Você está na página 1de 36

Electronic copy available at: http://ssrn.

com/abstract=2041256

Forthcoming in: Jeroen Temperman (ed.), The Lautsi Papers: Multidisciplinary
Reflections on Religious Symbols in the Public School Classroom (BRILL/Martinus
Nijhoff Publishers, 2012).



Religious Symbols in the Public School Classroom


Jeroen Temperman*





I. Of Symbols, State Education, and Relevant Human Rights Questions
States are under international human rights obligations to make available free and
compulsory primary school education and to make generally available secondary
educationaccess to such state education must be universally guaranteed. State
education must be provided in an objective, critical and pluralistic manner, free from
religious coercion or misplaced proselytism. This host of positive and negative
obligations in the combined areas of public education, curriculum-building, and the
protection of religious liberty may have different legal ramifications depending on the
peculiarities of the case. Notably, situations where acts of the State adversely impact
access to education and conscientious liberties of child or parent differ from instances
where the acts of other individuals could affect access to education and religious
freedoms, considering the fact that in the latter scenario different individuals typically
have competing human rights claims.
What is most remarkable in the European Court of Human Rights (ECtHR)
symbols jurisprudence is that more often than not a number of decisive preliminary
questions are not raised, let alone satisfactorily addressed. Who in symbols cases
and the variety of scenarios imaginable thereincan be identified as rights holders,
and how far do concomitant obligations on the part of the state as principal duty
bearer stretch? Under what circumstances may State neutrality be considered a
legitimate ground for limiting fundamental rights? And who is actually supposed to
Electronic copy available at: http://ssrn.com/abstract=2041256

be neutral according to human rights lawStates, buildings, the public square, civil
servants, teachers, students, and/or pupils? When does a symbol interfere with the
rights and freedoms of others or public order? And who is to prove that? Also, what
are the exact standards of proof in symbols cases? Consequently, the increasingly
pertinent question emerges if and to what extent (international) courts may interpret
and explain the meaning of symbols. If symbols do not have monolithic meanings
that can be grasped by judges, the question is what, then, could be seen as more
objective points of departure leading and informing a sound human rights analysis.

II. Of Applicable Rights, Including the Rights of Others
When individuals wear religious attire or display religious symbols in public schools,
a number of (specific elements of) human rights provisions will or might be engaged.
The state could decide to restrict this display or the state could tolerate it; in both
scenarios human rights provisions will be triggered. Setting aside for the time being
all questions of legitimacy, any restrictionfrom national prohibitions to local bans
to more individualized sanctions
1
of the individual display of symbols inevitably
amounts to minimally an interference with the freedom to practise a religion of
belief (the forum externum). In this regard it is crucial to observe that the freedom to
manifest a religion is granted in public or private.
2
Thus, in principle there is a right
to observe ones religion, including through the display of religious symbols, at a
public school. This means that a limit put thereon by the state requires a special
justification. This holds true for individuals regardless of their capacitypupil,
student, teacher, school principal, or caretaker (everyone has the right)albeit that
the individuals capacity may play a role in the context of necessity tests and
potential balancing exercises.
3

In addition to the rights of the symbol-displayer, there may be other rights at
stake, notably other persons rightsthe rights of the symbol-viewerto freedom of
and freedom from religion. The latter negative religious liberties are typically

* Thanks to Malcolm Evans for his comments on a draft of this Chapter (usual caveats apply).
1
And regardless of whether the legal restriction may result in fines, expulsion from school, an official
admonition to remove the symbol, or the dismissal of a non-compliant teacher, etc.
2
Article 18, para. 1, of the International Covenant on Civil and Political Rights, G.A. Res. 2200A
(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, of 16
December 1966 [ICCPR]; and Article 9, para 1, of the [European] Convention for the Protection of
Human Rights and Fundamental Freedoms, ETS No. 5, 213 U.N.T.S. 222, of 4 November 1950
[ECHR or European Convention].
3
See section III, infra.

engaged, or triggered,
4
in the event that symbols are officially or de facto tolerated by
the state. With respect to these negative religious liberties, one may think, in the most
extreme case, of religious coercion. The United Nations ICCPR makes this most
explicit by providing that [n]o one shall be subject to coercion which would impair
his freedom to have or to adopt a religion or belief of his choice.
5
But also short of
outright religious indoctrination, brainwashing or forced conversions, other policies or
practices can be in breach of the ramifications of negative religious liberty. One may
think of compulsory religious oaths schemes for entering public office.
6
Certain
optional religious oath schemes, too, are objectionable for reasons of negative
religious freedom.
7
Oath of office regulations that are premised on religious oaths
being taken as a rule, whilst secular affirmations are regarded as the tolerated
exception, could still lead to situation where one is forced to choose between
revealing oneslack ofreligious belief or surrendering the dictates of ones
conscience.
Generally speaking, then, access to education rights and religious freedoms (of
others) may be engaged inasmuch as individually displayed symbols may impose a
conscientious obstacle to enrolling or remaining in those public schools where this
display is permitted by the state. One may think of parents that have opted for the
public school system precisely out of a (perceived) need for a religiously-neutral and
symbol-free educational environment, thus nipping in the bud any peer pressure (vis-
-vis child) or community pressure (vis--vis parents and child) to observe religious
dress codes.
8

Turning to state-imposed symbols in public schools, the most striking
difference is that as far as the display of the symbol is concerned there is no clear
rights holder here. The state or state schools as such do obviously not enjoy a right to
manifest a religion (under international law). What we face here is not necessarily an
internationally guaranteed legal entitlement of the symbol-displayer, but an interest of
the state and likely one of the religious majority; an interest to perpetuate a long-
observed, precious tradition. It is doubtful whether we can deem this a collective

4
Again, we are not yet considering questions as to breaches of rights, solely prima facie applicability.
5
Article 18, para. 2, ICCPR.
6
Buscarini and Others v. San Marino, 18 February 1999, European Court of Human Rights, No.
24645/94.
7
Alexandridis v. Greece, 21 February 2008, European Court of Human Rights, Appl. No. 19516/06.
8
Some of the ideas presented in relation to this pointsee also section III, infrahave benefited from
on-going discussions on these matters with Professor Wibren van der Burg (usual caveats apply).

manifestation of belief within the ambit of the individual right to freedom of religion
or belief. That individual right certainly has a collective dimension: the individual is
also entitled to worship, teach, practice and observe a religion together with others.
This recognition of collective manifestations of belief does indeed include a right of
individuals and religious institutions to publicly display their religious symbols.
However, this same recognition does not quite entail a clear-cut fundamental right of
the dominant religion to place its symbols in all (state) buildings it sees fit. For the
present purposes,
9
what matters most is that the lack of a clear-cut human rights
entitlement on the part of the symbol-displayer (the state) also means that conflicts of
rights are not as evident here as they are in the area of individually-displayed symbols.
Yet when we turn again to the flipside, the symbol-viewers (individuals), we must
observe that that they remain entitled to a mix of fundamental religious and
educational rights. Crucially, however, in this scenario of state-imposed symbolism
we are not speaking of fundamental rights and freedoms of others, but of primary
rights holders vis--vis the state. Thus, negative religious liberties and universal
access to public education are engaged here not as potential limiting factors but as
legal entitlements of primary rights holders.
None of this implies that individuals displaying religious symbols ought
always to win their cases, or that symbol-imposing statesacting for the religious
majorityought to lose them as a matter of course or whenever challenged. However,
these observations do impact on how religious symbols questions are to be framed
within the human rights framework, especially when we take account of the special
context that is provided by state education.
Applying these preliminary observations to the recent Lautsi case,
10
the
crucifix-in-public-school-classrooms case, the following is remarkable. First and
foremost, the Grand Chamber does not spell out that this case is not evidently one of
clashing religious rights. Quite the contrary, the Court accepts the position of the
Italian Government which had argued that account should be taken of the fact that
the Catholic religion was that of a large majority of Italians [T]he Court should

9
In this same section, infra, we will return to the question whether or not the religious majority has a
legal entitlement to having religious symbols are displayed within public schools, or whether that
interest falls short of a human rights entitlement.
10
Lautsi and Others v. Italy, 18 March 2011, European Court of Human Rights (Grand Chamber), No.
30814/06 (also referred to as the Grand Chamber decision). Lautsi v. Italy, 3 November 2009,
European Court of Human Rights (Second Section), No. 30814/06 (further also referred to as the
Chamber decision).

acknowledge and protect national traditions and the prevailing popular feeling
11

Just short of recognizing this as a right, the Grand Chamber sanctions Italys and all
catholic Italians decision to perpetuate the crucifix tradition.
12
Some of the
concurring Judges reveal they do consider the case as a clear-cut clash of religious
rights: the rights of non-believers and religious minorities versusand as outvoted
bythe rights of all catholic Italians. Judges Rozakis and Vaji refer to a right of
society, as reflected in the authorities measure in maintaining crucifixes on the walls
of State schools, to manifest their (majority) religious beliefs.
13
Accordingly, for
these Judges this case boils down to one straightforward question: Does this right [of
society] ... override the right of parents to educate their children in accordance with
their religion and ... their philosophical convictions?
14
Interestingly, and perhaps
indicative of the tenability of the previous proposition, elsewhere these two Judges
correct themselves when they refer to the right or interest of at least a very large
segment of society to display religious symbols as a manifestation of religion.
15

Concurring Judge Bonello, too, literally balances the religious liberties of catholic
Italians with the rights of minority believers (the Lautsis): If the parents of one pupil
claim the right to have their child raised in the absence of a crucifix, the parents of the
other twenty-nine should well be able to claim an equal right to its presence.
16
Judge
Bonello elaborates on this point:
All the parents of all the thirty pupils in an Italian classroom enjoy equally the fundamental
Convention right to have their children receive teaching in conformity with their own
religious and philosophical convictions, at least analogous to that of the Lautsi children.
The parents of one pupil want that to be non-crucifix schooling, and the parents of the
other twenty-nine, exercising their equally fundamental freedom of decision, want that
schooling to be crucifix schooling. No one has so far suggested any reason why the will
of the parents of one pupil should prevail, and that of the parents of the other twenty-nine
pupils should founder. The parents of the twenty-nine have the fundamental right,
equivalent in force and commensurate in intensity, to have their children receive teaching
in conformity with their own religious and philosophical convictions, be they crucifix-
friendly or merely crucifix-indifferent. Ms Lautsi cannot award herself a licence to overrule
the right of all the other parents of all the other pupils in that classroom, who want to
exercise the same right she has asked this Court to inhibit others from exercising.
17


If we follow that type of reasoning, we have to make an inventory in each and every
public school classroom in Europe to discern what the majority religion isand if so

11
Lautsi and Others v. Italy, ibid., para. 37.
12
Ibid., para. 68.
13
Concurring Opinion of Judge Rozakis, Joined by Judge Vaji, to Lautsi and Others v. Italy
(emphasis added).
14
Idem.
15
Ibid., opening sentences (emphasis added).
16
Concurring Opinion Judge Bonello to Lautsi and Others v. Italy, para. 3.6 (emphasis added).

