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Lautsi: ACommentary on a
decision by the ECtHR Grand
Chamber
Lorenzo Zucca*
This critical comment of the Crucifx in the Classroom case, decided by the Grand Chamber
of the European Court of Human Rights, deals with three issues: the place of religious sym-
bols in the public sphere, the meaning of secularism today, and the notion of respect owed to
parental convictions in the educational context. Each one of these issues pose a considerable
problem in relation to the place of religion in the European constitutional landscape. The com-
ment suggests that the ECtHR should have put more pressure on Italy to come up with a more
sound legal basis with regard to state-supported religious symbols.
1. Introduction
On March 18, 2011, the Grand Chamber recognized a wide freedom for Italy to decide
whether or not to display the crucifx in the classroom.
1
By doing that, it reversed the
decision of the second chamber that had declared the crucifx to be incompatible with
the principle of secularism and the respect owed to parental convictions as protected
by article 2, protocol 1,ECHR.
The decision already provoked a huge wave of largely critical comments on the web,
although it was hailed as a victory for the Italian government and for the Vatican. It
calls for a calm refection on several issues, and that is what I would like to attempt
in this comment. In section 2, Iwill discuss the position of the courts concerning the
symbols in the educational environment. In section 3, Idiscuss the notion of secular-
ism lying behind the Grand Chambers decision. In section 4, I analyze the central
idea of respect owed to parental convictions in matters of education and the margin
of appreciation left to the state on how to show respect. Section 5 brings us back to the
concrete legal problems that Italy faces regarding the presence of the crucifx. Section
6 concludes.
1
Lautsi v.Italy, no.30814/06, Judgment of March 18, 2011.
* Reader in Jurisprudence, School of Law, Kings College London. Email: lorenzo.zucca@kcl.ac.uk

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Lautsi: ACommentary on a decision by the ECtHR Grand Chamber 219
2. Symbols and the right to education
The right to education is protected by article 2, protocol 1: No person shall be denied
the right to education. In the exercise of any functions which it assumes in relation
to education and to teaching, the State shall respect the right of the parents to ensure
such education and teaching in conformity with their own religious and philosophi-
cal convictions. It is clear from this formulation that the state has a duty to put in
place an educational system access to which is not burdened by fnancial or other
considerations that may amount to discrimination against some pupils. In addition
to that, the Court tells us that the state should guarantee that the teaching in public
schools is objective, critical, and pluralistic.
2
This does not mean that religious edu-
cation is prohibited, only it has to be such that it invites pupils to refect about their
religious heritage along with everyone elses in a spirit of open-mindedness and toler-
ance. Classrooms should be places where the mind is trained to think freely in order for
everyone to become a fully rational and autonomous individual and citizen.
The Grand Chamber tells us that the state has an obligation to guarantee that the
school environment is free from any pressure that may amount to indoctrination of chil-
dren.
3
It is in this context that the question of religious symbols in the classroom arises:
does the crucifx have a negative impact on the learning environment of pupils? Given
that symbols are so prominent and visible and given that they immediately convey a
strong sense of belonging and identity, it is somehow curious that the Grand Chamber
believes that the crucifx as a symbol does not have a sizeable impact on pupils.
4
The Grand Chamber disavows the chamber of the second section on this point:
there is no evidence before the Court that the display of a religious symbol on class-
room 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.
5
Judge Power joins the Grand Chamber in her concur-
ring opinion by stifing the second chambers rather speculative conclusion that the
crucifx may entail a particularly strong risk of emotional disturbance. The battle on
this point is on the role of evidence in courts. The Grand Chamber and Judge Power
believe they have a very strong point here. But dothey?
Does the infuence of a symbol need to be proved? Is not the point of a symbol to
have an immediate impact, one that is loud and clear and does not require further
articulation? Does not a symbol play the function of rallying the people belonging
to the same group? Asymbol has an immediate visual infuence; it does not need to
speak since everyone knows what it stands for. Moreover, Judge Power has to con-
cede that, in principle, symbols are carriers of meaning. They may be silent, but they
may speak volumes.
6
Nevertheless, the Grand Chamber and Judge Power seem to
2
Folgero v.Norway, no.16468/05, Judgment of January 17, 2008.
