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Is the crucifix in the classroom a neutral symbol or a religious symbol that harms the secularity of the school and the rights of the non-believing worker, which by law should operate in a secular context? Is any mediation possible? The important disposition of the Cassation civilization. Work section, Ord., 09-18-2020, n. 19618, with which the question is referred to the United Sections for a definitive disposition in this regard.
The fact
A teacher was punished with the disciplinary sanction of suspension of teaching for thirty days, since, fundamentally invoking the freedom of teaching and conscience in religious matters, he had systematically eliminated the symbol before starting the lesson, replacing it in its place only at the end of it.
The ECHR on religious symbols
The Supreme Court recalls that the ECHR intervened in the sense attributed to the display of the crucifix in classrooms that, with the decision of the Grand Chamber of 18.3.2011, Lautsi and others against Italy, annulled the conclusions reached by a Chamber of the same Court, after having recognized the religious value of the symbol as well as the divergent positions adopted in this regard by the Council of State and the Court of Cassation (point 68 of the judgment), excluded the alleged violation of art. 9 of the Convention because the mere exhibition of an “essentially passive symbol” does not give rise to the violation of the principle of neutrality of the State and the exhibition, which must be “relativized”, cannot be recognized as an influence on the education of students comparable to that of a didactic speech or participation in religious activities when the State itself does not assume any intolerant behavior towards students who adhere to other religious beliefs.
The relationship between the crucifix and the lay teacher has not been fully addressed by jurisprudence.
The judges point out that “in this case the value of the symbol is highlighted in relation not to the user of the service but to the subject who is called upon to perform the educational function, so the supposed” passive role “could be doubted if all The display of the symbol was attributed to the meaning of highlighting a close connection between the function exercised and the foundational values of the religious belief that this symbol recalls; Although the case highlighted here cannot be superimposed on that examined by the European judge, however could argue that the display of the crucifix, provided that the particular meaning discussed above is linked to it – in the previous points, the non-believing teacher or the teacher adhering to a religious belief other than the Catholic, in a disadvantageous situation compared to the teacher who adheres to that belief, because only the former is forced to carry out teaching in the name of non-shared values, with the consequent e violation of that freedom of conscience that the employer is obliged to safeguard whenever the service can be profitably provided in different ways, which that freedom guarantees. In this sense, there are precedents in administrative jurisprudence (TAR Brescia n. 603/2006) and this is the solution adopted in another legal system of the European Union (Bavarian Law December 23, 1995, art.7) that, precisely, due to the characteristics of the school community, it has been considered necessary to assess, in terms of the display of religious symbols, the will expressed by the majority of students, parents and teachers ”.
The principles affirmed by the Constitutional Court on the crucifix
The magistrates always point out that “to this thesis, however, it could be objected that the solution ends up being contrasted with the principles affirmed by the Constitutional Court according to which, in matters of religion, importance cannot be attributed to the quantitative criterion, because the” equal protection of the conscience of each person who recognizes himself in a faith, whatever the religious confession to which he belongs “(Constitutional Court n. 440/1995 recalled by the Constitutional Court n. 329/1997), with the consequence of that the conflict between the will expressed by the students and that of the teacher that is not recognized in the symbol must be resolved by promoting the principle of the secular state, to be understood in the terms indicated above, which implies the impossibility of discriminating between the different religions and between believers and non-believers. “
The United Sections will decide on the legitimacy of the crucifix in the courtroom
The judges conclude, accepting the critical questions as effectively raised by the defensive party, “on the other hand, and the question also reveals for the purposes of the investigation that the antidiscrimination law requires about the suitability of the means used with respect to the end pursued, You can ask if, at the will expressed by the majority of the students and the contrary requirement made explicit by the teacher, However, the display of the symbol was necessary or if a mediation between the conflicting freedoms could not be achieved, allowing, in the name of pluralism, precisely that conduct of momentary suppression of the symbol whose legitimacy is discussed here, set in motion by the plaintiff on the assumption that it constituted a legitimate exercise of the power of self-protection; In conclusion, the Board considers that, due to the nature of the rights raised, the issues raised by the appeal go back to those “of utmost importance” under art. 374 cpc, paragraph 2, and that therefore the documents should be transmitted to the First President for possible assignment to the United Sections.
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