Shifting Visions of Indoctrination and the Margin of Appreciation Left to States

Abstract

The Lautsi case turns around the question whether having a crucifix in classrooms of state schools violate state duties to respect parents’ religious and philosophical convictions in relation to education and to teaching (article 2, protocol no 1) and the freedom of religion of parents and pupils (article 9). Striking about Lautsi is that it gave rise to two judgments of the European Court on Human Rights, with radically different evaluations and outcomes: the Chamber decided unanimously that the Convention was violated, while 15 out of 17 judges of the Grand Chamber concluded it was not. The following analysis will demonstrate that the different outcome can be explained by a radically different starting point of analysis, which impacts on the interpretation of the relevant criteria and the evaluation of the facts. In the end the two Lautsi judgments signal shifting visions on the margin of appreciation (in the educational sphere). This needs to be explained in the broader framework of the Court’s doctrine of the margin of appreciation (left to the contracting state parties) and its jurisprudence under article 2 of the first additional protocol. Indeed, while the applicants invoke both article 9 and article 2 of protocol 1, the Court focuses its analysis on the latter article, since this constitutes the lex specialis of article 9 for the parent. At the same time it underscores the need for a holistic reading of the Convention and thus to take into account article 9 and the state duties of neutrality and impartiality in religious matters it enshrines.

Keywords: margin of appreciation; respect for parents’ religious and philosophical convictions; indoctrination; risk