The European Court Leads the Way to a Europe of Pluralism
The European Court of Human Rights in Strasbourg ruled last week that Italy’s lawmandated display of the crucifix in classrooms amounts to a violation of the European
Convention on Human Rights (ECHR). The applicant, Ms Soile Lautsi, had fought a
long battle before Italian courts since 2002, complaining that the presence of a
crucifix in her children’s state school classroom was contrary to the principle of
secularism with which she wished to raise them. The judgment met with the strong
opposition by Italian politicians and the Vatican, who viewed it as a direct attack on
Italian identity and tradition by an activist court with a political agenda. Maria Stella
Gelmini, Silvio Berlusconi’s Education minister, said that: "No one, not even some
ideologically motivated European court, will succeed in rubbing out our identity"
(Guardian, 03/11/2009).
But are these reactions justified? Neither the government nor the Vatican
would argue that Italy should be above the law or that it should be free to violate its
international human rights obligations. If there is some merit to the reactions, it must
lie in the claim that the European Court of Human Rights got the law wrong. So we
must carefully scrutinize the Court’s reasoning before we are in a position to criticize
the ruling.
The Court noted that states have an obligation to ensure an open educational
environment that favors inclusion rather than exclusion and does not disadvantage any
students on the basis of their social or ethnic origin or their religious beliefs. It noted
further that in providing education, states have an obligation to respect the freedom of
religion of the parents, which includes their right not to believe in any religion at all.
It concluded that the only way in which states can comply with their duties of
neutrality and impartiality is through a pluralistic education which is essential for the
preservation of a democratic society; and the values of impartiality and pluralism
would necessarily be compromised if schools were to become the theatre of
“missionary activities”, preaching or indoctrination.
It is difficult to find any fault in the above reasoning. Who would disagree that
states have an obligation to offer an open educational environment that does not
exclude any student on the basis of his religious or philosophical beliefs? Who would
disagree that states have an obligation to show impartiality, inclusiveness and
pluralism in educational matters? The real question raised by the case was whether the
display of a crucifix in the classroom excludes, or makes it more likely to exclude,
non-catholic students who may hold different religious convictions or no religious
convictions at all. In other words the issue was not whether Italian state schools have
a duty of impartiality towards Catholics and atheists – of course they do; the question
is whether the display of the crucifix violates that fundamental duty. And we should
expect that the answer depends on a variety of factors that may differ from country to
country. Contrary to what other Contracting States fear, it does not follow from the
Court’s reasoning that the display of the crucifixes in classrooms necessarily violates
human rights.
Here are the factors that the Court took into account in concluding that in the
case of Italy, there has been a human rights violation. First, the display was not
optional, to be decided by each school or local educational authority, but it was
mandated by law for all schools and without any exceptions. In fact the law imposing
such a blanket imposition of the display of the crucifix was of fascist origin, dating
back to 1924. Second, Italy is a country where the vast majority of the population is
Catholic Christian, which inevitably increases the pressure felt on those who do not
adhere to the dominant religion. Third, the Court found that, contrary to the
submissions of the Italian government, the perception of the crucifix in Italy is
predominantly that of a religious symbol and less so that of a historical or secular
symbol. Fourth, the display of the crucifix in the classroom places an excessive
burden on non-Catholics students, as they have no option to avoid being exposed to it.
Fifth, the display of the crucifix was part of the public function of the Italian state in
an area (primary and secondary school education) that it controls and that affects
directly young children. It was all these factors in combination that led the European
Court to conclude that, in the circumstances of this case, Italy was in breach of the
ECHR.
Again, it is difficult to find any fault in the above reasoning: we do know that
that the stronger the majority’s religion is and the more it is supported by the state, the
more likely it is that it will lead to the exclusion of minorities. We also know that
there is a strong presumption against blanket measures, such as disenfranchising all
prisoners regardless of the severity of the offence, or collecting DNA evidence from
all suspects regardless of whether there has been a criminal conviction. Blanket
measures are disproportionate, unfairly disadvantaging some of those to whom they
apply. The duty to display the crucifix in a classroom regardless of the composition of
the class and without assessing the likelihood of exclusion is a disproportionate
measure. Finally, we also know that in the majority of European states it is neither
possible nor desirable to rid the majority’s religion off the public space so that the
state becomes ‘religion-blind’. The presence of an official church, religious public
holidays, and other religious practices such as the singing of hymns is an unavoidable
reality. The aim is not to create a ‘religion-blind’ state but to ensure that in the
allocation of fundamental rights, opportunities and benefits such as education, people
who do not adhere in the dominant religion are not put at a significant disadvantage. It
is precisely because the state controlled exclusively the distribution of educational
opportunities in this case that the issue of impartiality and neutrality towards nonCatholics became pertinent.
Those who condemned the judgment were therefore wrong to see it as an
attack on Italian identity and culture, let alone an attack on Christianity. The crucifix
may still thrive as a cultural and traditional symbol in areas where there is no danger
of disadvantaging non-Catholics in the distribution of fundamental rights and
opportunities. Moreover, by removing some of the factors that contributed to the
finding of a violation (such as the law-mandated requirement to display the crucifix,
or the absence of a right to opt-out), Italy may still be able to allow state schools to
display the crucifix. Whether or not the display violates human rights is a complex
context-specific judgment that must be made carefully for each different country. As
it is often the case, rulings of the European Court of Human Rights are misunderstood
and distorted by those who are inclined to see them as an external attack on national
identity.
The judgment is not yet final as it may be overruled by the Grand Chamber of
the European Court and Italy has already indicated that it will ask for the case to be
referred. The Chamber of the European Court gave a well-reasoned judgment that was
based on principles of pluralism and impartiality that all people living in Europe have
a reason to accept. It followed human rights principles that all contracting states in
Europe accept and it applied, rather than, ignored the law. In the past, Strasbourg has
been reluctant to give effect to such principles in the field of religion, granting states a
margin of appreciation, for fear of upsetting them. It is now time for the Grand
Chamber of the European Court of Human Rights to reaffirm strongly its doctrine that
“such are the demands pluralism, tolerance and broadmindedness without which there
is no 'democratic society’”.