Introduction
In March 2011, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the controversial case of Lautsi and Others v Italy.Footnote 1 Reversing the unanimous 2009 judgment of the Second Section of the Court, the Grand Chamber held that the mandatory display of crucifixes in Italian public schools did not violate the applicants’ rights to education (Article 2 of Protocol 1) and freedom of thought, conscience and religion (Article 9 ECHR). Lautsi complements the existing ECtHR jurisprudence on religious symbols in state schools and the broader public sphere in important ways: while the Court has on numerous occasions in the past pronounced on minority religious symbols – most prominently the Islamic headscarf – the crucifix in Lautsi represents Italy’s majority religion and thus directly engages the relationship between a country’s majoritarian religious culture and its national tradition. Not surprisingly, the reactions in Italy to the Second Section’s 2009 judgment were strong, with critics of the Court invoking Italy’s national religious heritage to justify a preferential treatment of Christianity by the Italian state.Footnote 2 While the Grand Chamber considered the crucifix ‘above all a religious symbol’, the Court also conceded the Italian government’s submission that it made part of Italy’s national tradition in that it ‘symbolised the principles and values which formed the foundation of democracy and Western civilisation’.Footnote 3 In this context, the Court noted that while ‘the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent state’, the invocation of a national tradition ‘cannot relieve the Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols’.Footnote 4 However, having regard to the diversity of national approaches to religion in the public sphere in Europe, the Grand Chamber concluded that the decision to require the display of crucifixes in public schools fell within Italy’s margin of appreciation.
This article places the Lautsi saga in the broader context of the relationship between religious and national diversities in European human rights jurisprudence. It argues that national-majoritarian models of social cohesion serve to justify the suppression of religious diversity within different European national traditions. At the same time, the absence of a consensus on the treatment of religious symbols in the public sphere between different European national traditions impedes an effective protection of religious pluralism at the European level. Accordingly, national and European approaches to religious pluralism and social cohesion prove mutually reinforcing in perpetuating national majoritarian traditions at the expense of protecting religious minorities, thus undermining the counter-majoritarian function of human rights protection.
Freedom of religion, in the words of the European Court of Human Rights (ECtHR), is ‘one of the foundations of a democratic society’. From the perspective of the individual, it embodies ‘one of the most vital elements that go to make up the identity of believers and their conceptions of life’; from the perspective of society as a whole, it protects ‘the pluralism indissociable from a democratic society, which has been dearly won over the centuries’.Footnote 5 The primary concern of this article is with the latter (societal) dimension of freedom of religion that emphasizes its communicative and public function in a pluralistic society over and above its personal and private function of protecting a space for individual self-fulfilment. From this perspective, the legal protection of the individual’s right to hold and manifest her beliefs is instrumental to sustaining a plurality of religious world-views in the democratic state. The ECtHR’s treatment of religious pluralism has a descriptive and a normative dimension: it acknowledges the fact that European societies have become increasingly religiously diverse; yet it also portrays religious diversity as something valuable and precious: religious diversity lies at the heart of pluralism that, in turn, is intrinsically tied to democracy.
However, the freedom to express one’s beliefs, and therewith the extent to which religious diversity may manifest itself in society, is not unlimited. To borrow once again from Kokkinakis v Greece, ‘in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected’.Footnote 6
Yet what exactly does ‘respecting everyone’s beliefs’ entail (the end of restricting freedom of religion), and how can it be ‘ensured’ (the means for restricting freedom of religion)? The article pursues these questions by focussing on one particular limitation of freedom of religion that is often justified on grounds of protecting ‘public morals’, ‘public order’, and ‘the rights and freedoms of others’ (Article 9(2) ECHR): social cohesion. It contends that national approaches to social cohesion display religious diversity as something troublesome and disruptive that needs to be contained. Accordingly, ‘respect’ for everyone’s belief is ensured through the (passive) disregard of religious minorities by, or their (active) assimilation to, Europe’s national majoritarian traditions.
