Headscarves are once again en vogue in Europe – and not just for working on the farm or riding in open cars. The revival is due to the increasing presence in Europe of women of the Muslim faith. Before people knew exactly what had happened, the headscarf was there as the symbol of a new culture and faith. Obviously, scarves themselves are nothing new. From farm women throughout Europe to Catholic nuns, the headscarf or veil has been with us since time immemorial, and in many parts of Eastern Europe it is still a common sight today. Nor is Islam anything new on European soil. For centuries the popular holiday destination of Spain – as its magnificent architectural heritage bears witness – was Muslim in character, and the Balkans are the cradle of European history and Muslim-populated in many areas at the same time. In this context, the proposed accession to the EU of Macedonia (one-third Muslim) and Bosnia (40% Muslim) are not considered problematical with regard to religion any more than was the accession of Bulgaria (almost 13% Muslim) in 2007 or Cyprus, with its almost exclusively Muslim north, in 2004 (→ Zero Tolerance). That contrasts with the ongoing debate – often with a strongly religious or at least cultural element – on the subject of EU membership for Turkey. The difference can doubtless be explained in terms of the country’s relative size. Claims – often doubted by experts – of the huge migration potential of a country with a population of 72 million inhabitants (and growing rapidly) seem to trigger defensive reflexes. As long as Islam is not in our backyard, there is apparently no cause for European alarm; the social frictions arise where Muslim culture and religion are making their mark on Europe’s cities. A clear example of how such defensive attitudes can be articulated at the political level was provided in Austria’s 2006 national elections by the Austrian Freedom Party (FPÖ) with its gut-reaction slogan “Daham statt Islam” (home instead of Islam) (→ Xenophobia). Another more recent example can be taken from the 2012 local election in the city of Innsbruck where the same party used election posters postulating “Heimatliebe statt Marokkaner Diebe” (patriotism instead of thieves from Morocco). The statement, which – according to the party concerned – was “not meant to insult anyone” was later withdrawn from the election campaign due to international protest. The ongoing debate on the Muslim presence in Europe unfortunately often degenerates into an irrational and xenophobic exercise and thus illustrates a leitmotif of this ABC: Diversity is a fine but delicate thing. Where the political establishment fails to think ahead and take the prophylactic measures needed for rational support for diversity, it can easily be crushed under the heavy weight of populism and ultimately become its own victim in ethnic-religious conflict (→ Yin and Yang).
Religion in Europe
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There can be no doubt that religion has always been a powerful factor in Europe and will almost certainly remain one. Equally, it must be said that religion has not always been a unifying force on our continent. That is relevant for the process of European integration. Recent sociodemographic polls, for example, show that the huge differences in the status of religion in society derive from national (i.e. territorial) rather than social (individual) factors. According to the 2006 Eurobarometer and the European Values Study for the year 2000, 46 percent of Europeans are of the opinion that too much importance is attached to religion, while 48 percent say that this is not the case. The distinctive feature for the two groups is not age, education or political affiliation but nationality; there are clear differences in the religious involvement of the various countries’ populations. In this context it can be said that the populations of the older Member States (EU-15) attach much less importance to religion than their counterparts in the newer Member States (i.e. the eight countries of Central and Eastern Europe plus Cyprus and Malta). An even bigger role is assigned to religion by the populations of the latest members of the EU, namely Romania and Bulgaria. Their high levels of approval of religious involvement are in turn clearly exceeded in Turkey. Thus the share of responders who said religion was “very important” in their lives was 17.9 percent in the old EU Member States, 23.1 percent in the newer Member States, 34.1 percent in the most recent Member States, and a huge 81.9 percent in the candidate country Turkey!
Nor is it only people’s attitudes that differ within the EU; there is great variety within Europe in terms of legislation, too. With regard to the relationship between state and religion, it can be said that the two spheres are clearly kept apart in the EU, but the specific relationship between state and church still varies considerably. Here, too, diversity seems to be a basic principle of the EU. The German constitution, for example, speaks of “responsibility before God”, while the Irish constitution is promulgated “in the name of the Most Holy Trinity”, to which “all actions both of men and States must be referred”. In the preamble to the Irish constitution, the Irish acknowledge their “obligations to our Divine Lord, Jesus Christ”. Such veneration of God is absolutely unthinkable in other constitutional traditions in Europe. This is especially clear in the case of the secular constitutional tradition of France. In Article 2 of the French constitution, France is specifically defined as a secular republic. An even more comprehensive commitment to secularism is to be found in the preamble to the Turkish constitution, in which it is explicitly stated that, in line with the principles of the secular state, there shall be no interference whatsoever by sacred religious feelings in state affairs and politics. There are similar differences between the various constitutions with regard to organised religiosity, i.e. the churches, too. While some constitutions prescribe strict neutrality, others include an explicit commitment to a certain church. But in one point there is full agreement: all European legal systems prohibit discrimination on the basis of affiliation to a religion, although this ban on discrimination can conflict with provisions that render the state less than neutral.
