magnify
Home EJIL Analysis A Comment on Lautsi

A Comment on Lautsi

Published on March 19, 2011        Author: 

Dr Lorenzo Zucca is Reader in Jurisprudence at the King’s College London School of Law.

Jesus can be left hanging:  A Pontius-Pilate-like Strasbourg Court decided not to remove him from the cross – pardon, from the wall of Italian classrooms.  In more technical jargon, yesterday the Grand Chamber of the ECHR reversed the decision of the second section in the Lautsi case  and concluded that the presence of the crucifix is not incompatible with the right of parents to have their children educated compatibly with their own philosophical convictions (see Joseph Weiler’s comment on previous decision here).

The decision is a defeat for everyone, not just for the appellant. It is a defeat because the Court does not provide a much needed reflection on the question of the presence of religion in the public sphere. The quality of its reasoning is very poor and unsatisfactory, as it has been noticed times and times again, even when the Lautsi decision went the other way. The Grand Chamber does not articulate its reasons, its assessment is short and brutish and only consists of 20 short paragraphs where the courts simply hides itself behind the screen of the margin of appreciation, a rather laconic euphemism for deference to the national authorities. True, deference serves the purpose of legitimizing the international court vis-à-vis ferocious national criticism which was very vocal recently in the UK parliament. But what the ECtHR does not seem to understand is that its legitimacy as an international court of human rights also crucially depends on the quality of its reasoning, that should be regarded as exemplar in articulation and depth. Without those qualities, any decision is a defeat for Justice even if it may be a Pyrrhic victory for institutional respectability.

The Court frames the problem in the narrowest possible terms from the beginning: the issue is only about the compatibility of the crucifix with the right of education and freedom of religion. It controversially holds that the decision does not have to do with the compatibility of the crucifix with the principle of secularism (para 57). I am not against judicial minimalism in so far that I believe that the Court does not have to pronounce itself on every possible issue connected with one case. But it is impossible to detach the protection of freedom of and from religion from the idea of the secular state as developed in our modern age. Without secularism, freedom of religion would only be based on the whim of the state who would decide arbitrarily whether or not to tolerate this or that religious group as it is the case in the Toleration Act 1689 which prohibits the practice of Catholicism in England.

The way of introducing the problem is all the more doubtful since the Court adds that secularism is cogent, serious and coherent enough to qualify as a matter of philosophical conviction that parents can invoke as part of their right to have their children educated compatibly with their convictions (Art 2, Protocol 1).  Secularism is therefore demoted from an overarching principle of the constitutional state to one possible philosophical conviction amongst others. This suggestion is deeply problematic and denotes well the spirit of uncertainty within which we live. Secularism is often understood as an absence: the effacing of religion from the public sphere. But it truly should be understood as an eminently positive stance which made the republican values of liberty, equality and solidarity possible, as the Consiglio di Stato points out eloquently in the excerpt cited by the very ECHR (para 16—To this extent at least I am happy that Italian institutions, and not Strasbourg, will have to deal with the problem).

It is true that secularism can be understood in many different ways: it is a constitutional doctrine, a philosophical stance, a worldview, and ideology, and even an extreme stance in the hands of scientist who sees religion as the arch-enemy. In a legal context, however, the appropriate understanding of secularism is as a constitutional doctrine which attempts to protects diversity of thought and belief by removing itself from any religious or philosophical conviction. Thus, the constitutional understanding of secularism must be distinguished at any price from secularism as a personal philosophical conviction, contrary to what the Court claims here.  An individual, like Mrs Lautsi, is free to believe that any religion is detrimental and incompatible with her own convictions. The state, on the other hand, should refrain from taking such a conviction since it is committed to protect freedom of religion.

