillips has observed, disagreement within a particular religious tradition may be as great as the disagreement between groups: Anne Phillips, Multiculturalism without Culture (Princeton NJ: Princeton University Press, 2007), p. 8: “…those writing about multiculturalism (supporters as well as critics) have exaggerated not only the unity and solidity of cultures but the intractability of value conflict as well, and have often misrecognized highly contextual political dilemmas as if these reflected deep value disagreement.”

256  Richard Moon These interventions draw on general principles that although part of a religious belief system are understandable to non- adherents. The claim that a religious belief or value may play a role in political decision-making when there is a parallel secular argument (when the ‘same’ position can be stated in non-religious terms) points to this distinction—and may play a role in how it is applied. A parallel or analogous secular argument in support of a particular policy will generally (perhaps necessarily) be available when the religious value has a civic or public orientation. Or perhaps more accurately when a religious value/position (such as the eradication of poverty or a ban on drug-use or a ban on public nudity) has a secular analogue it will be seen as addressing a public or civic concern. When there is no parallel secular argument we are likely to see the religious position as concerned simply with honouring God’s will. In other words, a religiously-motivated action will be viewed as a practice—as the worshipping or honouring of God—if it cannot be understood by non-adherents as related to human welfare. If I am right about this then the courts’ commitment to religious neutrality depends on a distinction between the ‘spiritual’ and ‘civic’ elements of a religious belief system (between the private and public dimensions of religion)— and will be applied to the former but not the latter. The problem, though, is that this distinction can be made only from a non-religious vantage point or a religious perspective that distinguishes between worldly and other-worldly concerns—and in that sense the distinction is not religiously neutral. Furthermore, the line between religious beliefs that address political/ civic matters and those that address ‘private’ worship will be based on a ‘nonneutral’ view of the ordinary forms of religious practice and the proper scope of political action. If the state were to support (or compel) Sunday Sabbath observance or a particular form of prayer or the wearing of the hijab or if it were to oppose (or ban) the consumption of pork, it would be seen as supporting (or compelling) a spiritual practice contrary to s. 2(a) of the Canadian Charter of Rights and Freedoms. These actions are viewed as spiritual, as acts of worship, because they cannot be understood by non-believers—by those who hold another moral and religious worldview—as advancing human good. But in the case of some (religiously-based) state actions, such as a ban on (or disfavouring of) same-sex relationships or a ban on public nudity, it may be more controversial whether the action relates to human welfare or is simply a matter of honouring God’s will. The practical issue is whether the religious argument should be addressed on its merits or should be excluded from political consideration because it is nothing more than an attempt to enforce a religious practice.40 40   While the proponents of a ban on same-sex relationships sometimes offer non-religious reasons in its support, these reasons are generally so flawed that it is hard not to see them as

Christianity, Multiculturalism, and National Identity  257 Whether we regard religiously-grounded opposition to same-sex relationships as addressing an issue of civic welfare or as simply a matter of honouring God (and therefore excluded from public-decision-making) will depend on whether this opposition can be comprehended within other normative perspectives. In Canada the religious argument against same-sex relationships has not been ruled out a priori but has been addressed directly by public decision-makers who have rejected the argument and responded with legal measures that ban sexual-orientation discrimination and affirm the equal value of same-sex relationships.41 The Canadian courts recognize that values or reasons cannot be excluded from political decision-making simply because they are part of a religious belief system. But, at the same time, they accept that the state should not support particular religious practices. The courts then must distinguish between religious values that may be supported by the state and religious practices towards which the state must remain neutral. I have suggested that the distinction relied on implicitly by the courts is between spiritual and worldly concerns (between practices and values). The application of the state neutrality requirement is limited to the former—the spiritual dimension of religion. The state should remain neutral towards those elements of a religious belief system that address spiritual or otherworldly matters (such as the proper forms of worship) and can be confined to the sphere of private life. Religious values that address worldly concerns or civic issues cannot simply be excluded from political decision-making but must be debated on their merits—on their conception of human good or public welfare. However, the location of the line between the ‘public’ and ‘private’ elements of a religious belief system will reflect prevailing (and contestable) views about religious worship, human welfare, civic justice, and the proper scope of political action. This, I think, is precisely the issue in the Lautsi case—the political significance of the Christian tradition, symbolized by the crucifix. The decision of the ECtHR to permit crucifixes in the classrooms involves the recognition of a necessary link between Christianity (and more specifically Roman anything but window-dressing. When the advocate of a policy seems indifferent to the facts and is prepared to advance the policy in the absence of any real evidence (that the activity is harmful), it is reasonable to assume that her/his true reason for supporting the ban is simply that it is God’s will as manifested in scripture. Yet every moral system, “secular” or religious, is premised on a conception of human value and flourishing that will support certain forms of human relationship and oppose or disfavour others as worthless or degrading: see Kent Greenawalt, ‘What Are Public Reasons?’, 1 Journal of Law, Philosophy and Culture (2007), at p. 91. 41  The question of whether a particular belief/value should be excluded from political decision-making because of its religious character, or should be addressed on its merits by public decision-makers (and either accepted or rejected as public policy), has arisen in the United States in relation to the teaching of ‘intelligent design’ or ‘creation science’ in the public schools: Tammy Kitzmiller et al. v. Dover Area School District et al., [2005] 400°F. Supp. 2d 707.

258  Richard Moon Catholicism) and the identity and civic values of the Italian political community. The different view of religious symbols, taken by the Canadian courts, reflects a different conception of political community—one that excludes any explicit tie between religion and national identity. IV.  Christianity and the National Identity The European Court of Human Rights in Lautsi says that under Article 9 of the ECHR, a state has a “duty of neutrality and impartiality” towards different religious (and other) belief systems.42 Yet, despite the Court’s formal commitment to neutrality, when it considers whether the practice of hanging crucifixes in school classrooms is contrary to Article 9, it appears to apply a more limited test—asking not whether the state’s display of the crucifix is religiouslyneutral, but instead whether it coerces students to engage in a religious practice or indoctrinates them into a religious belief system. The Court acknowledges 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”.43 But in the Court’s view this does not in itself amount to coercion or indoctrination contrary to Article 9. In contrast to the recitation of a prayer or the teaching of scripture, the display of the crucifix does not compel or pressure students to participate in a religious practice and does not indoctrinate them into a particular belief system. According to the Court, “a crucifix on a wall is an essentially passive symbol and … cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities”.44

42   Lautsi and Others v. Italy, supra note 1, at paras. 60 and 72. See also Manoussakis and Others v. Greece, 26 September 1996, European Court of Human Rights, No.18748/91. For a brief discussion, see Malcolm D. Evans, ‘Religious Symbols: An Introduction’, in Silvio Ferrari and Rinaldo Cristofori (eds.), Law and Religion in the 21st Century (Aldershot: Ashgate, 2010), pp. 293–294. 43   Lautsi and Others v. Italy, supra note 1, at para. 71. 44   Ibid., at para. 72; and at para. 74: “[T]he presence of crucifixes is not associated with compulsory teaching about Christianity … 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 … [T]here 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 … [T]he 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.”

Christianity, Multiculturalism, and National Identity  259 The Court notes that it was presented with no evidence “that the display of a religious symbol on classroom walls may have an influence on pupils” and so it is unable to determine whether this “does or does not have an effect on young persons whose convictions are still in the process of being formed”.45 Could it not be argued, though, that the “passive” nature of the symbol might actually contribute to its indoctrinating power? It is true that students are not required to participate in any ritual involving the crucifix, nor are they instructed about what it symbolizes. Instead, the crucifix is simply part of the environment within which students spend their day learning and interacting. It is an ordinary, natural part of daily life. In this way, the passive presence of the crucifix affirms, without argument or assertion, the central or historical place of the Roman Catholic faith in Italian society. The Court finds no evidence to support a finding that the presence of the crucifix serves to indoctrinate students. But what is the purpose of the crucifix in the classroom, if not to indoctrinate? While the Court’s claim that the crucifix does not indoctrinate students into a religious belief system is explicitly based on the symbol’s “passive” role, the more important factor in its judgment may be something the court claims not to rely on—that the crucifix is not exclusively a religious symbol. The Court’s judgment that placing crucifixes in public school classrooms does not breach Article 9 (that it does not run contrary to the neutrality requirement) seems to depend on the Italian government’s claim that the crucifix symbolizes the Italian national identity or the civic values of Italy and is not simply a religious symbol. The crucifix, at least in the classroom context, is intended not to indoctrinate or even affirm a religious truth, but instead to symbolize the historic tie between the national/ political identity of Italy and Christianity. The Court’s reliance on a ‘non-coercion’ test (its focus on coercion and indoctrination rather than inequality or preference) creates space for state support for religion—for the intersection of religion and politics. In the Lautsi decision, religion and politics come together in the definition of national identity and civic obligation: The Government, for their part, explained that the presence of crucifixes in Stateschool classrooms, being the result of Italy’s historical development, a fact which gave it not only a religious connotation but also an identity-linked one, now corresponded to a tradition which they considered it important to perpetuate. They added that, beyond its religious meaning, the crucifix symbolised the principles and values which formed the foundation of democracy and western civilisation, and that its presence in classrooms was justifiable on that account. The Court takes the view that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State.46   Ibid., at para. 66.   Ibid., at paras. 67–8.

45 46

260  Richard Moon This link between religion and politics is seen as necessary to the maintenance of political community—reinforcing the connection between its members and the foundation of its core principles.47 A Christian or post-Christian public morality may serve as a civil religion that inspires and binds citizens. It may contribute to a richer or more substantial form of national identity than one that is based simply on a shared commitment to democratic principles. At the same time, the link between Christian morality and national identity or political community serves to exclude some. And indeed, it appears that the exclusion of non-Christians, or those who do not identify with Christian public morality, is not just a regrettable side-effect of the attempt to bolster civic union and national identity. While the ECtHR recognizes that the crucifix is “above all a religious symbol”, it accepts that it may also have cultural meaning or be “identity-linked.”48 The ECtHR acquiesces in the Italian government’s claim that the crucifix is a symbol of the national identity and Christian heritage of Italy and more substantially of the civic values of the Italian political community—values which the government claimed can be directly traced to Christian doctrine. The crucifix then serves as a symbol not of Christianity but of a secular community that has been shaped by Christianity. By tying religion and politics in this way, the government is able to make the crucifix into something more than a parochial symbol, into something that transcends its religious origin. The crucifix in this context becomes a symbol of the culture or civic identity of Italy—a post-Christian political community—and not, or not simply, of Christian salvation. On this account, when the state hangs crucifixes in the schools, it is not favouring or supporting Christianity as the true faith, but is simply recognizing the historic and conceptual link between Christian doctrine and the national identity and civic values of Italy. These claims about Christian doctrine and crucifixes are problematic for two reasons: first the link between Roman Catholicism and democracy and tolerance is to say the least not straightforward; second, the civic values of modern liberal democracies such as Italy have other, and more obvious precursors. The Italian government and courts conflate the plausible claim that certain elements of Christian doctrine made possible the separation of church and state in the West (the creation of a secular space) with the more problematic claim that tolerance and democracy are Christian values or values that arose directly or significantly from Christianity (and so may be symbolized by 47   The decision of the Administrative Court of Italy (17 March 2005) quoted at para. 16 of Lautsi, ibid.: “Our era is marked by the ferment resulting from the meeting of different cultures with our own, and to prevent that meeting from turning into a collision it is indispensable to reaffirm our identity, even symbolically, especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity.” 48   Ibid., at paras. 66 and 67.

Christianity, Multiculturalism, and National Identity  261 the crucifix). Indeed, the claim made by the Italian courts about Christianity, and more particularly Roman Catholicism, as the foundation of these values seems remarkable in light of the Church’s history, and its relatively recent acceptance of religious tolerance.49 In making this claim about the link between Christianity and democratic values, the Italian courts eschew an external, objective, position and instead argue from a position within the faith community. According to the Italian Administrative Court, Christianity is a religion of inclusion “where it is properly understood, which of course has not always been and still is not always the case, not even thanks to those who call themselves Christian”.50 This is an argument not about the historical impact of Christianity or the Roman Catholic Church but about the proper understanding of the Christian faith, about the best reading of Christian scripture or teaching. When the Italian courts argue that there is a connection between Catholicism and democracy/tolerance, and dismiss past justifications for religious oppression as erroneous, they write as Christians who are engaged in debate about the best or proper understanding of their faith. The debate about hanging crucifixes in Italian school rooms is in some ways similar to the debate in the US concerning the posting of the Ten Commandment in public buildings, including the schools. The supporters of the public display of the Ten Commandments argue that it is an important historical document that helped to shape contemporary Western law.51 The identity of the political community, even if now understood in ‘secular’ terms, is tied to a religious history that ought to be acknowledged. There is something to this claim—that the political community has a history about which the members of the community should know something, if only to understand better their current circumstance. However, the problem with this attempt to link the Ten Commandments to the contemporary legal order is that the Commandments do not appear to have had either a unique or even significant 49   The Administrative Court observed that “with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.” (quoted in Lautsi, ibid., at para. 15). The Roman Catholic Church’s Declaration on Religious Freedom: Dignitatis Humanae, was promulgated by Pope Paul VI on 7 December 1965. 50   The Administrative Court quoted in Lautsi, ibid., at para. 15: “The logical mechanism of exclusion of the unbeliever is inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity–where it is properly understood, which of course has not always been and still is not always the case, not even thanks to those who call themselves Christian. In Christianity even the faith in an omniscient god is secondary in relation to charity, meaning respect for one’s fellow human beings. It follows that the rejection of a non-Christian by a Christian implies a radical negation of Christianity itself, a substantive abjuration; but that is not true of other religious faiths, for which such an attitude amounts at most to the infringement of an important precept.” 51   This argument seems more strategic than genuine—an attempt to evade the strictures of the ‘Establishment Clause’ of the First Amendment of the US Constitution.

262  Richard Moon role, in shaping contemporary Western law. The Ten Commandments include several rules (the first four) that are exclusively about the duties of ‘man’ to God. They also include ideals that no legal system has sought to enforce—such as a ban on coveting the possessions of others. The few commandments that are included in modern legal systems, the bans on stealing and murder, are part of all moral/religious belief systems. There seems little doubt that those who wish to post the Ten Commandments in public spaces want to affirm the Commandments’ truth as God’s law and to link the Christian (or JudeoChristian tradition) to the US national identity. They realize, though, that if they do not provide a ‘secular’ reason for the posting, it will be found to breach the ‘Establishment Clause’ of the First Amendment to the US Constitution. They regard the US as a Christian nation and believe that its public institutions should reflect this, both symbolically and substantively. The US Supreme Court recognized this as the motive behind the posting of the Ten Commandments when it ruled that the practice was unconstitutional.52 However, the motivation behind the crucifix display in Italian schools seems to be more complicated than this. Many of the contemporary advocates of the practice of placing crucifixes in school classrooms may believe that the crucifix symbolizes the sacrifice of Jesus and God’s mercy and that these spiritual truths should be affirmed in the schools; yet, it seems clear that support for the practice comes also from those who no longer formally adhere to Catholic practice. The display of the crucifix appears to be a response to an anxiety about identity. The crucifix, as a familiar symbol, reaffirms the idea of Italianness in the context of a changing population and a perceived threat to shared values. As the Italian Administrative Court explained: “Our era is marked by the ferment resulting from the meeting of different cultures with our own, and to prevent that meeting from turning into a collision it is indispensable to reaffirm our identity, even symbolically, especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity …”53 The recognition of a link between Christianity and the identity and civic values of the Italian political community may serve to strengthen the civic bond, to create a sense of identity and cohesion, among many Italians. But it may also operate to exclude some from that community. The remarkable claim by the Italian courts that Christianity is uniquely tolerant and inclusive and lies at the foundation of the modern liberal/secular state, is significantly a claim

52   Stone v. Graham, [1980] 449 U.S. 39. But see also McCreary County v. ACLU of Kentucky, [2005] 545 U.S. 844; and Van Orden v. Perry, [2005] 545 U.S. 677. 53   Lautsi and Others v. Italy, supra note 1, para. 15, quoting from the decision of the Administrative Court (para. 12.6).

Christianity, Multiculturalism, and National Identity  263 about other religions, and one in particular. It seems sadly obvious that the link between Christianity and democratic values is meant to exclude Muslims—to mark Islam off as un-Italian or un-democratic. The implicit message is that other religious traditions, and most notably Islam, are incompatible with democratic values. Despite the large number of Muslims who live within democratic societies and are committed to liberal values, and despite the growing literature that seeks to reconcile Islam with liberal-democratic principles—and in particular the separation of religion and politics—Islam is assumed to be fundamentally at odds with a democratic political order.54 The assumption is that Muslims must give up their religious commitments and become more like Christians or post-Christians before they can be considered proper members of the Italian political community. Ironically then the commitment to inclusion and religious neutrality—the separation of religion and politics—becomes a basis for excluding the members of some religions. V.  The Crucifix in Canada A crucifix currently hangs in the Quebec legislature. The Government of Quebec has rejected calls to remove it, including a call from the BouchardTaylor Commission, which had been mandated by the provincial government to examine issues of religious diversity in the province.55 The Canadian courts have held that the operation of the legislature is not subject to constitutional review and so they have not addressed this particular issue. While Quebec was once a deeply Roman Catholic society, it is now the most ‘secular’ or nonreligious part of Canada. As in Italy, resistance to the removal of the crucifix, which comes from both the political left and right in the province, seems to be motivated by anxieties about the growth of religious pluralism. The presence of the crucifix is not so much an affirmation of Roman Catholicism as a rejection of other religious commitments that are perceived as incompatible with the province’s post-Christian/secular culture. The crucifix is viewed differently elsewhere in Canada, where the largest religious groups are Protestant. In the Canadian political/religious culture, the crucifix (rather than the bare cross) is viewed as a distinctively Roman Catholic symbol. In many parts of Canada there are publically-funded Roman Catholic schools. A feature of these schools, in contrast to public schools, is that crucifixes hang on their walls. But it is not just the crucifix that is viewed as parochial. The religious diversity of Canada ensures that no religious 54  For a noteworthy attempt to reconcile Islam with liberal democratic principles, see Abdullahi Ahmed An-Na’im, Islam and the Secular State (Cambridge, Mass.: Harvard University Press, 2008). 55   Bouchard and Taylor, supra note 4.

264  Richard Moon symbol can be viewed as inclusive or ordinary (this is aside from the reservations of some Protestant sects, notably Anabaptist groups, concerning any form of religious imagery). From its political inception Canada has had to contend with significant religious diversity (as well as linguistic and cultural diversity), beginning with a plurality of Protestant denominations and a substantial Roman Catholic minority.56 In the context of education, the English language provinces responded to this diversity in two ways: first by establishing a nondenominational common school system (which has since evolved into a ‘secular’ public system) and second, by supporting a separate Roman Catholic system. Indeed, the founding constitution of Canada guaranteed public support to Roman Catholic schools in Ontario and Protestant schools in Quebec.57 More generally, the civic life of the community, at this earlier time, drew on non-denominational or Christian values/practices and later on ecumenical practices. But Canada is significantly a country of immigrants, and its religious diversity has grown dramatically in the last century. This increase in religious diversity combined with the rise in non-religious worldviews has made the search for common religious ground futile and necessitated a stronger, clearer separation between religion and politics. The critical difference between Canada and Italy (and other European countries) is not that Canada has had to negotiate cultural, linguistic, and religious differences, in a way that other countries have not. It is instead that Canada’s identity has become tied to this diversity. Multiculturalism has become part of Canada’s self-understanding—a constituent part of the Canadian identity. This is why no serious Canadian politician would speak, as many European leaders have done recently, about the failure of multiculturalism. They may express concerns about religious accommodation going too far, but they will not be heard to question the basic commitment to religious and cultural pluralism.58 The Canadian political community is bound not by a common language, culture, or religion but by a shared commitment to civic values such as tolerance, equality, and liberty. I will not explore here the deficiencies and limitations of this ‘identity’, and there are many: for example it may be complained that the Canadian commitment to multiculturalism is superficial, that it rests on a form of liberal individualism, and does not, and indeed cannot, respect   In Canada the colonial response to aboriginal spirituality was suppression and assimilation, with tragic and enduring consequences. 57   Section 93 of the [Canadian] Constitution Act, 1867. 58   While it is true that the claims about ‘going too far’ might be seen as a challenge to multiculturalism, they are seldom framed in such terms. Indeed, during the writing of this paper the current Canadian government has announced that women will no longer be able to wear the niqab when taking the oath of citizenship. This was a problem that the government had to work hard to discover since so few women in Canada wear the niqab. 56

Christianity, Multiculturalism, and National Identity  265 deep-diversity or that a shared commitment to liberal-democratic values is too thin a basis to sustain national unity and political loyalty, as the ongoing Canadian existential crisis may demonstrate. The point here is simply that any attempt to formally link Canada’s national identity to a particular religious tradition would be inconsistent with the core understanding of that identity— Canada as a multicultural political community. VI.  Conclusion: The Appeal of Neutrality If the ECtHR accepts that it is legitimate for the Italian state to hang crucifixes in classrooms and more broadly to link Italian national identity to the society’s Roman Catholic past, why does it (like most other Western courts) maintain a formal commitment to the ‘neutrality’ requirement? Why does the Court not instead present religious freedom as a liberty, in the Lockean sense, i.e. as a ban on state coercion in religious matters? Freedom of religion, understood as a liberty, precludes the state from compelling an individual to engage in a religious practice (and from restricting his/her religious practice without a legitimate public reason) but does not preclude the state from supporting particular practices and more specifically from posting religious symbols in public buildings. Indeed in the Lautsi decision the ECtHR, when considering whether posting a crucifix breaches religious freedom, seems to apply a standard of non-coercion, asking not whether the government has favoured the practices of a particular faith, but instead whether it has compelled a form of religious worship or sought to indoctrinate students into a religious belief system. Behind the Court’s formal commitment to religious neutrality is the powerful idea in the West that religion should be removed from politics because it is a matter of group identity or is irrational or inaccessible. The requirement of state neutrality—that the state should take no position on religious issues— may be understood as simply a pragmatic recognition that religious issues are difficult to resolve within a diverse political community and may lead to significant conflict and so are best removed from political contest and confined to the sphere of private (non-political) life. At a deeper level, though, state agnosticism appears to be rooted in a particular conception of religious commitment. While religious commitment is sometimes described by the courts as a personal choice or judgment made by the individual that is in theory revisable, it is also, or sometimes instead, described as a central element of the individual’s identity. Religious belief lies at the core of the individual’s worldview. It orients the individual in the world, shapes his/her perception of the social and natural orders, and provides a moral framework for his/her actions. Moreover, religious belief ties the individual to a community of believers and is often the  central or defining association in her/his life. The individual believer

266  Richard Moon participates in a shared system of practices and values that may in some cases be described as ‘a way of life’. If religion is an aspect of the individual’s identity, then when the state treats his/her religious practices/beliefs as less important or less true than the practices of others, or when it marginalizes her/his religious community in some way, it is not simply rejecting the individual’s views and values; it is denying her/his equal worth. The privatization of religion (and the idea of religion as identity) may also, or instead, be based on a more negative view of religion. In an increasingly sceptical and/or secular community, we are more likely to view religious belief as the outcome of cultural socialization rather than reasoned judgment. It is sometimes argued that because religious beliefs lie outside the scope of reasoned judgment and are inaccessible to non-believers, they should play no role in political decision-making. While it is easy to join these two views of religion (religion as deeply rooted and religion as non-rational) under the general idea of religion as identity, the concern of each is different. On the first view, in which religion is seen as valuable because of its deep significance to the individual, the state should not interfere with the individual’s religious practices and should treat different religious belief systems with equal respect. Religion and politics should be separated in order to protect religion. On the second view, because religion is non-rational, it should be excluded from the sphere of political action. Religion and politics should be separated in order to protect politics. The emphasis of each may lead to different results: the first more sympathetic to religion, more open to its value or worth, and the second more sceptical about the value of religion, but resigned to its continuing role in the private lives of community members. The Lautsi decision reflects the deep ambivalence in Western liberal democracies about religion and its relationship to politics. Religion in the West is understood as both a personal judgment about what is true and right (and appropriately subject to the give and take of politics) and a group identity that is deeply rooted (and appropriately removed from politics). The ECtHR, like the Canadian courts, seems to move between these two conceptions—sometimes interpreting freedom of religion as a ban on religious coercion by the state (that permits limited forms of state support for religion) and other times as a requirement that the state remain neutral in matters of religion (that precludes a role for religion in politics). Like the Canadian courts, the ECtHR seems to recognize that religion and politics should be separated but that this separation cannot be complete. Where the ECtHR parts company with the Canadian courts is in its willingness to accept a formal link between religion, national identity and political obligation.

PASSIVE / AGGRESSIVE SYMBOLS IN THE PUBLIC SCHOOL: RELIGIOUS DISPLAYS IN THE COUNCIL OF EUROPE AND THE UNITED STATES, WITH A SPECIAL FOCUS ON ROMANIA Liviu Andreescu & Gabriel Andreescu I. Introduction The Grand Chamber decision in Lautsi v. Italy dashed the hopes of several types of actors and observers who had praised the preceding ruling in Lautsi (the Chamber decision).1 Secularists and humanist organizations were dismayed by the “wrong-headed” approach of a court “in disordered retreat in the face of political pressure”, to quote David Pollock of the European Humanist Federation.2 Legal scholars were disappointed by a ruling which failed yet again to move beyond the all-too-convenient escape route of the margin of appreciation3 and to embrace a “veritably anti-majoritarian” stance,4 as the initial Lautsi decision arguably succeeded in doing. Last but not least, and perhaps most relevantly for the path taken by the European Court of Human Rights (ECtHR) in this decision, some minority religious groups lamented the Grand Chamber ruling as “an unfortunate ‘end to the story of an icon that for years caused much opposition’”,5 while expressing concerns with respect to the protections afforded to minority faiths. Though the Grand Chamber’s decision may be disappointing in the ways claimed above and, perhaps, in other ways as well, we believe it is not quite the letdown suggested by various commentators. In fact, while the ruling may not 1   All references below are to Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights, No. 30814/06 (referred to as the Grand Chamber decision); and Lautsi v. Italy, 3 November 2009, European Court of Human Rights, No. 30814/06 (referred to as the Chamber or the initial or original decision). Fragments from the decisions are cited in-text by para. 2   David Pollock, ‘A Critique of the Grand Chamber Judgement in the Case of Lautsi v. Italy’, available at , 20 October 2011. 3   Isabelle Rorive, ‘Religious Symbols in the Public Space: In Search of a European Answer’, 30:6 Cardozo Law Review (2009). 4   Susanna Mancini, ‘The Crucifix Rage: Supranational Constitutionalism Bumps Against the Counter-Majoritarian Difficulty’, 6 European Constitutional Law Review (2010), p. 25. 5   In the words of Dora Bognandi Pellegrini, religious liberty director of the Seventh-day Adventist Church in Italy, as quoted by Mark A. Kellner, ‘European Court OKs display of crucifixes in Italian classrooms’, Adventist Review, 29 March 2011, available at (29 December 2011).

268  Liviu Andreescu & Gabriel Andreescu do enough to move away from the current failings of existing ECtHR case-law, it could set the premises for developments that would respond to the concerns of secularists, legal scholars, and minority faiths. In this article, we aim both to examine in some detail the Grand Chamber Lautsi decision and several of the critical issues it raises, and to spell out the promise which, in our view, it holds out for those who express fears that it would negatively affect religious and non-religious minorities. In Part I we extend a previous brief analysis6 of the decision by dwelling on the most important issues in the ruling, also using insights from Establishment Clause jurisprudence in the US. In Part II, we present a current submission before the European Court by a Romanian civics teacher and religious freedom activist which, we believe, would help the Court clarify some of the current confusion, round out the relevant segment of its jurisprudence, and allay some of the worries of minority groups. Part III is devoted to analyzing the dissimilarities between the Romanian case and the Lautsi decision. II.  A Critique of Lautsi This section provides our perspective on the Grand Chamber’s decision. Since the majority opinion arguably contains some inconsistencies, ambiguities, and even a few apparent contradictions, and since the Court has also raised a number of issues which it has not explored in depth, the interpretation below constitutes an attempt to impose closure on a text that remains open to alternative readings. A.  Neutrality, Indoctrination, and the School Context It is relevant to start by looking at the framework within which the Grand Chamber places the matter at hand, and which the Court sketches in the first paras. of its ‘assessment’ of the case. In noting that “it is not required in this case to examine the question of the presence of crucifixes in places other than State schools” (para. 57), the Court announces that it will refrain from examining the general issue of ‘neutrality and impartiality’ that is one of the key dimensions of its Article 9 jurisprudence.7 To much the same end, the Court also observes that “in the area of education and teaching Article 2 of Protocol No. 1 is in principle the lex specialis in relation to Article 9 of the 6  Gabriel Andreescu and Liviu Andreescu, ‘Taking Back Lautsi: Towards a “Theory of Neutralisation”?’, 6:3 Religion & Human Rights (2011). 7  See Malcolm Evans and Peter Petkoff, ‘A Separation of Convenience? The Concept of Neutrality in the Jurisprudence of the European Court of Human Rights’, 36:3 Religion, State and Society (2008).

Passive / Aggressive Symbols in the Public School  269 Convention … The complaint … should therefore be examined mainly from the standpoint of the second sentence of Article 2 of Protocol No. 1” (para. 59). This narrows down the Court’s interest to the school environment and permits the Grand Chamber to address the matter of religious neutrality in terms of the special question of indoctrination (para. 62), which is at the heart of Article 2 of Protocol No. 1 (henceforth Article 2). The Grand Chamber, unlike the Chamber in the first Lautsi decision, thus largely abandons the issue of state neutrality and impartiality, which has proven particularly contentious given the variety of European experiences in the field, and instead opts in favour of an approach which promises to tackle the case as one of religious coercion in a public school environment. This has not been the Court’s typical approach to religious freedom cases involving individual religious manifestations in schools (the several teacher and/or student attire cases), most likely because in these instances neutrality, and the pluralism it fosters, were invoked as principles by the state restricting the exercise of religious freedom, and, as a result, the appeal to neutrality was palatable to the governments. In Lautsi, however, the duty of neutrality and impartiality was invoked against the Italian government and, therefore, was politically problematic. In construing the issue as—to use American constitutional parlance—a ‘free exercise’ rather than an ‘establishment’ case, the European Court sought to keep at bay the political havoc announced by the angry reactions to the original Lautsi ruling throughout Europe.8 While the approach of the Grand Chamber was doubtlessly also motivated by political expediency, its new outlook may, in the end, represent the better option. Most states in the Council of Europe lack a genuine ‘establishment clause’ in their constitutions or constitutional jurisprudence, and many, if not most, privilege one or more religious groups in one way or another—and, usually, in more ways than one.9 A consistent and sufficiently rigorous duty of ‘neutrality and impartiality’ might be impossible, and perhaps undesirable, to sustain uniformly in all the states party to the European Convention. On the other hand, the spirit of the Convention’s Article 9 would arguably be kept uncompromised by investing in neutrality not as a ‘structural’ principle akin to the separation of powers,10 but as an instrumental principle whose function is     8   See Dominic McGoldrick, ‘Religion in the European Public Square and in European Public Life – Crucifixes in the Classroom?’, 11:3 Human Rights Law Review (2011), pp. 470–472; Gabriel Andreescu and Liviu Andreescu, ‘The European Court of Human Rights’ Lautsi Decision: Context, Contents, Consequences’, 9:26 Journal for the Study of Religions and Ideologies (2010), pp. 50–53.     9   By, for example, formally recognizing a national church, distinguishing between ‘traditional’ religious groups and the rest, or between religious denominations and religious associations. 10   Marci A. Hamilton, ‘Power, the Establishment Clause, and Vouchers’, 31 Connecticut Law Review (1999), p. 832.

270  Liviu Andreescu & Gabriel Andreescu to prevent direct and indirect religious coercion.11 Indeed, this is the interpretation of state neutrality suggested by US Supreme Court Justice Anthony Kennedy in a landmark dissent to a religious display case (Allegheny County v. ACLU),12 and while this limited conception might not work in the United States for constitutional reasons, it could prove feasible within the Council of Europe for political ones. This being said, it bears insisting that, if the Court has truly chosen this approach, it should remain consistent in employing it. This implies, firstly, that the Court must resist resurrecting the spectre of neutrality and impartiality whenever this move serves the interests of the state, whether the latter represents the views of political majorities, as in the largest part of the docket so far, or views opposed to those of the political majority, as in, for instance, Sahin.13 As critics have remarked, this has sometimes led to a sense of neutrality as a form of “protection from religion” as opposed to “protection of religion”.14 Secondly, the Court must give religious coercion its due, especially by acknowledging sensitive circumstances—such as the educational environment generally. This, unfortunately, the Grand Chamber fails to achieve in its Lautsi ruling. At the point at which the Court relegates the question of neutrality to a secondary role and foregrounds the issue of indoctrination, its reasoning takes an interesting turn. Usually, the question of direct or indirect religious coercion in the context of public schools leads to comparatively higher thresholds, for reasons that are rather obvious—students constitute captive audiences, they are undergoing a process of intellectual and emotional growth during which they are very susceptible to influence, peer pressure is particularly strong etc.15 As a result, courts examining the intersection of state and religion in a public educational context usually regard students as particularly vulnerable to religious indoctrination.16 American courts have been emphatic in this respect. In its important decision in Abington v. Schempp (1963), the US Supreme Court relied on the mixture of “young impressionable children”, “[compelled] school attendance” and “the prestige, power, and influence of school administration   Evans and Petkoff, supra note 7, p. 213.  See Ian Bartrum, ‘Salazar v. Buono: Sacred Symbolism and the Secular State’, 104 Northwestern University Law Review (2010). 13   Leyla Sahin v. Turkey, 10 November 2005, European Court of Human Rights, No. 44774/98 [GC]. 14   Evans and Petkoff, supra note 7, p. 215. 15   See Gabriel Andreescu, ‘Ocuparea Spatiului Secular. Libertatea de Constiinta v. Limitele ’ [‘Invading the Secular Space. Freedom of Conscience v. the Limits of ’], 29 Revista Romana de Drepturile Omului (2005), p. 17. 16   Sylvie Langlaude, The Right of the Child to Religious Freedom in International Law (The Hague: Martinus Nijhoff Publishers, 2007), p. 49. 11

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12

Passive / Aggressive Symbols in the Public School  271 [and staff]”17 to invalidate school-sponsored Bible reading. In another important ruling, this time on graduation prayers, Justice Kennedy noted in the majority opinion that there are “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools … The concern may not be limited to the context of schools, but it is most pronounced there.”18 Similarly, in a beginning-of-school-day prayer case in 1979, the German Constitutional Court, while coming to a conclusion different from that of its American counterpart, observed that “the pupil in the classroom is in a different, much more difficult position than an adult who publicly discloses his dissenting conviction by not participating in certain events. This is especially true for the younger schoolchild, who is hardly capable of critically asserting himself against his environment.”19 In its ruling in Dahlab,20 the ECtHR did not limit itself to finding a breach of the principle of denominational neutrality in schools, but repeatedly emphasized that young pupils were “easily influenced” (note that, since Lautsi concerned a rule mandating crucifixes in all schools, the regulation impacted young pupils as well). It also expressed its worries about the “proselytising effect” of Muslim garb worn by teachers by explicitly linking it to the age of children and the school environment. The Court reiterated some of the same concerns in Folgerø.21 Last but not least, the initial Lautsi ruling clearly recognized the significance of the school context. It quoted Dahlab to this effect (para. 54), and noted that the compulsory display of religious symbols in a public setting constitutes an infringement “particularly in classrooms” (para. 57). Strangely, the Grand Chamber in Lautsi does not seem to acknowledge the full significance of the public school context, a fact noted by the only dissenting opinion. Specifically, the judges in the majority appear to make it more rather than less difficult to demonstrate indoctrination—and a breach of neutrality, for that matter—in an educational setup. They do so by conflating the

  Justices Goldberg and Harlan, concurring, 374 U.S. 203 (1963), p. 307.   Lee v. Weisman, 505 U.S. 577 (1992), p. 592 (emphasis added). As Mark Strasser summarizes US constitutional jurisprudence, “[a] number of factors are thought relevant when deciding whether a particular state practice implicating religion violates constitutional guarantees such as, for example, the age of the individuals who will be exposed to the practice …” Mark Strasser, ‘Passive Observers, Passive Displays, and the Establishment Clause’, 14 Lewis & Clark Law Review (2010), p. 1123. 19   Quoted in Winfried Brugger, ‘Structural Norms and Constitutional Rights in ChurchState-Relations’, in W. Brugger and M. Karayanni (eds.), Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (Berlin: Springer, 2007), pp. 57–8. 20   Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, No. 42393/98. 21   Folgerø and Others v. Norway, 29 June 2007, European Court of Human Rights, No. 15472/02, (see para. 94). 17 18

272  Liviu Andreescu & Gabriel Andreescu exhibiting of the cross with the organization of the curriculum and the educational environment; and then invoking the state’s margin of appreciation in designing the latter. (We will return to this construal of religious symbols as a curricular act later on.) Thus, on the one hand, the Court acknowledges 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” (para. 71). As intimated above, this could be taken to constitute a prima facie case for indoctrination, putting the burden of proof on the state to show that such privileging, in the presence of ‘impressionable’ children, does not amount to a form of religious coercion.22 But the Court quickly dismisses this perspective by turning the matter on its head. It first notes that “[preponderant visibility] is not in itself sufficient … 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.” It then supports this statement by pointing out that in the public school the state enjoys a “margin of appreciation left to it in planning and setting the curriculum” (para. 71). The Grand Chamber seems to claim here that the privileges accorded, in the public school context, to one religious tradition over others should normally be regarded as instances of the state exercising its educational function and thus are, in principle, justified. In other words, given states’ wide latitude in designing school subjects, privileging one religion represents not a prima facie case for indoctrination but, on the contrary, a prima facie case that the state is discharging its proper ‘curricular role’ by responding to local historical and cultural traditions. If this is the Court’s reasoning, then the argument seems misguided. While the state does enjoy considerable latitude with respect to school curricula, and while such room for choice does reflect the community’s ability to better judge the place of its own history and traditions in teaching, the assumption behind these principles is that, in deciding what is taught, states respond to educational rather than non-educational (e.g., religious) imperatives. Granting “preponderant visibility” in schools to one religious tradition calls this assumption into question. This is so especially when such predominance is not evidently a matter of curricular contents stricto sensu—i.e., does not pertain to the substance of religious education, civics, or history classes, as in Folgerø or 22   See also Pollock, supra note 2. Pollock considers that the Court’s obliviousness to the prima facie breach stems, at least in part, from the decision to examine the matter as one of indoctrination, rather than as one of neutrality. We would argue that, on the contrary, the Court’s decision is perfectly legitimate, among other reasons because the ECtHR lacks something comparable to the US Constitution’s Establishment Clause. The US Supreme Court was able to settle display cases comparatively with ease because it did so under a constitutional clause which, besides safeguarding rights, also set out a structural limitation on the organization of government. This is much more controversial, if at all possible, in the majority of CoE states. This being said, we believe, with Pollock, that the Court sees matters upside down.

Passive / Aggressive Symbols in the Public School  273 Zengin23—but rather involves a symbol displayed on school walls irrespective of the contents of the classes attended by students. To be able to put forward such an argument, the Court needs to construe the display of the cross as a ‘curricular act’, and then to affirm the state’s margin of appreciation in this field while minimizing the potentially coercive nature of the display, which the Grand Chamber eventually does with its description of the school crucifix as ‘passive’, as we shall in more detail see below. But this is a highly contentious construal. Indeed, it is worthwhile to press the point further and examine what the state would need to show in order to justify a decision to display the crucifix in schools as a matter of its exercise of a ‘curricular function’. It would have to prove that the “preponderant visibility” serves some (secular) educational purpose, such as familiarizing students with their historical and cultural heritage. But it may have to show more than that. Taking a cue from the American doctrine of strict scrutiny as applied to religious exercise cases,24 in order to justify the possibly coercive effects of a religious display in a public school the state would also have to prove that the measure is ‘narrowly tailored’ and, furthermore—this may amount in fact to the same thing—that the state’s purpose could not be reasonably satisfied in less coercive ways. This would be a tough argument to make in the case of a crucifix display, precisely because the educational authorities have at their disposal numerous other means, some of them educationally more appropriate and more effective (e.g., nondenominational religious education or civics classes), whereby to impart the same values. B.  Passive Religious Symbols, with an American Detour To summarize the argument so far: in approaching the matter in Lautsi as an issue of religious coercion (indoctrination) rather than one of ‘neutrality and impartiality’ (secularism), the Grand Chamber should have regarded the predominant role assigned by the state to one religious tradition as a prima facie case for indoctrination. The Court tries to escape this predicament by refusing to give the proper weight to the public school environment, which renders children especially vulnerable to indoctrination, and, furthermore, by claiming that granting ‘preponderant visibility’ to one religious tradition is an instance of the state exercising a ‘curricular role’, for which it enjoys a generous margin of appreciation. In order to be able to build a proper argument on this 23   Hasan and Eylem Zengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04. 24   Strict scrutiny applies to cases of government-imposed limits on fundamental rights. In the case of religion, it has been brought to bear mostly on free exercise cases (but also in one Establishment Clause case, 1982’s Larson v. Valente).

274  Liviu Andreescu & Gabriel Andreescu basis, however, the Court also needs to show that religious displays are not inherently coercive. The Court proceeds to do this by appealing to the ‘passive’ nature of the crucifix as displayed on school walls. First, the majority appropriately recognizes that “the crucifix is above all a religious symbol” (para. 66). Immediately thereafter, it notes that, “[t]here is no evidence before the Court,” other than the “subjective perception” of the plaintiff, “that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed” (para. 66).25 It is not obvious what kind of evidence the Court—or Judge Bonello, who echoes this complaint in his concurring opinion—is looking for, yet, soon after it claims agnosticism with respect to the influence of the crucifix, the Court asserts that “a crucifix on a wall is an essentially passive symbol … [which] cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities …” (para. 72).26 On this point, the Court demands no evidence. The notion that crucifix displays in public schools are ‘passive’ symbols was appropriated by the Grand Chamber from the arguments put forward by the Italian government and by other intervening parties opposing the initial Lautsi ruling. The Court does not dwell on a definition of ‘passivity’ but it may be safely assumed that it did not mean by this term that the crucifix is bereft of evocative power, or is “inert”,27 as occasionally implied by some of the majority  judges (Judge Bonello also calls it “mute”, “voiceless”, and, together with Judge Powers, “silent”). Despite these ambiguities, what the Court arguably means by ‘passive’ is that the cross ‘on a wall’ is non-coercive, that is, nonindoctrinating.28 In his concurring opinion, Judge Vajić even defines the crucifix’s ‘passive’-ness in terms of the claim that the cross “cannot amount to indoctrination”. Judge Powers does the same through her blunt assertion that “[t]he display of a religious symbol does not compel or coerce an individual to do or to refrain from doing anything. It does not require engagement in any activity … It does not prevent an individual from following his or her own conscience nor does it make it unfeasible for such a person to manifest his or   Emphasis added.   Again echoing the Court, Judge Bonello moves from bemoaning the lack of evidence of religious coercion to an endorsement of the opposite view, for which he offers no evidence: “The presence of a crucifix in a schoolroom does not seem to have hindered any Italian in his or her liberty to believe or to disbelieve, to embrace atheism, agnosticism, anti-clericalism, secularism, materialism, relativism, or doctrinaire irreligion, to recant, apostatise, or to embrace whatever creed or ‘heresy’ of their choice …” (para. 2.11). 27  Strasser, supra note 18, p. 1126. 28   We discussed these ambiguities in a bit more detail in Andreescu and Andreescu, supra note 6. 25 26

Passive / Aggressive Symbols in the Public School  275 her own religious beliefs and ideas.” Discounting such unsupported statements that the crucifix in question just cannot be indoctrinating, what justifies the Grand Chamber’s assertion that the cross on the walls of a public school is a passive symbol? It is useful here to indulge in a detour through religious display jurisprudence in the United States, to better illuminate what lies at the core of the Lautsi claim that the crucifix is ‘passive’. In American Religion Clause jurisprudence the concept of a ‘passive’ display has been used by the Supreme and lower federal courts in a variety of cases, although there too the notion remains hazy and insufficiently developed. Furthermore, ‘passivity’ has been employed in relation to the issue of coercion, which makes the discussion below directly relevant to our purposes. Finally, in the US the issue of religious symbols in public educational contexts has been raised recently in an interesting way, despite the fact that across the Atlantic the matter is better settled constitutionally. In a development which ironically resembles the fate of Lautsi—a decision by a federal circuit court of appeals was subsequently granted en banc review and thus voided—the 7th Circuit Court produced a judgment which relied in considerable part on the contentious claim that, in the particular circumstances of the case (school graduation ceremonies held in a church), religious displays are “purely passive and incidental”.29 The case is germane to our context because the Circuit Court examined the matter by recourse not only to the standard Lemon test, or to its offspring, the ‘endorsement test’,30 which are the doctrines typically employed in display cases, but also to the so-called ‘coercion test’—a solution which mirrors the Grand Chamber’s decision to examine Lautsi as a matter of indoctrination rather than secularism. As noted above, the presence of religious symbols in US public schools is, relatively speaking, settled, as the Constitution of the United States can be   John Doe, 3 v. Elmbrook School District, 7th Cir. (2011).  The Lemon test, first developed by the Supreme Court in Lemon v. Kurtzman (1971) and widely accepted as a standard test in Establishment Clause cases, consists of three parts: the purpose prong (state action must have a secular purpose); the effect prong (state action must not have the primary effect of advancing or inhibiting religion); and the more difficult to operationalize entanglement prong (state action must not generate excessive entanglement with religion). If any of the three prongs is violated, the state action in question is unconstitutional. Over the past three decades, however, two new doctrines confronted each other in the Supreme Court. Arguably the prevalent one, an offspring of the Lemon test, was the ‘endorsement test’ first espoused by Justice Sandra Day O’Connor in her concurrence in Lynch v. Donnelly, a 1984 case challenging a Christmas display in a public park. While agreeing with the majority’s upholding of the display under the Lemon test, Justice O’Conner sought to refine the latter by suggesting that establishment doctrine should be “best understood as an effort to determine whether the government intends such an endorsement, and whether the government activity in fact conveys such an endorsement.” (Bartrum, supra note 12, p. 34) The test, which gained the support of the majority in the following religious display case (1989’s County of Allegheny v. ACLU), relies on the perceptions of a ‘reasonable’ observer representing an ideal, informed community member familiar with the relevant community’s history and habits. See Benjamin I. Sachs, ‘Case Note: Whose Reasonableness Counts?’ 107 Yale Law Journal (1998). 29 30

276  Liviu Andreescu & Gabriel Andreescu interpreted as banning religious displays.31 Naturally, there are a lot of relevant finer points and some disagreement over what exactly constitutes a (primarily) religious display, or a primarily religious manifestation for that matter, but by comparison with the law in many European countries, and certainly by comparison with the state of affairs at the level of the Council of Europe, the American situation is based on a more solid legal consensus.32 In what concerns religious manifestations in schools, the Supreme Court’s ban on school prayers in two major cases in the 1960s (Engel v. Vitale, and Abington v. Schempp) was subsequently extended to cover religious invocations during graduation ceremonies and school-sponsored sports events (Lee v. Weisman, in 1992, and Santa Fe Independent School District v. Doe, in 2000, which relied on the ‘coercion test’). As for the display of religious symbols, in Stone v. Graham (1980) the Supreme Court employed the Lemon test to strike down a Kentucky law mandating that the Ten Commandments be displayed in public classrooms together with a presumably exonerating message invoking a secular purpose.33 The Supreme Court held that “[t]he Ten Commandments is undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposedly secular purpose can blind us to that fact.”34 Subsequent public display cases on (other types of) government property (Lynch v. Donnelly, 1984, and County of Allegheny v. ACLU, 1989) moved from the prevalent Lemon to the ‘endorsement test’ and offered a convoluted argument as to when a crèche or another religious symbol may be constitutionally displayed on government property during the holiday season. In another, relatively recent Ten-Commandments-in-the-courthouse case, McCreary County v. ACLU of Kentucky (2005), a majority of the Court re-affirmed the importance of the Lemon test35 and found the displays unconstitutional, while, even more recently, in Salazar v. Buono (2010), the Court suggested that a war memorial containing a ‘Latin cross’ might be constitutional, while reiterating the older argument that public “obtrusive year-round religious displays” would amount to government proselytizing and be unconstitutional.36 Despite the evident complexity of American jurisprudence on public religious displays, 31   See Kent Greenawalt, Does God Belong in Public Schools? (Princeton: Princeton University Press, 2005), esp. the discussion at pp. 47–51 and passim. 32   Ironically, Establishment Clause jurisprudence is notoriously divisive, with most cases decided by five-to-four majorities, and often without a single opinion satisfying the majority. In fact, Supreme Court cases of this type typically yield four or five separate opinions. 33   “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western civilization and the Common Law of the United States.” 34   449 U.S. 39 (1980). 35   As it has been noted, “The Lemon test has survived many near-death experiences …” Lisa Shaw Roy, ‘Pleasant Grove City v. Summum: Monuments, Messages, and the Next Establishment Clause’, 104 Northwestern University Law Review (2010), p. 288. 36   559 U.S. [further citation not available at time of writing] (2010), p. 11.

Passive / Aggressive Symbols in the Public School  277 which the summary above can hardly do justice to, it seems safe to assert that, at this point, the exhibiting of religious symbols in state schools is unconstitutional in the US.37 More relevantly, the concept of a ‘passive’ religious symbol exhibited in a public context appeared in several important US Supreme Court cases, although, as Mark Strasser has recently argued, “the current jurisprudence does not make clear … whether the passive nature of a practice is an additional factor to be considered or whether, instead, describing a practice as ‘passive’ is simply a way of indicating that the practice does not violate constitutional guarantees.”38 This ambiguity is also characteristic of the ECtHR’s Lautsi decision. The recent US religious display case mentioned above, John Doe, 3 v. Elmbrook School District, contains an interesting, if unmethodical, discussion of the relationship between religious coercion and ‘passivity’.39 The case concerns the decade-long practice of the Elmbrook School District in Wisconsin of holding high school graduation events in a Christian church whose premises were rented for this purpose, with the fees covered by student family contributions and tax-derived public money. The environment of the Church was “indisputably and strongly Christian”,40 containing numerous crosses and religious symbols, which the Church refused to cover or otherwise make less conspicuous for the graduation ceremonies, as well as religious literature on display. Moreover, an “enormous Latin cross, fixed to the wall, hangs over the dais and dominates the [graduation] proceedings.”41 The matter that the Court was called upon to determine is whether the decision of the educational authorities to organize the quasi-obligatory graduation ceremonies in such an environment constitutes a violation of the Establishment Clause and, more specifically and particularly interesting for the present purposes, a case of religious coercion. The 7th Circuit Court, whose ruling was subsequently vacated through the granting of en banc review by the whole court, determined that this was not the case, and did so by, among others, referring to the church crucifix and other Christian paraphernalia as “purely passive and incidental” symbols.42 37   This seems so especially because, even while the Court upheld the constitutionality of a Ten Commandments display on the Texas State Capitol in Van Orden v. Perry, it pointed out that “[t]he placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day.” 545 U.S. 677 (2005), p. 12. 38   Mark Strasser, supra note 18, pp. 1123–4. 39   All citations from Elmbrook below are excerpted from the decision document, available at (2 November 2011). 40   Ibid., p. 6. 41   Ibid., p. 8. 42   Ibid., p. 38.

