March 18, 2011
Lautsi v. Italy: The Decision
I've had a chance to read the Court's decision as well as the three concurring opinions and the dissent. I'm still processing it, but here are some highlights.
The breakdown of votes was 15-2 on the central issue of whether Italy had violated Article 2 of Protocol #1 (the State's obligation, in the discharge of its educational function, to "respect the right of parents to ensure such education . . . in conformity with their own religious and philosophical convictions") or Article 9 of the Convention ("the right to freedom of thought, conscience and religion"). Of the three concurrences (representing four judges), one (Judge Bonello's) would have gone considerably further than the Court did, one (garnering two votes) signed on to the Court's decision "not without some hesitation," and the last one (by Judge Power) seemed largely to agree with the scope of the majority's decision.
The Court spent considerable time examining (1) the March 2005 judgment of the Veneto Administrative Court as to the symbolic meaning of the crucifix; (2) the April 2006 judgment of the Italian Consiglio di Stato (the highest administrative court) of April 2006 as to the same; (3) the view of the Corte di Cassazione (Italy's highest court) on related issues of secularism; (4) the history of Italy's domestic law and practice with respect to the crucifix in public schools; and (5) the law and practice of various member states with respect to the issue of religious symbols in public schools. This was all crucial material because it set the stage for and really grounded the Court's eventual conclusions. The Court adduced from this survey the reality that there is simply nothing approaching a European consensus involving the state's display of religious symbols. Courts even within Italy are divided on these issues. Even more than this, the Court's extensive examination revealed just how plural and conflicting the policies and approaches of the various member states truly are, perhaps the most interesting point of which is that "[i]n the great majority of member States . . . the question of the presence of religious symbols in State schools is not governed by any specific regulations."
After reviewing the decision below and the arguments of the parties (including Joe Weiler's position...in which the Court specifically mentioned that line about "Americanisation"...like a shark to chum), the meat of the decision begins at par. 57. To my mind, what is most striking about the decision is that it really analyzes the issues through the prism of public education, and what a public education ought to mean. Article 2 is foregrounded.
The Court says that while the State must help to maintain "public order, religious harmony and tolerance in a democratic society," (60), that obligation does not mean that "parents can require the State to provide a particular form of teaching." The setting of curriculum, says the Court, is a matter for the State, and so long as "information or knowledge" is being "conveyed in an objective, critical, and pluralistic manner, enabling students to develop a critical mind" and without "indoctrination," the parents of students cannot complain. (62) For me, these claims brought to mind the debates in the Mozert case, but that is a subject for another time.
How does the crucifix fit in here? The Court says that "the decision whether crucifixes should be present" in public schools "forms part of the functions assumed by the respondent State in relation to education and teaching" and that it is therefore within the compass of Article 2 as well.
What is the meaning of the crucifix? "[T]he crucifx is above all a religious symbol . . . . The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive[.]" (66) The Court therefore did not decide for itself whether the crucifix partook of an identitarian or cultural meaning independent of and in addition to its religious meaning. But it accepted that the State (here Italy) believed that the crucifix was a symbol with multiple meanings, some of which were foundational as to its civic traditions, and...and here is the key..."the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State." (68)
The concept of the margin of appreciation, interestingly enough, in some ways is similar to the doctrine of subsidiarity (see Prof. Paolo Carozza's excellent work on this issue) and the concept was absolutely crucial to the Court's judgment. Because of the well-documented lack of consensus among and even within the European states, and because the crucifix was a "passive symbol" (compare the Folgero and Zengin cases out of Norway and Turkey, respectively -- par. 71) whose purpose was not "indoctrination," the decision whether to retain the crucifix fell within Italy's margin of appreciation. (70-72).
More thoughts after further rumination.
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"(see Prof. Paolo Carozza's excellent work here)"
Could you edit to provide the link?
Thanks for the great overview and discussion!
Posted by: Jonathan | Mar 18, 2011 2:08:00 PM
An interesting analysis that rests on the local discretion applied in that context with differences from our own (one nation) experience in various ways. I also note that "subsidiarity" was discussed in Justice Breyer's recent book. With apologies, perhaps this summary might interest some:
---> Religion figures almost not at all in this book about making our democracy work. Indeed, although Justice Breyer praises and endorses "subsidiarity"—the idea that "government power … should rest in the hands of the smallest unit of government capable of dealing successfully with" the issue in question—one would never guess that the concept was developed in a series of papal letters and owes everything to the renaissance in Catholic natural law theology in the past century or so. After a grudging and somewhat misleading suggestion that subsidiarity "originated in late-medieval religious thought," Breyer enthusiastically recounts its use in recent European Union decision-making "in this more democratic age."
Posted by: Joe | Mar 19, 2011 9:17:02 AM
Seems to me that subsidiarity endorses gay marriage implicitly. Show me how I'm wrong, please.
Posted by: Benjamin Baxter | Mar 20, 2011 11:08:23 PM
Mr. Baxter, I'm not sure that I can "show [you] how [you are] wrong," as I don't understand the question. Gay marriage has absolutely nothing to do with the issues in Lautsi. Subsidiarity does not "endorse" any specific policy program "implicitly."
To the extent that you are making the claim that subsidiarity always supports decisionmaking by smaller, rather than larger, political and social units, and therefore that it stands exclusively for devolving authority to the smallest decisional unit possible -- in this case the family unit -- I believe that is a mistaken understanding.
My own understanding is that the core of subsidiarity is a kind of intermediate position with respect to the role of governance -- as small as possible, no smaller than necessary. It is a concept intimately connected with the idea of the good of associations, but that does not mean that a person who is committed to the idea of subsidiarity thinks that all associations are good.
Without commenting on the merits, I think that it is possible to argue that the concept of subsidiarity is consistent with a policy permitting gay marriage. It is also possible to argue that subsidiarity supports a policy of greater centralization when it comes to the social institution of marriage in order to protect that institution. Neither of these arguments depends on anything intrinsically or logically necessary about subsidiarity itself.
Posted by: Marc DeGirolami | Mar 21, 2011 8:50:50 AM
The best case as to the second comment (since someone linked to my blog, I guess someone is reading) is to argue the federal DOMA law or some constitutional amendment against STATES allowing them would be problematic.
Posted by: Joe | May 30, 2012 7:45:15 PM