desired by the latter, stick the triumphant symbol to the wall of that classroom. There
are, however,
18
very plausible human rights claims and arguments why the parental
liberties argument does not cut both ways. Collective positive freedom of religion
does not include an unlimited entitlement for beneficiaries of that fundamental right to
gear state institutions towards religions needs in any way the adherents of the
majority religion see fit; whilst individual negative religious freedom guards against
the threat of religious coercion, and has special significance in those areas where the
state faces positive duties to make available socio-economic goods, such as education.
The state is indeed under negative and positive obligations to make public school
education available and universally accessible. Thus, it is in fact typically the case that
the presence of a state-imposed symbol does, prima facie, engage religious and
educational freedoms whilst the absence of state symbols does not, prima facie,
engage those same freedoms.
The best way to come to realize that point is to consider the reverse situation: a
state that actually refuses to honour the majoritys wishes to display one particular
religious symbol in all public school classrooms.
19
The refusing state does not through
its actions engage the educational and religious rights of children and parents. Under
international law the state is obliged to organize public school education freely
accessible to all regardless of religious or non-religious affiliation;
20
the state is under
no obligation to organizeand not even to fund
21
religiously-oriented education. In
fact, with respect to the latter type of private education the obligations of the state are

17
Ibid., para. 3.5 (emphasis added).
18
As early as the Enlightenment and the French and American Revolutions, these reasons were, pace
Judge Bonello, regularly suggested. If fact, these arguments were en vogue for such a long time, they
manage to find their way into the International Bill of Rights.
19
Or a state that would indeed remove all such already present symbols from public schools walls, thus
ceasing a long-established tradition. Let us generally refer to these possibilities as the refusing state.
20
Article 28, paras. (a) (primary education) and (b) (secondary education), of the Convention on the
Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49,
of 20 November 1989 [CRC or Childrens Rights Convention]. See also Article 13, para. 2(a) (primary
education) and 2(b) (secondary education), of the International Covenant on Economic, Social and
Cultural Rights, of 16 December 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., art. 26, U.N.
Doc. A/6316 (1966), 993 U.N.T.S. 3 [ICESCR].
21
In relation to the creation of religious schools, church autonomy and the right to freedom of
association naturally resists radical state interference: states may only insist on certain minimum
standards pertaining to what subjects are included in the curriculum and pertaining to the desired
overall quality (see sources in note 23, infra, for details). The question whether it is right or wrong that
the state is (permitted yet) not obliged to fund religious schools is an altogether different question and
does not distract from the arguments presented here. It goes without saying that if the state should
decide to fund private, denominational education, such funding must naturally be allocated in an
equitable and egalitarian fashion. Cf. Human Rights Committee, Arieh Hollis Waldman v. Canada,
Communication No. 694/1996, U.N. Doc. CCPR/C/67/D/694/1996, Views of 5 November 1999.

chiefly of a negative nature: a duty not to unduly interfere with private parties
endeavours to provide for alternative schooling.
22
These internationally codified
residual rights make the fact all the more apparent that the refusing state in no way
whatsoever interferes with religious or educational rights. For parents that do not wish
to send their child to public schoolsthey may indeed very well have conscientious
scruples over the fact that those schools are too public for their liking, i.e.
deliberately pluralistic and not religion-minded in a confessional sensehave a right
to opt for private, denominational schooling created outside the state educational
system.
23
Those same residual rights also guarantee crucifix schooling (as Judge
Bonello puts it) or, for that matter, any other forms of confessional observance on the
part of the school authorities that would not be appropriate within the public
educational framework.
24

Thus, the Lautsi Grand Chamber decisions implicitand the concurring
opinions explicitunderstanding that parental liberties mean within the public
school context whatever the religious majority desires them to mean, is unsustainable
from the perspective of international human rights standards. In what follows in this
section (on childrens autonomous freedom of religion and educational rights), it
becomes even more apparent how the ECtHR increasingly construes relevant
Convention rights in ways that are incompatible with equivalent UN standards.
The analysis so far has provided an overview of which rights may or may not
be triggered by the different types of symbols cases. Further applying the inventory
made to the Lautsi case, it is first of all remarkable how narrow a yardstick the
ECtHR uses in its human rights analysis.
25
Notably, the Grand Chamber analyses the
Lautsis claims exclusively in the light of Article 2 of Protocol I to the ECHR. On
close reading the yardstick is even narrower than that: the Grand Chamber solely

22
It may be repeated that some positive obligations can be discerned too; i.e., in relation to
safeguarding minimal quality requirements.
23
International human rights law safeguards the possibility for the parents to opt-out of state schooling
and send their child to private educational institutions. See, e.g., Article 13, paras. 3 en 4, of the
ICESCR. See also Art. 5, para. 1(b), of the Convention Against Discrimination in Education, of 14
December 1960, UNESCO, 11th Sess., 429 U.N.T.S. 93.
24
To be sure, the residual rights argument does not cut both ways either: everyone, including minority
believers, must have access to genuine public schooling. It is the states obligation to provide that and
that alone. This means that minority believers or non-believers may not be expected to rely on a
residual right to create sufficiently public schooling themselves in the event the state fails to do so.
Put differently, a state that takes access of minorities to socio-economic goods seriously makes sure
that the latter are guaranteed a primary, not a residual right to that effect.
25
This section draws on Jeroen Temperman, Lautsi II: A Lesson in Burying Fundamental Childrens
Rights, 6(3) Religion and Human Rights An International Journal (2011), pp. 279283.

looks into the right of parents to ensure such education and teaching in conformity
with their own religious and philosophical convictions (i.e., the second sentence of
said provision). The right to education itself, mentioned in the first sentence of Article
2 of Protocol I, remains largely unaddressed. Also, the Grand Chamber considers
that no separate issue arises under the freedom of thought, conscience and religion,
Article 9, of the Convention.
26

In relation to Ms Lautsis claim specifically, the Grand Chamber explains why
it exclusively concentrates on the second sentence of Article 2 of Protocol I by
postulating that parental liberties can be considered the lex specialis in the case at
hand.
27
In the light of the system and wording of the European Convention this stands
to reason: Ms Lautsi is above all concerned with ensuring that she can raise and
educate her children in ways she sees fit, that is, according to the dictates of her
conscience. Those concerns interact clearly strongly with her own conscience and
beliefs, and her own religious liberties, though her freedom of religion or belief per se
may not be at stake in this case. The United Nations ICCPR, contrary to the
European Convention, lists these parental liberties as an integral part of the freedom
of religion clause,
28
rather than as a part of the right to education clause, making a
much stronger link possible between ones own religion, ones own religious liberties,
and the related right to ensure that the education of ones children is in line with
personal religious convictions. The European Convention system has opted for a
slightly different approach by merging parental liberties with educational rights.
Be that as it may, as far as the Lautsi children are concerned, who are separate
applicants to the case,
29
there can be no question of lex specialis here, at least not for
the full 100 per cent of their claims. The Lautsi children enjoy two fundamental rights
here: a right to freedom of religion or belief and a right to (access to) public school
education. This is the very reason they are individual applicants to the casethe
rights and interests of the different applicants to this case do not fully coincide.
Specifically, the relevant childrens rights are larger in scope than parental liberties.
The European Courts automatic identification of parental liberties as the lex specialis
in cases of freedom of religion that involve children is not at all self-evident if we
look at the UN Convention on the Rights of the Child and the workings of the

26
Lautsi and Others v. Italy, supra note 10, paras. 77 and 78.
27
Ibid., paras. 5960.
28
Art. 18, para. 4, ICCPR.

Committee on the Rights of the Child.
30
Taking the best interests of the child and
the evolving capacities of the child seriously, circumstances can be such that
childrens conscience and their interests in access to public school education engage
autonomous rights. There obviously exists tension between parents liberties (to
ensure the religious and moral education of their children in conformity with their
own convictions)
31
and childrens autonomous right to freedom of religion or belief
and their right to education.
32
With the entry into force of the Childrens Rights
Convention in 1990, at the global (UN) level the paradigm has shifted from always
decisive parental rights to the recognition that childrens rights may function
autonomously with parental rights being accessory. This holds true for situations
revolving around legally non-mature children that de facto are mature enough to form
an opinion and speak their mind.
33
The Convention on the Rights of the Child
provides that States Parties shall respect the rights and duties of the parents and,
when applicable, legal guardians, to provide direction to the child in the exercise of
his or her right [to freedom of religion or belief] in a manner consistent with the

29
Lautsi and Others v. Italy, supra note 10, para. 1 (note also the title of the Grand Chamber case).
30
Cf. Jeroen Temperman, State Neutrality in Public School Education: An Analysis of the Interplay
Between the Neutrality Principle, the Right to Adequate Education, Childrens Right to Freedom of
Religion or Belief, Parental Liberties, and the Position of Teachers, 32 Human Rights Quarterly
(2010), pp. 869872. Article 3 of CRC provides: In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration (see also Articles 9,
18, 20, 21, 37, and 40 on the childs best interest principle). See Article 5 of CRC on the evolving
capacities of the child doctrine. Importantly, the evolving capacities doctrine is once repeated by CRC
to additionally underscore its importance in one particular areanot coincidentally, the article dealing
with the childs right to freedom of religion.
31
In addition to the second sentence of Article 2 of Protocol I to the ECHR, see Art. 14, para. 2, of
CRC; Art. 18, para. 4, ICCPR; Art. 13, para. 3, of ICESCR; Art. 5, paras. 1 and 2, of the Declaration on
the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted
25 November 1981, G.A. Res. 36/55, U.N. GAOR, 36th Sess., U.N. Doc. A/RES/36/55 (1981).
32
Art. 14, para. 1, CRC states: States Parties shall respect the right of the child to freedom of thought,
conscience and religion. See Art. 28 of CRC for childrens right to education. For a comprehensive
study of childrens right to freedom of religion or belief as a right recognized by international law, see
Sylvie Langlaude, The Right of the Child to Religious Freedom in International Law (Leiden: Martinus
Nijhoff Publishers, 2007).
33
Cf. Eva Brems, Article 14: The Rights to Freedom of Thought, Conscience and Religion (A
Commentary on the United Nations Convention on the Rights of the Child (Leiden/Boston: Martinus
Nijhoff Publishers, 2006), p. 25. In this context it is worth emphasizing that the childrens right to
freedom of religion or belief as incorporated into CRC is of a later date than the ICCPR and CRC could
be considered the lex specialis in this context. The ICCPR spoke of the liberty of parents and, when
applicable, legal guardians to ensure the religious and moral education of their children in conformity
with their own convictions (emphasis added); whereas CRC mentions the rights and duties of the
parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or
her right in a manner consistent with the evolving capacities of the child (emphasis added).

