ICON (2013), Vol. 11 No. 1, 200217 doi:10.

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Neutrality in the classroom
Dimitrios Kyritsis* and Stavros Tsakyrakis**
In Lautsi v. Italy the Grand Chamber of the European Court of Human Rights decided that
the display of the crucifx on the classroom walls of Italian state schools is compatible with
the European Convention of Human Rights. In this article we develop an account of neutral-
ity, which militates against the decision of the Grand Chamber and vindicates the claimants.
Its gist is that neutrality is not only infringed, when individuals are coerced by the state
to pursue a certain religious faith or attitude, but also when the state endorses a religious
faith or attitude in regulating areas of social life that pertain to one's status as free and equal
member of the political community. Breaches of neutrality, thus understood, constitute a
violation of the right to religious freedom. They are also not amenable to a proportionality
assessment and impose a uniform standard for all members of the Council of Europe. The
display of the crucifx in Italian state schools falls short of this standard.
1. Religion and the European Court of HumanRights
It is fair to say that in recent years the European Court of Human Rights (ECtHR)
has spearheaded European developments in fundamental rights protection. In areas
as disparate as data protection and social rights, its rulings have both triggered wide-
spread debate about the meaning of rights and inspired hopes about their fuller real-
ization. Even when these hopes are dashed, there is no denying that the Court plays
a pivotal role in the human rights discourse of Europe, which is why all interested
parties look up to it for vindication and guidance.
With its decision in Lautsi v.Italy, the Court has once again taken a decisivethough
perhaps not conclusivestand in the cultural wars currently raging in Europe regard-
ing the place of religion in the public sphere. In Lautsi, the battleground was the con-
tent and orientation of public education. It is not the frst time that the Court has
entered this particular fray. The relationship between religious majorities and minori-
ties in society, the extent of their respective claims to shape the social, cultural, and
intellectual environment, and the role of the state in their tug-of-war are the source
of recurring tensions, which inevitably spill over into disputes about public education.
* Lecturer in Law at the University of Sheffeld. E-mail: d.kyritsis@sheffeld.ac.uk
** Professor of Constitutional Law at the University of Athens. E-mail: stavros.tsakyrakis@
gmail.com
We are indebted to Aurora Plomer and Rebeca Vzquez Gmez for detailed comments on earlier drafts.

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Neutrality in the classroom 201
Overtime, the Courts response has oscillated between two extremes. Thus, the
Court has been more willing to accede to the claims of private individuals against
majority-friendly educational policies in a series of cases culminating in Folger.
1

While emphasizing that it is up to the state to design school curricula and public edu-
cation, more generally, a task in which it enjoys considerable discretion, the Court in
these cases vigorously asserted the important constraints on this task that stem from
the governments duty to ensure openness and respect for individual conscience in the
educational environment.
Another line of cases, by contrast, is marked by the Courts effort to give due weight
to the important state interest in shaping public education, which, on occasion, com-
petes with claims of religious freedom and may outweigh them. Sometimes, the Court
construes this interest by reference to the protection of public order,
2
public safety,
3
or
the rights of others.
4
Still, other times the Court accepts that the educational policies
of European states are properly aimed at instilling the ideal of equal citizenship and
perpetuating the bonds of a certain political community. Acharacteristic example in
this vein is Leyla Sahin v.Turkey, in which the Court ruled that the decision of a Turkish
state university to expel a student who wore the Muslim headscarf in class did not
violate article 9 of the Convention.
5
In reaching this conclusion, the Court had occa-
sion to evaluate Turkeys robust version of state secularism, which it found to be the
paramount consideration underlying the ban on the wearing of religious insignia in
universities.
6
It asserted that it is understandable in such a context where the values
of pluralism, respect for the rights of others and, in particular, equality before the law
of men and women, are being taught and applied in practice, that the relevant authori-
ties would consider that it ran counter to the furtherance of such values to accept the
wearing of religious insignia.
7
It thus deemed it permissible under the Convention to
1
Folger and Others v.Norway [GC], no.15472/02, ECHR 2007-VIII. In this case, a number of parents
had complained that the compulsory teaching of religion as a subject, without the provision of adequate
exemptions, infringes their right under article 2 of protocol no.1.The Court accepted their complaint.
Note, though, that this case was decided by the narrowest of margins. See also Hasan and Eylem Zengin
v.Turkey, no.1448/04, 51 and 52, ECHR 2007-XI Kjeldsen, Busk Madsen and Pedersen v.Denmark,
Judgment of December 7, 1976, Series A,no.23.
2
The case of Leyla Sahin v.Turkey (44774/98, decision of July 29, 2004)provides an illustration. There,
the Court noted the rise of religious extremism as an element of the political background of the case and
was prepared to treat the policy of the Turkish state as a response to that phenomenon (id. 108109).
As we suggest below in the text, this was not the main basis of the Courts decision.
3
See Dogru v.France and Kervanci v.France, no.27058/05 and 31645/04, Judgment of March 4, 2009.
4
See, for instance, Dahlab v.Switzerland, no.42393/98, ECHR 2001-V, Karaduman v.Turkey, no.16278/90,
Commission decision of May 3, 1993, DR 74.
5
Leyla Sahin v.Turkey, supra note2.
6
Id. at 110.
7
Id. (emphasis added). The Court explicitly considered and allowed the principle of secularism in a number
of cases that tested the compatibility with the Convention of the 2004 act banning the wearing of signs
or dress manifesting a religious affliation in French state schools. See Bayrak v.France, no.14308/08,
Judgment of June 30, 2009, Ghazal v.France, no.29134/08, Judgment of June 30, 2009, Gamaleddyn
v.France no.18527/08, Judgment of June 30, 2009, Aktas v.France, no.43563/08, Judgment of May
25, 2010. All these cases were deemed inadmissible.