278  Liviu Andreescu & Gabriel Andreescu In its two-to-one decision, the Circuit Court appears to define ‘passive’ in three, mostly negative, ways: as not implying participation or affirmation (whether in assent or in dissent); as not involving association with the state; and as contextually devoid of religious significance (being a secularized symbol). Firstly, ‘passive’ is to be distinguished from practices which imply “[student] participati[on] in a religious exercise”.43 In this sense, a ‘passive’ religious display is opposed to ‘active’ practices such praying in school (or during graduation ceremonies or school-sponsored sports events), and to other forms of ‘affirmation’ of student belief, such as having to accept or refuse religious literature. The Circuit Court clarifies that, where prayers or other proselytizing acts are involved, the refusal to take part also constitutes a form of indirect participation, and hence of coercion, as the act of standing or remaining silent is an expression of participation in prayer. Secondly, the Circuit Court defines ‘passive’ as implying no association with educational authorities and, hence, with the state. In the eyes of the Court, the absence of association substantially weakens the prescriptive force of the symbols, and therefore the claim of coercion. Thus, “because there is no indication that the background iconography is in any way associated with the District, that the District directed students to look at the images or that the District even pointed out the images, the general impressionability of the students does not carry the same weight in the analysis.”44 Thirdly, the Court also takes the more familiar path of defining ‘passive’ as devoid of primary religious significance, that is, as a form of secularized religious contents. Responding to the plaintiffs’ contention that entering a house of worship is a religious activity, the Circuit Court observes that doing so “is not an inherently religious activity of the sort proscribed by Lee [v. Weisman]. Students, indeed all citizens in a pluralistic society, encounter religion and religious symbols in myriad ways in the course of daily life. These occasions are incidental to other human activity, and members of the community do not regard them, in the normal course of daily life, as requiring any active affirmation or participation on their part.”45 Returning now to the Grand Chamber decision in Lautsi, it is worthwhile to ask which of these three senses of passive the Court might have had in mind. In her concurring opinion, Judge Powers appears to affirm the first sense of ‘passive’: “[The display of a religious symbol] does not require engagement in any activity …” The majority opinion suggests a modified version of the second understanding: although the association of state and religious symbol is obviously undeniable, the Grand Chamber seemingly implies that this association  Idem.   Ibid., p. 39. 45   Ibid., p. 40. 43 44

Passive / Aggressive Symbols in the Public School  279 is weak because the cross does not amount to ‘teachings’. Last but not least, in his concurring opinion, Judge Bonello seems to take the third route as well: he claims that the cross is a “voiceless testimonial of a historical symbol” (para. 3.3). This amounts to the familiar strategy of secularizing publicly displayed religious symbols. As to the third sense of ‘passive’, it is a view which the Lautsi majority opinion explicitly rejects by recognizing that the cross is a religious symbol. It is also a view commonly regarded, by precisely those for whom the cross is particularly important, as a suspect instrumentalization of religion. Therefore we will not insist on this interpretation here. The second definition of ‘passive’ as non-prescriptive, or devoid of the force of ‘teachings’, is more interesting and seems particularly emphasized by Judges Bonello and Powers. In criticizing the initial Lautsi decision’s construal of the cross as a “powerful external symbol” within the meaning of Dahlab, the Grand Chamber majority observes that in the latter case “the applicant [was] wearing the Islamic headscarf while teaching” (para. 73).46 This is held to make Lautsi and Dahlab “entirely different” (para. 73). Nevertheless, this argument remains unpersuasive, and it shows how blurry the line between coercive ‘teachings’ and ‘mere’ symbols is in a school environment. To begin with, Mrs Dahlab was not teaching about religion while wearing the headscarf. Thus, there is no immediately obvious association between the contents of her teaching and her attire. Conversely, the Christian cross is present on the walls of Italian schools while teaching goes on there. This seems to make the two cases quite similar: either the indirect association of religious symbol and teaching environment (but not contents) is relevant, or it is not. One might conjure up here a distinction based on the fact that the religious symbol is, in one case, worn by a person and, in the other, borne by an impersonal institution, but the Court does not make this distinction and, in any case, the latter could plausibly be read to convey the opposite point (the personal symbol signals a ‘merely’ private inclination, whereas the institutional symbol signals an institutional preference). Furthermore, as noted above, the Court does, in earlier paras. of the majority decision but in a different context, associate the decision to display the crucifix with the state’s discharging what we called its ‘curricular functions’. Here the Court seems to follow the arguments put forward by several Christian associations47 in their joint intervention claiming that the displaying of the crucifix is a matter within “the competence of the State when deciding on  the curriculum in Schools” (para. 55). Once again, the Court—and its supporters—cannot have it both ways: either the cross ‘on a wall’ can be   Emphasis added.   Zentralkomitee der deutschen katholiken, Semaines sociales de France and Associazioni cristiane lavoratori italiani. 46 47

280  Liviu Andreescu & Gabriel Andreescu assimilated to teaching, in which case its partiality must be explicitly justified by the state on educational grounds so as to satisfy a ‘narrowly tailored’ condition; or the crucifix has very little to do with teaching, and then the state does not enjoy, in this instance, the generous margin of appreciation that it is entitled to in determining curricular matters. Last but not least, it should be recognized that, in the West, the Christian cross remains a disputed, and perhaps a downright controversial, symbol. As such, it may sometimes be endowed with more force than ‘mere’ words. Illuminatingly, sometimes school administrators seem to think precisely this. In a US case involving the decoration of a school hallway by students, the principal accepted the contents of a mural on which a passage from the Gospel of John mentioning God and his Son was inscribed, but took exception with the sign of the cross, which he ordered to be removed from the mural. Apparently, to this principal the symbol of the cross amounted to a sharper commitment to the Christian message than a quote from the Gospel which urged men and women to acknowledge God and his Son and thereby enjoy eternal life. At the very least, “written texts [were] less provocative than nonverbal symbols”,48 a claim that does not seem unreasonable in light of the commotion caused throughout Europe and North America by crucifix cases. Moreover, the fact that the message of the crucifix is not fixed also leaves room for the affected parties to imagine, sometimes legitimately, that the cross ‘speaks louder’ in ways which would make them feel uncomfortable or be inappropriate in a school.49 As we shall see in the discussion of the Romanian case below, religious symbols may reasonably be (perceived to be) associated with practices that are contrary to the educational values purportedly promoted in public schools. Eastern Orthodox icons were thus plausibly interpreted as nationalist symbols supporting views inimical to other religious or ethnic groups, or as an indirect reference to church practices which consign women to a subordinate role. The relentless wrangling with words and phrases such as “passive”, “silent”, “mute”, or “speaks volumes”, both in the Lautsi majority decision and in the concurring opinions, suggests that the Court might see the crucifix as ‘passive’ in the first sense defined above: not soliciting an affirmation or a refusal to affirm anything on the part of pupils. There are two ways to construe this view. One is the radical perspective espoused by the Italian government in its claim that the crucifix “could be interpreted differently from one person to another” 48  Greenawalt, supra note 31, p. 170. The case mentioned is Gernetzke v. Kenosha Unified School District No. 1, 274 F.3d 464 (2001). 49   “Symbols do not have a univocal significance. Objects are neutral by nature and the significance that is attributed to them reflects the culture, the beliefs, the choices of those who see them.” Susanna Mancini, ‘The Power of Symbols and Symbols as Power: Secularism and Religious as Guarantors of Cultural Convergence’, 30:6 Cardozo Law Review (2009), p. 2655.

Passive / Aggressive Symbols in the Public School  281 (para. 36)—incidentally, a position also taken by California authorities in the latest display case decided by the US Supreme Court50—and which implies that no meaning of the cross enjoys priority over any reasonable other. This sense of ‘passive’ is exceedingly strong and, in fact, rejected by the Grand Chamber’s recognition of an inherently religious message attached to the crucifix. The less radical interpretation, which is suggested by the argument in the American case discussed above (Elmbrook), is that, unlike prayers, in which action or inaction necessarily conveys a significant message, the cross ‘on a wall’ may simply be ignored by students. The crucifix “does not require engagement in any activity”, to quote Judge Powers. We find this use of ‘passive’ unpersuasive as well. In the first place, one could retort that the headscarf worn by a teacher is similarly ‘passive’. Pupils are not explicitly asked to do anything about or in relation to such an item of personal clothing and so, under the argument above, they may ignore it. Yet the ECtHR ruled in Dahlab that a teacher’s headscarf constitutes a “powerful external symbol” and “might have some kind of proselytising effect”. Furthermore, it is especially risky in a school environment to draw too sharp a distinction between indirect coercive participation, as in religious prayers from which pupils may abstain, and ‘passivity’, as in the case of the crucifix. The latter may not require participation or overt non-participation in anything, but it does convey a message as to what is appropriate in and desirable of a pupil (hence also the plausibility of the claim that the cross amounts to a form of teaching). To quote from Justice O’Connor’s concurring opinion in McCreary County v. ACLU, “[f]ree people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.”51 The crucifix offers such direction and, although refusal to take heed is not overt or manifest, unlike in the case of prayers or the offering of religious literature, it still may strongly invite participation in the, so to speak, ‘inner forum’. This makes the crucifix directly relevant to the issue of coercion. C.  ‘Neutralizing’ Religious Coercion The analysis above suggests that the Lautsi majority opinion did not supply a clear, persuasive argument as to why the crucifix displayed in a public school should be considered a passive religious symbol. Fortunately, the Grand Chamber did not completely eschew the core issue identified by the Court

50  In Salazar v. Buono (2010), the California government noted that the cross could be “interpreted by different observers in a variety of ways.” Quoted in Christopher Lund, ‘Salazar v. Buono and the Future of the Establishment Clause’, 105 Northwestern University Law Review (2011), p. 66. 51   545 U.S. 844 (2005), p. 1.

282  Liviu Andreescu & Gabriel Andreescu itself, namely, whether the crucifix constitutes a form of religious indoctrination. We have briefly argued elsewhere that the Court did, in fact, achieve a certain closure in terms of what we called, borrowing from the concurring opinion of Judge Rozakis, a ‘neutralization test’.52 It is true that the Court did not quite bring itself to acknowledge, as it should have done, that the compulsory display of a religious symbol favouring one religious tradition constitutes a prima facie case for the existence of indoctrination. Neither did the Court recognize, as it should have, that the crucifix in a school represents a powerful religious symbol. Nonetheless, at paras. 74–76 of the majority opinion the Court put forward an argument fittingly described by Judge Rozakis as identifying “major factor[s] in ‘neutralising’ the symbolic importance of the presence of the crucifix in State schools”. Specifically, the Court, while acknowledging the religious, if passive, nature of the display in question, argued implicitly that the concerns which this symbol may raise are allayed by “plac[ing the issue] in perspective” (para. 74), that is, by seeing the matter in its larger context. This wider framework was then defined in terms of a test designed to determine whether the competing interests at stake—individual freedom of conscience and religion and the state’s educational function—are adequately protected. The test, which was merely sketched by the Grand Chamber, appears to consist of three prongs: –  pluralism of religious traditions and values in the curriculum: is the crucifix associated with compulsory teaching about Christianity and, more broadly, with teaching practices “with a proselytising tendency”? (para. 74); –   pluralism of religious manifestations in schools: is the school environment “open … in parallel to other religions” so that schools accommodate a variety of religious practices? (para. 74); and –   the ability of parents to discharge their “natural functions as educator”: do they “retain in full” their right “to enlighten and advise” children and to guide them “on a path in line with” their deeper convictions? (para. 75). Provided these conditions are met, the majority opinion appears to be saying, states enjoy a considerable margin of appreciation in determining whether the presence of crucifixes in public schools is permitted, encouraged, and even required. In its majority opinion, the Court merely offers a sketch of the ‘neutralization test’. One of the key characteristics of this test is that it relies heavily on context. This means that in future cases the Court must pay particular attention not only to the formal arrangements concerning the organization of the

  Andreescu and Andreescu, supra note 6.

52

Passive / Aggressive Symbols in the Public School  283 school system and of religious manifestations within it, but also to empirical evidence that national or local arrangements satisfy the three prongs of the test. Naturally, a lot depends on the ways in which said prongs will be operationalized in subsequent cases. Nevertheless, we regard this as the main positive contribution of the Grand Chamber to the ECtHR’s religious freedom jurisprudence. We also submit that the test is—or may be, if properly developed—sufficiently strong to assuage the concerns of those who regard the final decision in Lautsi as a political cop-out which threatens the freedom of conscience and religion of theistic and non-theistic minorities. We endeavour to show this in the third and fourth parts of this article, which examine in detail the ‘school icons debate’ in Romania, a controversy that resulted, among others, in a complaint to the European Court of Human Rights. III.  Moise v. Romania On 12 August 2006, long before the confrontation between Mrs Lautsi and the Italian crucifixes made news in Romania, Mr Emil Moise, a high school philosophy and civics teacher in the city of Buzau, submitted to the National Council for Combating Discrimination (NCCD)53 a petition in which he requested that religious symbols be removed from state schools and displayed exclusively during religious education (RE) classes. Mr Moise contended that these symbols, mostly Eastern Orthodox icons, discriminate against nonbelievers and persons belonging to minority religious groups, that they negatively affect children’s autonomous and creative development, and that, furthermore, Eastern Orthodox icons imply the sanctioning of a religious doctrine that consigns women to a subordinate position, thus violating the principle of equality of opportunity. Emil Moise signed the petition as the father of a high school student. At the time, Mr Moise was (he still is) one of the leaders of a Romanian secular humanist NGO, the Solidarity for Freedom of Conscience, which had already expressed concern with religious indoctrination in public schools.54 Mr Moise offered an extensive argument in his petition, which he also made available to organizations and individuals working in the field of human rights, some of which had previously voiced similar concerns of their own. While Romanian authorities had already started to sanction acts of discrimination based on criteria other than religion, religious discrimination had, in the words  The National Council is an independent body, accountable directly to the Romanian Parliament, in charge of the application of legislation concerning discrimination as well as of deciding discrimination cases. 54   Emil Moise is our colleague at and a co-founder of the association Solidarity for Freedom of Conscience (SFC). 53

284  Liviu Andreescu & Gabriel Andreescu of the Statement of Principles of Mr Moise’s association, “reached alarming heights and remains generally unknown and misunderstood.”55 Mr Moise’s criticisms, coming from a religious freedom activist who had lent his support to various religious minorities,56 were offered from an inclusive non-theistic position. As a result, they enjoyed support from public intellectuals and civic organizations, among which the respected Center for Legal Resources, which filed an amicus brief with the NCCD. On the day before the hearings, several well-known NGOs and activists published an open letter in Mr Moise’s support, in which they noted that the issue he raised “called for a crucial decision with major implications nationally.”57 The context of the petition was the broader issue of religious education in Romania. This formally elective school subject is taught confessionally, from the first to the twelfth grade, on a weekly basis. On the whole, more hours are devoted to ‘Religion’ than to any other school subject with the exception of ‘Romanian’ and ‘Mathematics’. RE classes are typically associated with other religious manifestations, from religious ceremonies on various secular and religious occasions to the blessing of classrooms and of teaching materials by priests. Religious literature is sometimes distributed in schools58 and students visit monasteries as part of extra-curricular activities. Except for several localities in Transylvania, a province with an important Hungarian (Catholic and Reformed) population, religious symbols in Romanian state schools are virtually always Romanian Orthodox. As a result, it has been claimed that pupils are subject to a large-scale Orthodox indoctrination operation which involves the state directly and significantly.59 A.  The NCCD Decision, the Ensuing Public Debate, and the Victimization of the Petitioner At the time of Mr Moise’s complaint, the National Council for Combating Discrimination, which had been established in 2002, was very active but not very well known by the large public. Its College of Directors seems to have understood both the significance and the delicate nature of the decision it had been called on to make and, as a result, prepared an extensive and carefully documented opinion which included a comparative analysis of the state of   See SFC, ‘Statement of Principles’, available at .   Among them, the Seventh Day Adventist Church. Emil Moise started a legal battle to persuade the Central Electoral Office to stop organizing elections on Saturdays, a day of rest for Adventists. 57   The ‘Letter’ was reprinted in 4:4 Noua Revista de Drepturile Omului (2008). 58  The Association of Orthodox Youth Orthograffiti organizes a yearly Orthodox book exchange event. The 2011 edition, the third of its kind, was organized in public schools (the communiqué is available at ). 59   Gabriel Andreescu, ‘Manualele: Discriminare ori Indoctrinare?’ [Textbooks: Discrimination or Indoctrination?], 3:4 Noua Revista de Drepturile Omului (2007). 55 56

Passive / Aggressive Symbols in the Public School  285 affairs in Romania and other relevant countries. On 21 November 2006, the Council held a press conference in which it made decision No. 323/2006 known publicly. In the opinion published on 5 December 2006, the College of Directors referred to the state’s duty of neutrality as resulting from the equality of citizens and their right to dignity. Neutrality was defined as an active duty, imposing a positive obligation to create a context that is favourable to the free manifestation of religious beliefs. Neutrality ensures the pluralism of values and beliefs and contributes to the freedom to choose among the latter. Citing the ECtHR’s decision in Kokkinakis,60 the College noted that freedom of thought, conscience and religion, as manifested through the displaying of religious symbols, has limits. A nation’s population, it observed, often consists of several religious groups and therefore the state needs to ensure the conciliation of and respect for the convictions of every citizen. As a result, the NCCD reasoned, the unrestricted and uncontrolled presence in public educational institutions of religious symbols constitutes an infringement of the state’s duty of religious neutrality. The Council did not rule on the alleged violation of equality of opportunity by the display of denominational icons. The public body in charge of combating discrimination recommended that the Ministry of Education and Research issue, within a reasonable time frame, a regulation concerning religious symbols in state schools. This recommendation should have set out the principles of respect for the right to education under equal terms, the right of parents to ensure their children’s education in accordance with their worldviews, the secular nature of the state, the autonomy of religious denominations, and children’s religious freedom. The Council recommended that the Ministry order religious symbols removed from schools and exhibited “only during religious education classes or in spaces exclusively set aside for religious education.” In finding in favour of the petitioner on this central count, the NCCD issued the most debated and vilified decision since the institution’s founding. The aftermath of the decision was nothing short of a nationwide storm. The media offered ample space to the critics and much less to the supporters. Numerous institutions attacked the decision and many public figures deman­ ded the firing of the members of the College. Responses poured in from the Ministry of Education and Research (MER) and the Ministry of Culture and Religious Affairs (MCRA), parties, parliamentarians, the religious denominations, secular and religious organizations, public intellectuals who either supported or were concerned about the creation of an Orthodox state, as well as journalists-turned-militant and militants seeking a venue in the press.   Kokkinakis v. Greece, 25 May 1993, European Court of Human Rights, No. 14307/88.

60

286  Liviu Andreescu & Gabriel Andreescu The Ministry of Education immediately condemned the NCCD ruling claiming that there was no legislative provision which would permit the MER to ban religious displays. In support of this position, it offered an apology for the exhibiting of icons in schools, which it likened to the presence of Bibles in hotel rooms and deemed “an international practice”.61 The Ministry of Culture and Religious Affairs issued another contestation. Its arguments were essentially populist: the anti-communist December 1989 revolution had been fought, among others, for religious freedom and freedom of conscience, and as a result placing crucifixes and icons in schools represented a homage to those who had died in 1989, as well as a return to a venerable tradition. To members of the House of Deputies’ Educational Commission, the NCCD decision was unfounded because each school should be entitled to freedom to display or not to display icons in classrooms. The sister Commission for Human Rights, Religious Denominations, and National Minorities noted that the petitioner’s claim of discrimination was not justified because the decision to exhibit icons, while made by the school administrators, had the agreement of the council of teachers and of the parents—a claim that is, as a matter of fact, completely unsupported by evidence on how icons commonly come to be exhibited in schools. It is remarkable that not only did the public institutions cited above deny the competences of the NCCD, but they did so with overblown and often ironical arguments. Should the state follow the logic espoused by the NCCD, argued the MER, the result would be “the complete elimination or disappearance of every religious symbol, building, or sign, irrespective of its nature, from public spaces, including those in the cities, or their presence only during the religious services of a particular denomination.” The MCRA issued veiled threats: the arguments concerning the discriminatory nature of religious displays “denote an excessive sensitivity” which, if “rendered normative or validated by state bodies, could in turn lead to excessive acts by groups which might consider their fundamental rights restricted.”62 This position towards the placing of religious symbols in schools became a matter of official state policy when the Romanian government intervened in Lautsi v. Italy. As summarized by the European Centre for Law and Justice,63 the government claimed that states should enjoy a wide margin of appreciation in the regulation of religious affairs, and that banning the cross in state schools 61  A summary of responses is available in Gabriel Andreescu, ‘Prezenta Simbolurilor Religioase in Scolile Publice: o Batalie Pentru Viitorul Invatamantului’ [Religious Symbols in Public Schools: the Battle for the Future of Education], 2:4 Noua Revista de Drepturile Omului (2006), pp. 38–57. 62  Idem. 63   ECLJ, ‘Lautsi v. Italy Summary of the Submissions of the Intervening States’, available at .

Passive / Aggressive Symbols in the Public School  287 contradicts the principles of the European Convention. As a European consensus on the matter is hard to achieve, the government suggested that the Court should consider the historical and political culture of each state and grant it the requisite margin of appreciation. Most of the 18 recognized religious denominations did not voice their positions publicly, although some, such the Mosaic Faith, were directly affected by Orthodox indoctrination in schools. The exceptions were the Seventh Day Adventist Church, which saluted the decision for its commitment to the separation of church and state, and, of course the majority Romanian Orthodox Church (ROC). The Press Office of the ROC Patriarchate issued a communiqué on 23 November 2006 which characterized a possible decision to remove religious symbols from schools as “a brutal and unjustified infringement of religious freedom.”64 Members of the Romanian Academy known for their support of the Church rallied around the ROC. A well-known historian interpreted the NCCD decision as a “return to communist practices—the removal of Christian religious symbols from schools— … a phenomenon that is as shocking as it is harmful.”65 Another reputed historian sarcastically suggested that the NCCD be renamed “the National Council enforcing and extending discrimination to an entire country.”66 The jibes against the NCCD decision did not stop at the Council, but found a preferred target in the petitioner. The press officer of the ROC and various hierarchs called Mr Moise “an iconoclast with a mental health certificate” as well as a member, together with the NCCD College of Directors, of “an aggressive minority” of “zealous atheists”.67 A historian and member of the Romanian Academy known for his collaboration with the communist political police ridiculed Emil Moise in these terms: This whole story is based on a confusion coming from people devoid of the most basic religious education and lacking the most elementary religious components. But there is something else as well. There is this conviction of the dim-witted … that anti-religious attitudes are a sign of intellectual elevation. It is the pride of the thick-headed that he has a personal opinion, that he is an atheist. He engages in blasphemy and deal blows to sacred things. This gives the thick-headed a sense that there is something to him, after all.68  Andreescu, supra note 59.  Florin Constantiniu, a member of the Romanian Academy, used the label “Stalinist practices” (statement available at , 2 October 2011). 66  Historian Dinu Giurescu, also a member of the Romanian Academy, as quoted on the website of the ROC Patriarchate, available at (21 November 2008). 67   Statement by Archbishop Bartolomeu Anania made on 20 December 2006, as quoted in Enache, infra note 84, p. 81. 68   Virgil Candea, a member of the Romanian Academy, as quoted by the ROC Patriarchate, available at , 21 November 2008. 64 65

288  Liviu Andreescu & Gabriel Andreescu The president of the Romanian Cultural Institute portrayed the teacher from Buzau as an “untreatable militant, an agitated activist, a meticulous grumbler and a well-organized maniac. He discovers intolerable violations of a principle where ordinary men see, at most, defects of living together.”69 The leader of the New Generation Party, later a member of the European Parliament, hollered swear words at Mr Moise on a live TV show. Throughout the debacle, little mention was made of Emil Moise’s previous work in support of children’s rights in cases wholly unrelated to religion: his personal and legal assistance (Mr Moise holds both a philosophy and law degree) to students physically or verbally abused in school, to a pupil expelled for becoming a mother, to Roma girls married at 12 or 13, or his administrative initiatives on safer playgrounds, his brochures on children’s rights, his organizing music recitals and sports events, and so on. Rather, Mr Moise was slandered on numerous occasions, often by public figures and officials, and insulted by colleagues in his high school. He was threatened by email, as were his wife and daughter. His victimization, which began in 2006, continues today, albeit at a more moderate pace. The analogy between the treatment of Emil Moise and the members of the NCCD College of Directors, on the one hand, and the manifestations in Italy after the first Lautsi decision, on the other, is quite plain. As reported by the European Parliament Platform for Secularism in Politics, the headquarters of the Radical Party, the only one supporting the ruling, were attacked, the LautsiAlbertin children were threatened, and crosses were painted on their house. The Northern League MP and mayor of nearby town Cittadella put up Wanted posters with the family, while the Italian defence minister said on TV: “Anyway, we won’t take away the crucifix! They can die! The crucifix will remain in all school’s rooms, in all public rooms! They can die! They can die! Them and those fake international organizations that count for nothing!”70 B.  Subsequent Legal Developments in the Romanian ‘Icons Case’71 The Ministry of Education and Research appealed the NCCD decision in court. The Bucharest Court of Appeals upheld the NCCD decision, holding that “it is the protection of the freedom of conscience of others that constitutes the foundation of the NCCD decision to recommend the banning of religious   Horia-Roman Patapievici, ‘Despre Noul Fanatism’ [On the New Fanaticism], Evenimentul zilei, 23 November 2006. 70   The European Parliament Platform for Secularism in Politics, ‘Lautsi v. Italy’, available at . For additional details, see McGoldrick, supra note 8; Andreescu and Andreescu, supra note 6. 71   In Romania, the Moise case was popularly known as the ‘(school) icons case’ because Eastern Orthodox icons overwhelmingly dominate other religious displays (including the crucifix). 69

Passive / Aggressive Symbols in the Public School  289 icons displays in public schools, institutions which are … accessible to all… [T]he students who do not share [Orthodox] beliefs are not in a position to avoid the presence and the message of these religious symbols.”72 The Ministry appealed the decision at the High Court of Cassation and Justice, as did Emil Moise in March 2008. Mr Moise submitted a request to intervene in the case, as did a pro-Orthodox organization, the Pro Vita Association. Paradoxically, in June 2008 the High Court rejected Mr Moise’s request, although he represented the interests of his daughter, but admitted that of Pro Vita, even though the latter appeared not to have standing (lacking the requisite field of activity in its bylaws), while the lawyer who represented it arguably lacked the necessary credentials to plead before the High Court (as a trainee lawyer). Mr Moise was also refused a request to see the file. The High Court overturned point 2 of the NCCD decision—the recommendation to regulate within an acceptable time frame the display of religious symbols in schools and to allow such displays only during RE classes. The Court argued that the recommendation obligates the Ministry to intervene in a field that is not its jurisdiction, but that of the local school community. The High Court did not, however, rule on the original issue raised by Emil Moise, namely whether the presence of religious symbols in public schools constitutes discrimination. Indeed, it seems to have avoided this issue. Its ruling noted a few times that the National Council had not found a specific case of discrimination, which is true in a sense, as Mr Moise raised a general issue,73 but false in another, as it was explicitly because of the discriminatory nature of school displays that the NCCD issued its recommendation. Therefore, while the High Court nullified the recommendation, under a plausible reading it left open the question of discrimination. On 22 September 2009, Mr Moise complained to the European Court of Human Rights. He asked the Court to recognize the infringement of the fundamental right of his daughter and of other children to freedom of thought, conscience, and religion, as well as the discrimination created by the systematic display of religious symbols on the walls of teachers’ rooms, hallways, and classrooms during obligatory classes—both in the school attended by his daughter and in all other state schools in Romania. After the Grand Chamber ruling in Lautsi, this decision’s Romanian supporters declared the complaint submitted by Mr Moise to the ECtHR a closed case, and claimed that the display of religious symbols in schools was a matter 72   Quoted in Gabriel Andreescu, ‘Curtea de Apel Bucuresti despre Libertatea de Religie’ [The Bucharest Appellate Court on Freedom of Religion], 4:3 Noua Revista de Drepturile Omului (2008), pp. 55–65. 73   He also raised the specific question of discrimination against his daughter, but the NCCD refused to rule on the matter, deferring to a previous decision of a local court.

290  Liviu Andreescu & Gabriel Andreescu to be determined solely by the states. Such an impression may be motivated by a reading of the ruling and of academic opinions outside their proper context. As we suggested in the previous section of the article, this may not be the true implication of the Grand Chamber’s decision. In what follows, we explore in additional detail the ‘neutralization test’ put forward by the Court in Lautsi as it might apply to the Moise case. IV. How Moise differs from Lautsi As the Grand Chamber made clear in its majority opinion, the decision on the display of crucifixes in state schools falls within the margin of appreciation of the state “in the light of the circumstances of the case” (para. 57), that is to say, of the circumstances in Italy. While noting that the absence of a European consensus favours this approach, the Court also observed that the margin of appreciation is inseparable from European supervision, and therefore it rests with the Court to establish whether the appropriate limits had been exceeded or not. Any other option would have been difficult to justify since, as commentators pointed out, the ECtHR had previously used the margin of appreciation doctrine for a variety of purposes, among which “to protect minorities when the majority religion happens to be Islam”74 and, alternatively, to defend “the collective religious and cultural freedom of the majority”.75 Too liberal an application of the margin of appreciation would “undermine seriously the promise of international enforcement of human rights that overcomes national policies. Moreover, its use may compromise the credibility of the applying international organ.”76 As a result, in defining the scope of the margin of appreciation, the Court noted that it “will vary according to the circumstances, the subject-matter and its background …”77 The importance of circumstances results directly from the general principles of the doctrine of the margin of appreciation in enforcing the European Convention. Through the Convention, the Council of Europe is called upon to protect diversity and pluralism, which implies respect for the legal pluralism in Europe.78 This justifies the additional latitude for states in choosing the adequate means to ensure the complex balance required by diverse domestic public values and interests. Yet this is not so because the relevant European bodies  Mancini, supra note 4, p. 23.  Mancini, supra note 49, p. 2658. 76  Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’, 31 International Law and Politics (1999), p. 844. 77   Rasmussen v. Denmark, 28 November 1984, European Court of Human Rights, No. 8777/79, para. 40. 78   Elias Kastanas, Unité et Diversité: Notions Autonomes et Marge d’Appréciation des Etats dans la Jurisprudence de la Cour Européene des Droits de l’Homme (Bruxelles: Bruylant, 1996), p. 21. 74 75

Passive / Aggressive Symbols in the Public School  291 chose to limit their competences, but because the latter recognize the ability of states to appreciate the right balance among the public interests they manage. In this sense, the doctrine of the margin of appreciation ensures a sharing of obligations between the Strasbourg Court and the national authorities in enforcing and affirming the fundamental rights and freedoms.79 It follows that the margin of appreciation cannot serve as a justification for breaches of rights and freedoms. As the Court itself emphasized, it remains its task to decide in each particular case whether the circumstances in which the state exercises its powers are within or without said margin.80 The circumstances of the Moise case are so different from those of Lautsi that the ECtHR decision in the latter may be fruitfully employed as a guide to the former’s specificity. Our analysis below will concentrate on the compatibility of the presence of icons in Romanian state schools with the standards of Article 2 of Protocol No. 1 and Article 9 of the Convention. For these purposes, we will employ the Court’s ‘neutralization test’, as sketched above, to determine to what extent the Romanian case passes muster. A.  The First Prong The first prong of the ‘neutralization test’ concerns the pluralism of religious traditions and values in the school curriculum. Specifically, the Court asked whether the crucifix is associated with compulsory teaching about Christianity and, more broadly, with teaching practices “with a proselytising tendency”. This is in line with previous decisions (e.g., Folgerø, Zengin, Kjeldsen),81 inquiring whether information about religion is conveyed in an objective, critical and pluralistic manner; and, if not, whether there are satisfactory arrangements for exemption. These standards are not met in Romania,82 where most of the religious symbols on display are clearly denominational—Eastern Orthodox icons—and, furthermore, are ubiquitous in schools. They are exhibited on the walls of classrooms and teacher’s rooms, sometimes in the offices of school inspectorates (the Ministry’s arms in the regions), even in counties where the Romanian Orthodox population represents a minority (such as Harghita and Covasna). The icons may play a legitimate role in confessional

  Ibid. p. 239.   See also Leyla Sahin v. Turkey, supra note 13, para. 110: “This margin of appreciation goes hand in hand with a European supervision embracing both the law and the decisions applying it.” 81   Kjeldsen, Busk Madsen and Petersen v. Denmark, 7 December 1976, European Court of Human Rights, Nos. 5095/71, 5920/72, 5926/72. 82   In the discussion below we will ignore the issue of symbols belonging to denominations other than the ROC, although a few of the practices described hold true, mutatis mutandis, of other religious groups. 79 80

292  Liviu Andreescu & Gabriel Andreescu RE classes, but they also serve as paraphernalia for a variety of religious ceremonies and events held in schools which systematically involve non-Orthodox staff and students, who are indirectly coerced to participate. During ceremonies on the opening of the school year, the objects in question are sometimes carried as sacred objects. Periodically, priests doubling as RE teachers enter classrooms to bless or consecrate them. Occasionally, students and school personnel are asked to kiss the icons. Those who refuse are sometimes punished, as in the case of an Evangelical teacher of history and civics in the county of Braila, forced to resign, after pressures exerted through the school and the family hosting him, due to his refusal to kiss an Orthodox icon during a ceremony.83 All of these practices and other religious manifestations in state schools remain completely unregulated in an educational system that is, otherwise, tightly controlled by a centralist Ministry of Education. Investigations84 by scholars and organizations supporting freedom of thought, conscience, and religion show that religious displays are a key element in a widespread process of religious and, in the vast majority of cases, specifically Orthodox indoctrination. Essential to this process of indoctrination is the denigration of other religious groups, for which RE in state schools has proved particularly helpful. Thus, during one school year opening ceremony, according to an interviewee: His Holiness Casian, the Bishop of the Lower Danube, … [a]fter having blessed the school and the pupils and having displayed the religious symbols, held a discourse on the evil nature of religious sects, on the serious harm that they do to a religious society, and on their unfortunate impact on children so easily swayed. For approximately 30 minutes, students waiting to enter their classrooms had to be present during the Bishop’s monologue, without being able to object or go away, since they were supposed to enter their classrooms only accompanied by their teachers.85

 SFC, infra note 84.   Some basic references for the state of RE in Romania are the reports published by the association Solidarity for Freedom of Conscience (SFC), among them SFC, ‘Cercetare Asupra Educatiei Religioase in Unitatile Scolare din Romania’ [Research on Religious Education in Romanian Public Schools], 3:2 Noua Revista de Drepturile Omului (2007); and by the Liga Pro Europa, primarily Smaranda Enache (ed.), Educatia Religioasa in Scolile Publice [Religious Education in Public Schools] (Targu Mures: Pro Europa, 2007). Two pioneering studies are Emil Moise, ‘Relatia Stat-Biserica in Privinta Educatiei Religioase in Scolile Publice din Romania’ [Church-State Relations in Religious Education in Romanian Public Schools], 7 Journal for the Study of Religions and Ideologies (2004); and Lavinia Stan and Lucian Turcescu, ‘Religious education in Romania’, 38 Communist and Post-Communist Studies (2005). On religious manifestations in higher education, see SFC, ‘Expansiunea Manifestarilor Religioase in Invatamantul Superior Romanesc’ [The Expansion of Religious Manifestations in Romanian Higher Education], available at ; see also Liviu Andreescu, ‘Double or Nothing: Academic Theology and Post-communist Religious Policy’, 52 Journal of Church and State (2010). 85   Interview in a Galati county school, as reported in SFC, ibid. (emphasis added). 83 84

Passive / Aggressive Symbols in the Public School  293 Such attitudes towards minority religious groups are part and parcel of the traditional discourse of the ROC. More relevant for the first prong of the ‘neutralization test’, they are well represented in Orthodox Religious Education textbooks (all of which have to be approved by both the Romanian Orthodox Patriarchate and the Ministry of Education), prompting a group of scholars to note that “‘Religion’ textbooks and student workbooks do not restrict themselves to introducing essential information about religious faiths, but contain fragments and whole chapters incriminating, sneering at, and presenting in tendentious manner other faiths and belief systems.”86 One eleventh grade Orthodox RE textbook (the 2006 edition, still on the market despite protests) called the Baha’i faith a sect, “tools of Satan or pathways of Hell” engaged in “insistent proselytizing”. The group was presented as “a danger to society”, “a phenomenon to be fought against by society” and a “sect banned in the West” because their ways are “unworthy of the Gospels”. These “ways” were said to consist of “indoctrination, bribe, blackmail, capitalizing on poverty, fanaticism.”87 Although exceptionally aggressive, this is hardly an isolated instance. Research published over the past decade documented numerous similar cases.88 Indeed, the Head of the State Secretariat for Religious Affairs (SSRA, the directorate in the Ministry of Culture and Religious Affairs in charge of religious policy in Romania), an Orthodox theologian, was also the editor of an RE textbook containing an entire chapter condemning practically all non-majority religious groups as practicing “undignified” and “morally and ethically reprehensible” proselytizing.89 The apparent goal of Orthodox RE is to turn students into ‘good Orthodox children’. Two reputed Canadian scholars of religion, one of whom graduated from a divinity school in Romania, noted early in the past decade the catechizing ingredients in Orthodox textbooks: “Catechesis is introduced in grade 2 and continued up to grade 10.”90 If anything, this tendency has intensified lately. Additionally, the goal of catechization seems to also be pursued through scare tactics that are completely at odds with the broader educational ideals proclaimed by the school system. Instances of God physically punishing children for various offenses, from upsetting a nest of birds to merely playing, are present in more than one RE textbook, starting at first grade, usually accompanied by ethical musings such as “Disobedience is punished!” or Bible quotes like “the wages of sin is death” (without the rest of the message about God’s gift

 Enache, supra note 84, p. 60.   Quoted in Andreescu, supra note 59, p. 28. 88   See especially Enache, supra note 84, pp. 53–73. 89   Religie. Cultul Ortodox. Manual Pentru Clasa a XI-a [Religion. The Orthodox Faith. Textbook for the Eleventh Grade] (Bucharest: Corint Publishers, 2006), Ch. 7. 90   Stan and Turcescu, supra note 84, p. 395. 86 87

294  Liviu Andreescu & Gabriel Andreescu of eternal life).91 Furthermore, religious indoctrination is also achieved by tying RE instruction, especially in the countryside, to going to church. Among the associated practices that have been documented are lowering grades as punishment for non-attendance of church services, coercing pupils to buy candles, or shaming and physically punishing students in front of the class (in one case, a fourth-grader had to suffer such indignities for having watched a film shown by a Protestant group right before Easter).92 (Needless to say, all these practices are condemned by Romanian criminal law as religious coercion, though so far they seem to have been carried out with impunity by various RE teachers.) One key element of the first prong is the status of religious education in state schools. In Romania, RE is confessional and, thus, formally an elective. Initially, under the 1995 Education Law, the subject ‘Religion’ was deemed “obligatory”, but in a convoluted ruling the same year the Constitutional Court re-defined the term to mean, counter-intuitively, that every school was obligated to offer this subject.93 In practice, though, the status of RE is quite peculiar. Under Article 18(1) of the 2011 Law on National Education (‘Education Law’), which repeats a provision of the old 1995 law, ‘Religion’ is part of the core curriculum—the only elective to be accorded this standing. On the one hand, this provides the subject with a symbolic status over and above that of other electives. On the other hand, it makes it possible to lure pupils by promising high grades (a common practice), because the latter count toward students’ all-important ‘grade average’. Furthermore, RE is not offered in parallel with other options, such as non-denominational religious education or ethics classes. Indeed, it could not be thus offered—this is what being ‘part of the core curriculum’ signifies. The lack of alternatives raises the interesting point of what happens to students who wish not to attend RE classes, especially since the latter are, apparently quite deliberately, not scheduled as the first or last class of the day. Finally, registration for attendance to religious education is automatic, as every state-school pupil is enrolled by default. Parents who do not wish their children to attend may subsequently excuse them, and students who are at least 16 may excuse themselves, but this procedure—which is practiced in other EU countries—seriously complicates withdrawal, especially given peer and teacher pressure. Moreover, schools are not typically aware of the confessional affiliation of students (and, under Romanian law, collecting such

 Enache, supra note 84.  SFC, supra note 84; Enache, supra note 84. 93   Renate Weber, ‘Legea Invatamintului: intre Contestare si Supra-Apreciere’ [The Education Law: between Contestation and Lavish Praise], 9 Revista Romana de Drepturile Omului (1995). 91 92

Passive / Aggressive Symbols in the Public School  295 information would be illegal anyway).94 As a result, students who do not wish to study ‘Religion’ are enrolled in confessional RE classes and often stay enrolled due to various pressures. All of the above makes religious education in Romania de facto mandatory. Indeed, until not long ago the website of the ROC Patriarchate proclaimed the subject ‘Religion’ to be exactly that, although the matter had been clarified by the Constitutional Court as early as 1995. Sometimes, Ministry of Education officials publicly claim the same.95 There is no better testimony to the real character of RE than the perceptions of students, parents and teachers. In a poll conducted in schools in 2006–2007, a little over seventy per cent of the students claimed it was an obligatory subject (and only less than eight per cent knew it was an elective). The figure for teachers was an astounding 72.5 per cent.96 B.  The Second Prong The second prong of the ‘neutralization test’ concerns the pluralism of religious manifestations in schools. Specifically, the Court asked whether the state “opens up the school environment in parallel to other religions” (para. 74), so that schools accommodate a variety of religious practices, and inquired for “alternative arrangements … to help schooling fit in with non-majority religious practices”. Formally, religious education in Romania is open to all recognized denominations, of which there are currently 18. Article 18(1) of the Education Law repeats a constitutional provision—Article 32(7)—in setting out that “[s]tudents who belong to state-recognized religious denominations [culte] are ensured, irrespective of their number, their constitutional right to attend Religion classes in accordance with their own religious faith.” The law says nothing about other religious organizations in Romania’s three-tier system consisting of denominations, religious associations, and religious groups. Under chapter II of the 2007 Law on Religious Freedom and the Status of Religion Denominations (‘Religious Freedom Law’) it is stipulated that the “teaching of religion in the public and private education system is guaranteed by law for recognized denominations” (Article 32.1).97 This means that not all religious groups have access to RE in state schools—and this is exactly the case in practice.

  Liviu Andreescu, ‘Romania’s New Law on Religious Freedom and Religious Denominations’, 36:2 Religion, State and Society (2008), pp. 148–9. 95  Enache, supra note 84, p. 41 96  Enache, supra note 84, pp. 101, 123. 97   Emphasis added. 94

296  Liviu Andreescu & Gabriel Andreescu Two matters should be mentioned here. Some religious associations with an important worldwide following (such as the Baha’i faith) and with a small but significant presence in Romania (e.g., the Church of Jesus Christ of Latter-day Saints) do not qualify for RE under the laws cited above, despite the fact that a few of them exceed in size some of the numerically modest denominations. Secondly, securing the status of a religious denomination has been made relatively difficult under the recent Religious Freedom Law,98 so it would be difficult for religious associations, including large or very active ones, to be treated on an equal footing with the recognized denominations as far as RE is concerned. However, it is unlikely that the display of religious symbols in Romanian state schools would fail the second prong of the ‘neutralization test’ only because state schools fail to accommodate RE for more than the 18 recognized denominations even though, in fact, it has proved relatively difficult even for some of the latter groups to organize RE classes.99 This being said, much of what has been noted in the previous subsection applies to this prong as well, and suggests that, on a careful evaluation, the state of affairs in Romanian public education would not pass muster. Enrolment in RE classes by default, and in the absence of an awareness of the denominational affiliation of students, sometimes leads to pupils studying faiths other than their own. Usually, school and peer pressure, as well as other school arrangements such as those pertaining to the schedule, are sufficiently strong to make some students or their parents reticent to request withdrawal. Moreover, save for a few areas with a relatively large number of Hungarians or Muslims, the frequently organized school ceremonies as well as the other religious manifestations mentioned previously are virtually all Orthodox. Once again, students belonging to different faiths may feel compelled to attend. Significantly, the Christian crucifix, although present in many classrooms, is not the typical religious display. Rather, the walls of Romanian public educational institutions are adorned with Eastern Orthodox icons. The latter have a much stronger denominational identity. Their power to indoctrinate is consequently also stronger. Religious icons are also sometimes regarded with some ambivalence by various religious groups, a few of which may even consider them idolatrous (as ‘graven things’). As a result, the possibility of religious coercion would be more difficult to deny. This analysis suggests that while, formally speaking, Romanian public schools may be “open … in parallel to other religions” besides the majority   See Andreescu, supra note 94, pp. 139–161.   There is a minimum number of students required for RE classes, which often proves to be a problem for many minority religious denominations. A Ministry of Education Order from 2005 specifies that the obligation of schools to provide RE is conditional upon a group size of 10 students of the relevant faith. However, the Order lowers this figure to 7 students “under special circumstances” (which are left undefined). 98 99

Passive / Aggressive Symbols in the Public School  297 Orthodox faith, in practice this does not happen whenever the relevant religious (often, ethno-religious) groups are not important enough numerically to stave off Orthodox attempts at domination of education. C.  The Third Prong The third part of the ‘neutralization test’ concerns parents “retain[ing] in full [their] right … to enlighten and advise [their] children, to exercise in their regard [the] natural functions as educator and to guide them on a path in line with [their] own philosophical convictions” (para. 75). In our view the situation described above shows clearly that this is not the case in Romanian primary and secondary public education. First and foremost, most parents, like most teachers and most students, are unaware that religious education is an elective from which their children may opt out. Indeed, they have been misinformed in this respect both by interested organizations such as the ROC and, occasionally, by state officials.100 The withdrawal procedure is uncomfortable, especially as parents may be confronted with pressures to keep their students enrolled in RE. Furthermore, the high frequency101 of religious events and ceremonies organized in schools, some of which accompany essentially secular occasions (the opening of the school year, graduation etc.), and from which students cannot—and should not be forced to—abstain, imply both direct and indirect participation in religious manifestations. Anecdotal evidence shows that parents are rarely consulted in the organization of such events, and that in many schools priests and RE teachers (who are theology graduates) engage in a variety of practices without prior formal approval from the principals, much less from the parents. The Ministry of Education refused to issue the order mandated by the NCCD in order to regulate religious manifestations in schools, even without the part that restricted the display of symbols to RE classes. Simply put, parents currently exercise little actual control over their children’s involvement in religious activities at school.102 An outstanding illustration of the point above is how little parents know about changes to the school curriculum in such basic fields as science and the humanities. Before being widely popularized by several secular humanist organizations, changes made to national biology and philosophy curricula to

  Supra note 96.   The Solidarity for Freedom of Conscience, based on figures provided by the Ministry of Education, estimated that religious ceremonies were organized on the occasion of the opening of the school year in over ninety percent of the more than 15,000 schools (in 2005–2006). See SFC, supra note 84, p. 95. 102   Compare to the findings of the European Court in, for instance, Kjeldsen, Busk Madsen and Petersen v. Denmark, supra note 81, paras. 17, 32–33, and 43. 100 101

298  Liviu Andreescu & Gabriel Andreescu bring them in line with religious convictions operated in state schools smoothly and completely under the radar of the public opinion.103 Romania thus had the dubious honour of being the only country in Europe where the teaching of evolution was removed from national biology curricula. Simultaneously, the section on God, containing a presentation of all sides to age-old controversies, was excised from the philosophy curriculum. The range of protests which followed the campaign bringing to the attention of the larger public these ministerial decisions, some 2 years after they were passed, strongly suggests that even though Romanian parents may care, they know little about the religious underside of the instruction their children receive in the nation’s schools. V. Conclusions Numerous commentators interpreted the ECtHR decision as an act of political cop-out. Dominic McGoldrick noted that: if the GC had confirmed the Chamber’s opinion and, in effect, ordered Italy to remove all crucifixes from all classrooms, or at least from all classrooms where any parent or child had objected, that would have been a major ‘constitutional’ ruling for the whole of Europe. In the current political climate there may have been a sustained political opposition to it across Europe and the European Court’s credibility and even its existence may have been under threat. In my view the GC appreciated that and so ruled as it did. Some will therefore view it as a ‘political’ judgment.104

As we ourselves wondered elsewhere, “how trustworthy is a court of final appeal which reverses its own judgments so dramatically (from a unanimous decision in one direction to an overwhelming majority in the reverse direction) within one year?”105 This is not to deny that the Grand Chamber’s decision finds some plausible arguments in the principle of individual states’ legal traditions, respect for which is motivated by the more general value of legal diversity within the Council of Europe. The need to ensure a balance between the sovereignty of member states and the reach of the Court is a real issue whose importance should not be underestimated. On the other hand, the political stability that ensures the smooth functioning of the CoE must not endanger, to quote the European Convention’s preamble, the “profound belief in those fundamental freedoms which are the foundation of justice and peace in the world.” The role of the Convention is that of a supra-national bill of rights which sets thresholds 103  A summary in English is available at (20 December 2011). 104  McGoldrick, supra note 8, p. 502. 105   Andreescu and Andreescu, supra note 6, p. 207.

Passive / Aggressive Symbols in the Public School  299 for the fundamental values in national legal orders.106 The mandate of the ECtHR judges is to keep ‘the profound belief ’ alive while managing the exigencies of this supra-national constitutional document. While the Court’s control over the exercise of freedoms in member states is not total, it also cannot be superficial or remain entirely at the level of principle.107 It makes sense, therefore, to look at the bright side of the European Court’s decision in Lautsi and tease out the positive implications of a ruling that, while occasionally smacking of political evasion, also offers a positive set of standards for religious freedom in state schools. Maintaining the balance between legal diversity and the values of the Convention requires attention to circumstances. In Lautsi v. Italy, the Court made clear, in sketching the outlines of what we have hazarded to call a ‘neutralization test’, that circumstances are crucial in establishing whether the obligatory presence of the crucifix in state schools passes muster. As we have repeatedly emphasized throughout this article, it is essential to see how the Court will operationalize its three-part test requiring religious pluralism in the curriculum, school openness to a variety of religious experiences, and parents’ full right to instruct their children in accordance with their worldviews. As we have shown in the Moise case, a careful, empirically informed examination of the circumstances in Romanian public educational institutions suggests that the Lautsi decision is useful as a guide to the ways in which the display of religious symbols in these state schools violates the rights enshrined in Article 9 of the European Convention and Article 2 of Protocol No. 1.

