The Case of Lautsi v. Italy: A synthesis

The case of Lautsi v. Italy, better known as the "Crucifix Case," is a particularly significant case. Its significance is not only political and legal, but also religious. Never before in the history of the European Court of Human Rights and the Council of Europe has a case raised so much public attention and debate. The debate regarding the legitimacy of the symbol of Christ's presence in Italian schools is emblematic of the cultural crisis in Western Europe regarding religion. Twenty-one State parties to the European Convention on Human Rights, in an unprecedented move, joined Italy to reassert the legitimacy of the public display of Christian symbols in European society. The Court finally recognized, in substance, that in countries of Christian tradition, Christianity enjoys a special social legitimacy that distinguishes it from other philosophical and religious belief systems. In other words, because Italy is a country of Christian tradition, Christian symbols may legitimately enjoy greater visibility in Italian society than other religious or ideological symbols. I. INTRODUCTION 875 II. FACTUAL AND PROCEDURAL HISTORY OF LAUTSI 878 III. THE REASONING OF THE SECOND SECTION 883 A. Redefining the Aim of the State-School System 883 B. Educative Pluralism as an Aim 884 C. Summary of the Second Section's Reasoning 884 D. Responses to the Second Section Decision: A Disputed Judgment 886 IV. The Reasoning of the Grand Chamber 888 A. European Court Jurisdiction: Subsidiarity and Margin of Appreciation 889 B. Secularism is a Philosophical Conviction 892 C. Neutrality Applies to the "Acting" and Not the "Being" of a State 893 D. Democracy, Denominational Neutrality and Secularism 896 E. State Education According to the Grand Chamber 899 F. The Crucifix: A Passive Symbol 901 G. No Interference by the State 903 V. SUPPLEMENTARY COMMENTS ON THE GRAND CHAMBER JUDGMENT 906 A. The Crucifix and the Islamic Headscarf 906 B. Negative Freedom of Religion of Non-Believers 908 C. Bavarian Nonsolution 909 D. Tradition 912 E. Majority Religion 914 F. Political and Religious Debate 920 VI. CONCLUSION: THE CONSEQUENCES OF LAUTSI 927 I. INTRODUCTION On March 18, 2011, the European Court of Human Rights, sitting as a Grand Chamber ("GC"), pronounced its judgment in the case of Soile Lautsi and Others v. Italy.1 By this final judgment, which overturned a unanimous judgment rendered on November 3, 2009, by the Second Section2 of the Strasbourg Court, the Grand Chamber3 decided, by fifteen votes to two, that the compulsory display of crucifixes in Italian State-school classrooms did not violate Article 2 of die first Protocol of die European Convention on Human Rights.4 Article 2 of the first Protocol protects the right of parents to ensure that the education and teaching of their children is "in conformity with their own religious and philosophical convictions."5 Moreover, the Court decided that, for the reasons given in connection with its examination of the rights of parents, there was no violation of Article 9,6 which protects the freedom of thought, conscience and religion.7 Nor did the Court find a violation of Article 14," which prohibits discrimination in the enjoyment of the rights and freedoms set forth in the Convention.9 Therefore, the Grand Chamber held that the rights invoked by Mrs. …