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202 ICON 11 (2013), 200217
tailor public education according to the precepts of secularism, even at the expense of
individual claims of religious freedom.
These trends in the Courts jurisprudence seem to be motivated by two very different
impulses, which we shall call, respectively, libertarian and paternalistic. Both impulses
occupy a prominent place in the political discourse of democratic societies and can-
not be rejected in the abstract. On the one hand, we want the public school to be an
environment tolerant and respectful of diversity, not an intellectual steamroller. At
the same time, we view it as an important public institution that not only provides the
skills and knowledge necessary for individuals to pursue successfully their conception
of the good but also promotes important values, such as patriotism and citizenship,
and thus assists in the integration of young people in their political community. Still,
the two impulses often point in different directions, and it is diffcult to combine their
demands in a consistent way. To do this, we need an overarching theory.
The libertarian and paternalistic impulses were brought into sharp reliefand the
lack of an overarching theory acutely feltin Lautsi. This time what was at stake was
the permissibility of the display of the crucifx in school classrooms. The challenge
was brought before the Court by an Italian citizen, Ms. Soile Lautsi, acting in her own
name and on behalf of her two children, who at the time the application was fled were
attending school. The question facing the Court was whether the practice of displaying
the crucifx in the classroom, common in many European states,
8
violated her chil-
drens right to religious freedom under article 9 of the Convention and right to educa-
tion under article 2 of protocol no.1 and Ms. Lautsis own right as a parent to educate
her children in accordance with her philosophical and religious convictions, again
under article 2 of protocol no.1.In fact, the Court had two bites at the cherry. Initially,
a Chamber of the Court unanimously ruled in favor of the applicants.
9
The Chamber
maintained that the display of the crucifx amounted to an illicit imposition of religious
beliefs on the applicants. It reasoned that [t]he schooling of children is a particularly
sensitive area in which the compelling power of the State is imposed on minds which
still lack . . . the critical capacity which would enable them to keep their distance from
the message derived from a preference manifested by the State in religious matters.
10
Subsequently, the Chamber judgment was reversed by the Grand Chamber, to which
the case was referred upon a rule 73 request by the Italian government.
11
By an over-
whelming majority, the Grand Chamber rejected the Chamber's view that the display
of the crucifx results in an undue infuence in religious matters, although it agreed
with the Chamber that the crucifx is a religious symbol of the Christian faith. Still, it
contended that given the wide variety of approaches adopted by European states con-
cerning the place of religion in state schools, it was not appropriate for the Court to
impose one to the detriment of others. It thus concluded that the Italian government
had stayed within the margin of appreciation it enjoys in this diverse setting.
8
As evinced in the unusual number of interventions by member states.
9
Lautsi v.Italy, no.30814/06, Judgment of November 3, 2009. [Hereafter Lautsi 1.]
10
Lautsi 1 48.
11
Lautsi and others v.Italy, no.30814/06, Judgment of March 18, 2011. [Hereafter Lautsi 2.]

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Neutrality in the classroom 203
Does the display of the crucifx engage the right to religious freedom and the
right of education of non-Christians as well as the right of non-Christian parents to
educate their children according to their own convictions? Explicating the bearing
of each of these rights on the case poses its own challenges, to which it is impos-
sible to do justice in the space of one article. What we shall do, instead, is focus on
the following more general problem: How is the childrens religious freedom to be
respected in public education? This seems to be the pivotal point of both the appli-
cants claim and the Courts judgment. The childrens right to education can only
be said to have been affected in this case if the children can legitimately object to
the display of religious symbols in the classroom, and this, in turn, depends on the
best understanding of their religious freedom in the educational context. As for the
parents right to educate their children in accordance with their philosophical and
religious convictions, this constitutes a weak and not particularly promising basis
for the applicants complaint.
12
As Judge Christos Rozakis insists in his concurring
opinion, parents in modern societies have to reckon with the fact that their infuence
on their childrens upbringing will compete with other infuences, including the
infuence of the school environment, and they cannot properly demand that theirs
be decisive; nor can they demand that the school not educate children in matters
of religion and philosophy.
13
What they can demand is that their childrens educa-
tion will not be subject to illicit infuences regarding religious matters; however, this
again seems to ride on the back of the childrens religious freedom.
14
The Court has
feshed out this requirement to mean that, in organizing public education, the state
should act neutrally and impartially.
15
It is this duty that the applicants alleged the
Italian state had violated.
In this article, we shall articulate an understanding of neutrality that vindicates
the applicants claim in Lautsi. Of course, the concept of neutrality is the locus of
intense dispute in contemporary political theory, and the understanding of that
concept we shall offerdrawing on the work of John Rawls and other liberal politi-
cal theoristsis far from uncontroversial. However, it is not our aim here to provide
a complete philosophical defense of our proposal. Primarily, we seek to show that
the applicants claim has at least a plausible basis in political philosophy, and that,
thus reconstructed, it is not vulnerable to some of the criticisms leveled against it by
the Grand Chamber majority. However, our agenda goes beyond Lautsi. At various
points of the argument, we shall try to indicate how our understanding of neutrality
also furnishes a principle of broader import that can guide the Court in determining
the place of religion in education. More specifcally, this principle helps us reconcile
the opposite forces of religious freedom and the states interest in education and,
12
Interestingly, the Grand Chamber put the parents right at the forefront of its judgment.
13
Folger 89.
14
See Kjeldsen, Busk Madsen and Pedersen v.Denmark 52. In line with this precedent, both the Chamber
and the Grand Chamber examined article 2 of protocol no. 1 in conjunction with article 9 of the
Convention in relation to both the parent and the children. See Lautsi 1 5758 and Lautsi 2 78.
Compare Leyla Sahin, which was decided on the basis of article 9 taken in isolation.
15
Lautsi 2 60.

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204 ICON 11 (2013), 200217
thus, to make sense of much of the rest of the Courts jurisprudence in this tangled
area. Equipped with this, we can understand why the Court has embraced seemingly
contradictory positions in cases like Folger and Leyla Sahin. In the process, we may
conclude that some of its decisions are best viewed as mistakes. Nonetheless, we
can discard those mistakes in the name of a principle that is faithful to the Courts
overall record.
Our discussion will be organized around two closely interrelated but separate ques-
tions, which we will take up, in turn, in the following sections:
(1) What does state neutrality on religious matters in public education mean?
(2) How does neutrality bear on the Courts decision in Lautsi?
The frst question will raise fairly abstract issues of political morality (sections 2 and
3), whereas the second will orient the discussion toward concerns more pertinent to
fundamental rights adjudication, especially at the supranational level (section 4).
2. Neutrality v.secularism
The central claim of the applicants was that the display of the crucifx was a means
of favoring Christianity and thus violated the Italian states duty to be neutral with
regard to the different religions and religious attitudes. This claim was met with a tu
quoque strategy in the Grand Chamber. It was contended that the alternative argued
for by the applicants and the Chamber would equally be an affront to neutrality, as it
would make the state take a different side, this time in favor of secularism. In her con-
curring opinion, Judge Ann Power put the point succinctly:
Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encour-
ages respect for all world views rather than a preference for one. To my mind, the Chamber
Judgment was striking in its failure to recognise that secularism (which was the applicant's
preferred belief or world view) was, in itself, one ideology among others. Apreference for secu-
larism over alternative world viewswhether religious, philosophical or otherwiseis not a
neutral option.
In his fascinating Oral Pleadings to the Grand Chamber as a representative of the
intervening member states, Professor Joseph Weiler has dramatized this strategy with
his parable of Marco and Leonardo.
16
Marco comes from a family of atheists, Leonardo
from a religious family. Weiler invites us to imagine their reactions, frst, when they go
to each others home and notice the crucifx or its absence, and, second, when they
notice the same thing in their classroom. There is no reason to think, Weiler main-
tains, that Leonardo will feel any less uncomfortable or surprised or challenged in a
classroom without the crucifx than Marco in one with it, just as they will feel when
they visit each others home. That is because, as he stresses, secularism is nowadays
16
The Oral Pleadings are available to watch at http://dotsub.com/view/65bc5332-aa10-4b8c-bc50-
d051e8f4fcc7. Its main points are containedand some of them further elaboratedin an editorial
written by Professor Weiler before the decision of the Grand Chamber. See J.H.H. Weiler, Lautsi: Crucifx in
the Classroom Redux, 21 EUR. J.INTL L.16 (2010). Henceforth reference will be made to the latter version.

