De-Christianizing Europe?

Italy vs. the Cross

by Neil Addison (Barrister)

National Director of Thomas More Legal Centre

A Crucifix Ban in Europe?

(POSTED 10/07/09 has been considering the implications of the Italian Crucifix case of Latusi v Italy, and Id like to add some brief words of perspective here from our side of the Atlantic.

As several press articles on this case have pointed out, the court did not expressly order the school to remove its Crucifix but this is only because the court does not have the power to make such orders.  It does, however, have the power to find a violation of the European Convention, which then forces the Italian government to report back to the Council of Europe exactly what it proposes to do in order to implement the court ruling, which, in this case, will mean removing crucifixes from classrooms, courts, public buildings etc.

Article 46 of the Convention states:

Binding force and execution of judgments
1 The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2 The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

If the judgment is not overturned on appeal then Italy has to report to the Council of Ministers of the Council of Europe what it is doing to implement the judgment.  It cannot simply ignore it unless it withdraws from the Council of Europe and the Convention itself, since the Charter of Rights in the new EU Constitution/Lisbon Treaty in effect incorporates European Convention on Human Rights into EU Law.

Italy would have to withdraw from the EU if it wanted to ignore the ruling and I do not foresee that happening.  Therefore unless the European Court of Human Rights overrules itself on appeal,  Italy and indeed the rest of Europe have a serious problem.  For example, in Greek and Cypriot schools it is common to see icons displayed.  Under this judgment those icons will have to be removed and so will, arguably, l all Christian images from public buildings throughout Europe. 

In the UK because of s2 of the Human Rights Act, the ruling has immediate effect as a binding precedent in UK law and I suspect we will shortly be hearing about public Christmas displays being forcibly removed, school Nativity plays being banned etc., by local authorities who will say they are acting in accordance with this Court ruling.  Judgments such as this tend to have a large degree of "mission creep" as they are implemented by public authorities.

However, I do wonder if perhaps this judgment may in time come to be seen as a European version of Dredd Scott i.e., a moment when the implications of a Court ruling are so significant and so contrary to public opinion that they lead to a public backlash. 

Remnant readers will be familiar with the 1857 Dred Scott case  when the US Supreme Court defended slavery to such an extent that, in effect, it extended slavery to the free as well as the slave states, which strengthened the abolitionist movement and is often cited as a leading cause of the American Civil War. 

I often refer to the Dred Scott case when arguing with my more "liberal" legal colleagues who simplistically believe that Supreme Courts are always filled with nice liberal types who will uniformly do the right thing.  They are not.  Judges are as prone to personal prejudices as anyone else, which is the danger of trying to use the courts to force change in society rather than relying on the slower processes of democracy, voting and debate.  If I can paraphrase Abraham Lincoln:

"We shall lie down pleasantly dreaming that the people of Europe are on the verge of becoming a multi-faith society, and we shall awake to the reality instead, that the European Court has made Europe a non-faith society"

The other danger here is the general effect of the law of unintended consequences as demonstrated by the decision of the Canadian Courts to extend the concept of marriage to same-sex unions, but, by redefining marriage in this way, inadvertently appear to have legalized polygamy. 

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