Religious Displays at Public Schools — Courts, Crucifixes and Masters of Identities
| DOI | 10.1177/1023263X1101800406 |
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
| Subject Matter | Article |
18 MJ 4 (2011) 479
RELIGIOUS DISPLAYS AT PUBLIC
SCHOOLS COURTS, CRUCIFIXES
AND MASTERS OF IDENTITIES
M Z-J *1
ABSTRACT
is contribution compares the judgment of the Grand Chamber of the European
Court of Human Rights (ECtHR) in the case of Lautsi v. Italy with the decision of the
German Federal Constitutional Court in the Classroom Crucix case. An examination
of the waythat the courts dealt with the common issues of state neutrality in education,
parents’ rights to direct the religious education of their children, students’ right to
religious freedom, a s well as of the consiste ncy of the rulings with relevant ca se law,
reveals that the ECtHR’s Grand Chamber rendered a judgment open to criticism on a
number of grounds. It erroneou sly conated state action interfering with the applicant ’s
rights with the exerci se of some ‘collective’ rights and liberties. e mis-characterization
of the crucix as a ‘ passive symbol’ led the ECtHR to trivialize or dis regard the eects of
the crucix on diss enting students and the state neutrality mandate in public educatio n.
Finally the judgment is not consi stent with the relevant case law of the Court and the
application of the doctrine of th e margin of appreciation has served to weaken its role a s
Europe’s ‘f undamental rights protector’, seeming to be a means through which the Cour t
has gracefully given in to ‘ popular sentiment’. e contribution concludes by oering
a ‘pluralist approach’ as a legislative framework for regulating the display of religious
symbols in public schools .
Keywords: c rucix; ECHR; freedom of religion; public school; relig ious symbols
* S.J.D., LL.M. at C entral Europe an University, Hungar y. Lecturer at the A merican Universi ty in
Bulgaria.
Maria Zhur nalova-Juppunov
480 18 MJ 4 (2011)
§1. INTRODUCTION
e importance of symbol s for religious communities, individua l religious believers, and
the state cannot be st ressed enough. Symbols have been recogni zed as powerful pur veyors
of ideas and meanings.1 Religious symbols are also closely connected with identity.
According to Renteln, individua ls feel that their identities are connected to sy mbols and
therefore, the preservation of these symbols signif y an enormous importance in their
lives. Moreover, there is a tendency to accept the notion that ‘seeing is belie ving’, which
oen results in the reic ation of the symbol.2
is article w ill oer a comparative ana lysis of the legal controversies engendered
by laws requiring the display of crucixes in public school cl assrooms – in the German
Bundesland of Bavaria in 1995 and in the Council of Europe Member State of Italy i n
2010–2011. e article wil l begin with a comparison of the decision of the German
Federal Constitutiona l Court in the Classroom Crucix case3 and the judgment of the
Grand Chamber of the Europea n Court of Human Rights (ECtHR) in t he case of Lautsi
v. Ita ly.4
ese cases invite compar ison because of the simi larity of the issues involved as
well as the extraordinary public attention and strong reaction that they attracted. e
article wi ll examine how each court dealt with t he common issues of state neutrality in
education coupled with parental r ights to steer the religious education of their child ren,
as well as students’ rights to be free from religious coercion and indoc trination, and to
manifest their rel igious or philosophical bel iefs. Furthermore, the article wil l look into
how consistent the two decisions are with t he relevant case law of the two courts.
A major dierence between the disputes is the nature of the legal instruments that
were employed and the positions of the courts vis-à-vis the state authorities, whose
actions were challenged by the individuals: a federal constitution applied by a federal
1 See for example, Justice Ja ckson in West Virginia Board of E ducation V. Barnette, 319 U.S. 629 (1943),
Symbolism is a pr imitive but eective way of commun icating ideas. e use of an emblem or ag to
symboliz e some system, idea, inst itution, or personali ty, is a short cut from mind to mi nd. Causes and
nations, polit ical parties, lo dges and ecclesiast ical groups seek to knit t he loyalty of their fol lowings to
a ag or banner, a colour or de sign. e State announc es rank, func tion, and authority t hrough crowns
and maces, un iforms and black robes; t he church speaks throu gh the cross, the cru cix, the altar a nd
shrine, and c lerical raim ent. Symbols of state oen c onvey political ide as just as religiou s symbols come
to convey theologic al ones.
