Jeroen Temperman

5/26/2018 Jeroen Temperman

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Electronic copy available at: http://ssrn.com/abstract=2041256

Forthcoming in: Jeroen Temperman (ed.), The Lautsi Papers: Multidisciplinary

Reflections on Religious Symbols in the Public School Classroom (BRILL/Martinus

Nijhoff Publishers, 2012).

Religious Symbols in the Public School Classroom

Jeroen Temperman*

I. Of Symbols, State Education, and Relevant Human Rights QuestionsStates are under international human rights obligations to make available free and

compulsory primary school education and to make generally available secondary

educationaccess to such state education must be universally guaranteed. State

education must be provided in an objective, critical and pluralistic manner, free fromreligious coercion or misplaced proselytism. This host of positive and negative

obligations in the combined areas of public education, curriculum-building, and the

protection of religious liberty may have different legal ramifications depending on the

peculiarities of the case. Notably, situations where acts of the State adversely impact

access to education and conscientious liberties of child or parent differ from instances

where the acts of other individuals could affect access to education and religious

freedoms, considering the fact that in the latter scenario different individuals typicallyhave competing human rights claims.

What is most remarkable in the European Court of Human Rights (ECtHR)

symbols jurisprudence is that more often than not a number of decisive preliminary

questions are not raised, let alone satisfactorily addressed. Who in symbols cases

and the variety of scenarios imaginable thereincan be identified as rights holders,

and how far do concomitant obligations on the part of the state as principal duty

bearer stretch? Under what circumstances may State neutrality be considered a

legitimate ground for limiting fundamental rights? And who is actually supposed to


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Electronic copy available at: http://ssrn.com/abstract=2041256

be neutralaccording to human rights lawStates, buildings, the public square,civil

servants, teachers, students, and/or pupils? When does a symbol interferewith the

rights and freedoms of others or public order? And who is to prove that? Also, what

are the exact standards of proof in symbols cases? Consequently, the increasingly

pertinent question emerges if and to what extent (international) courts may interpret

and explain the meaningof symbols. If symbols do not have monolithic meanings

that can be grasped by judges, the question is what, then, could be seen as more

objective points of departure leading and informing a sound human rights analysis.

II. Of Applicable Rights, Including the Rights of OthersWhen individuals wear religious attire or display religious symbols in public schools,

a number of (specific elements of) human rights provisions will or might be engaged.

The state could decide to restrict this display or the state could tolerate it; in both

scenarios human rights provisions will be triggered. Setting aside for the time being

all questions of legitimacy, any restrictionfrom national prohibitions to local bans

to more individualized sanctions1of the individual display of symbols inevitably

amounts to minimally an interference with the freedom to practise a religion of

belief (theforum externum). In this regard it is crucial to observe that the freedom to

manifest a religion is granted in public or private.2Thus, in principle there is a right

to observe ones religion, including through the display of religious symbols, at a

public school. This means that a limit put thereon by the state requires a special

justification. This holds true for individuals regardless of their capacitypupil,

student, teacher, school principal, or caretaker (everyone has the right)albeit that

the individuals capacity may play a role in the context of necessity tests and

potential balancing exercises.3

In addition to the rights of the symbol-displayer, there may be other rights at

stake, notably other persons rightsthe rights of the symbol-viewerto freedom of

and freedom from religion. The latter negative religious liberties are typically

* Thanks to Malcolm Evans for his comments on a draft of this Chapter (usual caveats apply).1And regardless of whether the legal restriction may result in fines, expulsion from school, an official

admonition to remove the symbol, or the dismissal of a non-compliant teacher, etc.2 Article 18, para. 1, of the International Covenant on Civil and Political Rights, G.A. Res. 2200A

(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, of 16

December 1966 [ICCPR]; and Article 9, para 1, of the [European] Convention for the Protection of

Human Rights and Fundamental Freedoms, ETS No. 5, 213 U.N.T.S. 222, of 4 November 1950[ECHR or European Convention].3See section III, infra.


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engaged, or triggered,4in the event that symbols are officially or de factotolerated by

the state. With respect to these negative religious liberties, one may think, in the most

extreme case, of religious coercion. The United Nations ICCPR makes this most

explicit by providing that [n]o one shall be subject to coercion which would impair

his freedom to have or to adopt a religion or belief of his choice. 5But also short of

outright religious indoctrination, brainwashing or forced conversions, other policies or

practices can be in breach of the ramifications of negative religious liberty. One may

think of compulsory religious oaths schemes for entering public office.6 Certain

optional religious oath schemes, too, are objectionable for reasons of negative

religious freedom.7 Oath of office regulations that are premised on religious oaths

being taken as a rule, whilst secular affirmations are regarded as the tolerated

exception, could still lead to situation where one is forced to choose between

revealing oneslack ofreligious belief or surrendering the dictates of ones

conscience.

Generally speaking, then, access to education rights and religious freedoms (of

others) may be engaged inasmuch as individually displayed symbols may impose a

conscientious obstacle to enrolling or remaining in those public schools where this

display is permitted by the state. One may think of parents that have opted for the

public school system precisely out of a (perceived) need for a religiously-neutral and

symbol-free educational environment, thus nipping in the bud any peer pressure (vis-

-vischild) or community pressure (vis--visparents and child) to observe religious

dress codes.8

Turning to state-imposed symbols in public schools, the most striking

difference is that as far as the display of the symbol is concerned there is no clear

rights holder here. The state or state schools as such do obviously not enjoy a rightto

manifest a religion (under international law). What we face here is not necessarily an

internationally guaranteed legal entitlement of the symbol-displayer, but an interestof

the state and likely one of the religious majority; an interest to perpetuate a long-

observed, precious tradition. It is doubtful whether we can deem this a collective

4Again, we are not yet considering questions as to breaches of rights, solelyprima facieapplicability.

5Article 18, para. 2, ICCPR.

6Buscarini and Others v. San Marino, 18 February 1999, European Court of Human Rights, No.

24645/94.

7Alexandridis v. Greece, 21 February 2008, European Court of Human Rights, Appl. No. 19516/06.8Some of the ideas presented in relation to this pointsee alsosection III, infrahave benefited from

on-going discussions on these matters with Professor Wibren van der Burg (usual caveats apply).


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manifestationof belief within the ambit of the individual right to freedom of religion

or belief. That individual right certainly has a collective dimension: the individual is

also entitled to worship, teach, practice and observe a religion together with others.

This recognition of collective manifestations of belief does indeed include a right of

individuals and religious institutions to publicly display their religious symbols.

However, this same recognition does not quite entail a clear-cut fundamental right of

the dominant religion to place its symbols in all (state) buildings it sees fit. For the

present purposes,9 what matters most is that the lack of a clear-cut human rights

entitlement on the part of the symbol-displayer (the state) also means that conflicts of

rights are not as evident here as they are in the area of individually-displayed symbols.

Yet when we turn again to the flipside, the symbol-viewers (individuals), we must

observe that that they remain entitled to a mix of fundamental religious and

educational rights. Crucially, however, in this scenario of state-imposed symbolism

we are not speaking of fundamental rights and freedoms of others, but of primary

rights holders vis--vis the state. Thus, negative religious liberties and universal

access to public education are engaged here not as potential limiting factors but as

legal entitlements of primary rights holders.

None of this implies that individuals displaying religious symbols ought

always to win their cases, or that symbol-imposing statesacting for the religious

majorityought to lose them as a matter of course or whenever challenged. However,

these observations do impact on how religious symbols questions are to be framed

within the human rights framework, especially when we take account of the special

context that is provided bystate education.

Applying these preliminary observations to the recent Lautsi case,10 the

crucifix-in-public-school-classrooms case, the following is remarkable. First and

foremost, the Grand Chamber does not spell out that this case is not evidently one of

clashing religious rights. Quite the contrary, the Court accepts the position of the

Italian Government which had argued that account should be taken of the fact that

the Catholic religion was that of a large majority of Italians [T]he Court should

9In this same section, infra, we will return to the question whether or not the religious majority has a

legal entitlement to having religious symbols are displayed within public schools, or whether that

interest falls short of a human rights entitlement.10

Lautsi and Others v. Italy,18 March 2011, European Court of Human Rights (Grand Chamber), No.

