Waiting on Lautsi

A final judgement is to be issued tomorrow by the European Court of Human Rights (ECHR) in a long-running case which could have long-term consequences for the relationship between faith and secularism in Europe. 

Lautsi and others v Italy dates back to 2002 when the parent of a child in a public school near Venice, Mrs Soile Lautsi, and two others, all Italians, claimed that the presence of crucifixes in Italian public schools ran contrary to the principles of secular public education, in particular the right of parents to ensure their children’s education and teaching conform with their own religious and philosophical convictions. The claimants, as almost always in these cases, are not Muslim or Jewish or Hindu but committed secularists. Lautsi had asked the school authorities to remove the crucifixes from the classroom walls, but they refused.

Having lost her case in the Italian courts she took it to Strasbourg in 2006. In November 2009 the ECHR unanimously ruled that the display of crucifixes in Italian schools breached the rights of non-Catholic families. The judges said that the presence of the crucifix in classrooms is "contrary to parents’ right to educate their children in line with their convictions and to children’s right to freedom of religion". Pupils would feel "educated in a school environment bearing the stamp of a given religion", which could be "emotionally disturbing" for them. In essence, the judges were arguing that in the sensitive environment of a school, a non-Catholic child would feel subtly coerced.

The ruling caused outrage from Church and political leaders in Italy, where even nominal Catholics resented what they saw as interference in Italian culture and traditions. In January last year, the Italian government asked the case to be referred to the Grand Chamber of the ECHR, which in June 2010 agreed to rehear the case, noting that "the November decision raised serious legal issues and must be reconsidered”. 

Pressure has been building outside Strasbourg. The level of participation from intervening member States is unprecedented, demonstrating the magnitude of this case for all of Europe. Ten countries joined Italy's appeal as third parties, and a further eight -- including Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta and Russia -- criticized the ECHR ruling. In April of last year, Italian government officials sent a note to the court asserting that the European judges “have no competency to impose the secularization of any country, and especially Italy, a country characterised by its overwhelmingly Catholic religious practice and identity”.

It would be hard to overestimate the importance Pope Benedict attaches to the case. Speaking just before Christmas to the Curia of "threats to the full exercise of religious freedom" from "a tendency to consider religion, all religion, as something insignificant, alien or even destabilizing to modern society, and to attempt by different means to prevent it from having any influence on the life of society”, he made a specific reference to the Lautsi case. "Last year”, Benedict XVI said, "a number of European countries supported the appeal lodged by the Italian government in the well-known case involving the display of the crucifix in public places. I am grateful to the authorities of those nations, as well as to all those who became involved in the issue".

Italy has been represented in the appeal by the well-known American Jewish jurist of South African origin, Joseph Weiler [pictured], who helped to coin the phrase "Christianophobia". His much-admired 23-minute oral submission to the Grand Chamber in June last year attacked the "conceptions of error" in the court's formulation of the principle of neutrality which lay behind the ECHR judgement.  Freedom of religion, he said, is counterbalanced by an ample liberty in the display of public religious symbols across Europe and the huge diversity of church-state relations -- more than half of Europe's citizens live in countries which do not follow France's notion of laicite. The original ruling, he contended, amounted to the imposition by the European court of the French model of secularity over others which did not share that tradition.

Last night I went to hear a distinguished Italian law professor in Milan, Dr Marta Cartabia, a member of Communion and Liberation, give some fascinating background on the case at the University of Notre Dame campus in London. These were her main points:

1. The Italian law requiring crucifixes in classrooms dates back to the 1920s and has not been revoked. Because it dates from the fascist era, secularists have portrayed it as belonging to a throne-and-altar mentality which has been superseded in an era of democracy. Yet the law was secondary legislation, a series of guidelines about what furniture should be in the schoolrooms, and as such reflected the assumption that Italy was almost universally Catholic.  If the intention of the lawmakers was to impose Catholicism by law, it would have been primary legislation.

2. Proof that the presence of the crucifix in Italian schools reflects widespread popular sentiment is evident from the Communist Party's support of Article 7 of Italy's 1940s Constitution, which deals with Church-state relations.

3. From the 1950s most Italian schools had a crucifix, but some did not. Nobody had raised the matter until Lautsi. There has never been a similar case brought by a believer of another faith -- only nonbelievers.

4. Human rights law is framed in terms of the defence of minorities. But can it still be assumed that Christianity is a majority religion across Europe?

5. Secularism is often portrayed as a neutrality needing defence from religion; yet the reality is that secularism is a belief, similar in many respects to a religion. The coexistence of Christianity with secularism is nowadays one of the major questions facing Europe. For a government to order the removal of crucifixes from public places would be an act not of neutrality but of endorsement of secularism.

Over drinks, Dr Cartabia told me she was expecting tomorrow's judgement to uphold the original ruling, but using much more carefully considered arguments. She said the case had broad implications for jurisprudence, and was likely to be studied and argued about for many years to come. In this sense, it will be a defining judgement.

But contrary to many press reports, it will not lead to Italy ordering the removal of crucifixes from classroom walls. Beyond awarding Lautsi a few thousand euros for the distress her child endured, the Court has no power to compel Italy to do anything. A separate case would be needed to force the removal of crucifixes, in which the burden of proof would need to be much higher.  And there is no mood in the Italian courts to allow that. The Supreme Court, for instance, ruled yesterday that the Cross is not a threat to the principle of secularity, and has disbarred a judge, Luigi Tosti, who refused to hand down judgements in the presence of a Crucifix.

But is it true that the Cross is not a threat? One interesting result of Italy losing tomorrow's case may be a review of the arguments it has used over the past years. The Government's case has been, in effect, that the Crucifix is not a religious symbol, but a universal, ethical, even a "humanist" one. That argument must have made the Vatican queasy at times.  For if the Crucifix is merely an ethical symbol, why would the Church support its display in public places?

The idea that the Crucifix is "offensive" is, in its way, more of a recognition of the power of the Cross -- a source of scandal, disbelief and miscomprehension, as St Paul says -- than the blithe, "cultural" Catholicism of many Italians which sees the Cross as a symbol of "love" while  ignoring its message of sacrifice.

Tomorrow's judgement, in other words, may raise as many theological questions as political and juridical ones.