evolving capacities of the child.
34
Parental guidance, in the words of Brems, has to
recede as the childs capacities evolve.
35
This means that when parents and child
disagree about the desired form of education, under CRC standards it is anything but a
foregone conclusion that parental liberties trump. This contrasts sharply with
ECtHRs practice of deeming parental liberties automatically lex specialis in all
freedom of religion cases that involve children.
Take for instance the situation where parents want the child to take religious
classes but the child does not, or vice versa. The Committee on the Rights of the
Child, emphasizing the childs evolving capacities,
36
expressed its concern in
relation to Polish practice where students require parental consent to attend ethics
courses.
37
Accordingly, the childs autonomous right to freedom of religion or belief
could prevail in case of a conflict with the parents wishes, merited by the de facto
maturity of the child. The same could be argued with respect to disagreements over
larger issues such as the more general choice between denominational and non-
denominational schoolingor the still larger questions as to belonging to a certain
religion (or not). The Committee may not be in a position to fix in an absolute fashion
the precise age when the child is empowered to make such decisions autonomously.
However, from the fact that the Committee on the Rights of the Child requires (under
the state reporting procedure)
38
information on the legal age for choosing a religion or
attending religious school teaching it transpires that autonomous childrens rights are
ideally granted some time before reaching legal majority.
39
All things considered, the
precise moment indeed depends on the de facto maturity of the child, i.e. his or her
ability to articulate a personal opinion on any of these matters. But once we decide to
take that personally expressed opinion seriously, it in fact becomes the states duty, as
Brems argues, to guard the limits of parental direction in matters of religion and

34
Art. 14, para. (2), of CRC (emphasis added); for a study on this parameter its legal relevance, see G.
Lansdown, The Evolving Capacities of the Child (Florence: UNICEF Innocenti Research Centre,
2005).
35
Brems, supra note 33, p. 26.
36
Ibid., para. 33.
37
CRC/C/15/Add.194 (2002), para. 32.
38
Committee on the Rights of the Child, General Guidelines for Periodic Reports (CRC/C/58, 1996),
para. 24.
39
Cf. Brems, supra note 33, p. 30; she notes that some states have adopted legal provisions in that
respect. E.g., Germany has stipulated that children can make these choices autonomously from age 14:
Religious Education Act, RGBl S. 939, of 15 July 1921; while the Swiss Civil Code sets this age at 16
years.

conscience, and if necessary to offer protection to children against infringement of
their freedom of thought, conscience and religion by their parents.
40

In conclusion, in the light of the foregoing it is obscure why the Grand
Chamber deems so uncritically that in relation to the Lautsi children, too, no separate
issue arises under the right to freedom of thought, conscience and religion. Children,
the persons presently subjected to the practice we are discussing, may very well have
an opinion and, what is more, some first-hand experience on crucifix schooling. In
Lautsi, the second and third applicant were quite young at the material time; yet the
point here is that by declaring parental liberties lex specialis from the outset and
without any concrete reasons in the way of substantiation, the Grand Chamber never
seriously entertained the possibility that children may have a bone to pick in this type
of cases. Further, in the Lautsi case both the Chamber and the Grand Chamber largely
ignore the right to education per se.
41
The Grand Chamber devotes precisely one
paragraph to what it calls the case of the second and third applicants, which consists
of no more than 4 sentences that are worth quoting in full:
The Court considers that, when read as it should be in the light of Article 9 of the
Convention and the second sentence of Article 2 of Protocol No. 1, the first sentence of
that provision guarantees schoolchildren the right to education in a form which
respects their right to believe or not to believe. It therefore understands why pupils who
are in favour of secularism may see in the presence of crucifixes in the classrooms of
the State school they attend an infringement of the rights they derive from those
provisions. However, it considers, for the reasons given in connection with its
examination of the first applicants case, that there has been no violation of Article 2
of Protocol No. 1 in respect of the second and third applicants. It further considers that
no separate issue arises in the case under Article 9 of the Convention.
42


This paragraph in Lautsi is premised on rather serious errors. The reasons given in
connection with its examination of the first applicant's casei.e. the reasons given
why Ms Lautsis parental liberties were not infringedare nowhere near sufficient to
establish that the Lautsi childrens religious and educational rights were not breached

40
Brems, supra note 33, p. 29.
41
The near-exclusive focus on parental liberties is all the more remarkable as it transpires from the
facts of the case that the second and third applicants, being the children, did indeed claim a violation of
the right to education before the European Court. Lautsi and Others v. Italy, supra note 10, para. 29
provides (in part): The applicants complained of the fact that crucifixes were affixed to the wall in the
classrooms of the State school attended by the second and third applicants. They argued that this
infringed the right to education, guaranteed by Article 2 of Protocol No. 1. The Chamber, in the first
Lautsi decision, supra note 10, considered that both article 2 of Protocol I and article 9 of the
Convention were relevant. When taken in conjunction and applied to the facts of the case, the
Chambers Second Section held that the compulsory display of crucifixes does restrict the right of
parents to educate their children in conformity with their convictions and the right of schoolchildren to
believe or not believe. However, the right to education per se is addressed rather marginally.
42
Ibid., para. 78 (emphasis added).

either. Also, being in favour of secularism isindeednot what triggers religious
and educational rights of those subjected to crucifix schooling, but the
internationally codified agreements that oblige states to design a public school
environment that is universally accessible and respective of minority beliefs. The
upshot of the Grand Chambers approach is that childrens negative religious liberties
and access to public education rights do not get serious attention; the same goes for
access rights to socio-economic goods of minorities in general.

III. Of Burdens and Standards of Proof
A host of human rights norms is triggered by the public display of religious symbols.
The circumstances of the casewho displays the symbol, who views the symbol, and
within what specific settingfurther impact threshold and evidentiary matters,
questions concerning the legitimacy of invoked grounds for restriction, questions as to
the necessity and proportionality of interferences, the existence of a pressing
social need, and relevant balancing exercises.
In Lautsi, the Grand Chamber held that [t]here is no evidence before the
Court that the display of a religious symbol on classroom walls may have an influence
on pupils and so it cannot reasonably be asserted that it does or does not have an
effect on young persons whose convictions are still in the process of being formed.
43

The well-known Dahlab v. Switzerland case dealt with the question whether the
authorities were permitted to forbid Mrs Dahlab from wearing an Islamic headscarf
whilst acting in her capacity as primary school teacher. Here the Court argued in
relation to the potential effects of (these) religious symbols:
The Court accepts that it is very difficult to assess the impact that a powerful external
symbol such as the wearing of a headscarf may have on the freedom of conscience and
religion of very young children. The applicants pupils were aged between four and eight,
an age at which children wonder about many things and are also more easily influenced
than older pupils. In those circumstances, it cannot be denied outright that the wearing of
a headscarf might have some kind of proselytising effect...
44


Accordingly, the European Court of Human Rights considers that in the absence of
proof to the contrary in cases involving state display of symbols (notably, crucifixes)
in public schools, it may be assumed that the symbol has no adverse effects on the
rights of others; whereas in the absence of proof to the contrary in cases involving the

43
Ibid., para. 66.
44
Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, Appl. No. 42393/98, p.
13 (emphasis added).

individual display of symbols (notably, Islamic headscarves) it may be assumed that
the symbol does have adverse effects on pupils. From the perspective of individual
human rights protection, these a priori assumptions are oddthey are much odder
still if we consider the arbitrary premises on which the Court bases these
presuppositions.
It appears that the Courts decisions to fix the burdens and standards of proof
the way it does is importantly premised on the concepts of essentially passive
symbols (such as, in the eyes of the ECtHR, the crucifix) and powerful external
symbols (such as, according to the ECtHR, the Islamic headscarf).
45
Much has been
written on these characterizations, also in this volume.
46
Doubtless, those labels have
triggered so much debate as they are rather arbitrary and odd in and for themselves.
The Grand Chamber in Lautsi was right in concluding that the facts of the two cases
[Lautsi versus Dahlab] are entirely different
47
however, both the reasons given for
that conclusion and the consequences attached to it are wrong. From the Lautsi
judgements context, it transpires that the crucifix is passive chiefly on account of it
being on a wall.
48
The crucifix is furthermore deemed passive as it cannot be
deemed to have an influence on pupils comparable to that of didactic speech or
participation in religious activities.
49
These observations hardly serve as sound
distinguishing factors: Mrs Dahlab did not use her headscarf as part of didactic
speech or participation in religious activitiesshe was wearing one whilst teaching.
Likewise, crucifixes were hanging on school walls whilst teaching took place.
Considering the crucifix an essentially passive symbol is plainly arbitrary and truly
uninformed according to semioticians. Equally arbitrary is the presupposition that a
crucifix on a wall cannot be deemed to have an influence on pupils, or that sign-
language necessarily has less impact than didactic speech. Most if not all persons
that observe the crucifix on a classroom wall will consciously or sub-consciously
make the link between the signifier and the signified, that is, will match the symbol
and the religion that is always/mostly/typically signified by it. What precisely happens
in that continuous process of identification and re-identification may play out

45
Lautsi and Others v. Italy, supra note 10, para. 72 (a crucifix on a wall is an essentially passive
symbol).
46
See particularly the Chapter by Andreescu & Andreescu, who identify three possible meanings of the
passiveness of a symbol.
47
Lautsi and Others v. Italy, supra note 10, para. 73.
48
Ibid., para. 72.
49
Idem.

differently for different personsyet in all instances that non-verbal sign-language is
as active as can be. In fact, its activeness may become multiplied by the particular
setting in which it takes place, in our case state education, a compulsory setting where
youths are also initiated in the basics of what is right and what is wrong.
50

The ECtHR, however, does not cite any authority when it concludes that
certain symbols are passive and others would be powerfulit seems to be basing
itself purely on common sense. How common that sense really is becomes painfully
evident when we reverse everything the European Court claims in this regard. A
religious symbol on a wall of a state building is active, strong, powerful,
external or political, etcetera, in so far as most if not all people perfectly
understand it is the state that has ordered or sanctioned it to be there, thus seemingly
indicating a religious preference or at least attaching its seal of approval to what
would typically be the dominant religion whilst refraining from bestowing any such
seal of quality upon minority religions or non-religious faiths. Religious symbols or
attire displayed by individuals, on the other hand, are passive, internal, weak,
non-political, etcetera, in so far as most if not all peoplenotably those accustomed
and content to live in a pluralist and tolerant societyperfectly understand that this
symbol indicates a personal religious preference and, in the absence of concrete
evidence to the contrary, no coercive attempt to impose on others that preference.
From the perspective of parental liberties, the latter train of thought is certainly a very
plausible one. How clear, scientifically speaking, any of those messages stemming
from symbols in actual fact are to (young) children remains to be seen.
51
The point
here is that the Courts a priori presuppositions are shady at best given that they can
so easily be reversedand come out stronger.
All things considered, the ECtHR should not engage in its private common
sense deconstructions of the meaning of symbols in the first place. A fortiori,
international monitoring bodies should refrain from construing non-Western symbols
as quintessentially illiberal since the Court is not qualified to make such assessments;
and at any rate, there will always be sufficiently objectifiable factors present in
symbol cases on which to base a critical and balanced human rights analysis. The best

