Andrea Pin, Public Schools, the Italian Crucifix, and the European Court of Human Rights: the Italian Separation of Church and State

• Citation: Vol. 25 No. 1
• Publication year: 2010

PUBLIC SCHOOLS, THE ITALIAN CRUCIFIX, AND THE EUROPEAN COURT OF HUMAN RIGHTS: THE ITALIAN SEPARATION OF CHURCH AND STATE

Andrea Pin*

INTRODUCTION 97

1. THE CRUCIFIX AT SCHOOL: FROM ITALY TO STRASBOURG 101

   1. The Decision of the Administrative Tribunal and the Appendix Before the Council of State 101

   2. The First Degree Decision of the European Court of Human Rights 106

   3. The Decision of the European Court of Human Rights’s

      Grand Chamber 109

2. THE ITALIAN CONSTITUTION: THE FRAMERS AND THE LONG ROAD

   TO EQUALITY 110

   1. The Shaping of Article 7: The Origins of Italian Laicità 112

   2. The First Period of the Constitutional Religious Freedom Clauses from 1948 to 1984, and the Modifications of the Lateran Pacts 117

   3. The New Course of Italian Secularism: The Role of the Constitutional Court 120

      1. The First Approach to Laicità: The Debts to the Catholic Teachings 120

      2. Neutrality: A New Season for the Constitutional Court 124

   4. Neutrality Goes to School: The Crucifix 127

      1. The Judgment of the Court of Cassation 128

      2. The Crucifix and the Students 132

   5. The Journey of Laicità 134

      * Ph.D., University of Turin (2006); Professor of Public Comparative Law at the Faculty of Law, University of Padua, Italy; Senior Fellow, Center for the Study of Law and Religion, Emory University School of Law, Atlanta, Georgia. The Author is deeply grateful for the invaluable support and the comments of Professors John Witte, Jr., Frank Alexander, Timothy Jackson, Russell Hittinger, and Iain Benson; and for the help of Amy Wheeler, April Bogle, Stacey Harwell, and Grace Kim. Jenny Hernandez was terrific in the editing process. All of them have shown the Author how education comes through friendship. The parental care of David Novak lies beneath this essay.

3. WHAT LIES BENEATH: A KULTURKAMPF 135

   1. The Catholic Church and Politics 137

   2. Catholicism, Education, and Public Schools 138

CONCLUSION 141

1. A New Fracture Between Europe, Italy, and Catholicism? 142

2. A Critical Decision: The Gap Between Freedom of Religion, Separation of Church and State, and Religious Cultures as a Means to Govern Pluralism 144

INTRODUCTION

The recent judgments of the European Court of Human Rights (“ECHR” or “Court”) with regard to the presence of the Catholic symbol of the crucifix in Italian public schools1 are just the latest episodes of the ongoing juridical and political struggle for the secularization of the Italian state. This debate involves

the interpretation and the enactment of the Italian Constitution as well as the political and cultural trends that shape the Italian public debate about the public role of religion. Until 2009, the debate basically concerned the constitutional values of religious freedom and equality, but had also touched

upon the role of religion—namely the Catholic Church—in Italian public life.2

The decisions of the ECHR, which operates in Strasbourg,3 pushed the debate further: from the interpretation of the Italian Constitution4 to the respect for international treaties.5 In the first degree, the Court found Italy’s policy of displaying crucifixes in public schools violated Article 9 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights”) that protects the right to freedom of religion.6 The popular and political criticisms of the judgment were

1. The first decision was delivered as a chamber judgment on November 3, 2009. Lautsi v. Italy, Eur. Ct.

   H.R. (2009) [hereinafter Lautsi I], http://www.echr.coe.int/ECHR/homepage_EN (follow “Case-Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Lautsi” in the “Case Title” box and “Italy” in the “Respondent State” box). After the Italian government requested that the case be referred to the Grand Chamber, the second decision was released by the Grand Chamber on March 18, 2011. Lautsi v. Italy, Eur. Ct. H.R. (2011) [hereinafter Lautsi II], http://www.echr.coe.int/ECHR/homepage_EN (follow “Case- Law” hyperlink; then follow “HUDOC” hyperlink; then search by placing “Lautsi” in the “Case Title” box and “Italy” in the “Respondent State” box).

2. See generally CARLO CARDIA, LE SFIDE DELLA LAICITÀ ETICA, MULTICULTURALISMO, ISLAM (2007);

   LUCA DIOTALLEVI, UNA ALTERNATIVA ALLA LAICITÀ (2010); GUSTAVO ZAGREBELSKY, SCAMBIARSI LA VESTE STATO E CHIESA AL GOVERNO DELL’UOMO (2010).

3. Visitors, EUR. CT. OF HUM. RTS., http://www.echr.coe.int/ECHR/EN/Header/Visitors/Information+

   for+visiting+groups/How+to+request+a+visit (last visited Feb. 20, 2011).

