Kai Sørlander, philosopher and author
The Court itself maintains that its decision is based on two articles of the Convention. First, article 2 of the first protocol, which says that if the state assumes certain functions in regard to education and training, it must respect parents’ right to an education for their children that is consistent with their own religious and philosophical convictions. And second, article 9 of the Convention itself, which states that each individual has the right to freedom of religion. The question is whether these articles do, in fact, logically justify the court’s ruling that crucifixes should be prohibited in public schools.
Let us first examine the requirement that the state, in public schools, must respect parents’ right to an education for their children that is consistent with their own religious and philosophical convictions. This must mean that if the parents are Christian, the state has to respect the parents’ right to an education for their children that is consistent with their Christian convictions. And if the parents are atheists, the state must respect the parents’ right to an education for their children that is consistent with their atheistic convictions. And so on, in regard to parents with various other religious and philosophical views.
This article alone does not lead naturally to the conclusion that crucifixions should be prohibited. On the contrary, one may conclude from the article that crucifixes should be permitted, if the state is to respect Christian parents’ right to an education for their children that is consistent with their Christian beliefs. In the same way one may conclude that the crucifixes should be removed, if the state is to respect the right of atheist parents to an education for their children that is consistent with their atheistic convictions. In short, when the court rules that crucifixes should be prohibited, it is not being neutral. It is ruling in favor of atheists and non-Christians. But in doing so, the court is itself violating the requirement that the state should respect parents’ right to an education for their children that is consistent with their own religious and philosophical convictions. For the court’s decision favors parents who are atheists over parents who are Christians. And there is no basis for this preference in the article itself.
If the court claimed that its decision against crucifixes were based solely on article 2 of the first protocol, then, the decision wouldn’t hold water, for the decision in fact violates that article. But the court claimed to have based its decision additionally on article 9 of the convention itself, which states that everyone has the right to religious freedom. When we take this further fact into account, does it strengthen the court’s ruling?
Absolutely not. One cannot say that pupils’ religious freedom is restricted if they are confronted by a crucifix in a classroom. The crucifix notwithstanding, the pupils are able to believe in whatever they – or their parents – wish.
But when the court rules the crucifix illegal, it may be because the court itself is defining the right to religious freedom more broadly. There is indeed reason to believe that the court is interpreting this right in such a way as to imply that there should also be religious equality – that it is operating on the assumption, in other words, that the state can only provide religious freedom if it also ensures religious equality and thus takes an identical and neutral posture toward all religions. Such logic would explain the court’s ruling that the state should not allow public schools to display symbols of any particular religion – because they violate religious equality and thus also religious freedom.
The validity of this argument, however, depends upon whether one can base an argument for religious equality on the right to religious freedom. One cannot. The inference is invalid. A state may very well grant religious freedom while at the same time according a special position to a particular religion. Indeed, the religion itself may serve as a basis for religious freedom. This is the case, for example, in countries like Denmark and Britain, and also in a country like Italy. These are countries whose development into secular democracies has been the consequence, in no small degree, of developments that have taken place in their established churches.
It should be further noted that the court has previously committed an error that resembles its inference of a right to religious equality from the right to religious freedom. It did this when it forbade exclusive contracts on the labor market. At that time, the court based its prohibition of exclusive contracts on the freedom of association (the right to form unions). But that decision was not logically valid, either. There, too, the court exceeded its authority and assumed a legislative role.
In the case of the Italian crucifixes, then, we must conclude that, all things considered, the court’s ruling is not justified by the Convention on Human Rights. The decision does not follow logically from the articles that the court has cited as the basis for it. The court has thus committed an intellectual error in its decision. It has taken upon itself a political power that is not appropriate to a judicial body.
But it is not only the judges on the court who lack the intellectual ability to carry out their roles properly. Article 2 of the first protocol of the Convention on Human Rights is a crushing example of poor political handiwork. The article requires that the state respect parents’ right to a public-school education for their children that is consistent with their own religious and philosophical convictions. But it is impossible for the state to ensure such a thing, if the parents of children in the public schools have irreconcilable religious and philosophical convictions. The people who formulated and adopted this article quite simply failed to understand the essential obligations of a democratic society. It is not obligated to provide pupils in public schools with an education that is consistent with their parents’ various religious and philosophical convictions. On the contrary, it is obligated to ensure that all pupils receive an education that acquaints them with the rights and responsibilities that will be theirs when they grow up into adult citizens of a rational democratic society. This is something else again. And it is something that all parents should agree upon, no matter what their religious or philosophical views may be. If a school fulfills this obligation, then parents are free to share their personal beliefs with their children at home.
Viewed against this background, there is no reason to prohibit the crucifixes in Italian schools. For they are there to serve not only as religious symbols, but also – indeed, primarily – as historical symbols. They testify to Italy’s historic development into a secular democratic society. In any case, such a decision must be a political one, not a judicial one.
This case provides a specific example of how the Court of Human Rights can misconstrue its proper role and assume political powers. It also demonstrates that not every part of the Convention is equally well thought through. But this case is not unique, and it illustrates a deeper political flaw. For a rational democratic society, the task of preserving itself and defending democratic values must above all be a political one. The ideology which demands that a court should be placed on a level above democracy, by contrast, turns such a task into a judicial one. What we are dealing with here, then, is an illusion which threatens democracy and its values. If we wish to rid ourselves of this illusion, we must make use of the democratic decision-making process to put the court in its place.
Translated from the Danish by Bruce Bawer