Muslim populations in Europe
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Any attempt to quantify the number of people of Muslim faith in the EU can produce only vague answers at best. After all, what is the definition of a Muslim? The question of who belongs to a religious community can only be answered on the basis of individual self-assessment. The data that does exist – and that is a general problem of minority policy (→ Uncounted) – is incomplete, and the statistics that are available are rarely comparable. It is nevertheless reasonable to work on the assumption that the EU has about fifteen million Muslims. A good four million live in France and Germany, 1.6 million in Great Britain, and about one million each in the Netherlands and Spain. Italy also has a significant Muslim population, namely over 800,000. The other countries of the EU have less than half a million. In all cases the Muslims account for well below six percent of the national population (with the exception of Bulgaria). For the EU as a whole, an assumed Muslim population of fifteen million averages out at about three percent of the total population (500 million). That figure is relatively high in comparison to America (where the estimated Muslim population is less than one percent of a total of over 300 million Americans), but it is low in comparison to Russia (with close to 140 million citizens and an estimated Muslim population of 10-16 percent). There are two reasons why the presence of large numbers of Muslims is often perceived in a negative light: On the one hand, they are concentrated in certain regions and cities, and on the other their presence (within the current borders of the EU at least) is a product of migration.
Wherever Islam is represented by immigrant families, some sections of the majority populations seem to develop a defensive reflex. Acts of international terrorism at the beginning of the millennium helped to nurture feelings of being outnumbered by foreigners and even fears of a power take-over by Muslims (→ Xenophobia). In this context the term “islamophobia” has rightly become a modern buzzword. At the same time – and this is a central point in the overall debate – criticism of islamophobia must not be permitted to discourage the robust defence of Europe’s basic rights and fundamental social values against religious extremism. The interreligious cultural dialogue cannot be a true dialogue if obvious incompatibilities are swept under the carpet for the sake of momentary harmony. For the most part, however, it is not about recognition or not for the fundamental values of western-style democracies. When it comes to the details – and that is the decisive level – the question is usually about how legal systems which have traditionally developed in the cultural context of Christianity should react to changes in the composition of their populations. In Europe there are growing numbers not only of people who no longer have Christianity as a point of reference but also of people who identify – and with considerably more devotion than the typical nominal Christian – with another religion, in particular Islam. For such persons, any political measures taken will make quite a different impression and have quite different effects compared with members of the majority society. Ultimately, one of the effects of immigration is to make the host population aware of the cultural factors underlying their legal system and of the resulting need for self-reflection.
The cultural shadow of statehood
Discrimination refers not only to cases where a legal norm directly singles out a specific religious group (direct discrimination) but also to cases where a formally neutral legal norm impacts individuals with a certain religion much more than others, as defined by the general concept of indirect discrimination (→ Discrimination). A law that requires everyone to wear a helmet, for example, or to go bare-headed perhaps, has quite different implication for a Christian than for a Sikh, who has to wear his Dastar as a religious symbol. This simple example illustrates how the religious composition of a population affects the question of discrimination: In a new demographic situation, the same norms can have different consequences. After all, norms are never absolutely neutral; they arise in a specific cultural context and therefore, when the context changes, they cast a cultural shadow. Admittedly, the effect of the shadow is not always discrimination. For example, in 1994 the Hamburg Administrative Court had to rule on the question whether a Muslim should be granted exemption from military conscription because military service would prevent him from performing his daily religious rites and observing Ramadan. In Germany, exemption from military conscription may in fact be granted if it will not otherwise be possible for the conscript to live in accordance with the tenets of his faith. In this case, however, the court ruled – in spite of the strict Muslim code of time-consuming ritual – that military service was not incompatible with the requirements of religion. This means that, for various forms of service or employment, measures must be taken at the practical level to take account of the needs of members of “new” religions. That applies in particular to cases where service or attendance is a legal requirement in a public-law institution such as the military or school.