3
Lautsi v.Italy (2011) at 69.
4
See Lorenzo Zucca, The Classroom as a Tolerance Lab, in LAW, RELIGIOUS FREEDOMS AND EDUCATION IN EUROPE
(Myriam Hunter Henin ed., forthcoming).
5
Lautsi v.Italy (2011) at 66.
6
Lautsi v.Italy (2011) Concurring opinion, page45.

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220 ICON 11 (2013), 218229
believe that the burden of proof lies with the individual that complains about those
symbols.
Mrs. Lautsi is required to bring evidence on the negative infuence of the crucifx on
her children. What kind of evidence are we looking for here, though? Here we have to
distinguish between the impact on the childrens convictions (which the Court treats
as objective) and the impact on parental convictions (which the Court treats as subjec-
tive). The Grand Chamber suggests that there is no evidence of impact on childrens
convictions, on the one hand. On the other, the Grand Chamber holds that Mrs. Lautsis
subjective perception is not enough to establish a breach of article 2, protocol 1.
7
It is diffcult to deny that the crucifx lacks impact and infuence. Its importance at
large is palpable everywhere and is refected in the huge uproar of the many people
that stand for or against such symbol. The media, moreover, testify to how heartfelt
was that issue. It is undeniable that the passion of the Christ and his crucifxion stir
emotions and aim to impact positively on the lives of people. Jesus Christ would be
deeply disappointed to learn that the last chapter of his life does not move people to
change the world into a better place. It is ironic that, in the wake of so many emotions
stirred up by a symbol, the Grand Chamber and Judge Power feel like suggesting that
evidence should be brought to prove that a religious symbol can have an emotional
infuence. As to the impact of the symbol on the educational environment, nobody
would argue that the presence of the crucifx is neutral.
It is puzzling to learn that the crucifx is only a passive symbol. First of all, to claim that
a symbol is passive implies that other symbols are active. This, of course, is deprived of
logic as there are no such things as active symbols; furthermore, the point of the sym-
bol is to convey meaning without engaging in speech or actions. The Grand Chamber
is, however, persuaded that a crucifx on a wall is an essentially passive symbol. . . . It
cannot be deemed to have an infuence on pupils comparable to that of didactic speech
or participation in religious activities.
8
The Grand Chamber seems to suggest that
visual impact is lower than the impact of speech, which is counterintuitive in Western
societies, where there is consensus on the impact of visual culture through media. The
Grand Chamber has a very peculiar theory of communication.
The Chamber had found in the previous decision that the crucifx should be consid-
ered a powerful external symbol, referring to the Dahlab case in which the Islamic
scarf of a teacher had been considered a powerful external symbol and on that basis
it had been prohibited. The Grand Chamber rejects the analogy without giving a sat-
isfactory explanation. The upshot is that the Islamic veil is a powerful external sym-
bol, while the crucifx is a passive symbol. Some may sense a differential treatment
between different faiths. In Dahlab, the prohibition of the headscarf was intended to
protect the religious beliefs of the pupils and their parents and to apply the principle of
denominational neutrality in schools enshrined in domestic law.
9
Again, with a slight
ironic implication, the principle of neutrality applies to prohibit minority symbols but
7
Lautsi v.Italy (2011) at 66.
8
Lautsi v.Italy (2011) at 72.
9
Lautsi v, Italy (2011) at 73.

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Lautsi: ACommentary on a decision by the ECtHR Grand Chamber 221
does not apply to ban majority symbols. With a slight paraphrasis, we could conclude
that some symbols are more neutral than others. Indeed, the breathtaking logic of the
Grand Chamber attempts to suggest that because the crucifx is an essentially passive
symbol it does not impact on the principle of neutrality.
10
I need to say something about the impact of the crucifx on parental convictions.
The Grand Chamber dismisses Mrs. Lautsis subjective perception as not in itself
suffcient to establish a breach of the Convention. Surely, however, article 2 proto-
col 1, protects precisely religious or philosophical convictions, which cannot be
but subjective convictions. Thus, the empirical evidence as to the objective impact on
childrens convictions is to be deemed irrelevant from the viewpoint of article 2, pro-
tocol 1. Moreover, the lack of tolerance and pluralism is in the eye of the individual
beholder, not in the eye of the majority. It is true that parents convictions have to
be balanced against the states power to elect its own symbols. However, the Grand
Chamber in this case shows too much respect for the state and too little respect for the
views of the parents.
