INTRODUCTION
On 18 March 2011 the Grand Chamber of the European Court of Human Rights decided the case of Lautsi v Italy,Footnote 2 concerning the mandatory display of a crucifix in state schools, on appeal of the Italian government after being condemned by the second section of the European Court of Human Rights in November 2009. This kind of display provides, possibly, the most eloquent example of controversy over the use of religious symbols within a public environment. The increasing religious diversity in Europe has generated in recent years a debate about the display of certain religious symbols in public buildings, especially in state schools. In 1995, the German Federal Constitutional Court stated that the Bavarian educational law, which required a crucifix to be placed in each classroom as a legal obligation, was a violation of the freedom of faith and conscience, as guaranteed by Article 4(1) of the German Constitution (Grundgesetz), because of the unambiguous religious nature of the crucifix.Footnote 3 Moreover, in 2008, an administrative judge of Valladolid, Spain, held that the display of a crucifix in state schools was against the principles of equality and religious freedom granted by the Spanish Constitution.Footnote 4
THE CRUCIFIX AND ITS DISPLAY IN ITALY
In order to analyse comprehensively the facts that generated the Strasbourg's ruling and its consequences, it is necessary to look briefly at religious freedom and the principle of laicità in the light of the Italian legal framework.
Within the Italian Constitution, six articles address the issue of religious freedom and religious denominations while regulating the relationship between religion and the state. Article 2 protects ‘the inviolable rights of the person, both as an individual and in the social groups where human personality is expressed’; Article 3 affirms the principles equality and non-discrimination on the basis of religious principles; Article 7 provides that ‘[t]he state and the Catholic Church are independent and sovereign, each within its own sphere’; Article 8 declares equal freedom for all religious denominations; Article 19 guarantees the freedom to profess and promote one's own religious beliefs, individually or collectively; finally, Article 20 specifies how the principles of equality and non-discrimination must be applied to religious associations as well.
Regarding the principle of laicità, it is important to underline that the Italian Constitution, unlike the French one, does not explicitly state the existence of such a principle. Notwithstanding this, in 1989 the Italian Constitutional Court not only affirmed its existence within the Italian legal systemFootnote 5 but also qualified it as a fundamental principle, as well as a ‘profile of the form of state delineated in the constitutional charter of the Republic’.Footnote 6 This principle has, in particular, a multiple constitutional foundation, emerging from a combined interpretation of Articles 2, 3, 7, 8, 19 and 20.Footnote 7 According to the court, the principle of laicità does not involve indifference towards religion; on the contrary, it promotes a positive attitude towards all religious denominations. In fact, the Constitutional Court guarantees that the principle is intended to protect ‘freedom of religion in a situation of confessional and cultural pluralism’Footnote 8 and, consequently, implies ‘equidistance and impartiality of legislation with respect to all different religious denominations’.Footnote 9 Moreover, the principle provides that ‘religion, along with the moral obligations arising from it, cannot be employed in order to achieve any of the state's aims’.Footnote 10
Therefore, although the Italian Constitution does not establish a ‘French-style’ separation between religion and the state, there is no state religion in Italy. In fact, on the one hand, the relationship with the Roman Catholic Church is regulated by the Lateran Treaty, namely an international treaty explicitly mentioned in Article 7(2) of the Constitution,Footnote 11 which established a privileged status for the Church. On the other hand, other religious denominations have ‘the right to self-organisation according to their own statutes’Footnote 12 and their respective representatives can make specific agreements (intese) with the state, regulated by the law,Footnote 13 which usually confer a range of collective rights.
In April 2002, during a parents' evening at the school where her children were receiving primary education, Ms Lautsi (an Italian citizen with Finnish origins) asked the school board to remove the crucifix from the classrooms in which the children had lessons. The school board refused to do so. Ms Lautsi challenged the school's decision before the Regional Administrative Court of Veneto, arguing breach of the principle of laicità and of the neutrality of public administration (Article 97 of the Italian Constitution) and violation of Article 9 of the European Convention on Human Rights. Moreover, Ms Lautsi asked the Administrative judges to submit the matter to the Constitutional Court in order to examine the constitutional validity of the two royal decrees according to which the display of the crucifix in state schools is required as part of the classroom furniture.Footnote 14 These decrees (which had never been repealed) were enacted by the Fascist regime before the democratic constitution.Footnote 15 The request of submission was accepted on 14 January 2004.