The Court frames the problem incorrectly, pitting the interest of the state in protecting religious symbols against the philosophical conviction of the parents. The Court goes on to say that the philosophical convictions of the parents must be respected by the State. It is noted by the court here that respect requires a more open attitude than simply acknowledgment. Legally, this means that the State has a positive obligation to take into account parent’s convictions (para 61). Nevertheless, the Court manages to take away with one hand what it gives with the other in the very same paragraph, and in a feast of poor logic holds that this respect will vary from case to case. In other words, the Court says that respect is a stringent moral and legal requirement, but also holds that it is not that stringent as it depends on the context and European consensus. This  display of flawed logic is the basis upon which the Court asserts the existence of a margin of appreciation on the part of individual states.

In its 20 short paragraphs of assessment, the Court mentions the margin of appreciation 8 times (it is mentioned 27 times in the whole decision—this is to give a sense of importance of this notion).  As just mentioned, the Court grounds the margin of appreciation in the notion of respect. Surely, to show respect to parents’ convictions involves a great deal of effort on the part of the State! Not at all, says the Court, since respect depends on whether there is consensus on certain practices at the European level. This is like saying that I respect everyone’s opinion, but I am happy to silence those thoughts that are not approved by the majority (consensus). Or even worse for the Court’s fate: I respect the ECHR, but I am prepared to disregard it completely if there is no consensus on its authority. Those are the kind of problems that the Court entered into by engaging (poorly!) with the notion of respect.

According to the Court respect is a matter of consensus; as a consequence of a lack thereof states have a wide margin of appreciation. But then the Court comes full circle and adds lthat the established margin of appreciation is not challenged by contrary evidence on the basis of consensus (para 70). Well that is surprising! If a wide margin of appreciation is based on lack of consensus, it should not come as a surprise that there is no consensus on the prohibition of religious symbols…Perhaps it is even a tautology! This is the gist of the reasoning of the Court and I hope that you can see that it is not a very strong position.

Not surprisingly, Strasbourg-Pilate concludes that the State is free to decide whether or not to have religious symbols in state schools. As a matter of politeness, the Court still notices that even a wide margin of appreciation has its limits under the Court’s supervision. But once again the reasoning is virtually nonexistent. Firstly, the Court acknowledges that the crucifix confers ‘on the country’s majority religion preponderant visibility in the school environment.’ But this, the court states without argument, ‘ 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.’ In clearer words, the state can place religious symbols wherever it wants and this will never amounts to indoctrination.

This idea is confirmed shortly after when the Court affirms that ‘a crucifix on the wall is essentially a passive symbol.’ This statement is near-comical: what does it mean for a symbol to be ‘passive’? A symbol is a symbol and by tautological definition it only has symbolic value.  The idea of a passive symbol makes no sense, because it cannot be opposed to an active symbol. What would that be? A crucifix that moves and hypnotizes children into believing in God?? A symbol can be neither active nor passive, but it can nevertheless have a great impact on conscience and belief. The Court does not accept this, since it believes instead that other activities such as ‘didactic speech or participation in religious activities’ have much greater impact. On this basis, the Court distinguishes between Dahlab and Lautsi. In  Dahlab the Court upheld a ban on teachers wearing headscarves—as if someone who wears a scarf will by definition engage in indoctrination, whereas the crucifix is just a passive symbol that does not interfere with anybody’s thinking.

The Court’s last point is also totally off the mark, when it says that in any case parents retain their full rights as educators of their children (para 75). However, this is not at all the issue of the case. Mrs Lautsi is interested in the presence of the crucifix in the PUBLIC sphere and its impact on her children in that context. She cannot possibly care less about her ability to educate her children in private: it goes without saying that she will do whatever it takes to educate them according to her principles. One almost wishes that the Court did not say anything on this point, but then the reasoning would have been even shorter.

