1 © The Author 2013. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: [email protected] Lautsi: A reply * JHH Weiler Downloaded from by guest on 11 May 2019 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 Lautsi decision 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 views—and in reality often does—except 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: Liberté, Egalité, Fraternité —the 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 is a neutral principle. On the contrary, it is an Liberté, Egalité, Fraternité ideological position which I favor, and for which much blood was spilled. I would mobi- lize to defend it—democratically, of course—and hope my children would be equally so 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] (2013), Vol. 11 No. 1, 230–233 doi:10.1093/icon/mos059 I•CON

2 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 Downloaded from by guest on 11 May 2019 praxis, require an empty wall. It could not—there is hardly a symbol or picture which does not carry some explicit or implicit ideological baggage. Even Goldilocks and the constitutional principle does Three Bears are not ideologically neutral. What the laique 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 result follows 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 Guevara—yes; but Jean Paul II, Mohammad or Moses—no. 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 her heart 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 theory and praxis: laique 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- laique and the non- laique ing, both the 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 choice—the cru- cifix, and the French choice—no 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

3 232 I•CON 11 (2013), 230–233 - 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 laique states, in principle, the state, in the name of the wall itself—the school itself. In neutrality, 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 Downloaded from by guest on 11 May 2019 their children to have an education which reflects or at least respects their basic world view, might feel that the state is “taking sides”—just 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 and Tsakyrakis 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 Court—both in this article and in his blog 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 Human Rights is not a constitutional court—neither of Italy nor of Europe; and the European Lautsi and crucifixes aside, one should, in my view, Convention is not a constitution. 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 Zucca’s 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

4 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 neutrality that dozens of States would find themselves in violation given their public symbol- ism and iconography. Clearly the Chamber decision is in contradiction with Zucca’s pluralistic argumentation: it negates Zucca’s pluralism. The Grand Chamber does Downloaded from by guest on 11 May 2019 not (as is appropriate, in my view—it 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 Zucca’s view on Italy? Some pluralism.

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