11
It is worth noting here that the Grand Chamber is ambiguous as to the Italian gov-
ernments suggestion that the crucifx, as a symbol, transcends religious values and
stands as well for values such as liberty, human rights, and democracy, which are typi-
cally associated with the modern secular state. On the one hand, the Grand Chamber
is aware that the crucifx is above all a religious symbol.
12
On the other, it leaves
ample maneuvering room for the state to single out and perpetuate those symbols
that have crystallized into identity-linked traditions.
13
The ambiguity, I am going to
argue in the next section, should be attributed to the lack of clarity on the mean-
ing of secularism. As long as one interprets secularism as being about church and
state relationships, then ambiguity and uncertainty will always be rife in relation to
the separation between religion and politics. For this reason, Ipropose that we should
move away from church-and-state debates to embrace a conception of secularism that
is centered on the role of the secular state in accommodating diversity, both religious
and nonreligious.
3. Secularism, pluralism, and neutrality
The Grand Chamber is determined to avoid the issue of secularism. It insists that it is
not for the Court to rule on the compatibility of the presence of crucifxes in State
school classrooms with the principle of secularism as enshrined in Italian law.
14
This
is frmly to disavow the chamber of the second section, which had established a viola-
tion of the principle of neutrality because the presence of the crucifx was capable of
clashing with the secular convictions of Mrs. Lautsi.
10
Lautsi v.Italy (2011) at 72 and Concurring opinion Rosakis,page37.
11
Section 4 develops the criticism concerning the idea of respect used by the Grand Chamber.
12
Lautsi v.Italy (2011) at 66.
13
Lautsi v.Italy (2011) at 68.
14
Lautsi v.Italy (2011) at 57.

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222 ICON 11 (2013), 218229
The Court frames the problem in the narrowest possible terms: the only question
before it concerns the compatibility . . . of the presence of crucifxes with the require-
ments of Article 2 of Protocol 1.
15
I am not against judicial minimalism insofar as
Ibelieve that the Court does not have to pronounce itself on every possible issue con-
nected with one case. However, it is impossible to detach the protection of freedom of
and from religion from the idea of the secular state as developed in our modern age.
Without secularism, freedom of religion would only be based on the whim of the state
that would decide arbitrarily whether or not to tolerate this or that religious group, as
was the case, for example, in the Act of Toleration 1689, which prohibits the practice
of Catholicism in England. It is, therefore, a mistake to suggest, as Judge Giovanni
Bonello does, that secularism, pluralism, the separation of Church and State, reli-
gious neutrality, religious tolerance . . . are not values protected by the Convention.
16

First, Bonello is forced to acknowledge that the Court itself has used these concepts
many times before, virtually in every decision on article 9.
17
Second, it is very clear
that article 9 protects freedom of religion as well as freedom from religion; the latter
would be hard to understand in isolation from a secular understanding of the state
and itslaw.
The Court adds that secularism is cogent, serious, and coherent enough to qualify
as a matter of philosophical conviction that parents can invoke as part of their right
to have their children educated compatibly with their convictions (art. 2, protocol 1).
Secularism is demoted from an overarching principle of the constitutional state to one
possible philosophical conviction among others. This suggestion is deeply problematic
and denotes well the spirit of uncertainty within which we live. It is true that secular-
ism can be understood in many different ways; it is a constitutional doctrine, a philo-
sophical stance, a worldview, and ideology, and even an extreme stance in the hands
of scientists who see religion as the archenemy. In the European context, however,
there is a growing need for a legal response to the presence of religion in the public
sphere. Thus, the constitutional understanding of secularism must be distinguished
from secularism as a personal philosophical conviction, contrary to what the Court
claims here. An individual, like Mrs. Lautsi, is free to believe that any religion is det-
rimental and incompatible with her own convictions. The state, on the other hand,
should refrain from any such conviction since it is committed to protect freedom of
religion.
Secularism is often understood as an absence: the effacing of religion from the
public sphere. But it truly should be understood as an eminently positive stance that
made the values of liberty, equality, and solidarity possible.