30814/06 (also referred to as the Grand Chamber decision). Lautsi v. Italy, 3 November 2009,European Court of Human Rights (Second Section), No. 30814/06 (further also referred to as the

Chamber decision).


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acknowledge and protect national traditions and the prevailing popular feeling11

Just short of recognizing this as a right, the Grand Chamber sanctions Italysand all

catholic Italians decision to perpetuate the crucifix tradition.12 Some of the

concurring Judges reveal they do consider the case as a clear-cut clash of religious

rights: the rights of non-believers and religious minorities versusand as outvoted

bythe rights of all catholic Italians. Judges Rozakis and Vaji refer to aright of

society, as reflected in the authoritiesmeasure in maintaining crucifixes on the walls

of State schools, to manifest their (majority) religious beliefs.13 Accordingly, for

these Judges this case boils down to one straightforward question: Does this right [of

society] ... override the right of parents to educate their children in accordance with

their religion and ... their philosophical convictions?14 Interestingly, and perhaps

indicative of the tenability of the previous proposition, elsewhere these two Judges

correct themselves when they refer to the right or interest of at least a very large

segment of society to display religious symbols as a manifestation of religion.15

Concurring Judge Bonello, too, literally balances the religious liberties of catholic

Italians with the rights of minority believers (the Lautsis): If the parents of one pupil

claim the right to have their child raised in the absence of a crucifix, the parents of the

other twenty-nine should well be able to claim an equal right to its presence .16Judge

Bonello elaborates on this point:

All the parents of all the thirty pupils in an Italian classroom enjoy equally the fundamental

Convention right to have their children receive teaching in conformity with their own

religious and philosophical convictions, at least analogous to that of the Lautsi children.

The parents of one pupil want that to be non-crucifix schooling, and the parents of theother twenty-nine, exercising their equally fundamental freedom of decision, want that

schooling to be crucifixschooling. No one has so far suggested any reason why the willof the parents of one pupil should prevail, and that of the parents of the other twenty-nine

pupils should founder. The parents of the twenty-nine have the fundamental right,

equivalent in force and commensurate in intensity, to have their children receive teaching

in conformity with their own religious and philosophical convictions, be they crucifix-friendly or merely crucifix-indifferent. Ms Lautsi cannot award herself a licence to overrule

the right of all the other parents of all the other pupils in that classroom, who want to

exercise the same right she has asked this Court to inhibit others from exercising.17

If we follow that type of reasoning, we have to make an inventory in each and every

public school classroom in Europe to discern what the majority religion isand if so

11Lautsi and Others v.Italy, ibid., para. 37.

12Ibid., para. 68.

13 Concurring Opinion of Judge Rozakis, Joined by Judge Vaji, to Lautsi and Others v. Italy

(emphasis added).

14Idem.15

Ibid., opening sentences (emphasis added).16

Concurring Opinion Judge Bonello toLautsi and Others v. Italy, para. 3.6 (emphasis added).


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desired by the latter, stick the triumphant symbol to the wall of that classroom. There

are, however,18very plausible human rights claims and arguments why the parental

liberties argument does not cut both ways. Collective positive freedom of religion

does not include an unlimited entitlement for beneficiaries of that fundamental right to

gear state institutions towards religions needs in any way the adherents of the

majority religion see fit; whilst individual negative religious freedom guards against

the threat of religious coercion, and has special significance in those areas where the

state faces positive duties to make available socio-economic goods, such as education.

The state is indeed under negative and positive obligations to make public school

education available and universally accessible. Thus, it is in fact typically the case that

the presence of a state-imposed symbol does, prima facie, engage religious and

educational freedoms whilst the absence of state symbols does not, prima facie,

engage those same freedoms.

The best way to come to realize that point is to consider the reverse situation: a

state that actually refuses to honour the majoritys wishes to display one particular

religious symbol in all public school classrooms.19The refusing state does not through

its actions engage the educational and religious rights of children and parents. Under

international law the state is obliged to organize public school education freely

accessible to all regardless of religious or non-religious affiliation;20the state is under

no obligation to organizeand not even to fund21religiously-oriented education. In

fact, with respect to the latter type of private education the obligations of the state are

17Ibid., para. 3.5 (emphasis added).

18As early as the Enlightenment and the French and American Revolutions, these reasons were, pace

Judge Bonello, regularly suggested. If fact, these arguments were en vogue for such a long time, theymanage to find their way into the International Bill of Rights.19

Or a state that would indeed remove all such already present symbols from public schools walls, thus

ceasing a long-established tradition. Let us generally refer to these possibilities as the refusing state.20Article 28, paras. (a) (primary education) and (b) (secondary education), of the Convention on the

Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49,

of 20 November 1989 [CRC or Childrens Rights Convention]. See alsoArticle 13, para. 2(a) (primaryeducation) and 2(b) (secondary education), of the International Covenant on Economic, Social and

Cultural Rights, of 16 December 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., art. 26, U.N.

Doc. A/6316 (1966), 993 U.N.T.S. 3 [ICESCR].21

In relation to the creation of religious schools, church autonomy and the right to freedom of

association naturally resists radical state interference: states may only insist on certain minimum

standards pertaining to what subjects are included in the curriculum and pertaining to the desiredoverall quality (seesources in note23,infra, for details). The question whether it is right or wrong that

the state is (permitted yet) not obliged to fund religious schools is an altogether different question and

does not distract from the arguments presented here. It goes without saying that if the state should

decide to fund private, denominational education, such funding must naturally be allocated in anequitable and egalitarian fashion. Cf. Human Rights Committee, Arieh Hollis Waldman v. Canada,

Communication No. 694/1996, U.N. Doc. CCPR/C/67/D/694/1996, Views of 5 November 1999.


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chiefly of a negative nature: a duty not to unduly interfere with private parties

endeavours to provide for alternative schooling.22 These internationally codified

residual rightsmake the fact all the more apparent that the refusing state in no way

whatsoever interferes with religious or educational rights. For parents that do not wish

to send their child to public schoolsthey may indeed very well have conscientious

scruples over the fact that those schools are too public for their liking, i.e.

deliberately pluralistic and not religion-minded in a confessional sensehave a right

to opt for private, denominational schooling created outside the state educational

system.23 Those same residual rights also guarantee crucifix schooling (as Judge

Bonello puts it) or, for that matter, any other forms of confessional observance on the

part of the school authorities that would not be appropriate within the public

educational framework.24

Thus, the Lautsi Grand Chamber decisions implicitand the concurring

opinions explicitunderstanding that parental liberties mean within the public

school context whatever the religious majority desires them to mean, is unsustainable

from the perspective of international human rights standards. In what follows in this

section (on childrens autonomous freedom of religion and educational rights), it

becomes even more apparent how the ECtHR increasingly construes relevant

Convention rights in ways that are incompatible with equivalent UN standards.

The analysis so far has provided an overview of which rights may or may not

be triggered by the different types of symbols cases. Further applying the inventory

made to the Lautsi case, it is first of all remarkable how narrow a yardstick the

ECtHR uses in its human rights analysis.25Notably, the Grand Chamber analyses the

Lautsis claims exclusively in the light of Article 2 of Protocol I to the ECHR. On

close reading the yardstick is even narrower than that: the Grand Chamber solely

22 It may be repeated that some positive obligations can be discerned too; i.e., in relation to

safeguarding minimal quality requirements.23

International human rights law safeguards the possibility for the parents to opt-out of state schooling

and send their child to private educational institutions. See, e.g., Article 13, paras. 3 en 4, of the

ICESCR. See alsoArt. 5, para. 1(b), of the Convention Against Discrimination in Education, of 14

December 1960, UNESCO, 11th Sess., 429 U.N.T.S. 93.24

To be sure, the residual rights argument does not cut both ways either: everyone, including minority

believers, must have access to genuine public schooling. It is the states obligationto provide that andthat alone. This means that minority believers or non-believers may not be expected to rely on a

residual right to create sufficiently public schooling themselves in the event the state fails to do so.Put differently, a state that takes access of minorities to socio-economic goods seriously makes sure

that the latter are guaranteed aprimary, not a residual right to that effect.25

This section draws on Jeroen Temperman, Lautsi II: A Lesson in Burying Fundamental ChildrensRights, 6(3)Religion and Human RightsAn International Journal(2011), pp. 279283.


