Religion and the State – the European Court of Human Rights and the ‘Lautsi' Case About Crucifixes in Italian Class Rooms

Abstract

The relationship between political authorities and religious communities is complex and controversial. One area where the tensions are evident is in public education. Tensions arise when the state seeks to include or exclude contested religious symbols and teachings within the public educational system. The European Court of Human Rights' track record may seem inconsistent. It has restricted religious teaching in textbooks allowed Turkey to prohibit students from wearing religious headscarves at university, allowed Switzerland to prohibit primary school teachers from wearing headscarves , and allows Italy to require crucifixes on school walls – after first denying Italy that authority. There are several ways to try to make some sense of this cluster of decisions. The explanation which will be addressed here is the ECtHR’s practice to grant states a ‘Margin of Appreciation’ (MA). This article seeks to bring a more precise MA doctrine to bear on the Lautsi case concerning crucifixes on school walls, to assess whether the ECtHR decision and doctrine withstands criticism that it is too vague, or that it is poorly applied in this particular case. The first section presents the Lautsi case, the following sections attend to various elements of the MA doctrine of the court. We return at the end to consider whether critics of the MA doctrine are right.

Keywords: European Court of Human Rights, Lautsi, freedom of religion