 Kastanas, supra note 78, p. 252.   This is the point of C.M. Zoethout’s proposal that the ECtHR make use of “European declarations of incompatibility” in cases of violation with no European consensus on the interpretation of the Convention. The declarations would enable the ECtHR “to avoid becoming a court whose decisions are not respected by the Member States and nevertheless to act as a truly supranational court.” C.M. Zoethout, ‘Religious Symbols in the Public School Classroom: A New Way to Tackle a Knotty Problem’, 6:3 Religion & Human Rights (2011), p. 286; see also the extended version of that argument presented by Zoethout in her chapter included in this volume. 106 107

BACK TO THE BASICS OF FUNDAMENTAL RIGHTS: AN APPRAISAL OF THE GRAND CHAMBER’S JUDGMENT IN LAUTSI IN LIGHT OF THE ECHR AND ITALIAN CONSTITUTIONAL LAW Carlo Panara I. Introduction The Grand Chamber of the European Court of Human Rights in Lautsi1 (overturning the earlier judgment of the Second Section2) decided that the legal obligation to affix crucifixes in Italian public schools is not in breach of the European Convention on Human Rights (ECHR). This decision has triggered a great deal of academic debate.3 In the present contribution the Grand Chamber’s ruling will be discussed in light of the principles on civil and fundamental rights and liberties entailed in the ECHR and in Italian constitutional law. This contribution will address the following three questions: – Is a legal obligation to hang crucifixes in public schools a state intervention affecting religious freedom? – If the answer to the previous question is affirmative, is such intervention justified? – Can such intervention be deemed incapable of offending religious freedom (for example for being ‘negligible’ or—as the Grand Chamber claimed in Lautsi—for lack of ‘indoctrination’)? II.  Is a Legal Obligation to Hang Crucifixes in Public Schools a State Intervention Affecting Religious Freedom? Civil rights protect the individual from undue state interference. Religious freedom belongs to this class. This freedom entails the (positive) right to manifest the own religion or belief and the ‘negative’ right not to receive the imposition of a religion or belief. This is true both from the point of view of the ECHR and from the perspective of Italian constitutional law. 1   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (Grand Chamber), No. 30814/06 (Grand Chamber’s decision). 2   Lautsi v. Italy, 3 November 2009, European Court of Human Rights (Second Section), No. 30814/06 (Chamber or Second Section decision). 3   See for example the special 2011 issue (6:3) of the journal Religion & Human Rights.

302  Carlo Panara A.  Religious Freedom as a ‘Negative’ Right in the Case-Law of the European Court of Human Rights In the Kokkinakis case the Court of Strasbourg stated that: [Article 9 ECHR] is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.4

In Buscarini the Court held that “[freedom of religion] entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion”.5 Finally in the overturned Lautsi case (Second Section) one finds the following statement: The negative [religious] freedom is not limited to the absence of religious services or religious instruction. It covers the practices and symbols expressing, in particular or in general, a belief, a religion or atheism. This negative right deserves special protection if the State expresses a belief and if a person is placed in a situation from which he cannot escape or only by an effort and cost that are disproportionate.6

B.  Religious Freedom as a ‘Negative’ Right in the Case-Law of the Italian Constitutional Court Article 19 of the Italian Constitution guarantees religious freedom: Anyone is entitled to freely profess their religious belief in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided they are not offensive to public morality.7

In 1979 the Constitutional Court (overruling an important precedent set in 1960) declared unconstitutional a provision imposing a religious oath on witnesses in criminal proceedings. For the first time the Court recognised ‘negative’ religious freedom:

  Kokkinakis v. Greece, 25 May 1993, European Court of Human Rights, No. 14307/88, para. 31. In this case the Court found that a conviction of a Jehovah’s Witness for improper proselytism was in breach of Article 9 of the ECHR. In the Greek courts it had actually not been adequately demonstrated that the accused had attempted to convince his neighbour by improper means. Therefore the conviction did not appear justified by a pressing social need. 5   Buscarini and Others v. San Marino, 18 February 1999, European Court of Human Rights, No. 24645/94, para. 34. In this case the Court held that the imposition of a religious oath of office on a member of the San Marinese Parliament could not be regarded as ‘necessary in a democratic society’, and was therefore in breach of Article of the 9 ECHR. 6   Lautsi v. Italy, supra note 6, para. 55. The fact that freedom of religion includes ‘negative’ religious freedom has not been questioned by the Grand Chamber. 7   English translation available at the website of the Italian Senate (accessed March 2012). 4

Back to the Basics of Fundamental Rights  303 the Ruling [of the Constitutional Court] No. 58 of 1960 moved from the assumption that … ‘the situation of a non believer fell outside the field of application of Art. 449 [of the Code of Criminal Procedure]’ and of the same Art. 19 of the Constitution, since ‘atheism begins where religious life ends’. However the now prevailing opinion is that the freedom of conscience of non believers falls within the wider scope of religious freedom guaranteed by Art. 19, which [therefore] also guarantees the related ‘negative’ freedom … Even those who include freedom of opinion of non-believers within freedom of expression guaranteed by Art. 21 of the Constitution … ultimately come to the same practical conclusion…8

In 1989 the Constitutional Court held that the non-compulsory character of the teaching of Catholic religion in public schools made it compliant with religious freedom. In its legal reasoning the Court stated that: in relation to the teaching of a particular religion [in Italian public schools] ‘in conformity with the doctrine of the [Catholic] Church’, pursuant to the provisions of paragraph 5, Lit. a) of the Additional Protocol [attached to the 1984 Concordat], the secular State has the duty to ensure that the freedom of Art. 19 of the Constitution [i.e., religious freedom] and the educational responsibility of parents of Art. 30 are not limited … The provision of another subject as a compulsory alternative for those students who choose not to attend lessons of Catholic religion would be a clear discrimination against them. This [other subject] would actually be proposed as an alternative to the teaching of Catholic religion. However the teaching of the Catholic religion is the object of a constitutional freedom which (for its importance and impact on the conscience) cannot be downgraded to a choice between equivalent school subjects. The State is obliged, under the Agreement with the Holy See, to ensure the teaching of Catholic religion. For students and their families [this teaching] is optional; one is only obliged to take this teaching if one freely chooses that option. Those who choose not to take that option face no such obligation. The provision of another subject as a compulsory alternative [to the teaching of Catholic religion] would divert the freedom of conscience from its only aim; the exercise of the constitutional freedom of religion.9

In a later judgment the Court also declared that a student that at the start of the school year chooses not to attend the lessons of Catholic religion is entitled to leave the school while these lessons take place. On this occasion the Court made explicit reference to negative religious freedom (called ‘freedom from religion’): It should be stressed that faced with the State’s offer to the community of citizens of the teaching of Catholic religion, the choice [for the citizen] is between a ‘yes’ and a ‘no’, between an affirmative or a negative option; [between] accepting [that teaching] or not. In this way religious freedom is guaranteed; it consists, under

  Constitutional Court Ruling No. 117 of 10 October 1979, para. 3.   Constitutional Court Ruling No. 203 of 12 April 1989, paras. 8–9.

8 9

304  Carlo Panara this profile, of that affirmative or negative response … The ‘non-obligation status’ [i.e., ‘stato di non obbligo’; that is, the fact that one is not compelled to attend classes of Catholic religion] separates the question of the choice (left with the own conscience) between freedom of religion (or freedom from religion), from [the different problem of] what an individual may expect from a school as an institution.10

In 1995 the Constitutional Court extended the prohibition of reference to ‘God’ to oaths in civil proceedings. The Court stated that: freedom of conscience of non believers [is] the ‘negative’ freedom to profess a faith or a religious opinion. This Court, with Ruling No. 117 of 1979, held that the imposition on all, with no exception, of an oath implying the acceptance of a responsibility before God can produce in non-believers ‘perturbation, conflict with the own conscience, and conflict between the loyalty to the own duties as a citizen and to the own [religious] conviction’. This situation constitutes an unjustified obstacle to the full protection of freedom of conscience as a constitutional value.11

C.  Crucifix as ‘State Interference’ with Religious Freedom It is crucial to determine whether a legal obligation to hang a crucifix in a public school is a state interference with ‘negative’ religious freedom. If the imposition of the presence of a crucifix in a classroom of a public school is a form of ‘state interference’, then (only then) the problem will arise of inquiring whether state action should be deemed ‘justified’ or ‘unjustified’, ‘proportionate’ or ‘disproportionate’. Only if the crucifix is (or is perceived) as a religious symbol (or at least ‘also’ or ‘mainly’ as a religious symbol), its compulsory display in public buildings could potentially interfere with ‘negative’ religious freedom of non-catholic schoolchildren and of their families. Even though it may seem self-evident that the crucifix is a symbol of Catholicism, in a number of cases this point has been debated in courts.12

  Constitutional Court Ruling No. 13 of 14 January 1991, para. 4 (emphasis added).   Constitutional Court Ruling No. 149 of 1995, para. 2 (emphasis added). 12   In the first judgment of the European Court in Lautsi, Lautsi v. Italy, supra note 6, the Italian Government argued that: “The message of the cross would be a humanist message, which could be read independently of its religious dimension, consisting of a set of principles and values that form the basis of our democracies. Since the cross carried this message, it was perfectly compatible with secularism and accessible to non-Christians and nonbelievers, who might accept it since it evokes the distant origins of these principles and values. In conclusion, since the symbol of the cross could be seen as devoid of religious significance, its display in a public place would not in itself affect the rights and freedoms guaranteed by the Convention” (para. 35). 10 11

Back to the Basics of Fundamental Rights  305 D.  Crucifix as a Symbol of Catholicism: the Historical Origins of its Compulsory Display in Italian Public Schools and Courtrooms The obligation to display the crucifix in Italian classrooms predates the unification of Italy. It was imposed by a royal decree issued in the Kingdom of Piedmont-Sardinia (Royal Decree No. 4336 of 15 September 1860). This obligation was consistent with the Albertine Statute of 1848, the constitutional charter that King Carlo Alberto had decreed and pledged to his subjects in the Kingdom of Piedmont-Sardinia. Upon the unification of Italy (1861) the Albertine Statute became the constitutional charter of the newborn Kingdom of Italy. Article 1 of the Statute stipulated that: “Catholicism is the only Religion of the State. The other existing cults are tolerated in accordance with the law”.13 Despite such a solemn declaration, the liberal ruling class which governed Italy from 1861 until the beginning of the fascist dictatorship in 1922, endorsed the secular state. The first prime minister of the Kingdom of Italy, Camillo Benso of Cavour, considered the state and the Catholic Church as mutually independent entities according to the motto ‘libera Chiesa in libero Stato’ (‘free Church within a free State’). Arguably, also the tradition to affix crucifixes in classrooms (and other public establishments) was affected by the anticlerical climate in the years after the unification and by the existence of socialist majorities in a considerable number of municipalities in the years after World War I. This would explain why the fascist minister of education, Giovanni Gentile, as one of the first acts of his office, issued the following Instruction in November 1922: Over the last few years the image of Christ and the portrait of the King have been removed from many primary schools of the Kingdom. This is a manifest and unacceptable violation and it is above all a detriment to the dominant religion of the State as well as to the unity of the Nation. For this reason We instruct all Municipalities of the Kingdom to restore the two crowned symbols of faith and national sentiment in all the schools which do not currently display them.14

In 1926 the obligation to display the crucifix was extended to all public educational institutions: The symbol of our religion, sacred to the faith and to the national sentiment, shall admonish and inspire young students, who prepare their mind and their spirit in the universities and in the high schools for the important duties to which they are destined.15   The translation from Italian is the author’s.  Instruction No. 68 of 22 November 1922 (the translation from Italian is the author’s; emphasis added). 15   Instruction No. 2134-1867 of 26 May 1926 (the translation from Italian is the author’s; emphasis added). 13 14

306  Carlo Panara These measures were confirmed by two royal decrees issued in 1924 and 1928.16 The restoration of the crucifix in classrooms was consistent with the objective pursued by Mussolini to appease the Catholic Church in order to obtain its support for his authoritarian regime. This result was largely achieved on 11 February 1929, when the fascist government and the Holy See signed a concordat known as the Lateran Pacts (Patti Lateranensi). Article 1 of this concordat reaffirmed the old principle of the Albertine Statute: “Italy recognises and reaffirms the principle stipulated by Article 1 of the Albertine Statute of 4 March 1848 according to which Catholicism is the only religion of the State”.17 The Lateran Pacts marked the end of the Church–State separation which had characterised the liberal rule in the Kingdom of Italy from 1861 to 1922. In 1926 the display of crucifixes was made compulsory also in all Italian courtrooms. The obligation to hang the crucifix in courtrooms originates from an instruction issued by Alfredo Rocco, Minister of Justice of the fascist government. This is the text: I command that in the courtrooms, above the judge’s bench and near the portrait of His Majesty the King, be restored the Crucifix, according to our ancient tradition. The venerated symbol shall be solemn admonition of Truth and Justice.18

The historical and political context surrounding the introduction of crucifixes in Italian public schools and courtrooms and the stated rationale for their presence (mending the ‘damage to the dominant religion of the State’, restoring ‘the venerated symbol of Truth and Justice’) demonstrate beyond any doubt that the fascist regime saw the crucifix as a symbol of Catholicism. However the meaning of a symbol may significantly change over time and it could be argued that the crucifix became a symbol of national identity and that it lost its original religious meaning. As it cannot be taken as a given, it still needs to be demonstrated that the crucifix is nowadays still (‘only’, ‘mainly’, or ‘also’) a religious symbol or that it can be reasonably so perceived by a non-Catholic. The following part of this essay will deal with the opinion of the courts on this specific point.

16   Article 118 of Royal Decree No. 965 of 30 April 1924 and Article 119 of Royal Decree No. 1297 of 26 April 1928. The Council of State in 1988 recognised that these provisions are still in force. 17   The translation from Italian is the author’s. 18   Instruction of the Department of Justice No. 2134/1867 of 26 May 1926 (the translation from Italian is the author’s; emphasis added). Following the 1984 New Concordat (abolition of the principle of Catholicism as religion of the State) the Minister of Justice asked the Minister of Interior whether the obligation to display crucifixes in courtrooms still stood (cf. Question of 29 May 1984 Doc. No. 612/1/4). The Minister of Interior answered affirmatively (cf. Memorandum of 5 October 1984 No. 5160/M/1).

Back to the Basics of Fundamental Rights  307 E.  Crucifix as a Symbol of Catholicism: Cases before the European Court of Human Rights Notwithstanding its overruling of the Second Section decision, the Grand Chamber in Lautsi, too, maintained that the crucifix is a symbol of Catholicism: The Court further considers that the crucifix is above all a religious symbol. The domestic courts came to the same conclusion and in any event the [Italian] Government have not contested this. The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive at this stage of the Court’s reasoning.19

In the first Lautsi ruling, the Second Section had delivered a similar statement: “In the opinion of the Court, the symbol of the crucifix has a plurality of meanings among which the religious meaning is predominant.”20 F.  Crucifix as a Symbol of Catholicism: Cases in Italian Courts 1.  Council of State In 1988 the Council of State (the court of last instance on administrative matters) issued an Opinion stating that the obligation to hang crucifixes in public schools had not been impliedly repealed by the 1984 Concordat (known as ‘New Concordat’) between Italy and the Holy See. The New Concordat modified the Patti Lateranensi and abolished the principle that Catholicism is the religion of the Italian State. The Council of State (Second Division) held: This Division holds, in the first place, that the Crucifix or, simply, the Cross, in addition to its [religious] signification for the believers, [also] symbolises Christian civilisation and culture, in its historical origin, as a universal value, [and it is] independent of a particular religious denomination … It also needs to be considered that the republican Constitution, even though it guarantees equal freedom to all religious denominations, does not prohibit in any way the display of a symbol which, like the Crucifix, for the principles it evokes … form part of the historical heritage [of the Nation].21

One can see that these statements attempt to play down the religious meaning of the crucifix to the non-believer. The Council of State is conveying the view that a Jewish person or an atheist would not necessarily see the crucifix as a symbol of Catholicism. At the same time the Council of State concedes that the crucifix must have some religious signification (also) for non-believers. It is   Lautsi and Others v. Italy, supra note 1, para. 66.   Lautsi v. Italy (Second Section), supra note 6, para. 51. 21   Council of State (Second Division) Opinion No. 63 of 27 April 1988 (the translation from Italian is the author’s). 19 20

308  Carlo Panara recognised that the crucifix is a symbol of “Christian civilisation and culture” (which interestingly—and quite worryingly—the Council of State sees as a “universal value”!) and that the principles it embodies are part of the “historical heritage” of the Italian Nation. In 2006 when it decided the Lautsi case (before the case landed in Strasbourg), the Council of State denied the religious meaning of the crucifix in the context of a public school: Quite clearly, the crucifix is in itself a symbol that may have various meanings and serve various purposes, above all for the place in which it has been displayed. In a place of worship the crucifix is properly and exclusively a ‘religious symbol’, since it is intended to foster respectful adherence to the founder of the Christian religion. In a non-religious context like a school, used for the education of young people, the crucifix may still convey the above-mentioned values to believers, but for them and for non-believers its display is justified and possesses a nondiscriminatory meaning from the religious point of view if it is capable of representing and evoking synthetically and in an immediately perceptible and foreseeable manner (like any symbol) values which are important for civil society, in particular the values which underpin and inspire our constitutional order, the foundation of our civil life. In that sense the crucifix can perform – even in a ‘secular’ perspective distinct from the religious perspective specific to it – a highly educational symbolic function, irrespective of the religion professed by the pupils. Now it is obvious that in Italy the crucifix is capable of expressing, symbolically of course, but appropriately, the religious origin of those values – tolerance, mutual respect, valorisation of the person, affirmation of one’s rights, consideration for one’s freedom, the autonomy of one’s moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination – which characterise Italian civilisation. Those values, which have pervaded traditions, a way of life, the culture of the Italian people, form the basis for and spring from the fundamental norms of our founding charter [the Italian Constitution]–contained in the ‘Fundamental Principles’ and the first part–and especially from those [constitutional provisions] which the Constitutional Court referred to and which delimit the form of secularism appropriate to the Italian State. The reference, via the crucifix, to the religious origin of these values and their full and complete correspondence with Christian teachings accordingly makes plain the transcendent sources of the values concerned, without calling into question, rather indeed confirming the autonomy of the temporal power vis-à-vis the spiritual power (but not their opposition, implicit in an ideological interpretation of secularism which has no equivalent in the Constitution) … Those values are therefore experienced in civil society autonomously (and not contradictorily) in relation to religious society, so that they may be endorsed ‘secularly’ by all, irrespective of adhesion to the creed which inspired and defended them. As with any symbol, one can impose on or attribute to the crucifix various contrasting meanings; one can even deny its symbolic value and make it a simple trinket having artistic value at the most. However, a crucifix displayed in a classroom cannot be considered a trinket, a decorative feature, nor as an adjunct to worship. Rather, it should be seen as a symbol capable of reflecting the remarkable sources of the civil values

Back to the Basics of Fundamental Rights  309 referred to above, values which define secularism in the State’s present legal order.22

This long statement is quite complex. The Council of State distinguishes the meaning of the crucifix in a religious context (a place of worship) and in a secular context (a public school). In a church the crucifix has a religious meaning, in a public school (whilst it still remains a ‘religious symbol’ for believers) it has a “highly educational symbolic function” for both believers and nonbelievers. According to the Council of State, Catholicism is the source of the most important values of “Italian civilisation”: ‘tolerance’, ‘mutual respect’, ‘valorisation of the person’, ‘affirmation of one’s rights’, ‘consideration for one’s freedom’, ‘autonomy of one’s moral conscience vis-à-vis authority’, ‘human solidarity’, and ‘refusal of any form of discrimination’. These values are seen as the basis of the Italian Constitution and also of the ‘form of secularism appropriate to the Italian State’. In Italy there is ‘autonomy of the temporal power vis-à-vis the spiritual power’ but no ‘opposition’ between the two. Given their ‘religious origin’ and ‘their full and complete correspondence with Christian teachings’, the above-mentioned values are well symbolised by the crucifix and ‘may be endorsed by all’, irrespective of their religious creed. In conclusion, the crucifix in a public school should be seen as an ‘educational symbol’ reflecting the basic principles of ‘Italian civilisation’ and the ‘sources of the civil values’ of the Italian legal order (including the specific form of secularism suitable to the Italian state). This conclusion is quite interesting insofar as (far from depicting it as a ‘trinket’ or a ‘passive symbol’) it emphasises the educational effect of the crucifix on schoolchildren. The Council of State took it as a given that nonbelievers would fail to see the crucifix as a ‘religious symbol’ if placed outside places of worship. The Council of State also took it as a given that a schoolchild would read in the crucifix civil values as complex as ‘tolerance’, ‘valorisation of the person’, ‘refusal of any form of discrimination’, rather than perceiving the religious meaning it conveys. In a more recent Opinion the Council of State rejected the request to remove crucifixes filed by the association Unione degli Atei e Agnostici Razionalisti (Union of Atheists and Rationalist Agnostics). However, on this occasion the Council of State conceded that the crucifix is ‘also’ a religious symbol: The crucifix is, in fact, also a historic and cultural landmark. It represents a sign of national identification. Along with other forms of collective life and thought, it represents one of the formation pathways of our Country and in general of most of Europe (some national flags in the North of Europe contain the symbol of the   Council of State (Sixth Division) Ruling No. 556 of 13 April 2006, para. 3 (this is the English translation used in the Lautsi case before the European Court of Human Rights). 22

310  Carlo Panara cross … whose Christianity or Catholicism cannot be deleted, first of all as a sociological fact, by the aforementioned principle of secularism … However, admittedly the crucifix cannot, in our time, not even in the context of education, be considered as a simple historical and cultural symbol, and must be also seen as a religious symbol … To this purpose it has to be pointed out that the cross must be understood as a symbol of Christianity, not only of Catholicism. [The cross] therefore summarises not only Catholicism but also the values of a number of other Christian denominations existing in our Country (Waldensians, Orthodox, Evangelical, etc.). In sum, the cross is a symbol in which a number of religious denominations following the teaching of Jesus Christ can identify themselves and, in a sense, [a symbol] which is a sign of their common denominator; as a consequence, it can, what is more, it must, be excluded that [Jesus Christ] could be attached to [only] one particular Christian denomination, not even Catholicism. If, therefore, the cross is the distinguishing sign of a plurality of Christian denominations, the recognition [of this fact] is capable of demonstrating its non-conflicting position with the principles of secularism [sic], which, as said, presuppose pluralism and a non confessional state.23

In the following part of the judgment the Council of State reaffirmed that the crucifix symbolises a number of constitutional principles stemming from Christian teaching. Quite controversially, the Council of State included secularism of the state among these principles: Conversely, the influence that the Christian teaching, which focuses on the values of human dignity, had in the formation of modern and secular States must not go unmentioned. It is well-known that in the drafting of our republican Constitution and in establishing the principles of secularism [sic] of the State entailed in it, the cultural element of Christian inspiration has been decisive (along with the Marxist and the liberal [element]), for generating freedom and democracy. The ideological link between Christianity and the modern State implies a historical chain of events through which, despite standstills, breaks and degenerations (Inquisition, anti-Semitism, crusades, etc.), one can see the principle of human dignity, tolerance, freedom (including religious freedom) and, ultimately, the foundation of the secular State. In light of the above one may correctly maintain that, in the current social setting, the crucifix is to be regarded not only as a symbol of a historical and cultural evolution, and therefore [as a symbol] of the identity of our people, but also as a symbol of a system of values, [such as] freedom, equality, human dignity and religious tolerance, and, accordingly, also of the secular State; [all values] which are expressly recognised in our Constitution. In other terms, the constitutional principles of freedom have many roots, and one of them certainly is Christianity. It appears therefore inconsistent with the very origins of our Constitution, and with the feelings of our people, to exclude a Christian sign from a public establishment in the name of secularism, [that is a principle] which indeed has one of its distant sources in the Christian religion.24

23  Council of State (Assembly of the Second Division) Opinion of 15 February 2006, paras. 3–4 (the translation from Italian is the author’s). 24   Ibid., para. 5.

Back to the Basics of Fundamental Rights  311 Once again (like in the Lautsi judgment) the Council of State emphasised the ‘educational’ character of the crucifix: In essence, at the present time, whilst there are no actual elements of concrete discrimination to the detriment of non-Catholic [schoolchildren], the crucifix in the classroom has, for its part, a formative value that is incapable of limiting in any way the aforementioned freedoms. [The crucifix] can and should be rather understood as one of the symbols of the principles of freedom, equality and tolerance, and ultimately of the secular State, [which constitute] the foundation of our living together and form part of the legal, social and cultural heritage of Italy. It does not seem inappropriate to point out in this regard, that the symbol of the crucifix, understood in this way, gains at the present time, by recalling the values of tolerance and solidarity contained in it, a particular meaning. [It needs to be considered] that the Italian public school is currently attended by a large number of non-EU schoolchildren, who need to be taught those principles of openness to diversity and refusal of any form of fundamentalism (be it religious or secular) which permeate our legal system. We live in a time of tumultuous exchange with other cultures, and, in order to prevent it from turning into a clash, it is essential that we also symbolically reaffirm our identity, which is characterised by the values of respect for the dignity of every human being and universality of solidarity.25

These excerpts show how the religious meaning of the crucifix has been considerably watered down—albeit not being completely denied—by the Italian Council of State. According to the Council, the crucifix symbolises fundamental principles of the Italian Constitution (including secularism), and for this reason they cannot be held to infringe on the religious freedom of anyone. At the same time a great deal of emphasis has been put on the ‘educational’ role of the crucifix. Indeed, the crucifix is seen as capable of delivering an important message of tolerance and openness to non-Catholic children. I shall come back to this last point. 2.  Court of Cassation In 2000 the Court of Cassation (the court of last instance on civil and criminal matters) issued an important ruling in the case of Montagnana. As prescribed by law, Marcello Montagnana had been randomly recruited to work as a secretary at a polling station during the 1994 election of the Italian Parliament. However, he refused to perform his duties in protest against the presence of crucifixes in polling stations (there is no law specifically imposing the display of crucifixes in polling stations, but these are often provisionally set up in public schools). The Court acquitted the defendant from the charge of unjustified refusal to perform official duties. In this ruling the Court recognised that the crucifix is a religious symbol of Catholicism:   Ibid., para. 6.

25

312  Carlo Panara Indeed, the ‘return’ with the advent of the fascist regime of the crucifix in classrooms of primary schools (Instruction of the Ministry of Education of 22 November 1922) and later in any school of any category and level (Instruction of Ministry of Education of 26 May 1926), as well as in offices of administrative authorities in general (Order of the Ministry 11 November 1923 No. 250) and in courtrooms (Instruction of the Ministry of Justice 26 May 1926 No. 2134/1867), is commonly indicated by historians and legal scholars as one of the most obvious symptoms of a ‘neo-confessional’ State. This emerges, for example, from the Instruction of 26 May 1926, according to which [the display of the crucifix] aims to ensure that ‘the symbol of our religion, sacred to the faith and to the national sentiment, shall admonish and inspire young students, who prepare their mind and their spirit in the universities and in the high schools for the important duties to which they are destined’.26

The Court strongly criticised the view that the crucifix could be seen as a symbol of ‘Italian civilisation’ or of the ‘collective ethical conscience’: Neither is tenable the justification linked to the value [of the crucifix] as the symbol of an entire civilisation or of the collective ethical conscience and, therefore, according to a later opinion of the Council of State 27 April 1988, No. 63, ‘as a universal value, independent of a particular religious denomination’. Quite the opposite, in another Member State of the European Union it was held that it is a sort of ‘profanation of the cross’ not considering this symbol in connection with a specific belief (cf. German Federal Constitutional Court, 16 May 1995, which declared unconstitutional the mandatory display of crucifixes in classrooms in Bavaria for the influence [they produce] on schoolchildren required to attend classes during which they are continuously faced with that religious symbol).27

The Court also held that in the context of a secular state the neutrality of the place where voters cast their ballots needs to be ensured. This neutrality would be irremediably compromised by the display of a religious symbol. In the words of the Court, “[the requirement of neutrality of the polling station] is irreconcilable with exclusions [of other religions and ideologies] and with the indirect influence induced by … the representation of the content of a faith as symbolised by a religious image”.28 As a result the display of the crucifix would originate “an inner conflict between the civil duty to perform a public office and the moral duty to comply with a command of the own conscience on the need to ensure secularism and impartiality of that office”.29

26   Court of Cassation (Fourth Criminal Division) Ruling No. 439 of 1 March 2000, para. 6 (the translation from Italian is the author’s). 27   Ibid., para. 7. 28   Ibid., para. 6. 29   Ibid., para. 8.

Back to the Basics of Fundamental Rights  313 G.  Leading Cases in Other National Courts 1. Germany In 1995 the German Federal Constitutional Court declared the invalidity of the Bavarian elementary school regulation imposing the display of crucifixes in Bavarian public schools.30 In this judgment—known as ‘Kruzifix-Urteil’ (‘ruling on the crucifix’)—the Federal Constitutional Court held that: The cross is a symbol of a particular religious conviction and not merely an expression of Western culture marked by Christianity … The cross is still one of the specific faith symbols of Christianity. It is indeed its very symbol of faith. It symbolises the redemption of the man from the Original Sinn accomplished through the sacrifice of Christ, but also the victory of Christ over Satan and Death together with his dominion over the world; suffering and triumph at once … For a believing Christian [the cross] is therefore in many ways an object of reverence and piety … If … one wanted to interpret [the cross] as a mere expression of the Western tradition or as a sign of faith without specific reference to a [particular] religious belief, this would amount to a profanation of the cross [which would be] at odds with the way Christianity and Christian churches understand themselves.31

The Court found the Bavarian regulation on the crucifix in breach of Article 4, first para. (“Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable”), and Article 6, second para. (“The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them”) of Germany’s Basic Law.32 2. Switzerland In 1990 the Federal Tribunal decided an important case on the display of crucifixes in public schools.33 The case originated from the decision of the 30   Federal Constitutional Court Ruling of 16 May 1995 (published in Entscheidungen des Bundesverfassungsgerichts [hereafter BVerfGE], Vol. 93, p. 1 et seq.). This judgment declared the unconstitutionality of s. 13.1 of the Bavarian elementary school regulation of 1983, stating: “In jedem Klassenzimmer ist ein Kreuz anzubringen” (in each classroom shall be placed a cross). 31   Cf. BVerfGE Vol. 93, at pp. 19–20 (the translation from German is the author’s). 32   On the Kruzifix-Urteil, see the critical remarks by Juliane Kokott, who maintains that this judgment of the Federal Constitutional Court is based on a concept of secularism, which would be appropriate in France or in the United States but which does not reflect the German constitutional tradition. Cf. J. Kokott, ‘Comment to Art. 4 of the Basic Law’, in M. Sachs (ed.), Grundgesetz Kommentar (Munich: C.H. Beck, 2009), pp. 237–274, at 247 et seq. Cf. also D. Zacharias, ‘Schutz vor Religiösen Symbolen durch Art. 4 GG? Ein Beitrag zu den Negativen Religiösen Freiheitsrechten’, in S. Muckel (ed.), Kirche und Religion im Sozialen Rechtsstaat. Festschrift für Wolfgang Rüfner zum 70. Geburtstag (Berlin: Duncker & Humblot, 2003) pp. 987–1007. 33   Federal Tribunal Ruling of 26 September 1990 in the case Comune di Cadro v. Guido Bernasconi. The Italian text of this ruling is available at (accessed March 2012).

314  Carlo Panara Municipality of Cadro to affix crucifixes in the classrooms of the local primary school. The Tribunal held this measure to be in breach of the principle of state secularism. The Tribunal stated that: The fact that the public authority decided to hang crucifixes in classrooms could be understood as an affection to the tradition and the Christian foundations of Western civilisation and culture. One could therefore think that this decision– based on totally understandable reasons–does not violate the religious neutrality of teaching: it would only testify a certain sensitivity of the state for religion and Christian civilisation. The State as guarantor of religious neutrality of the school (as established at Art. 27(3) of the Constitution) cannot avail itself of the right to demonstrate in any circumstance, when teaching is delivered [in public schools], its attachment to a [particular] religious denomination. It [the State] must not identify itself with a religion (irrespective of whether this is the confessional vessel of the majority or of a minority) because this would undermine the convictions of the citizens with a different religion. It can be argued that those who attend public schools may see in the crucifix the expression of the intention to adopt Christianinspired teaching methods or to place the teaching under the influence of that religion. Some people may feel that their religious beliefs are infringed by the stable presence in the school of a symbol of a religion they do not belong to. This may have serious consequences especially on the spiritual development of the schoolchildren and their religious beliefs–which [until the age of 16] are those of their parents– … [These] are exactly the consequences that Art. 27(3) of the Constitution aims to avoid.34

3. Spain In Spain the display of crucifixes in schools is not imposed by any legal provision. However, crucifixes can be found sometimes in the classrooms of public schools. In 2008 the Administrative Court of Valladolid ruled on the complaint filed by a father against the presence of crucifixes in the public school attended by his child. The Court held that the display of crucifixes in public schools infringed Section 16(3) of the Spanish Constitution (“Ninguna confesión tendrá carácter estatal”, that is, “no religion shall have state character”),35 as well as the religious freedom of the pupils and of their parents. On this basis the Court ordered the removal of all the crucifixes from that school. The Court 34   Ibid., para. 32 (the translation from Italian is the author’s; emphasis added). The 1874 Constitution has been replaced by the 1999 Constitution. Interestingly, the Federal Tribunal declared that its reasoning is the same as that of the US Supreme Court in Stone v. Graham, 49 US 39 [1980]. In this famous case, the Supreme Court had held that a Kentucky statute requiring the posting of a copy of the Ten Commandments on the wall of all public classrooms of the state was unconstitutional. Note that art. 27.3 of the Swiss Constitution of 1874 stipulates: “It shall be possible for the adherents of all religious beliefs to attend public schools without being affected in any way in their freedom of belief or conscience”. The text of the 1874 Constitution is included in English translation in the ICL database, available at (accessed March 2012). 35   The translation from Spanish is the author’s.

Back to the Basics of Fundamental Rights  315 held that the crucifix still maintains a religious connotation: “the crucifix has a religious connotation, although it may also have others; i.e. it did not lose its religious connotation even if it may have acquired others”.36 In appeal, the Supreme Court of Justice of Castilla y León partially reformed the first instance decision. The Court overturned that decision in relation to the general removal of all crucifixes from the school. The Court held that crucifixes had to be removed only from the classrooms attended by those pupils whose parents challenged their presence. This means that a crucifix will be obligatorily removed only if one or more parents complain against its presence in their children’s classroom (or in common spaces within the school).37 In light of the above analysis it is possible to conclude that the crucifix is ‘mainly’, or ‘also’ (if not exclusively), a symbol of Catholicism. Its compulsory display in public schools is therefore a form of state interference with the ‘negative’ religious freedom of schoolchildren and of their families. It still remains to be seen whether this interference is justified or not. III.  Is State Interference Justified in this Case? Any state intervention limiting fundamental civil rights and liberties (including the crucifix in the public school) must find a basis in the European Convention of Human Rights; and, in our case at hand, in the Italian Constitution. I will demonstrate that no justification is provided for by the ECHR, or the Italian Constitution, which could authorise such intervention. A.  European Convention of Human Rights Article 9(2) of the ECHR provides that under exceptional circumstances religious freedom can be limited: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” It is apparent from the text of Article 9(2) ECHR that it is the right to manifest one’s religion or belief that can be limited, provided that a

36   Administrative Court (No. 2) of Valladolid Ruling No. 288 of 14 November 2008 (the translation from Spanish is the author’s). 37   Supreme Court of Justice of Castilla y León Ruling No. 3250 of 14 December 2009. More recently the Spanish Constitutional Court decided an interesting case on secularism whose outcome partly goes against the view held in this paper (cf. Ruling No. 34/2011 of 28 March 2011). It was the claim of a lawyer from Seville who challenged the traditional use by the Seville Bar Association of the Virgin of the Immaculate Conception as their patron. The Court upheld the constitutionality of the Bar Association statute mainly on the ground that such patronage is nowadays only a secular tradition and has no religious meaning.

316  Carlo Panara restriction is ‘prescribed by law’ and is ‘necessary in a democratic society’. However, those who complain against the compulsory display of the crucifix in public schools, are not limited in their right to manifest their religion or belief. They rather complain against a manifestation of a religious belief by the state, which they perceive as an odious imposition. For this reason the qualifications provided for at Article 9(2) ECHR are not applicable to this situation, or at least not the most suitable. The position of those who ask for the removal of the crucifix must therefore be traced back to the first para. of Article 9 ECHR: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” It is clear from the wording of this legal provision that ‘freedom of thought, conscience and religion’ is absolute, in the sense that they cannot be limited by the state and in principle (under the ECHR) no state intervention can be tolerated in that area. It is remarkable that in the Lautsi case the defendant, the Italian Government, did not even attempt to argue that the crucifix is ‘necessary in a democratic society’: “The Government does not maintain that it is necessary, appropriate or desirable to maintain the crucifix in classrooms, but the choice of keeping it or not is political and therefore subject to the criteria of opportunity and not of legality”.38 Interestingly, in order to ‘rescue’ the Italian legislation on the display of crucifixes in public schools, the Grand Chamber had no choice but to refer to the ‘margin of appreciation’ of the member states of the Council of Europe. 68. The Court takes the view that the decision whether or not to perpetuate a tradition [the presence of crucifixes in public school classrooms] falls within the margin of appreciation of the respondent State … 69. The fact remains that the Contracting States enjoy a margin of appreciation in their efforts to reconcile exercise of the functions they assume in relation to education and teaching with respect for the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. That applies to organisation of the school environment and to the setting and planning of the curriculum … The Court therefore has a duty in principle to respect the Contracting States’ decisions in these matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination … 70. The Court concludes in the present case 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 … This margin of appreciation, however, goes hand in hand with European supervision … the Court’s task in the present case being to determine whether the limit mentioned in paragraph 69 above [indoctrination] has been exceeded. 71. In that

  Lautsi and Others v. Italy, supra note 1, para. 42.

38

Back to the Basics of Fundamental Rights  317 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…39

Such emphasis on the concept of ‘margin of appreciation’ raises the question of whether the display of the crucifix in public school classrooms is justified at least under Italian constitutional law. Indeed, the fact that the provisions on the crucifix escape the rigour of the ECHR, does not in itself imply that the practice is lawful under Italian constitutional law. B.  Italian Constitution The display of crucifixes in Italian public schools is not required by the agreements governing the State-Church relationship. Article 7 of the Constitution stipulates: (1) The State and the Catholic Church are independent and sovereign, each within its own sphere. (2) Their relations are regulated by the Lateran Pacts. Amendments to such Pacts which are accepted by both parties shall not require the procedure of constitutional amendments.40

In the 1984 Concordat there is no provision on the crucifix (nor did the 1929 Patti Lateranensi entail a similar provision). Quite the opposite, the 1984 Concordat repealed the obsolete principle (which is to be traced back to the Albertine Statute) of Catholicism as the religion of the Italian state. The statement in Article 9(2) of the 1984 Concordat on the importance of Catholicism for Italian culture and history is the mere recognition of the sociological importance of Catholicism and, whilst it stipulates the (optional) teaching of Catholic religion in public schools, it cannot raise an obligation to hang crucifixes in public schools: The Italian Republic, recognising the value of religious culture and taking into account that the principles of Catholicism are part of the historical heritage of the Italian people, will continue to ensure, within the framework of the aims of public education, the teaching of the Catholic religion in all public schools at all levels with the exception of universities. In the full respect of the freedom of conscience and of the educational responsibility of the parents, everyone is guaranteed the right to choose whether or not to take advantage of that teaching.41   Ibid., paras. 68–71.   English translation of the Italian Constitution available at , website of the Italian Senate (accessed March 2012). 41   Article 9(2) of the 1984 Concordat. 39 40

318  Carlo Panara Religious freedom is protected by Article 19 of the Italian Constitution: “Anyone is entitled to freely profess their religious belief in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided they are not offensive to public morality”.42 From this constitutional provision it clearly emerges that the sole qualification of freedom of religion applies to the right to celebrate rites, which cannot be ‘offensive to public morality’. Apart from this particular scenario (celebration of rites), it remains that “anyone is entitled to freely profess their religion in any form … and to promote them” and that no legal basis is provided for state intervention in the field of the freedom to have a religion. However, the Italian Constitution makes it possible for the state legislature to introduce restrictions to fundamental rights, provided that these find their justification in the general clause of Article 2: The Republic recognises and guarantees the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed. The Republic expects that the fundamental duties of political, economic and social solidarity be fulfilled.43

In theory, religious freedom (like any other fundamental freedom) could be limited in order to ensure the fulfilment of ‘the fundamental duties of political, economic and social solidarity’. It therefore needs to be ascertained whether the display of the crucifix finds a justification in any of these ‘duties’. By using the expression ‘fundamental duties’ (‘doveri inderogabili’) Article 2 refers in the first place to certain duties provided for by the Constitution.44 These are: – the duty to perform a job or a function that contributes to the material or spiritual progress of society (Article 4.2); – the exercise of the right of vote as a ‘civic duty’ (Article 48.2); – the duty to defend the country (Article 52.1) and the obligatory character of the military service (Article 52.2); – the duty to contribute to public expenditure in accordance with the own capability (Article 53.1); – the duty to be loyal to the Republic and to observe its Constitution and laws (Article 54.1); – the duty of those citizens to whom public functions are entrusted to fulfil such functions with discipline and honour, taking an oath in those cases established by law (Article 54.2).

  Italian Constitution, supra note 40.   Italian Constitution, supra note 40 (emphasis added). 44   Cf. P. Caretti, I Diritti Fondamentali. Libertà e Diritti Sociali (Torino: Giappichelli, 2002), at p. 419 et seq. 42 43

Back to the Basics of Fundamental Rights  319 None of the aforementioned constitutional duties requires the display of religious symbols in public schools. Even if one takes the view that the category of ‘duties of political, economic and social solidarity’ is open-ended, and that there are also other constitutional duties which may legitimise a restriction to fundamental rights, such restriction still needs to find its justification in a vital constitutional interest.45 Indeed, Article 2 of the Italian Constitution entails one of the fundamental principles of the Italian legal order. This is the ‘personalist principle’ (‘principio personalista’), according to which the human being, that is, the ‘person’, is at the centre of the legal order. In other terms the state exists for the person and not the opposite.46 The Council of State developed the idea that the crucifix has an important ‘educational value’, insofar as it symbolises some important constitutional principles (tolerance, mutual respect, valorisation of the person, affirmation of one’s rights, consideration for one’s freedom, the autonomy of one’s moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination).47 Even if one accepts that the crucifix (in addition to its Catholic connotation) also has such nonreligious ‘educational’ meaning, one would still have to demonstrate that the sacrifice imposed on a right by this alleged ‘duty to be educated’ is sustainable, that is, ‘proportionate’. This last point will be addressed in the next para. IV.  Is State Intervention ‘Proportionate’? The display of a crucifix may offend the religious sentiment of those who are exposed to it, insofar as they could get the impression that their religious or philosophical convictions are less important than that portrayed on the classroom’s wall, or insofar as they may feel that the state is proselytising and promoting that particular religious belief. This type of offence affects the ‘forum internum’ of the individual concerned. For Malcom Evans the scope of the ‘forum internum’ is relatively narrow and as long as an individual is able to continue in their beliefs, Article 9(1) is not violated.48 Carolyn Evans, whilst admitting that there are more subtle ways in which a state may interfere with one’s ‘forum internum’, holds the opinion that a state would have to act very repressively before the Court of Strasbourg will find that they have improperly 45   Cf. E. Rossie, ‘Comment to Art. 2 of the Constitution’, in R. Bifulco et al. (eds.), Commentario alla Costituzione (Torino: UTET, 2006), pp. 38–64, at p. 55 et seq. 46   Cf. C. Mortati, Istituzioni di Diritto Pubblico: Vol. I (Padova: CEDAM, 1975), p. 155. See also Constitutional Court Ruling No. 167 of 10 May 1999, where the Court held that the personalist principle “establishes the development of each individual person as the ultimate goal of the social organisation” (para. 6). 47   Council of State (Sixth Division) Ruling No. 556 of 13 April 2006, para. 3. 48   Cf. M. Evans, Religious Liberty and International Law in Europe (Cambridge: CUP, 1997), p. 295.

320  Carlo Panara interfered with someone’s ‘forum internum’.49 Along the same lines, the Grand Chamber in Lautsi rebutted the suggestion that the display of crucifixes could entail a relevant offence to negative religious freedom. Indeed, according to the European Court, the lack of ‘indoctrination’ (that is, the fact that the crucifix is not the subject of teaching and it does not require acts of worship) prevents the mere display of that symbol (seen as a ‘passive’ symbol) from becoming a restriction to religious freedom. The conclusion of this reasoning is that the simple offence to the religious sentiment of the schoolchildren and of their families is not protected under the ECHR. In her concurring opinion Judge Ann Power explained that: The first applicant may have taken offence at the presence of a crucifix in classrooms but the existence of a right ‘not to be offended’ has never been recognised within the Convention. In reversing the Chamber’s judgment, the Grand Chamber does no more than confirm a body of settled jurisprudence (notably under Article 10) which recognises that mere ‘offence’ is not something against which an individual may be immunized by law.50

The same opinion had been previously held by the Italian Council of State: The breach of the principles of religious freedom and [of freedom] of teaching remain to be considered. As already mentioned, it is undeniable that even today the symbol of the cross can be given different interpretations: first of all a strictly religious [interpretation], as [a symbol] associated with Christianity in general and Catholicism in particular. The observation can be accepted that some pupils attending the public school may freely and justifiably ascribe to the cross the meaning of an intolerable preference for one religion over others, that is, of a breach of individual freedom and of the principle of state secularism. However, despite all these being respectable opinions, they are ultimately not relevant to the present case, although the claimant invokes the principle of ‘protection from exposure’ stated by the German Federal Constitutional Court in the aforesaid judgment of 16 May 1995. The individual right of religious freedom consists of the right to profess the own religious beliefs in an individual and collective manner, the right to practise the own religion in private and in public, the right to divulge and proselytise, to manifest the own faith, [the right] of reunion with others and to communicate for religious purposes: in sum, [the right] to exercise all constitutional freedoms which apply to the religious sphere. However, the protection cannot extend to the psychological sphere, that is, the dimension of the individual conscience and feelings, which lead to the recognition of a right to a sterile environment, where all are preserved from receiving messages which clash with their feelings and sensitivity. If this was the case, and such environment was not established by public authorities, everyone who felt offended by messages, symbols, opinions, or manifestations clashing with his personal feelings, could feel entitled to react by

49   Cf. C. Evans, Freedom of Religion under the European Convention of Human Rights (Oxford: OUP, 2001), p. 72 et seq. 50   Concurring Opinion by Judge Power to Lautsi and Others v. Italy (emphasis added).

Back to the Basics of Fundamental Rights  321 adopting behaviours denoting intolerance and reaction, by so doing denying the same freedom he had invoked.51

Other courts disagree with this conclusion. In the Kruzifix-Urteil the German Federal Constitutional Court held that it is indeed true that no prayer or other acts of worship have to be addressed to the crucifix and that the mere presence of crucifixes does not in itself entail doctrinal teaching of Christianity. However, the crucifix may have a significant influence on very young people who are in the early stage of their intellectual development: School education is not only for learning essential cultural techniques and for developing cognitive skills. It should also unfold the emotional and sentimental disposition of the schoolchildren. School activities are designed to develop their personality in order to comprehensively promote and especially influence the social behaviour. It is in this context that the cross obtains its significance in the classroom. It has a suggestive character and presents the belief it symbolises as exemplary and worthy of being followed. Moreover, this happens in relation to persons who, due to their young age, have not yet achieved stable views, have yet to develop critical skills and the capacity for developing their own opinions and whose mind can for that reason be easily influenced.52

Along the same lines, the Swiss Federal Tribunal in Comune di Cadro (1990) held: It is therefore conceivable that those who attend a public school may see in the exposition of this symbol [= the crucifix] the will to build on concepts of the Christian religion in the area of teaching or to place teaching under the influence of this religion. It cannot be excluded that some people may feel hurt in their religious convictions because of the constant presence in the school of a symbol of a religion in which they do not believe. This may have considerable consequences on the spiritual development especially of those students and on their religious beliefs (which are those of their parents) according to which they are brought up during the time they attend the school. These are indeed the consequences that Art. 27(3) Const. [on the confessional neutrality of the public school] aims to avoid. It must be noted that these reflections coincide in practice with those which led the Supreme Court of the United States of America to declare that the display of the Ten Commandments in the classrooms [in Kentucky] was in breach of the freedom of belief guaranteed by the First Amendment to the Constitution (Stone vs. Graham [per curiam], 449 US 39/1980 …).53

In Italy the Court of Cassation took a stance different from the Council of State. In the case Montagnana (2000) the Court held the display of crucifixes in 51   Council of State (Assembly of the Second Division) Opinion of 15 February 2006, para. 6 (the translation from Italian is the author’s; emphasis added). 52   Cf. BVerfGE Vol. 93, at p. 20 (the translation from the German is the author’s; emphasis added). 53   Federal Tribunal Ruling of 26 September 1990 in the case Comune di Cadro v. Guido Bernasconi, para. 7 (the translation from Italian is the author’s; emphasis added).

322  Carlo Panara Italian polling stations to be in breach of the ‘freedom of conscience’ of a secretary at a polling station (i.e., of a public official): From the beginning … the risk … of a serious perturbation to his conscience due to an inner conflict between the civil duty to perform a public office and the moral duty to comply with a command of the own conscience on the need to ensure secularism and impartiality of that office had been flagged up [by the defendant public official] … Freedom of conscience, indeed, is a ‘good of constitutional relevance’ (cf. Ruling of the Constitutional Court No. 409 of 18 July 1989) and, as such, ‘has to be protected in a way which is proportionate to the absolute priority and the fundamental character which are conferred on it in the hierarchy of values laid down by the Italian Constitution’ (cf. Ruling of the Constitutional Court No. 149 of 5 May 1995, that recalls Ruling No. 467 of 19 December 1991). Religious freedom is a manifestation of [freedom of conscience]: ‘freedom of conscience in relation to religious experience’ (cf. Ruling No. 334 of 8 October 1996). It follows that this freedom has to be protected to the maximum extent compatible with [the protection of] other goods of constitutional relevance and endowed with an equally fundamental character …54

This is certainly an important ruling; however, it needs to be pointed out that the described ‘inner conflict’ was between the ‘civil duty’ to perform a public office and the ‘moral duty’ to ensure ‘state secularism’ and ‘impartiality’ of that office. It is open to discussion whether this important precedent would automatically apply to the situation of someone who is not a public official.55 An important judgment on the crucifix in classrooms of public schools (albeit delivered by a lower court) is a reasoned order issued by the Tribunal of L’Aquila in the Smith case (per Judge Montanaro). The Tribunal ordered the removal of the crucifix from the classrooms of a public school in Ofena attended by the two children of an Italian citizen of Muslim religion.56 Judge Montanari held that the display of the crucifix is a serious infringement on the religious freedom of the children and is incompatible with the requirements of a multicultural society. He stated: Since we are talking about a public school [the display of the crucifix] is an expression of the unequivocal intention by the State to place Catholicism ‘at the centre of the universe, as an absolute truth, without respect for the role of other religious and social experiences in the historical process of human development and with 54   Court of Cassation (Fourth Criminal Division) Ruling No. 439 of 1 March 2000, para. 8 (the translation from Italian is the author’s). 55   The Court of Cassation (United Divisions) Ruling No. 5924 of 14 March 2011 departed from this precedent in a case relating to a judge who refused to hold hearings under the crucifix. On this case, see C. Panara, ‘Another Defeat for the Principle of Secularism: Recent Developments on the Display of the Crucifix in Italian Courtrooms’, 6:3 Religion & Human Rights (2011), pp. 259–265. 56   Tribunal of L’Aquila (Civil Division) Order of 23 October 2003. On this case, see C. Panara, ‘Lautsi v. Italy: the Display of Religious Symbols by the State’, 17:1 European Public Law (2011), pp. 139–168 at 152 et seq.