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looks into the right of parents to ensure such education and teaching in conformity

with their own religious and philosophical convictions (i.e., the second sentence of

said provision). The right to education itself, mentioned in the first sentence of Article

2 of Protocol I, remains largely unaddressed. Also, the Grand Chamber considers

that no separate issue arisesunder the freedom of thought, conscience and religion,

Article 9, of the Convention.26

In relation toMs Lautsis claimspecifically, the Grand Chamber explains why

it exclusively concentrates on the second sentence of Article 2 of Protocol I by

postulating that parental liberties can be considered the lex specialis in the case at

hand.27In the light of the system and wording of the European Convention this stands

to reason: Ms Lautsi is above all concerned with ensuring that she can raise and

educate her children in ways she sees fit, that is, according to the dictates of her

conscience. Those concerns interact clearly strongly with her own conscience and

beliefs, and her own religious liberties, though her freedom of religion or beliefper se

may not be at stake in this case. The United Nations ICCPR, contrary to the

European Convention, lists these parental liberties as an integral part of the freedom

of religion clause,28 rather than as a part of the right to education clause, making a

much stronger link possible between ones own religion, onesown religious liberties,

and the related right to ensure that the education of ones children is in line with

personal religious convictions. The European Convention system has opted for a

slightly different approach by merging parental liberties with educational rights.

Be that as it may, as far as the Lautsi childrenare concerned, who are separate

applicants to the case,29there can be no question of lex specialishere, at least not for

the full 100 per cent of their claims. The Lautsi children enjoy two fundamental rights

here: a right to freedom of religion or belief and a right to (access to) public school

education. This is the very reason they are individual applicants to the casethe

rights and interests of the different applicants to this case do not fully coincide.

Specifically, the relevant childrens rights are larger in scope than parental liberties.

The European Courts automatic identification of parental liberties as the lex specialis

in cases of freedom of religion that involve children is not at all self-evident if we

look at the UN Convention on the Rights of the Child and the workings of the

26Lautsi and Others v.Italy,supranote10,paras. 77 and 78.27

Ibid., paras. 5960.28

Art. 18, para. 4, ICCPR.


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Committee on the Rights of the Child.30Taking the best interests of the childand

the evolving capacities of the child seriously, circumstances can be such that

childrens conscience and their interests in access to public school education engage

autonomous rights. There obviously exists tension between parents liberties (to

ensure the religious and moral education of their children in conformity with their

own convictions)31and childrens autonomous right to freedom of religion or belief

and their right to education.32 With the entry into force of the Childrens Rights

Convention in 1990, at the global (UN) level the paradigm has shifted from always

decisive parental rights to the recognition that childrens rights may function

autonomously with parental rights being accessory. This holds true for situations

revolving around legally non-mature children that de factoare mature enough to form

an opinion and speak their mind.33 The Convention on the Rights of the Child

provides that States Parties shall respect the rights and duties of the parents and,

when applicable, legal guardians, to provide direction to the child in the exercise of

his or her right [to freedom of religion or belief] in a manner consistent with the

29

Lautsi and Others v.Italy,supranote10,para. 1 (note also the title of the Grand Chamber case).30Cf.Jeroen Temperman, State Neutrality in Public School Education: An Analysis of the Interplay

Between the Neutrality Principle, the Right to Adequate Education, Childrens Right to Freedom ofReligion or Belief, Parental Liberties, and the Position of Teachers, 32 Human Rights Quarterly(2010), pp. 869872. Article 3 of CRC provides: In all actions concerning children, whetherundertaken by public or private social welfare institutions, courts of law, administrative authorities or

legislative bodies, the best interests of the child shall be a primary consideration (see alsoArticles 9,18, 20, 21, 37, and 40 on the childs best interest principle). SeeArticle 5 of CRC on the evolvingcapacities of the child doctrine. Importantly, the evolving capacities doctrine is once repeated by CRC

to additionally underscore its importance in one particular areanot coincidentally, the article dealingwith the childs right to freedom of religion.31

In addition to the second sentence of Article 2 of Protocol I to the ECHR, seeArt. 14, para. 2, of

CRC; Art. 18, para. 4, ICCPR; Art. 13, para. 3, of ICESCR; Art. 5, paras. 1 and 2, of the Declaration on

the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, adopted25 November 1981, G.A. Res. 36/55, U.N. GAOR, 36th Sess., U.N. Doc. A/RES/36/55 (1981).32

Art. 14, para. 1, CRC states: States Parties shall respect the right of the child to freedom of thought,conscience and religion. SeeArt. 28 of CRC for childrens right to education. For a comprehensivestudy of childrens right to freedom of religion or belief as a right recognized by international law, seeSylvie Langlaude, The Right of the Child to Religious Freedom in International Law (Leiden: Martinus

Nijhoff Publishers, 2007).33

Cf. Eva Brems, Article 14: The Rights to Freedom of Thought, Conscience and Religion (A

Commentary on the United Nations Convention on the Rights of the Child (Leiden/Boston: Martinus

Nijhoff Publishers, 2006), p. 25. In this context it is worth emphasizing that the childrens right tofreedom of religion or belief as incorporated into CRC is of a later date than the ICCPR and CRC could

be considered the lex specialis in this context. The ICCPR spoke of the liberty of parents and, whenapplicable, legal guardians to ensurethe religious and moral education of their children in conformity

with their own convictions (emphasis added); whereas CRC mentions the rights and duties of theparents and, when applicable, legal guardians, to provide directionto the child in the exercise of his or

her right in a manner consistent with the evolving capacities of the child (emphasis added).


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evolving capacities of the child.34Parental guidance, in the words of Brems, has to

recede as the childs capacities evolve.35 This means that when parents and child

disagree about the desired form of education, under CRC standards it is anything but a

foregone conclusion that parental liberties trump. This contrasts sharply with

ECtHRs practice of deeming parental liberties automatically lex specialis in all

freedom of religion cases that involve children.

Take for instance the situation where parents want the child to take religious

classes but the child does not, or vice versa. The Committee on the Rights of the

Child, emphasizing the childs evolving capacities,36 expressed its concern in

relation to Polish practice where students require parental consent to attend ethics

courses.37Accordingly, the childsautonomous right to freedom of religion or belief

could prevail in case of a conflict with the parents wishes, merited by the de facto

maturity of the child. The same could be argued with respect to disagreements over

larger issues such as the more general choice between denominational and non-

denominational schoolingor the still larger questions as to belonging to a certain

religion (or not). The Committee may not be in a position to fix in an absolute fashion

the precise age when the child is empowered to make such decisions autonomously.

However, from the fact that the Committee on the Rights of the Child requires (under

the state reporting procedure)38information on the legal age for choosing a religion or

attending religious school teaching it transpires that autonomous childrens rights are

ideally granted some time before reaching legal majority.39All things considered, the

precise moment indeed depends on the de factomaturity of the child, i.e.his or her

ability to articulate a personal opinion on any of these matters. But once we decide to

take that personally expressed opinion seriously, it in fact becomes the states duty, as

Brems argues, to guard the limits of parental direction in matters of religion and

34Art. 14, para. (2), of CRC (emphasis added); for a study on this parameter its legal relevance, seeG.

Lansdown, The Evolving Capacities of the Child (Florence: UNICEF Innocenti Research Centre,

2005).35

Brems,supranote33,p. 26.36

Ibid., para. 33.37

CRC/C/15/Add.194 (2002), para. 32.38

Committee on the Rights of the Child, General Guidelines for Periodic Reports(CRC/C/58, 1996),

para. 24.39

Cf. Brems, supra note 33,p. 30; she notes that some states have adopted legal provisions in that

respect.E.g., Germany has stipulated that children can make these choices autonomously from age 14:Religious Education Act, RGBl S. 939, of 15 July 1921; while the Swiss Civil Code sets this age at 16

years.