The first section of the article explores the tension between religious pluralism and social cohesion in three different European national traditions. Comparing the regulation of the display of religious symbols in educational institutions and the broader public sphere in Germany, France, and the United Kingdom it suggests that, at the national level, concerns for social cohesion are fuelled by attitudes towards religious diversity that range from indifference to intolerance and that are difficult to reconcile with the normative premises of religious pluralism in a democratic society. The second section traces the relationship between religious pluralism and social cohesion in the case law of the ECtHR. The Court uses the absence of a uniform European conception of the role of religion in the public sphere as a pretext for granting national authorities a wide margin of appreciation in dealing with religious diversity. Such deference to diverse national interpretations of social cohesion bolsters national majoritarianism at the expense of protecting religious minorities. The third section returns to the Lautsi judgments to place the ECtHR’s approach to religious minority protection in the context of trans-national judicial politics in the European legal space. The concluding section suggests an alternative approach to freedom of religion in Europe that vindicates religious diversity and does justice to the counter-majoritarian telos of human rights protection.
Three national models of social cohesion
Germany
In Germany, the relationship between religious pluralism and social cohesion can be conceptualized on the basis of a twofold distinction: first, between Christianity as a distinctive religion, and Christianity as part of a general national culture; and second, between freedom of religion as a positive right to express one’s beliefs, and freedom of religion as a negative right to be free from undue religious influence. In conjunction, these distinctions are geared towards the perpetuation of a majoritarian national culture permeated by Christian values.
During what has become known as the ‘crucifix debate’ in Germany,Footnote 7 a Bavarian administrative court distinguished between the Christian faith (as distinctive religion) and the Christian culture (as merely religiously permeated common culture). On this basis it held that the display of crucifixes in classrooms was not the (in this context illegitimate) expression of a commitment to a particular religious faith but the (legitimate) affirmation of an essential component of the general Christian-occidental tradition and common property of its cultural realm.Footnote 8 The German Federal Constitutional Court quashed this decision, amongst others because it did consider the crucifix a specific symbol of the Christian faith which, when displayed in classrooms of public schools, violated the children’s negative freedom of religion as protected by Article 4 of the German Constitution. The dissenting judges aligned with the reasoning of the Bavarian administrative court and held that such interference with the freedom of religion of non-Christian denominations was justified having regard to the state’s mandate to impart Christian values through education: ‘The affirmation of Christianity does not bear on the content of its beliefs but on the appreciation of its formative cultural and educational components, and is therefore also justified towards non-Christians by virtue of the history of the occidental cultural realm’.Footnote 9
In the subsequent ‘headscarf controversy’, a German school board rejected the application of a Muslim teacher, Mrs Ludin, unwilling to refrain from wearing her headscarf in school. It argued that the wearing of a headscarf in public schools would contravene the principle of state neutrality. Moreover, it considered the headscarf a symbol of cultural disintegration that would endanger social cohesion and school peace. The decision of the school board was upheld by two lower instance administrative courts and the Federal Administrative Court.Footnote 10 The latter confirmed that the headscarf ban was warranted by the principle of state neutrality that, given increasing religious diversity in Germany, had to be interpreted in a restrictive way. It further considered that because young children were not yet sufficiently educated in mutual respect and tolerance, a negative impact of Islam as ‘symbolised’ by the headscarf could not be excluded.Footnote 11 The German Federal Constitutional Court, distinguishing the crucifix in classrooms as a symbol associated with the state from the headscarf as an individual statement of the person concerned, found that the latter was in principle covered by the teacher’s fundamental right to freedom of religion. Accordingly, it ruled that the headscarf could not be prohibited through an administrative decree but only by means of a parliamentary statute.Footnote 12 The majority of judges suggested two possible interpretations of the relationship between religious pluralism and state neutrality under the German constitution: a negative one that bans the display of religious symbols in state schools to minimize the ‘potential of possible conflicts’ in an increasingly religiously diverse society; and a positive one that permits the display of such symbols in order to foster mutual tolerance and integration through the active encounter of religious difference.Footnote 13 The dissenting judges drew a different distinction. On the one hand, they considered the crucifix a (merely) cultural symbol that, while ‘stemming from’ and ‘being bound by’ Judeo-Christian values, also stood also for ‘openness’ and ‘tolerance’. On the other hand, they stressed that such openness and tolerance could not extend to symbols such as the headscarf that challenged dominant value standards and were therefore prone to provoking conflicts.Footnote 14
By now, many of the German Länder have enacted legislation banning the headscarf while still sanctioning nuns teaching in their traditional costume. The laws of Hessen and Baden-Württemberg, for instance, provide that teachers shall not demonstrate any religious convictions that would contravene the principle of state neutrality. Manifestations of Christianity, however, are considered compatible with this requirement because they reflect the Länder’ Christian and humanistic traditions and fulfil the educational mandate conferred upon the state.Footnote 15 Similar laws have been passed in Lower Saxony, Saarland, and Bavaria.Footnote 16 The Verwaltungsgerichtshof Baden-Württemberg and the Bavarian Constitutional Court confirmed that the preferential treatment of Christian symbols was compatible with the principle of state neutrality because a Muslim teacher could not credibly convey to her pupils the Christian values and traditions anchored in the Länder constitutions and the respective school laws.Footnote 17
Hence, and on the one hand, the German state is required to protect children’s negative freedom of religion which, by implication, may justify the ban of headscarves from school. On the other hand, the state is encouraged to actively promote Christian values so that it may justifiably discriminate between the Muslim headscarf and the Christian habit. While, as Gerstenberg says, ‘a distinctive feature of the German approach is the emphasis of freedom of conscience as a principle, another feature of the German approach is the assumption that Christian culture occupies a privileged place in German public life and is, indeed, a postulate of German political identity and social cohesion’.Footnote 18 Accordingly, while not hostile towards religion per se, the German interpretation of social cohesion portrays religious diversity as something unwelcome and disruptive that needs to be concealed, if not assimilated to its national majoritarian culture.