During the hearing before the Constitutional Court, the government argued that, as the crucifix was the symbol of the Roman Catholic Church (on which great importance was placed in Italy) and it being the only Church referred to in Article 7 of the Constitution,Footnote 16 its presence in the classroom was natural. Consequently, the crucifix also enjoyed the status of a symbol of the Italian state. However, the Italian Constitutional Court claimed lack of jurisdictionFootnote 17 and refrained from deciding on the merits of whether or not mandating the display of a crucifix was constitutional, since the provisions of the decrees were neither laws nor acts having the force of law.Footnote 18 As a consequence, the provisions could only be annulled by administrative judges or disapplied by ordinary judges.
Following the decision of the Constitutional Court, the case was resumed before the Regional Administrative Court (Tribunale Amministrativo Regionale). That court dismissed the case, finding that the display of the crucifix in state schools does not offend the principle of laicità but, on the contrary, ‘actually affirms and confirms it’.Footnote 19 The court held that the crucifix is not only the symbol of Italian history and culture and, consequently, of Italian identity, but also ‘the symbol of laicità’.Footnote 20 Ms Lautsi's appeal was also dismissed by the Supreme Administrative Court (Consiglio di Stato), who ruled that the crucifix in state school classrooms is neither a simple piece of furnishing nor a religious symbol but a ‘symbol suitable for expressing the fundamental values of civil life … which constitute the values underlying the principle of laicità in the Italian legal order’.Footnote 21 These two administrative judgments show, therefore, how the principle of laicità has been given a confessional connotation, which confutes the original notion attributed by the Constitutional Court in 1989.
On top of that, it is necessary to mention how, at a cultural and political level, laicità is more and more strongly disputed by both the VaticanFootnote 22 and the leading political forces: while nobody contests its existence and effectiveness, what is challenged is its real meaning. In fact, they suggest that laicità needs to be interpreted in a ‘positive’, ‘fair’ or ‘healthy’ way: namely, in a way that is ‘compatible with the granting of privileges to Christianity, and with the overlap between the religious and the temporal spheres’.Footnote 23 According to this new meaning of secularism, ‘historical national religion’Footnote 24 is distinguished from other religious denominations as it represents an element of civic cohesionFootnote 25 and must therefore be privileged over other religious denominations, which, instead, are simply tolerated.Footnote 26 The very first consequence of this new idea of laicità is an ‘alliance between religion and public power, where the ethical force of the former upholds the political force of the latter, and vice versa’.Footnote 27
It has to be stressed, however, that similar cases concerning the mandatory display of the crucifix in public buildings have already been decided by ordinary judges. For example, in 2003 a similar case was resolved by an ordinary judge in favour of the removal of the crucifix.Footnote 28 After the presence of the crucifix was denounced by a Muslim father, the judge ordered its immediate removal from a state school classroom because it violated three principles: the principle of religious freedom, the principle of equality and the principle of laicità. Moreover, in 2000, the Italian Court of CassationFootnote 29 ruled unlawful the display of a crucifix in polling stations because it was considered contrary to the principle of laicità and the value of religious pluralism expressed by the Constitutional Court.Footnote 30 This latter judgment is not readily transferable to the Lautsi case, since the royal decrees obliging schools to display crucifixes do not so oblige polling stations. As we can see, administrative and ordinary judges gave different solutions to the matter. The former, traditionally much more conservative, adhered to the ‘healthy’ notion of laicità and, consequently, upheld the validity of the two royal decrees despite their undoubted ‘confessional nature’; the latter were much more liberal and strictly followed the Constitution and the Constitutional Court's case law.