Judge Bonello joined the feast with a rant that reads like an advertisement on why nation states should opt out of the Court. In a nutshell, he claims that the ECHR should leave untouched national traditions. Christianity has promoted education more than anyone else. The secular state has nothing to teach us in matters of public education and should therefore bow to those historical roots. Moreover, he adds that secularism, pluralism and religious tolerance have nothing to do with the Convention, which is only concerned with freedom of religion.This is not a tenable position: freedom of and from religion is a byproduct of the historical struggle between the Church and the state. I am tempted to say that even a child would know this, but I am worried that children will soon be educated otherwise. Judge Bonello’s rant reaches its apex when he bemoans the Court’s protection  from Turkish censorship of  Apolinnaire’s Les onze milles verges (‘a  smear of transcedental smut’). Bonello, the lyrical poet, points out that  Europe would therefore be a fool not to protect the crucifix, which is ‘a timeless symbol of redemption through universal love.’

The only redeeming part of the decision is Judge Malinverni’s dissenting position who, thank God!, has difficulty following the argument that leads to a wide margin of appreciation. Malinverni rightly points out that the Court relies too heavily on the notion of consensus to deduce a wide margin of appreciation. However, the doctrine of margin of appreciation makes sense only if understood as a complex set of factors: ‘the right in issue, the seriousness of the infringement, the existence of a European consensus, etc.’ To juggle them all requires careful analysis and a well crafted reasoning. None of these are displayed in the Court’s lamentable decision.

Print Friendly
 

19 Responses

  1. Hart

    The Court was basically bullied into this ridiculous judgment, with the record number of intervening states (mostly Eastern European). If after Hirsh it had decided otherwise here it would practically lose any credibility in half of Europe. It doesn’t justify it though.

  2. Colm O'Cinneide

    Lorenzo,

    I agree that the Court’s decision is very poorly reasoned and Judge Bonello’s concurrence is disgraceful.

    However, I think a clear analytical distinction can be made between the individual human right of freedom of religion and the constitutional principle of the secular state, even though they are inter-related. State endorsement of a particular religious faith will at times violate freedom of belief and religion by placing tangible constraints on individuals who subscribe to other faiths or none. However, not every state symbolic endorsement of a religion will have such an impact – for example, I think it is very difficult to argue that established status of the Church of England in the UK has any sort of real or meaningful impact on religious freedom.

    The question for the Strasbourg Court is to protect the individual right of freedom of religion by deciding when this line has been crossed, and the admittedly tautologous concept of a ‘passive symbol’ might be quite useful as a classificatory device to identify endorsements that can’t be said to limit religious freedom in any meaningful sort of way. (I don’t know enough about the Italian context to decide whether the crucifix rule crosses the line.)

    However, the Court should not be running around trying to enforce state secularism as a constitutional principle – that should be left to national courts and legislatures. The judgment of the second section was seriously flawed in how it seemed to automatically equate freedom of religion with the principle of the secular state, and a similar fuzziness in this area has disfigured the Court’s decisions in Dahlab and other cases involving religious symbols.

    Colm

    Colm O’Cinneide
    Reader in Law
    UCL

  3. ER

    The definition of secularism you posit here — “a constitutional doctrine which attempts to protects diversity of thought and belief by removing itself from any religious or philosophical conviction” – doesn’t make a lot of sense. Presumably you mean that it is a constitutional doctrine that requires the government — which must be the missing subject in the clause — to eschew any religious or philosophical preferences. If that is what you mean, however, it is impossible. Modern governments state and act on philosophical preferences as a matter of course. Most basic human rights principles are philosophical statements or rooted directly in philosophical ideas. Foundational documents such as the US Declaration of Independence, the Declaration of the Rights of Man, etc. state (differing) philosophies. With respect to religious preferences, it is hard to say that European states like England or Denmark have religious or theocratic governments, even though they clearly have religious preferences. Do you really think that they are not secular? In reality they are fundamentally secular governments that nevertheless have some religious elements — the key is that the process of official decision-making (incl. adjudication) is not religious but secular. In the European context, Prof. Weiler’s approach to the issue of secularism makes much more sense than imposing an American-style one-size-fits-all approach to secularism, which your post seems to imply is necessary.

  4. Michal Klaczynski

    Great comment. Thanks.

  5. Greetings from Poland

    Although the final result is correct, the Grand Chamber judgment in Lautsi has one significant flaw in its reasoning. Basically, it has been rightly pointed out by Judge Power in her powerful (and, indeed, excellent) concurring opinion.

