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. They 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, and I am humbled to share this forum with him. 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. The remainder of this Essay is devoted to this project. Part II looks to American Establishment Clause jurisprudence for reasons that support Professor Weiler’ position against a strict nonestablishment Clause jurisprudence that Part III presents some of the insights from the Establishment Clause jurisprudence that militates against Professor Weiler’s approach. Part IV offers a brief conclusion.
William P. Marshall,
The Lautsi Decision and the American Establishment Clause Experience: A Response to Professor Weiler,
Me. L. Rev.
Available at: http://digitalcommons.mainelaw.maine.edu/mlr/vol65/iss2/21