After 150 years, or more depending on the region of the country, the crucifix is set to disappear from classrooms in the name of that oldest of modern liberties, namely freedom of religion and this despite the view of most Italians who, surveys show, want to keep that symbol where it is. This comes from the same court that upheld the principle that EU member-states possess “discretionary powers”.
Whilst required to protect the rights listed in the Convention, member-states can, on the basis of their discretionary powers, interpret the former in light of the actual historical, religious and cultural realities in which they are exercised. However, in this case the ECHR did not take into account such powers, but applied instead a uniform notion to protect freedom of conscience. From a situation in which rights are shared, we are apparently moving towards a homogenous form of protection. What the European Court has done therefore is to deliver us a referential model of freedom, and in so doing it has reduced states’ discretionary powers.
At the same time, judges have done away with the notion of freedom other than that of individuals. Although they correctly take into consideration the freedom of conscience of those who are forced to see that symbol everyday sitting at their desk, they do not show the least concern for the freedom of conscience of a majority of Italians who want that symbol to remain. For them, only individuals can enjoy freedom. If we consider this and what we saw before, we may legitimately wonder what is in store for democracies like Great Britain, Greece, Ireland and Denmark, which have a special relationship with certain religions. Will the ECHR in Strasbourg find that Europe is full of theocracies?
This said, are freedom of religion and freedom of conscience the Court’s main concern? If past rulings are any indication, we might think not. From Strasbourg, the judges backed Turkey when it outlawed a political party because its leaders expressed support for the reintroduction of Islamic law. They did the same when Turkey banned a literary work for criticising Islam and barred women wearing the veil from going universities. Similarly, when France adopted a law against religious symbols in schools, it got an informal green light to go ahead with the legislation. With this third aspect, we come full circle and see more clearly what concerns the ECHR. It is not so much worried about protecting religious freedom than afraid of it. It protects it in order to keep it out of the public sphere. To defuse conflicts, or so the argument goes, it defuses cultural pluralism and dilutes individual and collective identities. But in so doing, the public debate loses out.
Is the Catholic Church afraid of losing its privileged status? This is not what is at stake. As many prominent Catholic leaders have pointed out, including the Patriarch of Venice, preventing the cultural expression of faith impoverishes social life, a view shared by both the Church and many Muslims. Indeed, the latter see the loss of the crucifix as a personal defeat and take instead the long view. More to the point, those who are against the cross today were against the veil in the past.
In its motivation, the Court has argued that the presence of a religious symbol in the classroom runs counter to the development of critical thinking, a topic that is dear to the Pope for he has insisted several times on the need to “expand reason.” Are we however certain that removing the crucifix from classrooms will expand reason in any significant way?