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conscience, and if necessary to offer protection to children against infringement of

their freedom of thought, conscience and religion by their parents.40

In conclusion, in the light of the foregoing it is obscure why the Grand

Chamber deems so uncritically that in relation to the Lautsi children, too, no separate

issue arises under the right to freedom of thought, conscience and religion. Children,

the persons presently subjected to the practice we are discussing, may very well have

an opinion and, what is more, some first-hand experience on crucifix schooling. In

Lautsi, the second and third applicant were quite young at the material time; yet the

point here is that by declaring parental liberties lex specialis from the outset and

without any concrete reasons in the way of substantiation, the Grand Chamber never

seriously entertained the possibility that children may have a bone to pick in this type

of cases. Further, in theLautsicase both the Chamber and the Grand Chamber largely

ignore the right to education per se.41 The Grand Chamber devotes precisely one

paragraph to what it calls the case of the second and third applicants, which consists

of no more than 4 sentences that are worth quoting in full:

The Court considers that, when read as it should be in the light of Article 9 of the

Convention and the second sentence of Article 2 of Protocol No. 1, the first sentence of

that provision guarantees schoolchildren the right to education in a form which

respects their right to believe or not to believe. It therefore understands why pupils who

are in favour of secularism may see in the presence of crucifixes in the classrooms of

the State school they attend an infringement of the rights they derive from thoseprovisions. However, it considers, for the reasons given in connection with its

examination of the first applicants case, that there has been no violation of Article 2

of Protocol No. 1 in respect of the second and third applicants. It further considers that

no separate issue arises in the case under Article 9 of the Convention.42

This paragraph in Lautsi is premised on rather serious errors. The reasons given in

connection with its examination of the first applicant's casei.e. the reasons given

why Ms Lautsis parental liberties were not infringedare nowhere near sufficient to

establish that the Lautsi childrens religious and educational rights were not breached

40Brems,supranote33,p. 29.

41The near-exclusive focus on parental liberties is all the more remarkable as it transpires from the

facts of the case that the second and third applicants, being the children, did indeed claim a violation of

the right to education before the European Court. Lautsi and Others v. Italy, supranote10,para. 29

provides (in part): The applicants complained of the fact that crucifixes were affixed to the wall in theclassrooms of the State school attended by the second and third applicants. They argued that this

infringed the right to education, guaranteed by Article 2 of Protocol No. 1. The Chamber, in the firstLautsi decision, supra note 10, considered that both article 2 of Protocol I and article 9 of the

Convention were relevant. When taken in conjunction and applied to the facts of the case, the

Chambers Second Section held that the compulsory display of crucifixes does restrict the right of

parents to educate their children in conformity with their convictions and the right of schoolchildren tobelieve or not believe. However, the right to education per se is addressed rather marginally.42Ibid., para. 78 (emphasis added).


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either. Also, being in favour of secularism isindeednot what triggers religious

and educational rights of those subjected to crucifix schooling, but the

internationally codified agreements that oblige states to design a public school

environment that is universally accessible and respective of minority beliefs. The

upshot of the Grand Chambers approach is that childrens negative religious liberties

and access to public education rights do not get serious attention; the same goes for

access rights to socio-economic goods of minorities in general.

III. Of Burdens and Standards of ProofA host of human rights norms is triggered by the public display of religious symbols.

The circumstances of the casewho displays the symbol, who views the symbol, and

within what specific settingfurther impact threshold and evidentiary matters,

questions concerning the legitimacy of invoked grounds for restriction, questions as to

the necessity and proportionality of interferences, the existence of a pressing

social need, and relevant balancingexercises.

In Lautsi, the Grand Chamber held that [t]here is no evidence before the

Court that the display of a religious symbol on classroom walls may have an influence

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.43

The well-known Dahlab v. Switzerland case dealt with the question whether the

authorities were permitted to forbid Mrs Dahlab from wearing an Islamic headscarf

whilst acting in her capacity as primary school teacher. Here the Court argued in

relation to the potential effects of (these) religious symbols:

The Court accepts that it is very difficult to assess the impact that a powerful external

symbolsuch as the wearing of a headscarf may have on the freedom of conscience and

religion of very young children. The applicants pupils were aged between four and eight,

an age at which children wonder about many things and are also more easily influencedthan older pupils. In those circumstances, it cannot be denied outright that the wearing of

a headscarf might have some kind of proselytising effect...44

Accordingly, the European Court of Human Rights considers that in the absence of

proof to the contrary in cases involving state display of symbols (notably, crucifixes)

in public schools, it may be assumed that the symbol has no adverse effects on the

rights of others; whereas in the absence of proof to the contrary in cases involving the

43Ibid., para. 66.44

Dahlab v. Switzerland, 15 February 2001, European Court of Human Rights, Appl. No. 42393/98, p.

13 (emphasis added).


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individual display of symbols (notably, Islamic headscarves) it may be assumed that

the symbol does have adverse effects on pupils. From the perspective of individual

human rights protection, these a priori assumptions are oddthey are much odder

still if we consider the arbitrary premises on which the Court bases these

presuppositions.

It appears that the Courtsdecisions to fix the burdens and standards of proof

the way it does is importantly premised on the concepts of essentially passive

symbols (such as, in the eyes of the ECtHR, the crucifix) and powerful external

symbols (such as, according to the ECtHR, the Islamic headscarf).45Much has been

written on these characterizations, also in this volume.46Doubtless, those labels have

triggered so much debate as they are rather arbitrary and odd in and for themselves.

The Grand Chamber inLautsiwas right in concluding that the facts of the two cases

[LautsiversusDahlab] are entirely different47however, both the reasons given for

that conclusion and the consequences attached to it are wrong. From the Lautsi

judgements context, it transpires that the crucifix is passivechiefly on account of it

being on a wall.48 The crucifix is furthermore deemed passive as it cannot be

deemed to have an influence on pupils comparable to that of didactic speech or

participation in religious activities.49 These observations hardly serve as sound

distinguishing factors: Mrs Dahlab did not use her headscarf as part of didactic

speech or participation in religious activitiesshe was wearing one whilst teaching.

Likewise, crucifixes were hanging on school walls whilst teaching took place.

Considering the crucifix an essentiallypassivesymbol is plainly arbitrary and truly

uninformed according to semioticians. Equally arbitrary is the presupposition that a

crucifix on a wall cannot be deemed to have an influence on pupils, or that sign-

language necessarily has less impact than didactic speech. Most if not all persons

that observe the crucifix on a classroom wall will consciously or sub-consciously

make the link between the signifier and the signified, that is, will match the symbol

and the religion that is always/mostly/typically signified by it. What precisely happens

in that continuous process of identification and re-identification may play out

45Lautsi and Others v. Italy, supranote10,para. 72 (a crucifix on a wall is an essentially passive

symbol).46

Seeparticularly the Chapter by Andreescu & Andreescu, who identify three possible meanings of the

passiveness of a symbol.47Lautsi and Others v.Italy,supranote10,para. 73.48

Ibid., para. 72.49

Idem.


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differently for different personsyet in all instances that non-verbal sign-language is

as active as can be. In fact, its activeness may become multiplied by the particular

setting in which it takes place, in our casestate education, a compulsory setting where

youths are also initiated in the basics of what is right and what is wrong. 50

The ECtHR, however, does not cite any authority when it concludes that

certain symbols are passive and others would be powerfulit seems to be basing

itself purely on common sense. How common that sense really is becomes painfully

evident when we reverse everything the European Court claims in this regard. A

religious symbol on a wall of a state building is active, strong, powerful,

external or political, etcetera, in so far as most if not all people perfectly

understand it is the statethat has ordered or sanctioned it to be there, thus seemingly

indicating a religious preference or at least attaching its seal of approval to what

would typically be the dominant religion whilst refraining from bestowing any such

seal of quality upon minority religions or non-religious faiths. Religious symbols or

attire displayed by individuals, on the other hand, are passive, internal, weak,

non-political, etcetera, in so far as most if not all peoplenotably those accustomed

and content to live in a pluralist and tolerant societyperfectly understand that this

symbol indicates a personal religious preference and, in the absence of concrete

evidence to the contrary, no coercive attempt to impose on others that preference.

From the perspective of parental liberties, the latter train of thought is certainly a very

plausible one. How clear, scientifically speaking, any of those messages stemming

from symbols in actual fact are to (young) children remains to be seen. 51The point

here is that the Courtsa prioripresuppositions are shady at best given that they can

so easily be reversedand come out stronger.

