Crucifixes and Diversity: The Odd Couple
By STANLEY FISHStanley Fish on education, law and society.
Tags:
In these columns I have often remarked that religion-clause jurisprudence is characterized by contortions that would be the envy of Houdini. But nothing in American jurisprudence is as contorted in its reasoning as a recent decision (Lautsi and Others v. Italy, March 18) by the European Court of Human Rights.
The question at issue was whether an Italian law requiring the placing of crucifixes in public classrooms violates a clause of the European Convention On Human Rights that recognizes “the right of parents to ensure … education and teaching in conformity with their own religious and philosophical convictions.” Reversing the judgment of a lower chamber, the Grand Chamber by a vote of 15-2 answered no, it doesn’t.
Why not? First, because the crucifix is really not a religious symbol. (Who knew?) This counterintuitive conclusion is supported by three arguments, one plausible but flawed; one bizarre; and one beside the point.
The plausible but flawed argument is that in the long history of Italy, the crucifix has become a “historical and cultural” symbol that now possesses an “identity-linked” rather than an exclusively religious value. Furthermore, in its “identity-linking” guise, the crucifix stands for “the liberty and freedom of every person, the declaration of the right of man, and ultimately the modern secular state.”
That’s a little fast and claims too much. It may be the case that over the centuries the crucifix has become allied with secular values in the sense that the religion it represents no longer sets itself against them; but that doesn’t mean that the crucifix, especially when installed by law in state-administered classrooms, is no longer a Christian symbol and the bearer of a distinctly Christian message (salvation is by Christ and through the Church) non-believers might find uncomfortable and pressuring.
The Grand Chamber majority, however, takes care of that point in a way that is truly breathtaking. On top of declaring that the crucifix is not, or is not exclusively, a Christian symbol, it explains, in the course of rehearsing the holding of the Administrative Court, that Christianity is not really a religion (this is the bizarre argument), if by religion is meant a set of doctrinal tenets that the religionist is required to believe in and hearken to. To be sure, the majority acknowledges, that is the way religion is usually understood: “The logical mechanism of exclusion of the believer is inherent in any religious conviction.” But not in Christianity, said to be the “sole exception” because at the heart of it is the idea of charity, glossed as “respect for one’s fellow human beings.”
The Grand Chamber majority, however, takes care of that point in a way that is truly breathtaking. On top of declaring that the crucifix is not, or is not exclusively, a Christian symbol, it explains, in the course of rehearsing the holding of the Administrative Court, that Christianity is not really a religion (this is the bizarre argument), if by religion is meant a set of doctrinal tenets that the religionist is required to believe in and hearken to. To be sure, the majority acknowledges, that is the way religion is usually understood: “The logical mechanism of exclusion of the believer is inherent in any religious conviction.” But not in Christianity, said to be the “sole exception” because at the heart of it is the idea of charity, glossed as “respect for one’s fellow human beings.”
This respect or tolerance overrides any specifically religious doctrine, however central or basic. “In Christianity even the faith in an omniscient god is secondary in relation to charity” (again, who knew?); and because this is so, Christianity can not properly be understood as excluding anyone from its protection or its precincts. Therefore, the crucifix (the chain of reasoning is reaching its destination) is everyone’s symbol, says “welcome” to everyone, for it is “the universal sign of the acceptance of and respect for every human being as such.” Therefore, having crucifixes in the classroom is perfectly O.K. and should distress no one: “… beyond its religious meaning, the crucifix symbolized the principles and values which formed the foundation of democracy and western civilization, and…its presence in classrooms was justifiable on that account.”
What we have here is a union of bad argument and bad theology. As a Christian virtue, charity presupposes the God it is said by the majority to transcend. God commands us to love him and love our neighbors for his sake; it is as fallible creatures and not as free-standing liberal individuals that we are the recipients and givers of charity. Respect for one’s fellow human beings as an abstract thing has nothing to do with it; belief in the power and benevolence of a savior who paid the price of man’s sins has everything to do with it. The situation with respect to salvation of those who do not acknowledge and depend upon this benevolence, who are not born again, has always been a matter of debate in Christian theology and remains so today. Generous though it may be in many respects, Christianity is hard-edged at its doctrinal center and that center is what the crucifix speaks.
