JUSTICE - No. 68

8 No. 68 JUSTICE n Italy, and in some other European democracies, there is a legal obligation to display a crucifix in public primary school classrooms. In 2009/2010, a case was brought before the European Court of Human Rights in Strasbourg by Ms. Soile Lautsi, who claimed that requiring her child to sit in a classroom with a crucifix violated her rights under the European Convention of Human Rights (ECHR). She brought her case before a Chamber of the ECHR, which ruled that the Italian requirement to display the crucifix violated the Convention. The decision created a huge controversy. An appeal was lodged with the Grand Chamber of the ECHR, the highest jurisdiction on human rights in Europe, which is composed of seventeen judges. Eight states joined Italy in lodging the appeal. I was invited to plead on behalf of the intervening states and accepted such on a pro bono basis. The case was heard on June 30, 2010.1 The Grand Chamber issued its decision in March 2011. By a majority of 15:2, it reversed the decision of the Chamber and held that the Italian requirement of displaying the crucifix was not a violation of the Convention, and that Ms. Lautsi’s fundamental human rights were not compromised by such. I was roundly criticized from liberal and some Jewish circles (not least from within the Jewish community of Italy) for taking the case pro bono (“he actually believes in his pleadings”), and even more for winning it. “Son of a Rabbi defending the Cross? Que Orrore!” (What horror!). I received numerous e-mails of this nature, to all of which I answered in the same manner: “In Israel a mezuza is affixed in all public-school classrooms in the Jewish sector. Would you insist on removing them?” I received few replies in return. How, then, must we think about this representative dilemma where identity-based impulses seem to clash with individual liberties? Following my pleadings, I offer a somewhat novel, surely contestable, way of framing the issues as they manifest themselves today. While my context is Europe, I maintain that the principles can and should be generalized. Framing the Issue We habitually talk of the positive and negative aspects of religious freedom: freedom of religion and freedom from religion. European states are constitutionally, and under the Convention system, obliged to guarantee their citizens and residents both aspects. I suggest that the European constitutional landscape posits two distinct kinds of “freedom of religion.” In addition to the classical individual freedom of and from religion, in its very structure, Europe represents a second collective, identitarian, freedom. This stems from selfdetermination, namely the right of nations/states to include in their self-definition, in their self-understanding and in their national and state symbology, a robust entanglement of religion and religious symbols. (There is no small measure of hypocrisy in the oft-heard insistence that Turkey must be laïque. One might ask: why Turkey yes and Denmark no?) France and the United Kingdom are good examples because both are founding members of the European Convention of Human Rights and with the usual imperfections, both are considered robust liberal democracies in good standing. France, in its Constitution, defines itself as laïque— usually understood as a political doctrine which does not allow the state any endorsement or support of religion and would consider the display of religious symbols by the state or the funding of religious schools as anathema. At an individual level, laïcité does not necessarily mean individual atheism or agnosticism. Many persons are religious in a profound and capacious way, and nevertheless uphold laïcité. They do so because they believe that independent of their personal conviction, it is wrong for the state to become entangled with religion. On Freedom of Religion and Freedom from Religion in Modern Democracies: Crucifixes and Mezuzas in Classrooms I JosephH. H. Weiler 1. ECHR Grand Chamber Case of Lautsi and Others v Italy (Application no. 30814/06). Hearing on June 30, 2010. Decision on March 18, 2011.

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