France
In France, social cohesion is interpreted in the light of the laic-republican national tradition that emphasizes French national identity and secular state neutrality over and above the recognition of religious diversity. The French nation-state assimilates the citoyen to its republican identity, while leaving her free to pursue her religious beliefs as a private individual. This separation of citizens’ public and private ‘selves’ is reflected in a broader societal distinction between a secular public sphere and a religious private sphere. It is legally entrenched through a rigid interpretation of laïque state neutrality that reacts with institutional blindness to the fact of religious and cultural diversity.
The principle of laïcité that commits French public schools to a strictly secular education was challenged in 1989 when three schoolgirls insisted on wearing headscarves in class. The headmaster suspended the girls, claiming to apply a well-established rule of French republicanism prohibiting the display of religious symbols in public schools. Indeed, a strictly laïque education appears of crucial importance to the French model of social cohesion. If, as Laborde notes, ‘the republic was to create “citizens” out of “believers”, it had to engage in a strong formative project, aimed at the inculcation of the public values of democracy and egalitarian citizenship … so as to lead citizens to endorse a robust public identity capable of transcending more particular religious, cultural and class loyalties’.Footnote 19 Nevertheless, in the same year, the Conseil d’État gave a legal opinion (avis) indicating that the display of religious symbols in public schools was not per se incompatible with the principle of laïcité but could be restricted in case it (among others) constituted an act of pressure or provocation, or perturbed the school order and the peaceful running of schools.Footnote 20 On this basis, the court reversed a number of school decisions suspending or excluding students who had refused to remove their headscarves.Footnote 21
In 1994 François Bayrou, the then Minister of National Education, issued a circular in which he urged the heads of educational institutions to ban ‘ostentatious’ religious symbols, emphasizing that the French republican project built on a vision of citizenship that construes the nation not simply as an aggregation of individual rights bearers but as a ‘community of destiny’.Footnote 22 One decade later, on occasion of the publication of the Stasi Report, Jacques Chirac called in a controversial speech for a ‘national mobilization in defence of the republic’s secular values’.Footnote 23 The Stasi Report, after asserting that the principle of laïcité required a complete neutrality of the state in religious matters, had concluded that the headscarf controversy was no longer a matter of ‘freedom of conscience’ but of ‘public order’.Footnote 24 It recommended that educational institutions should provide better instruction on the values of republicanism and laïcité, and that ‘ostentatious’ symbols manifesting a religious or political affiliation should be banned from public schools. These measures were deemed necessary to prevent ‘identity conflicts’ between students that could trigger violence and endanger individual liberties.Footnote 25 In 2004, the French parliament eventually passed a law prohibiting the wearing of any signs manifesting a religious affiliation in public schools.Footnote 26 Whatever other concerns may have motivated the ban, considerations of social cohesion appear to have played a significant role. As Gilbert Le Bris, member of the Assemblée Nationale explained using his ‘bon sens paysan’: ‘Islam has settled rather recently in our country. Its faith is absolutely respectable. But its adherents, as everybody else, have to adapt to our values and traditions, not the other way around.’Footnote 27 In September 2010, the French parliament adopted a new law that makes it illegal to wear full-faced veils anywhere in the public sphere.Footnote 28 The report prepared by the French National Assembly in preparation of the 2010 law employs language similar to that of the earlier Stasi Report, associating the veil with ‘barbarity’, ‘violence’, and the ‘subjugation’ of women incompatible with Europe’s ‘Spirit of Enlightenment’.Footnote 29 In October 2010, the Conseil Constitutionnel upheld the constitutionality of the law without, however, explicitly considering laïcité. Instead, the Court accepted Parliament’s assessment that full-faced veils place women in a situation of exclusion and inferiority incompatible with constitutional principles of liberty and equality.Footnote 30