All things considered, the ECtHR should not engage in its private common

sense deconstructions of the meaning of symbols in the first place. A fortiori,

international monitoring bodies should refrain from construing non-Western symbols

as quintessentially illiberal since the Court is not qualified to make such assessments;

and at any rate, there will always be sufficiently objectifiable factors present in

symbol cases on which to base a critical and balanced human rights analysis. The best

50Cf. Mawhinneys contribution to thisvolume. Seeher Chapter for a fascinating introduction into the

discipline of semiotics.51

Seetext around note69,infra, on the declining value of the teachers-as-role-models argument. Seealsoprevious note and particularly the contribution by Mawhinney in this book, on state symbols.


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example of how this can go dreadfully wrong was in Dahlab, where the Strasbourg

Court notoriously claimed that the headscarf:

appears to be imposed on women by a precept which is laid down in the Koran and which

is hard to square with the principle of gender equality. It therefore appears difficult toreconcile the wearing of an Islamic headscarf with the message of tolerance, respect for

others and, above all, equality and non-discrimination that all teachers in a democratic

society must convey to their pupils.52

In Sahin, too, the wearing of Islamic headscarves is deemed synonymous with

practices that are inherently coercive, necessarily reflect a degree of submission of

women to men, thus affecting gender equality as a matter of course.53 This

jurispathic role of courts is, as Brett Scharffs argues, to some extent inescapable

and necessary. After all, the law as a normative institution is not just about creation,

but preservation as well. A community that is exclusively creative, one that is in thegrip of competing jurisgenerative visions, will splinter and fall apart. The centre will

not hold. One job of the judge is to decide among competing conceptions, even if it

means eliminating others.54However, jurispathic judgeslike the European Court of

Human Rights in the headscarf casesrisk overstepping the mark. Scharffs contends

the following in particular reference to national (French) law and courts, but the

argument very much applies to international monitoring bodies too:

Judges, confronted with too much creativity in the elucidation of normative meanings by

various communities within the polis, decide for one, put the coercive power of the state

behind it, and in so doing destroy or attempt to destroy all other competing meanings. Thus,

for example, when a legislature or court determines that the headscarf is a symbol ofoppression, its decision carries with it the coercive power of the state, and its determination

of what the headscarf means is jurispathicit kills (or at least tries to), in a decisive andconclusive way, alternative meanings ... Muslim girls or women may have a different

understanding of what the headscarf means, but when the state declares in an authoritative,

official voice, those alternative meanings are not just undermined, they are delegitimized.55

This basic understanding of what type of argumentscourts may accept at face value,

and what type of arguments they may not, impacts evidentiary questions; notably, it

will influence the burdens and standards of proof in symbols cases.

Perhaps the ECtHR could have invited expert testimony critically elucidating

the potential effects state or individually displayed symbols have on other people

52Dahlab v. Switzerland,supra note44,p. 13.

53Leyla Sahin v.Turkey, 10 November 2005, European Court of Human Rights, No. 44774/98, para.

115 (seconding the Chambers considerations to that effect) and para. 116 (underscoring the equalitybefore the law of men and women).54

Brett G. Scharffs, Four Views of the Citadel: The Consequential Distinction between Secularity andSecularism, 6:2Religion & Human Rights(2011), p. 124. See alsoScharffss Chapter on jurispathic

versus jurisgenerative judicial interpretation in this book. 55Ibid., p. 123. In her dissenting opinon, Judge Tulkens argued and warned against too jurispathic an

approach in Sahin. Dissenting Opinion of Judge Tulkens in Sahin, paras. 1112.


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(from for instance semioticians, child pedagogy and child psychology experts in

Dahlaband Lautsi).56When the government invokes grounds for restriction that are

based on alleged proselytizing effects,such a reality checka moment to pause and

reflect informed by expertswould not be out of the question. In relation to

allegations of symbols inherent women-unfriendliness, or inherent illiberal

significance, etc, it is more difficult to see how the ECtHR could invite sound expert

testimony that would objectively explain the meaning of a symbol, for the plain and

simple reason that there is no monolithic meaning of for instance the Islamic

headscarf out there that could with absolute authority be graspednot even by

experts. In cases like Sahin and Dahlab the Court could, however, relatively

straightforwardly question if not falsify underlying Governmental assertions that a

certain symbol doeshave one meaning and that this meaning is necessarily coercive.57

That said, in symbols cases it is typically not actually necessary to invite

expert data to settle these casesas long as we consider the proper mechanisms of

human rights law and the derived equitable burdens and standards of proof. In the

final analysis, the issue of proof of (the absence of) adverse effects is typically the

states problem first and foremostnot the individuals. This holds true for cases

involving state-imposed symbols as well as for cases revolving around restrictions of

individually-displayed symbols. This point requires some closer inspection of these

cases, linking questions of standards and burdens of proofs to our previous

observations concerning applicable rightsas outlined in the previous section.

In restriction cases such asDahlaband Sahin, at the outset of a legal analysis

human rights law is in principle on the side of the symbol-displayer. The individual,

be it a teacher, student or pupil, enjoys after all a fundamental right to manifest a

religion both in public or private. Any state measure affecting this freedom

minimally amounts to an interference with theforum externum.58The latter freedom is

clearly not absolute, but the state will need to substantiate an overriding need to

interfere with this freedom, citing accepted grounds for restriction. In symbols cases

56Mawhinneys contribution to this volume is a case for a more multi-disciplinary approach to this type

of cases, notably legal reasoning must incorporate insights from semiotics.57

For instance, by giving a voice to the very women that have a stake in the case at hand. As Judge

Tulkens argues, [w]hat is lacking in this debate is the opinion of women, both those who wear theheadscarf and those who choose not to. Dissenting Opinion of Judge Tulkens in Sahin,supranote55,

para. 11.58

In Dahlab, supra note 44, too, which concerns a teacher, dress rules amount at least to an

interference according to the ECtHR (at pp. 1112 reference is repeatedly made to the interference).


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potential legitimate grounds are the protection of the rights and freedoms of others

and conceivably the protection of public orderor public safety.59If the symbol-

displayer is an individual, and thus a primary human rights holder vis--visthe state, a

purely theoretical need to interfere with fundamental rights can hardly ever be

considered legitimateone would assume and hope. Such is however precisely what

occurred in Dahlab. The fact that it cannot be denied outright that Islamic

headscarves might have some kind of proselytising effect, as such, is far too

abstract and vague a ground to be considered truly legitimate. Only by granting the

state an excessively wide margin of appreciation, in one and the same act destroying

the very core protection guaranteed by the fundamental right to freedom of religion,

could this defence be accepted by the European Court. The Court in Dahlab in fact

concedes there was no actual clash of rights, only an academic one. 60 It is true that

mere threats to the rights of others may underexceptionalcircumstances justify

interferences. However, in that case some minimum proof of that risk must be

presented by the state. The state may be considered best positioned to make

assessments as to certain threatsit is not denied that margins of appreciation do

need to play a role here. Yet in order to prevent restrictions from being exclusively

based on groundless fears, some minimal substantiation on the part of the state may

be expected; moreover, the level of international supervision should minimally

include the possibility to pronounce the absence of a pressing social need (to

restrict) in the event a state does not present that minimal case.61

Put differently, at this stage of our human rights analysis the onus to prove

adverse effectsstill lies squarely on the state. It cannot reasonably be expected from

the symbol-displayer, who in principle does nothing more than exercise a fundamental

right, to prove that she does not abuse her right (at least, not as long as the state has

not provided anything in the way of proof that such would be the case, i.e. some

minimal case warranting a reversal of the burden of proof). Following that reasoning,

59 Art. 9, para. 2, ECHR lists the accepted grounds for limitation. In Dahlab (ibid., p. 9) the

Government argued that the aims pursued were undeniably legitimate and were among those listed inthe second paragraph of Article 9 of the Convention. In their submission, the measure prohibiting the

applicant from wearing an Islamic headscarf was based on the principle of denominational neutrality inschools and, more broadly, on that of religious harmony. The Court reformulates (and accepts) theseaims as the protection of the rights and freedoms of others, public safety and public order ( ibid., p.11).

60Ibid., p. 12 (potential interference).61 Cf., mutatis mutandis, Dissenting Opinion of Judge Malinverni Joined by Judge Kalaydjieva to

Lautsi and Others v. Italy, para. 1.


