The European Humanist Federation has written to the European Court of Human Rights supporting the decision of the Court to rule against the display of crucifixes in Italian schools and urging it not to overturn its decision on appeal.  Here is an extract from the EHF submission:

The European Humanist Federation warmly welcomed the decision of the Court last November in the case of Lautsi v Italy.The judgement upheld the principle of the neutrality of the state in relation to religious and philosophical convictions - that is, the principle of secularism - which is the best - perhaps even the only - way of guaranteeing freedom of religion or belief for everyone.

Secularism is not hostile to religion (many religious people strongly support it), nor does it require that religious people be excluded from the public arena. It is totally compatible with the full exercise of the rights guaranteed by Article 9 of the European Convention. Opposition to it amounts - almost by definition - to a claim for superior rights for some over others.

If the principle of impartiality is important, it must be of particular importance where children are concerned. At school they are a captive audience. Their minds are suggestible and immature. They are susceptible to impressions from their surroundings and from the behaviour of others that would have little impact on a mature adult. Article 2 of the first Protocol to the Convention recognises that parents’ wishes for their children’s education in matters concerning religion or belief must not be overridden by the state. This Article must (as the Court found) protect parents’ wishes that their children should not be exposed to such powerful impressions.

It follows that education concerning religion or belief in public schools should be neutral or impartial as between different beliefs. This is an area where policy is developing rapidly and uniformly both nationally and internationally - see, for example, the OSCE’s "Toledo Guiding Principles on Teaching about Religion and Beliefs in Public Schools" (November 2007)and the Council of Europe’s Recommendation CM/Rec(2008)12.

Similarly, impartiality (secularism, neutrality) is the principle that underlies the European Union’s coupling of “philosophical and non-confessional organisations” with “churches and religious associations or communities” and requiring an “open, transparent and regular dialogue” with both - see Article 17 of the Treaty on the Functioning of the European Union as amended by the Lisbon Treaty.

These are the principles, we suggest, that should underlie the Court’s consideration of Italy’s appeal. Are these principles compatible with the compulsory display in classrooms of public schools of the crucifix, or will such display inevitably suggest to pupils that the school and, behind it, the state supports and promotes a particular system of belief, namely,Roman Catholicism?

We suggest, parenthetically, that a ruling against the display of crucifixes is perfectly compatible with allowing pupils to wear religious symbols or dress. Pupils are not representatives of the state: they do not carry the authority of the school. Pupils have a prima facie right under Article 9 to wear religious symbols if they wish: any limitation has to be justified as required in the public interest in one of the ways allowed under the same Article. None of these exceptions to the general freedom to manifest a religion or belief under Article 9 could remotely be applied to justify retention of crucifixes in classrooms.

We have read Italy’s submission of 28 January and we find its arguments illogical and ill conceived. For example, vital distinctions between the state and non-state actors are not made (as in the suggestion that it would follow from the removal of crucifixes from state school classrooms that cathedrals should be removed from city centres - para. 15C). Absence of religious symbols is seen as implicit endorsement of atheism (para. 3E), excluding the possibility of a neutral position. No weight is attached to the special susceptibility of children to implicit religious messages.

As we understand it, there are two key points argued against the Court’s judgement in Lautsi:

(a) that the crucifix is not a religious symbol - or at least not to a sufficient extent to justify the Court’s finding; and

(b) that the discretion (“margin of appreciation”) enjoyed by states is anyway sufficient to allow the Italian government to require the display the crucifix in public schools.

We note that both arguments concede the basic logic of the Court’s judgement. However, we wish to dispute both points:

First, the crucifix as a religious symbol. It is a portrayal of the execution of Jesus Christ, the founder of the Christian religion. It is undeniable that it is a religious symbol. It is an image that stands firmly in the religious tradition of a suffering god. Moreover, it is a very powerful image and potentially a highly disturbing one to put before children. It is the image of a man being tortured to death. And the explanation for this horrific event is scarcely less disturbing: it is that he is being tortured because they, the children, are wicked and sinful. This, of course, is a religious doctrine, not a fact.

It is impossible to [exaggerate] the power of such an image on an unformed mind, and so it was not capricious but entirely reasonable for Mrs Lautsi not to want her children exposed to it, day in, day out, as an idea endorsed by a supposedly secular school. It is patronising and unjustified for Italy to argue (paragraph 3C) that the Court’s judgement overrated “emotional disturbance” and to contend therefore that Mrs Lautsi’s rights under Article 2 of protocol 1 were not infringed.

The other contention is that the crucifix is a symbol not of Christianity but of Italy. But the crucifix is found in Roman Catholic churches and other premises throughout the world, not just in Italy. It is not used on the Italian flag. It is not waved by Italian spectators at international football matches or Italian audiences in the Eurovision Song Contest. Rather, it is a relic of centuries past when Italy was not a secular state but in large part ruled by the Pope.

Secondly is the issue of the margin of appreciation. The justification for the “margin of appreciation” lies in the wish of the Court to recognise that the cultural, historic and philosophical differences between states party to the Convention may justify marginally different interpretations of the Convention. That such differences exist is undeniable, but they do not justify breaches of the Convention, and that they should be used to justify breaches of individual human rights is regrettable. However, such differences are rapidly diminishing as Europe becomes more united and homogeneous, and the Court should therefore be increasingly wary of acceding to self-defensive arguments by states based on the margin of appreciation.

There was a huge public outcry in Italy when the Court’s judgement was published - but it came in a well-orchestrated manner from a highly vocal, intensely Catholic minority. Our Italian colleagues tell us that [the outcry] was widely deplored there, as is illustrated by the letter dated 2 February 2010 that was sent to the Court by 121 Italian organisations wishing to dissociate themselves from the hysterical reaction of some populist politicians. We quote from their own English version of their letter in case it is not before the Court:

“The political debate that followed in Italy has been vicious and violent against non-believers, non-Catholics, heterodox Catholics and, last but not least, the judges of the European Court of Human Rights. Individually and on behalf of the thousands of members of our groups and millions of other Italians we would like to thank the European Court and apologize for the insulting behaviour of Italian government members. We hereby dissociate ourselves from their speeches and comments.

 “Some of us are believers and we all do respect believers, but we cannot accept one religion, not even the most powerful, [being] imposed on everyone.

[Growing demand] by churches as their following diminishes is a pattern we have observed elsewhere in Europe. The Court should not be misled by the clamour or by defensive reactions by the Italian state into changing its verdict. The Court has at times in the past - as in Wingrove v The United Kingdom (19/1995/525/611) - been too amenable to government arguments based on the cultural sensitivities of a small minority that shield long-standing legal abuses of human rights.     
          Acceding to Italy in this case would represent a devastating blow to the steady progress of the past few years towards outlawing discrimination founded on religion or belief and towards recognition of the right [of those who live without religion] not to be imposed upon by religion.

We draw the Court’s attention, finally, to the proposition implicit in the argument for applying a margin of appreciation. This has been popularly expressed as a “clash of rights” between the Italian majority and a trouble-making mother. But majorities have no right to remove the human rights of even one individual contrary to the law and the Convention. Some even have ventured dangerously near to suggesting that in multicultural communities groups have human rights. Italy’s submission (at para. 24) is on these lines. But so-called group rights are an automatic denial of the human rights of individuals within those groups.

N. B. In their reply, the president of the Court rejected the EHF submission on the grounds that it was "unnecessary in the interests of the good administration of justice".