Lautsi Case - Weiler Reply

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ICON (2013), Vol. 11 No. 1, 230233 doi:10.1093/icon/mos059

The Author 2013. Oxford University Press and New York University School of Law.

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Lautsi: A reply

JHH Weiler*

Kyritsis and Tsakyrakis make an important contribution to the discussion of the con-

cept of neutrality in our contemporary political theory and political praxis. Erudite,

learned, probing, and categorical in its conclusion: the Grand Chamber erred badly.The theoretical apparatus developed rewards careful study. But its application to the

Lautsidecision is fundamentally flawed by the false premise on which its discussion is

predicated. By adopting this false premise the authors do not deal with the real hard

case to which the crucifix in the classroom gives rise.

This is how, after the preliminaries and the chronologies, Kyritsis and Tsakyrakis,

in a succinct, even pithy way, state the issue that is the basis of their theoretical and

conceptual analysis with its eventual critique of the Court:

Is an empty wall as objectionable or as unobjectionable as a wall with the crucifix? Should

someone [like themselves] who objects to the crucifix in the name of neutrality also oppose an

empty wall? (at 5).

That formulation misrepresents the case of equivalence stated powerfully by the

British Judge Powers, which Kyritsis and Tsakyrakis single out as their foil. It also mis-

represents the Leonardo and Marco parable in my pleadings, which they cite but the

significance of which, in my view, they do not quite grasp.

In a nutshell, the wall is not empty. It is open to accommodate and endorse all man-

ner of world viewsand in reality often doesexcept the one world view which is

explicitly excluded, namely the religious world view. At the entrance of every elemen-tary school in France you will find inscribed: Libert, Egalit, Fraternitthe battle cry

of the French Revolution. I would be delighted to send my children to a school which

displayed such rousing words, embodying such ideals. But if I were a Monarchist,

I might feel, well, upset. Were I a Monarchist and were to complain to the school board

of the city or region, I would be told: win the next election, and have it removed, and

then you can put up instead, La France est Moi. I would never dream of telling my

children that Libert, Egalit, Fraternitis a neutral principle. On the contrary, it is an

ideological position which I favor, and for which much blood was spilled. I would mobi-

lize to defend itdemocratically, of courseand hope my children would be equallyso mobilized. But neutral? Not even by the definition of Kyritsis and Tsakyrakis. And

yet, there it is on the wall. Imagine, not such a far-fetched hypothetical, that a region

* Joseph Straus Professor of Law and European Union Jean Monnet Chair, New York University Law

School. Email:[email protected]

atUniversityofEdinburghonAugust15,2013

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Lautsi: A reply 231

in the country decided to be nuclear-free. Driving through Europe you find many such

regions. Many of them espouse a nuclear-free icon, often the triangular peace sign

of the 1960s. It, too, in such regions could go on the wall of a school. The classroom

wall, in principle and in reality, is covered with signs and symbols which reflect demo-cratic, ideological preferences of our polities. Leave your privileged tenured university

desks, enter the nearest school. Take a look around. The only thing you will not find

is a religious symbol. The principle of classroom neutrality does not, in theory and

praxis, require an empty wall. It could notthere is hardly a symbol or picture which

does not carry some explicit or implicit ideological baggage. Even Goldilocks and the

Three Bears are not ideologically neutral. What the laiqueconstitutional principle does

is to allow most such representations on the wall, when democratically arrived at by

school boards, educational authorities and the like, except religious ones which are

prohibited even if they are massively supported by democratic institutions. This resultfollows the logic of constitutionally defining religion as a private affair even if religion

itself does not so define itself. Tell such to Isaiah or Amos or Jeremiah.

The educational consequence is not trivial. For the message, both explicit and

implicit, can well be understood as: all world views can find their place on the wall and

are thus to be understood as Kosher, except a religious world view which, by implica-

tion at least, becomes toxic. Nelson Mandela or Che Guevarayes; but Jean Paul II,

Mohammad or Mosesno.

Perhaps Kyritsis and Tsakyrakis should contend with the following hypothetical:

imagine a state (like the US), which, in substance, does not forbid a person in his or herheart or home to be a Communist (it is not a crime), but will allow the suppression of

Communism publicly as a legitimate world view in the public space and on the wall.

In effect, Communism is defined as a private affair. Neutral?

This is how Kyritsis and Tsakyrakis should have framed the issue if it were to reflect

the reality of laiquetheory and praxis:

Is a wall which allows the display of all manner of world views from left to right, but explicitly

and almost exclusively excludes the religious world view, as objectionable or as unobjectionable

as a wall which by democratic preference displays the crucifix? Should someone who objects to

the crucifix in the name of neutrality also oppose a wall which uniquely excludes the crucifix

but allows many other explicit and implicit ideological icons, symbols and representations?

