Sunday, February 7, 2010
[MOJ friend Pasquale Annicchino send this our way:]
HOW BRAVE WILL THE ECtHR BE?
As Professor Lee rightly reported in his post just below, the Italian government has submitted its appeal to the Grand Chamber of the European Court of Human Rights. The appeal--14 pages in all--offer a rebuttal of the judgment of the second section that in November held that the compulsory display of the crucifix in public schools represents a violation of the Convention. Important issues will be at stake: will the court definitively abandon the doctrine of the margin of appreciation that allows the court to grant a degree of deference towards the different solution adopted in the member states? Will the court continue to endorse a conception on “strong secularism”? Will be court ban only compulsory display of religious symbols or a total ban will be imposed? The stakes are high, not only for Italy. This judgment will have important consequences all over Europe.
Few days ago more than 100 NGOs wrote a letter to the Court (in English, here): “Our country suffers more and more the political influence of the hierarchy of the Catholic church. The fewer people follow their directives the more they demand.” The letter highlights what will be the next grounds of legal battles in Europe: religious teachings, legal protection for same sex couples, freedom of marriage, divorce, medically assisted procreation and so on. Americans have been debating these issues for longer time,. Perhaps he time has come for a Transatlantic conversation to begin.
On the very specific issue surrounding the Lautsi case I’m tempted to argue, that the holding of the case, according to which the compulsory display of the crucifix represents a violation of the Convention, is right. Nevertheless, some criticism to the decision may be raised. The general concept of neutrality adopted in a dictum of the judgment (par. 56) by the ECtHR has the paradoxical effect of neglecting the very same value of pluralism, which according to the interpretation of the court, is an important element of the democratic regime envisioned by the Convention. To this extent I argue, contrary to the court’s stand, that parents’should be free to require the display of the different religious symbols. This is consistent with the pluralistic democratic principle as envisioned by the ECHR and with the principle of the “best interest of the child”.
But this is far from being uncontroversial.
The court will not smash the edifice of Italian church-state relations with a single judicial blow. But the edifice is crumbling.