FREEDOM OF RELIGION CRUCIFIED? Secularism and Italian Schools before the European Court of Human Rights Francesca Astengo

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1 Powered by TCPDF ( FREEDOM OF RELIGION CRUCIFIED? Secularism and Italian Schools before the European Court of Human Rights Francesca Astengo L'Harmattan «Politique européenne» 2013/3 n 41 pages 12 à 39 ISSN ISBN Article disponible en ligne à l'adresse : Pour citer cet article : Francesca Astengo, «Freedom of Religion Crucified? Secularism and Italian Schools before the European Court of Human Rights», Politique européenne 2013/3 (n 41), p DOI /poeu Distribution électronique Cairn.info pour L'Harmattan. L'Harmattan. Tous droits réservés pour tous pays. La reproduction ou représentation de cet article, notamment par photocopie, n'est autorisée que dans les limites des conditions générales d'utilisation du site ou, le cas échéant, des conditions générales de la licence souscrite par votre établissement. Toute autre reproduction ou représentation, en tout ou partie, sous quelque forme et de quelque manière que ce soit, est interdite sauf accord préalable et écrit de l'éditeur, en dehors des cas prévus par la législation en vigueur en France. Il est précisé que son stockage dans une base de données est également interdit.

2 12 Varia POLITIQUE EUROPÉENNE N Francesca Astengo [p ] Freedom of Religion Crucified? Secularism and Italian Schools before the European Court of Human Rights This article explores the issue of the mandatory display of the crucifix in Italian public schools, which is regulated by acts dating back to the 1920s. Italian jurisprudence on the matter has been oscillating, while the Constitutional Court has repeatedly refused to take a position on this issue. The 2011 decision of the European Court of Human Rights in the Lautsi case put an end to a nine year-long judicial odyssey. The Court argued that the decision as to whether a crucifix should be displayed in public classrooms belongs to each European state. By doing so, it renounced to play a universalistic role in favour of national constitutional systems. However, a number of questions remain open for Italy: specifically, the question of the presence of religious symbols in public spaces; their relationship with the notions of a democratic, pluralistic, secular society and neutrality of the state; and the limits to both freedom of religion and freedom from religion at individual and collective levels. Liberté de religion crucifiée? Laïcité et écoles italiennes devant la Cour européenne des droits de l homme Cet article explore la question de l exposition obligatoire du crucifix dans l école publique italienne, une matière qui est réglée par des dispositions datant des années La jurisprudence italienne sur cette question est contradictoire et à plusieurs reprises la Cour constitutionnelle a refusé de prendre position sur le sujet. La décision de la Cour européenne des droits de l homme dans l affaire Lautsi a mis fin a une odyssée judiciaire de quelque neuf ans sur la présence des crucifix dans les écoles italiennes. Selon la Cour, toute décision à ce sujet appartient à chaque État européen. Ce faisant la Cour a renoncé à jouer un rôle universaliste en faveur des systèmes constitutionnels nationaux. Cependant, plusieurs questions restent ouvertes pour l Italie : notamment la place des signes religieux dans les espaces publics, leur relation avec les notions d une société démocratique, pluraliste et laïque et les limites aux libertés de religion et de la religion tant à niveau individuel que collectif.

3 Varia 13 Freedom of Religion Crucified? Secularism and Italian Schools before the European Court of Human Rights Francesca Astengo Concordia University Montreal I n 2009 the European Court of Human Rights (ECtHR)1 affirmed in the Lautsi case that the compulsory display of the crucifix in Italian public classrooms violated Article 2 of Protocol No. 1 (right to education) taken together with Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights (ECHR), as it restrict[ed] the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe. Two years later, however, the Grand Chamber of the same Court 2 reversed its previous decision and, focusing on the right of education, stated that the decision whether a crucifix should be displayed in public classrooms belongs to each European state. This article explores the complex issue of the display of the crucifix in Italian public schools. After recalling the historical background of the presence of this symbol in classrooms, and both its constitutional and judicial dimensions, it will focus on the implications of the decision of the ECtHR. By relying on the margin of appreciation doctrine the Court renounced to take a position on the meaning of secularism, which is deeply entrenched in the specific constitutional history of each European country; departed from a notion that was closely associated to the French and Turkish models; and took into account the Italian Constitutional Court s jurisprudence on secularism. Generally speaking, secularism and religious freedom operate on two different levels: the public one, as secularism concerns the duty of the state to treat every religion with the same respect and consideration; and the private one, 1 ECtHR 2 November 2009, case No /06, Lautsi v. Italy (here Lautsi I). 2 ECtHR, 18 March 2011, case No /06 Lautsi and others v. Italy (here Lautsi II). POLITIQUE EUROPÉENNE N