50
Cf. Mawhinneys contribution to this volume. See her Chapter for a fascinating introduction into the
discipline of semiotics.
51
See text around note 69, infra, on the declining value of the teachers-as-role-models argument. See
also previous note and particularly the contribution by Mawhinney in this book, on state symbols.

example of how this can go dreadfully wrong was in Dahlab, where the Strasbourg
Court notoriously claimed that the headscarf:
appears to be imposed on women by a precept which is laid down in the Koran and which
is hard to square with the principle of gender equality. It therefore appears difficult to
reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for
others and, above all, equality and non-discrimination that all teachers in a democratic
society must convey to their pupils.
52


In Sahin, too, the wearing of Islamic headscarves is deemed synonymous with
practices that are inherently coercive, necessarily reflect a degree of submission of
women to men, thus affecting gender equality as a matter of course.
53
This
jurispathic role of courts is, as Brett Scharffs argues, to some extent inescapable
and necessary. After all, the law as a normative institution is not just about creation,
but preservation as well. A community that is exclusively creative, one that is in the
grip of competing jurisgenerative visions, will splinter and fall apart. The centre will
not hold. One job of the judge is to decide among competing conceptions, even if it
means eliminating others.
54
However, jurispathic judgeslike the European Court of
Human Rights in the headscarf casesrisk overstepping the mark. Scharffs contends
the following in particular reference to national (French) law and courts, but the
argument very much applies to international monitoring bodies too:
Judges, confronted with too much creativity in the elucidation of normative meanings by
various communities within the polis, decide for one, put the coercive power of the state
behind it, and in so doing destroy or attempt to destroy all other competing meanings. Thus,
for example, when a legislature or court determines that the headscarf is a symbol of
oppression, its decision carries with it the coercive power of the state, and its determination
of what the headscarf means is jurispathicit kills (or at least tries to), in a decisive and
conclusive way, alternative meanings ... Muslim girls or women may have a different
understanding of what the headscarf means, but when the state declares in an authoritative,
official voice, those alternative meanings are not just undermined, they are delegitimized.
55


This basic understanding of what type of arguments courts may accept at face value,
and what type of arguments they may not, impacts evidentiary questions; notably, it
will influence the burdens and standards of proof in symbols cases.
Perhaps the ECtHR could have invited expert testimony critically elucidating
the potential effects state or individually displayed symbols have on other people

52
Dahlab v. Switzerland, supra note 44, p. 13.
53
Leyla Sahin v. Turkey, 10 November 2005, European Court of Human Rights, No. 44774/98, para.
115 (seconding the Chambers considerations to that effect) and para. 116 (underscoring the equality
before the law of men and women).
54
Brett G. Scharffs, Four Views of the Citadel: The Consequential Distinction between Secularity and
Secularism, 6:2 Religion & Human Rights (2011), p. 124. See also Scharffss Chapter on jurispathic
versus jurisgenerative judicial interpretation in this book.
55
Ibid., p. 123. In her dissenting opinon, Judge Tulkens argued and warned against too jurispathic an
approach in Sahin. Dissenting Opinion of Judge Tulkens in Sahin, paras. 1112.

(from for instance semioticians, child pedagogy and child psychology experts in
Dahlab and Lautsi).
56
When the government invokes grounds for restriction that are
based on alleged proselytizing effects, such a reality checka moment to pause and
reflect informed by expertswould not be out of the question. In relation to
allegations of symbols inherent women-unfriendliness, or inherent illiberal
significance, etc, it is more difficult to see how the ECtHR could invite sound expert
testimony that would objectively explain the meaning of a symbol, for the plain and
simple reason that there is no monolithic meaning of for instance the Islamic
headscarf out there that could with absolute authority be graspednot even by
experts. In cases like Sahin and Dahlab the Court could, however, relatively
straightforwardly question if not falsify underlying Governmental assertions that a
certain symbol does have one meaning and that this meaning is necessarily coercive.
57

That said, in symbols cases it is typically not actually necessary to invite
expert data to settle these casesas long as we consider the proper mechanisms of
human rights law and the derived equitable burdens and standards of proof. In the
final analysis, the issue of proof of (the absence of) adverse effects is typically the
states problem first and foremostnot the individuals. This holds true for cases
involving state-imposed symbols as well as for cases revolving around restrictions of
individually-displayed symbols. This point requires some closer inspection of these
cases, linking questions of standards and burdens of proofs to our previous
observations concerning applicable rights as outlined in the previous section.
In restriction cases such as Dahlab and Sahin, at the outset of a legal analysis
human rights law is in principle on the side of the symbol-displayer. The individual,
be it a teacher, student or pupil, enjoys after all a fundamental right to manifest a
religion both in public or private. Any state measure affecting this freedom
minimally amounts to an interference with the forum externum.
58
The latter freedom is
clearly not absolute, but the state will need to substantiate an overriding need to
interfere with this freedom, citing accepted grounds for restriction. In symbols cases

56
Mawhinneys contribution to this volume is a case for a more multi-disciplinary approach to this type
of cases, notably legal reasoning must incorporate insights from semiotics.
57
For instance, by giving a voice to the very women that have a stake in the case at hand. As Judge
Tulkens argues, [w]hat is lacking in this debate is the opinion of women, both those who wear the
headscarf and those who choose not to. Dissenting Opinion of Judge Tulkens in Sahin, supra note 55,
para. 11.
58
In Dahlab, supra note 44, too, which concerns a teacher, dress rules amount at least to an
interference according to the ECtHR (at pp. 1112 reference is repeatedly made to the interference).

potential legitimate grounds are the protection of the rights and freedoms of others
and conceivably the protection of public order or public safety.
59
If the symbol-
displayer is an individual, and thus a primary human rights holder vis--vis the state, a
purely theoretical need to interfere with fundamental rights can hardly ever be
considered legitimateone would assume and hope. Such is however precisely what
occurred in Dahlab. The fact that it cannot be denied outright that Islamic
headscarves might have some kind of proselytising effect, as such, is far too
abstract and vague a ground to be considered truly legitimate. Only by granting the
state an excessively wide margin of appreciation, in one and the same act destroying
the very core protection guaranteed by the fundamental right to freedom of religion,
could this defence be accepted by the European Court. The Court in Dahlab in fact
concedes there was no actual clash of rights, only an academic one.
60
It is true that
mere threats to the rights of others may underexceptionalcircumstances justify
interferences. However, in that case some minimum proof of that risk must be
presented by the state. The state may be considered best positioned to make
assessments as to certain threatsit is not denied that margins of appreciation do
need to play a role here. Yet in order to prevent restrictions from being exclusively
based on groundless fears, some minimal substantiation on the part of the state may
be expected; moreover, the level of international supervision should minimally
include the possibility to pronounce the absence of a pressing social need (to
restrict) in the event a state does not present that minimal case.
61

Put differently, at this stage of our human rights analysis the onus to prove
adverse effects still lies squarely on the state. It cannot reasonably be expected from
the symbol-displayer, who in principle does nothing more than exercise a fundamental
right, to prove that she does not abuse her right (at least, not as long as the state has
not provided anything in the way of proof that such would be the case, i.e. some
minimal case warranting a reversal of the burden of proof). Following that reasoning,

59
Art. 9, para. 2, ECHR lists the accepted grounds for limitation. In Dahlab (ibid., p. 9) the
Government argued that the aims pursued were undeniably legitimate and were among those listed in
the second paragraph of Article 9 of the Convention. In their submission, the measure prohibiting the
applicant from wearing an Islamic headscarf was based on the principle of denominational neutrality in
schools and, more broadly, on that of religious harmony. The Court reformulates (and accepts) these
aims as the protection of the rights and freedoms of others, public safety and public order (ibid., p.
11).
60
Ibid., p. 12 (potential interference).
61
Cf., mutatis mutandis, Dissenting Opinion of Judge Malinverni Joined by Judge Kalaydjieva to
Lautsi and Others v. Italy, para. 1.

it is all the more remarkable that the fact that the municipal school authorities in
Dahlab had not received a single complaint from parents in relation to her wearing a
headscarf is nowhere considered to be a relevant factor by the ECtHR.
62
After all,
such facts are indicators or initial proof (i) that what we are dealing with is a normal
exercise of a fundamental right and that abuse of rights allegations seem groundless;
(ii) that rights-of-others and public order limitations advanced by the state prima
facie lack real weight (i.e., a pressing social need to restrict is lacking); and (iii) that
the religious manifestation is in principle still covered by human rights law,
requiring further substantiation from the state as to the necessity of the interference
(i.e., in addition to we fear this individual display may harm others).
None of this goes to show that it is completely out of the question that the
restricting state wins a case against an individual symbol-displayer. The analysis so
far solely reiterates what human rights protection of the freedom to manifest a religion
is all about: when states restrict personal manifestations of religion, a substantiation of
the necessity and proportionality of the invoked ground for limitation is required. If
the aim invoked is the safeguarding of the rights of others, that substantiation may be
expected to be particularly thorough if a clash of rights is not something evident.
Specifically, if children/parents do not quite feel that their rights are at stake, the state
may not seize their rights as an abstract ground for limiting individual religious
manifestations. It cannot be ruled out, however, that the state successfully establishes
that adverse effects on the rights of others are so imminent that state interference is
warranted (or, alternatively, that this risk has been established to the extent that the
burden of proof shifts to the symbol-displayer to dispel the information presented by
the state). For instance, a state may be ableunlike Switzerland in Dahlabto bring
to the attention of the Court particular facts indicating that the display of the religious
symbol is accompanied by active acts of improper proselytism on the part of the
teacher.
There are also circumstances imaginable that potentially warrant state
interference with the manifestation of religion for reasons that go beyond those

62
Dahlab v. Switzerland, supra note 44, p. 1: the schools inspector informed the Canton of Geneva
Directorate General for Primary Education that the applicant regularly wore an Islamic headscarf at
school; the inspector added that she had never had any comments from parents on the subject. And
ibid., p. 4: In displaying a powerful religious attribute on the school premisesindeed, in the
classroomthe appellant may have interfered with the religious beliefs of her pupils, other pupils at the
school and the pupils parents. Admittedly, there have been no complaints from parents or pupils to
date (ECtHR quoting domestic proceedings).