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Neutrality in the classroom 205
itself a rich world view, a position of conscience.
17
This, for Weiler, is what Leonardo
confronts when he sees an empty wall in his classroom.
Is an empty wall as objectionable or as unobjectionable as a wall with the cruci-
fx? Should someone who objects to the crucifx in the name of neutrality also oppose
an empty wall? The suggestion from Judge Powers concurring opinion and Professor
Weilers parable seems to be that, if the presence of a crucifx interferes with the reli-
gious freedom of atheist children and with the freedom of atheist parents to educate
their children according to their own philosophical and religious convictions, the
empty wall interferes with the same freedoms of religious children and parents. In
the latter case, it is argued, the state would also give priority to a world view, namely
secularism.
To evaluate this suggestion we need to delve deeper into the meaning of state neu-
trality. At the most general level, neutrality denotes a liberal constraint on the way the
state may deal with the pluralism of world views, especially religious, that is charac-
teristic of liberal democracies. For proponents of state neutrality, citizens of a liberal
polity regard one another as free and equal participants in a cooperative social scheme,
each capable of judging on her own what it means to live well. It follows from this that
in a polity committed to neutrality the interests and concerns of every member of
the political community should be treated equally, that no person or group should be
treated as unworthy or otherwise subordinated to an inferior status.
18
For this to be achieved, the terms governing their cooperation should be such that
they give each citizen a fair opportunity to lead a worthwhile life, regardless of the
conception of the good she happens to embrace. In other words, the state must avoid
rigging the rules of the game in favor of one conception of the good, because to do so
would amount to denying those who hold a different conception of the good the status
of free and equal participant. More specifcally, individuals must be afforded a space of
personal freedom (as well as other social resources). Within this space individuals are,
in principle, left alone to form, revise, and pursue their own conception of the good
life.
19
The state should not take sides on what makes individual life worthwhile insofar
as doing so would infringe on that space.
20
Given that religious beliefs are central to
17
Id. at4.
18
Christopher Eisgruber & Lawrence Sager, Equal Regard, in LAW AND RELIGION: ACRITICAL ANTHOLOGY 200, 203
(Stephen Feldman ed., 2000).
19
RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? 76 (2006). In this book, Dworkin argues that the role of the
state in religious matters should be guided by what he labels the principle of personal responsibility which
states that each of us has a personal responsibility for the governance of his own life that includes the
responsibility to make and execute ultimate decisions about what life would be a good one to lead (id.
at 17). Dworkin goes on to argue that, subject to a de minimis condition, this principle condemns any
manipulation of my culture that is both collective and deliberatethat deploys the collective power and
treasury of the community as a whole and that aims to affect the ethical choices and values of its mem-
bers (id. at 76). As we shall see below, although we appeal to something like the principle of personal
responsibility to ground neutrality, we draw the boundaries somewhat differently.
20
It is thus baffing to read Judge Rozakiss concurring opinion in Lautsi 2, which speaks of the right of
society, as refected in the authorities measure in maintaining crucifxes on the walls of State schools, to
manifest their (majority) religious beliefs (emphasis added).

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206 ICON 11 (2013), 200217
ones conception of a good life, taking sides on such matters always raises the suspi-
cion that it unduly interferes with ones ability to pursue his lifes plan. This is the case
not only when the state forbids a certain religious conduct as unworthy but also when
it endorses a certain religious faith or attitude as superior.
21
Neutrality is to be contrasted to secularism, of which the French lacit, tested in
Dogru v.France, and the Turkish model, at issue in Leyla Sahin, are variants.
22
The main
difference has to do with the point of focus. Whereas neutrality refers to a constraint
on the use of state power, secularism identifes goals that a state ought to pursue.
Asecular state aims to foster among its members the sense of belonging to their politi-
cal community. It thus takes active measures to inculcate in them a civic spirit. For
this reason, a secular state is much more prone to the paternalistic impulse than a
strictly neutral state. Following on from that, the two concepts reserve a different place
for religion in the public sphere. Astate committed to a robust version of secularism
removes all reference to religion from the public sphere. In addition, it requires that,
when they enter the public sphere, citizens shed or suppress their private identity and
assume their civic identity. Accordingly, the critical question for a secularist is which
areas of social life belong to the public sphere. The underlying idea is that, if religion
were allowed to be expressed in the public sphere, a persons civic identity would be
overwhelmed by her private identity and by her commitment to her religious commu-
nity; this would destroy the civic bond and engender sectarianism. On the contrary,
neutrality does not oppose the manifestation of religious beliefs in the public sphere
by private individuals, since its main concern is the manifestation or endorsement of
religious beliefs and attitudes by the state. Hence, the critical question for an adherent
to neutrality is which acts count as illicit state endorsement of religion.
23
We said earlier that the neutral state leaves the individual alone to form and pur-
sue their conception of the good life. What exactly does leaving alone mean in this
21
Instructively, the guarantee of religious freedom contained in the frst amendment of the U.S. Constitution
both protects the free exercise of religion and forbids the establishment of religion. The latter failure is
well summarized in Justice OConnors concurring opinion in Lynch v.Donnelly, 465 U.S. 668 (1984).
There she contended that [t]he Establishment Clause prohibits government from making adherence to a
religion relevant in any way to a persons standing in the political community. Government can run afoul
of that prohibition in two principal ways. . . . The second and more direct infringement is government
endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are
outsiders, not full members of the political community, and an accompanying message to adherents that
they are insiders, favored members of the political community. Disapproval sends the opposite message
(465 U.S.at 688689).
22
For a thoughtful philosophical reconstruction of the French doctrine of lacit, see Ccile Laborde, Secular
Philosophy and Muslim Headscarves, 13 J. POL. PHIL. 305 (2005). For a more general defense of secular-
ism, see Andrs Saj, Preliminaries to a Concept of Constitutional Secularism, 6 I L J.CONST. L.(ICON) 605
(2008). For criticism, see Lorenzo Zucca, The Crisis of the Secular StateAReply to Professor Saj, 7 INTL
J.CONST. L.(ICON) 494 (2009).
23
Dahlab, in our view, can properly be understood as turning on precisely this question. In that case a
Muslim schoolteacher was forbidden from wearing the headscarf in class. Given her role and status, it
was argued, she ought to exemplify state neutrality. In our terminology, it was thought that her wearing
the headscarf in class counted as an endorsement of a certain religious faith or attitude by the state.
Whether that was a convincing description of the situation is a different matter.

