DeGirolami on the ECtHR decision in Lautsi v. Italy: Display of Crucifixes within “Margin of Appreciation”

by Peggy McGuinness

My St. John’s colleague Marc DeGirolami has a post up at Mirror of Justice summarizing today’s European Court of Human Rights decision in Lautsi v. Italy.  The full decision is at the ECtHR’s website here.  At issue in the case was the display of crucifixes in Italian public school classrooms. In 2009, the ECtHR ruled against Italy’s display of the crucifixes, igniting a political firestorm across Catholic states in Europe.  Today’s 15-2 decision by the Grand Chamber of the court is issued following an 2010 acceptance by the Grand Chamber of referral by Italy. (Referral to the Grand Chamber operates sort of like an en banc appeal.) It reverses the earlier opinion, finding the display of the crosses is public schools fell within Italy’s “margin of appreciation” and is therefore not a violation of the European Convention of Human Rights. From Marc’s  post:

What [according to the court] is the meaning of the crucifix?  “[T]he crucifx is above all a religious symbol . . . . The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive[.]”  (66)  The Court therefore did not decide for itself whether the crucifix partook of an identitarian or cultural meaning independent of and in addition to its religious meaning.  But it accepted that the State (here Italy) believed that the crucifix was a symbol with multiple meanings, some of which were foundational as to its civic traditions, and…and here is the key…”the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State.”  (68)

The concept of the margin of appreciation, interestingly enough, in some ways is similar to the doctrine of subsidiarity (see Prof. Paolo Carozza’s excellent work here) and the concept was absolutely crucial to the Court’s judgment.  Because of the well-documented lack of consensus among and even within the European states, and because the crucifix was a “passive symbol” (compare the Folgero and Zengin cases out of Norway and Turkey, respectively — par. 71) whose purpose was not “indoctrination,” the decision whether to retain the crucifix fell within Italy’s margin of appreciation.  (70-72).

http://opiniojuris.org/2011/03/18/digerolami-on-the-ecthr-decision-in-lautsi-v-italy-display-of-crucifixes-within-margin-of-appreciation/

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