4 14 Francesca Astengo as religious freedom, both in its positive (as freedom of religion) and negative (as freedom from religion) dimensions deals with the personal sphere of each individual. However, when dealing with the question of the crucifix in public schools not only do these two levels tend to overlap, but they are also intertwined with historical, cultural, sociological and religious elements. With Lausti the individual right not to be exposed to religious symbols is considerably narrowed in favour of the positive dimension of religious freedom. Why is the crucifix hanging on the walls of Italian schools? The mandatory display of the crucifix is rooted in two royal decrees dating back to the beginning of the last century. Article 118 of Royal Decree No. 965 of 30 April 1924 governing middle level schools provides that Each school must have the national flag and each classroom must have a crucifix and a portrait of the King. Article 119 of Royal Decree No of 26 April 1928, approving the general regulations governing the provision of primary education provides that the crucifix must form part of the necessary equipment and supplies in school classrooms. Enacted by the fascist government, these decrees reflected the concern of the state in ensuring compliance with the obligation to display the crucifix in classrooms, established by a previous royal decree of 1860, when Italy as a country did not yet exist. At the time, the basic law in place was the 1861 (the year of the birth of the Italian state) Constitution of the Kingdom of Italy (previously the 1848 Statute of the Kingdom of Piedmont-Sardinia or Statuto Albertino), according to which the Roman Catholic Apostolic religion shall be the only religion of the State [and] other existing creeds shall be tolerated in conformity with the law. The fascist concern for establishing a confessional state was already evident only a month after rising to power in the circular of 22 November 1922 sent out by the Ministry of Education with the following wording:... in the last few years in many of the Kingdom s primary schools the image of Christ and the portrait of the King have been removed. That is a manifest and intolerable breach of the regulations and especially an attack on the dominant religion of the State and the unity of the Nation. We therefore order all municipal administrative authorities in the Kingdom to restore. the two sacred symbols of the faith and the consciousness of nationhood.

5 Freedom of Religion Crucified? 15 Circular 26 May 1926 of the same Ministry reiterated the the symbol of our religion, sacred to both the faith and the national sentiment must warn and inspire our studious youth. The confessional character of the Italian state was then confirmed by the Lateran Treaty of 1929 which marked the conciliation between the state and the Catholic Church (after the crisis following the capture of Rome by the Italian army on 20 September 1870, its annexation and proclamation of capital of the new Kingdom of Italy, and the unilateral regulation by the Italian state of the relations with the Church granting the Pope a number of privileges for the orderly conduct of religious activity). Catholicism was confirmed as Italy s official religion. 3 The 1920s administrative acts have been considered as still valid in the post Republican era. The 1948 Constitution was the result of a compromise between the three main political forces represented in the Constitutional Assembly, i.e. the Christian Democrats, the parties of the left (socialists and communists) and the liberals. Thus, while the Catholic Church enjoys a special place in the Constitution thanks to a specific article devoted to its relation with the Italian state (art.7), such a provision is immediately followed by the affirmation that all religious creeds are equal before the law (art. 8). Similarly, while the Catholic influence is evident in the articles concerning marriage and family, the socialist and communist traditions clearly inspired other provisions concerning for example workers rights or limitations to private property. In other words, Christian values are but one component of the Italian legal and political system. Thus, the crucifix as a polysemic symbol (either religious or cultural) reflects part of Italian history and traditions and constitutes one of the features of its identity. However, it is not the typical symbol of Italian identity or unity. Rather, as the Constitutional Court itself explained, the national flag (art.12 of the Constitution) is the symbol which simply identifies a given state and represents the ideals which constitute the basis of popular sovereignty in a state, such as Italy, which cannot impose ideological values that are common to citizens as a whole or individually. 4 Following these premises the crucifix is entitled to a place on the school walls as much as the hammer and sickle (Mancini, 2010). 3 Article 1, Lateran Treaty Corte Costituzionale, decision No. 189/1987. POLITIQUE EUROPÉENNE N

6 16 Francesca Astengo In a 1988 opinion the Supreme Administrative Court 5 affirmed that the 1920s provisions are not implicitly abrogated by the Protocol to the new Concordat of 1985 (Villa Madama Accords), 6 which states that the principle laid down in the Lateran Pacts, i.e. that the Catholic religion is the only state religion, is no longer in force. Like the Lateran Treaty, the new Concordat does not contain any provision concerning the display of the crucifix in school or public offices. Similarly, in 2006 the same court confirmed that those acts cannot be considered as abrogated, neither explicitly nor implicitly, by subsequent norms, be they constitutional, legislative or administrative. 7 The provisions are to be associated with legislative decree No. 297 of 16 April 1994 (articles 159 and 190), which makes municipalities responsible for purchasing and supplying the furniture (including crucifixes) of primary and middle schools. More recently, the validity of royal regulations was confirmed by the 2002 instruction of the Ministry of Education, Universities and Research 8 which considers that the presence of crucifixes in classrooms is founded on the... provisions in force and recommends that school governors ensure the presence of crucifixes in classrooms. Following an approach that anticipated the Italian defence in the Lautsi case, the instruction affirmed that the presence of crucifixes in classrooms offends neither against religious pluralism nor against the objectives of multicultural education of Italian schools and that it cannot be considered a limitation of the freedom of conscience guaranteed by the Constitution, since it does not refer to a specific creed but constitutes only an expression of Christian civilisation and culture, and that it therefore forms part of the universal heritage of mankind. On this premise, the Ministry instructed schools, on the one hand, to ensure the presence of crucifixes in classrooms, and on the other to set aside part of their premises to be used. for contemplation and meditation by those members of the school community who so wish. 5 Consiglio di Stato, 27 April 1988, opinion No Villa Madama Accords of 18 February 1984, ratified by Law No. 121 of 25 March Consiglio di Stato,15 February 2006, decision Sez. 4575/ /04. 8 Ministry of Education, University and Research 3 October 2002 instruction No

