Europe: The Italian crucifix case, religious neutrality and secularism

By Grégor Puppinck, Ph.D | April 5, 2011

On the 18th of March, the Grand Chamber of the European Court of Human Rights ruled by a majority of 15 votes to 2, that the presence of the crucifix in Italian public classrooms does not violate the freedom of religion and the right of parents to educate their children in conformity with their philosophical and religious convictions, rights guaranteed by the European Convention on Human Rights. This case reversed the unanimous decision taken in November 2009. This condemnation had evoked a very strong reaction from the Italian public- more than 85% of Italians said they were in favour of retaining the crucifix. The European Court was accused of promoting a radical conception of “laïcité” (secularism), incompatible to the spirit and letter of the Convention.

The March 18th decision put a halt on this secular tendency by clearly distinguishing between ‘‘secularism” and ‘‘neutrality’’ in religious matters. The Court highlighted that ‘supporters of secularism’ are able to avail of ‘philosophical convictions’ that is to say, ‘‘believes’’ protected under the same title as atheism or a religion. Since secularism is recognised as a belief, it can not have a claim to axiological neutrality. In doing this, the Court followed the opinion of the Governments intervening in support of Italy: ‘‘favouring secularism was a political position that, whilst respectable, was not neutral. Accordingly, in the educational sphere a State that supported the secular as opposed to the religious was not being neutral.’’

Neutrality has now emerged as a means of reference for State-religion relations for the Court. The concept of secularism is ‘‘exclusive’’; it excludes religions from the social sphere, whereas neutrality is ‘‘inclusive’’, that is to say, capable of recognising the social dimension of religions. This social dimension is of a cultural nature and does not force the freedom of individual conscience. Rather, it is necessary to recognise that this freedom presents itself in a cultural context and this merits a certain respect. Ms. Lautsi, at the beginning of the proceedings against the crucifix, did not want to respect this Italian cultural context. The Court ruled against her.

The affirmation of the principle of neutrality is not enough to justify the privileges given to the crucifix. A truly inclusive approach would require that various other religious symbols were also displayed. The Court has not gone as far as this. Having praised the open-mindedness of Italian schools in allowing a place for minority religions, the Court has ruled that “by prescribing the presence of crucifixes in State-school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country’s majority religion preponderant visibility in the school environment.” This is justified “in view of the place occupied by Christianity in the history and tradition of the respondent State.” The European Court had already come to a similar conclusion in the context of religious culture classes taught in schools in Norway and Turkey (Folgerø and Zengin judgments). Furthermore, Christianity has a specific social legitimacy in countries of Christian majority, which distinguishes it from other beliefs and justifies a differential approach to be adopted when necessary. This approach can justify Italy’s decision to afford the crucifix a dominant place in public Italian schools.

This decision has refuted the attempts of secularists who, behind a claim of tolerance, use religious pluralism to impose secularism and marginalise Christianity. By refusing to oppose the human rights to the Christianity, as these secularists want, the Court has preserved the profound unity and interdependence uniting the spiritual and moral values that make up the European society. In this, the Court has remained faithful to the Statute of the Council of Europe which reaffirms that European States are “devot[ed] to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy”.

This decision also brought about a profound sense of unity between European nations. More than twenty European countries, including Russia, have come out in support of the crucifix. This important support proves that Christianity is still at the heart of European unity.

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Grégor Puppinck is Director of the European Centre for Law and Justice. The ECLJ was deeply involved in this case. As a third party (amicus curiae) with 79 European members of parliaments, the ECLJ submitted written observations to the Court and also organised a seminar on the “Religious Symbols in the Public Space” at the Council of Europe on 29 April 2010. The ECLJ notes with satisfaction that the Grand Chamber of the Court has adopted, with a few subtle differences, almost exactly the reasoning developed by the ECLJ in its written observations.

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