eologians a nd anthropologists have a lso attested to the con stitutive power of religiou s symbols. See
for example Geer tz: ‘[religious symbol s] function to synt hesize people’s ethos – the t one, character, and
quality of t heir life, its moral and ae sthetic style and mood – a nd their world view – the pictu re they
have of the way thin gs in sheer actual ity are, their mos t comprehensive ideas of order’. See F.S. Rav itch,
‘Religious Objec ts as Legal Subject s’, 40 Wake Forest L. Rev. (2005), p.1031–1023.
2 A.D. Renteln, ‘Visual Re ligious Symbols and the Law ’, 47 American Behavioral Scientist 1573 (2004),
p.1575.
3 BVerfGE 93, 1 1 BvR 1087/91 (Kruzix), 1995 (e Crucix case).
4 Lautsi v. Italy, no. 30814/06, 3 November 2009 (referred to t he Grand Chamb er on 1M arch 2010,
overruled in L autsi v. Italy, Grand Chamber judg ment of 18March 2011).
Religious Dis plays at Public Schools – Cour ts, Crucixe s and Masters of Identities
18 MJ 4 (2011) 481
constitutional court to a sub-unit of the federation, and an international treaty applied
by an international cour t to a state party to the treaty. e article wil l argue that t hese
dierences do not lead to dierent outcomes for the two cases, and that the Grand
Chamber of the ECtHR erred w hen it reversed the judgment of the Second Section in the
case of Lautsi v. Italy. e article wil l conclude with a proposition of a pluralist approach
to the issues that would best protec t the rights and serve the interests identie d above.
§2. THE CLASSROOM CRUCIFIX CASE
e German Federal Constitutional Court dealt with the const itutionality of
permanent displays of religious sy mbols. e case concerned a ministerial regu lation
of the predominantly Cat holic land of Bavaria, requ iring the placement of a crucix on
classroom walls i n public schools.5 Bavaria was and st ill is the only Bundesland requiri ng
the display of cruci xes. In comparison, the Lä nder of Baden-Württemberg, North
Rhine-Westphalia, Hesse, R hineland-Palatinate, Saarland , and uringia permitted the
display of crucixe s in classrooms while Brandenburg , Mecklenburg-Western Pomerania
and the city-state of Hamburg prohibited such d isplays.6
e controversy leading to the case emerged when t wo students and their parents,
as followers of the Austrian huma nist Rudolf Steiner, objected to the presence of a large
crucix in t he students’ classroom.7 Initia lly a compromise was reached whereby the
crucix wa s replaced with a smaller cross over the door, but the school authorities ref used
to do the same in al l classrooms in which the children were al so instructed, to gua rantee
that the compromise would be perma nent. e parents then took the case to the Bavar ian
Constitutional Cou rt, which ruled against t hem in 1991, upholding the constitutiona lity
of the aforementioned re gulation. 8 When the parents led a const itutional complaint
with the Federal C onstitutional Cour t, a majority of the Justices found t he regulation
incompatible with the negative relig ious freedom of non-Christian students a nd parents,
as well as with t he state’s neutrality ma ndate with respect to religion.
§3. THE CASE OF LAUTSI V. ITALY
Seven years later, the mother of two public school child ren in the Italian town of Abano
Terme objected to having crucixes displayed in their classrooms. e cr ucixes were
5 §13 (1), third sentence, of t he School Regul ations for Elementar y Schools in Bav aria (Volksschulordnung-
VSO) of 21June 1983 (GVBl. p.597).
6 L. Auslander, ‘Bavaria n Crucix es and French Headsca rves: Relig ious Signs and t he Postmodern
European State ’, 12 Cultural Dynamics 3 (2000), p.288–289.
7 I.B. Wuerth, ‘Private Re ligious Choice In G erman And Ame rican Const itutional Law: G overnment
Funding And G overnment Religious Spee ch’, 31 Vand. J. Transnat’ l L. (1998), p.1182.
8 Ibid.
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