Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, November 4, 2009

A Message from Italy [Updated]

[The update is the Vatican's response, here.]

[MOJ friend, Pasquale Annicchino, Fellow in the Law and Religion Programme at the University of Siena and Editor in Chief, University College London Human Rights Review, sends this along:]

Lautsi v Italy: A European Everson?

Italian National Ms Soile Lautsi is mother of Dataico (11) and Sami Albertin (13), two children living in Abano Terme (Italy). They both attend a State public school. In the school all the classrooms had a crucifix on the wall. According to Ms Lautsi this was a violation of the principle of “laicità” or secularism. She asked the school to remove the crucifixes from the wall but the school refused. Therefore she decided to go to court. After several judgements, the Consiglio di Stato (administrative tribunal) dismissed her appeal. According to the tribunal the crucifix had become a secular symbol, representing values of civil life.

What did the European Court of Human rights hold?

According to the court the crucifix is not to be interpreted as a secular symbol but as a religious one. Students would feel under psychological pressure in an educational environment to privilege one religion over the others. According to the court the state is obliged to observe confessional neutrality especially in the context of public education where classes are compulsory and the aim of this educational experience should be to foster critical thinking.

The court found a violation of art. 2 of Protocol 1 (right to education) and art.9 (freedom of thought, conscience and religion), jointly examined. This compulsory display of a symbol, according to the court, restricted the right of parents to educate their children in conformity with their convictions and the right of children to believe or not to believe.

We might adhere to a “Borkeian” interpretation according to which international courts are a priori secularizing agents against religious symbols in public spaces but, even within the constraints of a blog post, a better analysis is probably needed.

First of all, it is worth pointing out that the court did not consider in this case the traditional doctrine of the margin of appreciation according to which under art. 9 of the Convention ”where questions concerning the relationship between State and religion are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance” (Sahin, ECtHR 2005). The court dealt with it only under the perspective of art. 2 of the First protocol. This would mean for U.S. scholars a “pre-Everson” situation where different States pursue different policies and no common standards exist in the field. Under this perspective the case, if confirmed by the Grand Chamber, would signify for European Human Rights Law what Everson meant for the U.S.

There is also another thing worth pointing out. The court was composed of rather “secular” judges. Among them, Andras Sajo, former Constitutional Law Professor and a prolific scholar in Law and Religion. It is easily to imagine he played a leading role in this decision. Sajo is a strong separationist. In an article recently published by the Cardozo Law Review he claimed: “People are buried in cemeteries not because it facilitates resurrection but for public health reasons”. Amen. The other judge worth discussing is Vladimiro Zagrebelsky, the Italian member of the court. Why? Not for his background, he is not a human rights or law and religion lawyer, but for the process that led to his appointment to the court. According to a report published in December 2008 by the Parliamentary Assembly of the Council of Europe his election was “ad hoc and without formal legal basis” (footnote 43). As a matter of faith in our judges, especially in such a delicate field, this is not a good start.

On the merit of the decision, as a matter of principle I continue to adhere to the basic rule outlined by Benjamin Franklin: “When a religion is good, I conceive it will support itself, and when it does not support it so that its professors are obliged to call for help of the civil policies this is a sign, I apprehend, of its being a bad one”, or as Justice O’Connor wrote in County of Allegheny v ACLU “government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to non adherents that they are outsiders or less than full member of the political community”.

In any case, respect for precedents and respect for procedures should not be an option. We deserve independent judges, so does Europe..

p.s.

In the next weeks the 2009 issue of University College London Human Rights Review will be launched. Justice Rozakis, Vice President of the ECtHR deals exactly with the issue of the margin of appreciation in the frame of the Convention, answering to the objections that Lord Hoffman made in his lecture on “The Universality of Human Rights”. The lecture provoked wide debate.

MOJ’s friends interested in the debate can send an e-mail to me and they will receive a copy of the review.

[email protected]

Pasquale Annicchino

Fellow Law and Religion Programme, University of Siena

Editor in Chief, University College London Human Rights Review

https://mirrorofjustice.blogs.com/mirrorofjustice/2009/11/a-message-from-italy.html

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