7 Freedom of Religion Crucified? 17 Secularism, Italian style Italy is or calls itself a secular country. Unlike France, secularism is not proclaimed in explicit terms in the Italian Constitution. However, its legal importance can be deduced from the fundamental norms contained in the 1948 Republican Constitution. The Constitutional Court, which has the ultimate power to interpret the Constitution, confirmed the secular character of the Italian state and in a number of decisions derives this principle specifically from the combined reading of its various articles. 9 Article 2 protects the inviolable rights of man, both as an individual and as a member of the social groups ; article 3 guarantees equality before the law; article 7 provides that the State and the Catholic Church, each in its own order, shall be independent and sovereign. Article 8 affirms that all religious creeds shall be equally free before the law. Article 19 provides that everyone is entitled to freely profess their religious beliefs in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided that they are not offensive to public morality. Article 20 states that the religious or confessional character of associations or institutions does not justify special limitations or fiscal burdens regarding their establishment, legal capacity, or activities. The content of these constitutional provisions establishes the operating conditions under which secularism should be understood and function. In its judgment of 12 April 1989, rendered in a case concerning the non-compulsory nature of Catholic religious teaching in state schools, the Constitutional Court had the opportunity to specify what kind of secularism Italy embraces. The Court held that the principle of secularism which is derived from the Constitution does not imply that the state should be indifferent to religions, but rather that the state should guarantee the protection of the freedom of religion in a context of confessional and cultural pluralism. Especially after the 1985 Villa Madama Accords, secularism implies that the state must be equidistant, impartial and neutral. The principle of state neutrality flows from the fundamental principle of equality of all citizens and the prohibition of any discrimination that the state must adopt as an attitude of impartiality towards religious beliefs. However, this equidistance of the state vis à vis the different faiths does not translate into blindness towards religion (the French 9 Corte Costituzionale, decisions No. 203/1989; No. 259/1990; No. 13/1991; No. 195/1993; No. 421/ 1993; No. 334/1996; No. 329/1997; No. 508/2000; No. 327/2002. POLITIQUE EUROPÉENNE N

8 18 Francesca Astengo concept of laicité), but instead into a positive and inclusive attitude towards all religions. Unlike the approach of the classic liberal state, Italian secularism as declined by the Court implies the guarantee of freedom of religion in a system of confessional and cultural pluralism and sense the coexistence in conditions of equality, not only of different faiths, but also of different cultures and traditions. In other words, secularism goes well beyond the concept of freedom of religion. As the Constitutional Court clarifies, the genus (the value of religious culture) and the species (the principles of Catholicism in the historical patrimony of the Italian people) concur to describe the secular attitude of the Community-State, which does not refer to ideological and abstract postulates of indifference, hostility or favour towards religion or a specific belief, but instead puts itself at the service of concrete instances of the citizens civil and religious conscience. 10 According to the Italian Court, secularism implies, on the one hand, no favouritism for the religion of the majority and, on the other, attention for religions other than the dominant one. This approach distances itself both from total indifference for the religious phenomenon and from laicité à la française, which postulates its explicit exclusion from the public sphere. In the same jurisprudence, the Constitutional Court also reiterated the constitutional value of the freedom of conscience as a principle that enables the concrete enjoyment of fundamental freedoms, especially when put into relation with moral and philosophical convictions (art.21 Const) or religious beliefs (art.19 Const). Freedom of conscience and freedom of religion are to be read in the light of the principle of equality both in a positive and negative sense: positively, as a protection of the convictions or faith professed, and negatively, as the protection of non-believers, atheists or agnostics. This interpretation of secularism as a pluralist, inclusive and non discriminatory notion, based on the equality of freedom of individuals and open to different religious manifestations seems to fit with the secularised and more diversified type of society that Italy has developed in the past few decades. Notions such as religious pluralism and secularism understood as welcoming and inclusive concepts were elaborated at a time when the religious panorama of the country was heavily dominated by Catholicism. As the influence of Catholic authorities ha declined, Italian society has become less homogeneous due to immigration and the increasing presence of different religions 10 Corte Costituzionale, decision 203/1989.