18
The French trinity of
15
Lautsi v.Italy (2011) at 57.
16
Lautsi v.Italy (2011) at page40.
17
See Julie Ringelheim, Rights, Religion and the Public Sphere: The European Court of Human Rights in Search
of a Theory?, in LAW, STATE AND RELIGION IN THE NEW EUROPE: DEBATES AND DILEMMAS (Lorenzo Zucca & Camil
Ungureanu eds., forthcoming).
18
The Consiglio di Stato, the highest administrative court, suggests that the crucifx stands for the same
values as the secular state. Indeed, there may well be overlap, but there is also a difference insofar as the
crucifx cannot be held to represent a shared worldview.

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Lautsi: ACommentary on a decision by the ECtHR Grand Chamber 223
libert, egalit, and fraternit is an underlying theme of secularism. Indeed, secularism
as a constitutional approach must protect freedom of belief of religious and non-
religious people; no coercion whatsoever can be justifed when it aims to infuence
peoples beliefs. Freedom also covers religious exercise; no one can interfere with or
curtail the liberty to exercise ones own religion. Equality is also a very important
goal; religious and nonreligious people have symmetrical rights and duties. Moreover,
the state cannot favor any worldview (religious or nonreligious) and/or adopt it as its
own preferred standpoint. Fraternity requires that the state should hear all the voices
of religious and nonreligious people when deliberating about its political identity and
on the way in which rights and duties should be defned. On top of these political
values, which are secular values, there is another goal worth stressing that emerges
from the insistence on democracy and the rule of law. Both democracy and the rule
of law are means to achieve and maintain a maximum degree of peace and harmony
among the various constituencies of a society. So the fourth element of secularism as
a constitutional approach is the goal of social peace through democratic deliberation
and law.
19
It is not for the Court to impose one model of church and state relations as in France
or the US. That understanding of secularism is deeply rooted in national experience
and was developed at a time when it was necessary for the state to free itself from the
grip of the Church; this is particularly true in the French context, where the law of
1905 came into force in order to settle very bitter confrontations between state and
church. More generally, that model of secularism is probably outdated. In Europe, the
Treaty of Westphalia had established a monopoly on the part of one church in each
nation-state according to the principle Ejus regio, cujus religio (to each kingdom, its
own religion). That framework created the possibility for a bitter confict between two
competing authorities aiming at fnal power. Today, the relationship between state and
church is different and is, in most cases, one of peaceful collaboration. It, therefore,
does not make much sense anymore to speak of secularism as guaranteeing a strict
separation. Secularism in that sense is largely devoid of its original purpose.
It is, however, possible to distinguish between two models of constitutional secular-
ism.
20
The frst is the classical model that deals with the relationship between state
and church. The second model of secularism focuses on the role of the secular state
to protect diversity and attempts to go beyond and break free from the cultural and
religious homogeneity inherited from the peace of Westphalia. This does not mean
that traditions lose their importance; it simply means that the past should not be used
as an excuse not to cope with the fact of pluralism.
In the frst Lautsi case, the chamber of the second section established a link between
neutrality and secularism: The States duty of neutrality and impartiality is incom-
patible with any kind of power on its part to assess the legitimacy of religious con-
victions or the ways of expressing those convictions.
21
The nature of secularism
19
For a very similar view, see Charles Taylor, The Meaning of Secularism, 12 HEDGEHOG REV. (2010).
20
See LORENZO ZUCCA, ASECULAR EUROPELAW AND RELIGION IN THE EUROPEAN CONSTITUTIONAL LANDSCAPE (2012).
21
Lautsi v.Italy, no.30814/06, Judgment of November 3, 2009, 47 (e).

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224 ICON 11 (2013), 218229
as a neutral stance on the part of the state is challenged by Judge Power, as well as
by the submission of the governments of Armenia, Bulgaria, Cyprus, the Russian
Federation, Greece, Lithuania, Malta, and the Republic of San Marino in which it was
argued that favouring secularism was a political position that, whilst respectable,
was not neutral.
