Article 9 of the European Convention on Human Rights (ECHR) grants the right to freedom of religion, which includes the freedom to “manifest” one’s religion or belief “in worship, teaching, practice and observance”. However, the European Court of Human Rights (ECtHR or “the Court”) grants a wide margin of appreciation to states in its article 9 case law on religious dress and symbols. This approach has led the Court to accept the argument made by a number of states that religious freedom may need to be restricted in order to promote democracy. This oxymoronic position implies that the Court does not consider religious freedom to be an indispensable aspect of democracy. This piece uses the Court’s case law to illustrate how such a deferential approach has largely immunised states from judicial oversight in the context of freedom of religion. The result is a curious position that allows individuals to be prohibited from wearing religious dress in the public sphere whilst states may freely display religious symbols in public institutions, all in the name of democracy.
THE INDIVIDUAL’S RIGHT TO WEAR RELIGIOUS DRESS
In the context of religious dress, the Court generally confers a wide margin of appreciation to states when they take measures to restrict freedom of religion in the name of promoting substantive conceptions of democracy. In Şahin v. Turkey, the applicant argued that Turkey had violated her right to education when it upheld a ban by a university on the wearing of the Islamic headscarf on its premises. The Court granted Turkey a wide margin of appreciation and acknowledged that the measure was a result of rampant concerns in Turkey about the purported growth of radical Islamism. It therefore found that the ban was “necessary in a democratic society” since pushing religion out of the public sphere by restricting the freedom to manifest one’s religion may mitigate certain risks associated with religious pluralism. Indeed, it is neither practically possible nor normatively appropriate for the Court to decide whether there exists a threat to national democracy; it is for domestic authorities to make such determinations and respond to such threats in a manner they deem appropriate.
The Sahin decision may be criticised on several grounds. Firstly, Judge Tulkens rightly argued in her dissenting opinion that the applicant’s individual right to wear religious dress cannot be trumped by a vague public interest in fighting extremism in the absence of concrete evidence that the applicant was a fundamentalist who wore the headscarf as a radical political symbol. Secondly, many have convincingly argued that the Islamic headscarf is not simply a religious symbol like the Christian crucifix or the Jewish Star of David, since its wearing is a religious requirement rather than a recommendation. Therefore, its wearing constitutes the practising of religion rather than its manifestation. This is important, as it is recommended that the practice of one’s religion be given greater weight in the Court’s article 9 proportionality analysis than its manifestation. Thirdly, this case is amongst many in which the Court has not only abandoned the view that religious freedom is an essential aspect of democracy but has also accepted the argument that religious freedom may itself threaten democracy. It illustrates that the Court is willing to endorse militant secularism which—contrary to the competing vision of secularism as inclusivity and state neutrality between different religions—describes a situation in which states actively push religion out of the public sphere. This altered conception of the relationship between the state and religion is regrettable in light of the increasingly anti-Islamic rhetoric that is gaining traction across Europe and, as Professor of Law Patrick Macklem argues, the growth of militant democracies that purport to protect civil and political freedoms by preemptively restricting their exercise.
These concerns are profound in S.A.S. v. France, where an applicant who regularly wore the burqa and niqab asked the Court to assess the French law that prohibited the concealment of one’s face in public places. The Court’s rejection of both gender equality and human dignity as the legitimate aims underlying the French policy is welcome since these arguments, which were accepted in Sahin v. Turkey, patronise those who wear Islamic dress and essentialise Islam as a religion that discriminates against women. The goal of public safety, while a legitimate aim, was not found to be proportionate to a blanket ban. The legitimate aim was found to be that of “living together,” which France argued referred to the democratic aims of fraternity and smooth social interaction. The Court expressly recognised that this was an ill-defined notion, which created a risk of abuse, calling for the “careful examination of the necessity of the impugned limitation”. However, it did not heed its own warning and granted France a wide margin of appreciation, largely because the law had been adopted following a democratic process. This reasoning is unconvincing since the Court had previously acknowledged in Young, James and Webster v. the UK that the democratic process does not per se justify restrictions being placed on the rights of minorities. Further, in X and Y v. the Netherlands, the Court had held that the margin of appreciation afforded to states ought to be narrow where the case concerns “fundamental values and essential aspects of private life,” which is certainly true of cases concerning the personal decision to wear religious dress. The wide margin granted is especially concerning since Islamophobic remarks had marked the debate that preceded the adoption of the French law—a fact noted by the Court itself. The Court therefore denied itself its counter-majoritarian role in subjecting political decisions to appropriate judicial scrutiny, even where a law evidently and disproportionately targeted a vulnerable community. By accepting France’s argument, the Court essentially held that the majority can force minorities to assimilate by conforming to its practices in the name of democracy. Moreover, it rejected the integrationist aims of religious pluralism that actually promote harmonious, tolerant and inclusive living in democratic societies.