    “Secularism” has several definitions. The first is the broadest one: it is the fundamental principle of separation of the temporal realm from the spiritual one, as one of the distinctive features of the Western civilisation (as opposed to, e.g., the world of Islam). This was obviously not at stake in the present case, since nobody ever questioned this axiom.

    The second meaning of “secularism” is narrower: as a principle of domestic constitutional law of many countries. A good and otherwise respectable principle… However, pace Mrs Lautsi and her supporters, this principle is enshrined neither in Article 9 nor in any other Article of the Convention. And – no, the legal doctrine of secularism is NOT a prerequisite to respect for religious liberty. Take Malta, for example: it is not a secular state (Article 2(2) of the Maltese Constitution expressly confers on the Catholic Church “the duty and the right to teach which principles are right and which are wrong”). At the same time, it would be ludicrous to say that Malta is not a democratic State or that it does not respect religious freedom.

    The third and final meaning of “secularism” is the narrowest: it is “secularism” as a more advanced and modern euphemism for “militant atheism” and “anti-clericalism”. And, as Judge Power rightly emphasised in her separate opinion, it would be utterly false to assert that this “secularism” is a kind of “default option” from which all other philosophical and/or religious teachings are mere exceptions. This should have been put in the reasoning of the Grand Chamber.

    As far as Judge Bonello’s concurring opinion is concerned, I found it excellent as well. This judge obviously has a good sense of humour and common sense. These two things are something cultural Leftists have irremediably lost, and something that always makes them go off the deep end. :)))

  6. lorenzo zucca

    Thanks everyone for the comments! You all make very good points, but nobody commented on the central notion of ‘respect’ which seems to me to be the great problem here. How can you truly respect someone else if you don’t make a gesture towards them? It seems like a totally empty notion in the hands of the court; the problem is that it explicitly forms the basis for margin of appreciation in this case. Morally speaking, respect requires a very accepting attitude towards minority. The legal interpretation of the Court seems to reduce it to vox populi. I think we have to have more respect for respect!!!

    One important point: I am not disappointed with the actual conclusion. I agree with Colm: it is better for the national states to decide on their best form of secularism. A great technical problem in Italy is that the crucifix is required by a very minor administrative decree. It would be so much better if parliament deliberated on this issue and promoted a national debate (sadly the Italian government is busy with other issues). As I point out in a short piece forthcoming with I.CON, the best solution for me would be to keep crucifixes, while giving to minorities the opportunity to challenge that presence if it is perceived as too oppressive (a similar solution exists in Bavaria).

    As for the notion of constitutional secularism, that is secularism as a constitutional approach (rather than a philosophical, or ideological one) I can refer you to the exchange between Judge Sajo and myself also on I-CON. The core idea is that constitutional secularism in our present day should not be concerned with religion only and with the Church and State problem more particularly. Secularism should be conceived as a general constitutional doctrine which developed throughout the West and is now about protecting diversity of views. Secularism can be, and should be, regarded as somethings that unifies us all, religious and non-religious people– citizens and immigrants, and provides a framework within which everyone’s world view is accepted insofar that it does not impose too big burdens on other people.

    Regarding Irony and Judge Bonello. I loved his style, but I did not like the reasoning. In particular the comparison between the Apollinaire case and the crucifix at the end has no analytical value whatsoever. The former is about free speech and the prohibition of censorship of a book. The latter is about the power of the state to impose religious symbols in public places. I don’t see any connection here.

  7. ==The idea of a passive symbol makes no sense, because it cannot be opposed to an active symbol. What would that be? A crucifix that moves and hypnotizes children into believing in God?==

    Please don’t give them ideas.

  8. Leart

    As for Bonello, anyone who seriously uses “Armageddon” and “rivers of blood” in his opinion, as he did in Bosnian voting case, cannot really be taken seriously

  9. ER

    Lorenzo — Query what you thought of Judge Power’s opinion.