22
While it may be correct that there is no neutral political stand-
point, Ido believe that constitutional secularism provides the best default framework
within which a diversity of worldviews can be promoted and maximized. From this
perspective, neutrality would not be associated anymore with a negative and exclusive
attitude of the state vis--vis religion. Neutrality would be a positive stance the point of
which is to accommodate all viewpoints without embracing one in particular. It may
be argued that one embraces, at least, the idea of diversity. This is correct; secularism
itself is not purely neutral, as it is an alternative to political doctrines that do embrace a
fully fedged worldview. Nevertheless, secularism requires that political institutions be
neutral vis--vis religious and nonreligious outlooks. In Europe, there is a wide variety
of secularisms that range from French lacit to the English model, which encapsulates
a tension between establishment and secularism.
23
Even between those two disparate
systems there is a certain convergence on the absolute necessity to cope with the fact
of pluralism by applying a neutral standpoint.
However, neutrality may still puzzle you. In that case, you may want to think of
secularism as adopting an attitude of principled distance.
24
The idea is that the secu-
lar state intervenes to protect and promote diversity of worldviews. Needless to say,
there will be instantiations, where a boundary needs to be drawn. This will require the
adjudication of conficts between competing values underlying secularism. Of course,
it is not easy to come up with decisions that strike a perfect balance between liberty,
equality, and fraternity. Still, this is not a reason to abandon the project of a state that
lets everyones worldview fourish as far as possible.
Judge Powers concurring opinion raises important points on secularism and plu-
ralism. Ihasten to add that Ido like her conclusion concerning a truly pluralist learn-
ing environment, where people (pupils) engage in a genuine exchange of views. It may
be added at this point that in order to be able to do that, pupils must have suffcient
intellectual maturity. This may apply to older students, but not really to the young-
est pupils. That said, it is desirable to conceive of an educational environment where
pupils are exposed to differences of all types, rather than having schools with a homo-
geneous student body. The classroom would thus mirror the fact of pluralism which
characterizes modern liberal democracies.
Where I sharply disagree with Judge Power is on her notion of secularism. She
claims that secularism is an ideology among others. This is inaccurate, at best,
and deeply misleading, at worst. It is inaccurate because secularism is a multifaceted
22
Lautsi v.Italy (2011) 47. See also J.H.H. Weiler, Editorial: State and Nation; Church, Mosque and Synagogue,
8 INTL J.CONST. L.(ICON) 157166 (2010).
23
JULIAN RIVERS, THE LAW OF ORGANIZED RELIGIONSBETWEEN ESTABLISHMENT AND SECULARISM (2010).
24
Rajeev Bhargava, State, Religious Diversity and the Crisis of Secularism, 12 HEDGEHOG REV. (2010), available
at http://www.iasc-culture.org/publications_article_2010_Fall_Bhargava.php

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Lautsi: ACommentary on a decision by the ECtHR Grand Chamber 225
notion; it can be an ideology, but it can also be a philosophy and a legal/constitutional
approach. Take French lacit, for example; it is fairly commonplace to distinguish
between ideological lacit and legal lacit.
25
Legal lacit is the drawing of boundaries
between church and statesomething that most Western states accept de facto or de
jure. Ideological lacit claims to provide one largely negative worldview according to
which citizens are requested to rebuke religion away from the public sphere. But, of
course, the suggestion that once stripped of religious beliefs we would all converge
toward a common national identity defned in purely political terms is just an illu-
sion.
26
That said, it is clear that secularism is not only an ideology, although it may take
an ideologicalshape.
The upshot of Powers critique of secularism as an ideology is her claim that the
state should pursue a pluralist rather than a secularist agenda. This statement dis-
plays a double mistake. First, secularism and pluralism are deeply intertwined. It is
only when modern European states free themselves from the grip of one religion that
they become pluralist. For example, American pilgrims fed Europe because of reli-
gious persecution; as a result, the authority of the American Constitution depends on
the separation between church and statethis is the basis of American pluralism
and it certainly is not incompatible with the presence of religion in the society. Second,
Italy (my country) has always been remarkably homogeneous because the vast major-
ity of people are Catholic. Religion, in this case, militates in favor of homogeneity and
against pluralism. So if one is serious about pluralism (as Judge Power claims to be)
then one has to be a little more critical of the de facto supremacy of one majority
religion. Constitutional secularism, as Iunderstand it, is an approach that accepts the
fact of (religious and nonreligious) pluralism and questions the status quo imposed by
cultural and religious homogeneity.
