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.
Good googly-moogly, what sophistry! A crucifix represents the “separation of religion and State”? Teaching “the historical importance of Christianity in Norway” supports “the increasing pluralist nature of Norwegian society”? I agree, however, that these half-measures, as decided by the ECHR, don’t cut it. It ought to rule that *establishment of a particular religion itself*, in any/every nation, is inconsistent with the European Union, and must be abolished. With establishment comes INEVITABLE violations of human rights. Be done w/ establishment already, and let ALL religious groups rise or fall on a voluntary basis! [In THIS case, it’s not just the (U.S.… Read more »
There are numerous and perfectly appropriate places to affix crucifixes. The walls of state-sponsored schools is not one of them. The Italian government, in its desperation to hold onto a religious custom, is engaging in the same kind of argument that the US Supreme Court has engaged in for some time with creches in front of public buildings, and that is to say that in a secular context, religious symbols lose their religious meanings. That should be an affront to every devout Christian. The crucifix has a specific religious meaning. So does the creche. To reduce the former to a… Read more »
Where I am a creche is a child mindding facility
I think it is a little mischievous to reference the separation of church state and the US Constitution. This was decided entirely (and unanimously) on the basis of the European Convention on Human Rights referring to the right to bring up children according to your own views (interesting in other contexts for other reasons). It doesn’t mean you can’t have a crucifix in any school only that it’s a breach of human rights to do so in secular state run schools that people are obliged to use. The whole case is the attempt to extend the influence of Christianity through… Read more »
Heard of the Georgetown University Crucifix Wars? There was a big kerfuffle when some idiot administrator decided that the crucifixes in classrooms of this Catholic college should be taken down in the interests of “diversity.” There was a big protest movement against this. The pro-crucifix party included students of all religions as well as Jewish and Muslim chaplains. Crucifix wars have played out in lots of Catholic college in the US–including my own. I detest this stupid puritanism. In the US religious symbols in public spaces are verboten–but it’s not verboten to teach Creationism/ID in the public schools if the… Read more »
Mr Baber, I wholeheartedly agree with you. I would argue that being religious and manifesting it in signs and symbols is a sign of defiance against a false “pluralism” that actually wishes to wipe out the religious sense inherent in humanity that no ideological scheme has been able to wipe out.
On that note, I wish everyone a blessed feast of the Circumcision and Holy Name of Jesus Christ! Happy new year.
Talk about non sequitur! We’re not talking about crucifixes in *Catholic* universities. Nor are we talking about some sort of montage of religious symbols “all over the place”. We’re talking about *one* religious symbol, the crucifix, in *one* taxpayer-paid-for place, the state school classroom. THAT is what the ECHR ruled against, and rightly so (IMO).
Happy New Year to all: religious, secular or somewhere in-between. 😉
In Italy, the whole problem of religious symbols in secular schools should not be an issue. The only way to allow such a situation would be to allow any and all religions to display their own religious symbols. After all, in Western airport building, where there happens to be a facility for people to pray, their is usually provision for all faiths – and for anyone to pray – with various religious symbols. No-one complains. Anyway, the theory of state-sponsored religion’s hegemony is over, surely – if only because this has been a primary source of factions and ‘holy’ wars.… Read more »
It would be helpful for someone to clarify the relationship between the Italian state and the Catholic Church.
Does anyone here know if the Italian government makes any financial provision for Catholic schools, or whether the origins of the present state school system lie in parish schools?
The Norwegian case discussed at the end of the article raises another question. Given that Norway has an established Church, it strikes me that at least some teaching of Christian principles is embedded in the mission of the state school system.
In Italy any group may found a school ‘at no expense to the public’ – those attending the school will have to be able to pass a public test administered by the Department of Public Instruction, if the school (or university) is to be recognised. As a long time resident of Italy (not at the moment though) I would say that crucifixes should be removed not just from public (USA use of the term) schools, but also from courts of law, post offices, and lots of other public offices where they remain affixed. The presence of crucifixes in those places… Read more »
Sara’s contention must be the very best solution to the placement of a crucifix in public places – especially in the courts of some parts of italy, where the ‘justice’ system is often tied up with un-Godly organisations like the local Mafia.
“It doesn’t mean you can’t have a crucifix in any school only that it’s a breach of human rights to do so in secular state run schools that people are obliged to use.” – Craig Nelson, on Thursday – This seems eminently reasonable to me. At least, the state is not banning the use of religious symbols in their own context – which is in the buildings where faith precepts are taught and honoured by those willing to enter that specific environment. To insist that all state schools identify with the majority faith’s religious symbols, would be to exclude those… Read more »