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Joseph Weiler's testimony before the European Court of Human Rights

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May it please the court I have the honour to represent the eight intervening states all of whom are of the opinion that the second chamber erred in its reasoning and interpretation of the convention and in its subsequent conclusions. I have been instructed by you, president, that the third parties may not address the specifics of the case but should be limited to the general principles underlying the case and its possible resolution. And so I shall do. This case is not only about the crucifix, it's also about the tension between individual rights and collective identity, the tension between the role of courts and of political democratic institutions, and the tension between the uniform values which the convention system espouses and the rich diversity that characterizes the European legal landscape. In its decision the chamber articulated three key principles with two of which the intervening states strongly agree. and from the last one of which they strongly dissent. They agree that the convention guarantees individual freedom of religion and freedom from religion. Positive and negative religious freedom. Nobody should be coerced into any religious practice. And they also strongly agree that there is a need for the classroom in our schools to educate towards tolerance and pluralism. But the chamber also articulated a principle of neutrality. I'm going to quote from the chamber. «The state's duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the way of expressing those convictions.» Unquote. From this premise the conclusion was inevitable: Having a crucifix on the wall of a classroom was obviously found to express an assessment of the legitimacy of a religious conviction, Christianity, and hence, according to that principle of nautrality, violative. However, in our respectful submission, that formulation of neutrality was based on two conceptual errors, which also undermine the conclusions. The first concepual error had to do with failing to distinguish between private rights and public identity. Under the convention system it is indeed the case that all members must guarantee the individual freedom of religion, including the freedom from religion. This obligation represents a common constitutional asset of Europe. In that respect, we are all one. In all our countries, freedom of religion and freedom from religion must be respected. However, it is counterbalanced with considerable liberty, which the convention system allows, as to the place of religion and religious heritage and religious symbols in the definition of the collective identity of the nation and the state and its public spaces. I will demonstrate this liberty. One the one hand, the are members in which laïcité is part of the very definition of the state, as in France, in article 1 of its constitution. And in which, indeed, following the principle of laïcité, there can not be any state endorsed or sponsored religious symbol in a public space. Laïcité holds, as a political doctrine, that religion is a matter for private space. It is a private affair. However, just across the Channel from France, we find England, and I use this term advisedly, in which there is an established state church, the Church of England, in which the head of state is also the head of the church, in which religious leaders are ex ufficio members of the legislative branch in which the flag carries the cross and in which the national anthem is a prayer to God to save the monarch, and to give him or her victory and glory. Sometimes God does not listen, as happend a few days ago in South Africa on the football match. In its very definition as a state with an established church, in its very ontology, what it means to be England, and what it means to be English, England would appear to violate the strictures of the chambers. For how could we say that all those symbols, which I mentioned, the head of state, the head of the church, the cross, the anthem etc. do not represent some kind of assessment of the legitimacy of religious belief? There is a huge diversity of state-church arrangement in Europe. More than half the population of Europe lives in states which could not be described as laïque. Now, inevitably, in public education, the state and its symbols have a place. And they should have a place. Because it's in the interest of democracy that there is social cohesion, that people in society feel as belonging to one nation. If there is no sense of demos, your honours, there can not be democracy. So the state and its symbols are essential to our democracy. However, the problem is that many of our state symbols because of Europe's history, a history for hundreds and thousands of years intertwined with Christianity, have a religious dimension to it. We can not undo our history. The cross is of course the most visible example, appearing on endless flags, crests, buildings, currency etc. It is not the case that the cross is only a national symbol, as some people would hold. That is nonsense. The cross is a national symbol and a religious symbol. It is not only a religious symbol. It is also, in many countries, maybe not in all, a national symbol. It is both. And it's understandable. There are some scholars, your honours, which claim that the flag of the Council of Europe, with