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Neutrality in the classroom 207
context? One suggestion might be that the state leaves an individual alone when
it neither advantages nor disadvantages her conception of the good life. But this is
implausible. The law is very likely to make the pursuit of one or the other conception
of the good life more diffcult. It may be, for instance, that a certain expensive lifestyle
demands resources that exceed the share everyone can legitimately claim from the
political community. It is commonly accepted that the neutral state is not enjoined to
ensure that all lifestyles are equally easy to pursue;
24
in other words, that the neutral
state ought not to strive for consequential neutrality.
25
Thus, John Rawls writes that
it is surely impossible for the basic structure of a just constitutional regime not to
have important effects and infuences as to which comprehensive doctrines endure
and gain adherents over time; and it is futile to try to counteract these effects and infu-
ences, or even to ascertain for political purposes how deep and pervasive they are.
26

However, this is not primarily a matter of practicality. Rawls adds: But the important
question surely is whether the political conception is arbitrarily biased against these
views, or better, whether it is just or unjust to the persons whose conceptions they are,
or might be.
27
What then is the criterion for arbitrarybias?
To answer this question Rawls and other liberal theorists invoke the idea of neu-
trality of aim. Neutrality of aim condemns those practices that are intended to
favor any particular comprehensive view (JFR 153). According to neutrality of aim,
the standards that govern the life of a political community ought to be grounded
in premises and assumptions that are publicly recognizable, that is, acceptable by
all. The focus, then, is on justifcation. In the words of Charles Larmore: Political
neutrality consists in a restraint on what factors can be invoked to justify a politi-
cal decision. Such a decision can count as neutral only if it can be justifed without
appealing to the presumed intrinsic superiority of any particular conception of the
good life.
28
From this it follows that I cannot offer my religious beliefs as grounds
for the use of state power, because atheists or those of a different persuasion cannot
share them. My religious beliefs may furnish reasons for me, but these reasons can-
not be made public. My claims about the proper use of state power have to be recast
in terms that we can all understand and endorse as regulative of the relationship
24
We do not mean to exclude the possibility that some kind of differential impact is taken to be evidence
of a violation of neutrality, properly understood, or raises a suspicion of such violation. This, we would
argue, is a plausible way of reading the effect prong of the famous Lemon test (Lemon v.Kurtzman, 403
U.S. 602, 612613 (1971)). Along these lines, for instance, is the pioneering view of Chris Eisgruber and
Larry Sager on the issue of religious exemptions in the US. See, among others, Christopher Eisgruber &
Lawrence Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61
U. CHI. L.REV. 12451315 (1994). Neither do we dispute that there may be circumstances under which
it may be permissible to accommodate the demands of faith of religious people. However, we insist that
such accommodation would not be a requirement of neutrality.
25
JOSEPH RAZ, THE MORALITY OF FREEDOM 117 (1986).
26
JOHN RAWLS, POLITICAL LIBERALISM 193197 (1996)
27
JOHN RAWLS, JUSTICE AS FAIRNESS: ARESTATEMENT 154 (Erin Kelly ed., 2001). [Hereafter JFR.]
28
CHARLES LARMORE, PATTERNS OF MORAL COMPLEXITY 44 (1987). See also Thomas Nagel, Moral Confict and
Political Legitimacy, 16 PHIL. & PUB. AFF. 215 (1987) and Thomas M.Scanlon, Preference and Urgency, 72
J.PHIL. 655699 (1975).

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208 ICON 11 (2013), 200217
between free and equal participants in a fair system of social cooperation. Only then
can Isay that Itruly respect them as fellow participants in the project of establishing
and maintaining a fair system of social cooperation. As Rawls notes, one leading
aim of public justifcation is to preserve the conditions of effective and democratic
social cooperation on a footing of mutual respect between citizens regarded as free
and equal (JFR 28). Of course, justifcations cannot be tendentious, serving only to
mask a sectarian agenda. There is considerable debate in political philosophy about
how exactly to fesh out this requirement.
29
For present purposes we shall simply say
that they must be credible.
Neutrality of aim and its corollary notion of public justifcation are not mere philo-
sophical constructs, detached from reality. In fact, they strongly resonate in the case
law of the ECtHR.
30
Thus, in Leyla Sahin the Court placed emphasis on a number of
justifcations for the interference with the applicants religious freedom that were
aimed at meeting the condition of publicity. (Whether they were credible or not is
another matter; the Court decided that they were.) Those included the promotion of
gender equality and the protection of the rights of others from proselytization and
extremism.
31
In Lautsi itself the government clearly sought to give the display of the
crucifx a public justifcation, in particular, when it resisted understanding the crucifx
as a parochial religious symbol and argued, instead, that it stood for a set of values
with universal reach that constitute the basis of the modern Italian state. In turn,
when the Court took issue with the governments interpretation of the crucifx, it was
not fussing about a minor point. Quite the contrary, it was assessing whether there
was a credible public justifcation for its display in public schools. That is, it was doing
precisely what neutrality of aim commands.
3. The limits of neutrality
Does neutrality, even if it is understood in this way, impose too tall an order? More
specifcally, does it require the renunciation of practices and rules that celebrate the
contingent political history of different states, marked, as it sometimes is, by the pres-
ence and support of a certain church? Does it prescribe the elimination of the cross
from national fags, the discarding of public holidays and ceremonies that have reli-
gious pedigree or connotations such as Christmas Day, and, more generally, a strict
and thoroughgoing separation of church and state? This seems to be the position
advocated by the Chamber: The duty of neutrality and impartiality of the state is
29
See, among others, GERALD GAUS, JUSTIFICATORY LIBERALISM (1996); Robert Audi, Moral Foundations of Liberal
Democracy, Secular Reasons, and Liberal Neutrality Toward the Good, 19 NOTRE DAME J.L. ETHICS & PUB. POLY
197 (2005); Jrgen Habermas, Religion in the Public Sphere, 14 EUR. J.PHIL. 1 (2006).
30
For an excellent attempt to reconcile the tests employed by the ECtHR with the main tenets of Rawlsian
liberalism, see Mattias Kumm, Political Liberalism and the Structure of Rights: On the Place and Limits of the
Proportionality Requirement, in LAW, RIGHTS, DISCOURSE: THEMES OF THE WORK OF ROBERT ALEXY (George Pavlakos
ed., 2007).
31
Leyla Sahin 115.