Back to the Basics of Fundamental Rights  323 a total disregard for the [existence of] obvious relations between these experiences and their mutual influence’ … In actual fact the presence of crucifixes in classrooms conveys an implicit loyalty to values which are not really common heritage to all citizens. [I]t assumes an homogeneity [within the society] that in reality has never existed and that above all does not exist today, but that [the imposition of the crucifix] clearly endeavours to create. [The required display of crucifixes at school] imposes a religious education that becomes compulsory for all given that [unlike the teaching of catholic religion in public schools] one is not allowed to be exempted from it. [T]his situation marks the public institution ‘school’ in a confessional way and very strongly diminishes its pluralist image.57

In a way that is reminiscent of the reasoning of the German Federal Constitutional Court in the Kruzifix-Urteil, he also added that “whereas an adult—in theory—is less affected by the influence of a culture, youths, and above all pupils of primary and middle school, given the fact that they still lack solid opinions, tend to give that religious symbol the meaning which immediately belongs to it”.58 On this basis, the Tribunal held that crucifixes should be banned from public schools. Given that [this dispute around the crucifix] does not only concern religious freedom of pupils, but also the neutrality of a public institution, one cannot envisage an implementation of the principle of secularism (and therefore of religious freedom of citizens) ‘on request’ [from parents who do not want their children to be taught ‘under the cross’]. On the contrary [this neutrality] must be inherent to the way the public administration works.59

There is widespread consensus (in the European Court, in Italian courts, and in other national courts) around the fact that the crucifix is (also, if not only) a religious symbol. That being the case, as outlined before, its compulsory display in public schools is a state intervention in the sphere of religious freedom. The suggestion that this intervention could be ‘negligible’, and therefore ‘proportionate’, and should be therefore left within the ‘margin of appreciation’ of the states, does not appear convincing. Indeed, any state intervention affecting religious freedom, even if it does not produce (or aims to produce) ‘indoctrination’, would require a solid legal justification. As demonstrated above, there is no such justification under the ECHR or under Italian constitutional law, unless one accepts the highly questionable and totally subjective ‘educational’ value of the crucifix. As demonstrated, the Italian Government itself argued before the Court of Strasbourg in the first Lautsi case that the display of the crucifix is the result of a political choice of Italian authorities. This implies that even according to the Government the display of crucifixes in public schools is not required by the Constitution.   Ibid., para. 5.   Ibid., para. 5.1. 59   Ibid., para. 5. 57 58

324  Carlo Panara If an individual feels that the presence of the crucifix breaches his freedom of conscience or his negative religious freedom, the question needs to be asked whether this person should endure this and whether the state has the right to impose this obligation on him. If one takes the view that an individual claimant has to produce evidence of the type and amount of distress generated by the crucifix on himself and his children, this would imply an unacceptable inversion of the burden of proof. Indeed, if the crucifix is a form of state intervention in the sphere of religious freedom, the question should be whether the state has the right to carry out such intervention, that is, whether there is scope for state intervention in that field. The Italian Court of Cassation has never had an opportunity to pronounce on the ‘crucifix in the classroom’ issue. However, in light of the case-law of Italian lower courts (for example, Tribunal of L’Aquila in Smith), and of other European courts (in Germany and Switzerland), it emerges that the opinion according to which the crucifix is a merely ‘passive’ symbol (that is, a mere ‘harmless’ ornament incapable of influencing the children, or of offending the religious feelings of the children and of their parents) is quite controversial. Even the Council of State, when it held in Lautsi that the crucifix performs an ‘educational’ function, clearly refused the idea that the crucifix is a ‘passive’ symbol. Even if one accepts that such ‘educational’ function is a ‘fundamental duty of political, economic, or social solidarity’ under Article 2 of the Italian Constitution, that is, if one accepts that there is a ‘duty to be educated’ in accordance with the principles symbolised by the crucifix, the display of crucifixes would still need to abide by the proportionality principle. It is apparent how the imposition of crucifixes is not the most effective and least restrictive way to deliver a complex educational message which includes principles such as tolerance, mutual respect, valorisation of the person, affirmation of one’s rights, consideration for one’s freedoms, autonomy of one’s moral conscience vis-à-vis authority, human solidarity, and refusal of any form of discrimination. These important constitutional principles could be taught by developing the school curriculum accordingly; for example, through the creation of a specific subject ‘constitutional law’, or similar. This solution would not encroach upon the religious freedom of pupils and parents, and would definitely be more effective in delivering the educational message. The only way to defend the required display of crucifixes in public schools would be seeing the crucifix as a manifestation of freedom of expression (or of ‘positive’ religious freedom) of the majority of the schoolchildren (and their families). However, also this view would be legally flawed. Indeed the display of the crucifix is ‘compulsory’ (that is, is commanded by the state) and is not the expression of a freely exercised right of an individual or a group. Even if, supposedly, the will of the state coincides with the will of the majority of the schoolchildren (and their families), one needs to consider that fundamental

Back to the Basics of Fundamental Rights  325 rights cannot be limited by the law (that is, by majority) unless such law (which is an act of authority) is (expressly or implicitly) allowed to do so by the Constitution for the achievement of a constitutional objective. As it was shown before, this is not the case in the present situation. The Kruzifix-Urteil of the German Federal Constitutional Court dealt with this aspect: The display of the cross is not even justified by the positive religious freedom of parents and students of Christian faith. The positive freedom of belief belongs in the same way to all parents and students, not only to Christian ones. The conflict resulting from it cannot be resolved through the majority principle, because the fundamental right to religious freedom is indeed intended particularly for the protection of minorities. Moreover, Article 4(1) of the Basic Law [on freedom of faith and conscience] does not contain an unlimited entitlement for beneficiaries of that fundamental right to practice their religious belief within the framework of state institutions. If the school institution (in accordance with the constitution) allows, for example, the teaching of religion, the school prayer, and other religious events [to take place at school], they must be shaped by the principle of voluntariness and leave those who have different views with reasonable and non discriminatory alternatives.60

Even the exercise of ‘positive’ religious freedom is limited by the requirement of respect for other people’s beliefs and philosophical convictions (that is, by ‘negative’ religious freedom). IV.  Conclusion: A Legally Flawed Judgment from a Court that Refuses to Become a ‘European Constitutional Court’ In the light of the above analysis it is submitted that the reasoning of the Court of Strasbourg is legally flawed. The Court renounced to set a uniform standard as to the concept of ‘neutrality’ of the state on religious issues. This judicial selfrestraint can be explained with the fear to cause rejection of a ruling ‘against the crucifix’. The Court decided to renounce (at least for the time being) to perform the role of ‘constitutional court’ and to set equal standards on a matter as sensitive as the display of religious symbols in public spaces. In order to achieve this goal, the Court resorted to the well-known concept of ‘margin of appreciation’ and, by so doing, returned the ball to the states.

  Cf. BVerfGE Vol. 93, at p. 24 (the translation from German is the author’s; emphasis added).

60

PART V

LAUTSI-SPECIFIC COMMENTS

NEUTRALITY IN AND AFTER LAUTSI V. ITALY Malcolm D. Evans I. Introduction The judgments of the European Court of Human Rights in the case of Lautsi v. Italy1 have produced some of the most trenchant criticisms levied at a case decided by the Court for many years. As has happened so many times before in difficult cases, the Grand Chamber ultimately fell back on the margin of appreciation as a means of resolving—or perhaps as a means of avoiding resolving—the fundamental tension which lay at the heart of the matter to be decided. Predictably, much of the criticism of the Grand Chamber’s judgment has concerned its use of the margin of appreciation,2 though it is difficult to resist the conclusion that the extraordinary range of responses to the judgment serve to confirm the Court’s view that there was no very settled European consensus on the issues lying at its heart, thus suggesting that it was indeed appropriate to accord the State a broad margin of appreciation.3 Nevertheless, as the richness of the comments upon the case also has shown, it has done very much more besides. In constructing any analysis of the case, much will turn on what one considers to be the issues lying at its heart, and there seems to be almost as many different views on this as there are commentators passing comment. This is not meant to be trivial observation: the case seems to have touched a raw nerve in many4—if not most—States of the Council of Europe in a way which 1   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (Grand Chamber), No. 30814/06. Lautsi v. Italy, 3 November 2009, European Court of Human Rights (Second Section), No. 30814/06. These will henceforward be cited as the ‘Chamber Judgment (2009)’ and ‘Grand Chamber Judgment (2011)’. For Case Note summary of the Grand Chamber Judgement see J. Giles, ‘Lautsi v Italy’, 1 Oxford Journal of Law and Religion (2012), p. 289. 2   The breadth of the margin of appreciation and the manner in which it was applied provided the starting point for the two dissenting judgments: see the Dissenting Opinion of Judge Malinverni joined by Judge Kalaydjieva (to the Grand Chamber judgment). For further criticism see, for example, W. de Been, ‘Metaphysical Madness’, 6 Religion & Human Rights (2011), p. 231; K. Henrard, ‘Shifting Visions about Indoctrination and the Margin of Appreciation Left to States’, 6 Religion and Human Rights (2011), p. 245; C. Zoethout, ‘Religious Symbols in the Public School Classroom: A New way to Tackle a Knotty Problem’, 6 Religion and Human Rights (2011), p. 285; P. Ronchi, ‘Crucifixes, Margin of Appreciation and Consensus: The Grand Chamber Ruling in Lautsi v Italy’, 13 Ecclesiastical Law Journal (2011), p. 287. 3   Grand Chamber Judgment (2011), para. 68. 4   A total of ten States intervened in the case before the Grand Chamber, all arguing in opposition to the Chamber’s decision, eight in a joint submission. For an analysis of unprecedented engagement by States through the process of intervention, see P. Annicchino ‘Winning the

330  Malcolm D. Evans judgments of the Court rarely achieve. The reason is, perhaps, not hard to fathom. In his introduction to a special issue of the journal Religion & Human Rights, Temperman was able to distil over a pages-worth of pertinent questions which flow from the judgment,5 touching on matters of great significance to the structuring of education and to the relationships between governance, the state, religions and religious organisation. To draw on the words first used by the Court in the Kokinakkis case, this is a case which is of significance to not only to believers but “for atheists, agnostics, sceptics and the unconcerned,”6 the latter being a relatively minor grouping. Since each constituency of the concerned will have their own legitimate foci of attention, as well as their own perspectives upon them, it is both unprofitable and undesirable to enter into a discussion of which is the most significant aspect of the Grand Chamber’s judgment. It is for discussants to mine the quarry of its reasoning in order to extract the building blocks of their arguments on the issues which most concern them.7 In what follows, I shall do likewise; first presenting an overview of the case and extracting from it the issues which seem to me to be of greatest significance; second, placing these issues in the context of the broader development of the Court’s jurisprudence relating to Article 9 of the European Convention on Human Rights and Article 2 of its First Protocol; finally, reflecting on some possible implications of that flow from the approach taken by the Grand Chamber to the issues I have chosen to highlight. II.  Lautsi v. Italy: An Overview and Analysis8 Whatever else might be thought to be of its significance, there can be no doubt that the Lautsi case has a critical bearing on what has become one of the most contentious issues raised before the Court in recent times, the presence of religious symbols in the educational arena. This section will, therefore, commence with an overview of the more general approach of the Court to this issue at the Battle and Losing the War: the Lautsi Case and the Holy Alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to Reshape European Identity’, 6 Religion & Human Rights (2011), p. 213. 5   See J. Temperman, ‘Editorial’, 6 Religion & Human Rights (2011), pp. 203–206 at p. 205. 6   Kokkinakis v. Greece, Judgment of 25 May 1993, Series A, No, 260-A, para. 31. 7   Cf. the brief but fascinating comment comparing the post-Lautsi approach within Europe to that within US jurisprudence by J. Witte, ‘Lift High the Cross’, 13 Ecclesiastical Law Journal (2011), p. 341. 8   Elements of this subsection draw on part of this author’s chapter entitled ‘From Cartoons to Crucifixes: Current Controversies concerning the Freedom of Religion and the Freedom of Expression before the European Court of Human Rights’, in E. Reed and M. Dumper (eds.), Civil Liberties, National Security and Prospects for Consensus: Legal, Philosophical and Religious Perspectives (Cambridge: Cambridge University Press, 2012) p. 83.

Neutrality in and after Lautsi v. Italy  331 time of the Lautsi case. It will be followed by an examination of how the Chamber and Grand Chamber addressed this central question and applied its reasoning to the facts of the case. This examination will highlight a number of general and systemic issues which will be considered further in the Section which follows. A.  Religious Symbols and Education In general terms, the Court’s approach to religious symbols within the educational environment continues to oscillate between focussing on the substantive aspects of the overall education experience provided and focussing upon the potential impact which the presence of religious symbols within an educational environment might have on perceptions of the impartiality of the State in matters of religion or belief. In a nutshell, this sums up the difference in approach between the Chamber and Grand Chamber judgments on the substantive issue in Lausti, with the Grand Chamber taking the former standpoint and the Chamber the latter. The Court’s more general case-law concerning headscarves and religious clothing9 provides essential background to understanding the significance of the Lautsi case upon this question. The leading case remains Leyla Sahin v. Turkey in which the Grand Chamber decided that a ban on the wearing of headscarves (and beards) by students in classes in state-run universities in Turkey did not breach the Article 9 rights of the students to manifest their religion because the ban served the legitimate aim of “protecting the rights and freedoms of others and of protecting public order”,10 was compatible with Convention values since it was designed to uphold the principle of secularism11 and was proportionate to the aim pursued.12 This approach has been affirmed in numerous subsequent cases.13 Moreover, it had been trailed some    9   A substantial literature has developed around these themes. See, in particular, T. Lewis, ‘What not to Wear: Religious Rights, The European Court and the Margin of Appreciation’, 56 International and Comparative Law Quarterly (2007), p. 395. For more general examinations of the issues involved from a legal and human rights perspective, see D. McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe, (Oxford: Hart Publishing, 2006); M. Evans, Manual on the Wearing of Religious Symbols in Public Areas, (Leiden: Martinus Nijhoff/Council of Europe Publishers, 2009). 10   Leyla Sahin v. Turkey, 10 November 2005, European Court of Human Rights [GC], No. 44774/98, para. 99 (a point agreed on by the parties). 11   Ibid., para. 114. 12   Ibid., paras. 117–123. For criticism of this aspect of the case, see T. Jeremy Gunn, ‘Fearful Symbols: The Islamic Headscarf and the European Court of Human Rights in Sahin v. Turkey,’ Droit et Religion (2008). 13   See, for example, Kurtulmus v. Turkey, 24 January 2006 (Dec.), European Court of Human Rights, No. 65500/01; Dogru v. France, 4 December 2008, European Court of Human Rights, No. 27058/05; Kervanci v. France, 4 December 2008, European Court of Human Rights, No. 31645/04.

332  Malcolm D. Evans years before in Dahlab v. Switzerland, where the Court rejected a claim by a primary school teacher that her Article 9 rights had been violated by her dismissal for wearing a headscarf whilst teaching.14 Of course, there is a clear point of distinction between these two cases, in that Dahlab concerned the wearing of a headscarf by a teacher whereas Leyla Sahin concerned the wearing of a headscarf by a student. It is, however, easy to overstate the significance of this. As an adult wearing a headscarf in a context where this was known to be prohibited, the applicant in Leyla Sahin was acting in a fashion far removed from that of a passive recipient of education and it might be regarded as no less challenging a case than that of an adult teacher wearing religiously inspiring clothing in a primary educational setting. For current purposes, it remains instructive to compare the approach taken by the Court in these two cases. In both Leyla Sahin v. Turkey and Dahlab v. Switzerland two complementary reasons were given for upholding the restriction, though the relative weight accorded to them was rather different. In the Dahlab case the Court accepted without any discussion or hesitation that it was important to maintain the religious denominational neutrality of the school, and also stressed that the wearing of a headscarf “might have some kind of proselytising effect” within it.15 The Grand Chamber in Leyla Sahin also recognized that wearing headscarves might have a proselytising effect in that it might suggest to those not doing so that they were not acting in accordance with a requirement of Islam and, as in Dahlab, it considered this to be a relevant concern.16 Again, and similarly as in Dahlab, the Grand Chamber in Leyla Sahin also considered that the ban upheld the legitimate aims of protecting the rights and freedoms of others and of maintaining public order.17 There is nevertheless a significant difference in approach between the two cases: in Dahlab, the focus of attention was on the possibility that by wearing a headscarf the teacher might have a proselytising impact upon her pupils. 14   Dahlab v. Switzerland 15 February 2001 (Dec.), European Court of Human Rights, No. 42393/98. 15   Ibid, p. 13. It felt it “difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils”. Interestingly, in Lautsi v. Italy the Grand Chamber reinterpreted its judgment in Dahlab as being a decision primarily based on the margin of appreciation enjoyed by the Swiss authorities, thus reducing its potency as a precedent in other country situations. Grand Chamber judgment (2011), para. 73. 16   It agreed with the Chamber that “there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it … in a country in which the majority of the population … adhere to the Islamic faith”. See Leyla Sahin v. Turkey, supra note 10, paras. 107–109. 17   Ibid. The Court was powerfully influenced by the earlier judgment of the Grand Chamber of the Court in Refah Partisi (the Welfare Party) and Others v. Turkey, 13 February 2003, European Court of Human Rights, Nos. 41340/98, 41342/98, 41343/98 and 41344/98 [GC], in which it had upheld the right of the State to ban a political party whose platform included the introduction of elements of Shari’a law into Turkey.

Neutrality in and after Lautsi v. Italy  333 In Leyla Sahin, the focus of attention was on the potential consequences of permitting religiously inspired clothing to be worn within an institution, in this case an educational institution, of a secular state. The question of whether the focus of attention should be on what might be called the ‘generic implications’ (as in Leyla Sahin) or upon the ‘specific impact’ (as in Dahlab) lies at the heart of the difference in approach between the Chamber and the Grand Chamber in the Lautsi case, and it is unfortunate that this difference was not articulated as clearly as it might have been. B.  The Nature of the Cross As is well known, the central issue in Lautsi was whether the presence of a crucifix in an Italian state school classroom breached the right of a parent to have her children (who were aged between 11 and 13) to be educated in accordance with her religious or philosophical convictions, a right provided for in Article 2 of the First Protocol to the Convention, taken in taken in conjunction with Article 9. In the proceedings before the Chamber the Italian Government had advanced a rather surprising argument. It argued that the cross,18 whilst religious in origins, had, in the context of its being displayed in schools, taken on an additional form of symbolic significance which eclipsed any religious significance which it might previously have had; this being that the cross conveys a message of more generally shared values, such as human dignity, justice, the love of one’s neighbour and the forgiveness of enemies.19 Carried away by its own rhetoric, the Government even suggested that “as the symbol of the cross could be perceived as devoid of religious significance, its display in a public place did not in itself constitute an infringement of the rights and freedoms guaranteed by the Convention”.20 This, it was argued, meant that that the presence of a cross in a classroom “was perfectly compatible with secularism and accessible to non-Christians and non-believers, who could accept it in so far as it evoked the distant origin of the principles and values concerned”.21 Far-fetched though they may seem, these arguments merely mirrored the

18   Interestingly, ‘cross’ and ‘crucifix’ seem to be used as if they were one and the same in the Chamber judgment. Whilst a non-religious (or secondarily religious) meaning might conceivably be attached to a cross, it would seem much more difficult to argue than a crucifix was predominantly non-religious in nature. 19   Indeed, it argued that “[t]he message of the cross was therefore a humanist message which could be read independently of its religious dimension and was composed of a set of principles and values forming the foundations of our democracies”. Chamber Judgment (2009), para. 35. 20  Idem. 21  Idem.

334  Malcolm D. Evans reasoning offered by the domestic courts when they had rejected the claims of the applicants.22 Such arguments could only have assisted the applicant since they seem more or less to accept that if the cross were to be understood as a religious symbol, then its presence in the classroom would breach the rights of the applicant, this being why the Italian Government went out of its way to suggest that the cross was not to be understood in religious terms at all. One of the consequences of advancing such an argument was that the Government appeared to have accepted that the State education system did indeed have to be ‘neutral’ in matters of religion or belief. Another consequence was that it ended up presenting an argument which trivialised the significance of this most potent of Christian religious symbols, thereby potentially causing at least as much offence to devout Catholic believers in Italy as the presence of the cross appears to have caused the applicant. The Chamber was, however, clear that the crucifix was a religious symbol23 and few would seriously contest this. Anticipating this outcome, the Gov­ ernment also argued before the Chamber that if it were to be considered a religious symbol, it should be remembered that “teachers and pupils were not required to make the slightest gesture which might constitute a salutation or mark of respect to it or a mere acknowledgment of its presence, and still less to say prayers in class”.24 Indeed, it concluded that “[i]n fact, they were not asked to pay any attention to the crucifix whatsoever.”25 Once again, this was a rather self-defeating argument: if the presence of the crucifix was of no relevance or significance within the classroom, why should there be any objection to their being taken away? As far as the Chamber was concerned, however, it was “impossible not to notice crucifixes in the classroom” and in consequence “… they are necessarily perceived as an integral part of the school environment and may therefore be considered ‘powerful external symbols’”.26 Before the Grand Chamber, the Italian position was modified to the more modest claim that the Cross had a range of meanings and, whilst also having a religious significance, it also conveyed the values of democracy and western civilization. The Grand Chamber, whilst not ruling out the idea that the Cross could convey a variety of meanings, agreed with the Chamber that the cross was first and

22   The relevant passages are reproduced in the Grand Chamber judgment (2011), paras. 15–16. 23   As far as the Chamber was concerned “the symbol of the crucifix has a number of meanings among which the religious meaning is predominant”. Chamber Judgement (2009), para. 51. 24   Ibid., para. 36 25  Idem. 26   Ibid., para. 54.

Neutrality in and after Lautsi v. Italy  335 foremost a religious symbol.27 However, the Government had also argued before the Grand Chamber that even if it were primarily a religious symbol, it was a ‘passive’ symbol in the current context—and on this point the Grand Chamber agreed with the Government.28 Moreover, the ‘passive nature’ of the symbol meant that “it cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities”, something which was of major importance, the Grand Chamber argued, “having regard to the principle of neutrality”.29 Although it did not figure highly in its reasoning, it does seem to be the case that the Grand Chamber accepted the relevance and significance of the “duty of neutrality and impartiality”30 and that this affected its perceptions of the nature of the cross, encouraging it to downplay its symbolic significance whilst not denying its religious dimensions. However, this still left it with the problem of legitimating its presence at all. C.  Religious Symbols in the Classroom: The Chamber’s Approach and the Grand Chamber’s Corrections Having decided that the cross was indeed religious in nature, the Chamber moved seamlessly to find for the applicant, concluding that: the compulsory display of a symbol of a particular faith in the exercise of public authority in relation to specific situations subject to governmental supervision, particularly in classrooms, restricts the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe. It is of the opinion that the practice infringes those rights because the restrictions are incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education.31

Almost every element of this key finding is contestable. It combined an unproven factual assertion with a logical non-sequitur, both of which reflected a fundamental (though well established) misapprehension of the pre-existing jurisprudence of the Court relating to ‘neutrality’ as well as some significant confusions between the jurisprudence under Article 9 and under Article 2 of the First Protocol.

  Ibid., para. 66.   Ibid, para. 72. But cf. Judge Power who, in her separate opinion, whilst accepting that the cross was a passive symbol, said that all symbols remained ‘carriers of meaning’ and may ‘speak volumes’, even if in a non-coercive fashion. See G. Andreescu and L. Andreescu, ‘Taking Back Lausti: towards a ‘Theory of Neutralisation’, 6 Religion and Human Rights (2011), p. 207. 29   Grand Chamber Judgment (2011), para. 72. 30   Cf. ibid, para. 60. 31   Chamber Judgement (2009), para. 57. 27 28

336  Malcolm D. Evans 1.  The Unproven Factual Assertion The unproven factual assertion was that the display of a faith symbol restricts rights of parents under Article 2 of the First Protocol.32 The Government had argued before the Chamber that the threshold for interference with Article 2 rights had not been met since “education in Italy was entirely secular and pluralistic, school syllabuses contained no allusion to a particular religion and religious instruction was optional” and that “however great its evocative force, an image was not comparable with the impact of an active, daily conduct extending over a long period such as teaching”.33 This was an interesting and important argument, the gist of which is that one ought to have regard to the entire educational experience when determining whether proper regard has been given to the religious or philosophical convictions of the parents. On this approach, the relevant question is not whether there are or are not signs or symbols which are of a religious nature present in the classroom: it is whether the ‘totality of the experience’ infringes the rights of the parents and whilst the physical environment, including the presence of symbols (religious or otherwise) is undoubtedly a factor, it is only one of the factors which is to be taken into account when making an overall assessment. This argument reflected the case law concerning Article 2 of the First Protocol and, indeed, the Italian Government referred to the Danish Sex Education cases.34 It also resonated with the more recent judgments in Folgero v. Norway35 and Zengin v. Turkey,36 which looked at the educational experience of the pupils concerned as a whole, rather than focusing on a single aspect of that experience. Moreover, when framed in these terms it is clear that this argument also maps onto the subtle but significant difference of approach in the Leyla Sahin and Dahlab cases concerning headscarves which was outlined above. Nevertheless, the Chamber did not really engage with this argument at all. Rather, it accepted that there were cogent grounds for the applicant’s belief that the “display of the crucifix was a sign that the State takes the side of Catholicism”37   Article 2 of the First Protocol provides: “No person shall be denied the right to education. 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.” 33   Chamber Judgment (2009), paras. 36–37. 34  Ibid., para. 37, referring to the Judgment of the Court in Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, European Court of Human Rights, Nos. 5095/71; 5920/72; 5926/72. 35   Folgero and Others v. Norway, 29 June 2007, European Court of Human Rights [GC], No.15472/02. 36   Hasan and Eylem Zengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04. 37   Chamber Judgment (2009), para. 53. 32

Neutrality in and after Lautsi v. Italy  337 and expressed the view that, “[t]he presence of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion.”38 Just because the applicant had cogent grounds for a belief does not necessarily make that belief reasonable, nor a belief which the Court is bound to respond to in the way in which it did. Likewise, it is of course entirely understandable that pupils might interpret the cross as a religious sign—after all, the Chamber did so itself—and, as a factual matter, consider that their school environment was ‘marked’ by a particular religion. The use of the word ‘marked’, however, carries with it a sense of being ‘tainted’ and—whether intentional or not—this use of language certainly helps carry the reader through to the conclusion that the answer must lie in removing the source of the ‘contamination’ of the educational environment, and this is what the Chamber did. What the Chamber conspicuously failed to do was to consider whether the religious ‘marking’ of the educational environment meant that those being educated within it are or are not receiving an education which has regard for the religious or philosophical beliefs of the parent, which is what Article 2 of the First Protocol actually requires of the State. The mere presence of such religious markings may have such an effect, and they may be an inhibiting factor, but the presence of a religious symbol does not in and of itself convert a balanced education into a religiously biased one. This was merely an assertion, and fails to take into account other elements of the educational experience which might lead to a very different conclusion. Fortunately, the Italian government repeated this argument before the Grand Chamber, pointing out that the Chamber had not indicated how the mere presence of the crucifix affected the ability of the applicant to bring up her children in accordance with her convictions.39 Bearing in mind its views that the crucifix was a ‘passive symbol’, the Grand Chamber parted company from the Chamber on this point and accepted the thrust of the Italian argument, noting that there was no evidence to support the assertion that the mere presence of the crucifix had the impact on young minds which the Chamber had assumed.40 This more rigorous approach to the question is both appropriate and significant: it looks to the gravity of the harm done to the applicant as alleged victim of the breach, rather than use the application as a means of reviewing the policy of the state in a contentious area. In terms of the ‘oscillation’ mentioned above the focus is now placed on the substance, rather than the appearance, of the enjoyment of the freedom of religion or belief.

  Ibid., para. 55.   Grand Chamber judgment (2011), paras. 38–39. 40   Ibid., para. 66. 38 39

338  Malcolm D. Evans 2.  The Chamber’s Non-Sequitur Returning now to the Chamber’s judgment, the non-sequitur was that the rights of the parents were infringed because it thought that the mere presence of a crucifix within the classroom was “incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education”. This did not follow at all. As has been seen, Article 2 of the First Protocol provides that when exercising its functions in relation to education and teaching “the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious or philosophical convictions”. From the very outset of its consideration of this article, the Court has made it abundantly clear that it does not mean that the parent has a right to ensure that the educational curriculum only includes material which accords with their pattern of belief,41 a point which the Grand Chamber affirmed.42 If the State is under a duty of neutrality in the field of education, this most certainly does not flow from Article 2 of the First Protocol. Indeed, it seriously distorts that Article which in its ordinary and natural meaning suggests that it should in fact be possible for an education to be of a religious hue if that is what both the State and the parent wishes. Yet the Chamber seemed to suggest that it meant the very opposite: that if there were any colour of religion within the educational experience, then this would transgress the duty of neutrality. It also suggests that the Chamber lost sight at this point of the fact that it was not applying Article 9 per se, but Article 2 in conjunction with Article 9. At the very least, this represents a failure to take account of Article 2 of the First Protocol when interpreting and applying Article 9, since it is in the context of Article 9 that the duty of neutrality and impartiality is found. This reading of the Chamber’s judgment is supported by two further elements. First, it thought that respect for parental wishes was ‘unidirectional’, saying that “[t]he display of one or more religious symbols cannot be justified either by the wishes of other parents who want to see a religious form of education in conformity with their convictions or, as the Government submitted, by the need for a compromise with political parties of Christian inspiration.”43 Or, as the Chamber put it, “[r]espect for parents’ convictions with regard to education must take into account respect for the convictions of other parents”44—provided, it seemed, that the convictions in question were not   This was made clear in the first case to address this question, Kjeldsen, Busk Madsen and Pedersen, supra note 34, para. 53 and has been reaffirmed in the leading restatement of the Court’s approach to this in Folgero and Others v. Norway, supra note 35, para. 78(g). 42   Grand Chamber judgment (2011), para. 62. For a further and subsequent reaffirmation, see also Willi, Anna and David Dojan v. Germany, 13 September 2011, European Court of Human Rights, No. 319/08 (Dec), p. 13. 43   Grand Chamber judgment (2011), para. 56. 44   Ibid., para. 57. 41

Neutrality in and after Lautsi v. Italy  339 religious in nature. It took the view that a non-religious environment which is critical and questioning can be imposed upon the children of believers, but a religious environment may not be imposed on those of a non-religious disposition. From a practical perspective this approach is highly problematic in a Europe where the reality in many countries is that much of the state education system is delivered at, and through, religiously oriented schools, or at schools which have a rich, significant and visible religious heritage. From a jurisprudential perspective it is equally problematic. It is as if the Chamber lost sight of the fact that it was not applying Article 9 but was meant to be applying Article 2 in conjunction with Article 9. As will be seen below, the general duty of neutrality and impartiality has been developed in the Article 9 jurisprudence. The Court has said that in the educational context Article 2 is to be regarded as lex specialis in relation to Article 9.45 It is not necessary here to explore what might be the full implications of this but what is notable is that in the leading case of Folgero v. Norway the Grand Chamber did not mention a state duty of neutrality under Article 2 at all. On the contrary, it observed that: (g) the second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable (see Kjeldsen, Busk Madsen and Pedersen, cited above, p. 26, § 53). (h) The second sentence of Article 2 of Protocol No. 1implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded (ibid.)46

Thus the aim is to ensure that the curriculum is conveyed in ‘an objective, critical and pluralistic manner’ and does not amount to a form of indoctrination. Applying this approach in the subsequent case of Zengin v. Turkey the Court noted that whilst “the syllabus for teaching in primary schools and the first cycle of secondary school … give greater priority to knowledge of Islam than they do to that of other religions and philosophies” it thought that “this itself cannot be viewed as a departure from the principles of pluralism and objectivity which would amount to indoctrination … having regard to the fact that,

  Folgero and Others v. Norway, supra note 35, para. 54.   Ibid., para. 84(g-h).

45 46

340  Malcolm D. Evans notwithstanding the State’s secular nature, Islam is the majority religion practiced in Turkey”.47 Once again, although there is mention of a need to avoid “misplaced proselytism”48 there is no mention of neutrality in the context of Article 2 jurisprudence, only of objectivity and plurality.49 If an objective and plural curriculum can, in principle, require that children be required to learn by heart Suras from the Koran, since Islam is the majority religion in Turkey, it is very difficult to see why a crucifix on the wall of school rooms in Italy where Catholicism is the majority religion offends against the self-same criteria. This rather suggests that the Chamber in Lautsi failed to take proper account of its own jurisprudence under Article 2 and was overly focussed on its Article 9 jurisprudence. At the very least, this represents a failure to take account of Article 2 of the First Protocol when interpreting and applying Article 9 in the educational context. 3.  The Grand Chamber’s Approach to the Chamber’s Non-Sequitur Once again, the Grand Chamber in Lautsi took a different view of this central issue. The manner in which it did so might, at one level, be considered insufficiently robust whilst at the same time might be considered to be overly robust at another. In reality, however, the problem is that the Grand Chamber did not deal with this question directly at all. Rather, it did what the Chamber did not do, and considered the overall question of the presence of religious symbols to be a matter within the margin of appreciation of the State. In order to do so, however, it had to accept that the presence of religious symbols did not per se violate the State’s duty of neutrality and impartiality. As hinted at above, it could have done this by looking more closely at its own jurisprudence under Article 2 of the first Protocol and considering its relationship with its ‘neutrality’ jurisprudence under Article 9. But it did not. Instead, it offered a reappraisal of the practical significance of ‘neutrality’ in the educational context and did so in a way which seems to mark a fundamental departure from its most recent practice concerning its more general jurisprudence on ‘neutrality’. It will be argued later that this is a positive development but it may have been unnecessary to do this in order to achieve the outcome which it wished to achieve. This suggests that the Grand   Hasan and Eylem Zengin v. Turkey, supra note 36, para. 63.   See, for example, Folgero and Others v. Norway, supra note 35, para. 84. 49   Hasan and Eylem Zengin v. Turkey, supra note 36, para. 54. The Court does make mention of the duty of neutrality and impartiality, but only to stress that this duty is “incompatible with any assessment by the State of the legitimacy of religious beliefs or the ways in which those beliefs are expressed”. This reference to the duty makes its absence from the reasoning directly relating to the application of Article 2 all the more striking. 47 48

Neutrality in and after Lautsi v. Italy  341 Chamber, like the Chamber itself, did not think sufficiently about the relationship between Articles 9 of the Convention and Article 2 of the First Protocol when crafting its judgment. Unlike the Chamber, however, the Grand Chamber was clear that there was a relationship that needed to be explored. As has already been noted, the Grand Chamber followed Folgero and Zengin in stressing that in the educational context Article 2 was lex specialis to Article 9.50 However, it also said that: “that provision should be read in the light … of Article 9 of the Convention (see, for example, Folgerø, cited above, § 84), which guarantees freedom of thought, conscience and religion, including the freedom not to belong to a religion, and which imposes on Contracting States a ‘duty of neutrality and impartiality’”.51 This shows that, unlike the Chamber, the Grand Chamber clearly understood that the duty of neutrality and impartiality was a duty imposed by Article 9 rather than by Article 2 and thus, whilst clearly relevant to the application of Article 2, it was not necessarily to be the dominant factor in determining the outcome of the case. Indeed, after having made this point it more or less abandoned that duty in favour of its preferred focus, which was the obligation to ‘respect’ parental convictions. Nevertheless, the Grand Chamber’s approach was at least more firmly rooted in Article 2 and the educational context, placing this at the centre of its analysis. Whilst accepting that the ‘environmental context’ within which public school education is delivered engages the responsibility of the state,52 the Grand Chamber thought that, like the curriculum itself, this was a matter over which the state enjoys a considerable margin of appreciation, given the diversity of practise across Europe.53 It also thought that “the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation”54 and that the court had “a duty in principle to respect the Contracting States’ decisions … including the place they accord to religion, provided that these decisions do not lead to a form of indoctrination”.55 This, then, finally links the Grand Chamber’s approach to the issue of the impact which the presence of religious symbols might have within the 50   Grand Chamber Judgment (2011), para. 59 (the reference in this para. to para. 84 of Folgero for this proposition is mistaken: it should be a reference to para. 54). 51   Ibid., para. 60 (the reference to para. 84 of Folgero for this proposition is correct–but only to appoint. Para. 84(a) provides that “[t]he two sentences of Article 2 of Protocol No. 1 must be interpreted not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention (see Kjeldsen, Busk Madsen and Pedersen, cited above, p. 26, § 52)”. Para. 84(b) then goes on to observe that “[i]t is on to the fundamental right to education that is grafted the right of parents to respect for their religious and philosophical convictions…” This indicates that the web of relevant linkages and inter-relationships is in fact considerably broader and more complex than the Grand Chamber in Lautsi suggests at this point.) 52   Grand Chamber Judgment (2011), para. 64. 53   Ibid., para. 68. 54  Idem. 55   Ibid., para. 69.

342  Malcolm D. Evans educational environment. Moreover, it does so in a way which is firmly rooted in the language developed under its Article 2 First Protocol jurisprudence in that there must be evidence that the presence of the crucifix was either intended to have, or did in fact have, an impact which amounted to a form of indoctrination. If there were, then the issue fell outside the margin of appreciation and amounted to a violation of Article 2. On the facts of the case the Grand Chamber decided that there was no evidence either of such an intention or of such an effect. What is unclear is why the Grand Chamber did not simply stop at this point. Indeed, it is not at all clear why it did not start with this point: once it had concluded that there had not been an interference with the rights of the Applicant under Article 2 of the First Protocol for want of evidence of ‘indoctrination’ it seems unnecessary to have resort to a margin of appreciation analysis at all. The Court’s case law on Article 2 gives states a broad scope to determine the curriculum and, since Lautsi, the educational environment.56 Under Article 2, ‘respect’ for parental rights is assured if there is no danger of indoctrination. In the curriculum cases this means that children can be exposed to considerable amounts of materials to which their parents might object. However, in the ‘curriculum’ cases there is also an ancillary question of whether there is an appropriate ‘opt out’ mechanism available in those cases in which a curriculum, though not amounting to a form of ‘indoctrination’ nevertheless evidences a degree of ‘imbalance’.57 In other words, there are two dimensions to ‘respect’ in the context of Article 2: first, if the material or the educational context amounts to a form of ‘indoctrination’, then there is a violation of Article 2. If it does not, then depending on the nature of the material being taught ‘respect’ might require that there be an opt out available from the relevant element of the curriculum or from the…classroom?? The problem is immediately obvious. Can the parent insist that their child be withdrawn from an educational environment which does not reflect their religious or philosophical beliefs? Must the State provide an ‘environmental opt out’? If so, then ‘respect’ requires that at least some classrooms do not have the crucifix. The analogy just cannot hold.58 56   See also Willi, Anna and David Dojan v. Germany, supra note 42, p. 13 for a reaffirmation of both the extent of the duty and the breadth of discretion. In this case the Chamber declared manifestly ill-founded an application by members of an Evangelical Baptist Church that compulsory attendance at sex education classes and at ‘carnivals’ which in the eyes of the applicants were of Catholic origins violated their rights under Article 2 of the First Protocol. 57   Cf. Folgero and Others v. Norway, supra note 35, para. 96; and Hasan and Eylem Zengin v. Turkey, supra note 36, para. 57. 58   However, the Grand Chamber was, perhaps, attempting to craft a form of ‘opt out’ equivalent when it noted 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” (Grand Chamber Judgment (2011), para. 75).

Neutrality in and after Lautsi v. Italy  343 As a result, it is not surprising that the Grand Chamber muddies the waters at this point. It says that: The fact remains that the Contracting States enjoy a margin of appreciation in their efforts to reconcile exercise of the functions they assume in relation to education and teaching with respect for the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions (see paragraphs 61–62 above). That applies to organisation of the school environment and to the setting and planning of the curriculum (as the Court has already pointed out: see essentially the judgments cited above in the cases of Kjeldsen, Busk Madsen and Pedersen, §§ 50–53; Folgerø, § 84; and Zengin, §§ 51–52; paragraph 62 above). The Court therefore has a duty in principle to respect the Contracting States’ decisions in these matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination (ibid.).59

This appears to be plainly wrong, since in both Folegero and Zengin, the Court found that although the curriculum did not amount to indoctrination there had nevertheless been a violation of Article 2 because of the lack of an effective opt out provision.60 So in these cases the Court most certainly did not respect the Contracting State’s decision on matters falling short of indoctrination. Indeed, if one adopts this approach, it would appear to make the margin of appreciation redundant since, if there had been evidence of indoctrination, there would have been a breach of Article 2 in any event, and so the margin of appreciation becomes irrelevant. It is difficult to resist the conclusion that the use of the margin of appreciation in this context is paying little more than lip service to the need to ‘respect’ the right of the applicant regarding the ‘environmental’ dimension of the context in which their children’s education is conducted. Indeed, by referring to the ‘duty’ upon the Court to respect the decisions of the State in this regard, the Grand Chamber runs the risk of lowering further the already low standard of respect expected of States as regards the content of curricula, if the reasoning in Lausti were to be transposed back into those contexts. Perhaps even more strikingly, however, is the degree to which the Grand Chamber has accepted the legitimacy of the State prioritising traditional   Ibid., para. 69.   This should be contrasted with the subsequent case of Willi, Anna and David Dojan v. Germany, supra note 42, in which the Chamber decided the case to be inadmissible as there was no evidence that the contested elements of the curriculum amounted to indoctrination even though there were question marks concerning the availability of the opt outs. However, it is clear that the Chamber considered the content of the curriculum to be reflective of convention values: “ensuring the integration of children into society with a view to avoiding the emergence of parallel societies’ which it though ‘in line with the Court’s own case-law on the importance of pluralism for democracy” (ibid., p. 14). This also reflects the earlier decision in Konrad and Others v. Germany, 11 September 2006, European Court of Human Rights, No. 35504/03 (Dec.), where a challenge to the prohibition on home schooling in Germany was also rejected. 59 60

344  Malcolm D. Evans religions and traditional religious values in the educational context when exercising its ‘margin of appreciation’ (perhaps better described as ‘legitimate discretion falling short of indoctrination’). As we have seen, in both Folgero and Zengin, the Court accepted the legitimacy of ‘imbalances’ falling short of indoctrination which meant that the educational curricula were biased towards the dominant religion. This was seized upon by the Grand Chamber in Lautsi when it said 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. 1.61

In the final analysis, one is left with the impression that the Grand Chamber is, in effect, permitting states to organise their schools in a manner which privileges certain religious traditions or dominant religions if they choose to do so, provided that there is no evidence of indoctrination. Questions of objectivity feed into the assessment of whether there is evidence of indoctrination but a lack of objectivity is not necessary fatal provided that there are opt-outs available. Had it remained focussed on Article 2 then, perhaps, it could have avoided considering the margin of appreciation at all and perhaps this would have been the better outcome. By choosing to unpick the Chamber’s non-sequitur in the way that it did, the Grand Chamber has opened up some very difficult issues which arguably need not have been opened up at all. III.  The Neutrality Argument Yet again it is necessary to remind ourselves of the non-sequitur at the heart of the Chamber’s judgment, which was that the rights of the parents were infringed because it thought that the mere presence of a crucifix within the classroom was “incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education”. Rather than deal with this in the convoluted and unconvincing manner outlined above, it is a pity that the Grand Chamber did not address directly the argument advanced by the Italian Government and by the States parties interveners that the principle of neutrality does not demand the absence of religious symbolism in the educational setting on the grounds that such a response

  Grand Chamber Judgment (2011), para. 71.

61

Neutrality in and after Lautsi v. Italy  345 in fact privileges secularist views and is just ‘not neutral’.62 The Court did acknowledge that secularist views are protected as a form of conscience under Article 2 of the First Protocol63 so there would have been grounds for it considering this argument in detail. However, it is an inescapable fact of life that every decision privileges something at the expense of something else, so it is easy to understand why it might not have wished to engage in what is in essence a ‘zero sum’ game.64 Nevertheless, almost by way of an aside, the Grand Chamber in fact went far further than this by the manner in which it approached the idea of state neutrality and this could turn out to be the most significant aspect of the Lautsi judgement over time if its implications are properly worked through in other contexts. Having reiterated that Article 9 imposes on a state ‘a duty of neutrality and impartiality’, it said that: In that connection, it should be pointed out that States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups (see, for example, Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005-XI). That concerns both relations between believers and non-believers and relations between the adherents of various religions, faiths and beliefs.65

This is quite strikingly different from the manner in which it has referred to ‘neutrality’ and impartiality in recent times but which is the product of development—arguably inappropriate development—over time.66 With the benefit of hindsight, it is possible to see a number of different approaches to neutrality in the jurisprudence of the Court relating to Article 9. It is, however, worth recalling that nothing in the convention requires that the State be 62   See, for example, ibid., para. 47 setting out the views of eight intervening states that the Chamber had confused neutrality with secularism. This point was, however, accepted in the Concurring Opinion of Judge Power, who also stresses the significance of a school being a religiously plural environment, commenting that “[n]eutrality requires a pluralist approach on the part of the State, not a secularist one”. This suggests that whilst she agreed with the outcome of the case, she might have had difficulties with an approach which was overly focussed on perpetuating tradition in matters of religion. 63   Ibid., para. 58. 64   Cf. Temperman’s chapter in this volume (particularly his sections II and III), who argues that if believers remain free to establish religious schools outside of the state system, there is good reason to ensure that the public state system offers what might described as the ‘more neutral alternative’. However, this can be countered by arguing that those opposed to the presence of religious symbols within the state system might themselves establish schools which reflect their own ethos. It is not clear why it is the religious who should shoulder the burden of providing an acceptable alternative to the norm established by the State. 65   Ibid., para. 60. 66   For a detailed exploration of these issues and their outworking, see J. Temperman, State– Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance (Leiden/Boston: Martinus Nijhoff Publishers, 2010).

346  Malcolm D. Evans neutral or impartial as regards religion or belief. It requires that individuals be able to believe what they wish and that they be able to manifest that belief, subject to degrees of restriction in the interests of the rights of others. It is difficult to see how one can have a State Church—or indeed any system of religious registration—if the State is not permitted to have preferences between forms of religion and the idea that Article 9 might prevent the existence of State churches would have seemed absurd to its drafters. It is interesting to reflect that prior to Lausti, it had become nearly as absurd to think that it did not. A.  The State as ‘Ringmaster’ The dominant idea here is that it is not for the State to interfere in any way with the ‘contestation’ that takes place between religious believers and others. This strand of thinking was evident in the very first case to be decided on the basis of Article 9, Kokkinakis v. Greece, when in the separate and dissenting opinions there was a clear disagreement between some of the judges as to whether it was appropriate for the state, and hence in its supervisory role the Court, to involve itself in such matters at all.67 It was also reflected in other cases concerning the interplay between the freedoms of religion and expression, where the trend had been to ensure that there was a ‘level playing field’ between those who seek to present their views or seeking to challenge the views of others. On such an approach, ‘neutrality’ was ensured by the State distancing itself from the manner in which religion ‘played out’ in the public square, leaving this to those concerned and intervening only when strictly necessary to preserve the rights of others or the ‘fairness of the fight’. Elements of this approach also find reflection in the idea that the Court must not express views concerning the ‘validity’ or ‘correctness’ of forms of religion or belief or of religious practice.68 The consequences of such an approach are often overstated and in any event it falls far short of an approach based on ‘neutrality’: just because the State ought not to prohibit or restrict a religion or belief merely on the basis that it thinks it ‘wrong’ does not in and of itself mean that it cannot have preferences   See, for example, the Opinion of Judge Martens (in Kokkinakis v. Greece, supra note 6) who commented that “it is not within the province of the State to interfere in this conflict between proselytiser and proselytised” whereas for Judge Valticos was very clear that it was the role of the State to intervene in such cases. 68   Thus the Court has frequently said that “the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate”. See, for example, Hasan and Chaush v. Bulgaria, 26 October 2000, European Court of Human Rights, No. 30985/96 [GC]; Metropolitan Church of Bessarabia and Others v. Moldova, 13 December 2001, European Court of Human Rights, No. 45701/99, para. 123; Church of Scientology Moscow v. Russia, 5 April 2007, European Court of Human Rights, No. 18147/02, para. 72; Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, 22 January 2009, European Court of Human Rights, Nos. 412/03 and 35677/04, para. 120. 67

Neutrality in and after Lautsi v. Italy  347 or express words of caution.69 Moreover, there seems to be some suggestion that the Court might be more willing than previously to consider the ‘religious’ nature of some beliefs70 and if this does turn out to be the case the idea that the State is to stay aloof unless it is necessary for it to intervene to ‘ensure the level playing field’ becomes untenable. It just does not seem possible for the State to abstain in the name of neutrality unless it is necessary to protect the rights of others. That decision is always value-laden. Either by virtue of what it does or by virtue of what it does not do, the State is going to be implicated one way or another.71 As a result, the ‘ringmaster’ approach was never likely to be a tenable long term position and is best understood as being of relevance only to those situations in which the State has intervened, or failed to intervene, in order to ‘protect’ the applicant from exposure to the viewpoints of others and the question facing the Court is essentially one of reviewing the decision taken by the state against convention criteria, including the margin of appreciation. This is a classic situation in which the State might well be expected to absent itself unless the bounds of taste or toleration—the bounds of mutual respect—have been crossed in an egregious fashion.72 But it is also easy to see how the injunction that the State should not ‘take sides’ in a particular dispute of this nature should become understood as meaning that the State should not, in general, be ‘on’ any side at all. This then gets caught up in the category which follows conceptually and, significantly, chronologically.