Talking of school: Traditionally, there is no school on Sundays – an ideal choice for Christians. Requests for alternative solutions can be refused on the following grounds: School is a neutral place in terms of religion, and religious arguments cannot be considered; the same free day for all schools is required for practical reasons; and special treatment is simply not possible. The fact remains, however, that such a state regime has different impacts on different groups. In order to mitigate the effects of this cultural shadow, a number of European supreme courts have been generous in granting dispensations. Back in 1973 the German Federal Administrative Court, for example, permitted Jewish children to be excused from Saturday attendance at school. And in a similar context, the Swiss Federal Court ruled in 1991 that it was unconstitutional for a cantonal school law to make no provision for exemptions from school attendance requirements for religious reasons, thus avoiding situations in which families had to choose between the laws of the state and the commandments of religion. And, according to the court, the ruling avoids not only the danger of a conflict of conscience, “but also of a dispute between the school and the family, which might cause suffering to the child in particular”.
One recurrent question in connection with Islam is whether Muslim schoolgirls should be excused from co-educational swimming and physical training if parents make such a request for religious reasons. In 1993 the Swiss Federal Court ruled that a Turkish girl did not have to attend swimming classes in a judgment that attracted come criticism. One of the objections raised was that such “excessively respectful” treatment could undermine the position of women. The court, on the other hand, decided that swimming was not an essential subject in the interest of children or in the context of the Swiss system of values, whereas the Muslim dress code had to be seen as a relatively important religious duty. A similar conclusion was drawn in the same year by the German Federal Administrative Court, although the German court considered the solution to lie primarily in single-sex tuition for such subjects (and only as a fallback in a dispensation from the class). That specific case, by the way, was not about Muslims but about members of the Palmarian Catholic Church. This shows that the question of how religious groups are to be accommodated within existing systems of rules and regulations relates to all religions and is not a specifically Muslim problem.
The provision of separate cemeteries or reserved sections of public cemeteries is another example of how apparently neutral regulations can have different effects on different religious communities. Normally the graves are reopened after a few years and used again. This system of “charnel rotation” is acceptable to Christians. For Muslims (and Jews), however, the situation is quite different: Their religious commandments forbid them to exhume the bones and reuse the grave. Where the regulations do not make allowance for such burial requirements, strict Muslims have to shoulder the additional costs and emotional burdens of burial abroad. In this context the Swiss Federal Court ruled in 1999 that the principle of equality was not being violated because special cemeteries were permitted in Switzerland. This argument does not answer the question, however, of whether the public authority must guarantee their availability and possibly assume responsibility for the costs to ensure that Muslims – just like Christians – are able to bury their dead in keeping with the tenets of their faith. Sometimes true equality can only be established where additional public funds are employed to neutralise the cultural shadow of a legal system that applies to all (→ Formal Equality).
The headscarf debate
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Wearing a headscarf is often a religious matter. At all events it is a high-profile measure and clearly controversial in some contexts. The controversy is especially strong in the case of state schools with regard to the question of the extent to which the authorities are justified in forbidding religiously motivated dress for teachers and pupils. In Germany the courts were called upon in the 1980s to consider whether it was legal for teachers to wear the typical red Bhagwan dress at schools. In 1988 the Federal Administrative Court ruled that it is possible to prohibit “the regular use of clothes which are a clear expression of the religious or ideological conviction of a teacher in a state school” and which meet with rejection on the part of pupils of other persuasions and their parents because such behaviour violates the basic right of negative religious freedom.
