Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, March 29, 2011

"Lift High the Cross": More on Lautsi

Here's Prof. John Witte (Emory), writing about the recent Lautsi decision, at Huffington Post.  A bit:

The Lautsi case echoes many familiar arguments that the United States Supreme Court has used over the past three decades to maintain traditional displays of crèches, crosses and Decalogues on government property. While not entirely convergent in their religious symbolism cases, the American and European high courts now hold six teachings in common. . . .

And . . . what, did you think he wouldn't write about this? . . . here's Stanley Fish:

In these columns I have often remarked that religion-clause jurisprudence is characterized by contortions that would be the envy of Houdini. But nothing in American jurisprudence is as contorted in its reasoning as a recent decision . . . by the European Court of Human Rights. . . .


Garnett, Rick | Permalink

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Hmmm...I am not sure that Stanley Fish read the decision. The Grand Chamber most emphatically did *not* rule that "the crucifix is really not a religious symbol." In fact, it held exactly the opposite -- that whatever the crucifix is, it is certainly and unambiguously a religious symbol. Perhaps Fish did not see that section.

Fish is also not correct inasmuch as he argues that the argument from the culture/tradition as it relates to the symbolism of the crucifix is one which the Grand Chamber endorsed. It didn't. It cited that argument, and it then stated that the decision whether to transmit a tradition lies within the margin of appreciation of the member state. The phrase "margin of appreciation" -- the fundamental basis of the decision -- does not appear anywhere at all in Fish's column. Again, this is not careful reading.

Posted by: Marc DeGirolami | Mar 29, 2011 12:21:42 PM