pertaining to the individual behaviour of the symbol-displayer. As those external
reasons, reasons beyond our own control, are naturally particularly difficult to
stomach, we must tread very carefully here. It should be emphasized that any such
reasonsif valid at allmust be construed very narrowly, must as a matter of
principle be considered as temporary, and must very thoroughly be substantiated by
the state. Let us consider the example where a public school receives complaints from
parents that have concrete reason to fear their child may be pressured into accepting
religious dress codes they themselves, parents and child, do not wish to observe.
Under such circumstances, and if state or school authorities can prove concrete peer
pressure (non-observing children are reproached by children of religious parents) as a
part of wider patterns of general community pressure (many religious parents want
their children to observe religious garb rules in a particular school, particular quarter
of district or other well-defined locality), the introduction of temporary and targeted
neutral dress rules may be said to serve a legitimate aim. It cannot be overemphasized
that none of these factorsreligious demography, possibility of community or peer
pressure, etceteraever justify sweeping national bans on the individual display of
religious dress and symbols for the simple reason that such a measure is bound to fail
the proportionality test. In all Western European states that have recently introduced
such drasticdraconianbans lesser interfering measures were possible, namely a
law authorizing the local authorities (school boards, municipal/borough
administrations or other local administrative units) to adopt designated and temporary
measures to pacify recorded instances of religious pressure.
Also, the higher the form of education, the higher the standards of proof
regarding the necessity of such measures may be expected to be. In this regard,
mature university students, such as in Sahin, can be meaningfully distinguished from
primary school children, such as in Dahlab.
63
Admittedly, that is a common sense
distinction and deconstruction too. Yet this distinction does not boil down to
venturing into the meanings of symbols per se, but rather reflects the internationally
recognized acknowledgment that the less mature and empowered people are in cases
of conflicting freedoms of conscience, the stronger the protection of these rights of
others may be expected to be. International childrens rights discourse on the best
interest of the child and the evolving capacities of the child are reasonably

objectifiable criteria that in fact allow us to circumvent doctrinal debate about
symbols per se.
In addition to the protection of the rights and freedoms of others, the need to
preserve the non-denominational character of the state and state schools (or more
generally, the neutrality of the state; or more narrowly, the secularity of the state)
is typically advanced by the state as a ground to interfere with the display of symbols
in those symbols cases where individuals act as symbol-displayer.
64
State neutrality is
a legitimate ground for limitation only insofar as it can be deemed a prerequisite for
the protection of the rights of others and for public order.
65
This possible ground for
interfering with the display of symbols begs the question what (acts, situations) could
actually be said to affect the neutral character of the state or of the state school
system specifically. In other words, who may be expected to be neutral? And to
what extent? It is possible to distinguish teachers from the state itself. Obviously the
distinction between teachers and pupils/students is also significant in the present
debate. Let us start with the latter point.
Though certainly entering the public realm in abstracto, public school pupils
do not represent the state in any way whatsoever inasmuch as they simply make use in
a private capacity of a servicea compulsory one in case of primary school
education
66
that is provided by the state. The same goes for university students,
though they enter this public space on a more voluntary basis. It may be reiterated
once more that freedom of religion or belief is in principle protected in public or
private. Accordingly, in the absence of extreme circumstances (proven community
and peer pressure, religious strife) it can hardly ever be considered necessary to
altogether ban the display of individual religious symbols from the public school
system for that system to be and remain non-denominational (or neutral, or
secular). The display of religious symbols by individuals, if there are no concrete

63
To be sure, note that in Dahlab, ibid., neither religious pressure by the teacher nor community or
peer pressure by parents or children to wear a headscarf was proven by the state.
64
E.g., in Dahlab, ibid., p. 2 (the strict obligation of denominational neutrality), p. 4 (the principle
of denominational neutrality).
65
In Dahlab, ibid., p. 4, it was concluded during the domestic procedure that the impugned decision is
fully in accordance with the principle of denominational neutrality in schools, a principle that seeks
both to protect the religious beliefs of pupils and parents and to ensure religious harmony, which in
some respects is still fragile. The European Court, ibid., p. 12, underscores several times (by
implication) the denominational neutrality of the public school system as a legitimate ground for
restriction.
66
Secondary schooling is typically largely compulsory too, depending on national legislation on
compulsory education and the fixed school-leaving age.

indicationsbeyond unsubstantiated fearsthat such display is accompanied by or
triggers religious pressure, does not show the failure of state neutrality. If anything, it
shows there is equal respect for the manifestations of different beliefs by individuals,
also in public. To the extent that pupils/students can be said to affect the neutrality
or secularity of the state non-verbally and inadvertently, such is in principle covered
by their right to observe their religion in public. Consequently, the denominational
neutrality card should not uncritically be accepted when played out against
pupils/students.
67

With respect to public school teachers the situation is different inasmuch as
the link between these individuals and the stateand the latters need to observe
neutralityis a closer one.
68
That arguably holds true regardless of the question
whether or not public school teachers are appointed as civil servants under domestic
law. On the face of it, then, that fact may lend some support to abstract
argumentations premised on teachers-as-role-models in conjunction with the
argument that public service workers expressly or implicitly wave some of their rights
when they enter their function. Still, though, the neutrality argument in the present
context should not be accepted as a wholesale justification. Despite the fact that some
deference to the states position on any of this may be in order, not all abstract
arguments should be uncritically accepted.
First, note that the argument that teachers function as a role-model, and that
especially younger pupils would be likely to copy the behaviour of this authoritative
figure, does not find an equivalent in the relevant contemporary scientific research.
69

That observation casts serious doubt on the assumption that teachers attire and
symbols as such (i.e., in the absence of express proselytizing behaviour) might have
some kind of proselytising effect (i.e., the Dahlab formula). In the light of the
foregoing discussion on the position of international judges, the question is whether
international monitoring bodies should (by virtue of granting states a wide margin of
appreciation) acquiesce in abstract proselytism arguments or whether instead critical
inquiries into the exact necessity of the symbol/dress ban are in order. Considering the
fact that we are dealing with a symbol-displayer as individual rights holder,
international scrutiny is most certainly in order. If special proof of the risk of

67
See also Dissenting Opinion of Judge Tulkens in the case of Leyla ahin v. Turkey, para. 5.
68
Cf. ibid., para. 7.

proselytism is required in order to decide the case, it is the state that faces the
evidentiary burdenindividuals, also in their capacity of teachers, in principle
exercise a fundamental right.
That is, unless we should conclude that public service workers are deprived of
certain rights or at least of the public dimensions thereof. That is precisely the gist of
the related waver-of-rights argument: regardless of whether they are formally under
the domestic laws considered civil servants or not, public school teachers work for a
public institution, a position they have voluntarily taken up. In contrast to the position
of pupils/students, one could accordingly considerthe argument goesthat teachers
represent the state to some extent, and at any rate may be expected to abide by certain
professional duties that come with working for a public institution.
But abstract fears alone again ought not to be all-decisive at this specific
junction of our symbols discussion. To a considerable extent, the public manifestation
of religion by individuals through the use of symbols is only as problematic as states
make it and want it to be. Certainly, there may be niches of the public square where
strict denominational neutrality cannot be subject to any compromise (e.g., the
impartial appearance of the judiciary); however, not all that is deemed public is
necessarily or automatically adversely affected by the individual display of symbols.
In some parts of Europe individually displayed symbols by for instance policemen is
ever so unproblematic and has not led to public indignationimportantly because it is
legally not treated as a problematic issue. This almost appears a self-enhancing
principle: the less the state panics about the individual display of religious symbols in
public places, even where it concerns public service workers, the more visibly and
literally pluralistic and equally respective of symbols the state is and appears, and the
more likely it is that the symbol-viewer, in turn, finds it rather normal that s/he is
confronted with a personal religious symbol in the public space. Unfortunately, the
flip-side seems to hold equally true: political and legislative panic may very well
foster societal panic. Also note in this regard that the vehement and obstinate rejection
of individual religious symbols from public spaces is very symbolic in its own right:
religion as something for at home. And: only persons that show no sign of religion
may be expected to serve the public well.

69
See Stijn Smets contribution to this Volume, particularly section V of his Chapter and the there cited
child psychological and pedagogical research.

Let us turn now to the altogether different situation where the state acts as
symbol-displayer and where individuals are rights holders chiefly as symbol-viewers.
None of the above goes to show that states are free to display any symbol they see fit,
anywhere they see fit. It may be reiterated that where the state acts as symbol-
displayer we can hardly consider the state to qualify as rights holder under
international human rights law. Human rights argumentswhich, alarmingly, can
actually be found in Lautsipremised on the a priori overruling force of perpetuating
majority traditions are flimsy indeed.
70
There is no such thing as a right of the
dominant religion to display symbols inside the public premises of its choosing. That
practice is a possibility, indeed a tradition,
71
but in line with what we have seen a
rather objectionable one from the perspective of the requirements of freedom of
religion or belief, equality before the law, and equal access to public services. The
state that would downright refuse the display of symbols of the dominant religious
tradition in public schools would not interfere with any fundamental right, a position
further supported by the existence of residual religious and educational rights.
72
It is
indeed precisely the existence of the right of churches, religious communities, and
private school boards, to design alternative schooling with an expressly non-critical,
deliberately non-objective, and distinct non-pluralistic teaching environment, that
makes it all the more important for states to keep public school education truly public.
Crucifix schooling is fully guaranteed by international law, but not inside state-run
institutions. Proselytizing young, impressionable pupils is fully accepted by
international law, but non-state entities will have to organize that for themselves.
Mindful of those preliminaries, let us further consider the position of the
display-viewer, the latters fundamental rights and especially the derived equitable
burdens and standards of proof in cases where the state imposes the symbol or
sanctions the perpetuation thereof. The Grand Chamber in Lautsi applies as key
yardstick the question as to whether the crucifix indoctrinates pupils.
73
There are two
issues here: (i) whether that is an adequate human rights test in this case?; and (ii),
once we have established the right test, who is to prove/falsify any adverse influence?

70
See supra, text at notes 723.
71
In the words of both the Italian Government and the Grand Chamber, Lautsi and Others v. Italy,
supra note 10, resp. paras. 3637 and paras. 6768.
72
See supra, text at notes 723.
73
Lautsi and Others v. Italy, supra note 10, para. 62.