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Neutrality in the classroom 209
incompatible with any judgment on its part of the legitimacy of religious beliefs or
ways of expressing them.
32
This position appears excessively sweeping.
33
To begin with, a complete overhaul of
a nations political history and tradition involves tremendous costs in effciency and
stability. Even if such an overhaul were dictated by neutrality, it is far from evident
that a state should adopt this kind of fat justitia pereat mundus approach. Neither, of
course, is it guaranteed that it would be able to devise, say, a system of public holidays
that satisfes everyone. Furthermore, for many, such a radical version of neutrality
ignores that our allegiance to a particular political community is, in part, generated
by our identifcation with that communitys history, traditions and social fabric.
34

Patriotic feeling, thus generated, would be irretrievably lost in a sanitized, politically
correct, neutral state. This reasoning is echoed in the Italian governments submis-
sion that the crucifx was the expression of a national particularity, characterized
notably by close relations between the State, the people and Catholicism attributable
to the historical, cultural and territorial development of Italy and to a deeply rooted
and long-standing attachment to the values of Catholicism.
35
Does neutrality of aim dictate that state action be cleansed of any reference to sym-
bols with a sectarian meaning? Does it trump other considerations such as history,
tradition, or convenience in every case? To see why this is not so, we need to appreci-
ate the stringency and scope of the notion of public justifcation. Let us start with
convenience. The economic and other social benefts of a uniform system of public
holidays and the absence of a compelling and realistic alternative provide adequate
and credible public justifcation for maintaining the status quo. Although we strive to
accommodate religious diversity in the implementation of such a system, we do not
think that, as it stands, it primarily serves sectarian purposes. How about policies that
celebrate a political communitys past, when that past bears witness to the existence
of close historical ties with a majority religion? To answer this question, it is worth
reminding ourselves that not all types of state action have the same importance from
the point of view of neutrality of aim. The requirements of neutrality of aim have
more force when applied to state action that pertains to central aspects of ones status
as free and equal participant in a fair scheme of social cooperation.
36
We do not need to provide an exhaustive list of those aspects. It suffces to point to
a few examples from the jurisprudence of the Court. Consider, for instance, political
32
Lautsi 1 47 (emphasis added).
33
Professor Weiler takes special issue with this breathtaking position. See Weiler, supra note 16, at2.
34
Buscarini and Others v.San Marino [GC], no.24645/94, ECHR 1999-I, 36.
35
36.
36
Note that this move does not bring consequential neutrality in through the back door. To single out the
aspects of social and personal life that call for a stricter enforcement of neutrality of aim, we need not
measure the effects of policies on individual well-being. We need only appeal to what Rawls calls a par-
tial conception of the good rooted in a view of the objective needs of citizens regarded as free and equal
(JFR 151). We should be able to work out such a conception solely by reference to political ideas that are
part of the shared public culture of a democratic and pluralistic society, without presupposing any paro-
chial ethical and religious worldview.

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participation
37
and access to justice.
38
Equal and impartial treatment in both these
areas of social life is integral to ones standing as a citizen, given their symbolic import
and their practical signifcance, especially in the case of access to justice. For this rea-
son, we submit, neutrality has special bite there. Thus, it would be impermissible to
display a crucifx in a courtroom or in a polling station. Now contrast political par-
ticipation and access to justice to, say, the national fag. Regardless of its salience
and visibility, the latter makes much less difference to ones status as free and equal.
Accordingly, the crosses on the Union Jack involve, to use Dworkins apt expression,
precious little endorsement of religion.
39
The same can be said about the other
examples that Weiler lists: the reference to God in the British national anthem, or the
Irish and German Constitutions, and the establishment of a church in countries such
as Denmark.
40
Given the role of education for social integration, it is hard to resist including it in
the same category with political participation and access to justice. This, then, was the
root of the mistake in Leyla Sahin. It is not that a democratic society may never act on
the paternalistic impulse or that it may never make a judgment of the legitimacy of
religious beliefs or ways of expressing them, as the Chamber maintained; it is safe to
predict that many paternalistic policies and many state-sponsored religious messages
will turn out to be below the radar of neutrality of aim.
41
It is because education is
critically pertinent to an individuals status as free and equal. Hence, whatever the
benefts from an educational policy that aims to increase social cohesion, we cannot
pursue it if it sends a message of unequal standing to public school students, depend-
ing on their religious beliefs. This, one might say, is the price we have to pay for reli-
gious freedom. Neither, too, is there any publicly acceptable reason of convenience not
37
Buscarini, supra note 34, is a good example.
38
Case of the Canea Catholic Church v. Greece, Judgment of December 16, 1997. This case involved the
right of the Canea Catholic Church to take legal proceedings to protect its property. It was thus decided
on grounds of access to a court and nondiscrimination. Still, the case clearly raised signifcant issues of
state neutrality on religious matters, since the only basis for denying the Catholic Churchand not the
Orthodox Church or the Jewish communityaccess to a court was sectarian animus.
39
Dworkin, supra note 19, at 86. Compare Justice OConnors rationale for allowing the display of the
crche in a public park: Pawtucket's display of its crche, I believe, does not communicate a message
that the government intends to endorse the Christian beliefs represented by the crche. Although the
religious and indeed sectarian signifcance of the crche, as the District Court found, is not neutralized
by the setting, the overall holiday setting changes what viewers may fairly understand to be the purpose
of the displayas a typical museum setting, though not neutralizing the religious content of a religious
painting, negates any message of endorsement of that content. The display celebrates a public holiday,
and no one contends that declaration of that holiday is understood to be an endorsement of religion. The
holiday itself has very strong secular components and traditions. Government celebration of the holiday,
which is extremely common, generally is not understood to endorse the religious content of the holiday,
just as government celebration of Thanksgiving is not so understood (Lynch v.Donnelly, supra note 21,
at 692).
40
See Weiler, supra note 16, at2.
41
Likewise Rawls reserves neutrality to issues pertaining to the constitutional essentials of a liberal regime
and allows that much public policy may also be driven by paternalistic considerations. See JFR 1512. See
also Thomas Scanlon, Rawls on Justifcation, in CAMBRIDGE COMPANION TO RAWLS 139 (Samuel Freeman ed.,
2002), and BRIAN BARRY, JUSTICE AS IMPARTIALITY 144145 (1995).