9 Freedom of Religion Crucified? 19 in the country. 11 In the space of a few decades Italy has transformed itself form a country of emigration into one of immigration, with large groups of non-christian residents. 12 By the early 1980s, the country had ceased to be a net exporter of workers and the real explosion of immigration occurred in the early 1990s 13, both because of the geographical position and the role in the European Union. In this context of an increasingly heterogeneous society (Rome, besides being the seat of the Vatican is also the home of the largest mosque in Europe), the question of the crucifix in public spaces reached the attention of Italian judges. Italian jurisprudence on the display of the crucifix Italian jurisprudence on the display of the crucifix in public spaces has been oscillating. Different courts have expressed themselves on this delicate issue with regard in particular to schools, the other public spaces considered being polling stations (which are usually set up in schools) and courtrooms. The variety of positions is due to the fact that the mandatory display of the crucifix in public schools is rooted in administrative regulations which only administrative judges have the power to invalidate. Ordinary judges can decide not to apply an administrative act (as opposed to void it) but their decision can be reversed for lack of competence. The issue was finally resolved by the Corte di Cassazione, which declared the exclusive jurisdiction of the administrative justice in questions concerning the crucifix in schools. 14 As 11 The religious composition of the Italian population includes 91.1% Christians, Muslims 1.4%, Buddhists 0.2%, Hindus 0.1% Sikhs 0.1%, Jews 0.1%. Those who are not belonging to any religion amount to 5.8%. Eurobarometer, June 2005, < 12 New national and ethnic groups from Eastern Europe and former Yugoslavia joined the traditional foreign presence of citizens from Africa, Eastern Asia, the Middle East and Latin America. Non Christian immigrants are mainly Muslim, from North Africa, South Asia, Albania and the Middle East. Of 2.9 million immigrants, an estimated 1 million are Muslim, primarily Sunnis. Eurispes, Rapporto Italia, 2011, < 13 Although the numbers do not compare with those of other European countries as destination of immigrant population: recent immigrants in Italy amount to 4.5% of the population whereas the average of Western Europe is 5.2%. Cf. Mignone (2008, 219). 14 Corte di Cassazione, decision 15614/2006. POLITIQUE EUROPÉENNE N

10 20 Francesca Astengo a result, different administrative courts ruled on the matter, whereas the Constitutional Court avoided pronouncing itself in the only two cases that landed before it. Although formally correct as the Constitutional Court is not competent to review administrative acts, the dismissal of both the 2004 case (where the question of constitutionality was declared inadmissible) and the 2006 case (where conflict of attribution was declared inadmissible) on the grounds of the administrative nature of the acts, was criticised as pilatesque.(pugiotto, 2005; Rimoli, 2005). The question of the crucifix in public schools was brought to judicial attention particularly in the last couple of decades. Judges were confronted with the task of verifying whether that requirement did or did not infringe on the fundamental norms of the secular constitutional order. Creating a complex and often contradictory jurisprudence on the display of the crucifix in public schools, judges have either a) been against it 15, b) doubted its constitutionality 16 and more often c) been favourable, considering it not to be in contradiction with the principle of state secularism. 17 Jurisprudence on the matter has indicated that there is no univocal interpretation in a number of issues including the meaning of the crucifix itself, the criteria for its display, the general standards concerning religious symbols in public space and their potential impact. With regard to the meaning of the crucifix (courts have considered indifferently the cross and the crucifix), there are three possible alternatives. First, the crucifix can be considered as a mere item of furniture. In the very first decision on the matter, for example, the judge rejected the request to remove the crucifix from a schoolroom on the ground that such a piece of furniture could not constitute a prejudice for the cultural and intellectual formation of pupils. 18 The advantage of this approach is that it automatically excludes any conflict with the neutrality of public spaces. However, it would diminish and denigrate almost to an offensive extent 19 a symbol that because of its 15 L Aquila Tribunal, 2003 see infra footnote Regional Administrative Tribunal (TAR) Veneto 2004 sez. 1, 14 January 2004, n TAR Veneto 2005, Consiglio di Stato 2006, see infra footnotes 22 and Pretore di Roma, April-May See Marta Cartabia (2004) ; In general Carlo Cardia (2010) ; and Sergio Luzzatto (2011),

11 Freedom of Religion Crucified? 21 eschatological value of fundamental symbol of the Christian religion cannot be considered by the same standards of a school furnishing. 20 Second, the crucifix can be understood as a religious symbol. In this case its presence would be at odds with the principle of neutrality, as the display in public spaces of the symbol of one specific religion could hurt those who profess a different religion (or none). For example, following this interpretation in 2003 a judge in L Aquila 21 ordered the immediate removal of the crucifix from a school classroom upon a challenge by a Muslim parent. The court held that the display violated the constitutional principles of religious freedom, equality and secularism, especially taking into account the multiethnic character of the modern society. Third, the cross can be understood as a cultural symbol. This interpretation is intermediate between the two cited above, as it does not diminish the value of the crucifix while being compatible with the neutrality of public spaces. Referring to the secularisation of the crucifix for example, administrative courts affirmed that the crucifix may legitimately be displayed in public schools. Judges in TAR Veneto 22 even went as far as to assert that the crucifix not only does not clash with secularism, but on the contrary, it actually affirms it as the secular nature of the modern state. was prompted in part. by a more or less conscious reference to the founding values of Christianity. In support of these arguments the Supreme Administrative Court in emphasized the importance of the place where the crucifix is displayed. It explained that in a place of worship the crucifix is properly and exclusively a religious symbol. Conversely, in a non-religious context like a school its display possesses a non-discriminatory meaning and can still perform a highly educational symbolic function, irrespective of the religion professed by pupils. That same year the TAR Lombardia 24 rejected the appeal of an elementary school teacher who during her teaching hours removed the crucifix from the class wall against the will of the school authority. Here the judge s reasoning 20 Corte di Cassazione, ord. 10 July 2006 No Tribunale dell Aquila, 23 October 2003, Court Order Smith v. Scuola materna ed elementare statale Antonio Silveri di Ofena. 22 TAR Veneto, 17 March 2005, decision No Consiglio di Stato, 15 February 2006, decision Sez. 4575/ / TAR Lombardia Sez. Brescia, decision 22 May 2006, No POLITIQUE EUROPÉENNE N