the twelve stars, reflects the same duality: religiuos and secular. But let's put the cross aside. Let's imagine an English classroom where hangs a photograph of the queen of England. The monarch. Like the cross, this photograph of the queen, which might hang in a classroom in England, represents two things. It represents the photo of the head of state. It also represents the photo of the titular head of the Church of England. A little bit like the pope. Could we accept that a student would come in to his or her English class, and say: «Because of my individual right of religion, because I am, say, a catholic, and not of the Church of England, not a protestant, because I am a Jew, because I am a Muslim, or because of my philosophical conviction, because I am an atheist, please remove the picture of the queen of England from our classroom.»? I don't think so. I don't think so. I could say more. Could it be or would it be prohibited to hang a copy of the Irish constitution, or of the German constitution, in an Irish classroom, or in a German classroom? Or indeed to read the Irish constitution, or to read the German constitution, in an Irish classroom or a German classroom because in the Irish constitution, in its preamble, there is reference to the holy Trinity and the divine Lord Jesus Christ? And the German constitution opens with the words: «Concerning our responsibility before God». Surely, we can not require our students in school to engage in a religious act. If we sing the national anthem in a British school, surely we should allow an English student not to sing God save the queen if that offends his or her sensibility to mention the name of God. But we should not require all other students not to sing the national anthems. This European arrangement, guaranteeing individual freedom of religion and freedom from religion, coupled with the rich diversity in the public space, of the arrangement of church and state, constitutes a huge lesson in pluralism and tolerance. Every child in Europe, atheist and religious, or agnostic, Christian, Muslim and Jew, learns that as part of their European heritage, Europe insists on the one hand on their individual right to worship freely, of course within limits of respecting other people’s rights and public order, and their right not to worship at all. It can not be a qualification for public office that you hold a certain religion or that you do not hold a certain religion etc. At the same time, as part of its pluralism and tolerance, Europe accepts and respects, both a France and an England, a Sweden, which divested itself of the official church, and a Denmark, where there is still an official church, the Lutheran church, a Greece and an Italy, all of which have very different practices of ackowledging publicly endorsed religious symbols by the State and in public spaces. That diversity, those different traditions, accepting and respecting them, in the sense of article 2, is part of the tolerance and pluralism that we want to teach our children. Now, make no mistake, your honours. In many of these non-laïque States, large segments of the population, maybe even a majority, are no longer religious themselves. And yet the continued entanglement of religious symbols in its public space and by the state is accepted by the secular population as part of their national identity. I am sure that the thousands, or tens of thousands, singing God save the queen, many of them do not believe in God. But they would be appalled if somebody came and said: «You have to change the British national anthem.» It is part of their identity, of being British. Now, it might be that some day the British or the English would change their mind, and decide that they want to disestablish the church, change the anthem, redraw their flag etc. It is their democratic and constitutional right to do that. But it's for them to do, not for this distinguished court. And the convention certainly does not require them to do that. Italy has the right to be, and choose to be, a laique state. And I don't think this court should be invited to interpret the Italian constitution and to impose the strictures of the Italian constitution on Italy. Leave that job to the Italians. Italy has the right, if it wants, to be a laique state. But what Lautsi would have this court do is to impose on in the duty to be a laique state. That cannot be. That is not a correct interpretation of this convention. There is no duty of laïcité on the members of the European convention on human rights. In today's Europe, countries have opened their gates to many new residents and citizens. We owe them all the guarantees of the convention. We owe them the decency and welcome, we owe them non-discrimination. But the message of tolerance towards the other should not be translated into a message of intolerance towards one’s own identity. And the legal imperative of the convention should not extend the justified requirement that the state guarantee negative and positive religious freedom, to the unjustified and startling proposition that the state divest itself of part of its cultural identity simply because the artefacts of such identity may be religious or of religious origin. The position adopted by the chamber in its decision is not an expression of the pluralism that it advocates. It is an expression of the values of the laique state. I respect the laique state. I respect people who want to live in a laique