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Neutrality in the classroom 211
to remove the crucifx from the classroom. The only social benefts that would accrue
from preserving the status quo would be those tainted by the breach of neutrality.
In the light of the preceding analysis, it becomes clear that the empty wall does not
promote secularism. It could be said to do so only on the assumption that the walls of
the classrooms of public schools are for hanging religious symbols or for displaying
an attitude towards religion, more generally. However, this is precisely the assump-
tion that a commitment to neutrality condemns. In a neutral state, citizens can legiti-
mately expect that the state will not use the school environment to champion any
parochial position on religious matters. Thus, the empty wall can properly be seen as
the default of neutrality. In a classroom with an empty wall, both Marco and Leonardo
are afforded an equal place. In this sense, it is mistaken to accuse the applicants, as
Judge Power did in her concurring opinion, of inviting the Court to construe article
9 as requiring a preferential option for and endorsement of [the applicants] convic-
tions over and above all others. . . . No doubt, it is possible that Leonardo will fnd it
surprising or even distressing that the wall of his classroom is so different from the
wall of his house. But why would he ever think that they should look the same? This
critical moment may just be the right opportunity for his parents and his teachers to
teach him a thing or two about rights, pluralism, and the public/private divide.
4. Neutrality and humanrights
In the previous sections it was arguedon a plausible understanding of state neutral-
itythat the practice of the Italian state runs afoul of it. Neutrality, we contended,
requires the state to abstain from acts that can only be credibly justifed by a judg-
ment that a certain religious faith or religious attitude is valuable as opposed to others.
Admittedly, though, neutrality as such, is not explicitly guaranteed by the Convention.
As we have seen, it was the Court itself that introduced the concept, when it referred
to the duty of the state to organize public education neutrally and impartially. Is this
just a throw-away dictum or is neutrality inherent in the notion of freedom of religion,
as enshrined in the Convention? Put differently: Should a human rights court be in the
business of enforcing it? These questions will be the topic of this section. In response to
them, we shall explain why neutrality, as defned above, is not just one among several
permissibleeven, perhaps, attractivestrategies for dealing with religious diversity.
Quite the contrary, breaches of neutralityat least in the more important casesare
moral harms that are so grave as to give rise to a claim ofright.
This investigation will give us occasion to expand on our account of neutrality.
However, it also has a more tangible effect. It deals a serious blow to the reasoning of
the Court in Lautsi. There, the Grand Chamber relied heavily on the proportionality
test and the margin of appreciation in order to defne the protective scope of article 9
and, ultimately, to dismiss the applicants claims. It argued that the interference with
the applicants rights by the Italian state was proportionate and fell within the margin
of appreciation that European states enjoy concerning their compliance with their
Convention obligations. Drawing on our account of the harm constituted by breaches
of neutrality, we shall show that these arguments cannot save the policy of the Italian

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state. The force of the applicants claim in Lautsi remains unaffected by them, because
the guarantee of neutrality is not susceptible to a proportionality assessment and
imposes a uniform standard on state conduct across Europe.
4.1. The harm of non-neutrality
We shall start our analysis by connecting neutrality and the right to religious free-
dom. Our aim is to show that neutrality is a matter of individual right. Granted, the
requirements of neutrality as understood above go beyond a narrow conception of
rights as spheres of freedom from interference. Although acts of the state that com-
pel or coerce an individual to do or to refrain from doing
42
something that engages
one of her fundamental rights are paradigmatic violations of neutrality, many courses
of action that fout neutrality do not seem to have a coercive effect. But if this is so,
in what respect does the display of the crucifx in schools abridge religious freedom?
In order to answer this question, we ought to identify the moral harm constituted by
the display of the crucifx. Whatever else it might be, the harm in question cannot be
offense at the manifestation of the religious beliefs of others, which have been given
preponderant visibility by the state.
43
Neutrality regulates the relationship between
an individual and the political community, not other individuals. Accordingly, the
applicants in Lautsi took issue with the display of the crucifx in the name of neutrality
not because the crucifx expresses the religious beliefs of some of their fellow citizens
but only insofar as those religious beliefs have been given the seal of approval of the
political community. This is the fundamental difference that distinguishes the walls of
private houses from classroom walls. Furthermore, the applicants claim was not that
the crucifx be replaced by a symbol that expressed their own religious beliefs, but that
the state abstain from favoring any religious faith or attitude altogether.
Neither, as we have noted above, does the harm consist in the offense of being com-
pelled to endorse a certain religion. We are not interested in this form of psychological
offense. Afocus on psychological offense would lead us to embrace some form of con-
sequential neutrality. By contrast, from the point of view of neutrality of aim it makes
little difference if Ms. Lautsi and her children were minimally perturbed by the sight
of the crucifx. The rights they want to vindicate are independent of any psychological
state they have experienced. They have to do with the way the state has treated them
42
The phrase is taken from the concurring opinion of Judge Power who devotes a separate part to refute
the applicants claim that the practice of the Italian state infringed their right to freedom of thought,
conscience, and religion as enshrined in article 9 of the Convention. She points out that [t]he display of
a religious symbol . . . does not require engagement in any activity though it may, conceivably, invite or
stimulate discussion and an open exchange of views. It does not prevent an individual from following his
or her own conscience nor does it make it unfeasible for such a person to manifest his or her own religious
beliefs and ideas. It is debatable whether Article 9 should be construed so narrowly in the frst place. (For
the US position, see among, others Torcaso v.Watkins, 367 U.S. 488 [1961] and McDaniel v.Paty, 435
U.S. 618 [1978]). Be that as it may, Lautsi is best understood as engaging articles 9 and 2 of protocol no.1
in conjunction. It may well be that the two rights taken together reach farther than each of them taken
separately.
43
Judge Power suggests and dismisses this suggestion in her concurring opinion.