The really big headscarf debates have only broken out in the last few years, however. In a decision announced in Switzerland in 1997, the Federal Court spoke of the need to protect the children from teachers in allegedly “religious” dress, and the teacher involved, Ms. Dahlab, took the case to the European Court of Human Rights. In France especially, which has a tradition of excluding religion from the public space, the subject was debated on various juridical and political fronts – with an astonishing outcome: In 2004 France took a radical step in the form of a complete legal ban on wearing “striking religious symbols” in state schools, a ban that applies to teachers and pupils alike. At about the same time, countless courts were confronted with the subject in Germany, too. The case of the trainee teacher Fereshta Ludin, who insisted on wearing her Muslim headscarf in Baden-Württemberg, actually reached the heights of the Federal Constitutional Court in Karlsruhe. In September 2003 the court passed a veritable judgment of Solomon, ruling that the ban on wearing a headscarf was illegal in this case because it was without legal basis in the Land of Baden-Württemberg. If the Länder so desired, however, they could explicitly formulate a dress code in their school laws incorporating a ban on headscarves. In the meantime half of the German Länder have introduced such legislation. Unlike France, the ban in Germany does not apply to pupils; they remain at liberty to wear headscarves or veils as they see fit. As in France, the legal provisions in Germany do not relate exclusively to headscarves. The Baden-Württemberg law, for example, makes reference to “political, religious, ideological or similar external manifestations … which are liable to call into question the neutrality of the state authority”. In Bavaria the focus in the law is different: “external symbols and articles of clothing that lend expression to religious or ideological convictions … which can also be interpreted as an expression of an attitude that is not compatible with the fundamental values and educational goals of the constitution and with western Christian educational and cultural values”. Remarkably enough, the laws in Berlin and Hessen apply to the whole of the public service sector. In the Land of Hessen, the law contains the following passage: “Public servants shall maintain political, ideological and religious neutrality in their work. In particular they shall not wear any articles of clothing, symbols or other items that could objectively have the effect of compromising people’s trust in the neutrality of their style of office or endanger political, religious or ideological peace. In decisions relating to satisfaction of the requirements formulated in sentences 1 and 2, due consideration shall be paid to the western tradition of Hessen with its Christian and humanistic character.”
The question of the Muslim headscarf has also been dealt with at the highest level – by the European Court of Human Rights in Strasbourg (→ Judiciary). In 2001 the court reached a decision on the above mentioned case from Switzerland (Dahlab v. Switzerland, 42393/98). The case was about the elementary school teacher Lucia Dahlab, who had worn a headscarf while teaching for several years before the school inspector’s office forbade her to do so. The tone of the judgment is consonant with the signals sent out at the national level as discussed above: It is permissible to prohibit the use of the headscarf as it could have a negative influence on the children (four- to eight-year-olds in this case) in terms of their freedom of religion. What the judgment also conveys indirectly, however, is a certain perception of the headscarf and its role; the judgement suggests en passant that a mandatory requirement to wear a headscarf is incompatible with the principle of gender equality and that wearing the Muslim headscarf is inconsistent with the message of tolerance.
Four years later the European Court of Human Rights was confronted with the question whether students could be forbidden to wear the Muslim headscarf (Sahin v. Turkey, 44774/98). Leyla Sahin was student of medicine in Istanbul who decided to stop studying there and finished her course in Vienna instead. The reason for this (doubtless costly) move was the reintroduction of a headscarf ban at the University of Istanbul. The court seems to have been at pains to lay down the law in Turkey as little as possible and to leave enough room for manoeuvre in this delicate question. The strict principle of laicism in Turkey and the fear of radical Islam there (“extremist political movements … which sought to impose on society as a whole their religious symbols and conception of a society founded on religious precepts”) are two continuous leitmotifs of the case, which was heard in both chambers in Strasbourg. That has led some commentators to conclude that the judgment cannot serve as a general precedent as it relates to the specific (and strongly secular) constitutional situation in Turkey. It is nevertheless surprising that the critical assessment of the headscarf in the ruling on the case of Lucia Dahlab should ultimately resurface with so little ado in the case of Leyla Sahin. After all this case is not about the headscarf worn by a teacher but by a student, who is not a representative of the state and unlikely to influence her fellow students – who are adults and not four-year-old children – in their religious development.
Excursus: minarets as headdress for mosques
On the first Sunday in Advent in 2009, 57 percent of the Swiss electorate voted in a referendum for a constitutional ban on the construction of minarets. The size of the majority came as a surprise and triggered shock in some Swiss and jubilation in others depending on their political leanings. Cultural historians are already talking of a cultural sea change and political scientists of bandwagon effects in Europe. The Danish People’s Party, the Dutch Party for Freedom and the Belgian Vlaams Belang, for example, have all signalled their intention to launch similar initiatives, while German groups like Pro Köln and Pro NRW are talking about electoral campaigns “on the Swiss model”. The chairman of the Austrian FPÖ also expressed delight at the result. He felt that the Swiss had “sent out a clear signal against radical Islamism” and described Switzerland as a model for Austria to adopt in order to protect and maintain its western Christian heritage. Similarly, in France there has been a revival of the burqa ban debate. In Austria, a poll conducted on behalf of a national newspaper showed that 53 percent of the Austrian population would support such a proposal. All this means that we can expect a phase of more intensive and fiercer dispute.