state. But I also respect people who do not want to live in a laique state. To extend those principles to the whole members of the convention system would be, with great respect, the Americanization of Europe. Americanization in two respects: First of all, a single rule for everybody, instead of the proud, correctly proud, European tradition of constitutional diversity. And secondly, a rigid, American style of separation of church and state, as if the peoples of Europe who are non-laique, the English and the Maltese and the Greek and many others, can not be trusted, even though they have opted for non-laique option for their state, to live by the principle of tolerance and pluralism and non-discrimination that are part of the European tradition. The Europe of the convention represents a unique balance between individual liberty of and from religion and the collective liberty to define the state and nation using religious symbols and even having an established church. We trust our constitutional democratic institutions to define our public spaces and our collective educational systems. We trust our courts, including this august court, to defend the individual liberty. It's a balance that has served Europe well. We have had religious peace for the duration of the convention system. We should not change it lightly. It is also a balance which could act as a beacon for the world. Europe leads by example, it does not lead by force. There is a view out there in the rest of the world that if you want to be democratic, you can not be religious. You have to consign religion to the private sphere. That is the American position. That is not the European position, unless you follow the chamber and Lautsi. The European position is that you have to respect freedom of religion and freedom from religion. But the state, like an England, like a Malta, like a Greece, like many others, can still define itself by reference to its religious heritage. It's a noble example, which can offer opportunities for others to follow in our lead. Very briefly, president, if I may, I want to say something about laïcité. Today, the social cleavage in our society is not among Jews and Christians. It is not among protestants and catholics. It's among religious and non-religious. Laïcité, as I said, is a noble tradition of the French revolution. It is a position which says that religion is a private affair and should be respected as a private affair, according to liberty of conscience. That is fine. It is in contrast to the other political position, which says: No, even in a democracy, even in a liberal democracy, religion can be part of public life, whereas at the same time, we can respect freedom of religion and freedom from religion. There is nothing neutral in the laique position. I am not saying that it's bad, but it's not neutral. It is a binary world with those, one the one hand, that believe that religion is a private affair, and those who believe that religion can have a place in public space. Now, allow me to read my parable about Giovanni and Marco. These are two friends, they're just about to go to school, as we heard. Giovanni and Marco, or Leonardo and Marco, better still. Leonardo goes to the house of Marco, and he sees a crucifix. He says: «What is this?» Marco says: «You don't have a crucifix? How can you live in a house without a crucifix?» He runs home and he says to his mother: «How can we live in a house without a crucifix?» She says to him: «Don't worry, they are catholics, we respect them, but we have a different worldview, a good worldview, a respectable worldview.» Reverse the roles: Marco goes to the house of Leonardo. «Where's you crucifix?» he asks. Leonardo says: «Oh, forget about the crucifix. That's old wives' tales, prejudices, antique stuff. We live by Socrates.» Leonardo runs home and says: «Why do we have a crucifix? It's old wives' tales.» His mother says: «Relax, we believe in God, we believe in our Saviour, and we respect people who don't believe.» Now they go to school. Two hypotheses: They arrive in the school and there is a crucifix on the wall. Obviously, Leonardo will run home and say to his mother: «You see? The school also has a crucifix.» Hypothesis two: They arrive at the school, and there is no crucifix. Marco will run home and will say: «You see? The school doesn't have a crucifix. Old wives' tales.» Laïcité is no more neutral than a religous worldview. How do we resolve this issue? We resolve it by teaching tolerance. The French, with their naked wall, have in their curriculum to teach the children respect for religious people and for different religions. Countries like Italy, who choose to have a crucifix as part of their very way and identity and self-understanding, have to teach their children respect for those who do not believe. For those who are agnostic and atheists. France with a crucifix on the wall is not a France. Italy without a crucifix on the wall is not an Italy. Let's not change that, thank you.

Video Details

Duration: 23 minutes and 9 seconds
Year: 2010
Country: France
Language: English
Views: 5,017
Posted by: cskaug on Jul 28, 2010

Professor Joseph Weiler's June 30 testimony before the Grand Chamber of the European Court of Human Rights, on behalf of the nations that intervened in favour of Italy against Ms. Soile Lautsi, regarding the exposition of crucifixes in public schools in Italy.

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