The very narrow indoctrination test the Grand Chamber (chiefly) applies can
be criticized for various reasons. First and foremost, this test departs from the
comprehensive pluralism in education and non-proselytism tests formulated and
applied by the Court in public education cases. From for instance Folger it follows
that the public school framework and curriculum must be designed in a way so that it
can be guaranteed that children are taught in an objective, critical and pluralistic
manner.
74
The fact that the state has not expressly pursued an aim of indoctrination
does not quite ensure that public school education is sufficiently pluralistic or
universally accessible. As the Court postulated in Folger, abuses can occur as to the
manner in which the [educational legislations] provisions in force are applied by a
given school or teacher and the competent authorities have a duty to take the utmost
care to see to it that parents religious and philosophical convictions are not
disregarded at this level by carelessness, lack of judgment or misplaced
proselytism.
75
For sure, the high-threshold question as to whether outright coercion
takes place is certainly one of the most pertinent questions when we are dealing with
cases where individuals display symbols and where other individuals simultaneously
hold rights as symbol-viewers. In those cases we need to know more or less precisely
the adverse effects to know how to justly balance competing fundamental rights
claims. Put differently, to restrict the individual display of religious symbols a degree
of abuse of religious rights must be substantiated: it must become evident that we are
dealing with an extraordinary case in which the individual indeed seeks to
indoctrinate others or indeed minimally engages in so-called improper acts of
proselytism.
76
The position (superior, teacher, etc) of the symbol-displayer may
certainly be taken into account so as to judge the latter; however, the fact in itself that
a person decides to display a religious symbol does not amount to a clear aim of
improper proselytism (for it is covered by a human right to behave in that way). In

74
Cf. Mawhinneys and Pieriks contributions to this volume (see section III of Mawhinneys Chapter;
and see section III of Pieriks Chapter). E.g. in Folger and Others v. Norway, 14 February 2006,
European Court of Human Rights, No. 15472/02, paras. 84102.
75
Folger, ibid., para. 84(i) (emphasis added).
76
Whereas the ECtHR speaks of misplaced proselytism (Folger, idem; see also Hasan and Eylem
Zengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04, para. 52) or
unrestrained proselytism (efika Kse and 93 Others v. Turkey. 24 January 2006, European Court of
Human Rights, No. 26625/02) in relation to state obligations in the area of public schooling; in relation
to horizontal individual acts, the decisive factor is the properness of proselytism. Cf. Kokkinakis v.
Greece, 25 May 1993, European Court of Human Rights, No. 14307/88, paras. 4849 (improper
proselytism); and Larissis and others v. Greece, 24 February 1988, European Court of Human Rights,
Nos. 23372/94; 26377/94; 26378/94, para. 45 (improper proselytism).

short, we need to assess the actual behaviour of the symbol-displayer in order to make
up the final balance. In the case of state-imposed symbols misplaced proselytism is
rather easily prima facie established, for most if not all proselytizing endeavours on
the part of the state are misplaced. What would in the civilian worldespecially in a
pluralistic and tolerant world where one is perfectly accustomed to diversitybe seen
as an innocuous exchange of ideas which the recipient is free to accept or reject, may,
within the confines of compulsory public schooling, be viewed as a form of undue
pressure in abuse of power.
77

In addition to the outlined negative religious liberties, in those cases where the
state imposes the symbol, and where the symbol-viewer is consequently the principal
rights holder, important questions emerge regarding equal access to public services.
Thus, our next question is whether the state may present parents/children with
conscientious dilemmas in the area of the compulsory public good that is primary
school education. Specifically, the dilemma is a forced choice between surrendering
access to state education or surrendering ones (non-)religious conscience.
78
Judge
Bonello finds it absurd that anyone could, on grounds of religious liberty, find issue
with a crucifix in a schoolroom.
79
But perhaps it is not quite so unimaginable or
unreasonable that parents that send their child to such a public school are very
anxious that the state favours the predominant religionfavours it to the extent that
the state goes out of its way ensuring an official salute to this religion in each and
every state schooland that this very fact alone objectively, rather than subjectively,
80

undermines the public quality of state schools their children, and they themselves on
account of their parental liberties, are entitled to.
81


77
This is the Larissis formula (ibid., there employed to contrast the civilian world with the confined
and hierarchical world of the military), here applied to compare the civilian world with areas where
states exercise public authority. Again, this is not to say that all civilian display of symbols is
necessarily innocuous: how free others in the civilian world are exactly to accept or reject would
depend on the context, and particularly on the behaviour of the symbol-displayer.
78
The fact that this is a real issue and not an academic one, and also that it is experienced beyond the
realm of predominantly Catholic states, is reported by, e.g., Charles Russo in relation to Republika
rpska. If religious (in this case Christian Orthodox) symbols are present in each and every public
school throughout the state, children of non-believers or those belonging to minority religions may not
have genuine access to public school education. Charles J. Russo, Religion and Education in Bosnia:
Integration Not Segregation?, 3 Brigham Young University Law Review (2000), p. 945.
79
Concurring Opinion Judge Bonello to Lautsi and Others v. Italy, paras. 2.82.9.
80
The Grand Chamber held in Lautsi that the applicants subjective perception is not in itself
sufficient to establish a breach of Article 2 of Protocol No. 1 (Lautsi and Others v. Italy, supra note
10, para. 66).
81
Needless to say, here residual rights of parents (in this case the rights of the non-religious to arrange
private education) do not remedy the situation: it is the states duty under international law to make
available public education with adequate curricula, teaching methods, and to ensure universal access to

In the event that Italy had adopted a law requiring all public schools to
henceforth display a symbol representingequally unambiguously
82
atheism in
each and every public school classroom, a breach of the Convention could be
established likewise. Indeed, one wonders what the third party interveners reactions
would have been should the Strasbourg Court, for instance, have condemned the
Czech Republica somewhat more likely example with >50 per cent of the
population consisting of atheists, agnostics, non-believers or no-organized believers
on account of a federal law requiring that on each and every state school wall an A
(for Atheism) be painted (or any other well-known atheist sign).
83

A state that imposes a crucifix in a public school classroom suggests that the
religion that is thereby symbolized is the exemplary religion. A state that paints an
Atheism sign on each and every public classroom wall suggests that pupils are well-
advised to denounce all religion. Such state-imposed symbolism interferes with the
right to freedom of thought, conscience or religion of parents and childreneven if
the atheistic or religious majority share a heartfelt wish to perpetuate that tradition.
And in either scenario there may very well be parents that cannot enrol their child in
any such public school without doing serious harm to their conscience. Note that we
are talking about (relatively) unambiguous religious symbols (e.g., a crucifix) and
equally (relatively) unambiguous atheist signs (e.g., said A-signs). False analogies
demonstrating
84
the innocuous nature of imposing on all the symbol of the dominant
religion are easily made. The fact that we also see many secular symbols in the
public square is quite beside the point. Also, comparing crucifix schooling with
widespread forms of religious symbolism practised more generally in other areas
(e.g., on flags or coats-of-arms) does not distract from sincere access issues in relation
to public education caused by the former practice.
Thus, in the area of state symbols the risk for actual indoctrination is only one
concern. The states obligation to ensure that everyone can enrol in public schools

state-organized education, which includes avoiding policies that could cause conscientious obstacles to
universal access and enrolment.
82
E.g. the different variations on the A-symbol. See <http://www.religioustolerance.org/atheist6.htm>.
Or think of the different No Religion symbols: i.e. a cross, the word God, or the word religion
placed against the background of a prohibited-sign. The A-symbol is most apt for the purposes of the
analogy drawn here with religious symbols. No Religion symbols are overly anti-religious, rather
than positively representing a non-religious (atheism, agnosticism, etc) faith.
83
See previous footnote. To be sure, the Czech Republic has adopted no such ludicrous policy.
84
One is invited to consult the third party interventions in Lautsi for some examples (Lautsi and Others
v. Italy, supra note 10).

without conscientious trouble is as important. It is odd why the European Court of
Human Rights has not quite recognized this concern in relation to public education, as
it has elaborated on this requirement in other areas of law and policy-making.
Religious oaths of officea widespread tradition too in Europe and elsewhere
85

are not problematic because of a scientifically proven risk that the oath-taker will
subsequently be a devout adherent to the dominant religion, but mainly because such
oath schemes signal that normally the incumbent office holder adheres to the
dominant religion. This is precisely the reason that even certain optional religious
oaths schemes (if the religious oath is the rule and the secular affirmation the tolerated
exception) are objectionable from a human rights perspective: the assumption is that
normal office holders adhere to the religion or God sworn to. Moreover, non-
believers or members of minority religions are forced to reveal that they do not share
that dominant faith if they want to take the secular affirmationor alternatively feign
the religious oath contrary to their conscience.
86
By and large the same goes for public
education (and many other public services for that matter): even short of establishing
the precise decree of indoctrination the conclusion must be that there is no place for
religious symbols on walls of state school premises. There the main concern is that
parents/children may reasonably think the state takes sides in religious mattersthe
message is: the normal religion in this class is x. Even if that is not officially the
intended message, and even if the state otherwise formally promotes pluralism, it is in
this situation that it cannot be denied outrightto use the Dahlab formulathat
ostensible religious preferences on the part of the state may impact every day school
life.
Consequently, parents objecting to the symbols presence in their childrens
public school have a prima facie human rights case. Accordingly, the onus must be on
the state to substantiate what measures it has taken to make absolutely sure that the
symbol policy does not negatively affect public education. It is quite remarkable that
the fact that no evidence was brought before the Court
87
on the symbol policys
effects in Lautsi is held against the applicant. The nature of the Italian policy means
that all public schools are obliged to display the crucifix with no possible local

85
Jeroen Temperman, StateReligion Relationships and Human Rights Law (Leiden/Boston: Martinus
Nijhoff Publishers, 2010), pp. 316320.
86
Cf. Alexandridis v. Greece, supra note 7; and Buscarini and Others v. San Marino, supra note 6, for
examples of respectively optional and compulsory religious oath of office schemes.
87
Lautsi and Others v. Italy, supra note 10, para. 66.

exceptions or opt-outs. Somewhat different is the situation where the display is in
principle prescribed by national or local regulations, but where schools must remove
the symbols in case of complaints by parentsa decent attempt at treaty-conform
interpretation found in some of the jurisprudence stemming from constitutional,
supreme or other courts in Europe (notably Spain).
88
What remains problematic in that
situation, however, is that adherents of minority beliefs or non-believers are forced to
reveal that they do not share the dominant religion and that they in fact find issue with
a tradition cherished by the majority. The risk for ostracization or other repercussions
alone could make affected persons decide to rather surrender their conscience and not
speak out. The public space is created by the liberal state as a universally accessible
domain precisely with a view towards guaranteeing that the state itself will neverbe
it deliberately or inadvertentlyforce such dilemmas on any of its inhabitants.
Here the analogy with opt-outs to religious instruction in public schools is
quite apt. There is increasing evidence available that opt-out provisions are the
problem rather than the solution (to the compulsion element of religious instruction in
public schools).
89
The traditional view, formulated by most international monitoring
bodies, including the UN Human Rights Committee and the ECtHR,
90
is that there are
two main ways for the state to fulfil its relevant human rights obligations. It either
creates an educational system and a public school curriculum in a designedly
pluralistic manner. Or, alternatively, in case it does allow confessional religious
instruction (i.e., religious education going beyond neutral courses about religions) in
public schools, the state lives up to its commitments if it grants adequate opt-out
rights.
91
However, if we consider the every-day reality of school-life and the practical

