Does Neutrality Equal Secularism? The European Court of Human Rights Decides Lautsi v. Italy
Engage Volume 12, Issue 3, November 2011
December 19, 2011William L. Saunders
Religion can be an intensely personal activity. However, the idea that religion is only a private, personal devotion with no public political consequences is relatively new. For many nations in Europe, religion, in particular Catholicism, exerted an important influence over government and politics for centuries. The remnants of this influence still remain in anthems, oaths, and ideologies, not to mention architecture. However, with the rise of an ideology of “strict separation of church and state” in the European Union and the Council of Europe, it has been unclear how countries may incorporate their religious influences and histories into public life and expression. The case of Lautsi v. Italy in the European Court of Human Rights illustrates this struggle between secular ideology and religious faith and affiliation in the European context. The ultimate decision in the case acknowledges that “freedom of religion” need not result in, as the late Richard John Neuhaus put it, the naked public square.1
The Italian Case
The case was originally filed in Italy by an Italian national, Ms. Soile Lautsi, who sued on her own behalf and on the behalf of her two school-age sons, who were students at an Italian public school. The school, like all public schools in Italy, had a crucifix prominently displayed in its classroom. This concerned Ms. Lautsi because Italy had a program of mandatory education. She believed that the display of the crucifix was depriving her of the right to raise her children as she believed best.
The crucifix has been displayed in Italian schools for more than a hundred years. Though the practice is not enshrined in the Italian Constitution, a number of decrees and circulars have mandated the practice. For instance, in 1861, Article 140 of the Kingdom of Piedmont-Sardinia’s Royal Decree no. 4336 required all schools to display a crucifix. In 1871, Law no. 214 of 13 May 1871 created a formal relationship between Rome and the Kingdom of Italy and granted the Catholic Church a number of rights and privileges. The fascist and monarchical governments also propagated a number of similar rules between 1922 and 1929. The Italian State in 1985 stripped the Catholic Church of its title as the official religion with Law no. 121. However, Italy did not repeal any of the previously-mentioned laws requiring the display of crucifixes in schools.2
Ms. Lautsi brought her concerns to school officials at a meeting in 2002. She demanded that the officials remove the crucifixes from the classrooms. The school officials denied her request. Several years later this decision would be officially codified with the 2007 Ministry of Education Directive no. 2666, which recommended that all classrooms display crucifixes.
Because her request was denied, Ms. Lautsi brought her case to the Veneto Regional Administrative Court. The court, however, felt that the case dealt with a constitutional question. Therefore, it referred the case to the Italian Constitutional Court. The Constitutional Court chose not to rule on the case because the regulations on crucifixes were contained in statutes, rather than the constitution of Italy.3
Thus, the case was remanded to the Administrative Court. In its ruling, the Administrative Court determined that, as symbols of Italian history and principles, it was reasonable to display the crucifix in classrooms. Though the court did note that the crucifix had a religious connotation, it deemed the crucifix’s use as a secular representation of Italian history and culture outweighed any possibly oppressive religious influence. The court also determined that the presence of the crucifix in no way constituted indoctrination or hindered Ms. Lautsi’s ability to raise her children as a secular parent.4 Ms. Lautsi’s subsequent appeal to the Consiglio di Stato, or Supreme Administrative Court, resulted in a similar decision.5 At the conclusion of this case, Ms. Lautsi had exhausted all courses of action available to her under Italian law.
Lautsi v. Italy (I)
Under the European Convention on Human Rights (hereafter, the Convention), the European Court of Human Rights (hereafter, the ECHR or the Court) has jurisdiction over cases dealing with religious freedom. One limitation of the Court’s power lies in its jurisdictional reach. Cases can only be brought to it if all other legal options within the member state have been exhausted. Because Ms. Lautsi had concluded her case in Italy with the Supreme Administrative Court, she was able to bring her case to the ECHR.
Ms. Lautsi rested her argument on Article 2 of Protocol No. 1 of the Convention, which reads in part, “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 rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”6 She also argued that display of the crucifix was a violation of Article 9. That article reads as follows:
1) [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. 2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations are as 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.7
Ms. Lautsi argued that the crucifix represented solely a religious symbol with no other historical value. Thus, by displaying the crucifix in public schools, Italy was giving a preference to Christianity and hindering other religious perspectives among children. In response, the government argued that crucifixes as they were used in the schools were not primarily reflections of religion but, instead, represented the cultural heritage of the Italian nation. The government also argued that the placement of the cross could not influence schoolchildren in any manner that constituted a violation of the Convention because, at its heart, it was a passive symbol.
