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.

Wednesday, July 27, 2011

The Crucifix in Italian Classrooms

I recently taught the Italian crucifix case in my class in Paris. The major issues in the European Court of Human Rights were the rights of parents to direct the upbringing of their children and the right of religious liberty. The Court held that there was sufficient division within Europe on these issues, so that it was not a clear violation, or in court-speak, it fell within the "margin of appreciation."

I think it is a very difficult trick to say that forcing a student to study "under the cross" in a state school (the German constitutional denunciation of the practice in Bavaria) is consistent with either of these rights though the decision is not surprising - given the relative lack of power of the European Court compared to the U.S. Supreme Court and the diversity of views in Europe.

Even more difficult, however, was the Italian Administrative Court's conclusion that a crucifix in a state school is consistent with the Italian requirement of secularity. That Court recognized that the crucifix was a religious symbol, but it suggested that the crucifix was a symbol of Christianity in general, not a symbol of Catholicism. Then, in a crucial move, it argued that the crucifix transcended religion. The crucifix, according to the Court, stands for "charity over faith itself" which means that it stands for "tolerance, equality, and liberty  which form the basis of the modern secular State and of the Italian State in particular."

Of course, arguing that the crucifix transcends religion is offensive - not less so when it is likely that the reason for wanting to have the crucifix in the classroom is religious. But the underlying theology is worth comment. The court claims that the crucifix transcends Catholicism. But most Protestants avoid the crucifix in favor of the cross. Even more breathtaking is the assertion by a court no less that the crucifix stands for "charity over faith." We pause as Martin Luther rolls over in his grave.

Finally, the court declares that the crucifix stands for tolerance, equality, and liberty as the basis of a secular state. Suffice it to say that this does not look at the crucifix in the long sweep of history. Indeed, Italy's principal Christian church did not come to value religious liberty until the second Vatican Council and there are some grounds to question its commitment to the secular state.

 The European Convention on Human Rights does not require states to be secular; Italy claims to be a secular state. In my view, the Lautsi case shows that the Italian state is secular in name only and that it has purchased that name at the cost of religious frivolity on the one hand and the draining of religion from the primary symbol of the Christian religion on the other.

cross-posted at religiousleftlaw.com


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