Far be it from me to presume to speak on the particulars of European church-state law (it's all I can do to try and keep up with religious liberty development in American courts), but I couldn't help notice Friday's Wall Street Journal op-ed by the Becket Fund's Luke Goodrich, decrying a recent spate of decisions by the European Court of Human Rights that have been disallowing all manner of religious symbols and expressions in state-run schools. Specifically, a ruling striking down Italy's law that would place a crucifix in each classroom is presented alongside others denying the right of students to wear religiously mandated clothing as being examples of the court's hostility to religion.
The common theme in these cases is that the Court views religious expression as a threat to a free, democratic society. In the Turkish Muslim case, the Court justified the headscarf ban on the ground that it was necessary to protect the public order and the freedom of others. Specifically, allowing a student to wear a headscarf would threaten Turkey's commitment to secularism, make other students uncomfortable, and undermine the principle of gender equality. The same arguments (minus gender equality) justified the French ban on the Sikh keski.
Similarly, in the Italian crucifix case, the Court rejected the notion, advanced by Italy, that the crucifix was a symbol of Italian history, identity, and culture and thus furthered the principles of equality, liberty, and tolerance. Rather, in the Court's view, the presence of a crucifix in a state classroom would be "disturbing" to atheists and religious minorities.
I share Goodrich's concern over restrictions on student freedoms, especially when it comes to merely wearing articles certain articles of clothing. A strict abandon-your-religion-at-the-door approach is offensive and unworkable for students of many faiths. I do, however, think he sidesteps an important distinction when it comes to the Italian crucifix case: there, the expression being curtailed is not a student's – or even an individual's – but that of government. Measures promoting the state's religious expression (if expression is even the word for it), may very well pose a "threat to a free, democratic society."
It's the religious expression of the individuals within the state that needs protection, and should be the enduring cause of the fight for religious liberty, at home and around the world. The European Court does a disservice to that cause by equating efforts to limit state-sponsored religion with efforts to limit citizen expression. Equating them from the opposite perspective is also a mistake.