In this first argument before the European Court there was one notable third party that was granted leave to intervene. The Greek Helsinki Monitor argued for Ms. Lautsi.8 The main thrust of its argument was that the sign of the cross could only be considered a religious symbol that existed as an implicit “teaching of religion.” The Monitor argued that this display constituted indoctrination because students in schools could feel that the government supported one religion over others.
The ruling by a panel, or Section, of the ECHR was in Ms. Lautsi’s favor. First, the Court determined that “the State [was] forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions.”9 The panel also held that this required that the member States recognize
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. The schooling of children is a particularly sensitive area in which the compelling power of the State is imposed on minds which still lack (depending on the child’s level of maturity) the critical capacity which would enable them to keep their distance from the message derived from a preference manifested by the State in religious matters.10
However, even though the Court recognized the principle that European states were not allowed to impose beliefs, it still had to determine whether Italy’s display of the crucifix constituted an imposition of a particular religious belief. However, this the Court did with relative ease. It determined that “the 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.”11 The Court further held that it
considers 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.12
The Court also addressed the argument of Italy that the crucifixes were passive symbols. It said that “[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 education pluralism which is essential for the preservation of ’democratic society’ within the Convention meaning of that term.”13 Essentially, the Court dismissed the idea that symbols can be publicly displayed without also actively indoctrinating students in a classroom.
The more difficult argument the Court had to deal with was whether the crucifix was predominantly a cultural symbol. The Court acknowledged that it had approved the use of certain religious symbols, and other paraphernalia, when the item was part of a nation’s cultural heritage. However, in this case, “the court considers that the presence of the crucifix in classrooms goes beyond the use of symbols in specific historical contexts.”14
The Court distinguished between religious symbols with significant historical relevance and religious symbols whose historical value was outweighed by their religious significance. To explain this distinction, the Court referenced another case of a similar nature: Buscarini v. San Marino. In that case, members of the parliament of the Republic of San Marino, a State member of the Council of Europe, were required to take an oath in which they swore “upon the holy gospels.” The Court determined that this violated the Convention: “[T]he traditional nature, in the social and historical sense, of a text used by members of parliament when swearing loyalty did not deprive the oath to be sworn of its religious nature.”15 Like the oath used in the Parliament in the Buscarini case, the crucifix in Italy could not be emptied of its essentially religious nature regardless of their tradition of use.
The Court concluded that what was required was “confessional neutrality.”According to the Court, “confessional neutrality” implied that all displays of an overtly religious symbol in public schools by the state violated the religious protections of the Convention.16 As would be noted in reaction to the decision, this principle would seem, logically, to require the removal of all religious symbols in public places.17
Interestingly, the Court ignored the concept of “margin of appreciation.” This doctrine is traditionally applied by the ECHR to member states and allows the laws and regulations within states, particularly with regard to religion and social policy, to differ. However, in the Lautsi (I) case, the Court did not address the question of the “margin of appreciation” to be granted to Italy in this matter, and instead imposed a blanket ban on crucifix display.18
Reaction to Lautsi (I)
The European Court of Human Rights is dependent on the governments of the member states to uphold and enforce its rulings. However, the negative response to the Lautsi (I) decision was vigorous, marked, and widespread. A number of prominent Italian politicians, family organizations, and religious groups responded immediately. The Vatican’s response noted, “[I]t seems as if the court wanted to ignore the role of Christianity in forming Europe’s identity, which was and remains essential. . . . The crucifix has always been a sign of God’s love, unity and hospitality to all humanity.”19
Poland, Lithuania, and Slovakia openly decried the decision. The Greek Orthodox Church and the Romanian Orthodox Church condemned the Court’s decision. Kyrill, Patriarch of Moscow, released a statement in which he said:
Christian religious symbols present in Europe’s public space are part of the European identity, without which the past, the present and the future of this continent are unthinkable. The guaranteeing of a secular nature of the state must not be used as a pretext for infusing an anti religious ideology that conspicuously breaches peace in society and discriminates against Europe’s religious majority—Christians.20
Each of these churches encouraged their affiliated organizations to speak out strongly for rules allowing the displays of religious symbols in schools. Some groups created signs, and others petitioned governments and lobbied for legislation protecting religious symbols in schools.
The Italian government also responded vehemently to the decision of the Court. A number of ministers and high-ranking officials, including Education Minister Mariastell Gelmini, spoke openly about their opposition to the decision.21 Some state and local officials openly refused to consider removing the crucifixes. Local governmental bodies also spoke about the influence of Catholic teaching and practices in everyday Italian culture and deplored what they saw as the effort of the ECHR to remove this influence.
