Why this ruling should make us cross
The decision of the European Court of Human Rights to ban crucifixes in Italian schools sets a dangerous precedent.
While Italian president Silvio Berlusconi’s beating at the hands of a souvenir-wielding protester dominated the headlines, Italian democracy took a more severe beating recently at the hands of European bureacrats.
At the beginning of November, the European Court of Human Rights (ECHR) decided that crucifixes must be removed from Italian school rooms. The decision was greeted with fury in Italy and has raised concerns in Greece, too. In Britain the case seems to have been dismissed as a typically Italian fuss. What has been completely left out of this debate, though, is the question of the democratic right of a nation to decide on its own culture and symbols.
According to an ECHR press release, the applicant, Mrs Soile Lautsi, is a Finnish lady who is married to an Italian. They have two children who both went to the local state school where, in accordance with Italian Law, each classroom had a crucifix on the wall. Many commentators have stated that this requirement dates from the time of Mussolini. The ECHR, however, dated it back to 1860. And since the requirement to affix a crucifix to the wall was confirmed by Italian ministerial regulation in 2007, there is no question that it has the support of the Italian government and those it represents – the Italian people.
Lautsi’s children were taught in classrooms where a crucifix was displayed, but they were not required to attend Catholic religious ceremonies and could withdraw from Religious Education classes. But this, it seems, was not enough for Lautsi. According to the ECHR, she considered the presence of a crucifix in the classroom to be ‘contrary to the principle of secularism by which she wished to bring up her children’. When her application to have the crucifix removed was rejected by the school she took her case to the courts. They decided that the crucifix was not merely a symbol of Christianity, it was also a ‘symbol of Italian history and culture, and consequently of Italian identity’. It was at this point that Lautsi turned to the ECHR. She claimed that the presence of the crucifix contravened Articles nine and two of the First Protocol of the Convention.
Article nine on ‘Freedom of thought, conscience and religion’ states that ‘[e]veryone 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’. In addition, it states: ‘The 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.’
Meanwhile, article two on the ‘right to education’ declares that ‘[n]o 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.’
The ECHR decided that the mere fact that there was a crucifix in the classroom constituted an ‘imposition’ of a religious belief and therefore breached articles two and nine. This was an astonishing decision in view of the past case law of the ECHR and the fundamental principle known as the ‘margin of appreciation’ – that is, the element of discretion given to different countries to make decisions on how to organise their educational systems.
The principle of ‘margin of appreciation’ has been used in the past to defend secularist policies pursued by governments. In the cases of Sahin v Turkey (2005) and Dogru v France (2008), the ECHR upheld national laws which banned Muslim girls from wearing headscarfs, Jews from wearing yamulkas, or Christians from wearing crosses in school. And the ECHR did this even though it accepted that many European countries did allow these to be worn. Yet suddenly, when it comes to the display of a religious symbol, the margin of appreciation disappears.
In its decision the ECHR said that the state ‘was required to observe confessional neutrality in the context of public education’ even though this is not stated anywhere in the Convention itself. European countries have very different histories and legal frameworks for education. In France, as is well known, state schools are rigidly separated from any religious involvement while in other countries churches are involved in education. Even within countries there are variations. For instance, some Swiss Cantons and German Lander prohibit religious symbols while others permit them. Yet the ECHR has made a decision which, effectively, imposes on the whole of Europe the French concept of compulsory state secularism in education.
It is difficult to tell whether the judgement only applies to schools or whether it could also be applied to other public spaces. As several reports on the case have pointed out, the ECHR did not expressly order the school to remove its crucifix, but this is only because it does not have the power to make such orders. What the ECHR does do, however, is to find a violation of the Convention and as a result, the Italian government has to report back to the Council of Europe with a proposal outlining what it intends to do in order to implement the ruling.
The Italian government plans to appeal but if that is unsuccessful, Italy will have to remove crucifixes from all its schools and possibly from all other public buildings. The consequences are stark. A distinctive part of Italian life and culture will have been brought to an end in order to satisfy the personal views of one individual and of a foreign court.
In its defence, the Italian government noted that ‘there is no European consensus on how to effectively interpret the concept of secularism, so that states would have a wider discretion in the matter. Specifically, if there is a European consensus on the principle of the secular state, there was no consensus on its practical implications and its implementation. Italy, though secular, has freely decided to keep the crucifix in classrooms.’
The ECHR, however, has simply dismissed this argument. In doing so, it has disregarded the fact that Italy, as a democratic state, wanted to display crucifixes in its classrooms. This is a development that should concern secularists and Christians alike. Should an unelected European body have the right to overrule the decision of an elected, democratic government with regard to a policy which does not infringe on the fundamental freedom of an individual? Also, where in the ECHR decision is there any respect for the rights of the majority to be educated in accordance with their culture and traditions?
Whatever individuals may feel about the display of crucifixes, or indeed any other religious symbol in schools, surely the decision either to remove or keep them should be made through democratic discussion and debate rather than by legal diktat. The decision by the ECHR demonstrates a dangerous lack of democracy in European institutions, not least because there is no democratic means by which Italians, or other Europeans, can change the ruling.
When France decided to ban the hijab and other religious dress from French schools in 2004 this was following a lengthy national debate where opponents of the proposal could lobby their members of the National Assembly, go on protest marches and so on. This meant that when the final decision was made, even its opponents accepted its legal and democratic legitimacy. This is not the case with the Lautsi ruling: there is no democratic means by which the Italian people can overrule the decision. Neither their MPs nor MEPs can change a decision that will potentially be imposed not just on Italy but on other European countries, too.
In the UK, because of section two of the 1998 Human Rights Act, the ruling has immediate effect as a binding precedent in UK law. During the course of their implementation by public authorities, judgements such as these tend to have a large degree of ‘mission creep’. Catholic and Anglican Schools will probably be unaffected since the judgement refers to secular state schools, but I suspect we will hear about Christmas decorations in state schools being removed and school nativity plays being banned by local authorities in the not-too-distant future. To any objections local authorities can respond that they are simply acting in accordance with the ECHR ruling.
Of course, there are valid arguments for removing all religious symbols from schools in Europe, but these are arguments which societies themselves should be free to debate, discuss, accept or reject as they see fit. Whatever individuals may feel about the display of crucifixes, or indeed any other religious symbols in schools and public buildings, surely decisions to remove them or keep them should be made through democratic discussion and debate rather than by a psuedo-legal diktat which subjects an entire continent to the tyranny of a Strasbourg-based minority?
In British commentary on the case, a lot of people have referred to Mussolini despite the fact that the crucifix ruling stretches back to well before Mussolini’s time. And besides, Mussolini may well have been a dictator with a contempt for democracy but at least he was upfront about it, which is more than can be said of the governing elites in Europe today.
Neil Addison is a barrister and author of Religious Discrimination and Hatred Law, published by Taylor Francis. He runs the website www.ReligionLaw.co.uk.
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