In this case, as in so many others, calm juridical analysis can help to shed light on the dark. It must first of all be stressed that the Swiss ban does not refer to the construction of mosques themselves and does not limit religious freedom in the country; it is only the addition of minarets that will be affected. But in fact the majority of the thousands of mosques to be found in the EU today do not have a minaret. In Germany only 160 mosques have minarets, in Switzerland four and in Austria three. The question of a ban on minarets is therefore more about equal rights: Why should minarets be forbidden and church towers and spires not? A frequent argument in this context is that the minaret is there for the muezzin, with the help of loudspeakers, to disturb the neighbourhood with his jarring call to prayer five times a day. Of course, that is not borne out by reality. In most cases a compromise has been found. The tower of the minaret in Telfs in the Austrian Tyrol, for example, is not a minaret at all; it is a prayer tower without a muezzin. In any case, Muslims are being increasingly called to prayer, not by a muezzin, but by a text message on their mobile phones. The mosque recently opened in Bad Vöslau in Lower Austria had its minaret considerably downsized in the planning phase. The situation is similar in Germany, where guidelines were adopted a few years ago for the construction of mosques in order to ensure that the local population is involved in the planning process at as early a date as possible. The real problem is not the minaret as “a source of immissions in neighbour law” (which could be easily resolved in a rational dialogue on the basis of standard building approvals procedures). What it is really about is the perception of the minaret as a symbol of the Muslim claim to power. Sultan Mehmed II was quick to convert the Christian Hagia Sophia into a mosque as a symbol of the new regime in 1453, and the addition of minarets to what had been churches in the Balkans was naturally part of a Medieval power symbolism. But the converse also applies: The victorious Spaniards transformed the Arab minarets into belfries, and the Albanians took revenge at Kosovo Polje with mindless devastation of the churches there. The contention that a minaret represents a claim to power with the aim of displacing the host culture is neither tenable nor useful. And a juridical approach involving stricter building regulations for minarets than for structures of other religions is equally problematical as it is lacking in legality based on human rights. Even the neutrally formulated changes made in 2008 to the building codes of the Austrian provinces of Vorarlberg and Carinthia, which provide for stricter conditions to be imposed on “buildings used for events attracting large numbers of people” and “buildings of an unusual design or size (height)” can only be in conformity with human rights if they do not cause indirect discrimination (→ Discrimination). What is really unacceptable is the poor argument that the construction of minarets should be forbidden in Europe for as long as the construction of churches is prevented in Arab or Muslim countries. If European standards of protection for minorities and human rights were to be based on the eye-for-an-eye mentality, Europe would quickly find itself at the bottom of the human rights table.
In general it is clear that direct democracy as a purely majority-based system cannot be a suitable instrument for the protection of standards in minority law. In this context it is worth quoting the remarkable comment produced by the Governor of the Austrian province of Carinthia in 2006: “The rule of law is one thing, the sound instincts of the people another” (the quoted politician appears to identify with the latter rather than the former). In addition, the mechanisms of direct democracy also have a tendency to leave the electorate side-tracked. In the case of the negative referenda in France, Ireland and the Netherlands on the proposed changes to the EU treaties, for example, a number of issues decisively influenced the outcome that were unconnected with the question put to the people. With regard to the Swiss minaret referendum, too, it can be assumed that emotional factors were very prominent. Switzerland had previously found itself with its back to the wall on a number of international issues. The international community was exerting increasing pressure on the sacrosanct subject of banking secrecy, and in September 2009 the then Libyan President had submitted an official proposal to the UN General Assembly for Switzerland to be dissolved and its territory divided up among its neighbours. Against such a backcloth, a general debate on the risk of being overwhelmed by growing numbers of radical immigrants is bound to bear fruit, all the more so when the government and the country’s intellectuals offer no alternatives to the troublemakers’ claims. The fact remains, however, that Switzerland’s approximately 330,000 Muslims (4.3% of the population) are mostly from the West Balkans, which is known to be a moderate region, and are anything but radical Islamists.