The Italian judiciary’s response to the decision is also of note. A serious legal criticism of the decision was that it was not adequately deferential to state practices under the margin of appreciation (explained above). The Constitutional Court of Italy stated that any decision by an international court that was clearly opposed to the practices, policies, and heritage of the Italian state would not be binding upon the nation.22
Nine more countries, including Albania, Austria, Croatia, Hungary, Moldova, Poland, Serbia, Slovakia, and Ukraine, also “openly criticized the initial judgment and petitioned that the Court remember that it must respect the national identities and religious traditions of each of the 47 member States.”23 Including Italy, nearly half of the member states of the Council of Europe supported the crucifixes and presented an unparalleled unification in support of traditional religious practices and symbols.24
Lautsi v. Italy (II)
The Court had been unprepared for the response their decision elicited. The Italian government petitioned for a rehearing of the Lautsi case by the Grand Chamber.25 This petition was more than a simple request for a rehearing; it indicated a formal and decisive dissent by the Italian government. Perhaps unsurprisingly, given the strong reaction to the first decision by the ECHR, the Grand Chamber granted the request for rehearing quickly.26
Lautsi II, as the case came to be known, witnessed an unprecedented number of amicus briefs filed. The Court granted requests to intervene to thirty-three members of the European Parliament, as well as to non-governmental organizations, the Greek Helsinki Monitor, the Associazion nazionale de libero Pensiero (National Association of Free Thought), the European Center for Law and Justice, Eurojuris, the International Committee of Jurists, Interights and Human Rights Watch, the Zentralkomittee der Deutschen Katholiken (Committee for German Catholicism), Semaines sociales de France (Social weeks of France), and the Associazioni cristiane lavoratori italini (Italian Christian Workers Association). The ECHR also granted leave to file a joint brief to the governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, Monaco and the Republic of San Marino.27 In total, thirty briefs were filed, thirteen on behalf of Lautsi and seventeen on behalf of the Italian government.
The number of amicus briefs was the most ever filed in the Court. Commentators noted the Lautsi case, which had “such a large and unified reaction from the Member States[,] [was] simply unprecedented at the Court.”28
At the hearing, the government argued that neutrality, as required by the Convention, did not equate with secularism. The government suggested that “the Court should acknowledge and protect national traditions and the prevailing popular feeling, and leave each State to maintain a balance between opposing interests.”29 The government emphasized that a number of other faith-based symbols were welcomed in Italian schools. For example, headscarves are freely worn.30 Therefore, according to Italy’s position, no student or their parents were prohibited from practicing, or not practicing, any religion that they desired.
Lautsi, by contrast, argued that the state was showing an overt preference for Catholicism by requiring that crucifixes be displayed in public schools. She again claimed that this preference kept her from educating her children in accordance “with her own philosophical convictions.”
The arguments made by the amicus briefs on the side of Italy mostly stated that the lower chamber had misunderstood the concept of neutrality, which the chamber had “confused with secularism. . . . State symbols inevitably had a place in state education. . . . Many of these had a religious origin, the Cross—which was both a national and a religious symbol—being the most visible example.” Additionally, many of the briefs signaled the belief that the Court had “exceeded the scope of the application and limits of its jurisdiction” by creating an “obligation to ensure that the educational environment was entirely secular.”
One portion of the oral arguments of Lautsi II was particularly memorable. Joseph Weiler, who argued on behalf of the States, including Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Russia, and San Marino, that intervened in the case on the side of Italy, did so wearing a yarmulke.31 He argued on behalf of the eight nations that “[i]n all our countries freedom of religion and freedom from religion must be respected. However, it is counterbalanced with considerable liberty which the convention system allows, as to the place of religion and religious heritage and religion symbols in the definition of the collective identity of the nation and the state and its public spaces.”32 He also noted that, as a state with an established state church and members of the legislature which are also members of the church, “England would appear to violate the strictures of the chambers. For how could we say that all those symbols, which I mentioned, the head of state, the head of the church, the cross, the anthem etc. do not represent some kind of assessment of the legitimacy of religious belief?”33 He emphatically noted that it was for the people of a country to choose to remove religion from the public sphere, and not for the European Court of Human Rights. Both his own public display of religious affiliation and arguments were well-received by the Court.