    With respect to “respect,” it might be helpful to think about the idea of respectful disagreement. In a pluralistic society issues touching on religion will always involve disagreement. The first instinct of many (esp. politicians) is to wish these sorts of disagreements away as inconvenient or awkward, and to a certain extent exile them from public discourse. But the state does not really respect the positions of different citizens who disagree on fundamental issues by taking measures to pretend that the disagreements do not exist. Nor, as Prof. Weiler pointed out in his argument to the Grand Chamber (and one of the commenters has already noted), does it respect this sort of profound disagreement to treat the absence of religious references or symbols as a neutral, default, or original position.

    What to do? The state has to take some position (in this case, a binary choice between crucifix or no crucifix) while demonstrating respect to all sides. How does it demonstrate respect for dissenting views? By giving dissenters a robust right of conscience, either to manifest their beliefs in a way that would normally not be allowed (e.g. Muslim headscarves or Sikh turbans), or to opt out from participating in some activity that it would violate their consciences to participate in (e.g. military service, swearing allegiance to the State).

    Here Lautsi was seeking an opt out on conscience grounds, but not from participating in an activity. Instead she wanted to be relieved from having her children see a symbol she found offensive (Judge Power’s opinion talks about this). The protection of conscience cannot go so far because it could only ever work for one side of any particular debate.

    Putting it in the rubric of respect, States cannot demonstrate respect for dissenting beliefs by removing all symbols or statements the dissenters disagree with. Not only would that disrespect those who hold different (and perhaps also dissenting) opinions; it also demonstrates disrespect to Lautsi and her children by assuming that they cannot engage with or withstand beliefs they disagree with. Somehow they are less competent than other citizens to deal with disagreement. Since the school does not force Lautsi’s children to participate in any activity with respect to the crucifix except to be aware that it is there, (the most charitable interpretation of the Court’s language about “passive symbols”) there is nothing to opt out from. If the State also said something like, “Atheists are less intelligent than believers” that would be a form of disrespect. But displaying a symbol that one must do no more than witness is not disrespect.

  10. Lorenzo Zucca

    ER– thanks for your further thoughts! they give me an opportunity to say something about Power’s concurring opinion. I do like her overall approach, in particular her conclusion concerning a truly pluralist learning environment where people (pupils) engage in a genuine exchange of views. It may be added at this point that in order to be able to do that, pupils must have a sufficient intellectual maturity. This may apply to older students, but not really to the youngest pupils. That said, it is much better to conceive of an educational environment where pupils are exposed to difference of all types, rather than having schools with an homogeneous presence.

    Where I sharply disagree with Judge Powell is on her notion of secularism. She claims that secularism is an ‘ideology among others.’ This is inaccurate at best, and deeply misleading at worst. It is inaccurate because secularism is a multifaceted notion: it can be an ideology, but it can also be a philosophy and a legal/constitutional approach. Take French laicite’ for example: it is fairly commonplace to distinguish between ideological laicite and legal laicite (see for instance O. Roy, Secularism Confronts Islam, Columbia UP, 2007). Legal laicite is the drawing of boundaries between Church and State– something that most Western States accept de facto or de jure. Ideological laicite is the active rebuking and denunciation of religion in the name of allegedly shared and exclusively secular values. So you can see that Secularism is not (or at least not only) an ideology, although it may take an ideological shape.

    As I pointed out before, the notion of secularism I prefer is one that offers a new model for the relation between State and Religion. Secularism should not be understood anymore as a model for Church and State relations; it should instead be understood as a model for the democratic state on how to deal with diversity. Within this model, the state should not favor any religious view over other religious views. It also should refrain from favoring non-religious views over religious ones. In this sense alone, the State can be neutral as it refuses to favor any given world view. In spirit, this is what Judge Powell wishes as well, but she rules out too quickly secularism as an ideology. I don’t approve of secularism as an ideology myself, but there is an understanding of secularism that binds us all together despite our great differences (for a similar understanding of secularism– see Charles Taylor, The Meaning of Secularism in the Hedgehog Review).