Still, the French approach to social cohesion may appear more accommodating of religious diversity than the German one. After all, limits on the exercise of religion in the public sphere are justified on the basis of secular state neutrality that, in turn, is meant to ensure the equal protection of religious freedom in the private sphere. However, such argument overlooks that laïcité proves less neutral, and consequently the republican assimilist project more pervasive, than they purport. Laïcité is a non-neutral principle in a twofold sense: most obviously, while it claims to treat different religions equally it cannot be neutral between religious and secular world-views as such. It may be argued that this is what comes with living in a secular state. Yet my point is that there is no necessary inference from endorsing secularism to the justification of the ban of religious symbols from the public sphere on grounds of state neutrality. This non-neutrality of the secular state in relation to religious world-views becomes the more problematic the more laïcité (and other secular world-views)Footnote 31 present themselves as just another (majoritarian) sectarian doctrine. But laïcité even fails on the weaker claim of neutrality between different religions. Put crudely, French Christian secularists and secularized Christians will find it much easier to accept the public–private divide with its privatization of religious faith than other religious communities simply because they contributed to its creation in the first place. The French interpretation of social cohesion does not require them to change their dress, behaviour and customs regarding the role of religion in the public sphere. Hence today the awkward alliance against the headscarf between French left-wing secular Republicanism and right-wing Christian Catholicism:
The Right and the Left can define the prohibition on Islamic headscarves in the classroom as a defence of either French Christian or French secular culture, because the two are not at all mutually exclusive. Current Western Christian religious practice defines that women and men bare their heads in public, non-sacred buildings, and that convention – the absence of a religious marker – has been accepted as a secular practice. But the absence is also a marker, and for other religious traditions with other religious practices, going bareheaded may be seen as an overtly Christian practice, or at the least one in weak disguise, especially if that practice is legislated in a dominantly Christian country.Footnote 32
This is not to suggest that the public sphere should, or could, be purged of all references to religion and culture.Footnote 33 On the contrary, it is to maintain that the imposition of legal constraints on the expression of minoritarian religious convictions in the public sphere cannot be justified under the pretext of equal treatment of religions in the private sphere. It may be objected that the laïque interpretation of social cohesion is (at least) neutral in the sense that it does not aim at discriminating between different religions, and/or that it is (at least) neutral in the sense that does not explicitly draw on religious justifications. However, such models of formal or reason-based equality hide as much as they reveal. They cannot determine whether secular neutrality requires religions to be treated equally in a positive sense (all religions in the public sphere), or equally in a negative sense (all religions out of the public sphere). But surely, this is precisely the stake in the contest between ‘public’ and ‘private’ religions.Footnote 34 The justification of a secular public sphere from secular state neutrality, while superficially attractive, is not conclusive because the distinction between the public sphere and the private sphere that is constitutive of secular neutrality cannot be constituted by way of a neutral distinction between the (secular) public and the (religious) private. Finally the two senses in which laïcité is non-neutral are connected, as its ‘indirect’ Christian bias is reinforced through its ‘direct’ secular bias. As a consequence, the French national-majoritarian model of social cohesion is not restricted to the ‘secular’ public sphere, but extends deep into the ‘religious’ private sphere. In both spheres, it exhibits indifferent to intolerant attitudes towards religious diversity: the laic interpretation of state neutrality (passively) ignores religious claims for recognition in the public sphere; and ‘la République une et indivisible’ (actively) assimilates private religious difference to the French republican identity.