4. Respect and margin of appreciation
The Grand Chamber regards the second sentence of article 2, protocol 1, as being
central to the case. In particular, it focuses on the notion of respect toward parental
convictions. For the Grand Chamber: The word respect in Article 2 means more than
acknowledge or take into account . . . it implies some positive obligation on the part
of the State.
27
So the Court distinguishes between two concepts of respect. One is
about acknowledgement, the other is about esteem. We merely acknowledge someone
elses views when we can see the difference between two views without wanting to
learn from the other persons perspective. In the case of respect as esteem we can see
the difference and yet we are ready to make the other persons viewpoint part of our
worldview; this attitude involves a greater willingness to learn and compromise.
28
25
See, for instance, OLIVIER ROY, SECULARISM CONFRONTS ISLAM (2007).
26
Id.
27
Lautsi v.Italy (2011) 61.
28
For a defense of this position, see MARTHA NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICAS TRADITION
OF RELIGIOUS EQUALITY (2008).

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226 ICON 11 (2013), 218229
In theory, the Grand Chamber opts for the latter understanding of respect, although,
in practice, it applies the former. The Court holds that the philosophical convictions of
the parents must be respected by the state. It is noted by the court here that respect
requires a more demanding attitude than simple acknowledgment. Legally, this means
that the state has a positive obligation to take into account parents convictions (para.
61).
29
Nevertheless, the Court manages to take away with one hand what it gives with
the other in the very same paragraph, and, in a feast of poor logic, holds that the
notion of respect will vary from country to country. In other words, the Court says
that respect is a stringent universal moral and legal requirement, yet it also holds that
it is not all that stringent as it depends on the context and on European consensus.
30

Surely, to show respect to parents convictions involves a great deal of effort on the
part of the State! Not at all, says the Court, since respect depends on whether there is
consensus on certain practices at the European level. This is like saying that Irespect
everyones opinion, but Iam happy to silence those thoughts that are not approved by
the majority (consensus). Or one can turn the table against the Court itself: Irespect
the ECHR, but Iam prepared to disregard it completely if there is no consensus on its
authority. Those are the kind of problems that the Court entered into by engaging
(poorly!) with the notion of respect.
In the end, what matters is that, according to the Grand Chamber, respect is a mat-
ter of consensus; as a consequence of a lack thereof states have a wide margin of
appreciation. However, the Court then comes full circle and adds that the established
margin of appreciation is not challenged by contrary evidence on the basis of con-
sensus.
31
Well, that is puzzling! If a wide margin of appreciation is based on lack of
consensus, it should not come as a surprise that there is no consensus on the prohibi-
tion of religious symbols. . . . It all sounds like a tautology. This is the hard core of the
reasoning of the Court, and Ihope that you can see that it is not a very strong position.
In its twenty short paragraphs of assessment, the Court mentions the margin of
appreciation eight times (it is mentioned twenty-seven times in the whole decision
this is to give a sense of importance of this notion). According to a predictable theo-
rem, when the court mentions a wide margin of appreciation it always fnds in favor
of the defending state. Not surprisingly, Strasbourg-Pilate concludes that the state is
free to decide whether or not to have religious symbols in state schools. As a matter of
politeness, the Court still notices that even a wide margin of appreciation has its limits
under the Courts supervision. But once again the reasoning is virtually nonexistent.
First, the Court acknowledges that the crucifx confers on the countrys majority
religion preponderant visibility in the school environment. However, this, the Court
states without argument, is not in itself suffcient . . . to denote a process of indoctri-
nation on the respondent States part and establish a breach of the requirements of
Article 2 of Protocol No. 1. In clearer words, the state can place religious symbols
wherever it wants and this will never amount to indoctrination.
29
Lautsi v.Italy (2011) 61.
30
Either respect is universal or contingent, the two are mutually exclusive.
