On March 18, the European Court of Human Rights ruled that the placement of crucifixes in Italian classrooms does not violate the human rights of Italian students. I wrote about this a while back, when a lower European court came to the opposite conclusion. Not being a legal scholar, my own sense that the final decision’s logic is slipshod may not carry much weight, so I’ll let Stanley Fish do the heavy lifting (just a note: my high school had a crucifix at the head of every classroom, and while I personally don’t feel worse for wear because of it, the statement such symbols make – remember who’s in charge here – is not lost on students). At a glance, Fish’s critique seems pretty well aimed, at least at the level of logic.
What I find interesting is what this decision says about the political position of the E.C.J., and E.U. institutions in general these days. I have to wonder whether the court would have been bolder in circumscribing the prerogatives of the Italian state had European unity not taken such a public beating lately. At first glance, this seems like a tactical retreat away from Marbury, with the E.C.J. worried about the political consequences of intervening so forcefully at one of the main state-run sites of identity creation and reproduction. The problem with the law, though, is that precedents get set and actually kind of matter. Tactical retreats can quickly morph into full-scale strategic withdrawals.