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it is all the more remarkable that the fact that the municipal school authorities in

Dahlabhad not received a single complaint from parents in relation to her wearing a

headscarf is nowhere considered to be a relevant factor by the ECtHR.62 After all,

such facts are indicators or initial proof (i) that what we are dealing with is a normal

exercise of a fundamental right and that abuse of rights allegations seem groundless;

(ii) that rights-of-others and public order limitations advanced by the state prima

facielack real weight (i.e., a pressing social needto restrict is lacking); and (iii) that

the religious manifestation is in principle still covered by human rights law,

requiring further substantiation from the state as to the necessity of the interference

(i.e., in addition to we fear this individual display may harm others).

None of this goes to show that it is completely out of the question that the

restricting state wins a case against an individual symbol-displayer. The analysis so

far solely reiterates what human rights protection of the freedom to manifest a religion

is all about: when states restrict personal manifestations of religion, a substantiation of

the necessity and proportionality of the invoked ground for limitation is required. If

the aim invoked is the safeguarding of the rights of others, that substantiation may be

expected to be particularly thorough if a clash of rights is not something evident.

Specifically, if children/parents do not quite feel that their rights are at stake, the state

may not seize their rights as an abstract ground for limiting individual religious

manifestations. It cannot be ruled out, however, that the state successfully establishes

that adverse effects on the rights of others are so imminent that state interference is

warranted (or, alternatively, that this risk has been established to the extent that the

burden of proof shifts to the symbol-displayer to dispel the information presented by

the state). For instance, a state may be ableunlike Switzerland inDahlabto bring

to the attention of the Court particular facts indicating that the display of the religious

symbol is accompanied by active acts of improper proselytism on the part of the

teacher.

There are also circumstances imaginable that potentially warrant state

interference with the manifestation of religion for reasons that go beyond those

62Dahlab v. Switzerland,supra note44,p. 1: the schools inspector informed the Canton of Geneva

Directorate General for Primary Education that the applicant regularly wore an Islamic headscarf at

school; the inspector added that she had never had any comments from parents on the subject. Andibid., p. 4: In displaying a powerful religious attribute on the school premisesindeed, in the

classroomthe appellant may have interfered with the religious beliefs of her pupils, other pupils at theschool and the pupils parents. Admittedly, there have been no complaints from parents or pupils todate(ECtHR quoting domestic proceedings).


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pertaining to the individual behaviour of the symbol-displayer. As those external

reasons, reasons beyond our own control, are naturally particularly difficult to

stomach, we must tread very carefully here. It should be emphasized that any such

reasonsif valid at allmust be construed very narrowly, must as a matter of

principle be considered as temporary, and must very thoroughly be substantiated by

the state. Let us consider the example where a public school receives complaints from

parents that have concrete reason to fear their child may be pressured into accepting

religious dress codes they themselves, parents and child, do not wish to observe.

Under such circumstances, and if state or school authorities can prove concrete peer

pressure(non-observing children are reproached by children of religious parents) as a

part of wider patterns of general community pressure (many religious parents want

their children to observe religious garb rules in a particular school, particular quarter

of district or other well-defined locality), the introduction of temporary and targeted

neutral dress rules may be said to serve a legitimate aim. It cannot be overemphasized

that none of these factorsreligious demography, possibility of community or peer

pressure, etceteraever justify sweeping national bans on the individual display of

religious dress and symbols for the simple reason that such a measure is bound to fail

the proportionality test. In all Western European states that have recently introduced

such drasticdraconianbans lesser interfering measures were possible, namely a

law authorizing the local authorities (school boards, municipal/borough

administrations or other local administrative units) to adopt designatedand temporary

measures to pacify recorded instancesof religious pressure.

Also, the higher the form of education, the higher the standards of proof

regarding the necessity of such measures may be expected to be. In this regard,

mature university students, such as in Sahin,can be meaningfully distinguished from

primary school children, such as in Dahlab.63Admittedly, that is a common sense

distinction and deconstruction too. Yet this distinction does not boil down to

venturing into the meanings of symbols per se, but rather reflects the internationally

recognized acknowledgment that the less mature and empowered people are in cases

of conflicting freedoms of conscience, the stronger the protection of these rights of

othersmay be expected to be. International childrens rights discourse on the best

interest of the child and the evolving capacities of the child are reasonably


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objectifiable criteria that in fact allow us to circumvent doctrinal debate about

symbols per se.

In addition to the protection of the rights and freedoms of others, the need to

preserve the non-denominational character of the state and state schools (or more

generally, the neutrality of the state;or more narrowly, the secularityof the state)

is typically advanced by the state as a ground to interfere with the display of symbols

in those symbols cases where individuals act as symbol-displayer.64State neutrality is

a legitimate ground for limitation only insofar as it can be deemed a prerequisite for

the protection of the rights of others and for public order.65This possible ground for

interfering with the display of symbols begs the question what (acts, situations) could

actually be said to affect the neutral character of the state or of the state school

system specifically. In other words, who may be expected to be neutral? And to

what extent? It is possible to distinguish teachers from the stateitself. Obviously the

distinction between teachers and pupils/students is also significant in the present

debate. Let us start with the latter point.

Though certainly entering the public realmin abstracto, public school pupils

do not represent the state in any way whatsoever inasmuch as they simply make use in

a private capacity of a servicea compulsory one in case of primary school

education66that is provided by the state. The same goes for university students,

though they enter this public space on a more voluntary basis. It may be reiterated

once more that freedom of religion or belief is in principle protected in public or

private. Accordingly, in the absence of extreme circumstances (proven community

and peer pressure, religious strife) it can hardly ever be considered necessary to

altogether ban the display of individual religious symbols from the public school

system for that system to be and remain non-denominational (or neutral, or

secular). The display of religious symbols by individuals, if there are no concrete

63To be sure, note that in Dahlab, ibid., neither religious pressure by the teacher nor community or

peer pressure by parents or children to wear a headscarf was proven by the state.64

E.g., inDahlab, ibid., p. 2 (the strict obligation of denominational neutrality), p. 4 (the principleof denominational neutrality).65

InDahlab, ibid., p. 4, it was concluded during the domestic procedure that the impugned decision isfully in accordance with the principle of denominational neutrality in schools, a principle that seeks

both to protect the religious beliefs of pupils and parents and to ensure religious harmony, which in

some respects is still fragile. The European Court, ibid., p. 12, underscores several times (byimplication) the denominational neutrality of the public school system as a legitimate ground for

restriction.66

Secondary schooling is typically largely compulsory too, depending on national legislation on

compulsory education and the fixed school-leaving age.


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indicationsbeyond unsubstantiated fearsthat such display is accompanied by or

triggers religious pressure, does not show the failure of state neutrality. If anything, it

shows there is equal respect for the manifestations of different beliefs by individuals,

also in public. To the extent that pupils/students can be said to affect the neutrality

or secularity of the state non-verbally and inadvertently, such is in principle covered

by their right to observe their religion in public. Consequently, the denominational

neutrality card should not uncritically be accepted when played out against

pupils/students.67

With respect to public school teachers the situation is different inasmuch as

the link between these individuals and the stateand the latters need to observe

neutralityis a closer one.68 That arguably holds true regardless of the question

whether or not public school teachers are appointed as civil servants under domestic

law. On the face of it, then, that fact may lend some support to abstract

argumentations premised on teachers-as-role-models in conjunction with the

argument that public service workers expressly or implicitly wave some of their rights

when they enter their function. Still, though, the neutrality argument in the present

context should not be accepted as a wholesale justification. Despite the fact that some

deference to the states position on any of this may be in order, not all abstract

arguments should be uncritically accepted.

First, note that the argument that teachers function as a role-model, and that

especially younger pupils would be likely to copy the behaviour of this authoritative

figure, does not find an equivalent in the relevant contemporary scientific research.69

That observation casts serious doubt on the assumption that teachers attire and

symbols as such(i.e., in the absence of express proselytizing behaviour) might have

some kind of proselytising effect (i.e., the Dahlab formula). In the light of the

foregoing discussion on the position of international judges, the question is whether

international monitoring bodies should (by virtue of granting states a wide margin of

appreciation) acquiesce in abstract proselytism arguments or whether instead critical

inquiries into the exact necessity of the symbol/dress ban are in order. Considering the

fact that we are dealing with a symbol-displayer as individual rights holder,

international scrutiny is most certainly in order. If special proof of the risk of

67See alsoDissenting Opinion of Judge Tulkens in the case of Leyla ahin v. Turkey,para. 5.

