The European Court of Human Rights' Lautsi Decision: Context, Contents, Consequences

Article excerpt

Abstract: The paper discusses the context, substance and likely implications of the European Court of Human Rights' very recent but, in our view, historic decision in the case of Lautsi v. Italy. The article offers an outline of the case and of the decision's motivation, a presentation of the responses, and a brief discussion of its relevance to the similar Romanian case. We examine in some detail the objections leveled against the ruling, track the progress of the Court's relevant jurisprudence on the issue, and suggest some possible consequences.

Key Words: freedom of religion, religious manifestations, religious displays, crucifixes, public schools, European Court of Human Rights, rights of the child, margin of appreciation, subsidiarity

Introduction

The European Court of Human Rights' November 2009 decision in the case of Lautsi v. Italy was bold in more than one way. In declaring the presence of crucifixes in compulsory state schools at odds with the European Convention on Human Rights, the Strasbourg Court confronted the sensibilities of many Europeans. The often virulent reaction of politicians and officials all over Europe could have been anticipated from earlier national experiences, such as, for instance, the responses of German politicians and officials to a somewhat similar 1995 decision by the German Constitutional Court. More importantly, the European Court made a bold step towards meeting head-on the implications of its former rulings in religious freedom cases, and in religious display cases particularly. After all, a respected legal scholar had just scolded the Court, no earlier than in 2009, of superficiality: "So far, referring to the national margin of appreciation is the only answer that the European Court of Human Rights has been giving when the issue of banning religious symbols from the public space is at stake."1

In this paper, we aim to describe the context, substance and likely implications of the historic Lautsi decision. In the first section we provide an outline of the case and of the European Court of Human Rights' judgment. This is followed by a presentation of the responses to the ruling throughout Europe. We then briefly inspect similar decisions in Germany and Romania, as well as a number of arguments raised against the Lautsi decision. Finally, we examine in additional detail the progress of the Court's case law towards the decision that is the subject of this article, and eventually offer our views as to its future implications.

The Lautsi case and judgment

In 2002 Soile Lautsi, a Finnish-born Italian member of the Italian Union of Atheists, complained to the board of the school attended by her two children that the presence of a crucifix on the walls of every classroom was contrary to the principle of secularism, in which she believed and which she wished to pass on to her children. In Italy, classroom crucifixes are mandatory under two 1920s laws, though since Catholicism ceased to be a state religion the laws have not been systematically enforced. In May 2002, the school board decided to leave the crucifixes in place, and a directive to that effect by the Ministry of Education was dispatched to head teachers.2 Mrs. Lautsi complained to the Veneto Regional Administrative Court the following month, claiming that the school board's decision conflicted with the principles of secularism and state neutrality enshrined in the constitution. In January 2004 the Administrative Court granted Mrs. Lautsi's request that the case be submitted before the Constitutional Court, which in December disclaimed jurisdiction, motivating that the disputed provisions were statutory rather than legislative.3

Thereupon the case was returned to the administrative court, which ruled against the applicant. The Regional Administrative Court held that the crucifix was a symbol of Italian history and culture and of the principles of equality, liberty and tolerance, and thus also of state secularism. …

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