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11.04.2009

The European Court of Human Rights says no to crucifixes in Italian classrooms

Short version of Lautsi v. Italy: an Italian mother of Finnish origin has two children in school. The classrooms in which her children are instructed have crucifixes prominently displayed. She unsuccessfully petitions the government to have them removed before seeking relief from the European Court of Human Rights. The court awards her 5,000 euros in damages. Cue public furor.

Here's the UK Guardian's take on the Italian reaction. The judgment itself is currently available only in French, but there is an English-language summary available in the form of this press release from the Court itself. The conflict here between principle and practice appears to be especially stark, and in an area where emotions run especially high. On the one hand, it's easy to see that the crucifix is a common fixture in Italian life. On the other hand, things are supposed to be different for purposes of legal analysis when the government forces them down your throat. It is difficult enough to see how one can square the practice of classroom crucifixes with the language of Article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights, which the Court is responsible for enforcing. But it is even harder to see how the practice can be squared with the more specific language of Protocol 1, Article 2, which provides that "the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

It is impossible to argue that crucifixes (and these are the Italian-style ones we're talking about - the ones with an actual Jesus sculpted on them) lack religious character. And it certainly doesn't enhance the appeal of the Italian government's argument, either legally or politically, that the classroom crucifixes were originally made mandatory by Italy's Fascist government in the 1920s (before the adoption of the current Italian constitution in 1948). Also worth mentioning: Lautsi, the plaintiff, had apparently relied in part upon an Italian Court of Cassation judgment of 2000 which held that the presence of crucifixes in election polling stations contravened Articles 19 and 21 of the Italian Constitution. (English-language discussion of the decision here.) One might think that case alone should have settled the matter in her favor before the Italian authorities, without necessitating recourse to the folks in Strasbourg.

Whether Italian politicians can be expected to acknowledge any of this, instead of simply pandering to public sentiment and scoring easy points by scapegoating a European court and rallying around the flag-I mean, crucifix–remains to be seen.

Also worthy of note: those in the comparative law field may be familiar with the name of at least one of the members of the seven-judge panel that decided this particular case – András Sajó, a distinguished comparative law scholar of the Central European University in Budapest, a frequent visitor at NYU Law School, and co-author of one of the leading comparative law texts (Dorsen et al., Comparative Constitutionalism, published by West). The Italian government is, not surprisingly, appealing the judgment to the court's 17-judge Grand Chamber.

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