The Cross vs. the Court in Europe
Posted by faithandthelaw on December 28, 2010
In Lautsi v. Italy, a chamber of the European Court on Human Rights (ECHR) banned the display of the cross in school classrooms, arguing that such a display was a violation of religious freedom and of a parent’s right to educate his children. In addition, the court awarded the petitioner 5,000 euros in nonpecuniary damages. Whether the unusual verdict was motivated by animus or disdain toward religion in general, or against the Catholic Church in particular, is uncertain. The decision did, however, imply an obligation to impose strict secularism in Europe.
The Lautsi v. Italy decision caused a worldwide stir for several reasons. First, the court inexplicably departed from its previous case law on the “margin of appreciation” doctrine, according to which such complex and delicate matters, closely related to culture and history, fall into the member states’ domestic jurisdiction. For instance, under this doctrine, the court previously refused to intervene in France‘s ban of the Muslim head scarf, even when it had a clear discriminatory impact on Muslim girls and women. Nevertheless, as Neil Addison of the Thomas More Legal Center pointed out, the court in Lautsi seems to indicate that the “margin of appreciation” doctrine only works in one direction, namely allowing governments to ban religious symbols, but not allowing the freedom to display them.
Second, the verdict reinterpreted the European Convention to mandate forced secularization in the entire European Union, even though the convention is silent on church-state relations and European states greatly vary in their cultural religious practices. Moreover, the court imposed a strict model of secularism, antagonistic to any manifestation of religion in the public sphere. The court inevitably supported the idea that neutrality consists of supporting the secular as opposed to the religious and excessively emphasized freedom from religion rather than freedom of religion.
During the hearings before the court in July, New York University professor Joseph Weiler‘s brilliant argument pointed out that Lautsi wrongfully sends European states the message that democracy requires them to shed their religious identity. Professor Weiler, an Orthodox Jew who coined the term “christophobia,” designating anti-Christian bias among European intellectual elites, held that neutrality does not consist of supporting the secular as opposed to the religious. An anti-religious attitude undermines the very pluralism, diversity and tolerance the convention is meant to guarantee and that is the hallmark of Europe, he pointed out.
Many local authorities in Italy reacted with defiance, refusing to comply with the court‘s decision and ordering public schools to display crosses. In early January, the Italian Constitutional Court issued a ruling asserting the supremacy of Italian law and custom over the orders of the European Court on Human Rights.
In addition, the ECHR ruling received negative responses from Greece and Poland, with Polish President Lech Kaczynski and the leadership of the Greek Orthodox Church both warning that there would be no removal of crucifixes or other religious symbols in their countries.
In February, the Council of Europe voted to adopt a declaration that the court had no right to rule on questions of the cultural and national traditions of member states.
In March, the court‘s Grand Chamber accepted the appeal lodged by the Italian government. The number of supporting European countries in amicus curiae before the court grew from 10 to 20: Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Monaco, Romania, the Russian Federation, San Marino, Albania, Austria, Croatia, Hungary, Macedonia, Moldova, Poland, Serbia, Slovakia and Ukraine.
International religious leaders, including the Dalai Lama, and legal scholars publicly expressed their support for the Italian government. Recently, the court authorized the intervention of several nongovernmental organizations as amicus curiae, including the European Center for Law and Justice, the Becket Fund for Religious Liberty and the Alliance Defense Fund.
Should the European court’s Grand Chamber affirm the verdict in Lautsi, the cross and other religious symbols probably would be banned from public schools and perhaps other public institutions in Europe. Christmas decorations and Nativity plays similarly would be banned from public schools.
The decision is not expected for a few months. In the meantime, it has become evident that the power of the cross on collective spirituality continues to be too great for some to bear.
Ligia M. De Jesus is an assistant professor of law at Ave Maria School of Law.