Secular crosses and the neutrality of secularism: reflections on the demands of neutrality and its consequences for religious symbols - the European Court of Human Rights in Lautsi and the U.S. Supreme Court in Salazar.

• Author: Roper, Marie Elizabeth

ABSTRACT

This Note discusses analogous themes in two religious public display cases, Lautsi v. Italy, recently decided by the Grand Chamber of the European Court of Human Rights (ECHR), and Salazar v. Buono, recently handed down by the U.S. Supreme Court. Broader critiques of ECHR religious jurisprudence are addressed in the context of the interpretation and application of the principle of neutrality and the argument that secularism is not a necessary postulate of this demand. It is this theme of the relationship between neutrality and secularism that is also prominent in the American discussion about the relationship between government and religion. Finally, this Note returns to Lautsi's themes as they are present in the American context to contend that applications of secularism and neutrality to the public square work against a preferable notion of constitutional pluralism that favors neither religious nor nonreligious public displays. The debate surrounding the Lautsi decision, particularly in its earlier iteration before the Grand Chamber's most recent decision, provides a valuable lens for scrutinizing U.S. neutrality. True pluralism maintains an equivocal demeanor with respect to both religious and nonreligious public displays. This Note offers the Lautsi case's context as a useful space in which to gain an outsider perspective with respect to how pluralism functions in U.S. religious display cases.

TABLE OF CONTENTS I. BACKGROUND: LAUTSI V. ITALY AND ANALOGOUS THEMES FROM SALAZAR V. BUONO II. LAUTSI V. ITALY A. Brief Background: The Principle of Laicite (Secularism) in Italy B. ECHR Chamber Ruling in Lautsi, November 3, 2009 C. ECHR Grand Chamber Hearing in Lautsi, June 30, 2010 D. Further Elaboration of Weiler's Arguments Based on the Published Text of His Oral Submission E. A Narrow Critique of Lautsi: The Margin of Appreciation Doctrine F. ECHR Grand Chamber Ruling in Lautsi, March 18, 2011 III. BROADER CRITIQUES OF ECHR RELIGIOUS JURISPRUDENCE (ARTICLE 9): PRINCIPLES APPLICABLE IN THE INTERPRETATION OF THE FIRST AMENDMENT BY THE U.S. SUPREME COURT IV. AMERICAN ANALOGUES: RELIGIOUS DISPLAY IN SALAZAR AND ITS PREDECESSORS A. Comparison of the Texts: Article 9 of the European Convention and the First Amendment of the U.S. Constitution B. Supreme Court Precedents Assessing the Constitutionality of Public Religious Displays C. The Salazar Decision V. FURTHER DISCUSSION OF PLURALISM, NEUTRALITY, AND SECULARISM IN THE AMERICAN CONTEXT VI. CONCLUSION Religious display cases before the U.S. Supreme Court and the European Court of Human Rights (ECHR) invoke theoretical ideals, applied to particular complaints about the transgression of the state's neutrality with respect to religion. Secularism, pluralism, and neutrality are most profitably understood in context. This Note seeks to explore some particular contexts in order to comment on the desirability of accepting pluralism, an inclusive ideal, as an interpretive key, rather than secularism, often discussed as if it were a neutral ideal. (2)