    The upshot of Powell’s critique of secularism as an ideology is her claim that the state should pursue a pluralist rather than a secularist agenda. This statement displays a double mistake: firstly, secularism and pluralism are deeply intertwined: It is only when modern European states free themselves from the grip of one religion that they become pluralists (e.g. American pilgrims fled Europe because of religious persecution– as a result the authority of the American Constitution depends on the separation between Church and State–this is the basis of American pluralism– and it certainly is not incompatible with the presence of religion in the society). Secondly, Italy (my country) has always been remarkably homogeneous because the vast majority of people is Catholic (it used to be more than 95%). Religion in this case militates in favor of homogeneity and against pluralism. So if one is serious about pluralism (as Judge Powell claims to be) than one has to be a little more critical of the de facto supremacy of one majority religion.

    What does it mean in practice? this question brings me to your point about respectful disagreement. People in Italy will keep on disagreeing whether the crucifix is permissible or not. You say that the state has a binary choice between crucifix and no-crucifix and it is on this point that we part. There is at least a third position that strikes a middle ground between the two. A position that shows respect for dissenting voices, while maintaining the power of the State to elect its own symbols. Bavaria already adopted this position some time ago and this involves the maintaining of the crucifix in classroom provided that parents have a veto power if they so wish. In my mind, parents should be able to raise the issue for serious consideration and have the school engage in a debate as to whether or not the symbol should be kept.

    This third way type of solution pays respect to minority views while preserving the authority of the state and the importance of local traditions. This understanding of respect is compatible with what the Grand Chamber says at para. 61: “The word respect in Article 2 means more than “acknowledge” or “take into account” [...] it implies some positive obligation on the part of the State.

    There we are — I am not claiming that because Mrs Lautsi does not approve of the crucifix, all classes should remove it hic et nunc. It has been there for a long time and it is desirable to think about the symbol hard and long. It is only by engaging in a serious discussion about the pros and cons of the symbol that we pay respect to dissenting views. On this point, Judge Powell is wrong to say that Mrs Lautsi only expresses a subjective perception. She expresses one valid argument against a religious symbol and in favor of one possible understanding of a pluralist school.

  11. ER

    Lorenzo — thank you for the thorough and thought-provoking reply. A few questions regarding the Bavarian “third way” (presumably this is not a reference to British politics!) you describe:

    1. Do the parents of the students in each classroom vote? Or is it on the school level? How has it worked in practice?

    2. Are you suggesting this as a policy, or that the Convention, properly interpreted, should require the Bavarian third way?

    3. If this approach is required under the Convention, would it extend to states like France where students might ask to have a crucifix (or an Islamic symbol) placed on their currently empty classroom walls?

    4. Are you essentially advocating an application of the principle of subsidiarity — i.e. that the Court might, in enforcing the Convention, require States to devolve decision-making authority regarding these questions to the school or classroom level?

    As an aside, I read Judge Power’s reference to “subjective perception” to refer to Lautsi’s taking offence, not to her advocacy of secularism as a principle. There is a difference between advocating for a particular philosophy or worldview shared by others and having an personal emotional/psychological reaction to a symbol that represents a different worldview. The Second Section said that the latter could give rise to a claim under the Convention; I think Judge Power’s position would be that that would be unworkable in practice. Cf. the Danish cartoon controversy. I don’t think that a rule against psychological-harm-claims would contradict what you are saying about the role of secularism as a philosophical worldview/tradition within Europe.

  12. Lorenzo Zucca

    ER– Thanks again, I really appreciate your probing questions!

    1. The Bavarian solution is mentioned in the Lautsi decision at para 28. First the German Constitutional Court ruled the Crucifix as difficult to reconcile with the principle of neutrality. Then, the Bavarian Parliament issued an act maintaining crucifixes, while enabling parents to cite their religious or secular convictions in order to challenge that presence. The result can vary from school to school. Has it worked? as far as I know, people still complain about crucifixes, but they feel more empowered as they have an official way of expressing their position.