I think their very own erudite, learned, probing analysis would drive them to an

answer that, at a minimum, would be less categorical than the conclusion they offer.

To remind the reader, what I argued in my pleadings is first that, as a matter of posi-

tive European constitutional law as well as good old liberal pluralist normative think-

ing, both the laique and the non-laique approach to church and state are legitimate

and common within the constitutional framework of Europe and are to be celebrated

as part of its pluralist tradition. I then argued that both the Italian choicethe cru-cifix, and the French choiceno crucifix, pose an educational challenge. The Italians

will have an imperative exigency in their educational programming to teach respect

for other religions and for no religion at all. The French, who today not only forbid a

crucifix on the wall, but forbid children to wear a cross or a headscarf or a kippah(but

you can wear a shirt with Marx, Karl or Groucho) have an imperative educational



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232 ICON11 (2013), 230233

exigency to teach respect for the religious sensibility and not allow the ban to be inter-

preted as the state endorsing an attitude of contempt or derision towards religion.

Maybe the point can be made better by focusing not on what is on the wall, but on

the wall itselfthe school itself. In laiquestates, in principle, the state, in the name ofneutrality, will fund general secular schools but not religious schools. In a society in

which the principal cleavage is between the religious and the non-religious, rather

than between, say, Catholics and Protestants, religious parents who naturally want

their children to have an education which reflects or at least respects their basic world

view, might feel that the state is taking sidesjust as Judge Power argued. Compare

that to the constitutional practice in, say, the Netherlands and the UK, where the state

funds secular schools as well as Anglican, Catholic, Jewish, and Muslim schools. I find

the Anglo-Dutch practice, which understands that there are no such things as neutral

bricks, more respectful of the very principle of neutrality elaborated by Kyritsis andTsakyrakis than, say, the French practice.

On their theoretical apparatus I will just say that I find it remarkable that in 2012

there will be those who not only defend liberalism (I am among them) but will con-

tinue to claim that what they are defending is neutral.

Lorenzo Zucca offers a very beautiful vision of a multicultural pluralist society in

which not only the cross, but also the symbols of other religions (and presumably)

non-religious world views, will be on the wall. I share the sensibility which drives this

vision and understand it.

What I do not understand is his rage at the Courtboth in this article and in hisblog post on EJIL: Talk! in the immediate aftermath of the Grand Chamber decision.

I think his rage is prompted by two misconceptions and one misreading of the case.

First, his arguments and his argumentation use the vocabulary and sensibility of con-

stitutional discourse, and frame the issue in a way in which a constitutional court

of a concrete living society in a concrete polity, with a particular history and social

makeup, would when faced with such an issue. If the court issuing the decision were,

for example, the Italian Constitutional Court (which refused to hear the case), his

criticisms could be appropriate. Here, the issue is not whether he is right or wrong

but that his arguments seem to me simply misplaced. The European Court of HumanRights is not a constitutional courtneither of Italy nor of Europe; and the European

Convention is not a constitution. Lautsiand crucifixes aside, one should, in my view,

strenuously resist the temptation and trend, often engaged in naturally and unthink-

ingly, to treat Strasbourg as the Constitutional Court of Europe with the Convention

as its constitutional text. Would Zucca, would we, really want the European Court of

Human Rights to engage in the kind of judicial decision making which would impose

the (seductive) Zucca solution on this or that state? Do we want to treat the ECHR as a

Constitution of Europe?

One would get the impression from reading Zuccas piece that the Grand Chamber

actually supported the crucifix on the wall. It expressed no such opinion. All it decided

(very significantly, but still very narrowly) is that the mere fact of requiring a crucifix

on the classroom wall was not, in and of itself, a violation of the Convention. Unless

a plaintiff could show, on the specific facts of a case, taking into account specific



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Lautsi: A reply 233

circumstances, real harm and concrete violation of a Convention norm, no violation

would be held. But if such harm can be shown, the result might be different. This is a

clear nod in the direction of the Zucca sensibility. Nota bene, the Chamber decision was

so far reaching and radical in its uninhibited articulation of the principle of neutralitythat dozens of States would find themselves in violation given their public symbol-

ism and iconography. Clearly the Chamber decision is in contradiction with Zuccas

pluralistic argumentation: it negates Zuccas pluralism. The Grand Chamber does

not (as is appropriate, in my viewit is not its task) endorse it, but certainly leaves

it as a valid option for the member states of the Council of Europe. Why all the rage?

Because the Grand Chamber was not willing to short circuit the political and the con-

stitutional adjudicative process in Italy and adopt and impose Zuccas view on Italy?

Some pluralism.



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