Friday, March 25, 2011
The European Court of Human Rights' decision in Lautsi v. Italy relied almost exclusively on an analysis of what Article 2 of Protocol 1 of the Convention on Human Rights required. That provision states: "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 religions and philosophical convictions."
As I noted in my previous post on this case, the Grand Chamber held 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.
But one might well wonder why. Since the Court tells us that this case turns on the right of member states to set educational curriculum as they see fit (within a proper margin of appreciation), and since it also tells us that whether crucifixes are present in classrooms relates to an educational decision, the obvious question is: What is the relationship between the presence of crucifixes and the educational responsibilities of member states, in this case Italy? Unfortunately, the Court does not make this clear at all. Indeed, it does not even attempt to answer this question, and I think that is regrettable. Perhaps the Court did not want to swim in those waters for fear of writing an overly deep and thick decision; because of the controversial quality of the case, and the likelihood that whichever course it chose would be divisive, the Court wanted to engage in a bit of minimalism. In general I am a supporter of minimalism, particularly the Burkean variety, but because the Court relied so heavily on Article 2, seemingly to the exclusion of any discussion of Article 9, the issue inevitably rears its head and gives at least something of the appearance that the Court's decision was not as thorough as it could have been. Perhaps lack of thoroughness is a good thing sometimes, but it's interesting to begin to think about what something deeper might have looked like.
In fact, I think that the building blocks of a deeper explanation are right within the Court's own decision. The explanation might well be grounded, at least in part, on the lengthy discussion of Italy's historical engagement -- its domestic law and practice -- with the crucifix in public schools, as well as the extensive citation to decisions of Italy's own courts on this question.
One might imagine many different kinds of "educational" reasons for including a crucifix in a classroom. Here are only a very few: to indicate to students that they ought to worship as Catholics; to celebrate Catholicism to the exclusion of all other faiths, whether the students practice it or not; to celebrate Catholicism along with other faiths, in an effort at instilling both a historical consciousness and a sense of civic pluralism with respect to religion; to acknowledge the current cultural and religious preferences of the majority of Italians; to acknowledge the preferences of the majority of Italians as a matter of historical fact; to acknowledge Italy's historical roots as a Christian, and Catholic, country, stretching back to early Christendom; to acknowledge Italy's historical roots as a Christian, and Catholic, country, at the time of the unification of Italy, and the role played in the unification by Catholicism and the papacy; to suggest a connection between the Christian, and Catholic, superstructure of moral and civic values and Italy's contemporary secular/pluralistic civic values; and to suggest something true about the ineliminable inextricability of the cultural, the civic, the religious, and the educational.
Some of these reasons are more amenable to civic educational functions that would fall within Italy's margin of appreciation -- that is, for example, that would not violate other provisions of the Convention -- than others. My own view is that those reasons which suggest something normative and descriptive about the Italian intellectual heritage, history, and traditions of Christianity, and Catholicism specifically, rather than those which indicate something about what students ought, or ought not, to believe as a matter of faith, are more amenable as grounds for concluding that the crucifix (and the cross) have educational value which does not trench on other Convention provisions. Admittedly, these are difficult and complicated questions that present problems of line-drawing, and I emphasize that final qualifier because the general category "education" is slippery and protean. But in light of the Court's almost exclusive reliance on Article 2, I think that a bit more spade-work on this issue might have done the decision some good.