Sunday, February 7, 2010
More on the crucifix ban
[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.
https://mirrorofjustice.blogs.com/mirrorofjustice/2010/02/more-on-the-crucifix-ban.html