THE DECISION OF THE SECOND SECTION
In November 2009 the Second Section of the European Court of Human Rights ruled against Italy, finding a breach not only of the right of parents to ensure for their children an education in conformity with their own religious and philosophical convictions (Article 2, Protocol 1) but also of freedom of thought, conscience and religion (Article 9). The court found that it was impossible not to notice the cross, whose religious meaning is necessarily predominant, on the wall of each classroom. As such they considered it formed an integral part of the school environment and that it might be perceived as a ‘powerful’ religious symbol, namely ‘a sign that is immediately visible to others and provides a clear indication that the person concerned belongs to a particular religion’.Footnote 31 The crucifix might easily lead students to conclude that they were being educated ‘in a school environment characterized by a specific religion’.Footnote 32
The display of one or more religious symbols cannot be justified by parents' requests, since this limits other parents' beliefs. Nor can it be justified by the necessity of a political compromise with Christian-inspired political parties. The state is bound by religious neutrality in matters concerning compulsory public education: class attendance is compulsory notwithstanding religious differences and public education must foster critical thinking among students. The court contested the government's argument that the display of a symbol reasonably associated with catholicism might support educational pluralism, a principle recognized by both the European Court of Human Rights and the Italian Constitutional Court.Footnote 33
According to the judgment of the court:
The mandatory display of a symbol of a particular confession during the exercise of a public function … especially in the classroom, restricts the parents' right to ensure for their children an education and teaching in conformity with their own convictions, and the pupils' right to believe or not to believe … [T]hese measures are a violation of these rights because these restrictions are not compatible with the state's duty to respect neutrality in the exercise of public functions, especially in the field of education.Footnote 34
THE GRAND CHAMBER DECISION
The Grand Chamber reversed (by a 15 to 2 majority) the previous ruling and consequently held in favour of the Italian state. Their reasoning was, first, that Article 2, Protocol 1 and Article 9 apply not only to the content of school curricula but also to the organization of the school environment. The display of crucifixes falls in this context. Furthermore, as far as the duty for the state to respect the right of parents is concerned, the court clarified that this ‘respect’ also includes a positive obligation: not just a simple acknowledgment but, it seems, a more open attitude towards minorities and their religions and philosophical convictions. However, in the contracting parties of the European Convention there is no common consensus on the meaning of laicità or, more specifically, on the issue of the display of religious symbols.Footnote 35 From this, it follows that the display of the crucifix falls within the margin of appreciation. Moreover, this Italian tradition of display, as explicitly qualified by the Grand Chamber,Footnote 36 certainly ‘confer[s] on the country's majority religion preponderant visibility in the school environment’,Footnote 37 but it does not reach the level of a process of indoctrination of young pupils. Consequently, it respects the limits fixed by the court's case law.Footnote 38 With this decision, the Grand Chamber set right a previous decision that some commentators have defined ‘embarrassing’,Footnote 39 with a decision that seems to be even more perplexing for a variety of reasons, four of which will be discussed here.
First, the judges explicitly reject the qualification made in the previous ruling of the crucifix as a ‘powerful’ religious symbol, as firstly theorized in Dahlab v Switzerland, namely ‘a sign that is immediately visible to others and provides a clear indication that the person concerned belongs to a particular religion’.Footnote 40 The ban on Muslim teachers wearing headscarves while teaching was justified in order 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’,Footnote 41 with special regard to the young age of pupils. In Dahlab, the easily influenced pupils were between the age of 4 and 8, whereas, in the present case, Ms Lautsi's sons were, at the time of the facts, 8 and 12. Why should 8- and 12-year-old Italian pupils be less easily influenced by a religious symbol then pupils between the age of 4 and 8? The Grand Chamber does not give a convincing explanation of this point in the ruling.
