The following article from the 21 November edition of The Tablet is reproduced by kind permission of the Editor.
Swords crossed over a crucifix by Aidan O’Neill
The Italian Government is seeking to appeal against a ruling from the European Court of Human Rights that could lead to the removal of crucifixes from state school classrooms. A leading human-rights lawyer looks at a case that goes to the heart arguments about the relationship between Church and State.
In the last few years the European Court has, in general, been sympathetic to various attempts to regulate what, in their particular national contexts, the authorities have considered to be excessive individual religious displays. Thus the Court upheld the human rights compatibility of France’s ban on pupils dressing in a manner that made their religious affiliation immediately identifiable. It also upheld a law in Turkey barring from university lectures and tutorials students sporting beards and women wearing Islamic headscarves. In these two decisions the Court confirmed that the French and Turkish principle of laïcité or secularism, with its insistence on the strict separation between Church (or mosque) and State, was consistent with the democratic values of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
In its 3 November 2009 decision in Lautsi v. Italy, however, the European Court appears to have gone significantly beyond this line of case law. The court has now determined that the requirement in Italian law – in place since the 1920s Fascist government under Mussolini – that crucifixes be hung on the walls of the classrooms of state-run schools (originally, alongside a portrait of the king) was incompatible with human rights. The court ruled that such display violated the right of parents to educate their children in conformity with their own religious and philosophical convictions, and the right of their children to believe or not to believe.
The Italian Government argued, somewhat disingenuously, that in context, crucifixes in classrooms need not be understood in religious terms. Instead, the cross could properly be imagined as representing a whole host of ethical values – among them non-violence, equality and dignity, justice, love of neighbour, forgiveness of enemies, freedom of choice, and separation of religion and State – upon which contemporary European democracies were founded. As a matter of history, the humanist values of the Enlightenment were said to have their roots in, or be in reaction against, Christianity. The classroom display of the crucifix could be seen as a reminder of this. The cross in the Italian classroom could therefore be stripped of any specific religious significance or meaning; it could be regarded as nothing more than a cultural relic; or, indeed, it could simply be ignored.
The third party intervener, the Greek Helsinki Monitor human rights organisation, described these arguments as offensive to the Church and to believers. The cross could only be seen as a symbol of religious faith, of a belief in the truth of Christianity. The Court agreed that the primary meaning of the crucifix was as a religious symbol, readily associated with Catholicism. But it considered that the legal requirement to display a crucifix in the classroom could be justified neither on historical nor cultural grounds, nor on the basis of the views of the majority of parents. The court declared that in the context of the provision of public education the state was bound to a “confessional neutrality” and that such state education should be aimed at fostering “educational pluralism” and encouraging “critical thought” among its pupils.
Article 9 of the European Convention proclaims the absolute right of everyone to freedom of thought, conscience and religion. The freedom to manifest one’s religion or beliefs is also said to be a fundamental right, though one which may be limited by law. Such limitation must be shown to be “necessary in a democratic society”.
The right to education is set out in Article 2 First Protocol ECHR. This provides that parents have the right to ensure the education and teaching of their children “in conformity with their own religious and philosophical convictions”. Where the state assumes a role in relation to education and teaching, it must respect that right of the parents.
However, in the Lautsi v. Italy ruling, the European Court would appear to be committing itself to the claim that not only is a strict separation of Church and State permitted under the European Convention but it is actually required by it. Such a claim can certainly not be justified by the plain text of the Convention. It appears to owe more to United States Supreme Court jurisprudence on the separation of Church and State. But this American case law is based on the text of its Constitution’s First Amendment requirement that “Congress shall make no law respecting the establishment of religion”.
This clause has resulted in a seemingly endless line of court cases on such issues as whether Nativity scenes, or the text of the Ten Commandments, can lawfully be displayed on state-owned property; or whether prayers can be said, or oaths of allegiance recited, in public schools.
To apply such an American separationist analysis within a European context simply does not do justice to the wholly different understandings of the proper relationship between religion and the State which have historically existed among the countries of Europe; where, indeed, religious establishment of forms of Christianity – whether Protestant, Orthodox or Catholic – was the traditional norm.
Under Article 43 ECHR, a party has three months from the date of a judgment to request that it be reheard on appeal before the Grand Chamber of the Court with its 17 judges. To be successfully referred to the Grand Chamber the case must be found by the court to raise serious question of interpretation of the Convention or some other issue of general importance.
The questions raised in Lautsi clearly highlight tensions within the European Court itself. In June 2007, in Folgerø v. Norway, the Grand Chamber split nine to eight on the question of whether a group of avowed humanist parents should be able to demand the complete exemption of their children from a state-sanctioned school course on Christianity, religion and philosophy. The dissenting eight-strong minority considered that it was precisely the increasing pluralist nature of Norwegian society that justified the Norwegian state in making such provision, which emphasised the historical importance of Christianity in Norway. The state had a duty to ensure mutual tolerance between differing groups in society and, in the minority’s view, providing for a common state education in religion and ethics, which did not seek to proselytise and convert but to inform, was a proper means to that end.
It is clear that we have not heard the last word on these issues.
■ Aidan O’Neill QC is a Scottish advocate, based in Edinburgh, and a barrister member of Matrix Chambers in London.