1. BACKGROUND: LAUTSI V. ITALYAND ANALOGOUS THEMES FROM SALAZAR V. BUONO

   On Wednesday, June 30, 2010, the Grand Chamber of the ECHR in Strasbourg (3) heard Italy's appeal of the November 3, 2009 Chamber ruling in favor of the applicant in Lautsi v. Italy. (4) In that opinion, the ECHR held the rights of Soile Lautsi, an Italian citizen, and the rights of her children had been violated by the presence of a crucifix in the children's classrooms at the state school they attended. (5) Ms. Lautsi believed that the crucifixes were a religious display that violated the principle of secularism that safeguarded her own desires for her children's education. (6) Ms. Lautsi had pursued the domestic resolution of her complaint before the Veneto Regional Administrative Court on July 23, 2002, claiming that the crucifix display violated the constitutional principles of secularism and impartiality. (7) In 2005, her complaint was dismissed, with the Italian administrative court concluding that the crucifix was no mere religious symbol but was instead closely interwoven with Italian history, culture, and identity and with the state's secularism embodied in such core concepts as equality, liberty, and tolerance, (8) The Italian government asserted the following additional "principles" when arguing before the ECHR in 2009: "non-violence, the equal dignity of all human beings, justice and sharing, the primacy of the individual over the group and the importance of freedom of choice, the separation of politics from religion, and love of one's neighbour extending to forgiveness of one's enemies." (9) On February 13, 2006, the Consiglio di Stato (Council of State) dismissed the applicant's appeal. (10) Prior to the rulings of the Regional Administrative Court and of the Council of State, Ms. Lautsi had attempted to bring her suit before the Italian Constitutional Court. (11) In January 2004, the administrative court granted her request to submit her case before the Constitutional Court; however, the Constitutional Court concluded that it had no jurisdiction because the provisions requiring the crucifixes to be placed in classrooms were administrative statutory regulations, and the Constitutional Court only interprets laws of the legislature. (12) After failing to achieve a satisfactory domestic result in the Italian courts, Ms. Lautsi then appealed to the ECHR, which resulted in the previously referenced 2009 ruling challenged by Italy and reversed in the Grand Chamber's final judgment in its opinion of March 18, 2011. (13) In 2009, the ECHR held that there had been violations of the right to education, found in Article 2 of Protocol 1, (14) in conjunction with the rights of freedom of thought, conscience, and religion guaranteed in Article 9 of the European Convention on Human Rights (European Convention). (15) Italy, believing that its ordinances and practice of placing crucifixes in the classroom were not in violation of the European Convention, appealed the decision and, in the March 1-2, 2010 five-judge panel meeting, the Grand Chamber of the ECHR accepted the request for appeal. (16) On March 10, 2011, the ECHR issued a press release stating that on March 18, 2011, the Grand Chamber would deliver its final judgment in the Lautsi case at a public hearing in Strasbourg. (17) The Grand Chamber's decision differed from the prior ruling, concluding that there was no violation of Article 2 of Protocol No. 1 (the right to education) and no separate issue under Article 9 (the rights of freedom of thought, conscience, and religion). (18)

   Because the 2009 ruling sparked controversy among parties to the European Convention, the Court authorized third parties to present written observations and permitted eight of the ten party governments the right to intervene during the hearing. (19) These intervening countries were represented by Joseph Weiler, who repeated many of his primary arguments from the hearing in a scholarly editorial. (20) In addition to the government interveners, the Court authorized thirty-three members of the European Parliament to jointly submit observations and allowed written comments from a variety of nongovernmental organizations (NGOs) on both sides of the case. (21)

   During his oral argument before the Grand Chamber, Joseph Teller denounced the prior ruling for its disregard of the long-established margin of appreciation doctrine (22) and briefly compared various countries'--both European and non-European--responses to publicly displayed religious symbols. (23) Weiler labeled the original Lautsi decision an "Americanization of the European system" because of the Court's inappropriately broad requirement that Italy, a country that does not abide by a "rigid American style separation of church and state," remain neutral with respect to religion. (24) This characterization of the U.S. Constitution's Establishment Clause as interpreted by the Supreme Court is probably more accurately a description of the jurisprudence of former Supreme Courts, particularly the Warren and Burger Courts. (25)

   In the Establishment Clause application to most instances of religious public display, there has been considerable variation in the degree of neutrality mandated, the tests applied, and the rationales employed. (26) Decisions have often been closely split; in one of these, McCreary v. ACLU, Justice Scalia, in dissent, described the nature of American secularism quite differently from Weiler. (27) Recounting a conversation with a European jurist, he observed that the United States is not a strictly secular country, as distinguished from, for example, France, (28) and commented that the U.S. model does not demand that "[r]eligion [be] strictly excluded from the public forum." (29)

   Weiler's reference to the American system and his characterization of the degree to which the U.S. Constitution incorporates the principle of laicite (secularism) provides a thematic link tying this current ECHR case to concepts present in the recent Supreme Court case, Salazar v. Buono, which also dealt with the public display of a cross. (30) Although the facts of Lautsi and Salazar reference public cross displays in dramatically different contexts, (31) this Note focuses on points of comparison in their treatment of the principle of neutrality.

   One example of the relevance of this prominent theme in Lautsi to the Salazar case comes from a series of questions Scalia posed during the oral argument in Salazar. (32) The respondent Frank Buono, a former employee of the Mojave National Preserve in southeastern California, contested whether a Latin cross memorial erected in 1934 by the Veterans of Foreign Wars (VFW) as a commemoration to the dead of World War I was constitutionally displayed within the preserve on Sunrise Rock. (33) Buono claimed that the cross--a religious symbol--violates the Establishment Clause of the First Amendment. (34) However...