Secondly, the Grand Chamber embraces the new classification of religious symbols proposed by the Italian government in its appeal,Footnote 42 and this seems not to provide a satisfactory answer to the previous dilemma about the age of pupils. For the panel, the crucifix on a wall is ‘an essentially passive symbol’Footnote 43 and, consequently, ‘[i]t cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities’.Footnote 44 Without engaging in a much clearer definition of what a passive symbol is, the court distinguishes between Dahlab and Lautsi; in so doing, it creates a sort of ‘presumption of indoctrination’ for the Islamic headscarf, whereas the crucifix, owing to its intrinsic nature as passive symbol, can be placed by public powers wherever they wish and this will never be considered as a form of indoctrination.Footnote 45
Thirdly, the Grand Chamber stresses the fact that there is no compulsory teaching of catholicism to accompany the display of the crucifix, and the school environment is tolerant towards minorities: the presence of crucifixes has never entailed or encouraged the development of proselytising by teachers during the undertaking of their functions.Footnote 46 However, if Article 2, Protocol 1 and its duty to respect minorities' beliefs are to be taken seriously, it is difficult to see how the Grand Chamber reconciles a teaching environment where a specific religious symbol is displayed and the state duty to respect the parents' right to ensure for their children an education in conformity with their own religions and philosophical convictions. Because the crucifix is a religious symbol,Footnote 47 and more specifically the symbol of catholicism, each classroom is compromised by this symbol: how is it possible, in such conditions, not to indoctrinate young pupils, either directly or indirectly, or to make those not belonging to catholicism feel that they are avulsed entities not belonging to that environment? Moreover, the bottom line for the court is that Ms Lautsi has always ‘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’.Footnote 48 In arguing this, the court seems to miss the real point of the case:Footnote 49 Ms Lautsi was not complaining because she could not educate her children in toto; that was not the point she was interested in. On the contrary, her complaint was generated by the presence of a crucifix in a specific (public) context: a classroom in a state school, where, as Judge Powell has underlined in her concurring opinion, ‘[t]he presentation of and engagement with different points of views is an intrinsic part of the educative process’.Footnote 50 As a former Italian judge of the European Court of Human Rights has argued, if any form of indoctrination has to be avoided in state classrooms, the removal of the crucifix, sic et simpliciter, appears to be the only consistent solution.Footnote 51
Last but not least, the margin of appreciation – namely that ‘certain measure of discretion, subjected to European supervision, [that a state is allowed] when it takes legislative, administrative, or judicial action in the area of Convention right’Footnote 52 – plays the main role in the argument of the Grand Chamber. This principle is in fact mentioned 27 times in the whole decision and 8 times in the final paragraphs of assessment and it is given great importance in the overall reasoning. The court underlines that there is no European consensus on the issue of the presence of religious symbols in state classrooms and that, as a consequence, a wide margin has to be granted to Italy. Once it has stated this, the court continues by affirming that the margin is not challenged by contrary evidence based on consensus: ‘the fact that there is no European consensus on the question of the presence of religious symbols in State schools … speaks in favour of’ the margin of appreciation approach.Footnote 53 This seems very poor reasoning: such circular argument, for which little logic is required, should not be part of a judicial argument, especially when the reasoning on the margin represents the very essence of the ruling. Another relevant point related to consensus and margin of appreciation is the one expressed by Judge Malinverni in his dissenting opinion. The Swiss judge underlines how, in the vast majority of the contracting states of the Council of Europe, the presence of religious symbols is not regulated: only in Italy, Austria, certain German Länder and Poland is the display of crucifixes explicitly regulated, though in Poland it is not compulsory. In some other countries religious symbols are tolerated (eg Ireland, Greece, Malta); in others supreme courts have imposed their removal (Spain, Switzerland and, as far as compulsory display is concerned, Germany) and, finally, in three countries they are forbidden (France, apart from Alsace and Moselle, Macedonia and Georgia). In such a situation it is difficult ‘to draw definite conclusions regarding a European consensus’Footnote 54 as, conversely, the Grand Chamber tried to do.Footnote 55
CONCLUSIONS
The ruling of the Grand Chamber in Lautsi v Italy has implications regarding the doctrines of the margin of appreciation and consensus and the development of Strasbourg case law concerning the display of religious symbols.
