In Lautsi v Italy (2012), the applicant argued that the presence of crucifixes in state school classrooms violated students’ Article 9 ECHR right to religious freedom, but the ECtHR deemed the cross a ‘passive symbol’ and Article 9 respected. Yet in Dahlab v Switzerland (2001),an earlier case the applicant cited, banning a teacher from wearing her hijab whilst teaching was considered a justifiable interference with her Article 9 right, to protect the religious freedom of the schoolchildren. In this instance the religious symbol was not rendered passive but a ‘powerful external symbol.’ Years have passed since Lautsi, but there has been no explanation or reconciliation of these two cases.
Despite a seemingly similar context, the Court said they could not rely on Dahlab ‘because the facts of the two cases are entirely different.’ To distinguish the cases the Court relied upon the margin of appreciation and stated that crucifixes must be considered in context; there was nothing to suggest that the authorities were intolerant of pupils of other religions and no association with compulsory teaching about Christianity. Yet the differences in the application of the margin of appreciation in each case mean the uncomfortable possibility of a bias, in favour of the predominant national religion, must be taken seriously. In Lautsi the Court said; ‘There 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.’ One must ask why there was suddenly a need for evidence, whilst in Dahlab the court had been willing to hypothesise about the impact ‘wearing of a headscarf may have on the freedom of conscience and religion of very young children.’
The Court also attempted to distinguish the cases by emphasising that the applicant in Lautsi had not claimed that the crucifix’s presence encouraged ‘teaching practices with a proselytising tendency.’ The Courts had expressed a fear in Dahlab that the hijab ‘might have some kind of proselytising effect.’ But to prohibit the wearing of a hijab on this basis runs contrary to previous cases concerning proselytising, such as Kokkinakis vs Greece (1994)and Larissis v Greece (1999), which held that an open exchange of ideas should not be prohibited unless amounting to an abuse of power. Why should a symbol on a person be taken to have a more powerful impact on students than a symbol on the wall? One could counter that it is not just any person, but the teacher, in a position of authority; could this amount to an abuse of power? However, the aforementioned cases concerned active preaching, so the court would have to provide a compelling reason to explain how the wearing of a garment is capable of amounting to an abuse of power. Further, if the mere wearing of an item can amount to proselytism, does that not undermine the assertion in Lautsi that displaying ‘a religious symbol does not compel or coerce an individual to do or to refrain from doing anything?’ If anything, will students not associate this symbol with an element of one teacher’s identity, rather than their whole education, as they might with the omnipresent crucifix?
Another conceivable point of distinction not offered explicitly, but mentioned in Dahlab and not in Lautsi,is that the Court found it “difficult to reconcile the wearing of an Islamic headscarf with…equality and non-discrimination.” Yet such advocating for non-discrimination rings hollow. The Court’s defence of the crucifix, whilst opposing the hijab, is hard to align with the fact that most major religions entail elements contrary to gender equality. The Catholic Church in Italy is no exception; it was instrumental in aiding Mussolini’s propaganda about the woman’s role as wife and mother, still excludes women from priesthood, and opposes all birth control. This link with fascism is acknowledged in Lautsi; ‘during the fascist period the State took a series of measures aimed at ensuring compliance with the obligation to display the crucifix in classrooms.’
When another case on freedom of religion comes before the ECtHR, it will have to address the uncomfortable inconsistencies in its existing case law and be mindful of the risk of bias in doing so. Of course, any such bias would have ramifications that extend beyond the classroom.