12 22 Francesca Astengo introduced a new nuance with regards to the fact that the school s order to reinstall the item came after consultation with the interclass council, which was in favour of maintaining the crucifix. Also without univocal interpretation is the question of how the display of religious symbols in public spaces is decided. There are basically two alternatives in this regard. The first is to find a solution on a case by case basis, one that results from the agreement of the people concerned (the users of the public space). The advantage would be that the decision about this delicate issue is left in the hands of the people who are directly involved (teachers, school authorities, parents), whereas the disadvantage is that unless a solution is reached by quite improbable unanimity, a majority decision would always bring discontent. The second alternative is a legislative intervention that would fill the vacuum left by obsolete provisions and bring some clarity to the whole issue. However, despite being invoked both explicitly by ordinary judges and implicitly by the Constitutional Court s attitude, such a solution has not yet taken place. The same uncertainty applies to the all symbols-no symbols issue. In a few cases the plaintiffs against the display of the crucifix asked for the display of symbols of the Muslim or Jewish religion. As the Consiglio Superiore della Magistratura, the self-governing body of the judges, suggested, 25 there are two possible solutions in this regard: a high standard, admitting the display of all religious symbols (which would discontent non believers, and open a Pandora s box on which symbols to admit); or a low standard, admitting no symbols at all the white wall solution which would be compatible with the neutrality of public spaces. This last solution however, would be more in line with an understanding of secularism à la française, rather than with the one suggested by the Constitutional Court. Furthermore, with regard to the passive or active role of the crucifix, there is no observable trend. This issue relates to the distinction between religious symbols in public spaces and religious symbols worn by people in public spaces, in particular in schools. In a case concerning the wearing of the Islamic veil in a public place, 26 the judge considered the veil as a religious symbol, better, an item that denotes adherence to a particular religious faith. 25 Consiglio Superiore della Magistratura, order 23 November TAR Friuli Venezia Giulia, decision 16 October 2006, No This decision was later upheld by Consiglio di Stato, Sez.VI, decision 19 June 2008, No

13 Freedom of Religion Crucified? 23 Unlike France, there is no legislation on the wearing of conspicuous or not religious symbols in public schools. The question did not attract the same attention as the crucifix. However, this distinction is relevant if not with regard to people in general using schools (students, parents) at least with regard to teachers, whose right to express religious beliefs needs to be balanced with their institutional role in secular public schools. Finally, to complete this overview it is worth noting that the most recent decision of an Italian court on the presence of the crucifix in public spaces, 27 the so-called Tosti case, concerning a judge who removed the crucifix from the tribunal, was favourable to the presence of the crucifix, considered as compatible with state neutrality (Croce, 2011). Although dealing with a case referring to a public space other than a school 28 (a courtroom), the timing of the decision only four days before Lautsi II is quite remarkable, as it seemed to anticipate the final decision of the Strasbourg court. Here, once again, the judges invoked a legislative intervention on the matter, with regard, in particular, to the possibility of exposing other religious symbols in public spaces. The Lautsi Case: a judicial odyssey The facts Given the number and levels of different Courts involved, the Lautsi case is without a doubt the most discussed and controversial case regarding religious symbols in Italian history. In 2002, an Italian mother of Finnish origin, Soile Lautsi, whose sons had attended a state school in Abano Terme in Northern Italy, began complaining about crucifixes in classrooms. She considered that this was contrary to the principle of secularism by which she wished to bring up her children. After school officials refused to take down the crosses, Mrs. Lautsi took the case to the Veneto Regional Administrative Court 29 on the ground that it infringed upon the principle of secularism, relying on Articles 3 27 Corte di Cassazione, Sez.Unite Civili, decision 14 March 2011, No The often contradictory jurisprudence on the display of the crucifix in polling stations and tribunals is very rich. For a detailed analysis Patrizia Vipiana (2009, 131). 29 TAR Veneto 2004, cit. footnote 16. POLITIQUE EUROPÉENNE N