United Kingdom
The British interpretation of social cohesion differs from the German and the French model in two main regards. First, while the legal protection of freedom of religion prior to the Human Rights Act 1998 was comparatively weak, British society has traditionally been relatively open and tolerant towards expressions of religious diversity.Footnote 35 Accordingly, the wearing of headscarves is, by convention, generally permitted in public schools. Second, to date the display of religious symbols in educational institutions is not regulated through national legislation but through the individual schools’ uniform policies. The ensuing diversity of approaches is reflected in a case-sensitive approach of the British courts.Footnote 36 Both differences may indicate that in the United Kingdom, social cohesion is not premised on the assimilation of religious minorities to a distinctively Christian (Germany) or secular (France) national majoritarian tradition. But it is not geared towards the accommodation of religious diversity, either. Rather than embracing religious pluralism, the British model of social cohesion espouses a negative ‘live and let live’ attitude that expresses itself through indifference towards religious diversity.
In 2004, the Muslim pupil Shabina Begum challenged the refusal of a state-funded secondary school to permit her wearing a jihab in class, and her subsequent exclusion from school. The school’s uniform policy permitted the wearing of the shalwar kameeze and the headscarf in school colours. However, Begum maintained that the jihab was the only garment that met her religious requirements, and that its ban therefore violated her Article 9 ECHR rights. In first instance, Bennet J stressed the importance of school uniforms in enhancing ‘social cohesion and harmony amongst the pupils who are from a wide range of faiths and backgrounds’.Footnote 37 On this basis, he considered that there was no ‘breach’ of Article 9(1) ECHR because Begum had been excluded from school on grounds of refusing to abide by the uniform policy rather than on religious groundsFootnote 38 – which is tantamount to saying that because the purpose of the school uniform was to enhance social cohesion (and not to curtail religious freedom) it could not possibly interfere with the applicant’s rights to express her religious beliefs. Obiter the judge considered that had there been an interference with Article 9 ECHR it would have been justified because the school uniform policy, and its enforcement, pursued the legitimate aim of enhancing social cohesion by reducing ‘the potential for the forming of groups and cliques who would be identified by the clothes that they wear’.Footnote 39 On appeal, Brooke LJ held that the school uniform policy interfered with the claimant’s right to manifest her religion, and that the school had failed to justify this interference in the light of Article 9(2) ECHR. Given that the school already indulged Muslim girls being ‘identified’ by virtue of their wearing a headscarf, the judge questioned whether it was ‘necessary in a democratic society to place a particular restriction on those Muslim girls at this school who sincerely believe that when they arrive at the age of puberty they should cover themselves more comprehensively than is permitted by the school uniform policy’.Footnote 40 While this approach recognizes that a school uniform policy may interfere with pupils’ right to express their religion, it eventually merely challenges the effectiveness of the school’s approach to social cohesion, rather than the negative attitude towards religious diversity that motivates it.
The House of Lords unanimously allowed the appeal. Allegedly drawing on ‘strong’ authority from Strasbourg, the majority of judges considered that the school uniform policy did not interfere with Article 9(1) ECHR because, per Lord Hoffmann, ‘there was nothing to stop her [Begum] from going to a school where her religion did not require a jihab or where she was allowed to wear one. Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing. Common civility also has a place in religious life’.Footnote 41 Whatever precisely the notion of ‘common civility’ may entail, it nicely illustrates the British approach to social cohesion. Premising their judgment on Begum’s obligation to obey the uniform policy, rather than her right to manifest her religion, the judges conclude that there was no interference with Article 9(1) ECHR because the applicant could choose to ‘compromise and, if necessarily sacrifice’Footnote 42 the expression of her beliefs, or to move to another school. Thus delimiting freedom of religion at the interference stage, the majority relieves the school from the onus of justifying its uniform policy, and steers clear of scrutinizing the proportionality of this policy in the light of the applicant’s right to manifest her religion. Assuming there had been an interference, all judges concur that it would have been justified in the light of Article 9(2) ECHR because the school uniform policy pursued the legitimate aim of protecting the rights and freedoms of others by promoting social cohesion and religious harmony among opposing groups. According to Baroness Hale of Richmond who delivered the most balanced and considered opinion, schools must ‘promote the ability of people of diverse races, religions and cultures to live together in harmony. Fostering a sense of community and cohesion within the school is an important part of that. A uniform dress code can play this role in smoothing over ethnic, religious and social divisions’.Footnote 43
