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Saturday, May 29, 2010

A cross too burdensome to bear?

A cross too burdensome to bear?

Ian Parker Joseph asked: Would you like to have a go at interpreting this ruling?

I like a challenge, even though I have no interest in religion and it is not really my area of law.

“The European Court of Human Rights shouldn’t overstep its authority and force a member nation to abandon traditions and beliefs that it has a sovereign right to protect if it so chooses,” said European-based ADF Legal Counsel Roger Kiska.

“An outside judicial body demanding that a nation must forsake and discontinue how it handles millennia-old traditions is a step towards an authoritarian system that no country anywhere on the globe should welcome,” contends Kiska. “The MEPs are encouraged that they will be able to submit their views to the court and defend the rights of all sovereign European member states over such matters.”

I detect a flaw in the logic of this argument.

However, I can also see flawed reasoning in the Court’s decision.

In 2009 the ECHR unanimously agreed with Lautsi’s argument saying that the “presence of the crucifix – which it was impossible not to notice in the classrooms – could easily be interpreted by pupils of all ages as a religious sign and they would feel that they were being educated in a school environment bearing the stamp of a given religion.” The court found: “The compulsory display of a symbol of a given confession in premises used by the public authorities, and especially in classrooms, thus restricted the right of parents to educate their children in conformity with their convictions, and the right of children to believe or not to believe.”

The European Convention is clear; the decision of the Court is final. Member States of the Council of Europe and EU have agreed this position; therefore it is difficult to see how the Court can overstep its authority. The Court has absolute jurisdiction. The buck has to stop somewhere. Two different parties take their differences for arbitration to the highest court in Europe. In this legal battle there will be a winner and loser. Now there is a provision to appeal the Chamber decision to the Grand Chamber.

I detect similarities in this case with another case, also about a cross – but in this case it is a cross on a ballot paper that is the issue. In both cases it was argued that the Chamber reached the wrong decision. Some of the points and principles are the same. By joining the Council of Europe and EU, Member States surrender part of their sovereignty. No longer totally independent but part of a union. Shared values, common purpose. In a sense, Italy and the UK disappear within the European State. Even when the UK lost its appeal to the Grand Chamber, it was said that the UK disagreed and simply ignored the decision. A clear distinction between theory and practice emerges. Furthermore, the challenge goes from the legal to the political arena.

I accept that a crucifix is a religious symbol. However, in my view, it does not follow that children necessarily “would feel that they were being educated in a school environment bearing the stamp of a given religion” just because of the presence of a cross. That’s a bit like saying a hotel is religious just because there maybe a Gideon’s Bible in the bedside table drawer. On the other hand, if the teaching at a school, for example, engaged in Bible thumping then this would be a stronger sign than a crucifix. I have worn a crucifix not because of religion but simply because I liked the design and it said “Sterling Silver” on the reverse.

There have been legal and political developments in Europe recently. The Interlaken Conference in February, and ratification of Protocol 14 of the Lisbon Treaty by Russia. The Court and Council of Europe felt threatened and were granted new powers. These come into force on 1 June 2010. The Conference referred to the need to make more use of the subsidiarity principle. And, Member States were required to re-affirm their commitments to abide by the Convention and Court decisions.

This post is just to highlight a few points and recent developments which need to be taken into account when considering a Court decision. The next post on this topic will examine the judgment and Court case-law on the subject.

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