The Cross V. the Court; Europe Struggles over Distinction between Religion and Secularism

Article excerpt


In Lautsi v. Italy, a chamber of the European Court on Human Rights (ECHR) banned the display of the cross in school classrooms, arguing that such a display was a violation of religious freedom and of a parent's right to educate his children. In addition, the court awarded the petitioner 5,000 euros in nonpecuniary damages. Whether the unusual verdict was motivated by animus or disdain toward religion in general, or against the Catholic Church in particular, is uncertain. The decision did, however, imply an obligation to impose strict secularism in Europe.

The Lautsi v. Italy decision caused a worldwide stir for several reasons. First, the court inexplicably departed from its previous case law on the margin of appreciation doctrine, according to which such complex and delicate matters, closely related to culture and history, fall into the member states' domestic jurisdiction. For instance, under this doctrine, the court previously refused to intervene in France's ban of the Muslim head scarf, even when it had a clear discriminatory impact on Muslim girls and women. Nevertheless, as Neil Addison of the Thomas More Legal Center pointed out, the court in Lautsi seems to indicate that the margin of appreciation doctrine only works in one direction, namely allowing governments to ban religious symbols, but not allowing the freedom to display them.

Second, the verdict reinterpreted the European Convention to mandate forced secularization in the entire European Union, even though the convention is silent on church-state relations and European states greatly vary in their cultural religious practices. Moreover, the court imposed a strict model of secularism, antagonistic to any manifestation of religion in the public sphere. The court inevitably supported the idea that neutrality consists of supporting the secular as opposed to the religious and excessively emphasized freedom from religion rather than freedom of religion.

During the hearings before the court in July, New York University professor Joseph Weiler's brilliant argument pointed out that Lautsi wrongfully sends European states the message that democracy requires them to shed their religious identity. Professor Weiler, an Orthodox Jew who coined the term christophobia, designating anti-Christian bias among European intellectual elites, held that neutrality does not consist of supporting the secular as opposed to the religious. …