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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 34
2.4 Most of the arguments raised by the applicant called upon the Court to ensure the separation of Church and State and to enforce a regime of aseptic secularism in Italian schools. Bluntly, that ought to be none of this Court's business. This Court has to see that Ms Lautsi and her children enjoy to the full their fundamental right to freedom of religion and conscience. Period.
2.5 The Convention proves to be quite helpful with its detailed and exhaustive inventory of what freedom of religion and conscience really means, and we would do well to keep these institutional constraints in mind. Freedom of religion is not secularism. Freedom of religion is not the separation of Church and State. Freedom of religion is not religious equidistance – all seductive notions, but of which no one has so far appointed this Court to be the custodian. In Europe, secularism is optional, freedom of religion is not.
2.6 Freedom of religion, and freedom from religion, in substance, consist in the rights to profess freely any religion of the individual's choice, the right to freely change one's religion, the right not to embrace any religion at all, and the right to manifest one's religion by means of belief, worship, teaching and observance. Here the Convention catalogue grinds to a halt, well short of the promotion of any State secularism.
2.7 This Court's rather modest function remains that of determining whether the exposure in State schoolrooms of what to some is a Christian symbol and to others a cultural gadget in any way interfered with Ms Lautsi's and her children's basic right to freedom of religion – as defined by the Convention itself.
2.8 I believe anyone could persuasively try to argue that the presence of the crucifix in Italian State schools might possibly offend the doctrine of secularism and that of the separation between Church and State. At the same time I do not believe that anyone can persuasively plead that the presence of a crucifix interfered in any way with the Lautsis' right to profess any religion of their choice, to change their religion, not to have any religion at all or to manifest their beliefs, if any, by worship, teaching and observance, or with their right to reject outright anything they may consider insipid superstitious junk.
2.9 With or without a crucifix on a schoolroom wall, the Lautsis enjoyed the most absolute and untrammelled freedom of conscience and religion as demarcated by the Convention. The presence of a crucifix in a State classroom might conceivably be viewed as a betrayal of secularism and an unjustifiable failure of the regime of separation between Church and State – but these doctrines, however alluring and beguiling, are nowhere mandated by the Convention, nor are they necessary constitutive elements of the freedoms of conscience and of religion. It is for the Italian authorities, not for this Court, to enforce secularism if they believe it forms part, or should form part, of the Italian constitutional architecture.
2.10 Seen in the light of the historical roots of the presence of the crucifix in Italian schools, removing it from where it has quietly and passively been for centuries, would hardly have been a manifestation of neutrality by the State. Its removal would have been a positive and aggressive espousal of agnosticism or of secularism – and consequently anything but neutral. Keeping a symbol where it has always been is no act of intolerance by believers or cultural traditionalists. Dislodging it would be an act of intolerance by agnostics and secularists.
2.11 Millions of Italian children have, over the centuries, been exposed to the crucifix in schools. This has neither turned Italy into a confessional State, nor the Italians into citizens of a theocracy. The applicants have failed to unfurl before the Court any evidence at all that those exposed to the crucifix forfeited in any way their complete freedom to manifest their individual and personal religious belief, or their right to repudiate any religion. The presence of a crucifix in a schoolroom does not seem to have hindered any Italian in his or her liberty to believe or to disbelieve, to embrace atheism, agnosticism, anti-clericalism, secularism, materialism, relativism, or doctrinaire irreligion, to recant, apostatise, or to embrace whatever creed or “heresy” of their choice they find sufficiently appealing, with the same vigour and gusto others freely embrace a Christian faith. Had any such evidence been adduced, I would have been strident in my voting for finding a violation of the Convention.
Cf. Eastern Roman Empire (Byzantium) * Ancient Rome * Ancient Greece * The Making of Europe