31
Lautsi v.Italy (2011) 70

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Lautsi: ACommentary on a decision by the ECtHR Grand Chamber 227
Judge Malinverni rightly points out in his dissenting opinion his disappointment
with the understanding of margin of appreciation. He holds that the Court relies too
heavily on the notion of consensus to deduce a wide margin of appreciation. However,
the doctrine of margin of appreciation makes sense only if understood as a complex
set of factors: the right in issue, the seriousness of the infringement, the existence of
a European consensus, etc.
32
To juggle them all requires careful analysis and well-
crafted reasoning. None of these are displayed in the Courts lamentable decision.
More importantly from a legal viewpoint, it is hard to square the fact that the state
has a positive obligation to respect parents conviction with the very wide margin of
appreciation granted by the Court. The recognition of a positive obligation obviously
calls for a heightened supervision of Strasbourg.
5. Lets talk aboutlaw
The presence of the crucifxes has a very weak legal basis, as Judge Malinverni points
out. It is a royal decree dating back to 1928. Since the issue of symbols raises problems
regarding fundamental rights and liberties, it would be more desirable if the matter
was dealt with by legislation. It is, indeed, a matter of principle that calls for a wide
debate in the country and wide consensus in parliament. Moreover, a legislative basis
would enable the Constitutional Court to express its opinion as to the compatibility of
the solution with the Constitution; for the moment, the constitutional court has no
power to review administrativeacts.
The Italian Constitutional Court singles out lacit as one of the constitutional
principles embedded in the foundational text (although not explicitly mentioned).
Concerning the crucifx in the classroom, it refused to rule on this issue because it
lacks jurisdiction for reviewing an administrative decree. But the constitutional judge
decided, as a matter of internal regulation, to remove the crucifx from the court-
room, thereby taking a side in the debate. It would seem that, from a constitutional
viewpoint, were we to draw the appropriate consequences of the principle of lacit
as recognized by the Constitutional Court, crucifxes would have no place in school
classrooms. However, Italy is, for the moment, an in-between case that shows a ten-
sion between its secular (or more precisely laque) character and the acceptance of
certain elements of religion in public institutions. Ibelieve that it is for the state itself
to decide what form of secularism suits it and to draw from it all the necessary conclu-
sions. Iagree with the Grand Chamber: it is not the mission of an international court
to suggest which form of secularism is the most appropriate. An international court
can, however, pinpoint to an existing contradiction between principle and practice.
As it is well known, Italys Court of Cassation and the State Council (the supreme
administrative court) take opposite views as to the presence of the crucifx in public places.
The Court of Cassation held that the crucifx infringed the principles of secularism and
the impartiality of the state. The State Council believes, instead, that the crucifx stands
for a universal value independent of any specifc religious creed, thereby, reinforcing
32
Lautsi v.Italy (2011), dissenting opinion page47.

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228 ICON 11 (2013), 218229
rather than undermining the modern secular state. The Grand Chamber rightly points
out that it is not its task to take a position regarding a domestic debate between courts.
The right place to do so would be in the Italian Constitutional Court, which is not compe-
tent to decide the unconstitutionality of an administrative decree. That is why the Grand
Chamber should have put more pressure on Italy to resort to a legislative solution.
Beside institutional disagreement, there is, of course, substantive disagreement
about the meaning of the crucifx. People in Italy will keep on disagreeing whether the
crucifx is permissible or not. Some claim that the state has a binary choice between
crucifx and no-crucifx, and it is on this point that I would like to comment briefy.
There is, at least, a third position that strikes a middle ground between the two, namely,
a position that shows respect for dissenting voices while maintaining the power of the
state to elect its own symbols. Bavaria already adopted this position some time ago, and
this involves the maintaining of the crucifx in classroom provided that parents have
a veto power if they so wish.
33
First, the German Constitutional Court ruled that it is
diffcult to reconcile the presence of the crucifx with the principle of neutrality. Then,
the Bavarian Parliament issued an act maintaining crucifxes while enabling parents
to cite their religious or secular convictions in order to challenge that presence. The
result can vary from school to school. Has it worked? As far as Iknow, people still com-
plain about crucifxes, but they feel more empowered as they have an offcial way of
expressing their position. Ideally, disagreement about the crucifx could be turned into
an occasion for mutual knowledge between people of different faiths as well as between
religious and nonreligious people. In any case, parents should be able to raise the issue
for serious consideration and have the school engage in a debate as to whether or not
the symbol should be kept. This third type of solution pays respect to minority views
while preserving the authority of the state and the importance of local traditions.