4. See Stefano Sicardi, Alcuni Problemi della Laicità in Versione Italiana, STATO, CHIESE E PLURALISMO CONFESSIONALE, 15 (Mar. 2010), http://www.statoechiese.it/images/stories/2010.3/sicardi_alcunim.pdf.

5. See Fulvio Cortese & Silvia Mirate, La CEDU e il Crocifisso: Prodromi, Motivi e Conseguenze di una Pronuncia Tanto Discussa, FORUM DI QUADERNI CONSTITUZIONALI, 1 (July–Dec. 2009), http://www. forumcostituzionale.it/site/images/stories/pdf/documenti_forum/paper/0167_cortese_mirate.pdf.

6. 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and

   observance.

   2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for

   immediate and forceful throughout Italian public discourse, because a majority in Italian society supports the presence of the crucifix in public schools.7 The decision thus revealed rising skepticism toward the ECHR and its role in protecting human rights because Italian majority opinion contrasted so strongly

   with the Court’s position on such a fundamental right as religious freedom—as well as its related principles, such as the separation of church and state and the issue of the role of religion in a pluralistic society. The recent decision, which was given by the Grand Chamber, reversed the first degree’s decision upholding the display of the crucifix.8 Therefore, the decision is probably going to diminish the criticism toward the ECHR.

   
   

   Like many countries in the Western world, Italy has a complicated church- state relationship.9 Various scholars have demonstrated the difficulty in defining the bounds of the two spheres of church and state in countries of different traditions.10 Italy has proved to be a crossroads of many different approaches to the relationship between church and state.11 This is especially true in the case of the display of religious symbols in public institutions, such as public schools.12

   
   

   the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

   Convention for the Protection of Human Rights and Fundamental Freedoms art. 9, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights] (entered into force Sept. 3,

   1953).

7. According to some polls, 84% of Italians disagreed with the ECHR decision and were in favor of the display of the crucifix in public schools. Il Crocefisso Torna Davanti ai Guidici Europei di Strasburgo¸ ITALIA DALL’ESTERO (June 30, 2010), http://italiadallestero.info/archives/9699.

8. See Lautsi II, supra note 1.

9. For a discussion on a Spanish example, see Maria del Carmen Garcimartín Montero, La Laicidad en las Cortes Constituyentes de 1978, 72 IUS CANONICUM 539, 539–94 (1996), and María J. Roca, La

   Neutralidad del Estado: Fundamento Doctrinal y Actual Delimitación en la Jurisprudencia, 48 REVISTA ESPAÑOLA DE DERECHO CONSTITUCIONAL 251, 251–72 (1996). For a discussion on a French example, see PAOLO CAVANA, INTERPRETAZIONI DELLA LAICITÀ ESPERIENZA FRANCESE ED ESPERIENZA ITALIANA A CONFRONTO (1998).

10. Stanley Fish, Mission Impossible: Settling the Just Bounds Between Church and State, 97 COLUM. L.

    REV. 2255, 2272 (1997). See generally STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A

    CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM (1995); Lasia Bloss, European Law of Religion— Organizational and Institutional Analysis of National Systems and Their Implications for the Future European Integration Process (The Jean Monnet Program, Working Paper No. 13/03, 2003), http://centers.law.nyu.edu/ jeanmonnet/papers/03/031301.pdf.

11. Augusto Barbera, Il Cammino della Laicità, FORUM DI QUADERNI CONSTITUZIONALI, pt. 3 (2007),

    http://www.forumcostituzionale.it/site/images/stories/pdf/nuovi%20pdf/Paper/0036_barbera.pdf.

12. This is a common feature of the international debate about the relationship between religion and state. For a discussion on a French example, see HAUT CONSEIL À L’INTÉGRATION, CHARTE DE LA LAÏCITÉ DANS LES SERVICES PUBLICS ET AUTRES AVIS 191–209 (2007), http://lesrapports.ladocumentationfrancaise.fr/cgi-

    The word that is classically used by scholars as well as by courts to define the relationship between religion and state in Italian is laicità.13 This Article will deal with this concept extensively, mostly because there is no agreement in Italy around the concept itself and its legal implications.14 The disagreement is so striking that both those who endorse and those who oppose the public display of religious symbols refer to the principle of laicità.15

    
    

    Precisely because of the difficulties in defining the relationship between church and state, the Author deliberately uses the Italian word laicità wherever the Italian courts and scholars do so in addressing such a relationship. The Author prefers not to translate the word because its meaning and implications are exactly what are at issue now, and any translation might be misleading. Rather, the Author tries to describe its meaning with the aid of the court decisions that have contributed to its definition.

    
    

    Until the ECHR’s decisions, the disagreement about laicità was mainly a domestic issue in Italy.16 But following the first ECHR’s decision, there was opposition between the majority of Italian society and the Court that shifted the discussion...