14 24 Francesca Astengo (principle of equality) and 19 (religious freedom) of the Italian Constitution and Article 9 of the ECHR, as well as the principle of the impartiality of public administration (Article 97 of the Constitution). After unsuccessfully referring the case to the Constitutional Court, the Administrative Court dismissed the applicant s complaint. It held that the crucifix was both the symbol of Italian identity, and the symbol of the principles of equality, liberty and tolerance. Mrs. Lautsi appealed to the Supreme Administrative Court, 30 which confirmed that the crucifix in state-school classrooms had to be seen as a symbol capable of reflecting the values which defined secularism in the state s present legal order. Mrs. Lautsi then brought the case to Strasbourg against the Italian Republic, under Article 34 of the ECHR. She argued that the crucifix in public Italian schools infringed on a) the right to education, guaranteed by Article 2 of Protocol No. 1: 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 right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions and b) the right to the freedom of thought, conscience and religion enshrined in Article 9 of the Convention: 1. Everyone 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 as are 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. The 2009 ECtHR decision and reactions On 3 November 2009, the five judges of the ECtHR (Chamber of the Court s second Section) unanimously concluded that crucifixes in Italian public schools violated the Convention as pupils of all ages would feel that they were being educated in a school environment bearing the stamp of a given religion. 30 Consiglio di Stato, decision 13 April 2006, No. 556.

15 Freedom of Religion Crucified? 25 Quoting the Karaduman v. Turkey decision, 31 the Court argued that in those contexts where the majority belongs to a particular religion, not all manifestations of the latter are acceptable since they may constitute a form of pressure on those who do not belong. As the crucifix can reasonably be interpreted as a religious symbol, its display may disturb the consciences of those who belong to other religions or for those who profess no religion. This risk is particularly high for pupils belonging to religious minorities. Since the purpose of public education is to develop in children the ability to think critically, in this context the state is obliged to comply with the principle of denominational neutrality. The Court did not see how the exposure of a symbol that can reasonably be associated with the religion of the majority could support the educational diversity that is essential to the preservation of a democratic society. On this premise, it concluded that the compulsory display of a symbol of a particular faith in public classrooms, restrict[ed] the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe. This unexpected ruling caused vivid opposite reactions in the Italian society, which, although being predominantly Roman Catholic 32, is sharply divided on this matter. While high level members of the clergy predictably expressed their disappointment (the Vatican did not take any official position due to its status of observer at the Council of Europe, not having ratified the Convention), numerous political leaders were either surprised or outraged by a ruling that many felt as overstepping into a typically domestic issue. Prime Minister Berlusconi immediately dismissed the decision as unacceptable for Italians, doubting the common sense of European institutions while President Napolitano more cautiously but firmly said that this particularly sensitive issue regarding the religious symbols needs to be dealt with individually by the states. 33 All the same, the Lautsi ruling generated a vast public debate both in public opinion and in academia. While the decision was welcomed by those (atheist 31 ECnHR 3 May 1993, case No. 8810/03 Karaduman v. Turkey. 32 In a 2006 survey 87.8% of Italians declared themselves as Catholic, with 36,8% practicing Catholics, and 30% attending church every Sunday, Rapporto Italia 2006, < 33 < POLITIQUE EUROPÉENNE N

16 26 Francesca Astengo or not) who had already expressed a certain concern vis à vis the presence of a religious symbol in public spaces and who had seen in the ECtHR a guarantor of religious minorities and protector of their interest (Mancini, 2010), intellectuals, including on the left of the political spectrum, defended the crucifix as an expression of the Italian identity. 34 The reaction of the political world was marked by an unusually bipartisan defence of the crucifix in public schools. While the position of conservative parties on the centre-right and the heirs of the Christian Democrats is not surprising, less obvious was the strenuous defence of the crucifix as an expression of Italian culture by left-wing parties including the most important one 35, the only explicit attack to the presence of the crucifix in public schools coming from the Party of the Communist Refoundation. Still, many Italians considered the Strasbourg ruling as an intolerable interference in a typically domestic matter. The analysis of the motivation for Lautsi focused on the suicidal approach of the Italian defence (Fiorillo, 2010 ; Weiler, 2010). Essentially, the government meant to defend a religious symbol by altering its spiritual meaning, based on two contradictory arguments. The first was the attempt to contextualize the crucifix as a cultural symbol representing historical heritage, national identity and constitutional values, including democracy and secularism. The second argument was that, rather than a legal obligation, the display of the crucifix was based on reasons of political opportunity, aimed at achieving a political compromise with Christian parties, which represented large sectors of the Italian population. Besides contradicting the previous emphasis on the separation between the religious and the public spheres, this argument was particularly harmful because by insisting on political reasons the government seemed to admit or even justify its lack of legitimacy. Moreover, the reference to Christian parties was quite confusing, as the political fragmentation of 34 Among others Cacciari, Cardini. See Michele Ainis (2011), < com> ; Marco Travaglio (2009), < it>. 35 Pierluigi Bersani, the secretary of the PD, the political party resulting from the dissolution of the Italian Communist Party said that an old tradition like the crucifix cannot be offensive to anybody, Corriere della Sera, 3 November 2009.