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in a central aspect of life in a political community. Insofar as the state has acted on
the perception that one faith is true, ennobling, attractive or somehow congenial,
44

it has failed to treat them as free and equal members of the political community. The
display of the crucifx with its connotations of an endorsement of Christianity by the
state represents just such a failure. Stopping it is not just a good idea or an expedient
public policy. It is a matter of justice for the applicants. It is thus properly dealt with
as a matter of fundamental right. Ahuman rights court has every reason to take an
interest; in fact, it must be primarily interested init.
But instead of fxing on the aforementioned harm, the Court in Lautsi went on
to ascertain whether the interference was disproportionate compared to the goal
achieved. This, of course, is a familiar form of argument under the Convention.
However, it is not entirely clear how proportionality might enter into an assessment
of the permissibility of the practice in question in Lautsi. One is the route taken by the
Grand Chamber. In its view, the display of the crucifx cannot be properly evaluated
unless it is put in context. More specifcally, in order to assess the extent to which it
compromises neutrality, we ought to take into account other features of the educa-
tional environment in Italian public schools that purport to sustain respect for reli-
gious diversity and toleration. The judgment drew attention to the fact that it was not
forbidden for pupils to wear Islamic headscarves or other symbols or apparel having
a religious connotation; alternative arrangements were possible to help schooling ft
in with non-majority religious practices; the beginning and end of Ramadan were
often celebrated in schools; and optional religious education could be organised in
schools for all recognised religious creeds. Moreover, there was nothing to suggest
that the authorities were intolerant of pupils who believed in other religions, were
non-believers or who held non-religious philosophical convictions.
45
The Court also
highlighted that the crucifx itself is a passive symbol, and that its presence was not
accompanied by any attempt at indoctrination or by compulsory teaching of the
Christian faith.
46
Thus, for the Court, even if it is granted that the crucifx is a religious
symbol that champions Christianity, the neutrality-compromising effect of its display
in the classroom is cancelled out or mitigated by those further tolerance-enhancing
arrangements.
These remarks have a close affnity with the notion of consequential neutrality.
47

Clearly, if we are assessing the harm of a non-neutral policy such as that of the Italian
government by measuring its psychological impact on students, it makes sense to take
into account whether its negative effects are somehow counterbalanced. Equally, it
44
Eisgruber & Sager, supra note 24, at 1286.
45
74 (internal references omitted).
46
Id. The passive character of another religious symbol, the crche, was given weight by the majority in
Lynch v.Donnelly, supra note 21 at 68568.
47
One cannot fail to note that the notion of consequential neutrality makes a perfect ft with the principle
of proportionality. Those who think that violations of rights are ascertained by comparing the intensity
of interferences will naturally be drawn to a moral conception that prescribes assessments of degree. It is
worth contemplating to what extent the Court was sympathetic to consequential neutrality because of
its endorsement of proportionality.

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makes sense to insist on the nature of the crucifx as a passive symbol; undoubtedly,
a teacher who marshals all her authority and power of persuasion in order to indoc-
trinate the students in the precepts of one religion is more likely to have an infuence
than an inert religious symbol.
Following on from that, a commitment to consequential neutrality explains the
Courts understanding of the burden of proof. In evaluating the Chamber's conten-
tion that the presence of the crucifx amounts to the imposition of beliefs, the Grand
Chamber argued that [t]here is no evidence before the Court that the display of a
religious symbol on classroom walls may have an infuence 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.
48
If you accept consequential
neutrality, the logic of this argument is impeccable. Since we are measuring a tangible
harm that the policy has caused, the applicants must be able to provide evidence that
this harm has actually occurred or at least is probable under the circumstances. When
no such evidence is forthcoming, their claim must fail.
49
Finally, the Courts reliance on some form of consequential neutrality helps us bet-
ter appreciate its juxtaposition of Lautsi and Folger. Remember that, in the latter case,
the Court had accepted the applicants claim that teaching religion and philosophy
as a subject (with a strong emphasis on Christianity) without the provision of ade-
quate exemptions violated article 2 of protocol no.1.If (a) the interference caused by
a compulsory system of religious education is more intense than the interference
caused by a passive symbol such as the crucifx and (b) the intensity of interference
is relevant to the proportionality assessment, then it is not unprincipled to fnd for the
applicants in one case and against them in theother.
There is no denying that the efforts of the Italian state, listed above, to create and
sustain a tolerant educational environment are laudable. It may even be true that
thanks to those efforts the presence of the crucifx was not felt by non-Catholic stu-
dents as an imposition, contrary to the fears expressed by the Chamber. However, the
reasoning of the Grand Chamber on this point gets neutrality wrong. It is only if we
are interested to know whether the practice of atheism or a minority religion is as a
matter of fact disproportionately inconvenienced or disadvantaged in a school environ-
ment, where the crucifx is displayed, that we have reason to balance the effect of the
crucifx against the effect of countervailing forces or to seek evidence of actual infu-
ence or to make much of the passive character of the crucifx.
By contrast, our investigation is very different when we are testing this practice
against the standard of neutrality of aim, as we have urged in this article. For a pro-
ponent of neutrality of aim, the kind of balancing exercise described in the preced-
ing paragraphs appears largely irrelevant. Instead, what is required is to determine
whether the practice in question can be justifed by appeal to considerations that are
48
Lautsi 2 66.
49
Interestingly, the Court was not as demanding in Dahlab, when it accepted that the wearing of a heads-
carf by a schoolteacher would exert infuence on the students due to its character as a powerful external
symbol.