68Cf. ibid., para. 7.


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proselytism is required in order to decide the case, it is the state that faces the

evidentiary burdenindividuals, also in their capacity of teachers, in principle

exercise a fundamental right.

That is, unless we should conclude that public service workers are deprived of

certain rights or at least of the public dimensions thereof. That is precisely the gist of

the related waver-of-rights argument: regardless of whether they are formally under

the domestic laws considered civil servants or not, public school teachers work for a

public institution, a position they have voluntarily taken up. In contrast to the position

of pupils/students, one could accordingly considerthe argument goesthat teachers

represent the state to some extent, and at any rate may be expected to abide by certain

professional duties that come with working for a public institution.

But abstract fears alone again ought not to be all-decisive at this specific

junction of our symbols discussion. To a considerable extent, the public manifestation

of religion by individualsthrough the use of symbols is only as problematic as states

make it and want it to be. Certainly, there may be niches of the public square where

strict denominational neutrality cannot be subject to any compromise (e.g., the

impartial appearance of the judiciary); however, not all that is deemed public is

necessarily or automatically adversely affected by the individual display of symbols.

In some parts of Europe individually displayed symbols by for instance policemen is

ever so unproblematic and has not led to public indignationimportantly because it is

legally not treated as a problematic issue. This almost appears a self-enhancing

principle: the less the state panics about the individual display of religious symbols in

public places, even where it concerns public service workers, the more visibly and

literally pluralistic and equally respective of symbols the state is and appears, and the

more likely it is that the symbol-viewer, in turn, finds it rather normal that s/he is

confronted with a personal religious symbol in the public space. Unfortunately, the

flip-side seems to hold equally true:political and legislative panic may very well

foster societal panic. Also note in this regard that the vehement and obstinate rejection

of individual religious symbols from public spaces is very symbolic in its own right:

religion as something for at home. And: only persons that show no sign of religion

may be expected to serve the public well.

69SeeStijn Smets contribution to this Volume, particularly section V of his Chapter and the there cited

child psychological and pedagogical research.


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Let us turn now to the altogether different situation where the state acts as

symbol-displayer and where individuals are rights holders chiefly as symbol-viewers.

None of the above goes to show that statesare free to display any symbol they see fit,

anywhere they see fit. It may be reiterated that where the state acts as symbol-

displayer we can hardly consider the state to qualify as rights holder under

international human rights law. Human rights argumentswhich, alarmingly, can

actually be found inLautsipremised on the a priori overruling force of perpetuating

majority traditions are flimsy indeed.70 There is no such thing as a right of the

dominant religion to display symbols inside the public premises of its choosing. That

practice is a possibility, indeed a tradition,71but in line with what we have seen a

rather objectionable one from the perspective of the requirements of freedom of

religion or belief, equality before the law, and equal access to public services. The

state that would downright refuse the display of symbols of the dominant religious

tradition in public schools would not interfere with any fundamental right, a position

further supported by the existence of residual religious and educational rights.72It is

indeed precisely the existence of the right of churches, religious communities, and

private school boards, to design alternative schooling with an expressly non-critical,

deliberately non-objective, and distinct non-pluralistic teaching environment, that

makes it all the more important for states to keep public school education truly public.

Crucifix schooling is fully guaranteed by international law, but not inside state-run

institutions. Proselytizing young, impressionable pupils is fully accepted by

international law, but non-state entities will have to organize that for themselves.

Mindful of those preliminaries, let us further consider the position of the

display-viewer, the latters fundamental rights and especially the derived equitable

burdens and standards of proof in cases where the state imposes the symbol or

sanctions the perpetuation thereof. The Grand Chamber in Lautsi applies as key

yardstick the question as to whether the crucifix indoctrinates pupils.73There are two

issues here: (i) whether that is an adequate human rights test in this case?; and (ii),

once we have established the right test, who is to prove/falsify any adverse influence?

70See supra, text at notes723.

71 In the words of both the Italian Government and the Grand Chamber, Lautsi and Others v. Italy,

supranote10,resp. paras. 3637 and paras. 6768.72See supra, text at notes723.

73Lautsi and Others v.Italy,supranote10,para. 62.


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The very narrow indoctrination test the Grand Chamber (chiefly) applies can

be criticized for various reasons. First and foremost, this test departs from the

comprehensive pluralism in education and non-proselytism tests formulated and

applied by the Court in public education cases. From for instance Folger it follows

that the public school framework and curriculum must be designed in a way so that it

can be guaranteed that children are taught in an objective, critical and pluralistic

manner.74The fact that the state has not expressly pursued an aim of indoctrination

does not quite ensure that public school education is sufficiently pluralistic or

universally accessible. As the Court postulated inFolger, abuses can occur as to the

manner in which the [educational legislations] provisions in force are applied by a

given school or teacher and the competent authorities have a duty to take the utmost

care to see to it that parents religious and philosophical convictions are not

disregarded at this level by carelessness, lack of judgment or misplaced

proselytism.75For sure, the high-threshold question as to whether outright coercion

takes place is certainly one of the most pertinent questions when we are dealing with

cases where individualsdisplay symbols and where other individuals simultaneously

hold rights as symbol-viewers. In those cases we need to know more or less precisely

the adverse effects to know how to justly balance competing fundamental rights

claims. Put differently, to restrict the individual display of religious symbols a degree

of abuseof religious rights must be substantiated: it must become evident that we are

dealing with an extraordinary case in which the individual indeed seeks to

indoctrinate others or indeed minimally engages in so-called improper acts of

proselytism.76 The position (superior, teacher, etc) of the symbol-displayer may

certainly be taken into account so as to judge the latter; however, the fact in itself that

a person decides to display a religious symbol does not amount to a clear aim of

improper proselytism (for it is covered by a human right to behave in that way). In

74Cf. Mawhinneys and Pieriks contributions to this volume (seesection III of Mawhinneys Chapter;

and see section III of Pieriks Chapter). E.g. in Folger and Others v. Norway, 14 February 2006,European Court of Human Rights, No. 15472/02, paras. 84102.75

Folger, ibid., para. 84(i) (emphasis added).76

Whereas the ECtHR speaks of misplaced proselytism (Folger, idem;see also Hasan and EylemZengin v. Turkey, 9 October 2007, European Court of Human Rights, No. 1448/04, para. 52) or

unrestrained proselytism (efika Kse and 93 Others v. Turkey. 24 January 2006, European Court ofHuman Rights, No. 26625/02) in relation to state obligationsin the area of public schooling; in relation

to horizontal individual acts, the decisive factor is the properness of proselytism. Cf. Kokkinakisv.

Greece, 25 May 1993, European Court of Human Rights, No. 14307/88, paras. 4849 (improperproselytism); andLarissis and others v.Greece, 24 February 1988, European Court of Human Rights,Nos. 23372/94; 26377/94; 26378/94, para. 45 (improper proselytism).


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short, we need to assess the actual behaviour of the symbol-displayer in order to make

up the final balance. In the case ofstate-imposed symbols misplaced proselytismis

rather easily prima facieestablished, for most if not all proselytizing endeavours on

the part of the stateare misplaced. What would in the civilian worldespecially in a

pluralistic and tolerant world where one is perfectly accustomed to diversitybe seen

as an innocuous exchange of ideas which the recipient is free to accept or reject, may,

within the confines of compulsory public schooling, be viewed as a form of undue

pressure in abuse of power.77

In addition to the outlined negative religious liberties, in those cases where the

state imposes the symbol, and where the symbol-viewer is consequently the principal

rights holder, important questions emerge regarding equalaccess to public services.