17 Freedom of Religion Crucified? 27 Catholics following the collapse of the only post-war Christian party (DC) only took place in the 1990s. 36 It is probably not a coincidence that in the same month of November 2009 the Italian Constitutional Court 37 looked once more at the relationship between the national juridical order and the ECHR, and more specifically at the margin of appreciation as a limit to Convention norms. In both cases, while supporting the highest level of guarantee of fundamental rights, regardless of the source of their protection (art.53 Nice Charter and art.53 ECHR), the Court confirmed the existence of a reserved space for state institutions the legislator, the constitutional and the ordinary judges which stand as a sort of national barrier to the ever-expanding role of ECHR norms on the national system. It specified that naturally it is up to the European Court to decide on the specific case and the specific fundamental right, while it is the duty of national authorities to avoid that the protection of some fundamental rights (.) develops in an unbalanced manner to the detriment of other rights equally protected by the Constitutional Charter and by the European Convention itself. 38 Some suggested that by insisting on the margin of appreciation the Italian Court responded to the renewed aggressiveness of the Strasbourg Court which seems to pay less attention than in the past to peculiarities which are typical of national identities, including constitutional ones, of member states (Pollicino, 2009). Given the enormous repercussions of the ruling, the Italian government appealed to the Grand Chamber (by virtue of Article 43 of the Convention). Other European governments including Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, and the Republic of San Marino were represented at the hearing as an official third party in support of Italy. Also quite unusually, various non governmental organizations and representatives of the civil society, including 33 members of the European Parliament submitted their observations as third parties. 36 For further criticism on the government s approach, specifically on the arbitrary superposition of the evangelical message and the universal value of democracy, see Fulvio Cortese (2010), < ; Andrea Guazzarotti (2010, 494). 37 Corte Costituzionale, decisions 26 November 2009 No. 311 and 4 December 2009 No Corte Costituzionale, decision No. 317/2009, cit. POLITIQUE EUROPÉENNE N

18 28 Francesca Astengo Although insisting on the fact that the crucifix is more than just a symbol of the church and has become a symbol of Italian and European tradition, the appeal focussed essentially on the crucial importance of the traditional margin of appreciation of states in particularly sensitive issues 39. The government stressed that the Convention does not prevent member states from having a state religion, or from showing a preference for a particular religion, or from providing pupils with more extensive religious teaching in relation to the dominant religion. It also pointed out that the right of parents who want crucifixes to be kept in classrooms (as was the case in Lautsi) should be taken into account. Removing crucifixes from classrooms would amount to abuse of a minority position and would be in contradiction with the state s duty to help individuals satisfy their religious needs. In its 2011 final judgment the Grand Chamber held, by 15 votes to two, that there had been no violation of Article 2 of Protocol No. 1 and that no separate issue arose under Article 9 of the Convention. More precisely, with regards to these two articles, the Court reiterated that in the area of education and teaching the former is in principle the lex specialis in relation to the latter. The complaint was therefore examined mainly from the standpoint of the right of education which, as the Court explained by recalling its own Folgerø decision 40, had to be read in the light, in particular, of freedom of religion. The reasoning of the Grand Chamber The Grand Chamber reasoning is articulated along a few fundamental lines. First, Europe s diversity in cultural and historical development must be taken into account. Second, the decision whether crucifixes should be present in state-school classrooms is a matter falling within the margin of appreciation of the respondent state. Third, the Court only intervenes in cases of indoctrination and proselytising which would conflict with the fundamental rights guaranteed by the Convention. Neither the way in which Italy defines secularism, nor the solutions adopted in its school system can be the object of the Court s attention. More specifically, 39 The appeal of the Italian government is available at < it>. 40 ECtHR, 29 June 2007, case No /02, Folgerø and Others v. Norway at 84.

19 Freedom of Religion Crucified? 29 with regards to the place of religion in the school curriculum, referring to its own case-law, 41 the Court confirms that this falls within the competence of the contracting states and the solutions may legitimately vary according to the country and the era. In particular, Article 2 of Protocol No. 1 does not prevent states from imparting through education, knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching in the school curriculum. What it requires, is for the state to ensure that curricula information is conveyed in an objective and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion. The Court takes into account the absence of a consensus on the question of the presence of religious symbols in state schools. 42 For example, while the presence of religious symbols in state schools is explicitly forbidden in states such as the former Yugoslav Republic of Macedonia, France (except in Alsace and the département of Moselle) and Georgia, it is only prescribed in Italy, Austria, certain German Länder and Swiss communes, and Poland. However, such symbols are found in the state schools of some member states where the question is not specifically regulated, such as Spain, Greece, Ireland, Malta, San Marino and Romania. Instead of insisting on domestic considerations, as was the case in 2009, the Grand Chamber provides a framework for the controversial question of the crucifix in public spaces in different European countries. It recalls that the issue has been brought before the supreme courts of a number of member states including Switzerland, 43 Germany, 44 Poland, 45 Romania 46 and Spain, 47 with a variety of different outcomes. In line with its own previous jurispru- 41 ECtHR, 7 December 1976, case No. 5095/71; 5920/72; 5926/72, Kjeldsen, Busk Madsen and Pedersen v. Denmark, ECtHR Folgerø, cit. 84. ECtHR 9 October 2007, case No. 1448/04, Hasan and Eylem Zengin v. Turkey, 51 and See Emmanuelle Bribosia, Isabelle Chopin et Isabelle Rorive (2004) ; Isabelle Rorive (2009) ; Susanna Mancini (2009) ; François Foret (2009). 43 Federal Court of Switzerland 26 September 1990, ATF 116 1a BVerfGE 93,1, 16 May Constitutional Court of Poland 20 April 1993, case No. U 12/ Supreme Court of Romania 11 June 2008, case No High Court of Justice of Castile and Leon 14 December 2009, case No POLITIQUE EUROPÉENNE N

