The Italian crucifix case (Lautsi case) is the first case in the history of the Court which attracts so much attention and mobilizes so much people to act. With this case, the Court appeared publicly as an ideological battlefield where significant political decisions are passed in certain confidentiality. This case arose in the rather exceptional context of a crisis surrounding issues of European identity and growing exasperation towards judicial and ideological activism of the Court of Strasbourg. But this case precisely questioned the place of Christianity in European identity and the limits of the international jurisdictions’ power. Thus, several political questions of paramount importance have been concentrated on this case.
First of all, the problem of the Court: the first judgment, on November 2009, was pronounced just as the reform process of the European Court began. The Lautsi judgment was the central issue in the discussions of the Conference of Interlaken, in February 2010, which concluded that the reform of the Court is necessary and has to respect more the national jurisdictions (principle of subsidiarity). The Lautsi case became the symbol of the excesses of the Court, a Court moreover judged as being made up of often under qualified judges.
Then, the question of European identity and values: the Lautsi case arose as the ideology from the seventies turned out to be a dead end. Europe wonders more and more openly about its civilization project. The question arose by the Lautsi case was to know if Christianity still has its place in the new civilization process, or whether it has to disappear from the future western identity.
The stakes were significant…
The Italian government’s intensive work and the political, cultural and spiritual reassertion movement of the Orthodox Europe, especially of Russia, were significantly weighty to tip the scales. We know that in its March 2011 decision, the Grand Chamber of the Court actually reasserted the social legitimacy of Christianity and considered as justified that “the regulations confer on the country’s majority religion preponderant visibility in the school environment […] in view of the place occupied by Christianity in the history and tradition of the respondent State”. This assertion assumes full meaning when we know that the Court has simultaneously put the secularism into perspective by denying any claim of neutrality: secularism is one “belief” among many and it can no longer claim neutrality. Secularism is not the obligatory pattern of the future Europe.
Some fallout already discernible in the Court’s case-law
Fallout of the Lautsi case, and the huge immobilization it caused, is going well beyond and is already discernible in the recent case-law. The Court seems to begin to show judicial restraint towards morally sensitive matters. While the Court became one of the favourite grounds of the libertarian activism, in particular as regards bioethics and sexuality, the Court recently seemed to rediscover the sovereignty of the States (Subsidiarity) and that the ethical and moral values underlying the societies deserve a certain respect.
However, the Court has not suddenly converted to legal conservatism, far from it. It seems rather to attempt to protect itself by combining legal accuracy and political caution. From its recent judgments concerning contentious matters stands out a tendency to balance its positions, being based on the three following pillars: 1) the non-sentence of the State, which is sufficient to politically satisfying it; 2) the reminder of the relative importance of the “values” and of subsidiarity, which satisfies the conservatives; 3) the discreet laying of foundations for future libertarian decisions, like so many promises made to the progressives. This balance allows case by case to stabilize an international institution whose political legitimacy is increasingly undermined.
Here some instances:
No right to same-sex marriage
In the judgment Schalk and Kopf v. Austria pronounced on 24 June 2010, the Court asserted that “States are still free […] to restrict access to marriage to different-sex couples (§108), even if the Court considers in other respects as “artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” (§94). The judgment of the Court is based on the fact inter alia that “marriage has deep-rooted social and cultural connotations which may differ largely from one society to another” and consequently “it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society” (§62). The Court is generally more “daring” when it comes to asserting homosexual rights. The application of transfer to the Grand Chamber was rejected: the Court didn’t need any new controversy.
No right to abortion
In the very important case A. B. C. v. Ireland, judgment pronounced on December 16, 2010, the Grand Chamber of the Court asserted that there is no right to abortion in the European Convention and that the restriction on abortion in Ireland “was based on profound moral values concerning the nature of life”. The Court concluded that “the impugned restriction therefore pursued the legitimate aim of the protection of morals of which the protection in Ireland of the right to life of the unborn was one aspect”. Thus, the Court reminds that, in opposition to the individualistic liberal doxa, the moral values, as much criticized as the right to life, can legitimately hinder the creation of new individual rights, even the supposed right to abortion.
No right to assisted suicide (“right to die”)
In the case Haas v. Switzerland, judgment pronounced on 20 January 2011, the first Section of the Court judged that the State doesn’t have to ensure that a sick person wishing to commit suicide could obtain a lethal substance without a prescription, by way of derogation from the law, so as to be able to end his life without pain and with no risk of failure. The Court, although recognizing a kind of individual right to commit suicide, reminded unanimously that the right to life “compels the national authorities to prevent a person from putting an end to their life if such a decision is not taken freely and with full knowledge”. The Court observes that there is no consensus between the States but most of them attach “more weight on the protection of an individual’s life than on the right to end one’s life” and concludes that the States have a broad margin of appreciation in that respect.
The question of the right to have children
In the case S. H. v. Austria, the Court judged first that “concerns based on moral considerations or on social acceptability are not in themselves sufficient reasons for a complete ban on a specific artificial procreation technique such as ova donation” (§74). As a result, States which choose to authorize the in vitro fertilization within the couple, as Austria, should authorize it with donation by a third person. In this case again, the Court deeply questioned sovereignty and social and moral values. The Court accepted, aware of the problem this judgment arose, to refer the case before the Grand Chamber. The hearing took place on February 2011. Being inspired by the outcome of the Lautsi case, Germany, Italy, as well as several Members of Parliament and NGOs, among which the ECLJ, intervened beginning of the year to give support to the Austrian law. The Court hasn’t published its final judgment yet, but we can hope for a moderate judgment, even a reversal.
We could quote some more cases in which the Lautsi case probably contributed to make the Court cautious. It is the case of the recent judgment Wasmuth v. Germany. This case asked very sensitive questions about the churches’ funding in Germany. A sentence against Germany would have seriously affected their financial resources, whereas they are the first employer of the country. This time again, the Court decided to be careful by preserving the statu quo ante.
Some political fallout, many more vast
From a cultural point of view, the crucifix case has also deeply unified the various European people. Indeed, twenty-one European countries, among which Russia, took a stand for the crucifix. This act of great importance testifies that Christianity is always at the core of European unity. The political main line Roma-Moscow, formed on the occasion of this case, strengthens the rapprochement between the Catholic and the Russian Orthodox Church. It may in depth modify the European geopolitics and give Italy a key political role.
The Lautsi case had also considerable effects at the national level. Thus, for instance, the Constitutional Courts of Austria and Peru judged the presence of crucifix in class rooms and the courts as in conformity with their laws. These judgments were pronounced almost the same day as for the Lautsi case, last March… The most memorable event was the recent passing of the Hungarian Constitution, of Christian-democratic inspiration. Rejecting communism and the ideology of the seventies, this Constitution, passed on April 18, 2011 and ratified on Easter Monday, aims notably to safeguard “the intellectual and spiritual unity of [the Hungarian]nation”. It is based on the person’s dignity and reasserts the value of marriage, which is based on the voluntary union of a man and a woman. The Constitution protects the foetus’ life “from the moment of conception”. Moreover, it refers to Christianity and to “Christian Europe” in its Preamble; it promotes a fair cooperation between the State and the churches for the common good of the society…
Without being the result of the Lautsi case, this new Constitution fits into the same dynamic. Hungary is one of the 21 countries which officially supported Italy before the European Court; the Hungarian government declared then that the crucifix must be respected as an organic component of the Italian culture and identity.
The Italian crucifix case: a watershed?
(© 2011 Grégor Puppinck, Ph.D)