What is clearly contrary to the most basic principles of human and minority rights is a policy in which immigrants are only accepted on equal terms when they are no longer recognisable as such, i.e. when they have been forced to assimilate. The debate about minarets and dress codes suggests that only an invisible Muslim can be a good Muslim, someone who prays where there is no tower on the roof and has a wife with no scarf on her head. Such demands cannot be implemented by force, at least not without turning our backs on the principles of human rights. The discussion is galloping in the wrong direction. What must be required of the Muslims – clearly and consistently – is respect for the fundamental values of human rights and the rule of law. But where our contribution to the dialogue with Islam reveals ignorance of our own values, we undermine our own negotiating position and damage our own case. Such problems as ideologised religious teachers, forced marriage, genital mutilation, preachers of hate and much else must be verbalised emphatically, but only from a position of strength based on full respect for our own western values.
The controversial cross
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Back to the state schools: The question here is not only whether teachers (and pupils) should be permitted to indicate their religious affiliations through their mode of dress. Europe’s state schools are also at the centre of another debate: whether the cross or crucifix hung on the walls of classrooms is to be seen as a religious statement and whether such a public confession of faith is legally acceptable in the school environment. Although non-Christian pupils cannot be excused from seeing the classroom crosses in the same way as they can be excused from school prayers, no-one seemed to have a problem with the situation for many years. But then it became a big one. In Switzerland a school regulation issued by the municipality of Cadro in the Canton Ticino was challenged at the end of the 1980s, and the administrative court declared the municipal regulation null and void. The cantonal authority lodged an appeal against the ruling with the Swiss Federal Council, claiming that the crucifix did not constitute a religious message but was merely a symbol of the values underlying the Swiss constitution. The argument was accepted by the Federal Council, which ruled that the mandatory cross or crucifix was legal. As in the case of the headscarf, people’s views of the cross depend on whether it is seen as a purely cultural item or as an expression of religious faith. The suggestion that the crucifix can be reduced to a cultural artefact or the mere symbol of (an alleged) national identity is controversial, however. The case was finally referred to the Swiss Federal Court, which concluded that the state as guarantor for the “confessional neutrality of schools … cannot assume the authority to clearly demonstrate its own ties with one confession”.
A similar conclusion was drawn in 1995 by the German Federal Constitutional Court in its ruling – often referred to as the “crucifix decision” – on the subject of Bavaria’s primary school regulations. The Bavarian Administrative Court had argued that the crucifix was a “standard item of western Christian culture” and that the state’s decision to teach children in the presence of this symbol was not unreasonable for non-Christians. The German Supreme Court took a different view on the grounds that the crucifix was an expression of a certain religious conviction and its presence in a building must be interpreted as an enhanced confession of Christian faith on the part of the building’s owner. To the argument that the mandatory crucifix in state schools could be justified in terms of the positive freedom of religion enjoyed by Christian parents, the Constitutional Court responded as follows: “Positive freedom of religion is a right of all parents and pupils, not just Christians. The resulting conflict cannot be settled on the basis of the principle of majority decisions as the fundamental right to religious freedom is one that is specifically intended to protect the rights of minorities.” Bavaria was not very happy with the decision and the mandatory crucifix was enshrined in law at the end of 1999. A new complaint was rejected by the Bavarian Administrative Court in the same year on the grounds that the new law provided for a reconciliation procedure where the obligatory presence of the crucifix could be contested by parents or guardians “for serious and understandable reasons of faith or ideology”.