20 30 Francesca Astengo dence 48 the Court argues that the decision of whether or not to perpetuate a tradition (the display of the crucifix) falls in principle within the margin of appreciation of the respondent state. 49 The logic of the margin of appreciation, conceived to reconcile universalism of standards and subsidiarity, is that in areas where rights are less homogeneously structured at the European level, contracting states enjoy certain discretion, as long as the rights of the Convention are respected. The weaker the consensus, the wider the margin, 50 and the area of religious freedom is traditionally one where the states are granted a wide margin. The downside of this is, however, that in some cases 51 the application of the doctrine of the margin of appreciation resulted in the protection of the collective religious and cultural freedom of the majority to the detriment of the rights of those belonging to religious and ideological minorities. 52 Following this doctrine, in order to protect religious or cultural sensitivities of the majority of the population, the Court has often legitimised restrictions to certain fundamental rights (for example freedom of speech) on the part of the state. In Otto Preminger, 53 a case concerning the seizure, by public authorities, of a movie considered to be an abusive attack on the Roman catholic religion according to the conception of the Tyrolean Public, the Court affirmed that it could not disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority on Tyroleans. In seizing the film, the Austrian authorities acted to ensure religious peace in the region. [and did not] overstep their margin of appreciation. ( 36). On this premise, it affirmed that freedom of expression relating to religious beliefs and opinions may include an obligation to avoid as far as possible expressions that are gratuitously offensive to others ( 49). 48 See for example ECtHR 29 June 2004, case No /98, Leyla Sahin v. Turkey; ECtHR 28 Nov. 1984, case No. 8777/79, Rasmussen v. Denmark. 49 Interestingly enough mentioned 28 times. Critical on this aspect and other parts of the judgment in B. Conforti (2011), Crocifisso nelle scuole, una sentenza che lascia perplessi, Affarinternazionali.it 50 On the virtues and shortcomings of this doctrine John L. Murray (2008) ; Eyal Benvenisti (1999) ; Luzius Wildhaber (2002) ; George Letsas (2006). 51 ECtHR 24 May 1988, case No /84 Müller and Others v. Switzerland. 52 Susanna Mancini (2010), cit p. 22 refers to the ultra-cautious position of traditional deference to states in the sphere of religious freedom. 53 ECtHR 20 September 1994, case No /87, Otto Preminger Institute v. Austria.

21 Freedom of Religion Crucified? 31 ECtHR judges have been traditionally cautious in applying art.9 and art. 2 of the 1952 additional protocol, aware of the fact that the latter was intentionally annexed and not incorporated in the text of the Convention, precisely to signify a larger flexibility towards different schooling orders. Generally speaking, jurisprudence has been favourable to the states as the ECtHR relied on the state s margin of appreciation and the limit of subsidiarity. Even in the first and famous case in which it condemned a state, Kokkinakis v Greece 54, the Court did not censure the Greek constitutional principle or legislation, but only affirmed that, with regard to this specific case concerning the activity of Jehovah witnesses and considering the principle of proportionality, there had been an improper application of the prohibition to proselytise. In various previous rulings, the Court had excluded its competence in judging national choices with regard to the historical role of cultural traditions within the school environment. Both in cases in which a violation of the right to education and religious freedom was found (Folgero v. Norway 55, Zengim v. Turkey 56 ) or rejected (Sahin v. Turkey 57, Dogru v. France 58 ) the Court showed an effort to cautiously balance the fundamental freedoms guaranteed under the Convention on one side, and national constitutional solutions on the other. In Lautsi the Grand Chamber does not embrace the Italian government s cultural argument and considers instead the crucifix as a religious symbol. However, its cultural or religious meaning is not decisive in this specific case, as there is no evidence that the display of a religious symbol on classroom walls may have an influence on pupils ( 66). It admits that by prescribing the presence of crucifixes in state-school classrooms a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity the regulations confer on the country s majority religion preponderant visibility in the school environment. However, that is not in itself sufficient to denote a process of indoctrination on the respondent State s part and establish a breach of the requirements of Article 2 of Protocol No. 1 ( 71). 54 ECtHR 25 May 1993, case No /88, Kokkinakis v Greece. 55 ECtHR, Folgero v. Norway, cit. 56 ECtHR Zengim v. Turkey, cit. 57 ECtHR 29 June 2004, case No /98, Sahin v. Turkey. 58 ECtHR 4 December 2008, case No /05, Dogru v. France. POLITIQUE EUROPÉENNE N