Hailed by the Vatican as “historic” a decision by the Grand Chamber (highest body) of the European Court of Human Rights (ECtHR) has found that displaying crucifixes in Italian public school classrooms is not a violation of a secular education or freedom of religion, thought and conscience (Articles 2 and 9 of the European Convention on Human Rights). The decision was by a majority of 15 to 2 and helps clarify the relationship under human rights law between modern secular states and their historic religious identities.
The case was instigated in Italy in 2002 by parents who argued that their children should not be exposed to religious symbols in public school classrooms. They claimed that the school regulations to have a crucifix hanging in every classroom was in violation of the principle of a secular state. The family involved pursued their objection through the Italian administrative court system. Pursuing the matter further to the European Court of Human Rights, the applicants argued that their right to education under Article 2 was being denied:
the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions,
and the right to freedom of religion, thought and conscience, protected in Article 9 of the Convention:
Everyone has the right to freedom of thought, conscience and religion (1)
The lower court upheld the applicants claim against the Italian state, ie. crucifixes in public school classrooms were in violation of these Articles. However Italy appealed to the Grand Chamber and was joined in this appeal by a number of non-government organisations as well as 8 other European countries. The Grand Chamber’s decision found that:
the placement of crucifixes in public schools lay within the State’s prerogative for cultural and historic reasons [para 68]
a majority religion has a claim to additional recognition by the State [para 71]
a crucifix on a wall is a “passive” symbol distinctly different from, for example, (forced) participation in religious ceremonies or teaching [para 72]
a nation’s religious heritage has ongoing significance, one cannot wipe the slate clean with a secular brush without disregarding the country’s history and present identity [para 67-68]
In a concurring opinion Justice Bonnello noted that the application of human rights cannot suffer “historical Alzheimers”, whereby a nation’s cultural and religious past has no meaning in the present.
In other concurring opinions some of the Judges highlighted that the decision makes clear that ’secular’ views are not simply ‘neutral’:
Neutrality requires a pluralist approach on the part of the State, not a secularist one …. secularism (which was the applicant’s preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views-whether religious, philosophical or otherwise-is not a neutral option. (Justice Power)
This decision has important ramifications for State recognition of the legitimacy of religious history and culture in the context of applying human rights in the complex area of religion and ’secularity’. The European Centre for Law and Justice (one of the third party interveners) commented on the decision:
The ECLJ welcomes that the European Court has thus renounced the promotion of a radical conception of secularism. This decision is a victory for Europe, as Europe cannot be faithful to itself by marginalizing Christianity. This decision is more of a victory for Europe than for the “crucifix”; Europe refuses to deny its own identity by rejecting the suppression of Christianity in the name of Human Rights.
The Evangelical Alliance (UK) described the decision as a “notable positive decision“. The court’s decision is binding on jurisdictions under the European Court of Human Rights. Signatories include 47 countries comprising some 800 million people. It has no binding effect in Australia and probably little influence. Australia has no federal Human Rights Act (or Charter) and only two human rights Charters operate at a State / Territory level. Australian courts will need to rely on a haphazard patchwork of cases and pieces of legislation dealing with the relationship between religion and secularity.
CASE OF LAUTSI AND OTHERS v. ITALY Application no. 30814/06 18 March 2011