Religion & Law

MOJ readers are probably familiar with Aidan O'Neill and his work.  He was kind enough to send me, a few days ago, some thoughts of his regarding the recent decision by the European Court of Human Rights in Lautsi v. Italy.  In that case, the Court ruled that the Italian requirement that crucifixes be hung on the walls of classrooms (quoting O'Neill)"violated the right of parents to educate their children in conformity with their own religious and philosophical convictions, and the right of their children to believe or not to believe."  He writes:

In making these broad claims in the context of this ruling, the European Court would appear to be committing itself to the claim that that not only is a strict reparation of Church and State permitted under the European Convention but it is actually required by it. Such a claim can certainly not be justified by the plain text of the Convention.   It appears to owe more to United States Supreme Court jurisprudence on the separation of Church and State.   But this case law is based on the text of American Constitution?s First Amendment?s requirement that ?Congress shall make no law respecting the establishment of religion?.  This clause has resulted in a seemingly endless line of court cases on such issues as: whether nativity scenes, or the text of the Ten Commandments, can lawfully be displayed on State owned property; or whether prayers can be said, or oaths of allegiance recited, in public schools.    .  To apply such an American separationist analysis within a European context simply does not do justice to the wholly different understandings of the proper relationship between religion and the State which have historically existed among the countries of Europe; where, indeed, religious establishment has been the norm.

Thoughts?