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Religious Symbols in European Classrooms (Lautsi and Others v. Italy)
Grand Chamber, Case Of Lautsi And Others V. Italy, Strasbourg, 18 March 2011
Page 31
It should be observed here, while we are on the subject of a consensus, that the Court is a court of law, not a legislative body. Whenever it embarks on a search for the limits of the Convention's protection, it carefully takes into consideration the existing degree of protection at the level of the European States; it can, of course, afford to develop that protection at a level higher than the one offered by a specific respondent State, but on condition that there are strong indications that a great number of other European States have already adopted that degree of protection, or that there is a clear trend towards an increased level of protection. That principle cannot positively apply in the present case, although there is admittedly an emerging trend towards prohibiting the display of religious symbols in public institutions.
In view of the fact that there is still a mixed practice among European States on the issue, the only remaining guidance for the Court in achieving the correct balance between the rights involved comes from its prior case-law. The keywords deriving from the prior case-law are “neutrality and impartiality”. As the Court has noted in the present judgment, “States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups” (see paragraph 60, in fine).
It is, I think, indisputable that the display of crucifixes in Italian State schools has a religious symbolism that has an impact on the obligation of neutrality and impartiality of the State, despite the fact that in a modern European society symbols seem to be gradually losing the very important weight that they used to have in the past and more pragmatic and rationalistic approaches now determine, for large segments of the population, the real social and ideological values.
The question which therefore arises at this juncture is whether the display of the crucifix not only affects neutrality and impartiality, which it clearly does, but whether the extent of the transgression justifies a finding of a violation of the Convention in the circumstances of the present case. Here I conclude, not without some hesitation, that it does not, in accordance with the main reasoning of the Court's approach and, more particularly, the role of the majority religion of Italian society (see paragraph 71), the essentially passive nature of the symbol, which cannot amount to indoctrination (see paragraph 72), and also the educational context within which the crucifix appears on the walls of State schools. As the judgment has pointed out, “[f]irstly, the presence of crucifixes is not associated with compulsory teaching about Christianity ... Secondly ... Italy opens up the school environment in parallel to other religions. The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; ... and optional religious education could be organised in schools for 'all recognised religious creeds'...” (see paragraph 74 of the judgment). These elements, demonstrating a religious tolerance which is expressed through a liberal approach allowing all religions denominations to freely manifest their religious convictions in State schools, are, to my mind, a major factor in “neutralising” the symbolic importance of the presence of the crucifix in State schools.
I would also say that this same liberal approach serves the very concept of “neutrality”; it is the other side of the coin from, for example, a policy of prohibiting any religious symbols from being displayed in public places.
Cf. Eastern Roman Empire (Byzantium) * Ancient Rome * Ancient Greece * The Making of Europe