88
For more examples of how domestic courts have pacified state symbols questions, see the detailed
country studies in the comparative part of this volume.
89
Alison Mawhinney et al, Opting Out of Religious Education: The Views of Young People from
Minority Belief Backgrounds (Belfast: Queens University Belfast, 2010); Yuko Chiba and Alison
Mawhinney, Religious Education, Opt-Outs and Freedom of Religion in Schools, in Welfare of the
Child and Beliefs of the Parents (Cyprus: University of Nicosia Press, 2010); Alison Mawhinney,
Submission to the Human Rights Committee with Respect to the Third Periodic Report of Ireland
[NGO Information], March 2008 (this shadow report is a response to U.N. GAOR, Hum. Rts. Comm.,
U.N. Doc. CCPR/C/IRL/3, paras. 40911); Alison Mawhinney, Freedom of Religion in the Irish
Primary School System: a Failure to Protect Human Rights, 27(3) Legal Studies (2009); Alison
Mawhinney, Freedom of Religion and Schools: the Case of Ireland (Saarbrucken: VDM Verlag, 2009).
90
See, e.g., Folger and Others v. Norway, supra note 74; and Leirvg v. Norway, 3 November 2004,
Human Rights Committee, Communication No. 1155/2003.
91
Unlike the issues discussed in what follows, a number of problems surrounding opt-out schemes can
be fixed. First of all, opt-out clauses are, naturally, not adequate remedies if the subject of religion is
too closely integrated with the curriculum (like in Ireland, for instance). Thus, the religion subjects
must be taught separately at times known to parents in advance. Exemption schemes must be non-
discriminatory. People of all religious denominations must be in a position to avail of the opt-out

limitations of these opt-out schemes, it becomes clear that exemption policies can
neither prevent nor remedy a number of fundamental concerns. One may think of
privacy concerns (in relation to the intimacy of ones beliefs), ostracization (the
opted-out child may be deemed different by its peers), or personal identity-issues
(the opted-out child, temporarily removed from its peers, itself discovers that it is
somehow different). Both parents and child sacrifice at least a degree of privacy of
their inner-most dictates of their conscience whenever they make their grievances
public so as to obtain the exemption. Naturally, the precise degree depends on what
information is required, but at any rate the burden is on parent/child to reveal that they
wish to deviate from orthodoxy, that they are not a normal case.
Thus, the interrelated issues of potential marginalization, young pupils
identity issues, and forced disclosure of (aspects of) non-orthodox beliefs, provides a
firm case against doctrinal religious instruction in public schools per se. If opt-outs do
not remedy the compulsion element of doctrinal religious instruction in state schools,
international monitoring bodies should revise their approach and their tests
accordingly.
92
With respect to crucifix schooling, it is equally clear that neither
individualized opt-outs nor the possibility of school opt-outs can fully remedy the
situation as long as those exemptions are dependent on parents/children coming
forward with sustained complaints. The latter development local (school) authorities
are mandated to seize a crucifix policy in the light of complaints could perhaps be
applauded as an interim solution. Taking privacy rights, the best interest of the child,
and non-persecution on religious grounds seriously, ultimately means that the state
must pro-actively guarantee that public goods remain universally accessible and not
leave that to the bravest among the unorthodox.


provisions: also parents/children that nominally adhere to the dominant religion must be in a position to
opt-out. After all, what counts is not ones religious affiliation but whether religious instruction is
desired or conscientiously objected to. Religious parents, too, may very well decide to either privately
teach religion to their children or to actually let the child freely discover this for itself. See, mutatis
mutandis, Hasan and Eylem Zengin v. Turkey, supra note 76. Furthermore, exemption schemes in
practice do not work if they are not transparent and if parents and pupils are not informed about their
rights. The Committee on the Rights of the Child criticized Poland in this respect, observing that
despite regulations guaranteeing that parents can choose for their children to attend ethics classes
instead of religion classes in public schools, in practice few schools offer ethics courses to allow for
such a choice and students require parental consent to attend ethics courses. Concluding Observations:
Poland, adopted 4 October 2002, U.N. GAOR, Comm. on Rts. of the Child, 31st Sess., U.N. Doc.
CRC/C/15/Add.194 (2002), para. 32.

IV. Of Margins of Appreciation and the Courts own Legitimacy
It perfectly stands to reason that States ensure that public schools uphold their public
character so that all who wish or are legally obliged to attend may do so without
conscientious scruples. By way of conclusion, let us reflect on an issue that
importantly underlies the Grand Chamber decision in Lautsi: the implicitand at
times rather explicitunderstanding that the Chambers Second Section had
overstepped the mark, had unacceptably interfered with a purely internal Italian affair,
added to a real sense of fear that Italy would never have complied with the first Lautsi
judgementgovernmental representatives had indeed expressed Italy would most
definitively not.
93
In other words, this decision would fit in a series of overly intrusive
Strasbourg judgements (e.g., UKs reaction to the judgement in Hirst,
94
and other
such instances) potentially undermining the Courts legitimacy.
One question is whether the first Lautsi decision indeed falls within this
pattern of risky activist decisions or whether different players in the Lautsi saga
have tried to convince us it falls in that category whilst it actually does not. The
second question is whether we should care (this time) if that were the case.
Let us start with the latter issue of judicial activism. Perhaps it is too easy to
rebut that concern by postulating that it is the moment the European Court becomes
overly preoccupied with its own legitimacyto the extent that it would even a priori
weight it as a swaying factorthat its legitimacy receives the biggest blow. Certainly,
no one benefits from an exodus from the Convention. But in this area, too, reality
checks are in order. It should be borne in mind that minority protection is by
definition an unpopular enterprise. The at least partially successful Europe-wide
(legal) emancipation of first homosexuals and later transsexuals, importantly fostered
by the Strasbourg Courts case law, would not have been possible if the Court at the
relevant time had been preoccupied with its own legitimacy. True, relevant

92
Something that cannot be emphasized enough is that such an approach does not prejudice in any way
whatsoever the possibility of religious instruction in private denominational schools. Internationally
recognized residual rights to that effect exist.
93
Least eloquent were the concerns voiced by the Italian minister of defence, Ignazio La Russa, who
stated on television: Anyway, we wont take away the crucifix! They can die! The crucifix will remain
in all schools rooms, in all public rooms! They can die! They can die! Them and those fake
international organizations that count for nothing! (interview available at
<http://www.youtube.com/watch?v=goWDmbvNGr0>). Silvio Berlusconi heavily criticized the first
Lausti decision too. E.g., Reuters, Berlusconi Says Crucifix Ruling Denies Europes Roots, 4
November 2009, available at < http://www.reuters.com/article/2009/11/04/us-italy-crucifix-
idUSTRE5A33ZP20091104>.

judgements were jurisprudentially carefully premised on European legal and societal
changes; but in reality these decisions were at the same time very much in the face of
alarming prejudices and on-going legal and societal discrimination in many parts of
Europe. But what matters most some decades down the line is that despite initial
scruples on the part of some governments these European judgements made headway
into many national jurisdictions. Sometimes Strasbourg gently moulds a common
European position. For if we have to wait for all member states to first convince their
religious majorities that this is the way to go, we may have to wait for ever. Defenders
of tradition will call it activist or at least ahead of its timedefenders of minority
rights will call it the pivotal catalyst and occasionally necessary counter-majoritarian
role that comes with collectively agreeing to a European social contract.
Following an early Strasbourg decision on gay rights, the Cypriot Judge Zekia
predicted public outcry in Christian Europe surely affecting the position of the
Court
95
he was wrong. Many equivalent verdicts followed swiftly concerning other
European countries,
96
many a law was changed, and legal emancipation made
considerable headway, mutually reinforcing with gradual societal emancipation. As
Eric Heinze argues, [w]henever other arguments run out, omens of outcry and
turmoil based on centuries old beliefs, are invoked. It is an age-old tactic, used in
the denial of the most fundamental rights, from suppression of alternative political or
religious viewpoints, to slavery and racial discrimination, to subjugation of women.
97

Strikingly, those same majoritarian argumentsaccompanied by the complete denial
of minority rightsadvanced by Judge Zekia can thirty years later almost verbatim be
found in the Grand Chambers reasoning and in the appended arguments of the
concurring Judges in Lautsi (i.e., those arguments premised on the Italians right to
perpetuate a majority religious tradition). Judge Zekia argued:

94
Hirst v. the United Kingdom (No. 2), 6 October 2005, European Court of Human Rights (GC), No.
74025/01, on prisoners right to vote.
95
Dissenting Opinion of Judge Zekia in Dudgeon v. United Kingdom, 22 October 1981, European
Court of Human Rights (GC), No. 7525/76: Christian and Moslem religions are all united in the
condemnation of homosexual relations and of sodomy. Moral conceptions to a great degree are rooted
in religious beliefs All civilised countries until recent years penalised sodomy and buggery and akin
unnatural practices While on the one hand I may be thought biased for being a Cypriot Judge, on the
other hand I may be considered to be in a better position in forecasting the public outcry and the
turmoil which would ensue if such laws are repealed or amended in favour of homosexuals either in
Cyprus or in Northern Ireland. Both countries are religious-minded and adhere to moral standards
which are centuries old.
96
For the inevitable decision regarding Cyprus, see Modinos v. Cyprus, 22 April 1993, European Court
of Human Rights, No. 15070/89.

we must not forget and must bear in mind that respect is also due to the people holding
the opposite view, especially in a country populated by a great majority of such people
who are completely against unnatural immoral practices. Surely the majority in a
democratic society are also entitled to respect for their religious and moral beliefs and
entitled to teach and bring up their children consistently with their own religious and
philosophical convictions. A democratic society is governed by the rule of the majority.
It seems to me somewhat odd and perplexing, in considering the necessity of respect for
ones private life, to underestimate the necessity of keeping a law in force for the
protection of morals held in high esteem by the majority of people.
98


In Lautsi, the third party interveners, the Government of Italy and some of the
concurring Judges, rather went out of their way to create a picture of the case showing
that what we are dealing with is not even a real human rights casewhat we are
dealing with, surely, is but a militant atheist looking for a game of game of rough-
and-tumble, abusing her so-called rights in the process. Rough-and-tumble is what Ms
Lautsi gotprobably a bit more than she bargained for.
99
But the only question that
should matter for the European Court is whether the applicant has standing and a
prima facie case, that is, a case that is not manifestly ill-founded. Particularly the
access to education angle to the case made it prima facie founded, considering the fact
that it is within states with an overwhelming religious majority where, moreover,
official or de facto ties between the state and the dominant church exist, that states
should be all the more vigilant that this situation does not hamper access to socio-
economic goods by minority groups or non-believers.
100


97
Eric Heinze, Sexual Orientation: A Human Right An Essay on International Human Rights Law
(Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1995).
98
Dissenting Opinion of Judge Zekia in Dudgeon v. United Kingdom, supra note 95.
99
It has been reported that she and her children were harassed; that crosses were painted on her house;
and that wanted posters with pictures of the Lautsi family were put up by a mayor/MP. See, e.g.,
Human Rights Forum, A Tale of Two Courts Part Two: The Reactions to the Lautsi v. Italy
Chamber Judgment, available at < https://humanrightsforum.wordpress.com/2011/05/02/a-tale-of-
two-courts-%E2%80%93-part-two-the-reactions-to-the-lautsi-v-italy-chamber-judgment/>. Note that
these fairly sensationalist facts serve a substantive argument as well: if there is any truth to these
reports, this shows once more that the otherwise fairly agreeable solution of having local school boards,
upon receiving sufficient complaints from parents, decide on a case-by-case basis whether or not
religious symbols are removed, is ultimately not a satisfactory resolution. Non-religious parents or
adherents of minority religious are still forced to choose between surrendering their conscientious
objections (enrol their child to a school that is not sufficiently pluralistic and public) or facing the wrath
of the community. As has been argued throughout, the state is under a human rights obligation to
refrain from imposing such dilemmas on people.
100
In the words of the UN Human Rights Committee: The fact that a religion is recognized as a state
religion or that it is established as official or traditional or that its followers comprise the majority of
the population, shall not result in any impairment of the enjoyment of any of the rights under the
Covenant In particular, certain measures discriminating against the latter, such as measures
restricting eligibility for government service to members of the predominant religion or giving
economic privileges to them or imposing special restrictions on the practice of other faiths, are not in
accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal
protection under article 26... Human Rights Committee, General Comment No. 22: The Right to
Freedom of Thought, Conscience and Religion (Art. 18), CCPR/C/21/Rev./Add.4 (1993), para. 9.