  See, for example, Leela Förderkreis and others v. Germany, 6 November 2008, European Court of Human Rights, No. 58911/00, para. 98: “The contested statements and the other material before the Court show that the German Government, by providing people in good time with explanations it considered useful at that time, was aiming to settle a burning public issue and attempting to warn citizens against phenomena it viewed as disturbing, for example, the appearance of numerous new religious movements and their attraction for young people. The public authorities wished to enable people, if necessary, to take care of themselves and not to land themselves or others in difficulties solely on account of lack of knowledge”. 70   See, for example, the Chamber judgment in Mouvement Raëlien v. Switzerland, 13 January 2011, European Court of Human Rights, No.16354/06. In this case the Chamber decided that there was no violation of Article 10 of the Convention because a restriction on an advertisement had been proportionate within the terms of Article 10(2). As a result, the Chamber felt it unnecessary to consider Article 9, and said that this “dispenses it from ruling on the Government’s objection that Article 9 is not applicable in this present case” (para. 61). 71  See generally M. Evans and P. Petkoff, ‘A Separation of Convenience? The concept of Neutrality in the Jurisprudence of the European Court of Human Rights’, 36 Religion, State and Society (2008), p. 205. 72   This is exactly the approach taken by the Court in cases such as Otto-Preminger-Institut v. Austria, 20 September 1994, European Court of Human Rights, No. 13470/87; Wingrove v. the United Kingdom, 25 November 1996, European Court of Human Rights, No. 17419/90; Murphy v. Ireland, 10 July 2003, European Court of Human Rights, No. 44179/98; İ.A. v. Turkey, 13 September 2005, European Court of Human Rights, No. 42571/98. There may remain considerable debate concerning what amounts to such an ‘egregious violation’ but the basic cogency of the approach to the question is not undermined by such uncertainties. 69

348  Malcolm D. Evans B.  Neutrality as Autonomy Following the enlargement of the Council of Europe in the early 1990s new issues came before the Court which demanded a different form of response. In a series of cases the Court was asked to consider situations in which the State was attempting to involve itself in the internal affairs of religious bodies. The response was both clear and categorical: the State ought not to do so, unless a situation developed in which had clear consequences for public order.73 The reason given, mirroring the need for ‘abstention’ in matters of contestation between believers and non-believers, considered above, was that there had been “a failure by the authorities to remain neutral in the exercise of their powers in this domain” which amounted to an interference with the believers’ freedom to manifest their religion.74 A related line of cases concerned laws relating to the legal status of religious communities and it is here that the language of neutrality and impartiality became firmly established and entrenched. Again, it is not difficult to see why. If cases such as Hasan and Chaush could use the language of neutrality to justify restraint in matters concerning the internal autonomy of religious bodies, why could it not be used to censure States which interfered with the affairs of religious bodies in other ways, including when refusing to grant them legal personality or other forms of official recognition? Thus in cases such as Metropolitan Church of Bessarabia v. Moldova the Court has stressed that “in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial”.75 Once again, this suggests that the State’s duty of neutrality and impartiality is limited to the exercise of its regulatory functions and its more general dealings with religions and belief communities and is not to act in a way which shows partiality between religions, 73   For an early case of this nature, see Serif v. Greece, 14 December 1999, European Court of Human Rights, No. 38178/97; followed by the seminal case of Hasan and Chaush v. Bulgaria, supra note 68; and subsequently Supreme Holy Council of the Muslim Community v. Bulgaria, 16 December 2004, European Court of Human Rights, No. 39023/97, concerning the involvement of the Bulgarian authorities in the disputes over leadership with the Bulgarian Muslim Community and subsequently in the Bulgarian Orthodox Church: see Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, supra note 68.. Other examples, of which there are many, include Svyato-Mykhaylivska Parafiya v. Ukraine, 14 June 2007, European Court of Human Rights, No. 77703/01; and Miroļubovs and Others v. Latvia, 15 September 2009, European Court of Human Rights, No. 798/05. 74   Hasan and Chaush v. Bulgaria, supra note 68, para. 78. 75  See Metropolitan Church of Bessarabia and Others v. Moldova, supra note 68, para. 116 where it quoted para. 78 from Hasan and Chaush (ibid.) in support of this proposition. See also Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, 31 July 2008, European Court of Human Rights, No. 40825/98, para. 97: “the State has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs”. This was also quoted and applied in Savez Crkava ‘Riječ Zivota’ and Others v. Croatia, 9 December 2010, European Court of Human Rights, No. 7798/08, para. 88.

Neutrality in and after Lautsi v. Italy  349 denominations and beliefs when doing so. In essence, it is a reminder that the State is not to apply the law in a discriminatory fashion, nor is it to introduce laws which unlawfully discriminate between religious communities. It is worth stressing that the Court has never said that laws which do seek to regulate religious organisations are incompatible with its obligations of neutrality and impartiality. Indeed, it has described the role of the State as being that of an impartial and neutral organiser of the exercise of religious life, something which is best understood as legitimating the role of the State as a facilitator of religion in the life of the community.76 Oddly, this has been misunderstood, and has developed into a third approach, that of neutrality as non-engagement with religion, which in some ways is the very opposite of what was, arguably, intended. C.  Neutrality as Non-Engagement ‘Neutrality as non-engagement’ is the idea the state should not merely refrain from showing preference in the exercise of its regulatory functions but that it ought to refrain from expressing any form of preference for a given religious or belief system at all if it is to be properly ‘neutral’ in matters of religion or belief. The origins of this approach in the jurisprudence of the Court might be usefully traced back to cases such as Refah Partisi v. Turkey in which the Court, whilst prepared to discount the compatibility of an entire religious legal tradition with democracy and human rights,77 was also prepared to endorse secularism as an approach which achieved the objective of being neutral between religions.78 It has been frequently pointed out that such an approach is not ‘neutral’ at all, in that it privileges a particular understanding which is itself recognised as a form of belief. In other words, it failed to appreciate that whilst neutrality was a tool, secularism is a belief and the two are not to be equated.79

  See, e.g., Refah Partisi (the Welfare Party) and Others v. Turkey, 13 February 2003, European Court of Human Rights, Nos. 41340/98, 41342/98, 41343/98 and 41344/98 [GC], para. 91; Leyla Şahin v. Turkey, supra note 10, para. 107 where the Court says that it “has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs”. 77   Refah Partisi (the Welfare Party) and Others v. Turkey, ibid., para. 123: “The Court concurs in the Chamber’s view that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention”. 78   Cf. ibid., para. 93: “the principle of secularism is certainly one of the fundamental principles of the State which are in harmony with the rule of law and respect for human rights and democracy”. 79   This point was made in the Lautsi case by Judge Power, who in her Concurring Opinion to the Grand Chamber Judgment (2011) said that “[a] preference for secularism over alternative world views–whether religious, philosophical or otherwise–is not a neutral option”. She went on to comment that “to require of the State that is pursues not a pluralist but a secularist agenda, risks venturing towards the territory of intolerance”. 76

350  Malcolm D. Evans By and large, this is now well understood. Nevertheless, some have taken this position to its limits by claiming that since as a matter of policy the State must be seen to be neutral in matters concerning religion the State must not only refrain from any form of activity which could be understood as expressing support or preference for any religion or belief system but must also refrain from any form of activity which could be understood as lending credence to the validity of religion or belief or endorsement of its beliefs. It may be that the high watermark of this approach was reached shortly before the judgment of the Grand Chamber in Lausti, in the Chamber judgment in Mouvement Raelien Suisse v. Switzerland, handed done in January 2011.80 The case was referred to the Grand Chamber, which heard the case in November 2011 and judgment is currently awaited.81 It is, then, inopportune to dwell at length on the Chamber judgment at this time but it seems fairly clear that the approach taken does not sit easily with the comment of the Grand Chamber in Lautsi. The Mouvement Raelien case concerns the refusal of the police authorities in Neuchâtel to permit the applicants to conduct a poster campaign. The aim of the Raelian movement, which was founded in 1977, is to make contact and establish good relations with extra-terrestrials. It claims to be a religious movement and has been recognised as such from time to time in various court proceedings, including in those which led to their application to the European Court.82 The poster in question contained, inter alia, pictures of flying saucers, faces of extra-terrestrials, the message ‘Science at last replaces religion’ and its website address and phone number. That website, in addition to providing information concerning Raelian beliefs83, also contained links to the website of an organisation called Clonaid, which offered human cloning services. It was common ground that the ban amounted to an interference with the freedom of expression under Article 10 of the Convention, but the Chamber agreed with the Government that this was justified and proportionate. The gist of the Government’s position was that they were not seeking to ban the Raelians or their website, but were simply seeking to prevent the public space being used to propagate their beleifs; hence it had interfered so that it “did not provide its support for such publicity by making available public space, with the result that it could be seen to endorse or tolerate the opinions and 80   Mouvement Raelien Suisse v. Switzerland, 13 January 2011, European Court of Human Rights, No. 16354/06. 81   See Press Release ECHR 246 (2011), 16 November 2011. 82   See, for example, para. 14 of the Chamber’s judgment (supra note 80) referring to the judgment of the Swiss Federal Court of 20 September 2005. 83   It was alleged that Raelians supported ‘geniocracy’ (government by the more superior or intelligent beings) and paedophilia, factors which the domestic court had taken into account when upholding the advertising ban.

Neutrality in and after Lautsi v. Italy  351 conduct in question”.84 The Court endorsed this approach, saying that it “shares the Government’s view that acceptance of a poster advertising campaign could suggest that they are endorsing, or at least tolerating, the opinions and conduct in question”.85 The focus on the use of public space is evident, since the Court was clear that it was not in any way suggesting that the organisation or its website should be restricted, and that the ban was proportionate because “it was strictly limited to the display of posters on the public highway”.86 It drew a stinging response from Judges Rozakis and Vajić who pointed out that if the State accepts an association’s aims, “it must presumably allow it to freely mingle with society and to propagate the key ideas that stem from those aim” and that it seems difficult to understand how a lawful association with its website, that is not prohibited, cannot use public space to promote the same ideas through posters that are not unlawful and do not offend the general public. Nor does the argument to the effect that, by accepting a poster advertising campaign, the municipal authorities might suggest that they are endorsing the opinions in question (see paragraph 52) seem to correspond to the realities of the contemporary role of such authorities, which act in this context as private managers of public space.87

Although the language of neutrality is not being used, the issue is one of whether the public domain is to be used in a manner which could be taken to suggest that the authorities are in any way endorsing or lending credence to the belief system in question. If allowing a group to have access to public space is to be taken as implying an endorsement of the views that such a group may express within in, then the State will be aligning itself with the substance of any and every public utterance which over which it has a regulatory competence. That is a preposterous proposition. When combined with a duty of neutrality and impartiality understood in terms of ‘non-engagement’, it results in a situation in which the State must either allow all forms of religion or belief to express themselves in public in whichever manner they please, or it allows none. Neither is a palatable or plausible position. As the dissenting Judges hint, it is also difficult to see how such a radical ‘non-engagement’ interpretation of neutrality could be reconciled with the practice of registration of religious communities, a practice clearly accepted as legitimate by the Court, provided it facilitates rather than fetters the freedom of religion or belief and does so in a non-discriminatory fashion.88 Setting criteria on the basis of which to accord   Mouvement Raelien Suisse v. Switzerland, supra note 80, para. 39.   Ibid., para. 52. 86   Ibid., para. 58. See also para. 59. 87  Dissenting Judgment of Judges Rozakis and Vajić (in Mouvement Raelien Suisse v. Switzerland), paras. 3(a) and (b). 88   In numerous cases the Court has accepted the legitimacy of legislative schemes which differentiate between religious communities, limiting itself to a consideration of the legitimacy 84 85

352  Malcolm D. Evans legal status, prerogatives or privileges to some religious or belief communities which will, as a result, not be available to others cannot fail to be understood as an exercise of regulatory competence which has the effect of ‘endorsing’— within this model—a system of belief which, according to this model is inappropriate a priori. It is almost impossible to see how this outcome and the approach to neutrality on which it is premised could be reconciled with the Grand Chamber judgment in Lautsi.89 IV. Conclusion The change in approach to neutrality which is flagged in Lautsi, though seemingly subtle, is in reality quite stark. As the Grand Chamber reminds us, “states have a responsibility for ensuring, neutrally and impartially, the exercise of var­ ious religions, faiths and beliefs”.90 If this is so, then it is no longer a question of whether or not the State is ‘being seen to be neutral and impartial’ to the external observer. It is a question of whether the State is acting in a neutral and impar­ tial fashion. This marks a potentially significant turning point in the Court’s jurisprudence, the implications of which remain to be explored and tested. What is clear is that this is not just a matter of semantics. This difference is critical to the outcome in Lautsi, since the Grand Chamber itself was aware that it could not permit the State to act in a fashion which was not ‘neutral and impartial’. As a result, it was necessary to revert to the older formulation of the duty which left open a space for the State to have different levels of engagement

of the grounds for such differentiation, and the manner in which such rules are applied in practice. E.g. in Savez Crkava “Riječ Zivota” and Others v. Croatia, supra note 75, the Court concluded that there was a breach of Article 9 in conjunction with Article 14 because the applicant church was unable to have access to hospital, schools and other state-run institutions and to have marriages concluded according to its rite recognised whereas other religious communities which also did not meet the thresholds of membership necessary under the law were in fact permitted to do so. As this case clearly shows, neutrality does not does mean equality and it certainly does not mean non-engagement. 89   This is evident from the opinions of the same judges in the Lautsi Grand Chamber judgment where they said that “[t]he question which therefore arises … is whether the display of the crucifix not only affects neutrality and impartiality, which it clearly does, but whether the extent of the transgression justifies a finding of a violation of the Convention in the circumstances of the present case”. Agreeing that it did not, they concluded that “[t]hese elements, demonstrating a religious tolerance which is expressed through a liberal approach allowing all religious denominations to freely manifest their religious convictions in the State schools, are, to my mind, a major factor in ‘neutralising’ the symbolic importance of the presence of the crucifix in State schools”. See Separate Opinion of Judge Rozakis, joined by Judge Vajić (in Lautsi Grand Chamber Judgment). There is nothing ‘disengaging’ about their vision of neutrality, or of how they consider that the idea of neutrality and impartiality should be understood. 90   Grand Chamber Judgment (2011), para. 60. Somewhat paradoxically, the Court chose to cite Leyla Sahin v. Turkey, supra note 10, para. 107 when making this observation, this being a case in which neutrality was not identified with secularism within State institutions.

Neutrality in and after Lautsi v. Italy  353 with, dealing with, and responses to, different religious traditions, provided that such difference is firmly rooted in factors with fall within the margin of appreciation of the State. This change in approach to the duty of neutrality and impartiality means that the ‘public realm’—represented here by the public school room—no longer has to be seen to be a ‘religiously neutral’ space in order for that obligation to be fulfilled. The State can be ‘neutral and impartial’ whilst ‘perpetuating’ the traditional place of religions in the public life of the country. Indeed, it can do more, since the Court expressly acknowledges that ‘respect’ implies ‘some positive obligation on the part of the state’. If, as has been suggested, this means that State preference for traditional religions is now within the ‘margin of appreciation’ in the context of Article 2 of the First Protocol, surely this must have powerful implications for its more general jurisprudence under Article 9. Moreover, could those implications extend to taking positive measures to support traditional religions? If that were to be one of the consequences of the Lautsi judgment, then it would be a very significant turning point indeed.

EUROPE AND THE SIGN OF THE CRUCIFIX: ON THE FUNDAMENTAL QUESTIONS OF THE LAUTSI AND OTHERS V. ITALY CASE András Koltay* I. Introduction It is not an overstatement to claim that the Lautsi case is about much more than simply the legal issue decided by the Strasbourg Court. In addition, the case provided an opportunity to think about the present and future of Europe as a whole. In certain parts of Europe, the respect and acceptance of religious traditions healthily blends in with the everyday life of society, whereas certain other countries have an attitude full of serious contradictions towards the Christian past. The situation in Hungary is not so obvious. Although the Hungarian national anthem begins with “O, Lord, bless the Hungarians …,” we can find various churches and other houses of prayers next to each other in downtown Budapest, one of our most important national holidays commemorates King Saint Stephen founder of our State, the Hungarian royal crown (labelled as “Holy” by historic remembrance) is also topped with a cross, and without the Western Christian tradition, this country probably would not exist today, all this does not necessarily mean that the nation has reconciled society with its own religious traditions. The majority of non-believers are probably not bothered by this heritage, which is present at every street corner; they happily sing the National Anthem at the games of the national football team even if they do not belong to any denominations of the Christian faith. However, we still cannot say that the questions raised by the presence in society of Christianity or religion in general have been resolved with satisfaction. At the social level, a satisfactory answer cannot be expected in these turbulent times following the twentieth century, but at the same time—and the Lautsi case proves this—this hiatus is not necessarily a typical Hungarian or Central Eastern European feature. Although the crucifix does not hang on the walls of Hungarian State schools, the issues raised by the case are of significant importance for us as well.

*  The author wishes to express gratitude for the encouraging comments of János Zlinszky, as well as the constructive criticism and comments of Zoltán Péteri, Balázs Schanda, András Jakab, Balázs Fekete, and Lóránt Csink which they made regarding the earlier drafts of this paper.

356  András Koltay II.  The Most Important Criticisms of the Two Lautsi Decisions According to the first Lautsi decision,1 the State has a duty to uphold religious neutrality in public education; the Court could not see how the display of crucifixes could serve the maintenance of educational pluralism. The Court further held that parents had the right to educate their children in conformity with their convictions and children had the right to decide on what to believe. According to the critics of this first judgement, the decision failed to take into account the pluralism of European States and societies and wanted to set a “One Size Fits All” European standard despite the fact that a number of different, and accepted, forms of the separation of Church and State exist all across Europe.2 According to Lamb, the decision confirmed the secular principles of the European Convention on Human Rights over the moral principles of Christianity (upon which many European States were built).3 In her concurring opinion to the second Lautsi decision, Judge Power, criticising the first decision, opines that the second decision only confirmed a body of settled jurisprudence with regard to the fact that mere ‘offence’ or ‘feeling offended’ by an undesired statement did not reach the level for which the Court could provide protection for the offended individual.4 In the second Lautsi decision,5 the Court disagreed with the Second Section by finding that there was no evidence to support that the displaying of a religious symbol had an influence on pupils; the crucifix on the wall was a “passive symbol” (paras. 66 and 72). The applicant’s subjective perception with respect to the occurrence of the injury was not in itself sufficient to establish such injury (para. 66). According to the critics of the second judgement, the Court’s assumption regarding the passivity of the crucifix as a symbol was based on a misunderstanding. A symbol is necessarily passive in the sense that it is lifeless and incapable of action. However, the message is not passive and is sufficient to influence schoolchildren, which is impermissible.6 There is no answer to the 1   Lautsi v. Italy, 3 November 2009, European Court of Human Rights, No. 30814/06 (also referred to as the ‘first Lautsi’ decision). 2   J.H.H. Weiler, ‘Crucifix in the Classroom Redux’, 21 European Journal of International Law (2010), pp. 2–3. 3   Rob Lamb, ‘When Human Rights Have Gone too Far: Religious Tradition and Equality in Lautsi v. Italy’, 36 North Carolina Journal of International Law and Commercial Regulation (2011), p. 765. 4   On the first decision and the effects thereof, see: Balázs Schanda, ‘Vallási Jelképek az Állami Iskolákban – Jegyzetek a Lautsi kontra Olaszország Ítélet Nyomán’ [‘Religious Symbols in StateSchools – Notes on the Lautsi v. Italy Decision’], 20:3 Acta Humana (2009), pp. 27–32. 5   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights, No. 30814/06 (also referred to as the ‘second Lautsi’ decision). 6   Lorenzo Zucca, ‘Lautsi – A Commentary of the Grand Chamber Decision’, Social Science Research Network, working paper, 14 April 2011, pp. 2–4, available at .

Europe and the Sign of the Crucifix  357 question as to why the crucifix can be considered more passive than the Muslim headscarf (with respect to which the Court previously rendered several decisions). As the judgment stated, besides the fact that the crucifix is above all a religious symbol, it also contributes to Italian identity and is traditionally on the walls of schools. The decision whether or not to perpetuate this tradition falls within the margin of appreciation of the State. Zucca challenges this decision because it was based on the margin of appreciation principle. The Court deferred to the decision-making competence of the States for the decision as to what manner they guarantee the right of parents to provide an education to their children in accordance with their convictions. According to the same author, the application of the margin of appreciation principle passes the decision to the majority in questions presented in the case or similar situations, and this encroaches upon the rights of the minority.7 In his concurring opinion, Judge Bonello raised the question as to whether the facts presented a human rights question (thus implicitly criticizing para. 63 of the second decision’s reasoning);8 in other words, should not the Court have declined to hear the case due to lack of jurisdiction? Smet, similarly, initially had doubts as to whether displaying the crucifix should be considered such an education or teaching question that can be analysed from the Convention’s point of view, but later he accepted the existence of a human rights issue in this case.9 But if one assumes that there is no ‘educational activity’ in the present case, the right to (neutral) education could not have been violated either. III.  Questions of the Relationship between State and Church A.  Interpretation of Secularism, or do the Rules of the Secular State Demand the Removal of Crucifixes from the Walls of State Institutions? According to the ideal of the secular public sphere, the crucifix and religious symbols in general have no place within the walls of State institutions. According to this view, social integration can only become reality in a purely secular, non-religious environment. This rule, by analogy, also extends to State-run educational institutions. The fundamental right to freedom of religion also extends to freedom from religion and to the possibility, at least in the public sphere, that the person exercising this right be able to avoid an

  Ibid., pp. 10–12.   Concurring Opinion of Judge Bonello to the Lautsi and Others v. Italy decision, para. 3.2. 9   Stijn Smet, ‘Lautsi v. Italy: The Argument from Neutrality’, Strasbourg Observers, 22 March 2011 (see both the article as well as the added ‘addendum’). 7 8

358  András Koltay encounter with any religious concepts. Based on freedom of religion, everybody has the right to make an informed choice as to which religion they want to follow, which religion they want to reject, and whether they want to live without following any religion. With respect to this decision, the majority’s will cannot influence or put any pressure on them. According to the ideal of radical secularism, a non-religious, lay public sphere is the only solution to ensure equal treatment for the members of society and the peaceful coexistence of religious minority communities, agnostics, and atheists.10 According to the critics of the Grand Chamber’s decision in the Lautsi case, the Court did not provide an adequate answer to the questions revolving around the interpretation of secularism, which necessarily arose in connection with the case. Namely, the decision considered secularism as an ideology or philosophical concept, one of many competing views. In contrast, according to the correct interpretation, secularism is one of the principles that guarantees the functioning of the constitutional State. This view wishes to separate secularism from ‘ideologies’ presented in the form of religions, making it the guiding principle of the functioning of the State by basically placing it above them. According to Zucca, secularism is not the absence of something (in the present case the absence of religious symbols in the public sphere), but rather it is a principle that makes liberty, equality, and solidarity possible at a social level. The duty of the secular State is to protect the diverse society. Zucca acknowledges that secularism is not a ‘neutral’ choice, as no political view is, but he believes that this can provide the best default framework for the realisation of a diverse society.11 According to the dissenting opinion of Judge Malinverni and Judge Kalaydjieva to the decision of the Grand Chamber, the ideal of the secular State requires that neutrality applies not only to the school curriculum per se but also to the whole educational system (actually, the majority opinion also agrees with this).12 In one of his writings, Zucca drew attention to the dangers of secularism. In response to András Sajó’s article,13 he expressed that secularism could also serve to make dialogue impossible between the different groups of society, and it could not deal with the characteristics of a pluralistic society. Instead of assisting in the resolution of existing problems, secularism sweeps them under the rug by banning religious issues from the public sphere. Zucca does not see 10   Gabriel Andreescu and Liviu Andreescu, ‘The European Court of Human Rights’ Lautsi Decision: Context, Contents, Consequences’, 9:26 Journal for the Study of Religions and Ideologies (2010), pp. 64–67. 11  Zucca, supra note 6, pp. 5–8. 12   Dissenting Opinion of Judge Malinverni Joined by Judge Kalaydjieva (to the Lautsi and Others v. Italy decision), para. 3. 13   András Sajó, ‘Preliminaries to a Concept of Constitutional Secularism’, 6 International Journal of Constitutional Law (2008), pp. 605–629.

Europe and the Sign of the Crucifix  359 how secularism could be able to serve simultaneously both the rights of freedom from religion as well as freedom of religion. Namely, banning religions from the public sphere inevitably conflicts with the right to practice one’s religion. According to Zucca, the problem is not the existence of religions but the inability of States to manage the difficulties caused by the pluralistic society.14 The radical approach to secularism, in my opinion, is not appropriate for adequately managing the serious issues raised in today’s Europe. According to Weiler, the tensions of present-day Europe do not materialize primarily in the fight between religions; the division is much more extreme between religious and non-religious (secular) people. In this struggle, sending religion into exile from the public sphere cannot be considered a neutral response. Thus, removing the crucifix is not a more neutral move than leaving it untouched. According to Weiler, the obstacle to peaceful coexistence and pluralistic society is if we make the public sphere ‘neutral’ in this manner.15 András Pályi quoted a Polish religious historian (Tadeusz Gadacz), according to whom today: two models compete: the post Enlightenment French model and the model of Jagiellonian-Poland proclaiming religious tolerance in Europe for the first time … today, the former seems to be prevailing. He [Gadacz] describes the difference between the two the following way: ‘In Jagiellonian times there were Polish cities where next to the Catholic church and the Protestant chapel a synagogue and mosque stood, and after the ceremony the priests of each religion stepped out to the street in their own outfit and lived their lives like that in public. In contrast, the French model forces the priest to change into civilian clothes after the ceremony and mingle in the crowd like that. Some call this tolerance. But it does not have much to do with tolerance. This is the new, secular ritual imposed upon everybody.’16

In connection with the Lautsi case, the debate surrounding the philosophicalideological foundation of human rights can be also heated up. While, according to some, the respect for human rights derives partially from the Judeo-Christian religious tradition, others consider human rights as an instrument against the social influence of religions. Despite the fact that the migration of religious and theological concepts into secular law can be clearly verified, and, therefore, the respect of human rights can only be separated from Christian traditions with great difficulty, followers of secularism are keen to use these rights in their arguments aimed at restricting the ‘latitude’ of religions. The crucifix-case provides an opportunity for a new clash between the 14   Lorenzo Zucca, ‘The Crisis of the Secular State – A Reply to Professor Sajo’, 7 International Journal of Constitutional Law (2009), pp. 509–514. For Sajó’s response, see András Sajó, ‘The Crisis That Was Not There: Notes on a Reply’, 7 International Journal of Constitutional Law (2009), pp. 515–528. 15  Weiler, supra note 2, pp. 3–5. 16   András Pályi, ‘Kereszttel Vagy Kereszt Nélkül?’ [‘With or Without a Cross?’], 53:49 Élet és Irodalom, 4 December 2009.

360  András Koltay conflicting views. Indeed, if human rights are closely linked with Christianity, it would be absurd to demand the removal of the crucifixes in their names; if, however, in Elie Wiesel’s words, the respect for human rights is a “secular religion”, then their removal is clearly an obligation. (At the same time, however, in the latter case the possibility of the interpretation of secularism as a neutral ‘rule of the game’ is also becoming limited.)17 In my view, with the adoption of secularism, it directly follows that religions and their practice in general are pushed back in the private sphere. Obviously, it does not mean that, for instance, the organizers of a religious procession would be denied permission to use the public areas, but religion would be exiled from the public sphere. According to certain interpretations, freedom of conscience and freedom of religion are not included within the ‘communication rights’, but rather they belong primarily in the private sphere of the individual, and their public expression and practice are not necessary.18 This is perhaps a less nuanced perception: the public confession and outward expression of faith is, by its nature, an integral part of religions. Religion is not a private matter. Freedom of religion is an individual and collective right at the same time. If it did not also have a collective manifestation, then in the absence of institutionalised churches, its distinction from the other forms of free speech would be unwarranted (its external manifestation would be adequately protected by the right to freedom of speech, and its internal aspect by the protection of privacy).19 According to Puppinck, if individuals are only entitled to freedom of religion with the restriction that they have to refrain from practising their religion publicly, this would only create the illusion of religious neutrality. Indeed, religions by nature are social phenomena; the denial of this or restriction of its consequences would ultimately undermine the right of the individual. According to this, the first Lautsi decision would have expected the Italian State to pretend that Italian society and culture was religion-free. By contrast, says Puppinck, the State and the people living there necessarily have identities, which, also necessarily, have religious dimensions. Those who invoke the argument of liberty in the Lautsi case believe that with the right of freedom of religion, it follows that they are entitled to live in a public sphere free from religions.20 In other words, they are really claiming that their freedom of religion is violated by others practising their right to freedom of religion.   About this debate and Wiesel’s comment, see Zachary R. Calo, ‘Pluralism, Secularism and the European Court of Human Rights’, 26 Journal of Law & Religion (2010–2011), pp. 111–114. 18   Gábor Halmai, A Véleményszabadság Határai [The Limits of Freedom of Opinion] (Budapest: Atlantisz, 1994), pp. 112–115. 19   Péter Paczolay, ‘A Lelkiismereti és Vallásszabadság’ [‘Freedom of Conscience and Religion’], in Gábor Halmai and Gábor Attila Tóth (eds.), Emberi Jogok [Human Rights] (Budapest: Osiris, 2003), p. 538. 20   Grégor Puppinck, ‘An Alliance against Secularism’, L’Osservatore Romano, 28 July 2010. 17

Europe and the Sign of the Crucifix  361 My opinion is that if we restrict the freedom of communities in the name of protecting individuals’ rights, this might undermine the rights of individuals belonging to the community, though I accept the fact that the protection of outward expressions of religion cannot be unqualified. This is true for communities of any size (families, schools, and societies as well). However, Pup­ pinck goes beyond this to raise the question of whether making individual autonomy absolute would lead to making the rights deriving from this absolute, and thus to the annihilation of the State’s interests.21 According to Weiler, the balance must be found between the right to freedom from religion (negative freedom of religion) and the community identity of the nation as well as the interests of the State in its symbolic manifestation.22 In contrast, according to Mancini, providing privileges to the religion of the majority, State religion, or the culture connected thereto means discrimination against minorities. Accordingly, the first Lautsi decision was the appropriate move against the tyranny of the majority.23 In my opinion, the weak point in the views that are unable to accept the display of the crucifix is that they only consider worthy of protection individuals or entities living in a vacuum, outside the community or beyond this, as members of minority communities. Those individuals who are unfortunate enough to belong to a majority community would necessarily be restricted in their rights in the interest of protecting minorities and other individuals outside the community, and do not receive the same, enhanced level of protection they would otherwise be entitled to as a result of the recognition of their human rights. This restriction contradicts the principles and objectives of equal human dignity. In other words, the right answer is not to totally offset the balance towards the direction of minorities and individuals but to find the appropriate balance between the interests of majority communities and others. Thus, according to certain views, radical secularism is indispensably important for the functioning of the constitutional State. According to others, it is nothing more than one of the competing ideologies, whose selection violates the ideological neutrality declared by the State. According to the latter worldview, secularism is itself an ideology, and while it proclaims itself as the fundamental principle stemming from necessary neutrality and requiring predominance, it violates the very neutrality that was designated as its desired result.

 Idem.  J.H.H. Weiler, ‘State and Nation: Church, Mosque and Synagogue – the Trailer’, 8 International Journal of Constitutional Law (2010), p. 161. 23   Susanna Mancini, ‘The Crucifix Rage: Supranational Constitutionalism Bumps Against the Counter-Majoritarian Difficulty’, 6 European Constitutional Law Review (2010), pp. 16–17, 24. 21 22

362  András Koltay It does not require extraordinary courage to conclude that secularism does not have a uniform, generally accepted meaning in Europe. Accordingly, with respect to the Lautsi case, I think that with the analysis of this principle (or ideology) alone, the question before the Court cannot be answered. B.  Toward the Pluralistic Society, or Whether the First or Second Lautsi Decision Promotes the Proper Functioning of Pluralistic Society? According to Zucca’s commentaries to the second Lautsi decision, secularism (at least its interpretation that requires the non-religious public sphere) and social pluralism go hand in hand. A European society can only become pluralistic if the State “frees itself from the grip of one religion”. As he writes, Italy had remained remarkably homogeneous (judging by the context, “homogeneous” here is probably a negative value judgement), because the vast majority of people are Catholic.24 In contrast, Weiler believes that European societies are naturally diverse. Due to the common European heritage, both freedom of, and freedom from, religion are possible. Europe accepts and respects the French (based on the principle of laïcité) and English (built on the Anglican Church of England) models for the realisation of freedom of religion, as it also accepts the Swedish, Danish, Greek, and Italian solutions. A given State (through its elected representatives) can decide that from now on they follow the French model, but the Court cannot make this mandatory for any State. Religious tolerance cannot include intolerance against religions or national identity. According to Weiler, the first Lautsi decision did not manifest the pluralism and diversity of the Convention but the values of laïcité.25 At the same time, Zucca in another study drew attention to the fact that while the model of French laïcité cannot be considered the general practice of secular States (its rigour is not typical elsewhere), the English and Italian solutions referred to by Weiler are secular with respect to the division of State and Church (we cannot say that in these societies the Church would have an excessive influence on the public sphere). Thus, secularism is present everywhere in Europe to a greater or lesser extent. Zucca accepts that the State has the right to decide which manner and form of secularism it chooses. Thus, laïcité cannot be forced onto any of them.26 The differences between Zucca’s and Weiler’s views can be basically traced back to the debate surrounding the definition of secularism. If we believe in  Zucca, supra note 6, p. 9.  Weiler, supra note 22, pp. 162–163. 26   Lorenzo Zucca, ‘Crucifix in the Classroom: the Best Solution to the Lautsi Case’, Social Science Research Network, working paper, August 2010, available at . 24 25

Europe and the Sign of the Crucifix  363 radical secularism, then it seems natural that one of the building blocks of a diverse society capable of peaceful coexistence and cooperation must be a religion-free public sphere. If, however, we understand a diverse Europe as a basic attribute (and in my opinion we cannot justifiably do anything else), then to the contrary, we can perceive this strict secularisation as a factor inevitably undermining this diversity. Exposure to religious views may increase tolerance toward them and the potential to understand and accept them. This could be especially important during the encounters between Islam and Europe. If the public sphere is stripped of religions, this could suggest to religious people (the pupil participating in public education) that the public sphere “does not welcome” but only tolerates religions or banishes them into the private sphere. Weiler says that freedom from religion cannot be an absolute right, because by making it absolute, we would encroach upon others’ positive freedom of religion (the right to practice one’s religion).27 Annicchino notes that the bare wall stripped of the crucifix is also harmful because it prevents children attending school from being exposed to religious symbols (even to more than one at the same time) and beginning to familiarise themselves with different religions and, through this, with serious issues and problems facing society as a whole. The description of the bare wall as neutral sweeps these under the rug. Democracy is not an empty space but a ground where respect for, and acceptance of, differences must be achieved. According to the author, the removal of the cross facilitates the termination of the discourse and cannot serve the principle of pluralism.28 According to the Coalition of Professors intervening before the Strasbourg Court in the Lautsi case, the displaying of the crucifix on the wall of the school means not the end of an argument but an invitation for dialogue.29 According to Weiler, pluralism would be facilitated if everybody could display their own religious (or other ideological) symbols in the classroom. The school cannot prohibit this without infringing the principle of pluralism. Modern European societies must show respect toward the different religions and worldviews, and children must be raised accordingly. Respect is not achieved by making all these symbols disappear. If the educational program attaches importance to the representation and presentation of the values of tolerance and mutual respect, then religious symbols may have a place on classroom walls.30 Smet, in his paper commenting on the decision of the Grand  Weiler, supra note 7, p. 160.   Pasquale Annicchino, ‘Is the glass half empty or half full? Lautsi v. Italy the European Court of Human Rights’, Stato, Chiese e Pluralismo Confessionale (2010), p. 18. 29   Comments of Coalition of Professors of Law, 2010, para. 6, available at . 30  Weiler, supra note 2, p. 5. 27 28

364  András Koltay Chamber, also took a stand for open neutrality. Open neutrality would not ban the use of religious symbols from the public sphere (like its opposite, closed neutrality), but, to the contrary, it would allow all symbols into the public sphere.31 Varsányi raises the question as to whether a solution allowing the display of all religious symbols (say, per the request of children going to the given class or their parents) would be in line with the first Lautsi decision. He takes it from the Court’s reasoning that under the interpretation of the first decision, the obligation of religious neutrality would prohibit this, too. As he writes, “this direction of reasoning shows the tendency that the pluralism argument is separated from its original consideration (the respect for the parents’ religious and ideological convictions), as well as from the objective institution-protection approach connected to freedom of conscience and religion, and it becomes a separate, ‘laicity’-type, imperative neutrality principle.”32 According to Calo, we will be able to close the debate on the appropriate interpretation of secularism and pluralism satisfactorily when we rise above the scope of earlier interpretations, and the age of ‘post-secularism’ arrives. This is because it would not be impossible to reconcile respect for religious tradition and human rights, even if, besides the numerous commonalities, there is a lot of tension hidden in their relationship. If we look at religious tradition as a system of norms, which is different from the system based on the respect for human rights but is capable of enriching the discourse about the nature of human rights and the moral foundations of the modern world, then we can leave the debate where the main question is whether secularism itself is an ideology or indeed a neutral ‘organising principle’ undecided.33 Thus, we can choose the best solution for achieving (maintaining) the pluralistic State depending on which interpretation of secularism we believe in and on whether we can rise above the ‘traditional’ narratives of secularism.34 If, however, we accept the argument of Weiler and Smet in connection with the walls open for symbols, we have to answer one additional question: how can we reconcile, if at all, the principle of ‘open neutrality’ with the fact that although the display of all religious symbols is permitted, there is one among these whose display is mandated by the State. Another question is whether the display by the State of non-religious (cultural) symbols is permissible. In other

 Smet, supra note 9.   Benedek Varsányi, ‘Az Erősebb “Nem” Jogán? Az állam Semlegessége, Lelkiismereti és Vallásszabadság a Lautsi-ügy Tükrében’ [‘In the Right of the Stronger “No”? The Neutrality of the State and the Freedom of Conscience and Religion in Light of the Lautsi Case’], 14:4 Fundamentum (2010), p. 93. 33  Calo, supra note 17, pp. 114–117. 34  Idem. 31 32

Europe and the Sign of the Crucifix  365 words, can religious and ‘purely’ cultural symbols be treated differently in this respect? C.  The Meaning of State Neutrality, or Does the Neutral State Require the Removal of the Crucifix from Classroom Walls? What does the principle of State neutrality mean with respect to the representation of religions in the public sphere? From radical secularism it would follow that religions cannot be present in any manner in the public sphere. Thus, it does not only mean that the State cannot prefer one religion to the detriment of the others, but that it cannot allow the representatives, symbols, rituals, and other acts within the, broadly interpreted, territory of the State. The ‘softer’ interpretation of secularism would not ban religions from the public sphere, but it would not allow the State to treat any of them differently from the others. In other words, the rules of equal treatment would have to prevail in this respect, too. It follows from both views that the crucifixes could not stay on the classroom walls of State schools. However, there is another interpretation of State neutrality. Pursuant to the constitutional law principle of neutrality, the State is not allowed to select from among the available ideologies and value judgements. It has to treat them equally. Thus, it cannot give one a more favourable position, in any form, than the other.35 The principle of neutrality, however, can only be maintained as long as it guarantees that everybody can freely choose from among the available ideas. In other words, the State cannot force anybody when making this decision. The State, however, cannot be completely independent, and this principle does not expect indifference from it. According to the Hungarian Constitutional Court, “from the fact that the State itself is neutral does not follow the negative freedom of religion, and even less so the support of religious indifference.”36 It does not follow from the principle of pluralism that the State cannot designate priorities on ideological bases. However, it does follow that it cannot demand exclusivity and cannot say that only the ideology it prefers is correct. The individual was not born into a vacuum anyway. The surrounding cultural environment provides him with the possibility of value selection, and the State has an important role to ensure that the choice among different alternatives is possible, with an emphasis on those alternatives that feature the values most characteristic of their own citizens, and compared with other options, to support them with more emphasis. By way of (historical) examples: the man of modern times condemns the destruction of the several thousand years old 35   See János Kis, ‘Az Állam Semlegessége’ [‘The Neutrality of the State’] (Budapest: Atlantisz, 1997). 36   Decision No. 4/1993, (II. 12.) AB, Reasoning, para. A(I)(1)(c).

366  András Koltay Buddha statutes in Afghanistan by the Taliban in general, irrespective of whether or not he is a Buddhist, and also condemns the destruction of the statues of Notre Dame during the French revolution and agrees with the renovation via public funds of the cathedral from time to time irrespective of whether or not he is a member of the Catholic church or accepts Christianity. Deciding on what days the State should designate as public holidays, what they teach in schools, whether they should maintain a ministry of culture, all require choices of value judgements, which are absolutely necessary and desirable.37 The task should be carried out even if at a given moment only a smaller proportion of the community deems it necessary or important: the value does not depend on how many recognise it, after all we also cling to democracy, although we probably will never reach the point when joint decisions will really be made by the majority and really based on careful consideration, after a debate of rational and carefully considered arguments. It would be worthwhile to maintain libraries and galleries even if only a few would be interested in them, simply because the protection of values that must be preserved based on a certain consensus made in the past, even if that consensus is no longer clearly apparent or widely debated. Of course, it cannot mean the formal reduction of the State’s latitude to, for instance, determine cultural public policy by referring to some sort of a timeless cultural tradition. However, the State (the Government) must necessarily consider even as a matter of its own interest these traditions. The State and the actual Government cannot distance themselves from the history and traditions of the given country or nation; those that act like this are sooner or later doomed to fail. However, obviously, a State decision that would call for the removal of crucifixes (into the private sphere) based on changed social circumstances is not inherently impermissible (prohibited). At the same time, it is a question whether an international body (court) has such degree of authorisation to influence State policies. Respect for the principle of State neutrality thus cannot mean an exit from the cultural traditions and their forced removal from the territory of the State. Religious tradition is inseparably intertwined with cultural traditions, and this is a given fact in every European State. Consequently, the principle of State neutrality is not violated if representatives of certain religions and certain Churches enjoy (to a limited extent) a preferred status, which they gain from the State. In Hungary, for example, representatives of the ‘historic’ Churches (the Catholic, Reformed, Evangelical, Unitarian and the Jewish religious communities) providing military camp services may assist members of the 37  Sanford Levinson, ‘The Tutelary State: “Censorship”, “Silencing”, and the “Practices of Cultural Regulation”’, in Robert Post (ed.), Censorship and Silencing – The Practices of Cultural Regulation (Getty Research Institute for the History of Art and the Humanities, 1998), pp. 195–220.

Europe and the Sign of the Crucifix  367 military; their important historical personalities are treated with emphasis in the curriculum of public education; political figures participate in their public Church sermons; they have religious programs in public media services; their buildings and churches may receive public financing for renovation; and their educational and social activities are carried out for the most part with public financing, similarly to the other European States. If the State provides funding for libraries, mass sports, and culture, because it realises that such funding can create or preserve certain values, then the Churches also have the right to financial support.38 Meanwhile, the State preserves its neutrality by refraining from ‘conversion’. In other words, it does not influence the thinking of its citizens and does not expect them to identify with the Churches that are placed into more favourable positions. Of course, ‘placing into a more favourable position’ itself may have a direct influence. In other words, with respect to certain religions, the State takes a position, and by supporting it, makes it clear that it values the activities of the religion or its representative Church benefitting from this positive discrimination. This, at the same time, does not mean that the State is applying pressure toward its citizens but stems from the recognition of the cultural tradition as described above. The representative of Buddhist teachings is treated the same way as Christians. In Hungary, the Archbishop of EsztergomBudapest and the guru have equal rights; only the organisations they represent have different social importance and cultural relevance. Exactly for this reason, based on objective considerations, the State may rationally differentiate between government funding for Buddhist or Catholic schools. In contrast, the State cannot discriminate against the non-beneficiary Churches and religions. For example, the Buddhists may receive government funding for maintaining educational or social institutions, Hungarian pupils may also study about Buddha, and so forth. Under this interpretation, State neutrality is not incompatible with the compulsory display of crucifixes in State schools. As Weiler writes, displaying in the classroom the portraits of ‘heroes’ of the secular State (in other words, ‘purely’ cultural symbols) also does not comply with the broad interpretation of State neutrality (according to which this space must be free from religious symbols). Why is it more neutral to hang Voltaire’s portrait on the wall promoting the ideals of ‘liberty, equality, and fraternity’ than to display the crucifix? Why does it not violate the principle of neutrality if other ideological symbols (such as the universally used peace sign) are displayed instead of religious ones?39 In my high school in Budapest, the homeroom teacher displayed   Balázs Schanda, Magyar állami Egyházjog [Hungarian State Canon Law] (Budapest: Szent István Társulat, 2003), pp. 206–207. 39  Weiler, supra note 22, p. 159. 38

368  András Koltay the portrait of István Széchenyi, the great nineteenth century statesman. And with this, the homeroom teacher took a position. Nobody, neither pupils nor parents, thought about protesting against this decision, so the ‘greatest Hungarian’ was a witness for four years of all the misadventures of a middle school class. We could say that in this case we do not talk about a personality linked to a religion, so his appearance did not violate the neutrality of State education. However, I do not see in connection with this issue how national and religious traditions could be properly separated. However, there is one dividing line. Namely, that the national-historical tradition does not have a transcendent aspect, while the religious does. Therefore, the latter points from the ‘historical-cultural’ reality toward a higher sphere. At the same time, the formation and evolution of the European States were inextricably intertwined for centuries with religions and Churches, and only as the result of a fairly new historical development have Churches been somewhat excluded from the public sphere. Széchenyi is the perfect example of this intertwining, as he, a devout Catholic, could not and did not even want to separate his religiousness from his public activities (obviously, in this respect, it was easier for him in midnineteenth century Hungary). Thus, the religious and cultural meanings of certain symbols used in certain contexts inseparably intertwine. According to Carozza, cultural tradition exists whether we want it or not, and we cannot erase or rewrite it entirely, only perhaps revise the current one40 (but, obviously, not by a simple, central decision and from one day to the next). Judge Bonello writes in his concurring opinion to the decision of the Grand Chamber that “[a] court of human rights cannot allow itself to suffer from historical Alzheimer’s”.41 Later on Judge Bonello makes the analogy with the Strasbourg Court’s decision in the Akdaş v. Turkey,42 according to which the decision banning the distribution of one of Guillaume Apollinaire’s rather pornographic novels violated the right to freedom of speech enshrined in Article 10 of the European Convention. The Court (the same Second Section that rendered the first Lautsi decision) found that the novel is part of the European literary heritage. If this is so (and in my opinion this is indeed the case), then the question is why Christian tradition was not worthy of a few thoughts in the reasoning of the first Lautsi decision. According to Sajó, the interpretation of State neutrality according to which certain religions and Churches receive government funding and favoured status because of tradition, “in reality, is only a bias in favour of the preservation

40   Carozza’s opinion is quoted by Eric Rassbach, ‘The Persistence of Memory’, The Becket Fund, 25 March 2011, available at . 41   Concurring Opinion of Judge Bonello, supra note 8, para. 1.1. 42   Akdaş v. Turkey, 16 February 2010, European Court of Human Rights, No. 41056/04 (discussed by Judge Bonello, ibid., at paras. 4.1–4.2).

Europe and the Sign of the Crucifix  369 of the status quo”.43 According to this view, religious neutrality can only aim at full equality, and neither ‘size’ nor ‘historical-national merits’ are permissible considerations in determining the manner and extent of government funding. I argue in this Section as well as in Section IV that this view leaves a sense of void, considering that we cannot deprive the State and society of their religious and cultural traditions with simple, administrative decisions; the interruption of the transfer of religious traditions in this manner would be the denial of the historical past, which would result in the lack of understanding of the processes of the present.44 According to Puppinck, it follows from the spirit of the first Lautsi decision that the Court should not close at Christmas and Easter and should adopt a new calendar that avoids any references to Jesus Christ (just as it was done by the French revolutionaries some two hundred years ago; and as a matter of fact, Judge Bonello addresses a similar question to the applicant).45 According to Puppinck, the religious identity of a society cannot be ‘neutralized’. It can be denied, fought against, and replaced, but it cannot be neutralized. In light of this, it is questionable whether a supranational body can make an attempt to modify the religious identity of a country.46 In my opinion, it is very difficult to make a consistent and principled distinction between religious and cultural symbols and in the related question regarding the permission to display. This is because, on the one hand, religious symbols are also at the same time cultural symbols (e.g., if we display in the classroom a picture of the statue of the founder of the State, King Saint Stephen, in which he is holding in his hands the Apostolic double cross, then do we have to consider it as a religious or cultural symbol?). On the other hand, cultural symbols also represent clear positions in a debate about values similarly to religious symbols, and, thus, if displaying the latter violates the neutrality of the State, then it would be difficult to defend the former, too. Displaying the State coat of arms on the walls of public institutions already represents a position (yet, it has not occurred that it would be impermissible). Weiler notes that the Italian State’s argument in the Lautsi case (according to which the crucifix is primarily a cultural symbol) undermines its significance; as a result, the State indirectly admits that religious symbols have no place in the public sphere.47 In one of his other papers, however, Weiler acknowledges

43   András Sajó, ‘Concepts of Neutrality and the State’, in Ronald Dworkin et al. (eds.), From Liberal Values to Democratic Transition. Essays in Honour of János Kis (Budapest: CEU Press, 2004), pp. 107–145. 44   See also Calo, supra note 17, p. 109. 45   Concurring Opinion of Judge Bonello, supra note 8; see para. 1.6. 46  Puppinck, supra note 20. 47  Weiler, supra note 2, p. 3.