By a vote of fifteen to two, the Grand Chamber overturned the prior decision. Unlike the lower chamber, the Grand Chamber focused heavily on the idea of giving the States a broad margin of appreciation. The Court noted that 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.”34 The Court stated: “[I]n 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.”35
Additionally, many of Lautsi’s arguments were based on her subjective belief that the crucifixes had infringed her rights. However, the Court noted that subjective feelings of infringement alone were not enough to constitute actual violation of the Convention. The decision stated: “[T]he applicant’s subjective perception is not in itself sufficient to establish a breach.”36 Instead, the Court required that there be actual and tangible violations of a parent’s right to bring their child up in the religion (or non religion) of their choice.37 Since it appeared Lautsi had not been hindered in teaching secularism to her children, there had been no tangible violation.
Though the Court could have stopped here, it went further. It stated:
[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 of being formed.38
To reach this conclusion, the Court relied heavily on the evidence presented by the government to indicate the tolerant nature of the Italian schools.39 It was the opinion of the Court that, since the schools were openly tolerant of other religious symbols and celebrated other religious holidays, the crucifixes were merely an additional expression of a religion that featured prominently in Italy’s history. Therefore, because of the religious toleration in the classrooms, the crucifixes could not infringe on Lautsi’s rights as a parent to educate her children in any way she saw fit.40
Finally, the Court was quick to find a historical value to the crucifixes. The court stated, “Beyond its religious meaning, the crucifix symbolized the principles and values which formed the foundation of democracy and western civilization.”41
Concurring and Dissenting Opinions
There were a number of concurring opinions to this decision. Perhaps the most interesting was that of Judge Giovanni Bonello. His opinion was a scathing retort to the lower chamber and Ms. Lautsi. He stated, “[T]he Court ought to be ever cautious in taking liberties with other peoples’ liberties, including the liberty of cherishing their own cultural imprinting. Whatever that is, it is unrepeatable. Nations do not fashion their histories on the spur of the moment.”42 He noted that it was unreasonable to remove all forms of religious influence on schools in favor of secularism. For example, he noted that the school calendar was based around religious holidays like the Lord’s Day, Christmas, and Easter. He suggested that it would be outrageous to “suppress” the school calendar merely because it was determined around days of religious observation.43 He noted that, like the crucifixes, the school calendar had never shown a tendency toward indoctrinating students or negatively influencing the practice of their religions.44
Judge Bonello agreed with the main argument of the government: the lower chamber wrongly equated “freedom of religion” with “secularism.” For example, Ms. Lautsi had the freedom to behave and profess, or not profess, any religion she saw fit, and it was this freedom, rather than secularism, which was protected by the articles she appealed to in the Convention. Bonello also rejected the idea that the removal of the crucifix would be “neutral”:
The crucifix purge promoted by Ms. Lautsi would not in any way be a measure to ensure neutrality in the classroom. It would be an imposition of the crucifix-hostile philosophy of the parents of one pupil, over the crucifix-receptive philosophy of the parents of all the other twenty-nine. 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 twenty-nine should well be able to claim an equal right to its presence, whether as a traditional Christian emblem or even solely as a cultural souvenir.45
The Future of Lautsi
Two lessons can be drawn from the Lautsi decisions. First, there is a sizeable number of European countries and peoples that support displays of religious affiliation in public spaces. These nations consider their majority religion and its related symbols to be a part of their cultural heritage. They joined the Council of Europe based upon the understanding that member States were permitted to follow these traditions (under the margin of appreciation). Their view is that freedom of religion, as guaranteed in the Convention, rather than undermining this view, supports it. They do not equate, as our Supreme Court has, “neutrality” with secularism or “the naked public square.” This has obvious significance for discussions and debates in other fora as to the meaning of the international human right of religious freedom.
Second, the strong negative reaction by many member States to the decision in Lautsi I has important implications for the force and effect of future pronouncements of the European Court of Human Rights. These member States have signaled that they will not acquiesce in the kind of judicial decisions that have often been made in the United States.
* William L Saunders is a human rights attorney working in Washington, D.C. with a nonprofit organization. He is chair of the Federalist Society’s Religious Liberties Practice Group.
1 Richard John Neuhaus, The Naked Public Square (2d ed. 1997).
2 A full discussion of the laws, regulations, and Italian case law relevant to the Lautsi Decision are available at the European Court of Human Rights HUDOC website: Lautsi v. Italy, http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=lautsi&sessionid=74121335&skin=hudoc-en.
3 Corte Cost, 15 Dicembre 2004, n. 389 (It.).
4 Giun. Pro. Ammin, 17 Marcia 2005, n. 1110 (It.).
5 Cons. Stato, 13 Febbraio 2006, (It.).
6 Convention for the Protection of Human Rights and Fundamental Freedoms Protocol 1 art. 2, opened for signature Mar. 20, 1952, available at http://conventions.coe.int/treaty/en/treaties/html/009.htm.