Never has the Court been so actively lobbied to reverse a judgement as in
Lautsi, with numerous religion-based organizations impressively channelling the
indignation by joining forces and by mobilizing civil society, politicians and academic
scholars to intervene for their cause. The Grand Chamber all too eagerly took the bait.
If the Courts legitimacy was what was on the line, one may very well wonder
whether the precise fashion in which the Grand Chamber divulged its U-turn to the
world was particularly helpful. For some are bound to perceive the case as yet another
reiteration of the fact that Muslims statistically have a hard time wining their cases in
Strasbourg; whereas Christians, or Christianity as the case may be, win them as a
matter of coursebe it in the area of defamation cases, education cases, symbol
cases, political association cases, etc. Where some may see latent double standards,
others may experience the Courts symbols jurisprudence even as expressions of
xenophobia, notably in relation to the Courts arbitrary substantive qualifications
regarding to the meaning of Western versus non-Western symbols. Be that as it
may, inexplicable decisions regarding the burdens and standards of proof in personal
attire and state-imposed symbols cases are for sure bound to affect the Courts
legitimacy in the long run. The same holds true for the Courts downplaying of
minority rights in pluralist societies and the Courts simultaneous upgrading of
orthodox morality to the level of absolute legal entitlements. European Court judges
firing ad hominems at applicants,
101
or presenting us with their personal declarations
of faith,
102
is not likely to benefit the Courts legitimacy either.
In sum, a catalyst and occasionally counter-majoritarian European Court is
merited when minority rights are really on the linethe Italian Governments and
concurring ECtHR judges interventions in the whole Lautsi saga are worrying
demonstrations of how seriously the rights of the non-religious are takeneven if that

101
Concurring Opinion of Judge Bonello to Lautsi and Others v. Italy, paras. 1.5 and 1.6.
102
Judge Bonello refers to the crucifix as a timeless symbol of redemption through universal love.
Admittedly, he puts these words in the mouth of others, namely millions of Europeans, but it
nonetheless is his choice of words. The full sentence reads: It would have been quite bizarre, in my
view, for this Court to protect and redeem an under-the-counter, over-the-borderline discharge of
nauseous obscenity on the ground of its distinctly faint European heritage merit, and, in the same
breath, deny European heritage value to an emblem recognised over the centuries by millions of
Europeans as a timeless symbol of redemption through universal love (ibid., para. 4.1. The
comparison he makes is in reference to another case recently decided by the Court (Akda v. Turkey, 16
February 2010, European Court of Human Rights, No. 41056/04) in which the Court had deemed
Turkish criminal and other sanctions (notably the banning of the book) imposed on the Turkish
publisher of the novel Les Onze Mille Verges by Apollinaire a violation of the freedom of expression.
Bonello was displeased with the Courts saving this smear of transcendental smut (ibid., para. 4.1).

means that states and the orthodox religious establishment do not get precisely what
they want. But all the previous considerations do not distract from the announced
second point: the first Lausti decision was not an earth-shattering decision. It was not
tremendously far-reaching or excessively intrusive; and it was in actual fact not in the
face of widely varying state practice in Europe. The backlash to Lautsi I was
brilliantly orchestrated and overstated andit is safe to say with the benefit of
hindsightvery successful.
103
But let us be clear: the Chamber did not rewrite
European history, did not for once and for all eradicate all religious symbols from the
public domain, and did not install a Europe-wide once-size-fit-all regime of stringent
lacit. What the Chamber did was concluding that in relation to one well-defined and
confined element of the public spacethe public school frameworka number of
solid human rights reasons exist that require that space to be truly universally
accessible; something that does not prejudice the possibility that dominant religions
are generally more visible in public, and not affecting in any way whatsoever
denominational schooling.
104

A decision like that is not revolutionary. It is what Europe by and large
already thinks and does. In Lautsi II, the Grand Chamber can hardly wait to adopt a
wide margin of appreciation.
105
One of the decisive reasons cited in that regard is the
claim that the matter at hand would not yet have yielded a consensus in Europe. The
little exercise
106
in comparative European state practice presented in the Grand
Chamber judgement is, however, a fraud. Or in any event it is highly misleading.

After allso he reasonsWikipedia classifies this work as a pornographic novel (ibid., para. 4.1,
fn 3).
103
An interesting behind-the-scenes report on the strategies used by religious organizations, from
American Evangelicals, to the Holy See, to the Russian Orthodox Churchwary that Lautsi I could
have had local ramifications by way of jurisprudence citing the Strasbourg Courts precedentto
reverse the first Lautsi judgement is presented by Pasquale Annicchino, Winning the Battle by Losing
the War: The Lautsi Case and the Holy Alliance between American Conservative Evangelicals, the
Russian Orthodox Church and the Vatican to Reshape European Identity, 6(3) Religion & Human
Rights (2011), pp. 213-219.
104
The gist of the first Lautsi decision (supra note 10) isit will be clearlargely applauded here.
However, the Chambers exact reasoning is not entirely seconded. It follows from the above
discussions that the Chamber could have elaborated much more extensively on the equality before the
law and the access to public education angles to the case (i.e., in addition to the freedom of religion of
parents and child angle). Although the Chamber presented a number of solid arguments, important
complimentary considerations were omitted, and the judgement would at any rate have benefitted from
a more robust and rigorous analysis.
105
On the extraordinary adoption of a (very) wide margin of appreciation, see Kristin Henrard,
Shifting Visions about Indoctrination and the Margin of Appreciation Left to States, 6(3) Religion
and Human Rights (2011), pp. 245251.
106
And uncritically copied from third-party interveners See Section III ofwhat is ironically part of
The Facts of the judgement (Lautsi and Others v. Italy, supra note 10).

State practice is not so divided as the Italian Government, third party interveners, and
ultimately the Grand Chamber, want us to believe. If one is adamant to prove a
diverse European practice, this is easily done by generally answering the question as
to what types of practice on state symbolism are out there. One will find, as the Court
does, that a small number of states expressly prohibit state authorities from
displaying religious symbols; a small number explicitly prescribe them; and [i]n the
great majority of member States of the Council of Europe the question of the
presence of religious symbols in State schools is not governed by any specific
regulations.
107
On the face of it, then, practice is indeed as diverse as can be. Yet, no
information is presented on the question to what extent particular states have not
adopted specific regulations for the plain and simple reason that it legal-politically
self-evident that federally prescribing religious symbols in all public schools is
unconstitutional/contrary to fundamental rights/problematic in the light of the
neutrality of the state, etc.
108
One needs only to slightly fine-tune the comparative
research question in order to straightforwardly establish a common European
position: How many European states in the twenty-first century, as per federal
legislation, compulsorily (i.e. required as per a state regulation) prescribe the display
of the religious symbol of the majority religion in each and every public school
classroom? The answer is: so few that a clear common European position comes to
the fore indicating that this practice is no longer acceptable.
109

The presence/absence of a common European position, particularly in relation
to the problmatique of majority morals, is subject to a long-standing debate.
Importantly, the UN Human Rights Committee has expressed its sensible and well-
balanced position on this point indicating that the concept of morals derives from
many social, philosophical and religious traditions; consequently, limitations on the
freedom to manifest a religion or belief for the purpose of protecting morals must be

107
Ibid., paras. 26-27.
108
It is one-sidedly and misleadingly pointed out in said overview that in some states without formal
legislation on the matter, religious symbols can nevertheless be found in state schools (ibid., para. 27).
No effort whatsoever is made to look into the flip-side: states without concrete legislation that do not
place religious symbols on public school walls, as that would not even occur to the powers that be,
given the obvious constitutional or other legal constraints to that effect.
109
Knowing how to frame the question is crucial to established or ruling out, as the case may be, a
common European standard. Unfortunately, there is little consistency or transparency to the ECtHRs
approach in this regard. See Mnika Ambrus, Comparative Law Method in the Jurisprudence of the
European Court of Human Rights in the Light of the Rule of Law, 2:3 Erasmus Law Review (2009),
particularly pp. 362367. The ECtHR often follows the findings presented by an amicus, though the
presented levels of abstraction vary widely.

based on principles not deriving exclusively from a single tradition.
110
Other
monitoring bodies have gone even beyond that, declaring that perpetuating dominant
traditions shall never be considered a legitimate reason for circumventing the human
rights obligations owed to minorities.
111
The European Court of Human Rights proves
to be most susceptible to the perpetuating-a-religious-tradition card. However,
112
any
perceived pluralism at the European level can hardly be considered a sound reason for
destroying pluralism at the national level.

110
Human Rights Committee, General Comment No. 22 (supra note 100), para. 8.
111
E.g., Committee on the Elimination of Discrimination against Women, General Recommendation
21, Equality in Marriage and Family Relations (Thirteenth session, 1992), U.N. Doc. A/49/38 at 1
(1994), reprinted in Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 250 (2003), paras. 1517 and 50;
Committee on the Elimination of Discrimination against Women, General Recommendation 23,
Political and Public Life (Sixteenth session, 1997), U.N. Doc. A/52/38/Rev.1 at 61 (1997), reprinted in
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 260 (2003), paras. 20, 27, and 44; Committee on the
Elimination of Discrimination against Women, General Recommendation 19, Violence against Women
(Eleventh session, 1992), U.N. Doc. A/47/38 at 1 (1993), reprinted in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.6 at 243 (2003), paras. 11, 20, 21 and 23. See Artt. 2(f) and 5(a) of Convention on the
Elimination of All Forms of Discrimination against Women, G.A. Res. 34/180, 34 U.N. GAOR Supp.
(No. 46) at 193, U.N. Doc. A/34/46, of 18 December 1979 (entered into force 3 September 1981).
112
Professor Renta Uitz madefar more eloquentlya comment along these lines at a Seminar on
Lautsi held in Budapest (International Workshop on Perspectives on the European Courts Italian
Crucifix Decision, Central European University, 8 June 2011, Budapest, Hungary)credits go to her
(usual caveats apply).