First, the court affirms that the concrete meaning of respect depends on the notion of consensus. Indeed, parents – mainly those belonging to minorities – have the right to be respected by the state when ensuring for their children an education in conformity with their own religious and philosophical convictions if, and only if, there is a consensus (in reality, a majority) on a certain practice within contracting states. Minorities have the right to be respected if, and only if, the majority is in favour of such respect. Is this the right path to follow in order to ensure the respect of minorities' human rights? Moreover, the court itself has already demonstrated that it is ready to abandon the notion of consensus when the issue is too political to be decided by Strasbourg, relying instead on (supposed) moral views expressed by the state. In the case of A, B and C v Ireland, decided by the Grand Chamber a few months before Lautsi, the court, despite the existence of an overwhelming consensus in the contracting states as far as abortion was concerned, showed total indifference towards this European consensus, and much greater importance was assigned to Irish moral views.Footnote 56 In the mid-1990s, Lord Lester affirmed that the margin of appreciation ‘has become as slippery and elusive as an eel’.Footnote 57 Now consensus, too, has become as slippery and elusive as the margin. A rethink in more precise terms of the idea on consensus has to be addressed by Strasbourg, unless the court prefers to engage itself in rulings as unarticulated and unsatisfactory as Lautsi, at the expense of its legitimacy as an international human rights court.
Secondly, Strasbourg shows an incoherent approach of double standards on the issue of religious symbols. It is well known that Strasbourg's approach on this issue has always been a secular one: the state must embrace a neutral and impartial role, especially in the sphere of state education. As space does not allow full analysis of all the relevant case law, a reminder of notable cases must suffice. In Dahlab v Switzerland the prohibition imposed on a primary-school teacher against wearing an Islamic headscarf was not considered unreasonable;Footnote 58 in Dogru v France the expulsion of an 11-year-old schoolgirl for refusing to remove her headscarf during physical education classes was justified for reasons of health and safety;Footnote 59 in Sahin v Turkey the Turkish ban on Islamic headscarves at universities and other educational and state institutions was declared compatible with the Convention;Footnote 60 finally, in the Grand Chamber's decision in Lautsi the mandatory display of the crucifix in state classrooms fell within the state's margin of appreciation. As far as the wearing of religious symbols is concerned – namely, where a personal choice of an individual, almost always part of a minority group, to dress according to his or her beliefs is at stake – Strasbourg seems to be extremely worried about the potential indoctrination that the wearing of religious symbols (qualified as ‘powerful’ religious symbols) might have on others. Conversely, if someone, who by coincidence belongs to a minority group, asks for the removal of religious symbols from state classrooms, the court shows deference towards national traditions, declaring that they fall within the state's margin of appreciation and do not reach the level of indoctrination because of the passive nature that the hanging crucifix has as religious symbol. In a previous comment on the Second Section's decision in Lautsi v Italy, Gibson rightly wrote that ‘[c]lassrooms do not have human rights’,Footnote 61 while individuals do. Now, after this judgment, it seems that classrooms do indeed have human rights.
Apart from the unfortunate (and objectionable in many aspects) outcome of the ruling, a final remark must be made on the passive position taken on the matter by the Italian institutions, from which the issue originated. As stated above, the legal basis for the compulsory display of the crucifix in state classrooms is not an ordinary law but rather stems from royal decrees, with an administrative essence. Since the case arose in 2002, many bills regulating the display of crucifixes in state classrooms have been presented but none of them has become law, nor have Italian institutions committed themselves to passing a clear regulation. Had such a law been approved, it would have provided an opportunity for the Italian Constitutional Court to express its authoritative view. The rulings by Strasbourg and the resulting controversies would perhaps have been avoided had the Italian institutions taken the matter seriously. The (unconvincing, as in this case) European supervision by Strasbourg only represents the natural consequence of Italian institutions' sloth.