7 Convention for the Protection of Human Rights and Fundamental Freedoms art. 9, opened for signature Nov. 4, 1950, 213 U.N>T.S. 221, Europ T.S. No. 5., available at http://www.hri.org/docs/ECHR50.html#C.Art 9.
8 A group created to protect human rights in Europe, in particular to oversee any violations of the Helsinki Final Act.
9 Lautsi v. Italy, App. No. 30814/06, Eur. Ct. H.R. 47 (2009) [hereinafter Lautsi I], available at http://www.echr.coe.int/ECHR/homepage_en [hereinafter Lautsi (I)].
10 Id. at 48.
11 Id. at 55.
12 Id. at 57.
13 Id. at 56.
14 Id. at 52.
15 Id. at 52 (citing Buscarini v. San Marino [GC], no. 24645/94, Eur. Ct. H.R. 1999-I).
16 Id. at 56.
17 Archbishop Peter Smith Speaks on Lautsi Case, Indep. Catholic News, June 23, 2010, available at http://www.indcatholicnews.com/news.php?viewStory=16363.
18 The Government of Italy did address the question of “margin of appreciation.” Lautsi I, App. No. 30814/06, at 37-41.
19 Gabriel Andreescue & Liviu Andreescue, The European Court of Human Rights’ Lautsi Decision: Context, Contents, Consequences, J. for Study Religions & Ideologies, Summer 2010, at 47 [hereinafter Andreescue] (citing Italy School Crucifixes “Barred”: The European Court of Human Rights Has Ruled Against the Use of Crucifixes in Classrooms in Italy, BBC News, Nov. 3, 2009, available at http://news.bbc.co.uk/2/hi/8340411.stm.
20 Russian Patriarch Protests Court Ruling to Ban Cross from Italian Schools, Interfax (Religion), Nov. 26, 2009, available at http://www.interfax-religion.com/?act=news&div=6675.
21 Thiago Alves, A Tale of Two Courts—Part Two: The Reactions to the Lautsi v. Italy Chamber Judgment, Hum. Rts. F., May 2, 2011, available at https://humanrightsforum.wordpress.com/2011/05/02/a-tale-of-two-courts-â??-part-two-the-reactions-to-the-lautsi-v-italy-chamber-judgment/.
22 Lautsi v. Italy: Crucifixes in the Classroom and “Dialogue” with Strasbourg (Italian Style), Education Law Blog, http://www.education11kbw.com/?p=263 (Mar. 29, 2011, 16:18 GMT).
23 ECHR Crucifix Case: 20 European Countries Support the Crucifix, European Centre for Law and Justice, europeNEWS, July 21, 2010, available at http://eclj.org/Releases/Read.aspx?GUID=983c3dd3-9c17-4b70-a016-37851446ec0e&s=eur.
25 An appeals process within the European Court of Human Rights.
26 Since the Grand Chamber is composed of all judges on the Court while a panel is composed of a lesser number, this review by the Grand Chamber is essentially equivalent to an en banc re-hearing of a panel’s decision by all members of a U.S. circuit court.
27 These countries were also granted the right to intervene in oral arguments.
28 Gregor Puppinck, Director of the European Centre for Law and Justice, Presentation Prepared for the 2010 Annual International Law and Religion Symposium (Oct. 3-6, 2010).
29 Lautsi v. Italy, App. No. 30814/06, Eur. Ct. H.R. 37(2011), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Lautsi | v. | Italy&sessionid=74114939&skin=hudoc-en [hereinafter Lautsi II].
30 Id. at 39.
31 Austen Ivereigh, Waiting on Lautsi, Am.: Nat’l Catholic Wkly., July 23, 2011, available at http://www.americamagazine.org/blog/entry.cfm?entry_id=4030.
32 Joseph Weiler’s Testimony Before the European Court of Human Rights, http://dotsub.com/view/65bc5332-aa10-4b8c-bc50-d051e8f4fcc7 (last visited Oct. 28, 2011).
34 Lautsi II, App. No. 30814/06 at 61.
35 Id. at 62.
36 Id. at 61.
37 Id. at 66.
39 Id. at 74.
41 Id. at 67.
42 Lautsi v. Italy, App. No. 30814/06, Concurrence of Judge Giovanni Bonello, Eur. Ct. H.R. 1.5 (2011), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Lautsi | v. | Italy&sessionid=74114939&skin=hudoc-en.
43 Id. at 1.6.
45 Id. at 3.6.