    Ideally, disagreement about the crucifix could be turned into an instance of mutual knowledge between people of different faiths as well as between religious and non-religious people.

    2. I do not claim that the Bavarian solution should become the default position in Europe. I rather see it as a good policy that the Italian State could adopt were it to rethink the issue at the legislative level.

    Here I need to add two more points.

    a) the act that requires the presence of crucifixes has a very weak legal basis (a lowly administrative act). It would be so much better if the issue was dealt with by legislation as it is a matter of principle that requires wide debate in the country and wide consensus in parliament. Moreover, a legislative basis would enable the Constitutional Court to express its opinion on the compatibility of the solution with the Constitution (the Constitutional Court has no power to review administrative acts).

    b) To go back to Colm’s first point: I certainly do not advocate a default secular position. Only the ECHR could have allowed margin of appreciation while at the same time putting more pressure on Italy to come up with a mechanism of exemption.

    3. As I just said, every national state is allowed a margin of freedom to elect the best brand of secularism. (Though, France should revise its own position regarding the wearing of personal religious symbols: a blanket ban is incompatible with the Republican mission of French schools which is meant to turn children into fully participating citizens. Such a ban prevents some children from going through that process).

    4. Yes that is correct! Although, as you can see from previous points the aim is to involve everyone in this debate that is very timely. That said, ultimately decision would lie at the local level. I can say with confidence that schools in small alpine villages would radically differ from schools in big cities etc, etc… i should also point out that the reality in the classroom is different from what one may imagine. I don’t remember ever seeing a crucifix in my classrooms (many teachers put it away in a drawer and some schools simply forget to provide them).

    Re. your aside, the Grand Chamber and the Judge Power are indeed trying to say that Mrs Lautsi’s perception of lack of respect concerns her own subjective rights and boils down to her taking offence because of the symbol. It is also true that it is very hard to bring evidence as to the emotional impact of the presence of the crucifix. (if my own subconscious examination counts for anything, I can say that I don’t remember feeling any pressure of that kind in the classroom).
    The Grand Chamber and Judge Power have a point against the attempt of the second section to use emotional impact as a ground for the violation of Mrs Lautsi’s right.

    Having said that, I think that the Grand Chamber and Judge Power distorts the issue by referring to respect for her own rights and her subjective perception. Mrs Lautsi (as Roe in the US abortion saga) stands for more than her own rights and her subjective perception. She is representing a minority view that should be given due respect. The problem is not with emotional impact but with a complicated issue of principle: can we square the Italian constitutional principle of laicite with the presence of crucifix in the classroom?

    Strasbourg should have asked Italy to do an examination of conscience. Instead, it simply absolved Italy for its sin of hubris.

  13. [...] a lot has been written about them already. This grants me the benefit of being able to refer to Lorenzo Zucca’s post on EJIL:Talk! and to Nicolas Hervieu’s post on Combats pour les droits de [...]

  14. John

    The courts various decisions on religious symbols seems perfectly consistent with the following:
    If white people use a symbol then it’s ok. If it’s a symbol white people don’t use then it is forbidden.

    The legal arguments are just a way of veiling the true reasons for the various rulings.

    It’s all rather sad if you ask me.

  15. Athanasios Anagnostopoulos

    Nice point, John. ;-)

    @all, excellent discussion. From my part, if I may push the secularism conception to its limits:

    If secularism equals strict state neutrality, which sounds fine by the way, how are flag crosses to be explained? Doesn’t a crossed-flag bearing state choose religion over non-religion, Christianity over non-Christianity?

    “A flag cross is a national emblem, not a religious symbol” does not count as a (valid) answer!

  16. [...] Antoine Buyse auf dem ECHR-Blog applaudiert, Lorenzo Zucca im EJIL-Talk Blog ist dagegen äußerst kritsich (“A Pontius-Pilatus-like Strasbourg [...]