Thus, our next question is whether the state may present parents/children with

conscientious dilemmas in the area of the compulsory public good that is primary

school education. Specifically, the dilemma is a forced choice between surrendering

access to state education or surrendering ones (non-)religious conscience.78 Judge

Bonello finds it absurd that anyone could, on grounds of religious liberty, find issue

with a crucifix in a schoolroom.79 But perhaps it is not quite so unimaginable or

unreasonable that parents that send their child to such a public school are very

anxious that the state favours the predominant religionfavours it to the extent that

the state goes out of its way ensuring an official salute to this religion in each and

every state schooland that this very fact alone objectively, rather than subjectively,80

undermines the public quality of state schools their children, and they themselves on

account of their parental liberties, are entitled to.81

77This is the Larissis formula (ibid., there employed to contrast the civilian world with the confined

and hierarchical world of the military), here applied to compare the civilian world with areas where

states exercise public authority. Again, this is not to say that all civilian display of symbols isnecessarily innocuous: how free others in the civilian world are exactly to accept or reject woulddepend on the context, and particularly on the behaviour of the symbol-displayer.78

The fact that this is a real issue and not an academic one, and also that it is experienced beyond the

realm of predominantly Catholic states, is reported by, e.g., Charles Russo in relation to Republika

rpska. If religious (in this case Christian Orthodox) symbols are present in each and every publicschool throughout the state, children of non-believers or those belonging to minority religions may not

have genuine access to public school education. Charles J. Russo, Religion and Education in Bosnia:Integration Not Segregation?, 3Brigham Young University Law Review(2000), p. 945.79

Concurring Opinion Judge Bonello toLautsi and Others v. Italy, paras. 2.82.9.80

The Grand Chamber held in Lautsi that the applicants subjective perception is not in itselfsufficient to establish a breach of Article 2 of Protocol No. 1 (Lautsi and Others v.Italy, supranote10,para. 66).

81Needless to say, here residual rights of parents (in this case the rights of the non-religious to arrangeprivate education) do not remedy the situation: it is the states dutyunder international law to make

available public education with adequate curricula, teaching methods, and to ensure universal access to


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In the event that Italy had adopted a law requiring all public schools to

henceforth display a symbol representingequally unambiguously82atheism in

each and every public school classroom, a breach of the Convention could be

established likewise. Indeed, one wonders what the third party interveners reactions

would have been should the Strasbourg Court, for instance, have condemned the

Czech Republica somewhat more likely example with >50 per cent of the

population consisting of atheists, agnostics, non-believers or no-organized believers

on account of a federal law requiring that on each and every state school wall an A

(for Atheism) be painted (or any other well-known atheist sign).83

A state that imposes a crucifix in a public school classroom suggests that the

religion that is thereby symbolized is the exemplary religion. A state that paints an

Atheism sign on each and every public classroom wall suggests that pupils are well-

advised to denounce all religion. Such state-imposed symbolism interferes with the

right to freedom of thought, conscience or religion of parents and childreneven if

the atheistic or religious majority share a heartfelt wish to perpetuate that tradition.

And in eitherscenario there may very well be parents that cannot enrol their child in

any such public schoolwithout doing serious harm to their conscience. Note that we

are talking about (relatively) unambiguous religious symbols (e.g., a crucifix) and

equally (relatively) unambiguous atheist signs (e.g., said A-signs). False analogies

demonstrating84the innocuous nature of imposing on all the symbol of the dominant

religion are easily made. The fact that we also see many secular symbols in the

public square is quite beside the point. Also, comparing crucifix schooling with

widespread forms of religious symbolism practised more generally in other areas

(e.g., on flags or coats-of-arms) does not distract from sincere access issues in relation

to public education caused by the former practice.

Thus, in the area of state symbols the risk for actual indoctrination is only one

concern. The states obligation to ensure that everyone can enrol in public schools

state-organized education, which includes avoiding policies that could cause conscientious obstacles to

universal access and enrolment.82

E.g.the different variations on the A-symbol. See.

Or think of the different No Religion symbols: i.e.a cross, the word God, or the word religionplaced against the background of a prohibited-sign. The A-symbol is most apt for the purposes of the

analogy drawn here with religious symbols. No Religion symbols are overly anti-religious, ratherthan positively representing a non-religious (atheism, agnosticism, etc) faith.

83Seeprevious footnote. To be sure, the Czech Republic has adopted no such ludicrous policy.84

One is invited to consult the third party interventions inLautsifor some examples (Lautsi and Others

v.Italy,supranote10).
http://www.religioustolerance.org/atheist6.htmhttp://www.religioustolerance.org/atheist6.htm


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without conscientious trouble is as important. It is odd why the European Court of

Human Rights has not quite recognized this concern in relation to public education, as

it has elaborated on this requirement in other areas of law and policy-making.

Religious oaths of officea widespread tradition too in Europe and elsewhere85

are not problematic because of a scientifically proven risk that the oath-taker will

subsequently be a devout adherent to the dominant religion, but mainly because such

oath schemes signal that normally the incumbent office holder adheres to the

dominant religion. This is precisely the reason that even certain optional religious

oaths schemes (if the religious oath is the rule and the secular affirmation the tolerated

exception) are objectionable from a human rights perspective: the assumption is that

normal office holders adhere to the religion or God sworn to. Moreover, non-

believers or members of minority religions are forced to reveal that they do not share

that dominant faith if they want to take the secular affirmationor alternatively feign

the religious oath contrary to their conscience.86By and large the same goes for public

education (and many other public services for that matter): even short of establishing

the precise decree of indoctrination the conclusion must be that there is no place for

religious symbols on walls of state school premises. There the main concern is that

parents/children may reasonably think the state takes sides in religious mattersthe

message is: the normal religion in this class is x. Even if that is not officially the

intended message, and even if the state otherwise formally promotes pluralism, it is in

this situation that it cannot be denied outrightto use the Dahlab formulathat

ostensible religious preferences on the part of the state may impact every day school

life.

Consequently, parents objecting to the symbols presence in their childrens

public school have aprima faciehuman rights case. Accordingly, the onus must be on

the state to substantiate what measures it has taken to make absolutely sure that the

symbol policy does notnegatively affect public education. It is quite remarkable that

the fact that no evidencewas brought before the Court87on the symbol policys

effects in Lautsi is held against the applicant. The nature of the Italian policy means

that all public schools are obliged to display the crucifix with no possible local

85Jeroen Temperman, StateReligion Relationships and Human Rights Law (Leiden/Boston: Martinus

Nijhoff Publishers, 2010), pp. 316320.86Cf.Alexandridis v. Greece,supranote7;andBuscarini and Others v. San Marino,supranote6,forexamples of respectively optional and compulsory religious oath of office schemes.87

Lautsi and Others v.Italy,supranote10,para. 66.


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exceptions or opt-outs. Somewhat different is the situation where the display is in

principle prescribed by national or local regulations, but where schools must remove

the symbols in case of complaints by parentsa decent attempt at treaty-conform

interpretation found in some of the jurisprudence stemming from constitutional,

supreme or other courts in Europe (notably Spain).88What remains problematic in that

situation, however, is that adherents of minority beliefs or non-believers are forced to

reveal that they do not share the dominant religion and that they in fact find issue with

a tradition cherished by the majority. The risk for ostracization or other repercussions

alone could make affected persons decide to rather surrender their conscience and not

speak out. The public space is created by the liberal state as a universally accessible

domain precisely with a view towards guaranteeing that the state itself will neverbe

it deliberately or inadvertentlyforce such dilemmas on any of its inhabitants.

Here the analogy with opt-outs to religious instruction in public schools is

quite apt. There is increasing evidence available that opt-out provisions are the

problem rather than the solution (to the compulsion element of religious instruction in

public schools).89The traditional view, formulated by most international monitoring

bodies, including the UN Human Rights Committee and the ECtHR,90is that there are

two main ways for the state to fulfil its relevant human rights obligations. It either

creates an educational system and a public school curriculum in a designedly

pluralistic manner. Or, alternatively, in case it does allow confessional religious

instruction (i.e., religious education going beyond neutral courses about religions) in

public schools, the state lives up to its commitments if it grants adequate opt-out

rights.91However, if we consider the every-day reality of school-life and the practical

88For more examples of how domestic courts have pacified state symbols questions, see the detailed

country studies in the comparative part of this volume.89

Alison Mawhinney et al, Opting Out of Religious Education: The Views of Young People fromMinority Belief Backgrounds (Belfast: Queens University Belfast, 2010); Yuko Chiba and AlisonMawhinney, Religious Education, Opt-Outs and Freedom of Religion in Schools, in Welfare of theChild and Beliefs of the Parents (Cyprus: University of Nicosia Press, 2010); Alison Mawhinney,

Submission to the Human Rights Committee with Respect to the Third Periodic Report of Ireland

[NGO Information], March 2008 (this shadow report is a response to U.N.

Jeroen Temperman

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