The Lautsi Decision and the American Establishment Clause Experience: A Response to Professor Weiler

12 Pages Posted: 3 Jul 2015

See all articles by William P. Marshall

William P. Marshall

University of North Carolina School of Law

Date Written: June 30, 2013

Abstract

In Lautsi v. Italy, the European Court of Human Rights (“ECHR”) held that an Italian law requiring crucifixes to be displayed in public school classrooms did not violate the European Convention on Human Rights (“European Convention”). In so holding, the ECHR sent the message that it would not incorporate American nonestablishment norms into its interpretation of the European Convention.

The key advocate behind the Lautsi decision was Professor Joseph Weiler. Representing the nations intervening in the case on behalf of Italy, Professor Weiler took the lead in arguing against a strict nonestablishment interpretation of the European Convention — the position that the Lautsi Court subsequently adopted. Few persons, therefore, are as qualified as Professor Weiler to address the issues raised by the Lautsi decision.

Professor Weiler's advocacy and his subsequent victory in Lautsi profoundly reject importing American style nonestablishment law into the European Convention on Human Rights. There is much to be said for this position. One could learn much by negative example from the American nonestablishment experience. Nonestablishment doctrine is incoherent, it cannot be rigidly enforced without doing damage to other important interests, and, as Weiler has powerfully argued, one of the major foundational arguments advanced in its behalf, its purported neutrality, is not even accurate. Nonetheless, there are serious reasons for caution before too quickly following the path that Professor Weiler asks us to follow. The nonestablishment principle does not, as Weiler suggests, subordinate religion to a dominant secularism. Rather, it protects religion from external corruptions. More importantly, nonestablishment removes from political contest any efforts by religion to gain state imprimatur. As such, it offers a major advancement for avoiding the type of religious strife that has long plagued the European continent.

I am not an authority on the European Convention and cannot offer any opinion as to whether or not Lautsi was correctly decided under that Treaty. But the Lautsi decision raises a number of issues that also are present in American Establishment Clause jurisprudence, and it is from that perspective that I will attempt to offer some insight. After Part I’s introduction, Part II looks to American Establishment Clause jurisprudence for reasons that support Professor Weiler's position against a strict nonestablishment mandate. Part III presents some of the insights from Establishment Clause jurisprudence that militates against Professor Weiler's approach. Part IV offers a brief conclusion.

Suggested Citation

Marshall, William P., The Lautsi Decision and the American Establishment Clause Experience: A Response to Professor Weiler (June 30, 2013). 65 ME. L. REV. 769 (2013), Available at SSRN: https://ssrn.com/abstract=2625674

William P. Marshall (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-843-7747 (Phone)
919-962-1277 (Fax)

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
64
Abstract Views
2,152
Rank
623,067
PlumX Metrics