The Lautsi v Italy judgment has and will continue to generate debate and controversy. The European Court of Human Rights decided that the display of a crucifix in premises used by public authorities and, especially, in classrooms, violated the right of parents to educate their children in accordance with their religious and philosophical convictions - protocol 1, article 2 taken jointly with article 9 (freedom of thought, conscience and religion) of the European Convention of Human Rights. Predictably, other Lautsis will follow suit and, if confirmed by the Grand Chamber, it is difficult to envisage how the precedent may be ignored by states signatories to the European Convention, unless they have made express reservations to protocol 1, article 2 of the European Convention.
Malta endorsed the right of parents to ensure that state education is in conformity with "their own religious and philosophical convictions" with a reservation "only insofar as it is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure, having regard to the fact that the population of Malta is overwhelmingly Roman Catholic". Additionally, while a number of constitutions expressly profess religious neutrality, the Constitution of Malta states that "The Religion of Malta is the Roman Catholic Apostolic Religion".
The Court stated: "The state was required to observe confessional neutrality in the context of public education, where attending classes was compulsory..." It is submitted however that confessional neutrality is a choice a state makes. A state may opt for confessional neutrality or it may not, choosing instead to express a religious preference endorsing the fundamental values that have shaped a nation's history, culture and identity. Confessional neutrality is not necessarily a sine qua non to respect for human rights. The right of parents to bring up their children as non-believers should not imply that states are obliged to delete all reference to God and religious symbolism in state schools.
The route chosen by the European Court of Human Rights is in fact a bias in favour of educating children in a secular environment devoid of religion. It endorses the prevalence of one "philosophical conviction" over all the others. Could not a contrary claim be made to the effect that that the imposition of secularism is contrary to the human rights of whosoever would like to believe otherwise and have their children brought up within a religious environment which values rather than displaces God?
The removal of a crucifix or any other religious symbol and its replacement by a blank wall or any austere looking public dignitary, for all that matters, is a symbol in itself. It is a symbol of the imposition of secularism and the displacement of religion from officialdom.
The progressive application of the legal "logic" applied by the judges may lead to the gradual removal of religious symbolism. Admittedly, the judgment refers to "premises used by public authorities", especially classrooms within the context of the "right to education". However, if the same logic is applied to "freedom of conscience", so that the expression of a religious preference by a state and the display of religious symbols by a state in "other public premises" is similarly regarded as offensive, what is there to halt the process of removal of the crucifix from Parliament, the law courts, government departments, state hospitals?
Faced with the Lautsi circumstances, the challenge for a court lies in interpreting human rights in a manner that balances potentially competing claims. The application of the "margin of appreciation doctrine" allows states to decide what measures to take in the circumstances. A government school in a state that displays a preference for a particular religion, say, the Catholic religion, by displaying a religious symbol, like a crucifix, may still respect the rights of parents of Muslim or Hindu children by providing religious instruction in the Muslim or Hindu creeds. Religion classes may be taught by providing instruction in various religions.
Children of diverse religions may request that symbols of the religion of their choice be displayed in class with equal prominence. Children of non-believers have the right to opt out of attending religious classes. However, it is taking it to extremes to maintain that non-believers may, on the pretext of human rights, impose their secular conviction on others and imply that religious symbols should be removed from state schools. That is not "religious or philosophical neutrality". Nor is it a manifestation of the right to education or freedom of conscience. In effect, that is secular "indoctrination" and imposition.
It is indeed sad and ironic that the crucifix, a symbol of the ultimate selfless sacrifice carried out for the redemption of the whole of humanity, Christians and non-Christians, believers and non-believers, has been regarded as offensive and its display in state schools regarded as a breach of fundamental human rights. Hopefully, the judges in the Grand Chamber will exercise better judgment and interpret the European Convention of Human Rights in a more respectful manner. In reality, it is the "crucifix judgment" and not the crucifix that is offensive.
The author is a lecturer in commercial law at the University of Malta
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