A Victory for Religious Freedom

by Gerald Russello - April 4, 2011

Reprinted with permission.

Religious belief, and Christianity in particular, has found an unlikely ally in the debate over the proper public place of Europe's Christian heritage: the Grand Chamber of the European Court of Human Rights.

In a closely watched decision, the Grand Chamber overruled a 2009 lower court decision, Lautsi v. Italy, and determined that public schools in Italy could continue to display crucifixes in the halls or classrooms.

In the case, a parent had objected on behalf of her two minor children that the crucifixes displayed in the Italian public school the children attended violated their religious liberty and right to an education. The Italian courts generally held that the crucifixes could remain, but the lower European human rights court overruled them. The lower court acknowledged that Catholicism has long been the majority religion in Italy and that crucifixes remained in the classroom in light of compromises that arose through the political process. Further, the court did not find any overt discrimination or attempt to coerce the beliefs or action of non-Catholic or non-believing students.

Yet the lower court nevertheless went on to find that the crucifixes were incompatible with the notion of human rights as set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Crucifixes in public classrooms, it found, infringed the rights of religious freedom because they were supposedly incompatible with the "State's duty to respect neutrality in the exercise of public authority, particularly in the field of education." The court further opined that the presence of crucifixes in public classrooms was somehow incompatible with fostering "the habit of critical thought" among students.

The decision caused a firestorm of protest throughout Europe, and Italy appealed. The decision seemed to run roughshod over the continent's Christian traditions and the right of the individual European nations to express that tradition publicly. In its appeal, Italy was joined by more than a dozen European nations. The Grand Chamber reversed the lower court's decision.

The Grand Chamber found that the mere presence of the crucifixes was not an indoctrination of religion, nor did it require the assent of the students to Christianity in any way. Rather, acknowledging that the crucifix is a religious symbol, the court nonetheless found that the individual European states could decide for themselves how to display such symbols. "The Court takes the view that whether or not to perpetuate a tradition" fell within the discretion of the individual states.

Moreover, the Grand Chamber rejected the notion – common among judicial elites here – that the mere presence of religious symbols in a public place psychologically intimidates those of other faiths. Further, the Grand Chamber ruled that the parents' "subjective perception" that the children's right to an education was being violated was not itself enough to constitute a violation.

Roger Kiska, an attorney with the Alliance Defense Fund which represented 33 members of the European Parliament from 13 countries in opposition to the lower court, described the case as follows:

The European Court of Human Rights shouldn't overstep its authority and force a member nation to abandon traditions and beliefs that it has a sovereign right to protect if it so chooses. The Grand Chamber did the right thing here in choosing to reverse the lower chamber's flawed decision. An outside judicial body demanding that a nation must forsake and discontinue how it handles millennia-old traditions is a step towards an authoritarian system that no country anywhere on the globe should welcome.

Joseph Weiler, who argued the case on behalf of Italy (and who is himself Jewish), described the larger possible effects of the decision.

As regards the classroom, it falls in equal measure on those States who forbid any religious symbol on their classroom walls, and those who require it, to ensure that the prohibition or requirement are not misunderstood by the young members of our society. The prohibition of religious symbols should not be understood as a denigration of religion or religious people and the requirement of a religious symbol such as the cross, should not be understood as denigrating other religions or those who do not profess a religious faith at all. For the most part, this spirit is a contemporary European reality, Italy being a shining example.

In other words, the decision of the Grand Camber was not, or not only, a decision for crucifixes in Italy. Rather, the decision was a defense of the idea of religious liberty itself and the right of nations to express the religious dimensions of their history and public life, so long as other religions are not also prohibited from doing so.

The decision was also a victory for a more nuanced and truly neutral view of secularism. The lower court decision was widely interpreted to mean that a certain kind of secularism was the only appropriate path for Europe. That secularism, far from being neutral among religions, in fact considered religious belief as such hostile to democracy. It imposed instead a substantive set of beliefs of its own. The Grand Chamber, relying on some earlier Italian court decisions, rejected that view. Instead, it found that the public display of religious symbols was not inconsistent with secularism, which was understood not to mean indifference to religion (as religious freedom is often interpreted in the United States), but rather an openness and acceptance of all religious beliefs. Echoing a theme present in the writings of Pope Benedict XVI, recognition of the historical centrality of Christianity to Europe is not inconsistent with a proper understanding of secularism.

The Lautsi decision charts an understanding of religious liberty that may ultimately allow a stronger foundation for relations between religious bodies and the larger polity, and also permit Christianity a more secure public presence. The European nations must resist claiming that Christian religious symbols are "symbolic" only, with no religious meaning, as some did in this case. Rather, this decision should be an invitation to Christians to explain the deep relationship that exists between their faith and true political and religious freedom.

Gerald J. Russello is a fellow of the Chesterton Institute at Seton Hall University. He is working on a book on Christopher Dawson.