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Neutrality in the classroom 215
not sectarian. If, as both the Chamber and the Grand Chamber found in Lautsi, the
display of the crucifx was motivated, in large part, by an endorsement of its religious
meaning, then the conclusion is inescapable that it was non-neutral.
Thus, breaches of neutrality of aimat least in the areas of social life where neu-
trality is necessaryare not a matter of degree.
50
So, for instance, it seems deeply
counterintuitive to say that a policy that merely encourages pupils to pray in school is
less unsavory because more proportionate than a policy of compulsory school prayer.
Neutrality of aim condemns both policies, since both are stung by the same political
defect. That is not to say that the compulsory nature of a system of religious educa-
tion, as the one in question in Folger, does not make a difference to the resolution of
a case from the point of view of neutrality of aim. However, the difference is eviden-
tiary; the endorsement of religionthe taking of sidesis more clear-cut when the
state has made religious teaching compulsory. Neither does the nature of a symbol as
passive or active cut any ice, if we start from neutrality of aim. We do not think that
the display of the crucifx would be more acceptable, if the atheist pupil were blind
provided that he was told that the crucifx was in the classroom. He may not experi-
ence distress from seeing the crucifx every day but he would be fully aware that he is
discriminated against.
4.2. Neutrality for a diverse continent
In the previous subsection, we argued that the proportionality assessment the Court
undertook does not weaken the applicants claim in Lautsi, if the latter is understood
in terms of neutrality of aim. However, as is well-known, in order to establish a viola-
tion, the ECtHR must additionally judge that the state has not exceeded the margin
of appreciation afforded by the Convention. In fact, this criterion played a crucial
role in Lautsi, and it is to its evaluation that we now turn. As will become clear, our
verdict on the argument from the margin of appreciation is the same as above; it only
holds sway if one fails to appreciate the nature of the harm constituted by breaches
of neutrality.
The criteria for delineating the margin of appreciation have been notoriously elu-
sive.
51
Sometimes, when the Court says that the state has stayed within the margin of
appreciation, it means nothing more than that its measures were proportionate, thus
rendering the margin of appreciation an idle wheel. Other times, the concept has more
bite. It denotes an extra hurdle that a claim has to pass. On this reading of the margin
of appreciation, the rights of the applicants under the Convention do not extend to
the removal of the crucifx, because there is no consensus on the matter among the
member states of the Council of Europe, which would form a benchmark enforceable
by the Court. In view of this diversity of approach, the choice of the extent and form
[regulations] should take must inevitably be left up to a point to the State concerned,
50
For a more general critique of the concept of proportionality in rights adjudication see Stavros Tsakyrakis,
Proportionality: An Assault on Human Rights?, 7 INTL J.CONST. L.(ICON) 468 (2009).
51
GEORGE LETSAS, ATHEORY OF INTERPRETATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 80 (2007).

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216 ICON 11 (2013), 200217
as it will depend on the specifc domestic context.
52
Why is the absence of consensus
relevant to the Courts role? One answer has been pressed hard by Professor Weiler.
Europe, he contends, allows a rich diversity in the constitutional iconography of the
state and different forms of entanglement of religion in its public life.
53
This repre-
sents a unique and uniquely promising model of tolerance and pluralism.
54
To be
sure, it is very different from the USmodel, though it is equally worthy of respect. To
this, one could add the view of the role of the Court outlined by Judge Rozakis in his
concurring opinion:
[T]he Court is a court of law, not a legislative body. Whenever it embarks on a search for the
limits of the Conventions protection, it carefully takes into consideration the existing degree of
protection at the level of the European States; it can, of course, afford to develop that protection
at a level higher than the one offered by a specifc respondent State, but on condition that there
are strong indications that a great number of other European States have already adopted that
degree of protection, or that there is a clear trend towards an increased level of protection.
The argument from the margin of appreciation was placed front and center in Lautsi
as well as in earlier judgments such as, for instance, Leyla Sahin and Dogru. In all these
cases, the Court stated that it is largely up to individual member states to design the
public school environment in a way that reconciles the individual demands of reli-
gious conscience with other public goals. The secular approach adopted by Turkey
and France is one option, although there are others such as those adopted in the UK,
Switzerland, and the Scandinavian countries.
Upon closer inspection, though, there is very little room for the notion of the mar-
gin of appreciation in the types of situation with which we are concerned. It would
make sense, only if neutrality were just one strategy among many for dealing with
religious diversity, on a par with, say, secularism. In that case, it would indeed be up
to each state to choose whether or not to adopt it, taking into account the specifc
domestic context, in which case it would be appropriate that the relevant decision
be made by a democratically accountable body. Nonetheless, this, again, would be to
misunderstand neutrality. Neutrality sets certain minimal constraints on state action
that, on the understanding developed in this article, are inextricably linked with the
very idea of a liberal regime. Within those constraints a variety of different strategies
are permissible, including somethough not allsecular policies. (In this sense, neu-
trality and secularism are not per se antithetical.) Consequently, much of the diversity
that Weiler and others rightly emphasize will pass the test unscathed. However, the
constraints themselves are not negotiable or optional. As such, they delimit the mar-
gin of appreciation, and thus their observance should properly be the subject of supra-
national scrutiny. In this sense the language of higher and lower levels of protection is
rather inapposite here. We do not invite the Court to ride the wave of some emerging
52
Leyla Sahin 109. Still, at other times proportionality and the margin of appreciation are confused,
and the answer to the proportionality test is made to depend, in part, on the existence of European
consensus.
53
Weiler, supra note 16, at2.
54
Id.

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Neutrality in the classroom 217
trend for harmonization. Neither do we maintain that it should throw its weight with
one or the other side in the European cultural wars of today. Rather, we insist that
it ought to police the ground rules, under which these wars for the character of our
shared social environment will be conducted, in a spirit of equal respect.
5. Conclusion
European states have long histories that stretch back to the time before religious toler-
ation. We cherish these histories and seek to fnd in them inspiration and the source of
national pride. We want to impart their lessons to the younger generations. However,
we cannot let them blind us to the peculiar political challenges that we face here and
now. If our past was parochial, our present must be as tolerant as it is pluralistic; no
religious group, whatever its clout, can claim a privileged place in it. We therefore
have to design our collective life in a way that retains the vivid sense that every citizen
deserves equal respect independently of her religious beliefs. We ought to pay special
attention to the setup of our schools. Clearly, education is too important for each one
of us to be left prey to sectarian politics. In this article we have argued that the concept
of neutrality can help us steer our course amid the thorny political choices that we
have to make in responding to the challenges of pluralism. More specifcally, we have
shown that it imposes limits on the content and shape of state education in the name
of equal respect while, at the same time, leaving room for the promotion of collec-
tiveeven paternalisticgoals. We have also suggested that this casts doubt on two
of the Courts most enduring argumentative devices, the proportionality test and the
margin of appreciation, at least as those devices have traditionally been understood
and employed in the case law. Recognizing the importance of religious freedom and
education in a democratic society, the Court, in the past, has not hesitated to scruti-
nize educational policies for their conformity with neutrality. Still, its commitment to
human rights has not been matched with the appropriate analytical toolkit, and these
limitations were exposed in Lautsi. Amore careful elaboration of the idea of neutrality
may well breathe new life in the Courts efforts.

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