I have to add two important caveats; frst, Ido not claim that the Bavarian solution
should become the default position in Europe. Rather, I see it as a good policy that
the Italian state could adopt were it to rethink the issue at the legislative level. Thus,
Icertainly do not advocate a default one-size-fts-all position. But, Iam saying that the
ECtHR could have allowed a margin of appreciation while, at the same time, putting
more pressure on Italy to come up with a mechanism of exemption mandated by leg-
islation. Second, Iam not claiming that because Mrs. Lautsi does not approve of the
crucifx, all classes should remove it hic et nunc. It has been there for a long time, and
it is desirable to think about the symbol hard and long. It is only by engaging in a seri-
ous discussion about the pros and cons of the symbol that we pay respect to dissenting
views. On this point, Judge Power is wrong to say that Mrs. Lautsi only expresses a sub-
jective perception. She expresses one valid argument against a religious symbol and in
favor of one possible understanding of a pluralist school. Judge Power makes a fnal
desperate argument: removing crucifxes from classrooms would diminish diversity
and tolerance. The suggestion is that diversity requires that students be exposed to as
many viewpoints as possible; to remove the crucifx would deprive them of at least one
worldview and thus would diminish diversity. This hopeless argument would work if
33
The Bavarian solution is mentioned in the Lautsi decision at par. 28.

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Lautsi: ACommentary on a decision by the ECtHR Grand Chamber 229
the crucifx was one symbol among many. However, as things stand the crucifx is the
only worldview that meets with the states approval.
The Grand Chamber had the opportunity to put forward an understanding of the
right to education that is sensitive to the idea that the classroom should be a labora-
tory of tolerance insofar as it is the best place in which to experience pluralism and
develop mutual understanding. The presence of the crucifx in Italian classrooms is
not always incompatible with the respect of parents convictions. However, and this is
what is missing in the Grand Chambers decision, the state has to show a real concern
and respect for those parents who disagree with that rule by allowing for the possibil-
ity of an exemption mechanism. If the state can devise a system whereby the crucifx
can be regarded as a starting point for a local debate on what symbols bind us together
then it will, perhaps, be acceptable. The overarching goal is not to impose unilaterally
an atheistic or a religious view of what the symbols in the classroom should look like.
The aim should be to provide an environment within which the exchange between
religious and nonreligious people is possible, creative, and productive. The classroom
as a tolerance lab does not require, as a matter of principle, that we remove the crucifx
once and for ever. Instead, it demands that the decision on what symbols should be
displayed in a classroom be dependent on mutual understanding and respect.
6. Conclusion
The conclusion reached by the Grand Chamber is not wrong in itself. The place of reli-
gious symbols in the public sphere should not be the object of a blanket ban. It is possi-
ble for a secular state to carve out an exemption in relation to the presence of symbols
in some educational contexts. However, the decision is very poorly reasoned on every
important point. It suggests a very dubious notion of passive symbols. It dodges the
problem of secularism as if it were a mere ideology. It preaches respect only to allow
the state freedom to disrespect minorities. Finally, it ignores important legal problems
at the local level that Italy would not revise unless pressured to doso.
Subsequently, the decision is a defeat for everyone, not just for the appellant. It is a
defeat because the Court does not provide a much-needed refection on the question of
the presence of religion in the public sphere. The quality of its reasoning is very poor
and unsatisfactory, as has been noticed time and time again, even when the Lautsi
decision went the other way. The Grand Chamber does not articulate its reasons, its
assessment is short and brutish and only consists of twenty short paragraphs, where
the Court simply hides behind the screen of the margin of appreciation, a rather
laconic euphemism for deference to the national authorities. True, deference serves
the purpose of legitimizing the international court vis--vis ferocious national criti-
cism, which was very vocal, recently, in the UK parliament. However, what the ECtHR
does not seem to understand is that its legitimacy as an international court of human
rights also crucially depends on the quality of its reasoning, which should be regarded
as exemplary in articulation and depth. Without those qualities, any decision is a
defeat for justice even if it may be a Pyrrhic victory for institutional respectability.

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