370  András Koltay that the crucifix is not solely a religious symbol.48 I agree with the notion that if we strip the crucifix of its religious meaning, we offend those believing in the crucifix. However, I think that religious symbols cannot necessarily be completely separated from cultural symbols, because religions have been shaping and are still shaping culture. Hence, it is not necessary to choose between one or the other meaning of the crucifix; both can be accepted simultaneously (or acknowledged by those who reject the religious meaning). In summary, one of the possible interpretations of State neutrality continues down the path of the interpretation called radical secularism and would banish all religious symbols from the public sphere. The other view is more permissive than this, and says that based on historical-cultural traditions, the State can treat certain religions as more important than others, if it does so with appropriate caution and by avoiding discrimination against other religions. However, it does not necessarily follow from the latter view that the State would have the right to require the display of crucifixes on the walls of State institutions. Those who acknowledge this right have to also look for additional arguments. 1.  Strasbourg Jurisprudence Regarding Religious Neutrality and Public Education In the Folgerø and Others v. Norway case,49 the Grand Chamber held that education that respects and builds upon religious tradition in itself is not contrary to the right to freedom of religion or freedom of education under the Convention. As background to the case, the Norwegian State had made compulsory a subject in primary schools that discussed religious and philosophical questions; its curriculum consisted in a significant part of Evangelical Lutheran teachings, which is considered the State religion in Norway, as well as teachings of other Christian religions. The complaining parties requested a full exemption from the subject for their children, which was denied by the authorities. The Strasbourg Court found that the Convention is not violated by the mere fact that Christian teachings receive more emphasis in the curriculum. The problem was that from the regulation it was not clear in which situations parents could request partial exemption for their children, and what kind of protection existed for the parents if they did not want to reveal their own (children’s) religious convictions, which is one of the most confidential elements of personal data. In addition, based on the curriculum, it was also not clear for the Court how the teaching of the subject promoted the mutual understanding and acceptance between different cultures and faiths. Because of these issues,  Weiler, supra note 22, p. 162.   Folgerø and Others v. Norway, 26 June 2007, European Court of Human Rights, No. 15472/02. 48 49

Europe and the Sign of the Crucifix  371 the Court finally found, by a narrow majority, that the Norwegian State violated the Convention, but it is much more important for us what it said beyond this. Clearly, the inclusion in the curriculum and compulsory taking of the subject has a much stronger effect on the pupils than the display of a symbol on the wall. However, it did not occur to the Court that the more emphasized representation of Christianity (far exceeding other religious and ideological views) in itself would raise the violation of the principle of State neutrality and pluralism, because it recognized the legitimacy of the Norwegian cultural and religious traditions even in the context of a human rights debate. In the Zengin v. Turkey case,50 one of the Sections of the Strasbourg Court accepted that Turkish schools give greater priority to the branch of Islam followed by the majority in the course of teaching the relevant subject. The Court ruled for the applicant because the applicant did not have an appropriate method for exemption from attending these classes and studying the subject, but it recognized that in a pluralistic State both the majority and minority views can enjoy protection and that the restriction of any viewpoint (even the majority’s) undermines pluralism.51 Interesting parallels can be drawn between the first Lautsi decision and the Second Section’s decision a year earlier, composed of almost the same members. In the Vajnai v. Hungary case,52 the Court found impermissible the full and categorical ban of the use of the five-pointed red star by primarily reasoning that it is a symbol of multiple meanings and, thus, its display at public events does not necessarily mean identification with the communist dictatorship. Thus, the multiple meanings of the red star was a decisive factor in the case for the Court; while in the Lautsi case, although the Court did not dispute the potential multiple meanings of the crucifix, the Court did not find this argument sufficiently significant. The decision of the case turned on the interpretation of this issue, as the display of cultural symbols probably could not have resulted in the violation of the rights to freedom of religion and freedom of education. Indeed, the crucifix is primarily a religious symbol, but there are also strong arguments in support of its interpretation as a cultural symbol. We could rightfully defer to the Italian State the possibility to decide with which of its meanings the State expected the crucifix to be displayed. It is because the red star in the eyes of the (Hungarian) public is clearly the symbol of the communist dictatorship, even if in other places it is identified with social

  Zengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04.   Coalition of Professors of Law, supra note 29, para. 24. 52   Vajnai v. Hungary, 8 July 2008, European Court of Human Rights, No. 33629/06. Later the same Section in Fratanoló v. Hungary (3 November 2011, European Court of Human Rights, No. 29459/10) confirmed the Vajnai decision and its reasoning. 50 51

372  András Koltay democracy or ‘peaceful’ socialism.53 (At the same time, the analogy between the two cases is undermined by the fact that while in the Lautsi case the symbol was ‘used’ by the State, in the Vajnai case it was used by a private citizen.) According to certain opinions, stated generally within informal settings, the crucifix, similarly to the red star, is an offensive symbol for many because many inhumane acts were committed in its name (similarly to communism symbolized by the red star). Such historical debates are beyond the scope of this contribution, but may it suffice to say that identifying the crucifix primarily with its ‘offensive’ meaning, overlooking its positive role in European history, thereby drawing parallels between the Christian ideals and the ideology of the communist dictatorship (which cannot claim a similarly positive role for itself), seems seriously misleading. 2.  The Bavarian Crucifix Case The German Federal Constitutional Court rendered a decision in 1995 in a case involving facts very similar to the Lautsi case.54 Following a constitutional complaint, the tribunal declared the compulsory display of the crucifix in Bavarian schools as unconstitutional. According to the majority opinion, the law was violated by the condition that the children had to face the crucifix every day as a result of the will of the State. Although the display of the crucifix did not make identification with it mandatory, it qualified as a statement that was impermissible. The decision was a target of numerous fierce criticisms, but the new regulation replacing the repealed decree found a civilized solution to the problem. According to the new Bavarian law, although displaying the crucifix in the classrooms is compulsory, the parents have the right to protest, in which case, the school has to remove the symbol.55 3.  Relevant US Cases It is worthwhile to cite a few relevant cases from the jurisprudence of the United States. In the 1984 Lynch v. Donnelly case,56 for example, the Supreme Court did not find it a violation of the Establishment Clause, which requires the religious neutrality of the State, that the city of Pawtucket of Rhode Island displayed Christian symbols at its annual Christmas fair. The case is an excellent illustration of the ‘slippery slope’ doctrine of American constitutional law. This principle implies that there could be legal restrictions that could cause serious damage even if they meet all necessary constitutional requirements, 53   Regarding the criticism of the judgement made in the Vajnai v. Hungary case, see András Koltay, ‘A Vajnai-ügy’ [‘The Vajnai Case’], 1 Jogesetek Magyarázata (2010), pp. 77–82. 54   BVerfGE 93, 1 – Kruzifix. 55   For more details, see Schanda, supra note 4, pp. 30–31. 56   Lynch v. Donnelly, 465 U.S. 668 (1984).

Europe and the Sign of the Crucifix  373 as once they are declared constitutional, nothing could prevent the legislature from introducing other restrictions referencing these previously enacted measures. Frederick Schauer refers to the arguments raised in the Lynch v. Donelly case as an example of all this. If we regard it as constitutional that the city organizes a Christmas exhibition on its own main square, where they also use different symbols of Christianity, the next step is that cities organize religious ceremonies in public places, after which city officials participate in such events, and in this manner, sooner or later we reach the point where the Churches are supported with State resources. However, the slippery slope principle can also be used for the opposite argument. If we prohibit the organisation of a Christmas exhibition including Christian symbols in the main square of the city because we want to respect the ideological neutrality of the State, the next step might be to prohibit in all State institutions the mentioning of religion, stop teaching the Bible during literature classes, remove the paintings of religious themes from State museums, and finally stop the protection by the police and fire department of Church buildings.57 Justice Brennan wrote a dissenting opinion to the decision, in which he emphasized that the State or local government could only represent the meaning of Christmas that was accepted, and could be related to, by everyone (e.g., the joys of family time). In his view, degrading religious symbols to cultural symbols could not be accepted by the followers of the religion (since they were also restricted in their original, religious use), and non-religious people were also disturbed by using their ‘cultural’ meaning. The position of Justice Brennan seems incoherent because Christmas as a whole, in fact, is a Christian holiday (even if the majority of society may not consider it so), and the mandatory deprivation of its religious nature not only restricts but also actually eliminates the possible meaning of the holiday. In addition, if during the official ceremony or by the decoration, the local government emphasized the importance of family time, how should people living alone, outside a family, feel? Are they not offended by the emphasis on the family nature of the holiday, while they perhaps only saw it as a day off when they did not have to go to work? What is the limit to restricting the application of possible meanings without the restriction becoming unreasonable or straight out absurd? The 2010 Salazar v. Buono case58 was about a cross erected by war veterans in the Mojave Desert in 1934 to honour the fallen of World War I. In 1994, the area where the eight foot cross stood was declared a nature conservation area. Shortly after this, a suit was filed with the competent District Court claiming that the permanent ‘presence’ of the cross on public land was unconstitutional. In its decision, the court ordered to remove the cross, and the decision was   Frederick Schauer, ‘Slippery Slopes’, 99 Harvard Law Review (1985), p. 381.   Salazar v. Buono, 130 S. Ct. 1803 (2010) (No. 08–472).

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374  András Koltay later affirmed by the higher judicial forum, the US Court of Appeals for the Ninth Circuit. At this point, the US Congress decided to exchange the subject parcel with a private party to save the memorial, but the court prevented the transaction. As a result of the appeal from this decision, the Supreme Court reversed the judgement and remanded the case to the lower court for retrial. The Supreme Court emphasized in the reasoning of its opinion that “[p]lacement of the cross on federal land by private persons was not an attempt to set the state’s imprimatur on a particular creed.”59 The purpose was simply to honour the fallen soldiers, and in the last seventy years, this meaning was entrenched in the public conscience. Interested people observing the case from a distance inevitably formulate the question as to whether it is right or, more precisely, acceptable if in the name of constitutionality the removal of old monuments could arise primarily because the doctrine of State neutrality had significantly changed in the past decades. If the meaning of the memorial’s cross was clear (i.e., honouring the victims of the war) at the time it was erected in 1934, can it follow from the modifications of constitutional thinking that occurred since then that the cross had to be dismantled? Or if it is obvious that a symbol served otherwise peaceful and noble purposes (as in the case of a memorial), could the possible modification of its meaning throughout the times lead to its removal, disregarding that long period of time during which it really did not bother anybody? Is there not something inherently barbaric in the demand that the mentioned war memorial disappear from the face of the Earth or at least be removed to a private property (where, as a symbol erected by the community for some important reason, would automatically lose its meaning)? 4.  The Analogy between the Cases Discussed and the Lautsi Case The Folgerø and Zengin cases reveal that according to Strasbourg, the State does not have to precisely measure the time provided to each religion for participating in the public sphere and being present in the curriculum, but rather in line with the cultural traditions of the given country, the State can designate, with certain strict conditions, those religions and Churches for which it guarantees a more emphasized presence compared to the others. Weiler, who prefers the display of various different symbols, is probably not overly satisfied with the result of the Bavarian crucifix case. The new rule became removal in case of a complaint and not the display of other symbols upon demand. Thus, although the crucifixes can typically remain in their places, the State reacts to complaints with bare walls, which means that it closes the debate immediately rather than initiates one. In contrast, Zucca would find   Salazar v. Buono, ibid., Opinion of J. Kennedy, section III.

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Europe and the Sign of the Crucifix  375 the best solution of the Italian crucifix case to be that, while the display of the symbol would remain compulsory, the parents would have the right to protest against this. In this case, it would be decided at a discussion forum, after thoughtful deliberation and joint reasoning, whether the crucifix could remain in its place, the wall must be bare, or other symbols should be placed next to the crucifix. Thus, Zucca would combine the Bavarian solution and the idea Weiler raised.60 From the two American cases, it can be concluded that the presence of religious symbols in the public sphere does not inevitably violate the principle of State neutrality. In addition, increased caution is justified with respect to the determination of the nature of historical monuments offending religious neutrality. At the same time, the Lautsi case is simultaneously about the recognition of cultural tradition and the display of a religious symbol by the State. Therefore, the Strasbourg and American cases cannot be considered entirely analogous. D.  ‘Freedom of Speech’ of the State, or Whether the State May Represent the Opinion of its Citizens? The analyses in the previous parts of this contribution built upon each other and led together to the issue of the State’s ‘freedom of speech’. In my opinion, there is no such uniform definition of secularism generally accepted in Europe that could serve as a basis for the decision of an international court in a case with facts similar to the Lautsi case. The argument continues that the pluralistic and diverse Europe distinguishes between and permits many forms of State attitudes towards religion. Based on the third argument, religious practice cannot be purely a ‘private matter’, because it necessarily has community and, what is more, social manifestations. According to the fourth argument, State neutrality does not mean indifference toward religions, and the State’s conduct arising from the obligation of neutrality may reflect the cultural traditions of the given State. The next step, which will round off the argument, is the recognition of the State’s ‘freedom of speech’ in issues concerning the cultural (and religious) traditions of its citizens. The State obviously cannot be the subject of fundamental rights, including freedom of speech, but it can have objectives and interests that require public communications on its part. If we consider the State (or more precisely its different representatives, together forming a rather diverse group, the Parliament, the government, the education policy, the cultural policy, etc.) as the representative of society ‘who’ acts in the name of society, then it can assume a role in the communication and expression of the opinion of its citizens.  Zucca, supra note 26.

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376  András Koltay Judge Rozakis, in his concurring opinion (joined by Judge Vajić), referred to the right of the social majority, based on which it can express its religious conviction. According to the Judge, the State’s decision regarding the display of crucifixes aims at the expression of the opinion of the majority community.61 We cannot think of the State as the subject of freedom of speech but rather as an entity that is capable of restricting freedom. The Lautsi case also focused on the State restricting freedom of religion and education. The State (primarily, the Parliament and organs executing certain public policies) has the right (and in a number of cases even the obligation) to take a stand in disputed (even in ‘life or death’) issues. We have already mentioned these obligations of the State in the course of our analysis of the content of State neutrality. The State institutions make the decision, for example, as to how much money is spent in support of culture, and in what proportion it is distributed among theatres, museums, and film production companies; they decide what should constitute the curriculum of public education, whether the life’s work of Sándor Petőfi, the revolutionary nineteenth century poet has to be taught in the schools; they decide on how much money they give to institutes of higher education and what courses the money should be spent on, et cetera. Nobody disputes the fact that a society (or a nation, people, or community) has the right to maintain its self-identity and preserve its cultural tradition, and in doing so, it may receive assistance from the State. It is also hardly disputable that the majority communities in society may receive a larger proportion from this assistance than other communities (in other words, the Hungarian State provides greater assistance for the support of Hungarian culture than for the development of the culture of any other nation). We also have to accept that ‘the State’, in the context of the crucifix-case, based on democratic authorisation, includes the various public bodies and persons (e.g., Parliament, the government, and the institution executing education policy) charged with representative rights and making decisions in the name of the majority. It follows from all this that when the State decides to make it compulsory to display the crucifixes on classroom walls of State schools, it actually conveys the opinion of its citizens. It recognizes a religious tradition, deems it worthy of support, and expresses the importance thereof. Further, it does this without forcing anybody to accept it. For me the question is not whether this purpose of the State is legitimate (as we have seen, the State in many contexts and subjects cannot even avoid to openly take a position), but whether it oversteps the scope of the permissible exercise of rights by making the display of the crucifix compulsory.

61   Concurring Opinion of Judge Rozakis joined by Judge Vajić (to the Lautsi and Others v. Italy decision), para. (iii).

Europe and the Sign of the Crucifix  377 Regarding the latter issue, I believe that if the State does not try to force anyone to accept the views it thinks to be sensible or cultural traditions it thinks to be worthy of its protection, and it only offers these as options for its citizens, then the State does not overstep the boundaries of its permissible latitudes. In the judgement of the crucifix-case, the ‘reasonable observer’ category of the American jurisprudence might provide some assistance. The ‘reasonable observer’ is similar to the ‘reasonable reader’ of British defamation lawsuits. The courts describe this ‘reasonable reader’ as someone who “does not live in an ivory tower”, can read between the lines, and is capable of interpreting the entire text with its connections and in context.62 The hypothetical standard of the average person, the average reader, “the man on the Clapham omnibus”, or the ‘reasonable reader’ is relevant for the determination of the injury. Accordingly, the ‘reasonable observer’ is a person who, when he encounters a cross at a public place, can properly judge what the symbol means as well as why and in what circumstances it was erected. In the Salazar v. Buono case, the different courts involved argued about what the ‘reasonable observer’ would think about the cross at issue in the case. I think that the hypothetical European average person knows exactly that with crosses standing in public places the State does not want to convert him, the majority of them have been in place for long decades and centuries, and in most cases, the religious meaning of the crosses indeed fades and becomes secondary to the cultural meaning. If a hypothetical average European sees a church with scaffolds, he does not think about how much money the State might pull out from the taxpayers’ pockets with the renovation, but that based on what he observes, the State properly undertakes its conservation obligations. In other words, pursuant to my conclusion, if the exercise of the State’s ‘freedom of speech’ does not exceed an acceptable limit and does not put pressure on its citizens with respect to choice between the various views, the expression of cultural traditions and presence in the public sphere can be acceptable. IV.  The Real Significance of the Lautsi Case: Fundamental Questions The Lautsi case is about much more than the issues directly decided by the Court. The debates surrounding the Lautsi case in reality are about Europe’s past, present, and future, as well as about the principles determining the coexistence of European people. According to Puppinck, the debate revolves around the definition of the European identity.63 Andreescu, after the first   Lewis v. Daily Telegraph, [1964] AC 234, HL.  Puppinck, supra note 20.

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378  András Koltay Lautsi decision, envisioned a new picture of the future for Europe. He predicted the removal of religious symbols from public institutions and the termination of State practice in connection with the prioritisation of Churches. It would have replaced the values represented by Churches with the values solidified during the 50 years of the European Convention on Human Rights.64 The second Lautsi decision has crossed out this calculation for now, but open questions still remain. Next, at the level of raising a problem, I pose two questions that were raised in connection with the Lautsi case and the Strasbourg Court’s freedom of religion related jurisprudence, and crucially affect the future of Europe. First, what is the role of Christianity in today’s Europe? Second, can the approach of the law be different to issues raised by Christianity and Islam, and if so, why and to what extent? Weiler, in his book relating to the ‘Preamble debate’ of the European Constitution, expressed his incomprehension at Europe failing to accept its own historical roots. This is because, besides Greek democracy and Roman law, primarily the sacrifice on the Hill of Golgotha made Europe into what it is (of course, there are many other factors, for example, the Enlightenment that made respect for human rights generally accepted). The rejection of this, according to the otherwise non-Christian author, is a sign of a serious identity problem.65 According to the also non-Christian Jürgen Habermas: egalitarian universalism, from which sprang the ideas of freedom and social solidarity, of an autonomous conduct of life and emancipation, of the individual morality of conscience, human rights and democracy, is the direct heir of the Judaic ethic of justice and the Christian ethic of love. This legacy, substantially unchanged, has been the object of continual critical appropriation and reinterpretation. To this day, there is no alternative to it. And in light of the current challenges of a postnational constellation, we continue to draw on the substance of this heritage. Everything else is just idle postmodern talk.66

In the course of the debate between Habermas and Joseph Ratzinger (who later became Pope Benedict XVI), it seemed possible that such an approach was taking shape, which would strive to advance the values of Christianity and the Enlightenment in support of each other rather than against each other.67

64   Gabriel Andreescu, ‘A Civil értékek Elidegenítése a Diszkrecionális Alkotmányos Jogokkal Való Visszaélés után’ [‘Alienation of Civil Values after Taking Advantages of Discretional Constitutional Rights’], 15 Magyar Kisebbség (2010), p. 184. 65  J.H.H. Weiler, Keresztény Európa [Christian Europe] (Budapest: Szent István Társulat, 2006), pp. 68–72. 66   Jürgen Habermas, Time of Transitions (London: Polity, 2006), pp. 150–151. 67   On the debate of Habermas and Benedict XVI (Joseph Ratzinger) on this subject, see Jürgen Habermas and Joseph Ratzinger, A Szabadelvű Állam Morális Alapjai [The Moral Foundations of the Liberal State] (Budapest, Gondolat, 2007).

Europe and the Sign of the Crucifix  379 Not recognizing the importance of Christianity means misunderstanding Europe’s real image. It does not mean that everybody has to necessarily accept the primacy of Christianity over other worldviews, but it means that it cannot  be ignored. Therefore, if we argue about school crucifixes, we cannot pretend that the European history of ideas began with the Enlightenment and European history after 1945. We would be lying to ourselves. Regarding the second question about the symbols of Islam, the Strasbourg Court has so far deferred to the discretion of the Member States in determining whether these symbols (headscarves) could be worn in the public sphere (the question was typically raised in the context of schools). The Court did not find a violation of the freedom of religion clause of the Convention in cases of rather strong restrictions. In the Şahin v. Turkey case,68 a university student was banned from wearing a headscarf within the institution, and when she refused to remove it, they imposed various sanctions on her. The Grand Chamber of the Strasbourg Court stressed that the headscarf was such a powerful external symbol that the wearing of it was hard to reconcile with tolerance, respect toward others, as well as with equality and the prohibition of discrimination.69 (At the same time, if the Court indeed, in a manner hard to explain, attached such meaning to the headscarf, then instead of finding that the State could ban its use in schools, it should have found that the State must ban it.) In the Dogru v. France70 and Kervanci v. France cases,71 the Strasbourg Court did not find that expelling Muslim girls from school violated the Convention either. The girls wanted to wear their headscarves during physical education classes as well. The school prohibited this, and for violating of this prohibition, they were expelled from the institution. In this case, thus, the Court found that educational policy and harmonious assimilation into the community were more important than the right to freedom of religion.72 The Court declared in both the Turkish and French cases that secularism was such an important constitutional principle in the given countries that the restrictions employed qualified as necessary in a democratic society. In addition, in the Refah Partisi and Others v. Turkey case,73 the Court indirectly took a stand regarding the radical branch of Islam and found that it could not really   Şahin v. Turkey, 10 November 2005, European Court of Human Rights, No. 44774/98.   Ibid., para. 111. 70   Dogru v. France, 4 December 2008, European Court of Human Rights, No. 27058/05. 71   Kervanci v. France, 4 December 2008, European Court of Human Rights, No. 31645/04. 72   On the Muslim headscarf case, see Balázs Schanda, ‘Vallásszabadság az Európai Emberi Jogi Bíróság gyakorlatában’ [‘Freedom of Religion in the Jurisprudence of the European Court of Human Rights’], 7:2 Vallástudományi Szemle (2011), pp. 16–28; and Balázs Schanda, ‘Fejkendőviselet az iskolában’ [‘Wearing Headscarves in School’], 8:2 Fundamentum (2004), pp. 115–121. 73   Refah Partisi and Others v. Turkey, 13 February 2003, European Court of Human Rights, Nos. 41340/98, 41342/98, 41343/98, and 41344/98. 68 69

380  András Koltay be compatible with pluralistic democracy, basic freedoms, and democratic ideals.74 In deciding debates in connection with Islam, the Court’s position, summarized briefly, raises further questions. The first is whether the restriction against wearing Islamic symbols is really justified if it is done by private individuals (students), and if with this, they do not commit any direct or indirect indoctrination, in other words, if they do not wish to convert anybody from among their peers? Would not the limited use of these symbols be acceptable in the public sphere (in many European countries, for that matter, there are no prohibitive rules)?75 The negative feelings toward Islam appear to be instinctive reactions. Although the Court tried to refer to various constitutional principles in its decisions, in reality it did not do anything else but defer the decision of the issue to the States (as it did it in the second Lautsi decision). However, deferring the decision is also a positional statement. Although the Court did not state it, and perhaps could not state it, it seems to have applied a special standard in connection with Islam. In its decisions, it has condemned the radical branch of Islam several times. If we want to put it firmly, we can state that Europe’s ‘reflex of self-defence’ is reflected in these decisions of the Court. The second question that arises from these cases is: if the Court, indirectly though, went into the evaluation of the Muslim religion and, at least in general, compared its teachings with certain building blocks of European civilisation and constitutional thinking, then why is it so scrupulously careful to avoid the evaluation of the social role of Christianity? This shyness can be explained by the fact that while with regard to Islam’s role in Europe, with a cursory glance, a more or less uniform opinion has formed in the public, Christianity is in the crossfire of sharp debates. The third issue is that the existence of the loose and superficial European consensus taking shape as regards Islam (according to which increased caution is at least justified in connection with Islam) can also be used for once and for all doing away with Christianity’s participation in the public sphere. This disguised, rarely openly pronounced assumption, is not benefiting from the Strasbourg Court’s decisions, in which the Court takes a position with respect to the social role of Islam, but does not talk in the same disapproving manner about Christianity. Under the pretext of forcing back Islam, by the way, the presence of Christianity in the public sphere can be attacked by seemingly principled arguments. It can be claimed that the exercise of freedom of religion   Ibid., see, e.g., para. 99.  For similar arguments, see Nicholas Gibson, ‘Right to Education in Conformity with Philosophical Convictions: Lautsi v. Italy’, 2 European Human Rights Law Review (2010), pp. 211–212. On the ‘double standard’ regarding Islam, see also Paolo Ronchi, ‘Crucifixes, Margin of Appreciation and Consensus: the Grand Chamber Ruling in Lautsi v. Italy’, 13 Ecclesiastical Law Journal (2011), pp. 296–297. 74 75

Europe and the Sign of the Crucifix  381 in general should be banished to the private sphere, and the secular State cannot tolerate any religions in the public sphere (and especially, it cannot place any religion in a more favourable position). This seemingly coherent position would treat Christianity and Islam the same way by regarding them as similar sources of a threat, the potential oppressor of European democracy and basic freedoms. According to my view, this opinion disregards the winding paths of European history and traditions and would prefer to see it start with a ‘blank slate’ with the Enlightenment, as the intellectual roots of European civilisation, and with 1945, as its ‘real’ history (but with preserving the tormenting memory of the trauma of World War II). This is, however, impossible; knowledge and acceptance of the past, including the adequately empathic interpretation of the role of Christianity, cannot be missed if we talk about our present and future. V. Conclusion Only a sufficiently nuanced assessment is in order regarding the Lautsi case. This is why the first decision left the reader with a serious feeling of want as to its reasoning. On the other hand, the second decision, originating in the Court’s previous jurisprudence and understanding of its own role, avoided taking a position in the really important questions. We, however, can draw a few conclusions. The first is that secularism does not have such a generally accepted European meaning based on which a supranational Court could render decisions. Because of this, it is not clear which interpretation would take us closer to the appropriate functioning of the pluralistic State. It also follows from this that it cannot be said with absolute certainty that freedom of religion (and freedom of education) can be reached only through radical secularisation (through ‘bare walls’). The second is that State neutrality cannot mean State indifference, and the State can also take positions in value debates (but it cannot force anything on anybody in this respect). In the process of the inevitable value judgement of the State, minority demands that are against the (indirectly expressed) will of the majority cannot mean an automatic ‘veto’. Minority rights do not extend to the unconditional obstruction of any will of the majority. The third is that tradition and history do matter. Tradition includes religious tradition, and tradition must be dealt with somehow. We cannot pretend it does not exist. And tradition differs from country to country, which makes the job of international judicial forums more difficult.76

76   For conclusions in many aspects similar to mine, see John Witte, ‘Lift High the Cross? An American Perspective on Lautsi v. Italy’, 13 Ecclesiastical Law Journal (2011), pp. 341–343.

382  András Koltay The Lautsi case stirred a great debate in Hungary, too. The debate, however, was not overly sophisticated. The strict critics of Christianity cannot part with certain general clichés and tones intended to be cynical which makes a substantive debate impossible. The latter became especially strong when the Hungarian Government passed a Resolution “on concerns in connection with the decision of the European Court of Human Rights regarding the prohibition of displaying crosses in connection with Italian schools”.77 These critics did not accept that the Christian tradition also belongs to them, even if they cannot or do not want to have anything to do with it. This is not a matter of choice, but a given, historical fact. This is sad, because there would be a lot to discuss about the current situation and future role of Christianity and the Churches, but we cannot get to this point yet. We can be grateful to Mrs Lautsi, however, because she provided the opportunity to begin the debate.

  Government Resolution 1138/2010, VII. 1.

77

RESTRICTING THE PUBLIC DISPLAY OF RELIGIOUS SYMBOLS BY THE STATE ON THE GROUNDS OF HATE SPEECH? Hin-Yan Liu* I. Introduction On 18 March 2011, a split majority of the Grand Chamber1 of the European Court of Human Rights (ECtHR) reversed the unanimous decision of the Chamber2 that the mandatory display of the crucifix in public school classrooms had violated the right to education under Article 2 of Protocol 1 and the freedom of religion as guaranteed by Article 9 of the European Convention of Human Rights (ECHR). Both the Chamber and the Grand Chamber declined to address the discrimination claim under Article 14 of the ECHR. This chapter explores the limits that may justifiably be imposed upon the manifestation of religious symbols in the public sphere by the State. As there are no stipulated requirements for the relationship between the Church and the State within the Council of Europe—and despite the general predominance of secularism within modern European States—there remains a significant degree of variation in Church-State relationships. This is especially the case with the interpretation and application of secular ideas which may be compatible with the ECHR.3 Furthermore, the acceptance of a range of Church-State relationships correlates with both the ‘substantive’ and the ‘structural’ aspects of the ECHR’s margin of appreciation doctrine accorded to Member States.4 Some of these different Church-State relationships may, however, have intolerable consequences for State neutrality in denominational affairs and conflict with individual rights protected under the ECHR. Part of the perception of conflict is due to the mistaken conflation between principles of secularism and State *  Research for this chapter was generously supported by the Social Sciences and Humanities Research Council of Canada and the King’s Annual Fund. I would like to thank Agnieszka Mlicka and Ming T. Lin for their insightful comments on previous drafts. This chapter expands upon ideas originally presented in ‘The Meaning of Religious Symbols after the Grand Chamber Judgement in Lautsi v. Italy’, 6(3) Religion & Human Rights (2011), pp. 253–257. 1   Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights, No. 30814/06 (hereafter the ‘Grand Chamber decision’). 2   Lautsi v. Italy, 3 November 2009, European Court of Human Rights, No. 30814/06 (hereafter the ‘Chamber decision’). 3   Dominic McGoldrick, ‘Religion in the European Public Square and European Public Life  – Crucifixes in the Classroom?’, 11(3) Human Rights Law Review (2011), pp. 453–456. 4   For an influential theory on the margin of appreciation, see G. Letsas, ‘Two Concepts of the Margin of Appreciation’, 26(4) Oxford Journal of Legal Studies (2006).

384  Hin-Yan Liu neutrality. Whereas secularism may itself constitute a world-view or belief system, it is susceptible to regulation and limitation on par with other religious systems. The tolerance-based principle of State neutrality, which should be understood as a position of equidistance and impartiality,5 is unconcerned with the particular perspectives that characterise belief systems and instead dictates the requisite level of State detachment from the arena of denominational matters.6 Seen in this way, it is clear that there is the potential for Statesanctioned secularism to violate the principle of State neutrality. Secularism is not synonymous with neutrality and a State that champions secularism may in fact be taking a stance in denominational matters. Religious symbols are, by both their nature and function, discriminatory mechanisms that serve simultaneously to ostracise those who do not share the belief system and to reinforce solidarity within the group of believers. The Regional Administrative Court in the Lautsi saga, although ultimately rejecting the discriminatory effect of the crucifix, nevertheless recognised this potential: The logical mechanism of exclusion of the unbeliever inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity … In Christianity, even the faith of an omniscient god is secondary in relation to charity, meaning respect for one’s fellow human beings … The cross, as a symbol of Christianity, cannot therefore exclude anyone without denying itself; it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such, irrespective of any belief, religious or other, which he or she may hold.7

The Regional Administrative Court’s claim that Christianity, and its symbol of the crucifix, is the sole exception to the forces of exclusion inherent within organised belief systems is questionable as a dogmatic assertion provided without sufficient grounding. Furthermore, not only is subsidiarity of the tenants of the Christian faith to universal values extremely contentious, but the message received by the perceiver need not necessarily correlate with the intended message of the sender. Returning to the ostracising effect of religious symbols, the discriminatory role these symbols play may mark the point of departure towards greater hostility. As Susanna Mancini has suggested:   Italian Constitutional Court Judgement No. 508 of 20 November 2000. See paras. 24 and 25 of the Chamber Judgement. 6  Some commentators have pointed to the dual role of neutrality; see for instance Malcolm Evans and Peter Petkoff, ‘A Separation of Convenience? The Concept of Neutrality in the Jurisprudence of the European Court of Human Rights’, 36(3) Religion, State & Society (2008). 7   Judgement No. 1110 of 17 March 2005, para. 13.4, as cited in Lautsi v. Italy, 19 March 2011, European Court of Human Rights, No. 30814/06, para. 15. 5

Restricting the Public Display of Religious Symbols   385 Religious symbols, however, can easily turn into catalysts of aggression because they express and generate a primitive intellectual and relational level of human development—the level of blind fixations and belongings. Religious symbols unite, but at the same time they strengthen division and support the building of barriers between one’s self and the other. Majorities and minorities seek shelter in religious symbols as a reflex of the increasing difficulty they experience in finding a common core of shared civic values.8

I argue here that while the manifestation of personal religious convictions should not only be tolerated, but protected by the denominationally neutral State, the discriminatory effects of religious symbols preclude their public display by the State, its organs and its officials.9 Such official displays would violate the requirement for the State to be equidistant and impartial with regard to denominational affairs, but it is not only State neutrality that is at stake. Indeed, the partisan nature of the State display of religious symbols may constitute a subtle form of intolerable official discrimination; similarly, extreme situations of ostracization may render the State display of religious symbols as hate speech towards vulnerable and minority groups. Finally, it should also be noted at the outset that, due to the difficulty in generalising the discussion to the full range of religious symbols—the message embodied in the symbol necessarily reflects the explicit and implicit messages of the religion in question—this article will address only the symbol of the crucifix, unless stated otherwise, and the discussion will be generally limited to the Council of Europe context. It was, after all, the State display of the crucifix in Italian public school classrooms that was the point of contention in the Lautsi saga at the core of this book. I argue that there are more specific attributes of the crucifix, the Holy See, the Vatican, and the Catholic Church that may justify the curtailment of the official display of the crucifix beyond the State display of other religious symbols and in different contexts. II.  The Quest for a Denominationally Neutral Memorial in the United States of America The ostracising effect of religious symbols is readily demonstrable in a campaign on the tenth anniversary of the 9/11 attacks on the World Trade Centre in New York City. American Atheists filed a lawsuit to order the removal of a cross-shaped steel beam at the 9/11 memorial, or in the alternative to enable 8   Susanna Mancini, ‘The Power of Symbols and Symbols as Power: Secularism and Religion as Guarantors of Cultural Convergence’, 30(6) Cardozo Law Review (2008–2009), p. 2630. 9   While the State and its organs are abstract entities whose denominational affiliation may be absolutely prohibited, the situation with restricting such manifestation of its officials necessarily requires a balancing act that takes into account the freedom of thought, conscience and religion that attaches to the person of the official.

386  Hin-Yan Liu other denominational views equal representation.10 In a short blurb describing their legal challenge, the group state: We honor the dead and respect the families, which is why we will not allow the many Christians who died get preferential representation over the many nonChristians who suffered the same fate. This was an attack against America, not Christianity, and Christianity’s does not deserve special placement just because the girders look like their religious symbol.11

Although it should be emphasised that the importance of religious symbols accrue especial significance when individuals are mortality salient,12 this psychological effect serves to enhance the meaning of religious symbols. In this context, the American Atheists remind us of the humble and ordinary origin of this memorial cross: the buildings were made from girders crossing each other, and in the rubble some Christians found a pair of girders still welded that closely (not exactly, but closely enough) resemble a Christian Roman Cross. The cross has become a Christian icon.13

The challenge brought by American Atheists illustrates the deeply embedded psychological associations engaged with the display of religious symbols especially with regard to memorials. Indeed, the Supreme Court of the United States has recently decided a similar case concerning the legality of the Mojave Memorial Cross,14 a Latin cross that was placed by the Veterans of Foreign Wars Foundation in 1934 to honour American soldiers who died in World War I, in light of the Establishment Clause of the First Amendment.15 Justice Kennedy for a narrow majority of the Supreme Court held that “[t]he Con­ stitution does not oblige government to avoid any public acknowledgment of religion’s role in society”,16 citing previous case law to the effect that “[a] relentless and all-pervasive attempt to exclude religion from every aspect of public 10  Associated Press. ‘Atheists Ask Judge to Order Removal of 9/11 Memorial Cross’, The Guardian, 28 July 2011, available at . 11   American Atheists, ‘Ground Zero – An American Tragedy, Not a Christian Opportunity’, available at 12   Kenneth E. Vail III et al., ‘A Terror Management Analysis of the Psychological Functions of Religion’ 14(1) Personality and Social Psychology Review (2010), pp. 84–94. 13   American Atheists, supra note 11. 14   Salazar v. Buono, 28 April 2010, U.S. Supreme Court (official citation not yet available at time of writing), available at . See also Robert Barnes, ‘Supreme Court Overturns Objection to Cross on Public Land’, The Washington Post, 29 April 2010, available at . 15   The first clause of the First Amendment, known as the Establishment Clause, provides that “Congress shall make no law respecting an establishment of religion”. 16   Salazar v. Buono, supra note 14, at 15 of Justice Kennedy’s majority Judgement.

Restricting the Public Display of Religious Symbols   387 life could itself become inconsistent with the Constitution”.17 The tension surrounding the contentious meaning of the Mojave Memorial Cross is, however, readily illustrated. Justice Kennedy for the majority considered that “[h]ere, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten”.18 Justice Stevens wrote in his Dissenting Opinion that: The cross is not a universal symbol of sacrifice. It is the symbol of one particular sacrifice, and that sacrifice carries deeply significant meaning for those who adhere to the Christian faith. The cross has sometimes been used, it is true, to represent the sacrifice of an individual, as when it marks the grave of a fallen soldier or recognizes a state trooper who perished in the line of duty. Even then, the cross carries a religious meaning. But the use of the cross in such circumstances is linked to, and shows respects for, the individual honoree’s faith and beliefs.19

The fundamental disagreement regarding the meanings embodied within the crucifix on Italian public school classrooms closely resonates the contested meaning of the 9/11 and Mojave Memorial Crosses. Indeed, in these contexts, religious beliefs can be intricately related to many pivotal moments of human lives and individual experiences, which have been empirically demonstrated to operate in order to mitigate existential terror associated with a heightened awareness of mortality.20 While the contentious display of the crucifix in Italian schoolrooms in the Lautsi saga may not raise issues of the same magnitude, they are nevertheless within the same sphere as the public display of religious symbols. It doubtlessly creates divergent effects depending upon the religious symbol, the context within which it is displayed, and both the collective and individual audience perceiving the symbol. III.  Denominational State Neutrality in the Council of Europe In the introduction to this chapter (section I above), attention was drawn to the mistaken conflation between secularism and State neutrality. The relationship between secularism and State neutrality in denominational matters will be explored in this section.

  Lee v. Weisman, 24 June 1992, U.S. Supreme Court. 505 U.S. 577, at 598.   Salazar v. Buono, supra note 14, at 17 of Justice Kennedy’s majority Judgement. Justice Kennedy thus circumvents the more fundamental question as to whether the Mojave Cross can be suitably understood as a magnification of personal memorial crosses. 19   Salazar v. Buono, supra note 14, at 15 (fn 8) of Justice Stevens’ Dissenting Judgement. This perspective is borne out by the use of the Star of David in War Memorials to mark fallen Jewish soldiers. 20   Vail III et al., supra note 12, p. 87. 17 18

388  Hin-Yan Liu A.  The Bare Wall of ‘Aggressive Secularism’ in Christian Europe In a recent article, Dominic McGoldrick suggested that the Chamber deci­ sion in Lautsi might have constituted ‘aggressive secularism’,21 an expression rooted in the upper ranks of the Catholic Church meaning “those who would indeed try to destroy our Christian heritage and culture and take God from the public square”.22 The lynchpin of this presumption is essentially that, since Christianity permeates both European history and culture, the expression of Christianity in the public sphere is unproblematic. As the presumption rests upon the pre-existing Christian nature of Europe, any subsequent removal of Christian elements from the public sphere is seen, from this perspective, as the triumph of ‘aggressive secularism’ rather than an assertion of State neutrality through equidistance and impartiality in denominational affairs. The Concurring Opinion of Judge Bonello at the Grand Chamber is the prime and vocal example of this strand of objection to the removal of the crucifix, where the bare wall of the public school classroom would be evidence of ‘aggressive secularism’ winning against the status quo of the crucifix: Seen in the light of the historical roots of the presence of the crucifix in Italian schools, removing it from where it has quietly and passively been for centuries, would hardly have been a manifestation of neutrality by the State. Its removal would have been a positive and aggressive espousal of agnosticism or of secularism—and consequently anything but neutral. Keeping a symbol where it has always been is no act of intolerance by believers or cultural traditionalists. Dislodging it would be an act of intolerance by agnostics and secularists.23

Accusing the ECtHR of being an accomplice to “a major act of cultural vandalism”,24 Judge Bonello forcefully asserted the status quo of the crucifix’s position on the classroom wall both in terms of Article 9 and Article 2 of Protocol 1. In terms of religious rights, the Opinion stated perhaps paradoxically that “[f]reedom of religion is not secularism … In Europe, secularism in optional, freedom of religion is not”.25 The Opinion is to be welcomed insofar as it opens the debate by advocating the reconsideration of the requirements of freedom of religion and departs from the dogmatic allegiance to secularism. It is, however, unclear what principle of secularism Judge Bonello finds objectionable.

 McGoldrick, supra note 3, p. 463.   Riazat Brown, ‘Cardinal Keith O’Brien Warns of Threat from “Aggressive Secularism”’, The Guardian, 24 April 2011, available at . See also Riazat Brown, ‘Public Life Cannot be “God-free”, Says Cardinal’, The Guardian, 8 May 2008, available at . 23   Para. 2.10 of Judge Bonello’s Concurring Opinion. 24   Ibid., para. 1.4. 25   Ibid., para. 2.5 (emphasis in original). 21 22

Restricting the Public Display of Religious Symbols   389 With regard to the right to education, Judge Bonello justifies its presence upon balancing competing horizontal rights as well as the silence of the symbol.26 The first point, which is framed in balancing the competing rights of one against twenty-nine, is misconstrued. It presupposes the unified support of the crucifix by all of the other pupils and parents. Although this is clearly a possibility, this has neither been conclusively established nor does it take into account the requirement of State neutrality regardless of the assumed majoritarian position. The second point, addressed in greater detail below, relates to the purported silence of the crucifix as “a mute object”.27 Judge Bonello’s adamant defence of the presence of the crucifix, however, belies his claim; after all, why come to the staunch defence of a meaningless object on a schoolroom wall? Furthermore, it is difficult to see how ‘aggressive secularism’ may be levelled against ‘a mute object’ and how the bare wall behind can evince “a positive and aggressive espousal of agnosticism or of secularism”. Thus, rather than dwell on the idea of ‘aggressive secularism’ voiced by adherents to the Church, more mileage may be gained through the analysis of the requirement of State neutrality. B.  The Requirements of State Neutrality in Denominational Affairs In the context of public education, Jeroen Temperman suggests two bases upon which State neutrality should rest.28 The primary requirement arises from the compulsory nature of education that mandates individuals to be present on the premises regardless of consent, and relatedly, to foster a critical approach to belief systems.29 The second requirement arises from the need to provide adequate education to all children, which necessarily must take into account both the freedom of religion of the children as well as the parental rights of educating children in conformity with their beliefs.30 From these criteria, it is possible that a singularly secular approach to education may also violate the requirement of State neutrality. THis would be due to the primacy accorded to the secular world-view which would take precedence over competing religious perspectives. It does not follow, however, that the bare classroom wall bearing the imprint of the recently-removed crucifix would necessarily reflect the victory over secularism. Instead, the bare wall can be

  Ibid., paras. 3.1–3.6.   Ibid., para. 3.4. 28  Jeroen Temperman, ‘State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle, the Right to Adequate Education, Children’s Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers. 32(4) Human Rights Quarterly (2010), p. 865. 29   Ibid., 865–866. 30   Ibid., 866–867. 26 27

390  Hin-Yan Liu seen as representing the equidistance, impartiality, and even the indifference of the State in denominational matters.31 Beyond the educational context, Malcolm Evans and Peter Petkoff note that there are two strands of neutrality to be found within the jurisprudence of the ECtHR.32 First, the State is to remain neutral in the official determination or recognition of religious activity: “The State’s duty of neutrality and impartiality, as defined by the Court’s case-law, is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs”.33 Reinforcing this strand of neutrality, the Court in Masaev held that the power of the State to require the registration of religious denominations within its jurisdiction does not extend: to sanction the individual members of an unregistered religious denomination for praying or otherwise manifesting their religious beliefs. To admit the contrary would amount to the exclusion of minority religious beliefs which are not formally registered with the State and, consequently, would amount to admitting that a State can dictate what a person must believe.34

It may be argued that the display of religious symbols by the State violates this type of neutrality, but in reverse. While Metropolitan Church of Bessarabia and Masaev concerned the censure of individuals ascribing to minority religious beliefs, the Grand Chamber’s decision in Lautsi may have the effect of encouraging or rewarding those who adhere to the majoritarian religion. This is because majoritarian religious symbols, such as the crucifix, may be “used as a ‘public language’ of identity by the State”.35 Thus, similar effects are achieved by different means. In Metropolitan Church of Bessarabia and Masaev, the State attempted to delegitimise minority religions by the refusal of the authorities to recognise the Church and by fining those who practiced a religion that was not recognised by the State respectively. Through the Grand Chamber decision in Lautsi, the delegitimation of beliefs that were not Catholic is expressed in a more subtle manner; by encouraging children toward Catholicism. The corrosive effect upon State neutrality is the same whether it is pursued by the stick or the carrot respectively. The second strand of State neutrality concerns restrictions on the manifestation of religious belief, rather than restrictions upon the religion itself, and 31   This bare wall approach to State neutrality is likely to be the best approach. The obvious alternative, to display the symbols of all religious belief systems, is both likely to overlook the symbols of minority religions and conversely to suffer from spurious claims for inclusion. 32   Evans and Petkoff, supra note 6, p. 214. 33   Metropolitan Church of Bessarabia and Others v. Moldova, 13 December 2001, European Court of Human Rights, No. 45701/99, para. 113. 34   Masaev v. Moldova, 12 May 2009, European Court of Human Rights, No. 6303/05, para. 26. 35   Susanna Mancini, ‘Taking Secularism (not too) Seriously: The Italian “Crucifix Case”’, 1 Religion and Human Rights (2006), p. 180.