No it doesn’t, says the majority in another argument, the beside-the-point one. It is a theoretical argument: as a symbol, the crucifix “may have various meanings and serve various purposes” and “could be interpreted differently from one person to another.” Yes, but the general availability of symbols to interpretation says nothing about the interpretation a particular symbol is likely to receive in a particular situation. The question is not what can a crucifix possibly mean in all the settings the world might offer, but what does it in mean in this setting, hanging on the wall of every classroom with a state imprimatur? What is a non-Christian student likely to think — “Aha, a symbol of pluralism and universal acceptance” or “I get it; this is a Catholic space and I’m here on sufferance?” Courts are supposed to apply legal principles to disputed matters of fact, not bypass the dispute (and the law) by invoking a theory of language.
Nor are courts supposed to take polls. The government had argued that because a majority of parents “wanted crucifixes to be kept in the classrooms,” removing them would amount to subjecting the majority to abuse by the minority. Concurring Judge Giovanni Bonello agrees and imagines the ratio of preference to be 29 to 1. “No one,” he declares, “has so far suggested any reason why the will of the parents of one pupil should prevail, and that of the parents of the other twenty-nine pupils should founder.” Again, the wrong question. The right one is which parents have the law on their side, no matter how many or how few they are. Deciding the case by numbers is no better than deciding the case by an assertion of interpretive fecundity; both strategies displace the legal issues by abandoning the law for foreign disciplines, social-science survey research in one case, literary theory in the other.
The majority does have one argument that addresses the issue of record: are the students in these classrooms being intimidated or made to feel excluded? Exclusion would be the result, we are told, if the students had been the objects of indoctrination, but because the crucifixes just hang there without saying anything, they were not: “[A] crucifix on a wall is an essentially passive symbol” and “it cannot be deemed to have an influence on pupils comparable to that of didactic speech.” Judge Bonello glosses and drives home the point: “The mere display of a voiceless testimonial of a historical symbol … in no away amounts to teaching.” Actually, it does: the lesson (of official authority) is enhanced by not being voiced; the absence of didactic speech itself says “you don’t have to be told what this means; you know.” The effect is the one produced in a country where a king or leader-for-life has his picture hung everywhere. Nothing need be said.
So we have the plausible-but-flawed argument (the crucifix is a symbol of democracy and national unity), the bizarre argument (the crucifix is a symbol of Christianity, but Christianity is not a religion), the theoretical-and-therefore-irrelevant argument (a crucifix can mean many things) and the empirically unpersuasive argument (because crucifixes don’t come with voice boxes, they communicate no active message). There remains only the argument from desperation offered by concurring Judge Ann Power: removing crucifixes from classrooms would diminish diversity and tolerance. (Huh?) Here’s how it goes: diversity and tolerance require that students be introduced to as many points of view as possible; the crucifix on a classroom wall “presents yet another and a different world view”; were the crucifixes to be taken down there would be one less perspective to which students were exposed and they would therefore be deprived of “the opportunity to learn… respect for diversity.”
But this line of reasoning works only if the crucifix is just one among many indifferently authorized perspectives. As it stands now, however, the perspective represented by the crucifix has the state’s seal of approval; it’s not one among many or even first among equals; it’s the one schools must display, and its removal would not undermine diversity, but repudiate orthodoxy and conformity.
The majority’s response is that even though the crucifix’s place on the school-room wall is mandated, the schools are scrupulously tolerant of non-Christian and non-believing students; even “Islamic headscarves may be worn.” But this is apples and oranges. A student who wears a head scarf, Judge Giorgio Malinverni points out in dissent, is exercising “her own religious freedom.” The state, however, doesn’t have a religious freedom to exercise; “the public authorities cannot … invoke such a right” without infringing on “the principle of State denominational neutrality.” Crucifixes on the wall say this is what the state thinks about religion, and in the matter of religion, the state shouldn’t think anything.
If I may borrow the words of a former United States president, let me be perfectly clear. It is a matter of indifference to me whether there are crucifixes on the walls of public schools in Italy. Italy is not the United States and there may be good historical and cultural reasons to maintain the crucifixes, just as there are good historical and cultural reasons why the occasional suggestion that the words “In God We Trust” be removed from our coins has never gotten anywhere. I could easily see Italian courts acknowledging the secular basis of the state (as the majority opinion does), yet carving out an exception for crucifixes, as an exception for sacramental wine was carved out during prohibition. What bothers me is the spectacle of a court declaring with a straight face that the state-mandated display of crucifixes has nothing to do with religion or indoctrination, and supporting its conclusion with arguments that don’t pass the laugh-test for half a second.