The crucifix debate came to a juridical climax with a ruling of the European Court of Human Rights in Strasbourg in November 2009 (→ Organisations) in a case relating to the Finnish-born Italian Soile Lautsi, whose children Dataico (11) and Sami Albert (13) were at school in the Veneto region of Italy. She petitioned the Italian courts to rule against the admissibility of crucifixes in her children’s classrooms (a normal feature of Italian schools) but was unsuccessful. The supreme court of the Council of Europe, however, ruled in a unanimous decision that the mandatory cross or crucifix in state schools was illegal (Lautsi v. Italy, 30814/06). Unlike the Italian government, the European Court of Human Rights saw a clear religious message in the crucifix and said that the children would recognise that they were at school in an institution that confessed a certain religion (the majority religion). According to the court, that may be motivating for some pupils, but it will also be disturbing for others, especially those belonging to a religious minority. As was to be expected, that triggered a wave of political wrath in Italy. The Italian authorities, who describe the crucifix as an expression of Italian culture and identity and even as a symbol of the country’s secularism, immediately appealed the ruling. The case was then discussed in the Grand Chamber of the European Court of Human Rights, which came in March 2011to another, now final, conclusion. The final judgment clarified that, in deciding to keep crucifixes in the classrooms of the State school, the authorities were acting within the limits of the margin of appreciation left to the States. And in general, the Court underlined the fact that the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State, one argument being that “there is no European consensus on the question of the presence of religious symbols in State schools”. The Court identified the crucifix as “a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity”. However, the Court continued, a compulsory crucifix in public schools does not automatically result in a process of indoctrination (which indeed would be illegal under the requirements of Article 2 of Protocol No. 1 of the ECHR). To that extent the Court seems to perceive a (Catholic) crucifix on the wall as being less intrusive than a (Islamic) veil on the head of a teacher.
Ultimately, therefore, European fundamental rights standards do not lead to “crucifix-free” public schools. The Court stressed that the decision “whether or not to perpetuate a tradition falls in principle within the margin of appreciation” of the States since “Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development”. However, it should be added that the Court explicitly referred to the commitment of the Italian government to allow pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation and to provide for alternative arrangements to help schooling fit in with non-majority religious practices. Even if compulsory Catholic crucifixes are legal, it also remains a legal requirement that authorities guarantee tolerance of pupils who believe in other religions, are non-believers or hold non-religious philosophical convictions.
Do we want a religion-free public zone?
What we are seeing in connection with scarves on teachers’ heads and crosses on classroom walls is a fight for the prerogative of interpretation. Those who would ban the headscarf from the classroom see it as a missionising tool or at least as a religious symbol. The same applies to the cross or crucifix: Those who wish to keep it in the classrooms argue that it is not a symbol of Christianity as much as an organically developed expression of the identity of the country concerned. How plausible these interpretations are is not to be debated here. The real question is whether state neutrality really can only be achieved by banning all religions from the public space. Whereas cases like the above first decision by the European Court in the case of Lautsi pointed in that direction, the Grand Chamber judgment in the same case allows for more leeway for the States. This approach however again bears the risk that certain traditional majority religions are accorded cemented privileged positions vis-à-vis newer minority religions. In order to avoid such a tendency, state neutrality could also be demonstrated by offering all religions equal access to the public space. Instead of either simply banishing all religious signs from public schools or reserving the walls only to the sign of the dominant religion, it would make sense to have symbols on the classroom walls of all the religions that are relevant for the individual school community. This approach would be in keeping with the EU’s principle of subsidiarity in that it would ensure maximum flexibility for the state authorities and the lower-level bodies like school authorities, whose task it would be to identify the relevant religious symbols for the school or class concerned. The solution would also avoid the imputation that states have a selective view on religion (namely ignoring minority religions) or follow a dogma of irreligion (namely banning all religion from the public space) . Tolerance in the context of diversity can only be learnt where diversity is not denied but is co-managed by the state. The classroom is a good place to start.
Three take aways:
- It appears amongst the EU population the role of institution-based religious belief is losing ground and/or being increasingly replaced by forms of individualised faith. However, there are huge differences between the various Member States.
- The Muslim presence in the EU is a product of migration, and the Muslims – in comparison with the majority population – are religious. In addition, the EU’s estimated fifteen million Muslims are concentrated in just a few Member States and in just a few cities. Immigration of a significant number of persons from another culture reveals the cultural shadow cast by many of the legal norms of the receiving country. Norms which hitherto have been neutral, suddenly penalise a part of the population. This is particularly clear with regard to religion. The Muslim headscarf has been banned from the classroom in state schools in rulings at the national and European levels that cite the risk of a one-sided influence on the pupils.
- In the same context, there is major resistance against taking down the Christian cross from walls in public schools. What remains is the question whether state neutrality cannot also be protected by offering space in the classroom to all relevant religions. That would help transform the public space into a practice ground for intercultural communication, something that is increasingly needed in today’s societies. The latest referendum in Switzerland is symptomatic of a debate on migration in which time and credibility are wasted on the wrong topics. Instead of polluting the climate with calls for assimilation deriving from a diffuse angst, it would be better to enter into a self-confident debate on values.