Restricting the Public Display of Religious Symbols   391 thus comprises the bulk of this chapter. This is that the State, within certain boundaries, may restrict individual manifestation of religious beliefs.36 The prime examples in ECtHR jurisprudence are Dahlab37 and Leyla Sahin,38 both of which concerned wearing the Islamic headscarf, considered as an individual manifestation of religious belief, in the pedagogical context. In Dahlab, the applicant was a primary school teacher whose claim that the requirement to remove the headscarf in the course of her professional duties violated her Article 9 rights was held inadmissible. In Leyla Sahin, the claimant was a medical student who unsuccessfully challenged the ban on wearing the headscarf at State educational institutions provided for under Turkish law. It would appear that this strand of State neutrality is both strong and robust since limitations upon the freedom to manifest one’s religion or beliefs need to be prescribed by law and necessary in a democratic society serving an enumerated list of interests.39 When this strand of State neutrality is applied to the mandatory display of the crucifix in public school classrooms it should be readily clear that the State should not be manifesting its religion since it does not have Article 9 rights, which would in any case be limited in light of the aforementioned jurisprudence.40 IV.  Divergence and Disagreement: The Contentious Nature of Religious Symbols A.  Secularised Religious Symbols? While the severe unconscious emotional influences associated with both the 9/11 and Mojave Memorial Crosses were presumably not invoked with the display of the crucifix on Italian public schoolrooms (see section II above), the difference is likely to be only in terms of magnitude. In the Lautsi v. Italy saga, a core divergence of opinion between the unanimous voice of the Chamber and the fragmented opinions of the Grand Chamber revolved around the impact and meaning of the crucifix. The most fundamental disagreement concerns the impact of the crucifix as a religious symbol. The Chamber followed previous jurisprudence in Dahlab41 and held that the crucifix was a “powerful external symbol”.42 The Chamber thus   Evans and Petkoff, supra note 6, p. 214.   Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, No. 42393/98. 38   Leyla Sahin v. Turkey, 10 November 2005, European Court of Human Rights, No. 44774/98. 39   Article 9(2) ECHR. 40   This is a heuristic comparison for illustrative purposes only. It is not suggested here that the State is actually capable of bearing the rights guaranteed under the ECHR. 41   Dahlab v. Switzerland, supra note 37. 42   Para. 54 of the Lautsi Chamber Judgement (supra note 2). 36 37

392  Hin-Yan Liu recognised the potential for divergent effects on pupils dependent upon their religious views or predispositions, which justified State neutrality and impartiality in denominational matters.43 The majority of the Grand Chamber, however, asserted the diametrically opposite by concluding that “a crucifix on a wall is an essentially passive symbol … It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities”.44 Downplaying and diluting the symbolic significance of majoritarian religious symbols has been a common tactic utilised by their proponents in justifying the continued retention of such symbols in the public realm. Susanna Mancini eloquently captured this effect: In both conflicts over majority as well as over minority symbols, courts and legislators tend to secularize the meaning of religious symbols and interpret them according to the sensitivities, prejudices, and claims of the majority.45

The underlying assumption is that, due to the religious heritage of European societies, the symbol of the crucifix has been neutralised of religious connotations when displayed in a non-religious context. B.  The Crucifix: Religious or Constitutional Symbol? Before moving to consider how the approach of the Grand Chamber in the instant case is inconsistent with the case law of the ECtHR more broadly, it is important to address the question as to whether or not the crucifix is a religious symbol, and whether exclusively or predominantly so. Somewhat counter intuitively, this remains a hotly debated and largely unsettled question. The Regional Administrative Court found that the meaning of the crucifix as a symbol was context-dependent; it possessed a religious meaning within a religious context or to believers of the faith while simultaneously being capable of evoking other fundamental or core values of the Italian Republic. It may be deduced from this reasoning that there are two distinct dimensions of meaning which could be ascribed to the crucifix: the lower and broader level associated with constitutional values which is available to everyone within the Italian Republic, which I will term ‘inclusionary’; and the higher and narrower level of the religious meaning that can only be accessible to believers of Catholicism, which I will label ‘exclusionary’. It is crucial to note the mutually-exclusive relationship between these dimensions of meaning; the symbol of the crucifix is incapable of simultaneously embodying an exclusionary religious meaning

  Para. 55 of the Lautsi Chamber Judgement (supra note 2).   Para. 72 of the Lautsi Grand Chamber Judgement (supra note 1; emphasis added). 45  Mancini, supra note 8, p. 2631. 43 44

Restricting the Public Display of Religious Symbols   393 and an inclusionary secular meaning. By dissecting the meanings attributed to the crucifix in this manner, and even conceding the congruence between the values of the crucifix and the Italian Constitution, the discriminatory effect of the crucifix remains discernible. This is because the religious dimension of the symbol of the crucifix remains wholly within the realm of those who believe and thus possesses an exclusionary effect against those who do not. After all, the essence of religious symbols is to denote a particular affiliation, and in doing so, differentiate from those who are members from those who are not. This was the reasoning adopted by the Regional Administrative Court in explicitly recognised this ostracising function that religious symbols play: In fact, religious symbols in general imply a logical exclusion mechanism, as the point of departure of any religious faith is precisely the belief in a superior entity, which is why its adherents, the faithful, see themselves by definition and by conviction as part of the truth. Consequently, and inevitably, the attitude of the believer, faced with someone who does not believe, and who is therefore implicitly opposed to the supreme being, is an attitude of exclusion.46

The ostracising function of the crucifix as a religious symbol is a manifestation of the exclusionary dimension of symbolism attributed to it, and is accessible only to believers of the faith, are difficult to rebut and inherently discriminatory. Despite the relative difficulty in opposing this interpretation, the Regional Administrative Court, however, continued by immediately carving an exclusion zone for the role of Christian symbolism: The logical mechanism of exclusion of the unbeliever inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity … In Christianity, even the faith of an omniscient god is secondary in relation to charity, meaning respect for one’s fellow human beings … The cross, as a symbol of Christianity, cannot therefore exclude anyone without denying itself; it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such, irrespective of any belief, religious or other, which he or she may hold.47

The sustainability of the inclusionary dimension of symbolism—those that are congruent with broader Constitutional values and secular principles—hinge upon the validity of this reasoning. The Court essentially claimed that the alleged parity between the Christian religion and broader constitutional and moral values justified the interpretation of Christian symbols as those symbols are capable of embodying broader values beyond its religious meaning. By disentangling the two divergent meanings ascribed to the symbol of the crucifix, it becomes clear that the exclusionary dimension is dominant for  Judgement No. 1110 of 17 March 2005, para. 13.2. See para. 15 of the Lautsi Grand Chamber Judgement (supra note 1). 47  Idem. 46

394  Hin-Yan Liu three reasons. First, there is the general exclusionary nature of religious symbols examined above. Secondly, as discussed below, the crucifix is predominantly if not exclusively a religious symbol regardless of the context in which it is displayed. Thirdly, the inclusionary dimension of symbolism is a contentious hypothetical claim that strongly hinges on the acceptance that the sign of the crucifix is capable of denoting universal values in the first place. In starker terms, it may be that the inclusionary dimension is only perceptible by those who, accepting the tenants of Catholicism, are also within the exclusionary dimension. Individuals outside of the Catholic faith may therefore remain blind to the inclusionary dimensions of symbolism which purportedly encompasses them. Thus, while the exclusionary religious dimension of the crucifix is firmly established, the countervailing argument that it also possesses an inclusionary dimension is subject to debate, resulting in the discriminatory effect of the sign of the crucifix. This effect is exacerbated by the favourable predisposition toward Christian religions to the ostracization of other religions in Europe, as Susanna Mancini writes: On the one hand, the religious significance of majority (Christian) symbols is watered down and interpreted in “cultural” terms, not as the symbols of a given religion, but rather as indicia of the historical and cultural dimensions of national identity. On the other hand, minority - and particularly Islamic - symbols are interpreted as expressions of cultural and political values and practices which are at odds with liberal and democratic ones.48

Returning to the Grand Chamber judgment, the NGO Greek Helsinki Monitor, intervening at both the Chamber and the Grand Chamber, held the position that the sign of the cross, and especially the crucifix, could only be a religious symbol: covering the perspective of both believers and non-believers, they said that to hold otherwise was not only considered as an insult to the Catholic Church, but also inconsistent with the view that adherents of other religions saw the cross as exclusively a religious symbol.49 The Grand Chamber also considered “that the crucifix is above all a religious symbol”, but continued by saying that the “question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive at this stage of the Court’s reasoning”.50 That the Grand Chamber accepts only the religious dimension of the crucifix’s symbolism is stressed by its refusal to adopt a stance on possible alternative meanings as it considered the crucifix “a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity”.51 At any rate, the Grand Chamber thus left the possibility that the  Mancini, supra note 8, p. 2631.   Paras. 45–46 and 50 in the respective Lautsi Judgements (supra notes 1 and 2). 50   Para. 66 of the Lautsi Grand Chamber Judgement (supra note 1). 51   Ibid., para. 71. 48 49

Restricting the Public Display of Religious Symbols   395 crucifix is capable of bearing alternative meanings unresolved as it immediately continued by ruling that “a crucifix on the wall is an essentially passive symbol”.52 Finally, there is the question related to the possibility of other messages that are embodied within the symbol of the crucifix unrelated to its religious role, more specifically whether there is scope for it to represent secular or constitutional values. In the Italian context at least, it is clear that in constitutional terms, there is only one symbol of the Republic. As Susanna Mancini has observed: In the first place, there is no legal or constitutional basis to argue that the crucifix is a symbol of national unity and identity. In fact, Article 12 of the Constitution unequivocally states what the symbol of Italian national unity is. According to this provision, ‘The flag of the Republic is the Italian tricolor: green, white, and red, in three vertical bands of equal dimensions.’ In the interpretation of the Constitutional Court, ‘given the fact that the state cannot impose ideological values that are common to citizens as a whole and to each citizen individually’, the national flag is a symbol which simply identifies a given state and represents the ideals which constitute the basis of popular sovereignty.53

This would seem to clear up the question insofar as the Italian constitutional context is concerned. The broader question of secular messages embodied in religious symbols remains; indeed this question is exacerbated by the imprecise nature of the message purportedly conveyed by such symbols. In other words, since religious symbols primarily convey religious messages, the result of attempting to break this nexus generates a high level of ambiguity regarding the ability of such symbols to communicate any secular messages. This in turn generates the potential for the dissociation of the message sought to be conveyed from the message that is in fact received. Furthermore, there is the question of the perceived meanings that are ascribed to the crucifix by observers: [The Regional Administrative Court] is also aware that some pupils attending State schools might freely and legitimately attribute to the cross values which are different again, such as the sign of an unacceptable preference for one religion in relation to others, or an infringement of individual freedom and accordingly of the secular nature of the State, or at the extreme limit a reference to temporal political control over a State religion, or the inquisition, or even a free catechism voucher tacitly distributed even to non-believers in an inappropriate place, or subliminal propaganda in favour of Christian creeds. Although all those points of view are respectable, they are ultimately irrelevant in the present case.54

  Ibid., para. 72.   Susanna Mancini, ‘The Crucifix Rage: Supranational Constitutionalism Bumps against the Counter-Majoritarian Difficulty’, 6 European Constitutional Law Review (2010), p. 12. 54   Judgement No. 1110 of 17 March 2005, paras. 11.1, 11.6, 11.9 and 12.1. See para. 15 of the Lautsi Grand Chamber Judgement (supra note 1; emphasis added). 52 53

396  Hin-Yan Liu From this, and the other paras. excerpted from Regional Administrative Court’s reasoning in the Grand Chamber judgment, it is evident that some considerable effort has been expended to secularise the religious symbol of the crucifix in order to reinvent it as a cultural symbol that has been sanitised of its previous religious associations. It is necessary to make such claims because the acceptance of the inclusionary dimension of the religious symbol would act to diminish or deny the discriminatory effect of the crucifix.55 Such attempts to ‘neutralise’ religious symbols are, however, unsatisfactory from both the religious and the cultural perspectives. Taking aside the aforementioned objection raised in the intervention at the Grand Chamber by the Greek Helsinki Monitor that the dilution of religious meaning from the crucifix is an insult to the Catholic Church itself,56 it may be argued that any dissociation of religion from its symbol creates tension for that religion. This is because the primacy of the religious connotation associated with the crucifix restricts it from becoming a purely cultural symbol. Susanna Mancini makes this argument: the crucifix … does not become a purely cultural symbol but rather a “semisecular” symbol that very effectively represents the “new” and “healthy” forms of the alliance between religion and state power … But this “cultural” or “diffused” Christianity that supposedly pervades the Constitution produces an unacceptable discriminatory effect in that non-believers are excluded from the religious meaning of the cross.57

Similarly, the assimilation of the crucifix as a cultural symbol is capable of blurring the distinction between secularism and religion which in turn generates two insidious effects: it may open the religious sphere to State interference;58 and “denies the very possibility of a clear cut distinction between the realm of faith and that of reason, and of ruling the public sphere according to the dictates of reason.”59 Framed in terms of the present argument, the attempt at asserting the primacy of the inclusionary dimension falls short and remains residual at best to the exclusionary dimensions of religious symbols and generates ambiguity at the margins of religion and secularism. Rather than embroil itself in these debates either by asserting the primacy of the cultural aspects of the symbol of the crucifix or to neutralise its religious connotations by illustrating the secular credentials of the crucifix, the Grand Chamber adopted a variant of this approach. When the majority of the Grand 55   Susanna Mancini uses this argument to account for the inclusionary aspect of religious symbols and to explain the assertion to the universality of the crucifix before powerfully rebutting it. See Mancini, supra note 8, pp. 2640–2641. 56   Paras. 45–46 and 50 in the respective Lautsi Judgements (supra notes 1 and 2). 57  Mancini, supra note 8, p. 2639. 58  McGoldrick, supra note 3, p. 480. 59  Mancini, supra note 53, p. 13.

Restricting the Public Display of Religious Symbols   397 Chamber asserted that “a crucifix on a wall is an essentially passive symbol”,60 it circumvented the question marks hanging over the cultural and secular meanings of the crucifix. Instead, the Grand Chamber was able to divert the debate by channelling it into the comparison with the effects of didactic speech. C.  A New Concept: ‘An Essentially Passive Symbol’ By introducing the concept of ‘an essentially passive symbol’ the Grand Chamber is not only at odds with the ECtHR’s jurisprudence but has reversed, or at the very least obfuscated, a consistent approach to religious symbols. Religious symbols were hitherto considered as ‘powerful external symbols’ capable of having a strong or persuasive effect upon those in its presence. For example, the ECtHR said in Dahlab: The Court accepts that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children. The applicant’s pupils were aged between four and eight, an age at which children wonder about many things and are also more easily influenced than older pupils. In those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect.61

It is consequently difficult to reconcile the ‘essentially passive symbol’ of the impugned crucifix in Lautsi with the ‘powerful external symbol’ of the contested Islamic headscarf. While the latter allegedly possessed proselytising effects which justified its restriction, the influence of the former was severely circumscribed. Where the Chamber decision followed the ‘powerful external symbol’ approach expounded in Dahlab, the Grand Chamber distinguished the case: the purpose of the measure prohibiting the applicant wearing the Islamic headscarf during her teaching duties was “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” and factored in the “tender age of the children for whom the applicant was responsible”.62 It is difficult to understand why the Grand Chamber was blind to the fact that the present case cannot be distinguished from Dahlab on these two grounds. Taking the point of denominational neutrality first, no difference is presented in the Italian situation since secularism is a constitutional principle demanding equidistance and impartiality in religious matters.63 Not only is the principle of State neutrality in religious affairs a principle borne out in the   Para. 72 of the Lautsi Grand Chamber Judgement (supra note 1).   Dahlab v. Switzerland, supra note 37. 62   Para. 73 of the Lautsi Grand Chamber Judgement (supra note 1). 63   Italian Constitutional Court Judgement No. 508 of 20 November 2000. See paras. 24 and 25 of the Lautsi Chamber Judgement (supra note 2). 60 61

398  Hin-Yan Liu ECtHR’s jurisprudence, requiring the Court to act in instances where this is violated, but there is also domestic law asserting this same principle. The second point relating to the vulnerability of young children to the influence of religious symbols also fails to differentiate the cases. It was the foundation of Ms Lautsi’s claim that the crucifix exerted a pressure on minors which was accompanied by a sense of estrangement to those who did not believe.64 While it may be conceded that on the facts, Ms Lautsi’s children were older, being aged eleven and thirteen, than the children under the care of Mrs Dahlab, who were aged between four and eight at the material time, there fails to be a distinction in principle. This is because the requirement to mount a crucifix on schoolroom walls is not limited to any particular age-group of pupils, but rather is a blanket obligation. THe age of the children cannot be a considered as being capable of distinguishing between the situations presented in the two cases. The Chamber acknowledged that “it is impossible not to notice crucifixes in the classrooms. In the context of public education they are necessarily perceived as an integral part of the school environment and may therefore be considered ‘powerful external symbols’”.65 The factual prominence of the crucifixes was not raised by the Grand Chamber so it is assumed here that the Chamber’s determination in this respect stands. The Grand Chamber’s assertion of the crucifix’s passivity is thus questionable if it is so readily noticeable. In this context, Judge Power’s Concurring Opinion conceded “that in principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner”.66 Perhaps Judge Power’s definition of passive symbols as being non-coercive may depend on the ease by which the symbol is noticeable or dominant. This is because the purpose of a symbol is to convey a specific meaning to those who observe it. A successful symbol must therefore possess two basic characteristics; a symbol must be both easily perceptible and readily identified as a symbol associated with a discrete message. It is the meaning that the symbol conveys that is capable of differentiating it from being perceived by its observers as a mere object or ‘a trinket’ or ‘decorative feature’.67 If it is accepted that a symbol automatically conveys its meaning to the observer, a passive symbol must   Para. 32 of the Lautsi Chamber Judgement (supra note 2).   Para. 54 of the Lautsi Chamber Judgement (supra note 2). 66   Para. 6 of Judge Power’s Concurring Opinion. 67   In the Concurring Opinion of Judge Bonello, he makes explicit reference is made to the crucifix as a voiceless testimonial to a historical symbol, at para. 3.3 and crucially as “a mute object” at para. 3.4. The forceful arguments employed by Judge Bonello in defence for what he accepts as a meaningless decorative feature to remain in the classroom is void of internal consistency. 64 65

Restricting the Public Display of Religious Symbols   399 necessarily be one that is camouflaged among its surrounding; its passivity being solely derived from its imperceptibility. Thus, a symbol can only be passive insofar as it can remain unnoticed. The Chamber’s pronouncement that “it is impossible not to notice the crucifix” was not contended, suggesting that the symbols were prominent and hence incapable of being passive in the classroom. The second possibility for a symbol to be passive is for it to not convey a meaning to its observer. This may arise from two possibilities: first, while the symbol is capable of communicating a meaning to observers, that message is not understood by its witnesses; and second, that the symbol is incapable of conveying a meaning, in which case it must be recategorised as a decorative feature or as a mere object. As it is nowhere claimed in the arguments presented to either the Chamber or the Grand Chamber that the crucifix is an object,68 and considering that despite the contentious issues revolving around the meaning ascribed to the crucifix it is understood as a religious, Christian symbol, then the conclusion that the crucifix is an ‘essentially passive symbol’ is oxymoronic. The crucifix conveys a message which is generally capable of being understood by the observer. Drawing a parallel with language as an agreed symbolic system used for describing reality or in order to express an idea, both language and the crucifix may be considered as symbols. Again, the Grand Chamber applied Folgero69 to the effect that the presence of the crucifix cannot be equivalent to didactic speech. The unfounded assumption here may be refuted as both didactic speech and the crucifix are symbolic systems conveying a message associated with Christianity. A further objection that may be raised here concerns the role of didactic speech as a yardstick by which to measure the communicative impact of the crucifix. The effects of symbolic systems, whether auditory or visual, are difficult to measure and compare, as with any psychological aspect. Attempts to compare the influence of the crucifix with didactic speech also miss the fact that whilst didactic speech may be the upper limit of rights violation, this does not imply that lesser infringements are acceptable. An implication arising from the introduction of the ‘essentially passive symbol’ concept may be divergent treatment of a symbol dependent on whether it is the State or an individual displaying the symbol and whether it represents the majority or minority religion. A religious symbol is ‘essentially passive’ either if it is the symbol of the majority religion or if it is displayed by the State, but will be considered a ‘powerful external symbol’ if it represents a minority 68   The Supreme Administrative Court had rejected the possibility that “one can even deny [the crucifix’s] symbolic value having artistic value at most”, instead holding that “a crucifix displayed in a classroom cannot be considered a trinket, a decorative feature, nor as an adjunct to worship” (quoted in para. 16 of the Lautsi Grand Chamber Judgement, supra note 1). 69   Folgero v. Norway, 29 June 2007, European Court of Human Rights, No. 15472/02, para. 74.

400  Hin-Yan Liu religion or if it is expressed by an individual. The effect of introducing the ‘essentially passive symbol’ concept is essentially to carve out an exception to the trend of proscribing religious symbols in Europe for the majority Christian religions supported by the State. In effect then, the ‘essentially passive symbol’ concept is a reintroduction of the concept of ‘bearing Christian witness’ that was juxtaposed against ‘improper proselytism’ in Kokkinakis.70 To reiterate, symbols bearing Christian witness are allowed because they are passive while symbols (or a lack of them in the instant case) constitute improper proselytism as they are powerful external symbols. One effect is the privileging of State and majority religious expression, usurping a human rights instrument against the very minorities they were designed to protect. This is exacerbated in instances where the State expresses a position in religious matters as the State is incapable of holding a countervailing right which is to be balanced in purely horizontal situations whereby conflicting individual rights need to be balanced. Furthermore, considering the congruence between secularism with the principles underlying the ECHR as espoused in Leyla Sahin,71 the defence of Christian values by the Grand Chamber may threaten those very principles which it is supposed to defend. D.  The Proselytism Question Another related point of divergence concerned the proselytising effect of religious symbols and whether this could be considered to infringe upon the rights and freedoms of others. Under the European Convention of Human Rights, the freedom of religion has an inherent and irreconcilable tension between the individual right to manifest religious affiliation, inter alia through the display of symbols, and the appropriate limitation of such manifestation (the forum externum) which is prescribed by law and necessary in a democratic society.72 The special difficulties embodied within the display of reli­ gious symbols are aptly illustrated in the text of Article 9 itself. Article 9(1) sets forth the absolute right to freedom of thought, conscience and religion, and Article 9(2) merely provides for express limitations upon the right to mani­ fest  a religion or belief. Returning to proselytism, the initial distinction drawn in Kokkinakis established the dichotomous relationship between ‘bearing Christian witness’ as opposed to ‘improper proselytism’.73 The questionable 70   Kokkinakis v. Greece, 25 May 1993, European Court of Human Rights, No. 14307/88, para. 48. 71   Leyla Sahin v. Turkey, supra note 38, para. 114. 72   Article 9(2) of the ECHR provides: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”. 73   Kokkinakis v. Greece, supra note 70, para. 48.

Restricting the Public Display of Religious Symbols   401 presumption adopted by Strasbourg favouring the majority religion is readily evident, raising the spectre of direct and indirect religious discrimination within the espace juridique of the Council of Europe. Proselytism may be understood as improper either when the target is especially vulnerable (such as children in Dahlab),74 or if there is a hierarchical relationship or the possibility of undue influence/coercion (Larissis).75 In Larissis, the Court reiterated the questionable distinction drawn in Kokkinakis: The Court emphasises at the outset that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to ‘manifest [one’s] religion’, including the right to try to convince one’s neighbour, for example through ‘teaching’. Article 9 does not, however, protect every act motivated or inspired by a religion or belief. It does not, for example, protect improper proselytism, such as the offering of material or social advantage or the application of improper pressure with a view to gaining new members for a Church.

The question for present purposes is whether the crucifix on public schoolroom walls can be considered, per Kokkinakis, as ‘bearing Christian witness’ or ‘improper proselytism’.76 On the one hand, the crucifix signifies the majority religion in Italy and will likely benefit from the built-in bias. On the other hand, Lautsi appears to capture both vulnerability hallmarks of improper proselytism since it concerns children in claustrophobic and hierarchical relationships of the classroom. In order to develop this argument, Larissis provides: In this respect, the Court notes that the hierarchical structures which are a feature of life in the armed forces may colour every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of military life, be viewed as a form of harassment or the application of undue pressure in abuse of power. It must be emphasised that not every discussion about religion or other sensitive matters between individuals of unequal rank will fall within this category. Nonetheless, where the circumstances so require, States may be justified in taking special measures to protect the rights and freedoms of subordinate members of the armed forces.77

A factual distinction between Larissis and Lautsi is that there was active and vocal proselytism in the former that was lacking in the latter. This may be counter-balanced, however, by the particular vulnerability of minors and the   Dahlab v. Switzerland, supra note 37.   Larissis and others v. Greece, 24 February 1998, European Court of Human Rights, Nos. 23372/94; 26377/94; 26378/94. 76   Again, since the State is incapable of bearing ECHR rights, this argument is made by analogy only. 77   Larissis and others v. Greece, supra note 75, para. 51. 74 75

402  Hin-Yan Liu power of the State placed behind the religious symbol. In other words, while the mandatory public display of the crucifix may be unproblematic in situations that are open, democratic and non-coerced, its presence in the pedagogical context that is characterised by disciplinary and hierarchical relationships is inappropriate because it presupposes improper proselytism. A different way of approaching the proselytism question may be to focus upon the reason behind and purpose for the requirement to display the crucifix on public schoolroom walls. By way of analogy, the U.S Supreme Court in Stone v. Graham78 held that a Kentucky statute that required the display of a copy of the Ten Commandments in public school classrooms violated the Establishment Clause of the First Amendment on the grounds that it served no secular legislative purpose: Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.79

The purpose that is served by requiring the display of the crucifix is neither raised by the parties nor mentioned in either of the Strasbourg judgments. Thus, although the purpose of the crucifix display is uncertain, avoidance of such considerations suggest the lack of any such purpose which militates against its mandatory presence. Associated with the purpose is the consideration of the source of authority. In Lautsi the legal source80 behind the mandatory crucifix display was a royal decree of 1860 that predated the Italian Republic itself. This lapsed a decade later, only resurrected by a fascist era decree in 1922 in turn supplemented by two further royal decrees from the same era.81 The antiquated nature of these sources led the intervening NGO Associazione Nazionale del Libero Pensiero to suggest that they had since been impliedly repealed,82 and their authoritarian nature absent Parliamentary enactment was noted by the Dissenting Judges as lacking democratic legitimacy.83 Thus, although the schoolroom crucifix is a symbol of the dominant religion and as such is initially (albeit controversially) excluded from proselytism, the absence of a compelling purpose for its display is further compounded by the vulnerability of its perceivers. These factors may be enough to overcome   Stone v. Graham, 17 November 1980, U.S Supreme Court. 449 U.S. 39.   Ibid. at 42. 80   Paras. 17–25 of the Lautsi Grand Chamber Judgement (supra note 1) provide the historical background behind the requirement to display the crucifix on public schoolroom walls. 81   See in particular para. 19 of the Lautsi Grand Chamber Judgement (supra note 1). 82   Para. 51 of the Lautsi Grand Chamber Judgement (supra note 1). 83   Dissenting Opinion of Judge Malinverni joined by Judge Kalaydjieva, at p. 47 of the Lautsi Grand Chamber Judgement (supra note 1). 78 79

Restricting the Public Display of Religious Symbols   403 the initial exclusion and justify the removal of the crucifix on the grounds of ‘improper proselytism’. It may therefore be possible to limit the public display of the crucifix upon its ability to communicate religious messages that infringe upon the freedom of thought, conscience and religion enshrined in Article 9. Indeed, while the communicative dimension of religious symbols has often been noted, its consideration has generally remained within the ambit of Article 9 only. This communicative nature of religious symbols may also putatively engage the freedom of expression found within Article 10, at least as a residual ground but it should be emphasised, however, that grounding such claims under Article 10 may work both to reinforce the right to manifest religious symbols as well as to justify further limitations.84 V.  Manifestation of Religion as the Freedom of Expression Turning to the possibility of religious symbols as a form of communicative expression that is protected under Article 10, it should be noted that while the religious dimension of the crucifix was never scrutinised, the potential for the crucifix to embody other messages or philosophies was raised. This ground was never adequately addressed, however, and leaves unexplored the potential of restricting the public display of the crucifix on other grounds. Two points should be noted at the outset of this discussion. The first is that the freedom of expression covers two related sets of interests; those of the speaker in communicating ideas and information and those of the audience for receiving them. The bias is often placed upon the protection of the interests of the speaker that comes at the cost of neglecting the concomitant rights of the audience. The second is that religious symbols are prima facie capable of being understood as forms of expression; provided that a specific meaning may be attributed to an object it may be protected as a form of symbolic speech.85 Under the ECHR, the freedom of expression is embodied within Article 10 and while providing for absolute freedom, such as is found in Article 9, primarily has its restrictions placed upon ‘[t]he exercise of these freedoms, since it carries with it duties and responsibilities’.86 Inherent within the freedom of   Neither the Chamber nor the Grand Chamber expressly addressed Article 10 with relation to the public schoolroom crucifixes. 85   The idea of ‘symbolic speech’ arises from federal United States jurisprudence. The best example of this protection in a pedagogical context is the Supreme Court in Tinker pronouncing that the restriction of wearing black arm bands in opposition to the Vietnam War at school was unconstitutional. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), p 514. 86   Article 10(2) of the ECHR (emphasis added). 84

404  Hin-Yan Liu expression, however, is that its exercise may be limited insofar as such limitations are prescribed by law and necessary in a democratic society. This may suggest that there will be no prima facie differences between whether the public crucifix is supported or limited upon Article 9 or Article 10 since the ECHR itself protects these freedoms in a similar manner. Such an approach is, however, erroneous since additional dimensions arise from focussing upon the communicative aspects of such display that are invisible to a purely thought, conscience and religion analysis. Two interrelated points arise from such a focus on Article 10 in this context, both of which involve Article 17 of the ECHR in a different light to its application in Article 9. Article 17 provides for the prohibition of abuse of rights and stipulates that: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

In the context of Article 9, this is manifested in the restrictions against improper proselytism; the protection afforded by Article 9 cannot be invoked by one party to infringe upon the Article 9 rights of others since it is not expressly provided for in the ECHR. Aside from the discriminatory manner in which this prohibition developed in the ECtHR jurisprudence, questions of discrimination largely fall away in this context. Similarly, the prevention of the abuse of Article 9 goes only so far as to assert State impartiality and equidistance in denominational matters per Masaev and Bessarabia. Adopting this approach from the Article 10 perspective, however, brings different elements to the fore. The question of discrimination, may for instance, be broadened beyond the consideration as to whether there is the predisposition of the State to favour one religion over another and may instead be posed in terms of State interference of the freedom to receive information and ideas.87 The emphasis placed upon the communicative dimension of the crucifix as a symbol removed of its religious connotations opens up the possibility for a rational analysis of its potential for discrimination as well as offering another substantive ground upon which the parasitic prohibition of discrimination  may attach. More importantly, however, shifting the analysis towards Article 10 opens up entirely new grounds for justifying the restriction of the

87   The ECtHR has afforded a high level of protection to the freedom to receive information and ideas inter alia by holding the State to a strong positive obligation to prevent horizontal interference that is not strictly necessary in a democratic society. See the unanimous decision of the Chamber in Khurshid Mustafa v. Sweden, 16 December 2008, European Court of Human Rights, No. 23883/06.

Restricting the Public Display of Religious Symbols   405 public display of the crucifix unavailable under Article 9; those associated with hate speech. In order to develop this argument, it is first necessary to consider the freedom of expression in the pedagogical context. This will be followed by a brief argument that the public display of the crucifix may be a form of discriminatory speech which should be limited due to its potential for constituting blasphemy and incitement towards religious hatred. This argument is then developed further towards a stronger and context-specific form of hate speech that is centred up the display of Catholic symbols in relation to children. A useful point of departure regarding freedom of speech rights in the pedagogical context was provided by Justice Fortas speaking for the majority of the U.S Supreme Court in Tinker: First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.88

It is clear that the freedom of speech, along with other constitutional rights, is applicable in the U.S. classrooms.89 Special freedom of expression considerations do, however, apply in the context of education which have focussed specifically upon the expression rights of the students and teachers.90 The protection of student expression is found in two complementary U.S. Supreme Court cases of Tinker91 and Barnette92 which protected the right to speak and the right not to speak respectively. In the former case, the Supreme Court held that school restrictions prohibiting students from wearing black armbands silently in opposition to the Vietnam War contravened the First Amendment. In the latter case Jehovah’s Witnesses raised a constitutional objection to a state requirement for children in public schools to salute and pledge allegiance to the flag of the United States. Justice Jackson for a majority at the Supreme Court declared that: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism,   Tinker v. Des Moines Independent Community School District, supra note 85, at p. 506.   “The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures - Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights”: Justice Jackson in West Virginia State Board of Education v. Barnette 319 US 624 (1943), p. 637. 90  See generally, Eric Barendt, Freedom of Speech (New York: Oxford University Press, 2007), pp. 496–502. 91   Tinker v. Des Moines Independent Community School District, supra note 85, at p. 503. 92   West Virginia State Board of Education v. Barnette, supra note 89. 88 89

406  Hin-Yan Liu religion or other matters of opinion or force citizens to confess by word or act their faith therein.93

Although this right not to speak is not directly applicable to Lautsi, since there was no requirement to actively acknowledge the presence of the crucifix,94 it should be noted that this right to silence forms the core of ECtHR jurisprudence on Article 9 that obliges the State to guarantee the exercise of religions, faiths and beliefs in a neutral and impartial manner per Buscarini and Alexandridis.95 But there is more to the Barnette judgment than simply the incompatibility with the Constitution of being forced to declare allegiance to the flag as the declaration by Justice Jackson above alludes to. While the Grand Chamber in Lautsi appeared to draw the fine distinction between passive presence of the crucifix and active participation in religious activities or didactic speech,96 which formed the basis of its finding that its presence cannot amount to impermissible indoctrination,97 it neglected to account for the prescription of orthodoxy element inherent in the display of the crucifix in the public schoolroom. The State endorsement of the crucifix display itself can be understood as its pronouncement and preference for Catholicism specifically, or Christian religions more broadly, and should be limited upon such grounds. Furthermore, the assumed requirement that there be active participation in religious activities and didactic speech for indoctrination is questionable. It may be that such activities will engage students in a more open, critical and pluralistic manner than the silent communication devoid of debate and discussion as to its content. VI.  Restricting the Public Display of the Crucifix on the Grounds of Hate Speech The freedom of expression is not unlimited and may be restricted in order to balance competing rights and interests, and the primacy of expression is neither clear nor conclusively established in all situations. This is espe­ cially  the case with hate speech, which can be loosely defined as degrading speech intended to intimidate or incite violence against certain persons or   Idem., p. 642.   The Government’s view was that the crucifix was a passive symbol that could not be comparable in impact to active conduct. See para. 36 of the Lautsi Grand Chamber Judgement (supra note 1). 95   Buscarini v. San Marino, 18 February 1999, European Court of Human Rights, No. 24645/94; and Alexandridis v. Greece, 21 February 2008, European Court of Human Rights, No. 19516/06. 96   Para. 72 of the Lautsi Grand Chamber Judgement (supra note 1). 97   Para. 62 of the Lautsi Grand Chamber Judgement (supra note 1). 93 94

Restricting the Public Display of Religious Symbols   407 groups,98 which can have severe adverse effects upon the dignity of those targeted. Arguing in principle, Eric Barendt suggests the possibility for hate speech to “express contempt for the targeted individuals or groups; some publications … demean human dignity and humanity itself ”.99 Due to the possibility of infringing upon the dignity of its victims, the curtailment of hate speech is readily justified in most jurisdictions as well as in principle. THe only remaining question is the extent to which it is balanced, depending upon the particular facts of each situation. A.  The Discriminatory Nature of Blasphemy and Incitement to Religious Hatred Laws It is instructive for the following argument to recognise the likelihood of this chapter falling foul of the old UK common law offence of blasphemous libel merely by alluding to the possibility that the sign of the crucifix may constitute a form of hate speech. It is fortunate that such claims attract less controversy in modern times to the point that this offence may have become temporarily obsolete between 1922 and 1977 due to the absence of prosecutions in this period.100 The discriminatory nature of this common law offence, which owed its origins to canon law, is blatantly evident in its exclusive coverage of Christian religions. According to Chief Justice Hale in Taylor,101 the first reported case for this offence, the specific protection of the Church of England is due to its close connection with the government. The exclusive coverage of blasphemy laws was upheld in modern times in a private prosecution concerning the publication of The Satanic Verses by Salman Rushdie. The Divisional Court affirmed that the common law offence protected only Christianity and that the offence could not be broadened to cover other religions.102 There is also evidence of an in-built prejudice towards Christianity in the ECtHR itself through two decisions related to religiously provocative films. In Otto-Preminger,103 the ECtHR considered that the seizure and forfeiture of a film considered disparaging to Christianity was justified to protect the individual right to not have religious feelings insulted within the ambit of Article 10(2). Similarly in Wingrove,104 the refusal of the Board of Film  98   For a comparative analysis of constitutional protection for hate speech, see Hin-Yan Liu, ‘The Constitutional Right to Express Hatred: A Comparative Analysis’, 1(1) King’s Student Law Review (2008–2009), pp. 5–21.  99  Barendt, supra note 90, p. 34. 100   Ibid., p. 186. 101   R v. Taylor [1676] 1 Vent 293. 102   R v. Chief Metropolitan Stipendiary Magistrate, ex p. Choudhury [1991] 1 QB 429. 103   Otto-Preminger-Institut v. Austria, 20 September 1994, European Court of Human Rights, No. 13470/87. 104   Wingrove v. UK, 25 November 1996, European Court of Human Rights, No. 17419/90.

408  Hin-Yan Liu Classification to allow the release of a film portraying explicit sexual fantasies of St Teresa of Avila was also upheld by the ECtHR as national authorities were permitted to prevent blasphemous insult to the public, despite this being a clear situation of prior censorship which is a form of curtailment that usually requires strong justifications. Not only was the claim that individuals have the right not to have their religious sensibilities insulted made without support, but it is also difficult to square with the jurisprudence of the ECtHR itself which stipulated that the freedom of expression includes the right to express ideas that shock and disturb.105 The purpose of pointing out these discriminatory slants favouring Chris­ tianity in Western jurisprudence is to emphasise the imperceptibility that the display of a Christian symbol may inflict injury to individuals and groups, even (or perhaps especially) in populations that are predominantly or culturally Christian. It should also be recalled that Christianity was not always as benign as it has been in modern times and that it was not necessarily characterised as a “universal sign of the acceptance of and respect for every human being”.106 In this context, it is worth invoking the words of the Regional Administrative Court again: Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and there, in the last analysis, the foundations of the secular State.107

Even if it is conceded that the crucifix is emblematic of universal respect and dignity in modernity, it has to be accepted that the historical record of Christianity has been littered with intolerance, disrespect for others and militancy as the Regional Administrative Court itself impliedly accepts. If this is the case, the crucifix is clearly capable of bearing messages that degrade individuals and groups or may be justifiably interpreted as communicat­ ing  such messages. Indeed, one does not need to look far for evidence of homophobia by senior Church officials.108 Perhaps more disturbing, how­ ever,  is the exhibition of institutional homophobia by the Vatican when it deployed its United Nations permanent observer status to oppose a proposed

 Barendt, supra note 90, p. 192.  Judgement No. 1110 of 17 March 2005, para. 13.4. See para. 15 of the Lautsi Grand Chamber Judgement (supra note 1). 107   Judgement No. 1110 of 17 March 2005, paras. 11.1, 11.6, 11.9 and 12.1. See para. 15 of the Lautsi Grand Chamber Judgement (supra note 1; emphasis added). 108   Rory Carroll and John Hooper, ‘Vatican Attacked over Vardinal’s Claim of Homosexuality and Paedophilia Link’, The Guardian, 13 April 2010. available at . 105 106

Restricting the Public Display of Religious Symbols   409 U.N. Resolution that would call on national governments to decriminalise homosexuality.109 Thus, not only does Christianity have a tarnished historical record of intolerance, degrading forms of discrimination and even violence, but this taint is carried through to the present day by the Catholic Church’s continued opposition to the equal rights and recognition of homosexuals. As important as it is to underscore the Catholic homophobia, this pales in comparison to the international child abuse scandal that is of particular relevance to the situation in Lautsi. B.  The Specific Context: Catholicism and the Child The last substantive section of this chapter will consider the specific context of children and their relationship with the Catholic Church, and will address the ramifications of the child sexual abuse scandal on the appropriateness of displaying the crucifix in public schoolrooms in which children are required by law to inhabit for long and sustained periods. Before proceeding, it is particularly noteworthy that the Amnesty Inter­ national Annual Report 2011 concluded that the “Holy See did not sufficiently comply with its international obligations relating to the protection of children”, reiterating the widespread allegations of child sexual abuse and the enduring failure to address these crimes adequately; it was further noted that the Holy See had failed to submit both its second period report on the UN Con­ vention of the Rights of the Child which was due in 1997.110 The Report noted: Increasing evidence of widespread child sexual abuse committed by members of the clergy over the past decades, and of the enduring failure of the Catholic Church to address these crimes properly, continued to emerge in various countries. Such failures included not removing alleged perpetrators from their posts pending proper investigations, not co-operating with judicial authorities to bring them to justice and not ensuring proper reparation to victims.111

That the Holy See, the territorial counterpart to the Vatican and the Catholic Church, is given recognition at the United Nations demonstrates the pref­ erential treatment that Catholicism enjoys on the international plane112 that 109  Phillip Pullella, ‘Vatican Attacked for Opposing Gay Decriminalisation’, Reuters, 2 December 2008, available at . 110  Amnesty International, ‘Amnesty International Annual Report 2011: The State of the World’s Human Rights: Vatican’, at 162–163, available at . 111   Ibid., at 162. 112   For the history of, and a sustained argument against, the statehood claims of the Holy See, see Geoffrey Robertson, The Case of the Pope: Vatican Accountability for Human Rights Abuse (London: Penguin, 2010). chapter 6.

410  Hin-Yan Liu mirrors that aforementioned favouritism in domestic and regional legal orders. It is clear from the Amnesty International Report that the Holy See does not take its responsibilities under the UN Convention seriously, but this is far from the end of the story. As the child sexual abuse scandal of the Catholic Church has been well documented by Geoffrey Robertson,113 it is unnecessary to go into the full details here. It is international in scope, with settlements alone reaching Canada114 and the Netherlands115 while facts are still being established and cases compiled elsewhere.116 While its widespread nature is disconcerting, it is the institutionalised and systematic basis upon which this abuse occurred that is deeply troubling. A recent case at the High Court in the UK has affirmed the amenability of the Catholic Church to legal suit for the wrongful conduct of its priests,117 despite the unsurprising protest from a Catholic bishop.118 It is, however, the evidence that those suspected of perpetrating such abuses were not punished, but were rather sheltered by the Catholic Church that forms the basis of the present claims to institutional and systematic child sex abuse. In particular, Cardinal Ratzinger, before he became Pope Benedict XVI, had headed the Congregation for the Doctrine of the Faith (CDF) which was responsible for handling sexual abuse cases and had manifestly failed to fulfil the disciplinary function.119 The systematic footing of the Catholic Church’s sexual abuse scandal is capable of elevating it to the plane of international criminal law as a crime against humanity.120 While crimes against humanity are generally associated with situations of armed conflict, the Appeals Court of   Ibid., see especially chapters 1–3 (facts) and 7–10 (law).  Ian Austen, ‘Canada: Catholic Order Settles Sexual Abuse Suit for $17 Million’, The New York Times, 6 October 2011, available at . 115   The Associated Press, ‘The Netherlands: New System to Compensate Abuse Victims’, The New York Times, 7 November 2011, available at . 116   Riazat Butt, ‘Pope’s UK Visit Prompts Increase in Sex Abuse Allegations against Church’, The Guardian, 28 July 2011, available at . 117   Riazat Butt, ‘Catholic Church can be held Responsible for Wrongdoing by Priests’, The Guardian, 8 November 2011, available at . 118   Riazat Butt, ‘Catholic Bishop Criticises Ruling on Church Liability for Actions of Priests’, The Guardian, 15 November 2011, available at . 119  Robertson, supra note 112, Ch. 8. 120   Karen McVeigh, ‘Pope Accused of Crimes Against Humanity by Victims of Sex Abuse’, The Guardian, 13 September 2011, available at . See also Laurie Good­ stein, ‘Abuse Victims Ask Court to Prosecute the Vatican’, The New York Times, 13 September 2011, available at . 113 114

Restricting the Public Display of Religious Symbols   411 the International Criminal Tribunal for the Former Yugoslavia affirmed in Tadic that such a link is not a requirement.121 Furthermore, Article 7 of the Rome Statute for the International Criminal Court provides that: 1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:   (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;122

The point here is not to consider the susceptibility of the Pope and other senior officials to charges of crimes against humanity, since additional barriers of jurisdiction and command responsibility will need to be satisfied. The purpose is instead to illustrate the potential for the sign of the crucifix to be linked to the child sexual abuse scandal of the Catholic Church and the possibility that the crucifix may communicate messages of degradation or intimidation to children, especially due to the widespread and global nature of this scandal. While the public display of the crucifix in the absence of children may be excluded from the context-specific objection against the display of the crucifix,123 it is a precisely and directly pertinent factor in Lautsi that was ignored by the Grand Chamber. The Supreme Court of Canada in Ross124 unanimously upheld the removal of a primary school teacher from his post who wrote anti-Semitic books and pamphlets outside of class. The Supreme Court found a rational connection between Malcolm Ross’s conduct and the ‘poisoned educational environment’ that was the specific harm in question,125 and underlined both the pedagogical context and the character of the speech.126 It emphasised the responsibility of schools in fostering a pluralistic and tolerant society and recognised that young children may have difficulties in isolating comments made in and outside of 121   Prosecutor v. Tadic Decision on the Defence Motion, 2 October 1995, Appeals Court of the International Criminal Tribunal for the Former Yugoslavia, IT-94-1-AR72-2. 122   Further clarification that a situation of armed conflict is not required for the commission of a crime against humanity is provided for in Article 7(2)(a): “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in para. 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. 123  Such a claim may neglect the longitudinal aspect of the clerical child abuse scandal; because it has been taking place over many decades, many present-day adults may possess direct experience and hence suffer from the same effect. 124   Ross v. New Brunswick School District No. 15, 1 SCR 825 (1996). 125   Ibid., para. 49. 126   Furthermore, it should be noted that the UN Human Rights Committee accepted “that it was reasonable to anticipate that there was a causal link between the expressions of the author and the ‘poisoned school environment’ experienced by Jewish children in the School district”. Malcolm Ross v. Canada, 18 October 2000, Human Rights Committee, Communication No. 736/1997 (U.N. Doc. CCPR/C/70/D/736/1997).

412  Hin-Yan Liu school. The display of the crucifix on public schoolroom walls should thus be appropriately restricted on similar grounds. Although there is presently no direct evidence of child sex abuse in Italian public schools that is perpetrated by members of the Catholic Church, its disgraceful and systematic activities in other analogous contexts towards the demographic of children may be sufficient to justify its removal in schools generally. The gravity associated with the mantle of international crime only makes its removal more pressing to prevent the possibility of the crucifix as hate speech that is capable of degrading and intimidating children. VII. Conclusion Far from being “the universal sign of the acceptance of and respect for every human” as claimed by the Regional Administrative Court in Lautsi,127 the preferential treatment of Christian religions in the law and on the international plane provides evidence of religious discrimination. This is magnified by the apparent majoritarian support in Europe that renders imperceptible the potential harm inflicted by those who do not adhere to the faith. Indeed, the discriminatory nature and purpose of religious symbols was accorded inadequate weight in Lautsi. Despite the obvious communicative nature of symbols, the Grand Chamber asserted the diametrically opposite position in concluding that the crucifix is “essentially passive”. Rather than dwell on these objections, those seeking to remove the crucifix from public schoolrooms should instead seek to expand the grounds of objection into the realm of the freedom of speech for it is here that powerful arguments invoking hate speech may be made. The accelerating momentum of the child sexual abuse scandal of the Catholic Church should be utilised to illustrate the particular susceptibility of children to interpret the sign as a form of hate speech that degrades and intimates them. The situation as it currently stands is intolerable: children, a particularly vulnerable demographic, are compelled to spend their day under the ubiquitous gaze of the crucifix—the symbol of the Catholic Church that is alleged to have been, and perhaps continues to be, perpetrating a crime against humanity against them.

127   Judgement No. 1110 of 17 March 2005, para. 13.4., as cited in the Lautsi Grand Chamber Judgement (supra note 1, para. 15).

RETHINKING ADJUDICATION UNDER THE EUROPEAN CONVENTION Carla M. Zoethout I. Introduction If there is one thing the Lautsi judgements (the Chamber and Grand Chamber judgement) have demonstrated clearly, it is the need for a new mode of adjudication for the European Court of Human Rights. What should the Court have done in a case so much disputed and in which so many countries took sides? Whereas the Chamber in first instance concluded the Convention requires a secular, neutral stance regarding religious symbols in public school classrooms, the Grand Chamber—confronted with unprecedented political pressure— left the matter up to the state in question in as far as the perpetuation of displaying crucifixes was deemed to fall within the margin of appreciation of the state. Two diametrically opposed decisions—small wonder the Lautsi case caused so many reactions, ranging from those who regarded Lautsi I as an outstanding example of a countermajoritarian decision by the Court, to critics who rejected the decision as an intolerable and illegitimate exercise of judicial discretion. The latter group was relieved and satisfied by the Grand Chamber judgment.1 In this chapter, I will comment on the Lautsi judgements as a prelude to the core problem the case reveals. In my view, the Lautsi case demonstrate (anew) that it is time for the Court to develop a new mode of adjudication—a form of review which makes it possible to act as a countermajoritarian institution and set a European standard, without infringing state sovereignty.

1   What the Lautsi case again made apparent is that the present way of the ECtHR’s dealing with politically sensitive issues touches more and more upon the Court’s legitimacy. According to some scholars, legitimacy is the single most important attribute of legal institutions. “Legitimacy provides courts authority; it allows them the latitude necessary to make decisions contrary to the perceived immediate interests of their constituents.” James L. Gibson and Gregory A. Caldeira, ‘The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court of Justice’, 39 American Journal of Political Science (1995), p. 460; as quoted by Joshua L. Jackson, ‘Broniowksi v. Poland: A Recipe for Increased Legitimacy of the European Court of Human Rights as a Supranational Court’, 39:2 Connecticut Law Review (2006), at p. 777.

414  Carla M. Zoethout In Part II the Chamber’s decision will be analyzed and the tournure of the Grand Chamber of the ECtHR in its reference to the margin of appreciation—a doctrine which (some commentators say) masks the real basis for its decision.2 In Part III the position of rights under the Convention is assessed. The question is raised whether the difference in levels of rights under the Convention does not at the same time presuppose a difference in review by the Court. Subsequently, part IV deals with the position of the ECtHR and the question whether the Court can truly be considered a countermajoritarian institution. Part V assesses the different modes of judicial review and proposes a new mode of adjudication. As will be demonstrated, it seems possible to present a solution regarding the display of crucifixes in public school classrooms which does justice to all parties. II.  The Two Judgments in Lautsi A.  The Decision by the Chamber Few cases before the ECtHR have aroused so many different reactions as those of Lautsi v. Italy3 on the prescription to display crucifixes at public schools in Italy. Maybe even more than the judgment in Hirst v. United Kingdom4 on the 2   As MacDonald puts it: “If the Court gives as its reason for not interfering simply that the decision itself is within the margin of appreciation of national authorities, it is really providing no reason at all but is merely expressing its conclusion not to intervene, leaving observers to guess the real reasons which it failed to articulate.” Ronald St. John MacDonald, ‘The Margin of Appreciation’, in Ronald St. John MacDonald, Franz Matscher and Herbert Petzold (eds.), The European System for the Protection of Human Rights (The Hague: Martinus Nijhoff, 1993), p. 85. 3   Lautsi v. Italy, 3 November 2009, European Court of Human Rights, No. 30814/06 (which will hereafter be referred to as Lautsi I) and Grand Chamber, Lautsi v. Italy, 18 March 2011, No. 30814/06 (hereafter: Lautsi II). For reaction on the decisions by the ECtHR, see Susanna Mancini, ‘The Crucifix Rage: Supranational Constitutionalism Bumps Against the CounterMajoritarian Difficulty’, 6 European Constitutional Law Review (2010), pp. 6–27 and several articles in the special Lautsi issue of the journal of 6:3 Religion & Human Rights (2011), see section entitled ‘The Lautsi Papers’. On the position of the crucifix within Italy and legal criticism thereof (generally and prior to the ECtHR case), see, e.g., Susanna Mancini, ‘Taking Secularism (not too) Seriously: The Italian “Crucifix Case’”, 1 Religion & Human Rights (2006), pp. 179–195. 4   Hirst v. United Kingdom, 6 October 2005, European Court of Human Rights, No. 74025/01. The decision even prompted the British justice secretary Kenneth Clarke to seek to reform the European Court of Human Rights after it ruled in favour of giving prisoners the right to vote. See ‘Kenneth Clarke Looks to Reform European Court of Human Rights’, in The Guardian of Sunday 20 February 2011 (available at . At the time of writing of this chapter, the UK chairs the Council of Europe and new plans have been launched, first of all to try to deal with the enormous backlog of cases of the ECtHR and second to limit the influence of the ECtHR. See on this www.justice.gov.uk/downloads/about/cbr/cbr-court-reform -chairs-letter.pdf. For an earlier–very critical–lecture of the ECtHR, see Lord Hoffmann, ‘The Universality of Human Rights’, Judicial Studies Boards Annual Lecture, 19 March 2009 (available at http://www.judiciary.gov.uk/media/speeches/2009/speech-lord-hoffman-19032009).

Rethinking Adjudication under the European Convention  415 right of detainees to vote, the case of Lautsi gave way to major public indignation, both in and outside Italy, aimed at the Court for having the nerves to condemn the Italian government for a legal obligation to display crucifixes at school classrooms (including public schools). In so doing, in the opinion of the opponents of the first decision the Court, the Court interfered with national affairs in an intolerable way. The case and all surrounding controversy first started with a complaint by Mrs Soile Lautsi, who considered the obligation to display crucifixes in classrooms an infringement of her right to educate her children in conformity with her ‘philosophical views’, a right which is laid down in Article 2, First Protocol of the ECHR. According to this Article: No person shall be denied the right to education. 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 addition, it was claimed that both her right to freedom of religion (Article 9 ECHR) and that of her children (at that moment 11 and 13 years old) were violated. In the initial domestic proceedings, however, Mrs Lautsi had argued that the decision by the school board not to remove the crucifixes amounted to a violation of Articles 3 and 19 of the Italian Constitution,5 a violation of Article 9 ECHR and of the principle of secularism which – in her view – was an inherent part of the Italian Constitution.6 Her complaint was dismissed, however. According to the administrative tribunal of Veneto the crucifix is a “symbol of the Italian history and culture and of the Italian identity. It is therefore a symbol of the principles of equality, freedom and tolerance and the secular state” (sic!).7 In its decision of 13 February 2006, Mrs Lautsi’s appeal was dismissed, this time by the Council of State. According to this institution, “the crucifix has become one of the secular values of the Italian Constitution and represented the values of civil life.”8 Interestingly, the obligation to display crucifixes in classrooms dates back to a Royal Decree from 1860, that is, before the unification of Italy. The obligations were restated in Ministry of Education Circulars in 1922 and 1926 and in   Article 3 of the Italian Constitution lays down the principle of equality before the law, without discrimination on the ground (among others) of religion; whilst Article 19 proclaims the freedom of religion. 6  In Lautsi I, para. 24, the ECtHR refers to decisions by the Italian Constitutional Court mentioning the principle of the ‘laïcité’, which–the Constitutional Court says–can be derived from the provisions of the Constitution and the fact that in 1985 it has expressly abandoned the confessional character of the state. 7  See Lautsi I, para. 13. 8   “[L]a croix était devenue une des valeurs laïques de la Constitution italienne et représentait les valeurs de la vie civile” (para. 15). See . 5

416  Carla M. Zoethout Royal Decrees of 1924 and 1928, adopted when Italy was a fascist state. In 1948, a republican constitution was adopted. The Catholic Church is the only church named in the Constitution (Article 7). Secularism (laicità) is not explicitly enshrined in the Constitution, but the Italian Constitutional Court has declared that secularism is to be regarded as one of the fundamental principles of the Italian legal system and that the principle defined the State as a pluralist entity.9 However, McGoldrick observes that secularism in Italy does not imply neutrality but rather a positive or welcoming attitude towards all religions and religious communities. A remarkable further development is that in 1985 an amendment to the Lateran Pact was ratified, to the effect that the principle that Catholicism was the only official religion was considered to be no longer in force.10 Mrs Lautsi regards her case a matter of principle and submits her case before the European Court of Human Rights. She argues that the crucifix, above all else, has a religious connotation and that the fact that the cross could be interpreted differently does not change its main connotation, which is a religious one.11 Accordingly, “[f]avouring one religion by the display of a symbol gave state-school pupils—including the applicant’s children—the feeling that the State adhered to a particular religious belief, whereas, in a State governed by the rule of law, no-one should perceive the State to be closer to one religious denomination than another, especially persons who were more vulnerable on account of their youth.”12 In response to these claims, the Italian government underlines the different meanings of the crucifix, apart from a religious one: the democratic values of today were rooted in a more distant past, the age of the evangelic message. The message of the cross was therefore a humanist message which could be read independently of its religious dimension and was composed of a set of principles and values forming the foundations of our democracies.13

In conclusion, the government states that the crucifix is compatible with the notion of secularism. What is more, the cross symbolizes the philosophy underlying this constitutional principle. Therefore, there would be no violation of the Convention rights. The Italian government’s downplaying of the meaning of the crucifix does not convince the Chamber, however. The Chamber underlines the relationship  9   Dominic McGoldrick, ‘Religion in the European Public Square and in European Public Life: Crucifixes in the Classroom?, 11:3 Human Rights Law Review (2011), pp. 541–502, at p. 464. It was only in 2001, after a number of rulings on secularism, that the Italian Constitutional Court itself removed crucifixes from its own courtroom, McGoldrick observes. 10   Despite the fact there has been a significant decline in church attendance in Italy, the Church remains of social, cultural, political and moral significance. McGoldrick, ibid., p. 465. 11   Lautsi I, para. 31. 12  Idem. 13   Ibid., para. 35.