Regrettably, the Court failed to recognise that France’s “living together” argument conveniently shields the fact that the law is based on religious discrimination. This is illustrated by the fact that people in France continue to wear non-religious clothing that conceals their faces such as scarves and fashionable headgear. Further, there is an element of racialisation in this vision of secularism as religious neutrality in the public sphere. It is primarily religions like Christianity that meet these requirements on account of being less ritualistic and based on practice, whereas religions like Islam, Judaism and Sikhism do not. However, even if one takes France’s argument at face value and agrees that Islamic dress that conceal the face impedes communication, it is bizarre to suggest that the state can compel people to communicate in the interests of promoting a democratic society. What if one is asocial and does not wish to communicate with people in the public sphere? What if one has a speech impairment and cannot therefore communicate effectively with most people in the public sphere? The dissenters, Judges Nußberger and Jäderblom, correctly stated that the right to private life includes the right not to communicate and the right to remain an outsider. Further, the pursuance of some goals may trump the advantages of effective communication. For instance, during the COVID-19 pandemic, the goal of protecting public health was perceived as outweighing any communicative inconveniences caused by the wearing of masks. Similarly, one may argue that the objectives pursued by the wearing of Islamic dress, be that religious reward or liberation from sexualisation, trump the general interest in communicating effectively in the public sphere.
THE STATE’S RIGHT TO DISPLAY RELIGIOUS SYMBOLS
In the context of religious symbols too, the Court has been willing to grant states a wide margin of appreciation such that it is very unlikely for any applicant to win their case. Lautsi v. Italy concerned an Italian law that necessitated crucifixes be displayed in classrooms of schools. The Court found that Italy enjoys a wide margin in deciding how to organise the school environment due to the diversity amongst nations concerning historical and cultural development. It held that the only limitation to the state’s freedom in doing so is that the state is forbidden from pursuing the aim of indoctrination, which is a high threshold. The Court frames the problem in unduly narrow terms by stating that the issue is not the compatibility of the presence of crucifixes in Italian classrooms with the principle of secularism. Rather, it views the competing interests as being that of the state in displaying religious symbols in classrooms and that of the parents in having their children be educated in accordance with their religious beliefs. In doing so, the Court demotes secularism from an essential feature of the democratic state that separates religion and the state to a matter of philosophical conviction.
Further, the Court’s statement that the crucifixes in question were passive symbols is entirely unconvincing. Firstly, the crucifix undoubtedly refers to the country’s majority religion of Catholicism, which already has great visibility in Italian society. Secondly, its presence in classrooms grants the religion preponderant visibility in schools that represent the authority of the state towards children in education and where pupils are meant to learn not only from their textbooks but also from their environment. Thirdly, children are particularly susceptible to being influenced especially since their convictions are not as well-developed. Taken together, this suggests that the presence of the crucifixes can have a great impact on the pupils’ conscience and beliefs. Moreover, it is contradictory for the Court to maintain that a state’s display of religious symbols in the public sphere is passive but an individual’s wearing of religious dress in the public sphere is not and can therefore be restricted. While the former can negatively impact democratic values by increasing the visibility of majority religions in the public sphere, the latter strengthens the democratic values of pluralism, tolerance, and inclusivity by allowing individuals to practice and manifest their religious convictions.
THE APPROPRIATE RELATIONSHIP BETWEEN RELIGION AND THE DEMOCRATIC STATE
It is regrettable that the Court does not conceive religious freedom as an essential aspect of democracy and views militant secularism as compatible with the European Convention on Human Rights. The wide margin of appreciation that the Court grants to states in the context of freedom of religion has significantly weakened the protections afforded by article 9. This reduced judicial oversight has supported the growth of militant democracies and the subjugation of minority religions. The Court cannot appropriately safeguard democracy unless it recognises that religious freedom is a prerequisite and that secularism is best understood as requiring state neutrality instead of individual neutrality. This entails that the state must not endorse any religious view whilst simultaneously protecting each individual’s right to practice and manifest any religion they desire.
Ananya graduated from LSE with First Class Honours in Law and the Dean’s Medal for Best Overall Performance on the LLB. She is due to begin the BCL at Oxford this year. Her research interests lie at the intersection of law, politics and economics.