Rethinking Adjudication under the European Convention  417 between Article 2, First Protocol and Article 8 (family life), Article 9 (freedom of religion and conscience) and Article 10 (freedom of expression) of the Convention. Article 2 of the First Protocol of the ECHR protects the right of parents to educate their children in conformity with their own religious and philosophical convictions. Furthermore, the Chamber repeats that the freedom of religion and conscience not only includes the right to believe but also the right not to believe. The Chamber “takes the view that these considerations entail an obligation on the State’s part to refrain from imposing beliefs, even indirectly, in places where persons are dependent on it or in places where they are particularly vulnerable.”14 In response to the argument of the Italian government that the cross has a neutral and secular meaning, the Court Chamber explains that the symbol of the crucifix has many different meanings of which the religious meaning is the most important. The Chamber acknowledges that it is impossible for pupils not to notice the crucifix at classrooms. “In the context of public education they are necessarily perceived as an integral part of the school environment and may therefore be considered ‘powerful external symbols’”.15 An important statement follows: “The Court does not see how display in classrooms of public schools of a symbol that it is reasonable to associate with Catholicism (the majority religion in Italy) could serve the educational pluralism that is essential to the preservation of a ‘democratic society’ as conceived by the Convention.”16 In a unanimous (!) decision the Chamber concludes that: the compulsory display of a symbol of a particular faith in the exercise of public authority in relation to specific situations subject to governmental supervision, particularly in classrooms, restricts the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe. It is of the opinion that the practice infringes those rights because the restrictions are incompatible with the State’s duty to respect neutrality in the exercise of public authority, particularly in the field of education.17

B.  The Grand Chamber Decision As has been said before, the Grand Chamber was under huge political pressure. The decision by the Chamber caused a storm of protest, both in Italy and abroad.18 Of the 47 members of the Council of Europe, 21 Member States had   Ibid., para. 48.   Ibid., para. 54, with reference to its decision in Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, No. 42393/98. 16   Lautsi I, para. 56. 17   Ibid., para. 57. 18   See Mancini, ‘The Crucifix Rage’ (supra note 3), pp. 6–27. Outside Italy, one of the most outspoken adversaries of the decision is Joseph Weiler (who in the oral hearing of the Grand Chamber appeared for eight intervening States). In his comment on the first Lautsi decision, 14 15

418  Carla M. Zoethout openly criticized the decision by the Chamber. Moreover, an unprecedented number of ‘third parties’ was heard before the Grand Chamber. Thirty-three Members of the European Parliament went to the Court; human rights organizations such as the International Committee of Jurists and Human Rights Watch and 10 European governments (among which were Armenia, Bulgaria, the Russian Federation and Greece) were allowed to set forth their views in an oral argument before the Grand Chamber.19 On a Facebook website, 23,000 people signed up to oppose the judgement. There were of course also voices to be heard in favour of the decision. Over 100 Italian organisations published a joint open letter supporting the Chamber’s decision commenting adversely on the political influence of the hierarchy of the Catholic Church.20 On 18 March 2011 the Grand Chamber repealed the former decision. The Grand Chamber decided the Italian government did not infringe Article 2, para. 1, of the First Protocol to the ECHR. Fifteen judges of the Grand Chamber concluded that the Italian authorities, by prescribing the display of crucifixes even at public schools, acted within the confines of the ‘margin of appreciation’. Strassbourg locuta, causa finita—the honour of Italy was upheld. The ‘margin of appreciation’ has paradigmatically figured in judgments concerning the limitation clauses; the doctrine is being used in particular where the Convention enables a balancing of interests by the Member state, notably under Articles 8–11 EVRM (family life, freedom of religion, freedom of expression, freedom of association) which contain in the second paragraph the ‘necessary in a democratic society’ clause.21 In those cases where the Court leaves the Contracting States a (wide) margin of appreciation, its supervision becomes more marginal. The problem is, however, that Article 2, First Protocol is an unqualified provision. The Court uses the margin of appreciation doctrine in Weiler calls the decision an oracle, which is “undergirded by the following breathtaking understanding of the Convention system in matters of Church and state: ‘[t]he duty of neutrality and impartiality of the state is incompatible with any judgment on its part of the legitimacy of religious beliefs or ways of expressing them’”. J.H.H. Weiler, ‘Lautsi: Crucifix in the Classroom Redux’ (Editorial), 1 European Journal of International Law (2010), pp. 1–5. 19  McGoldrick, supra note 9, pp. 451–502. 20   Ibid., p. 470. 21   The ‘necessity’ test can, according to Strasbourg’s case law from its very early years, lead to a certain margin of appreciation being granted given a consensus among the Member States of the Council of Europe. As the Court for the first time expressed in Handyside v. United Kingdom, 7 December 1976, No. 54933/72, para. 48: “In particular, it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterized by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them…Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation.”

Rethinking Adjudication under the European Convention  419 quite a different way now. It reasons as follows. The crucifix is undoubtedly a religious symbol. But the Italian authorities consider the display of the crucifix in public school classrooms as part of a historical development in Italy. The crucifix therefore does not only have a religious connotation, but also an ‘identity-linked one’. The crucifix is part of a tradition, which needs to be perpetuated. On top of that, the crucifix symbolizes the “principles and values which formed the basis of democracy and western civilization”.22 For these reasons, the presence of the crucifix in classrooms is justified, according to the ECtHR. On the question whether or not this tradition should be continued, there is no consensus between the Member States and therefore falls within the margin of appreciation. This is a strange tournure indeed. It seems no more than logical there is no consensus among the member states on the question whether the use of religious symbols is authorized; the point is that most states have not regulated this matter in the first place. Particularly interesting is the Court’s opinion of the suggested indoctrination which may result from a crucifix at the wall. A crucifix, the Court says, is an essentially “passive symbol”.23 For that reason, the principle of neutrality is upheld after all. In contrast to the Chamber, which referred to the crucifix (and the headscarf) as “powerful external symbols”, the Grand Chamber states that “it cannot be deemed to have influence on pupils comparable to that of didactic speech or participation in religious activities.”24 No breach of the Convention, in short. Again, it must be said the Court was confronted with a knotty problem. In case the first decision was upheld, the Court’s position as a final authoritative judicial tribunal could have been severely threatened—what if Italy would not comply with the decision? The Court is not a Supreme Court of the United States, where, despite considerable differences between the states, a more homo­ geneous culture exists than between the 47 Member States of the European Convention. Moreover, there is far from a consensus among the latter States about delicate matters such as religious symbols, let alone on religion. In its case law the Court accepts regimes with a ‘laicist’ character, such as France and those having a state church (for instance, the United Kingdom, Denmark). That the Court adopts an attitude of restraint when it comes to the prescription (by one of the Member States) of religious symbols is therefore from a political point of view comprehensible (though questionable from a legal point of view). All the same, the Lautsi decisions demonstrate anew the necessity of rethinking the role of the Court and the tools available to decide controversial matters

  Lautsi II, para. 67.   Ibid., para. 72. 24  Idem. 22 23

420  Carla M. Zoethout such as these. The political pressure was apparent and the question is whether the Court was not in need of more ‘options’ to handle a case like this. III.  On the ‘Different Levels’ of Convention Rights Before considering the position of the Court (as a supranational, a ‘quasiconstitutional’ or a constitutional court) let us first have a closer look at the status of the Convention rights themselves. According to Jacobs and White, there is no formal hierarchy of rights set out in the Convention; no right has priority over another. Nevertheless, the rights set out in the Convention can be split into two categories: unqualified (some of which are, moreover, non-derogable) and qualified rights.25 Unqualified rights are the right to life (Article 2; subject though to the extraordinary exceptions listed in the article); the prohibition of torture, inhuman or degrading treatment (Article 3); the prohibition of slavery and forced labour (Article 4); the right to liberty and security (Article 5); the right to a fair trial (Article 6); the prohibition on punishment without law (Article 7); the right to marry (Article 12); the right to an effective remedy (Article 13); the prohibition of discrimi­ nation (Article 14); the right to education and the right to free elections in Protocol 1; and the prohibition of the death penalty (except in time of war or of imminent threat of war) in Protocol 6; and the complete prohibition of the death penalty in Protocol 13.26 Some of these rights are said to be absolute in the sense that no derogations under Article 15 are permitted: “these are to be found in Articles 2, 3, 4 and 7, and in Protocols 6, 7, and 13”.27 Qualified rights arise where the Convention specifies a right, but goes on to indicate that the State may interfere with it in order to secure certain interests. Such rights are the right to family life (Article 8); the freedom of thought, conscience and religion (Article 9); the freedom of expression (Article 10); the freedom of assembly and association (Article 11); and the protection of property (Protocol 1). Most interesting is the category of rights which are labelled as unqualified, absolute rights. It does seem justified at least to wonder whether there is not some difference in status, when it comes to the latter rights.28 Do not some rights require more protection than others? If not, why would some rights have been exempted from derogation at all? And why are they absolute, for that 25   Clare Ovey and Robin White, Jacobs and White: The European Convention on Human Rights (Oxford: Oxford University Press, 2006), pp. 6–7. 26   Ibid., p. 7. 27  Idem. 28   Ovey and White, in the paragraph entitled ‘Is there a hierarchy of rights?’ (ibid.), refrain from emphasizing the different categories to make such a case.

Rethinking Adjudication under the European Convention  421 matter? In my view, the fact that they cannot be interfered with by the state, seems to indicate they have a special status, unlike that of other Convention rights. The Court itself seems to confirm this approach. In the judgment of Jalloh v. Germany, it declared: “The Court held above that the applicant was subjected to inhuman and degrading treatment contrary to the substantive provisions of Article 3 when emetics were administered to him in order to force him to regurgitate the drugs he had swallowed. The evidence used in the criminal proceedings against the applicant was thus obtained as a direct result of a violation of one of the core rights guaranteed by the Convention.”29 Now the question is: once we accept this line of reasoning, that there are ‘core rights’ in the Convention, does not that mean the Court has to differentiate between the different rights? What I mean to say is this. In those cases where unqualified, absolute rights are at stake it seems justified that the Court will often operate as a constitutional or quasi-constitutional court, supposed to uphold the Convention standard. Put differently, the Court may even act as a countermajoritarian institution. When it comes to other rights, however, where a difference in approach of the Member states is generally accepted, the use of the doctrine of the margin of appreciation as a European way of judicial restraint seems a well defensible approach towards these categories of rights. But what should be the Court’s stance, when what is at stake is not a ‘core right’ and the Court’s case law on the right in question would lead to a conclusion which is not accepted by the Member State itself, nor by a significant number of other States? Needless to say, non-compliance by the State in question might weaken the Court’s position considerably. IV.  The ECtHR: A Countermajoritarian Institution – Or, Is It? One of the many problems the Lautsi case have again made apparent, is that the countermajoritarian30 role of the European Court of Human Rights (of which Lautsi I seems a remarkable example31) is not unconditionally accepted (to say the least). Only when the Court can rely on consensus among the 29   Jalloh v. Germany, 11 July 2006, European Court of Human Rights, No. 54810/00, para. 104 and 107 (the quotation is to be found in para. 104). 30   The term ‘countermajoritarian’ is originally an American term often used to denote the supposedly anti-democratic character of the Supreme Court. The way I use the term ‘countermajoritarian’ in this chapter does not have a negative connotation. It is being used to indicate the role of the European Court of Human Rights as an institution which is supposed to review national law in the light of the Convention and give priority to the latter, in case of incompatibility of both systems. 31   Mancini, ‘The Crucifix Rage’ (supra note 3), p. 25; referring to E. Benvenisti, ‘Margin of Appreciation, Consensus and Universal Standards’, 31 International Law and Politics (1999), pp. 843–854 (at p. 852.)

422  Carla M. Zoethout Member States, it seems to be in a position to act as such, but in other cases it very often seeks refuge in the ‘margin of appreciation’, thereby stepping back and leaving a certain latitude to the domestic authorities to strike their own balance regarding Convention rights. Mancini has put this poignantly: “To impose new duties stemming from the Convention, [the ECtHR] has no other method than to rely on consensus, thus avoiding taking direct responsibility for its decisions. In widely applying the doctrine of margin of appreciation, the Court, undermines its role of the external guardian against the tyranny of the majority.”32 Obviously, there is a contradiction in this approach. Whereas the Court is supposed to act as a countermajoritarian institution, its approach is often one of judicial restraint, by using a doctrine which is nowhere to be found in the Convention, but has been invented by the Strasbourg institution itself. The margin of appreciation doctrine is in a way a logical result of the position of the Court being a supranational institution.33 The Court helps to ‘fine-tune’ the domestic law of the Contracting States, so as to bring the law into harmony with the provisions of the Convention. As the President of the ECtHR puts it, “[t]he margin of appreciation is a clear expression of the fact that the Con­ vention does not command or even aspire to strict uniformity throughout Europe in the protection of human rights.”34 All the same, the all too frequent use of the doctrine may have repercussions for its role as guardian of the Convention. What is more, not only scholars and lawyers have qualified the ECtHR as being a constitutional court or a “quasi-constitutional court”35, the justices of the Court themselves have done the same, albeit indirectly.36 They have repeatedly expressed that the delivery of ‘constitutional justice’ should take precedence over ensuring ‘systematic individual justice’. The former President of the ECtHR, Luzius Wildhaber, noted that “the way forward is to make it possible for the Court to concentrate its efforts on decisions of ‘principle’, decisions which create jurisprudence. This would also be the best means of ensuring that the common minimum standards are maintained across Europe.”37 Obviously,  Idem.   Handyside v UK., supra note 21, para. 48. 34   He continues by saying that the fact that the Convention does not command or even aspire to strict uniformity throughout Europe “is a key difference between the mission of the European Court at Strasbourg and that of the European Court at Luxembourg, which is the guarantor of the uniformity of the whole system of EU law.” Jean-Paul Costa, ‘On the Legitimacy of the European Court of Human Rights’ Judgments’, 7 European Constitutional Law Review (2011), p. 180. 35  Jackson, supra note 1, p. 777. 36   Loizidou v. Turkey, 18 December 1996, European Court of Human Rights, No. 15318/89, ECHR Judgement (Preliminary Objections) of 23 March 1995, para. 75. 37   Luzius Wildhaber, ‘A Constitutional Future for the European Court of Human Rights?’, 23 Human Rights Law Journal (2002), p. 164. See also Steven Greer, ‘Constitutionalizing 32 33

Rethinking Adjudication under the European Convention  423 the efficacy of the ECtHR in dispensing constitutional justice is dependent on the voluntary enforcement of adverse judgments by the Contracting States.38 That brings me to a reflection on the modes of judicial review by the ECtHR. As has been suggested before, the fact that there is a difference ‘in level’ (maybe even an implicit hierarchy) amongst the Convention rights, may have consequences for the mode of adjudication by the ECtHR. Is not a difference in approach by the Court on the basis of this difference in level very likely? Do not some provisions require a more ‘robust’ form of review than others? And, conversely, do not some rights enable a certain amount of discretion by the Contracting States?39 What results from the foregoing is that it seems possible to distinguish between the different modes of adjudication as practiced by the ECtHR. That is to say, some rights seem to require ‘strong’ or ‘robust’ review by the Court, some enable a more ‘weak review’ (I would label the use of the ‘margin of appreciation’ as such) and some rights or cases require (what I would like to call) a ‘moderate form of adjudication’. Now it is the latter form of adjudication I want to elaborate upon somewhat more and it is this form I would propose for situations like the one in the Lautsi case, that is to say, for a highly controversial, political issue which has to be decided by a supranational, constitutional court. V.  Towards a New Mode of Adjudication by the Court From the foundational moment of the European Convention and the European Court of Human Rights, both the treaty and the Court were supposed to occupy a subsidiary role regarding human rights protection in relation to the Contracting States. In the Handyside case the Court stated that “[b]y reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions.”40 This phrase was to become the prelude to the since often used margin of appreciation which left relevant cases primarily for the state to decide, whilst triggering a more marginal supervisory role for the Court. In applying the doctrine of the margin of appreciation, the Court generally utilizes two methods. First, the Court balances the importance of the right in question (!) with the necessity of the restriction or interference posed by the State. Second, the Court seeks to find whether there is a European consensus regarding the matter at issue. Lack of consensus usually results in Adjudication under the European Convention of Human Rights, Oxford Journal of Legal Studies (2003), pp. 405–433, at p. 406. 38  Jackson, supra note 1, p. 781. 39   Ibid., p. 773. 40   Handyside v. UK, supra note 21, para. 48.

424  Carla M. Zoethout recognition of a wider margin of appreciation, while a substantial consensus among European states usually results in application of a narrow margin. At the same time, however, the ECtHR’s role is that of a constitutional court. It is the final authoritative judicial tribunal for questions about alleged human rights violations in Europe; a specific European constitutional system if you will. Its task is to ensure that the exercise of public power throughout Europe is compatible with the ECHR. In that role it seeks to deliver constitutional justice, rather than individual justice as we have seen before. Now suppose the modes of constitutional adjudication by the Court are considered as a continuum. On the one hand, the Court is required to deliver (what I propose to call) ‘strong’ or ‘robust review’ (as when it comes to the core rights of the Convention) and on the other hand, it sometimes decides its role is subsidiary, and the matter is primarily left to the national authorities. As opposed to the first mode of review, one might also label the latter form as a ‘weak form of review’. The question is, however, whether the Convention does not require the Court to steer a course in between, at times? That is to say, should not the Court, given the circumstances, sometimes speak out and set a standard, without necessarily convicting the state in question? What I mean to say is this. During the Lautsi procedure it was questionable whether Italy would comply with the judgment in case the Grand Chamber would have upheld the Chamber decision. Apart from that, it was clear that the Grand Chamber was under huge political pressure, not least because Italy’s supporting parties very much focused on the freedom of religion which they said was crucial in this case. As McGoldrick in his analysis of the Lautsi case puts it: “In the current political climate there may have been sustained political opposition to it across Europe and the European Court’s credibility and even its existence may have been under threat. In my view, the Grand Chamber appreciated that and so ruled as it did.”41 It is under these conditions that the Court may profit from those systems which accept a form of judicial review without necessarily submitting to its problematic effects. Most notable is the British system. The Human Rights Act 1998 which makes it possible for judges reviewing Acts of Parliament in the light of the Constitution to conclude to a ‘declaration of incompatibility’, thereby avoiding to frustrate Parliament by judging a legal measure void, whilst effectively reviewing government action nonetheless. Why not consider introducing a European ‘declaration of incompatibility’, as a ‘moderate form of judicial adjudication’?42  McGoldrick, supra note 9, p. 502.   On the distinction between ‘strong form judicial review’ and ‘weak form judicial review’, see Marc Tushnet, ‘Alternative Forms of Judicial Review’, 101 Michigan Law Review (2003), pp. 2781–2802. 41 42

Rethinking Adjudication under the European Convention  425 From a more fundamental point of view, this may also be a meaningful way for the ECtHR to follow. A ‘declaration of incompatibility’ enables the Court on the one hand to uphold a European standard—in this case that religious symbols should be not prescribed at public schools—and on the other hand to respect democratic decision-making at state-level (and leave the solution in concreto to the Italian government). Put differently, the new way of review will enable the Court to avoid becoming a court whose decisions are not respected by the Member States and nevertheless to act as a truly constitutional court. What may seem to come out of thin air in fact parallels a tendency of rethinking the European Court’s position. At the High Level Conference meeting at Interlaken on 18 and 19 February 2010, at the initiative of the Swiss Chair of the Committee of Ministers of the Council of Europe, a declaration was issued (the ‘Interlaken Declaration’)43 calling for a simpler procedure to amend Convention provisions of an organisational nature. The Conference focussed mostly on the means of dealing with the enormous backlog of cases of the European Court (which amounts to 150,000 cases, increasing at a rate of 20,000 per annum).44 More importantly (from this chapter’s perspective) is that the Chair of the British Commission on a Bill of Rights has recently made proposals as to the position of the Court vis-à-vis other institutions (that is to say, international or national democratic institutions). The Chair suggested, for instance, making it possible to override a Court decision, if such was the will of the Parliamentary Assembly or Committee of Ministers, or perhaps of both, acting collectively. A variant of this approach might be a power on the part of the Committee of Ministers to determine that a Court judgment should not be enforced if it considers that the course of action was desirable and justifiable in the light of a clear expression of opinion by the relevant Member State’s most senior democratic institution. Still another variant could be a requirement in respect of proposed ground-breaking findings of violations for the Court first to consult the other Council of Europe institutions and for the Court to take a collective expression of opinion into account.45 Interestingly, these proposals are formulated in a letter of the Chair of the Commission and by no means the ideas of the Commission as a whole. It is telling that some members of the Commission opposed to these proposals, arguing that “any possibility of override is fundamentally inconsistent with the Rule of Law inherent in the Convention system and with the concept of the

43  See . 44   ‘Reform of the European Court of Human Rights, Our Interim Advice to Government’, Commission on a Bill of Rights, 28 July 2011, p. 4, para. 13 (available at ). 45   See .

426  Carla M. Zoethout Convention as a charter of fundamental rights and freedoms.”46 These Commission members wondered how, “if a right or freedom is fundamental, it can be right to allow any legislature, however democratic, to override it.”47 VI.  Final Remarks Now suppose the Court would have issued a ‘declaration of incompatibility’ of the Italian crucifix prescription and the Convention rights—what might be the result? Most likely, the Italian authorities would have felt obliged to make some kind of an arrangement, in order to act in conformity with the Convention. By issuing a declaration of incompatibility and leaving the choice of means to comply with the Convention up to the national authorities, the Court would formulate a European standard without interfering with the matter in concreto. A possible solution would be that Italy would no longer apply the crucifix regulation categorically, but would make it possible for parents to object to its presence at public schools. Italy would be able to make a rule on the matter which says that at those public schools where parents oppose to the crucifixion in classes, crucifixes in the classrooms will be removed. Thus, the general rule on the crucifixes is upheld, but Italy would be able to give in to possible complaints. In so doing, it would do justice to the principle of secularism, as one of the fundamental principles of the Italian legal system (as the Italian Constitutional Court has underlined more than once).48 With this solution, expression is being given to a positive or welcoming attitude towards all religions and religious communities, an attitude which is considered to be the basis of Italian secularism.

 Idem.   Ibid, p. 5. 48   Dominic McGoldrick, supra note 9, p. 541–502. 46 47

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INDEX abortion  86–87, 189, 254 access to education, see right to education Africa 37 African religion  37 Agnosticism  38, 60, 88–89, 166, 214, 243, 250, 265, 274, 309, 330, 358, 388–389 Albania  14, 16, 29 American Revolution  147 Amicus Curiae (Lautsi)  29, 63, 71, 80, 140, 166–167, 172, 174–175, 284 Amnesty International  409–410 Anabaptists 264 Andorra  14, 78 Anglican Church  70, 362. See also Church of England anti-Semitism  70, 203, 217, 261, 310, 408, 411 apostasy  23, 274 Apostolic  14, 16, 369 Armenia  14, 16, 18, 24, 29, 80, 418 Armenian Apostolic Church/religion  14, 16 Atheism  38, 54, 60, 69, 88–89, 138, 166–167, 190, 208, 212, 214, 243, 250, 287, 302–303, 307, 309, 330, 358, 385–386 attire, see religious attire Australia 57 Austria  16–17, 19, 24, 26, 28–29, 32, 85–86, 110–129, 347–348, 407 Azerbaijan  14, 16, 24 Baha’i faith  40, 293, 296 baptism 39 Baptists  70, 186, 343 beard  124, 331 Belgium  13, 63–64, 68, 78, 81–82, 113, 115, 220, 226 Bible  38, 97, 247, 271, 286, 293, 373 blasphemy  43, 287, 405, 407 Bosnia and Herzegovina  14, 16, 166 bracelet  43. See also kara Brahma 38 Buddha  39, 366–367 Buddhism  38, 42 Bulgaria  16–17, 25–27, 29, 80, 221, 346, 348, 418 Bulgarian Orthodox Church  26, 346, 348 bumper sticker (religious)  44 Bundesverfassungsgericht  74–75, 87, 313 burqa  36, 52

Canada  148, 242–243, 245–265, 383, 410–411 candelabra, see menorah Canon law  367, 407 Catholic (Church)  13–17, 18–21, 23, 29–30, 37, 60–61, 64–65, 70, 73–74, 76, 80–81, 105–106, 108, 127–128, 131–132, 140, 146–147, 165, 183–191, 193, 196, 198–203, 205, 207–108, 211–213, 216–217, 244–245, 257–265, 284, 303–311, 315, 317, 319–320, 322–324, 334, 336, 340, 342, 359, 362, 366–368, 385, 388, 390, 392, 394, 396, 405, 409–412, 416–418 chador 52 Chattra 39 Children’s Rights, see rights of the child Christ, see Jesus Christianity/Christians/Christian Church  18–19, 30–33, 35–38, 42–43, 45–46, 48, 50, 53–55, 57, 60, 66–67, 69, 70, 72, 76, 80, 86, 88, 94, 105–106, 118, 127–131, 136, 138, 141–141, 165, 171, 173, 179, 185–186, 188, 193, 201, 203–204, 206, 208, 214, 216–218, 241–266, 276–277, 279–280, 282, 291, 296, 304, 307–310, 313–314, 320–321, 325, 332–334, 338, 344, 355–356, 359–360, 367–368, 370–373, 378–382, 384, 386–388, 393–396, 399–401, 406–409, 414 Christmas symbols  47, 76, 275, 369, 372–373 church autonomy  148, 285, 348 Church of England  233, 362, 407 Church of Jesus Christ of Latter-day Saints  37, 296 church-state relationships/models  4, 27, 30, 32–33, 64, 139, 141, 199, 220–221, 227, 229, 271, 292, 306, 383 civil servants  6, 121, 130, 135–136, 143, 162, 222 coat-of-arms  39, 41, 167, 369 coercion (religious)  36, 55, 100–101, 118–119, 134, 143–144, 147, 164, 241, 244, 246–247, 258, 259, 265–266, 269–270, 272–278, 281, 294, 296, 401 Committee of Ministers (Council of Europe)  22–23, 87, 425 Committee on the Elimination of Discrimination against Women  176 Committee on the Rights of the Child  150– 152, 169

438 Index Communism/Communist states  4, 14, 20–22, 24–25, 69, 187, 286–287, 371–372 Concordats (with Vatican)  188, 303, 306–307, 317 conscientious objections  26, 145, 148, 165–170. See also right to freedom of religion or belief Council of Europe  4, 13–15, 20, 22–25, 27, 29–30, 33, 54, 63, 68, 77–79, 84–87, 110, 116–117, 139, 141, 175, 220, 267, 276, 290, 298, 316, 329, 331, 348, 383, 385, 387, 401, 414, 417–418, 425 counter-majoritarianism  83, 88, 173, 413–414, 421–422 creation science  257 crèche  47–48, 76–77, 276 crescent  38, 40, 57, 190, 212 criminal law  294, 303, 410, 321 Croatia  29, 348, 352 cross  1, 35–38, 40, 50–52, 56–58, 62, 71, 105, 136, 172, 182, 201, 203, 212, 263, 272–281, 286, 288, 304, 307–313, 320–321, 325, 333–337, 355–356, 369, 373–374, 377, 384–387, 391, 393–396, 416–417 Celtic 37, Latin  37–38, 57, 276–277, 386–387 Southern 57 crucifix  1, 3, 5–6, 8–9, 15, 28–31, 35, 37, 53–56, 59–64, 67, 69–77, 81, 83, 89, 93–111, 114, 116, 123, 128–129, 136–142, 146–148, 152–155, 164–176, 179–184, 188, 190–193, 196–219, 237, 241, 244–245, 257–275, 280–299, 301–325, 333–338, 342, 344, 352, 355–421, 426 crusades  56–57, 86, 203, 217, 261, 310, 408 curriculum  66–67, 72, 94–95, 98–100, 102, 143, 148, 164, 169, 196, 205–207, 237–238, 272, 279, 282, 291, 294, 297–299, 316, 324, 338, 339, 340–343, 358, 367, 370–371, 374, 376 Cyprus  14, 29, 31, 80, 168, 171 Czech Republic  14, 166 dagger, see kirpan Daoism 57 Darwin 43 David Star, see Star of David death penalty  420 democracy  31, 54, 86, 117, 128, 182–183, 185–189, 199, 201, 203, 208, 215, 220, 230, 242, 244–245, 259–261, 310, 334, 343, 349, 363, 366, 372, 378, 380, 381, 419 Denmark  13, 16, 18, 22, 63, 66, 68, 94–96, 99, 221, 290–291, 297, 336, 419 Dharma 39 Dharmachakra 38 Dhvaja 39

discrimination (religious)  50, 141, 150, 173, 179, 233, 283, 289, 303, 367, 370, 383, 401, 412. See also equality diversity  14, 29, 60, 70, 71, 84, 110, 122, 127, 165, 180, 185, 197, 217, 243, 245, 263–265, 290, 298–299, 311, 341, 362–363. See also pluralism dress, see religious attire Eastern Europe  187 education, see also right to education primary education  107, 120, 122, 124, 143, 148, 154, 160–161, 165, 222, 297, 305, 312, 314, 323, 332, 339, 370, 391, 411 secondary education  107, 122, 143, 148, 271, 297, 339 Enlightenment  113, 117, 147, 199, 339, 378–379, 381 enrolment policies  65, 145, 166–167, 172, 189, 294–297 equality  32, 36, 52–53, 117–118, 127, 134, 156, 163, 174, 184, 197, 215, 222–223, 225, 227, 230–231, 233, 246, 253–254, 259, 264, 283, 285, 311, 332, 352, 358, 367, 369, 379, 415. See also discrimination Establishment Clause  36, 45, 47–48, 51, 76–77, 139, 261–262, 268–269, 273, 275–277, 372, 386, 402. See also First Amendment establishment of religion  36, 64, 67–68, 72, 89, 172, 202, 346, 361, 370, 386, 395, 419 Estonia 14 ethics classes  169, 294 European Centre of Law and Justice  64, 286 European Commission of Human Rights (former)  18, 22–23, 68, 97, 131 European consensus  2, 81, 86, 110, 287, 290, 299, 329, 380, 423 European Court of Human Rights  2, 4–5, 7–9, 14–36, 52–53, 59, 64–74, 78, 80, 82, 85–86, 93–98, 101, 103, 107, 111, 113–115, 120, 121, 125, 128–132, 136, 140–146, 152–158, 164–176, 179, 201–206, 219–222, 241, 258, 267–273, 285, 289–291, 298–309, 223–224, 229–250, 328–426 European Humanist Federation  63, 267 European Parliament  62, 140, 288, 418 euthanasia  189, 254 fair trial  420 Faravahar 41 fertility rituals  39 financial support (religion)  61, 243, 367 Finland  68, 82, 96, 131 First Amendment (USA), 7, 36, 45, 76, 139, 261–262, 321, 386, 402 flag  40, 57, 167, 309

Index  439 forum externum  116, 119, 121, 144, 158, 400. See also right to freedom of religion or belief forum internum  8, 116, 119, 121, 134, 319–320. See also right to freedom of religion or belief France  13, 16, 18–19, 21–22, 27, 29, 33, 36–37, 55, 62, 64, 68, 70, 81, 85, 113, 117, 120, 184–185, 190, 198, 220, 226–227, 229–230, 279, 313, 331, 379, 419 free speech, see right to freedom of expression freedom of religion, see right to freedom of religion or belief freedoms, see rights Freemasons 43 French Revolution  70, 181, 184–185, 366, 369 garb, see religious attire Georgia  16–17, 26 Germany  8, 16, 18, 42, 59, 63, 68, 71, 74–75, 81, 87, 110, 115, 130, 132, 134–135, 152, 220, 227, 271, 275, 312–313, 320–325, 338, 342–343, 347, 372, 421 God  38–41, 45–46, 53, 71, 76, 133, 166–167, 185–186, 189, 251, 253, 255–257, 261–262, 280, 293, 298, 304, 384, 388, 393 Gospels  70, 76, 280, 293 Greece  14, 16–22, 24–27, 29, 31, 80, 101, 113, 117–119, 128, 145, 165, 167, 204, 258, 285, 302, 330, 346, 348, 400–401, 406, 418 hate speech  9, 383, 385, 405–407, 412 head covers  36, 52–53. See also headscarf, kippa(h) headscarf  1, 5, 27–28, 36, 52–55, 66–67, 72–73, 98, 103, 113, 142, 154–160, 219–236, 279, 281, 331–332, 336, 357, 374, 391, 397, 419 Helsinki Monitor  394, 396 hijab  36, 256 Hinduism/Hindus 38 holidays (religious)  55, 70, 76, 211, 238, 244, 251, 276, 373 Holy See  65, 174, 188–189, 303, 306, 385, 409. See also Vatican homosexuality  85, 136, 141, 171, 189, 217, 256–257, 409 horizontal effect (human rights)  115, 165, 389, 400, 404 House of Lords  70 Human Rights Committee  96, 148, 168, 172–173, 175, 411 Human Rights Watch  418

Humanism  38, 63, 203, 267, 283, 297, 304, 33, 416 Hungary  8, 29, 52, 284, 296, 355, 365–382 Ichthys 43 icons/iconography (Orthodox)  1, 37–38, 40–41, 53, 208, 267, 278, 280, 283, 285–296, 386 identity (religious)  196, 199, 266, 302, 369 impartiality  27, 69, 72, 75, 81, 136, 182, 183, 194, 204–205, 258, 268–270, 273, 312, 322, 331, 335, 338–341, 345, 348–349, 351–353, 384, 388, 390, 392, 397, 404, 418. See also neutrality incitement  405, 407. See also hate speech indoctrination  4–5, 28, 35, 55, 66–67, 72, 89, 94–111, 119, 123, 125–126, 137–138, 140, 144, 164–165, 167, 174, 205–207, 244, 248, 258–259, 265, 268–275, 282–284, 287, 292–294, 296, 301, 316–317, 320, 323, 329, 339, 341–344, 380, 398, 406, 419 Inquisition  203, 217, 261, 310, 395, 408 intelligent design  257 International Committee of Jurists  418 international criminal law  410–411 international human rights law  36, 93, 143, 148, 157–159, 163 Iran 41 Ireland  13, 71, 85–87, 110, 168–169, 347 Islam(ic)  16, 27, 33, 36, 38, 40, 52, 55, 66–67, 72–73, 98, 113, 120–121, 128–130, 141, 154, 156–159, 185, 206, 219, 22–223, 232, 245, 263, 279, 290, 332, 339–340, 363, 371, 378–381, 391, 394, 397. See also Muslim(s) Israel 40 Italy  1–2, 6–9, 13–18, 22–24, 28–30, 35, 53–56, 60–69, 75, 93, 99, 103–116, 123, 128–132, 136–141, 146–152, 154, 159, 163–179, 182–209, 213–219, 226, 241, 244–245, 258, 269, 274, 286–426 Jamaica 57 Jehovah’s Witnesses  25–26, 38, 115, 131, 246, 302, 348, 405 Jesuits 23 Jesus fish  43 Jesus statue  36 Jesus  36–37, 41, 43–44, 48, 56, 70–71, 76, 201, 207, 262, 305, 310, 313, 369 Jewellery (religious)  43–44 Jews/Jewish  39, 45, 53, 69–70, 73, 129, 186, 212, 214, 242, 276, 307, 366, 387, 411. See also Judaism Judaism  39, 70, 243, 378. See also Jews/ Jewish

440 Index judicial activism  83, 85, 170 judicial restraint  59–89 kachera 39 kanga 39 Kantian philosophy  186 kara 39 keffiyeh 53 Kenya 52–53 kesh 39 Khanda 39 King, Martin Luther  186 kippa(h)  1, 70, 129–130. See also yarmulke kirpan  1, 39 Koran  107, 156, 223, 340 Ku Klux Klan  56 laïcité, 6, 27, 60–62, 72, 74, 81, 89, 117, 122, 174, 181, 184–185, 187, 210, 226–228, 362, 415 Lateran Pacts  64, 69, 188, 191, 202, 306–307, 317, 416 Latvia  14, 16–17, 21, 26–27, 178, 348 Lemon test  45, 48, 275–276 libertarianism  82, 183, 195–198 Liechtenstein 78 Lithuania  29, 80 lotus flower symbol  38 Lutheranism  67, 370 Luxembourg  13, 16, 18, 97, 422 Macedonia  16, 18, 29, 221 majority, see religious majority Malta  29, 70, 80 margin of appreciation  2–4, 8, 28–29, 35, 54, 65, 67, 72, 74, 80–88, 93, 109–111, 121, 124–125, 132, 137, 140–141, 158, 162, 174, 179, 198, 200–201, 205, 218, 223–224, 229, 245, 259, 267, 272, 273, 280, 282, 286, 287, 290–291, 316–317, 323, 325, 329, 331–332, 340–344, 353, 357, 380, 383, 413–414, 418–419, 421–424 Matthew  43, 70, see also New Testament maturity  102, 106–107, 151–152, 160 memorials (religious)  36, 50–52, 374, 385–387, 391. See also war memorials menorah  39, 76–77 Middle East  41 minarets  31, 113 minorities (religious)  2, 22, 63, 78, 83, 89, 127, 132, 135, 146, 149, 153, 176, 180, 182, 192, 196–199, 208, 212, 217–218, 233, 268, 283–284, 286, 290, 325, 361, 385, 400 minority rights  2, 9, 22, 96, 171, 173, 381 Moldavia 29 Moldova  16–18, 25–26, 204, 221, 346, 348, 390

Monaco  14, 29, 78, 80 Mongolia 57 Mormons, see Church of Jesus Christ of Latter-day Saints Moses 47 multiculturalism  208, 241–266, 322 Muslim(s)  14, 16–20, 26, 32–33, 36–38, 54–55, 57, 69, 103, 113, 121, 123, 125, 128–129, 132, 157, 173, 212, 214, 227, 231, 233–234, 242, 245, 263, 271, 296, 322, 348, 357, 379–380. See also Islam(ic) Naga 39 nativity scene, see crèche Nazism  38, 42 Near East  41 necklace (cross/religious)  1, 43, 129, 136 Netherlands  13, 68, 78, 81, 125, 196, 219–220, 226, 229–232, 410 neutrality (principle)  179–238 New Testament  40, 43 New Zealand  57 niqab  52, 234, 264 non-discrimination. See equality, discrimination Northern Ireland  171 Norway  13, 23, 67, 97, 100, 107, 140, 164, 168, 206, 271, 336, 338–340, 343, 370–371, 399 Old Testament  58 opt-outs (religion class)  95–96, 101–102, 148, 168–169, 196, 233, 344 Oriental religion  37 Orthodox/Orthodox Church (Christian)  1, 13–17, 19–22, 25–26, 30–33, 53, 80, 127, 140, 165, 174, 280, 283–285, 287–293, 296–297, 310, 346, 348 Padma 38 parental liberties  1–2, 147–155, 166 Parliamentary Assembly (Council of Europe)  13, 78, 425 pentagram 40 Pentecostalism/Pentecostal Church  113, 118–119 pluralism  6, 22, 55, 56, 60, 67, 81, 84, 96, 164, 167, 176, 181, 185, 188–189, 204–205, 207, 208, 212, 214, 221, 244, 263–264, 269, 282, 285, 290–291, 295, 299, 310, 339, 343, 356, 362–365, 371, 417. See also diversity Poland  16, 18, 21, 29, 59, 97, 110, 169, 187, 349, 413 Pope  14, 140, 187, 378, 410–411 Benedict XVI, 140, 378, 410 John Paul II, 11, 14, 187 Paul IV, 261

Index  441 prayer (school)  37–39, 71, 97, 241, 248–249, 256, 258, 271, 276, 278, 281, 321, 325, 334 priests  23, 53, 284, 292, 297, 359, 410 privacy, see right to private life pro-life 80 proselytism  4–5, 24, 26, 44, 72, 97–102, 109, 111, 113–128, 142–143, 154, 157–165, 196, 206–207, 214, 223, 258, 271, 276, 278, 281–282, 291, 293, 302, 319–320, 332, 340, 346, 397, 400–403 Protestant (Church)  30–20, 30, 32–33, 37, 70, 81, 118, 127, 131, 186, 196, 201, 212, 243, 245, 263–264, 294, 359 public reason  181–182, 190, 198–199, 241, 246, 265 public schools  1–2, 6–9. 23, 35–36, 45, 53–54, 59–57, 70–76, 88–89, 108, 113–114, 122, 124, 130, 136–139, 143, 176, 179–183, 188–189, 193–198, 201–208, 211–212, 215–217, 241, 244–245, 252, 257, 263, 267, 269–276, 281–329, 253, 283–289, 401–403, 412–414, 425–426 public space/square  1, 6, 15, 24, 28, 30, 33–34, 70, 81, 103, 113, 129, 143, 161, 163, 167, 168, 174, 184, 186, 199, 211, 214, 215, 262, 267, 286, 325, 346, 350–351, 388 pupils  2, 6, 54, 59, 72–75, 93, 98–108, 120–124, 135–138, 144, 153–169, 183, 206–207, 212, 222–224, 233–238, 259, 271, 280–281, 284, 288, 292, 294, 308, 314–315, 320, 323, 332–337, 356, 363–371, 389, 392, 395, 397, 416–417, 419. See also students Qu’ran, see Koran Raëlism  347, 350–351 Ramadan  55, 67 Reformation 184 registration (religious organization)  27–28, 32, 346, 351, 390 registration (schools), see enrolment policies religious attire  1, 3, 107, 125, 144–145, 155, 160, 162, 173, 211, 221, 224, 226, 228, 231–232, 234, 237, 269, 271, 279 religious autonomy, see church autonomy religious education/religion class  67, 72, 96, 98–99, 102, 169, 189, 196, 233, 283–285, 293–295, 297 religious freedom, see right to freedom of religion or belief religious liberty, see right to freedom of religion or belief religious majority  3, 141, 145–146, 149, 166, 171–172, 188 religious minorities, see minorities right to an effective remedy  420

right to education  15, 35, 54, 63, 100, 137, 143, 145, 149–153, 172, 241, 285, 336, 341, 356, 380, 383, 389, 415, 420 right to freedom of religion or belief as collective right  3, 14, 26, 145, 147, 290, 320, 360 as negative freedom (freedom from religion)  5, 7, 59, 69, 73–75, 88, 113–142, 144–147, 153, 165, 193, 301, 304, 315, 320, 324–325, 357, 359, 361–363 as positive freedom  74, 147, 301, 325, 363 conscientious objections  26, 145, 148, 165–170 forum externum  116, 119, 121, 144, 158, 400 forum internum  8, 116, 119, 121, 134, 319–320 right to free elections  420 right to freedom of association  19, 21–22, 173, 295–296, 418, 420 right to freedom of expression  19, 21–22, 107, 132, 173, 185, 303, 324, 350, 360, 368, 375–377, 405, 412 right to freedom of peaceful assembly  19, 21, 420 right to liberty and security  420 right to marry  85, 420 right to private life  85–86, 113, 132, 170, 172, 184, 229, 257 rights of the child  1–2, 15, 122–123, 136–138, 148–153, 161, 168, 283, 285, 288, 409. See also Committee on the Rights of the Child ring 43–44 ringstone 40 Masonic 43 rituals  39, 193, 259, 359, 365 Romania  7, 29, 80, 267–268, 280, 283–299 Romanian Orthodox Church  287 Russia  16–18, 26, 29, 70, 78, 80, 131–132, 140, 174, 330, 346, 418 Russian Orthodox Church  80, 140, 174, 330 Sabbath  45, 131, 247–248, 252, 256 Salvation Army  26 Samoa 57 San Marino  16–17, 26, 29, 78, 80, 144, 167, 302, 406 Sangha 39 Scientology  18, 346 Scripture  39, 186, 254, 257–258, 261 sects  47, 50, 53, 264, 292–293 secularism  5, 8, 14, 29, 32–33, 36, 55–56, 60–62, 70, 80–81, 88, 114, 116–118, 124–137, 142, 153, 181–218, 230, 245, 250–251, 255, 273–275, 280, 288, 304,

442 Index 308–315, 320, 322–323, 331, 333, 345, 349, 352, 357–365, 375, 379, 381, 383–385, 387–390, 396–397, 415–416, 426 semiotics  1, 3, 5, 93–111, 155, 157 separation between state and church  61, 63, 65, 67–68, 70–71, 73, 81, 89, 185–187, 197, 203, 222, 224, 227, 229–230, 233, 246, 251, 260, 263, 287, 306, 356 Serbia 29 Seventh Day Adventism  131, 267, 284, 287 sex education  94–95, 336, 342 Shinto 40 Shiva 38 signs (theory)  42–44 Sikhs/Sikhism  27, 39, 69, 129 skull cap, see yarmulke slavery  171, 186, 411, 420 Slovakia 29 South Korea  57 sovereignty (state)  30, 79, 87, 202, 298, 413 Spain  8, 16, 18, 23, 117, 168, 226, 314 Šrpska 165 star  38, 40, 57, 136, 190, 212, 371–372, 387 Islamic Star  57 Star of David  40, 136, 190, 212, 387 Star of Solomon  57 state church, see establishment of religion state duties, see state obligations state neutrality, see neutrality state obligations  1, 27, 99–100, 105, 339 negative  1, 143 positive  85, 102, 132, 147–148, 205, 285, 353, 404 state religion, see establishment of religion stem cell research  189 students  6, 29, 36, 45, 52, 65, 66, 98–103, 114, 120, 125–126, 135, 144, 151, 158, 160–162, 179, 189, 207, 214, 229, 231–232, 244, 248, 258–259, 265, 269–270, 273, 277–284, 288–197, 303, 305, 312, 321, 325, 331–332, 379, 380, 405–407. See also pupils Stupa 38 subsidiarity (international law)  30, 63, 80, 384 Sufism 40 Supreme Court US, 36, 45–47, 49, 52, 76–77, 80, 87, 106, 139, 262, 270, 272, 275–277, 281, 314, 321, 372, 374, 386–387, 402–403, 405, 419, 421 Canada  242, 244, 246–248, 252, 411 swastika  38, 42, 130 Sweden  13, 16, 18–19, 22, 68, 97, 107, 404 Switzerland  4, 8, 16–18, 27, 31, 36, 46, 57, 59, 68, 73–74, 103, 107, 109, 113, 115, 117,

120, 129–130, 152, 152, 154, 156, 159–160, 171, 219, 221–226, 236, 271, 313–314, 321, 324, 347, 350–351, 391, 397, 401, 411, 417, 425 symbols Baha’i 40 Buddhism  38, 42 Christian  36, 48, 50, 55, 69, 128–129, 201, 208, 214, 245, 372–373, 393–394, 399, 408 Daoist 57 Hindu 38–39 Islamic  128, 380, 394 Jewish 39 ‘passive’, 3, 5, 9, 35, 55, 72, 73, 103, 105, 108, 111, 138, 154–155, 219, 236, 244, 258, 274–275, 309, 320, 324, 335, 337, 356, 392, 395, 397–400, 406, 419 personal  1, 150, 163, 279. See also headscarf, necklace ‘powerful external’, 9, 120, 130, 154, 219, 223, 236, 279, 281, 334, 379, 391, 397–400, 417, 419 Shinto 40 Sikh  27, 39, 69, 129 state  1, 3, 9, 148, 167–168, 175. See also crucifix, cross Sufi 40 Wiccan 212 Zoroastrian 41 teachers  1, 6, 29, 73, 99, 103, 106, 113, 120, 122–124, 130, 132, 135, 138, 143–144, 150, 154, 156, 158, 160–164, 219–237, 268–271, 281, 288–297, 332, 367–368, 389–341, 405, 411 tefillin 39 Ten Commandments  45–47, 51, 261–262, 276–277, 314, 321, 402 terrorism  63, 70, 208 theocracy  63, 80, 187 tolerance religious  55, 60, 261, 310, 252, 259, 362 religious intolerance  51 torii 40 torture (prohibition of)  84–85, 420 tradition (religious)  1, 8, 9, 14, 21, 25, 31, 53, 163, 172, 175, 176, 215, 217, 24–246, 251, 263, 265, 269, 272, 273, 282, 291, 344, 353, 355, 359, 364, 366, 368–371, 375, 376, 381 Trinity 71 Triratana 38 Tulkens (Judge)  27, 81–82, 86–87, 157, 162

Index  443 turban  27, 39, 129–130 Turkey  14, 16–23, 27, 33, 36, 52, 64–65, 67–78, 73, 97–98, 102–103, 107, 114–115, 117, 120, 124–126, 130, 141, 156, 162, 165, 169. 173, 190, 206, 220–221, 226, 270, 273, 291, 331–332, 336, 339, 340, 342, 345, 347, 349, 353, 368, 371, 379, 391, 400, 422 Ukraine  16–17, 26–27, 29, 348 United Kingdom  13, 16, 18, 57, 63, 68, 70, 78, 80–81, 113, 115, 117, 129, 132, 136, 170–172, 220, 226, 235, 347, 362, 414, 418–419 United Nations  144, 149–151, 168, 175, 408–410 United States of America  35, 41, 43–46, 52, 57, 61, 70, 80, 86, 190, 199, 257, 267, 270, 275, 313, 321, 372, 385–386, 403, 405, 419 university  103, 124, 126, 160–161, 379

Vatican  140, 188, 207, 385, 408–409. See also Holy See veil (Islamic)  28, 113, 185, 232–235 Vietnam War  403, 405 Vishnu 38 war memorials  36, 50–51, 276, 374, 387 Wicca 212 women’s rights  52. See also Committee on the Elimination of Discrimination against Women World War I, 373, 386 World War II, 36, 42, 381 xenophobia 173 yarmulke  40, 53. See also kippa(h) Zen Buddhism  212 Zionism 40 Zoroastrianism 41