Despite its explicitly case-sensitive approach, Begum has left significant traces in subsequent British case law.Footnote 44 A noteworthy exception is R (on the application of Watkins-Singh) v Aberdare Girls’ High School Governors. The applicant, a 14-year-old Sikh girl, challenged a uniform policy that prevented her from wearing a Kara at school. Silber J found that the school’s decision not to grant a waiver from the uniform rules constituted an indirect religious discrimination under the Equality Act 2006. Stressing the obligation of schools to partake in building a cohesive and tolerant multicultural society, the judge arrived at a rather different conclusion as to how this aim should be achieved:
This shows clearly first that the defendant and the school should not have sought to remove the potential cause of tension by refusing to allow the claimant to wear the Kara but second that instead it should have taken steps to ensure that the other pupils understood the importance of wearing the Kara to the claimant and to other Sikhs so that they would then tolerate and accept the claimant when wearing the Kara.Footnote 45
Yet overall, also the British approach to social cohesion espouses indifferent, and at times intolerant, attitudes towards religious diversity. Social cohesion is achieved through school uniform policies whose purpose is to foster religious harmony by concealing religious difference. This effectively subordinates the individual’s right to manifest her religion to maintaining uniform dress codes in school. From a broader societal perspective, it undercuts the communicative and public function of freedom of religion in democratic societies championed by the European Court of Human Rights. Far from neutral, the House of Lords’ appeal to ‘common’ civility appears a particularist expression of the British national tradition that ranks the importance of school uniform policies over and above the recognition of religious diversity.Footnote 46 As Lord Scott of Foscote puts it in Begum, ‘there is not much point in having a school uniform policy if individual pupils can decide for themselves what they will wear’.Footnote 47
Religious pluralism and national diversities
The display of religious symbols in educational institutions and in the broader public sphere is controversial within each of the considered national traditions. Moreover, their ban or restriction has been defended on a variety of grounds, ranging from the protection of individual autonomy and gender equality to health, safety and security concerns. Accordingly, the aim of the previous section was not to offer a comprehensive treatment of all issues at stake, nor is its claim that social cohesion is the only or even the decisive factor in resolving them.Footnote 48 All it meant to establish was that the German, French and British approaches to social cohesion espouse negative attitudes towards religious diversity that are difficult to square with the ECtHR’s appraisal of religious pluralism. Furthermore, and beyond this basic commonality, the three discussed models prove difficult to reconcile with each other because they are rooted in, and contribute to the perpetuation of, different national majoritarian traditions. This diversity of national approaches to social cohesion undercuts a robust European protection of religious pluralism. The ECtHR uses the absence of a uniform European conception of the role of religion in the public sphere as a pretext for granting national authorities a wide margin of appreciation. As a consequence, and despite the Court’s lip-serving commitment to religious pluralism, it de facto endorses the negative attitudes towards religious diversity espoused by the different national traditions.
The most authoritative ECtHR case on freedom of religion and the Islamic headscarf is Şahin v Turkey, decided in a split judgment of the Grand Chamber in 2005.Footnote 49 Ms Şahin, a medical student at Istanbul University, was refused permission to attend lectures and sit examinations because she insisted on wearing a headscarf. After having left Istanbul to continue her studies in Vienna, Ms Şahin brought a case against the Government of Turkey under the European Convention, arguing that her exclusion from university for reasons of wearing the headscarf violated her freedom of religion. All judges of the Chamber, and all but one judge of the Grand Chamber, while accepting that the applicant’s exclusion from university interfered with her freedom of religion, found that this interference was justified and proportionate to the aims pursued. What is most remarkable about both judgments is the Court’s failure to critically engage with the submissions of the parties. The judgments suffer from undue deference to the views of the Turkish authorities, and a want of evidence and balance in the court’s proportionality test.
The Grand Chamber, after reiterating its appraisal of pluralism, tolerance and broadmindedness as ‘hallmarks of a democratic society’ flatly states that ‘pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society’.Footnote 50 This circular reasoning – pluralism, while being a prerequisite of democratic societies, is also delimited in the name of maintaining and promoting democratic values – serves to alleviate the court from scrutinizing Turkey’s submission that the headscarf ban was necessary and proportionate in the light of Article 9(2) ECHR. The judges uncritically accept the government’s association of the headscarf with proselytism and political Islam, despite the fact that there was no evidence of Ms Şahin trying to pressure or even influence others, or of her being connected to extremist political movements. The Chamber, instead of focussing on the applicant’s concrete behaviour, endorses the government’s view that the headscarf ban was justified as general ‘preventive’ measure.Footnote 51 Such rubber-stamping of pre-emptive measures not warranted by tangible evidence effectively reverses the burden of proof at the expense of the applicant and comes dangerously close to granting the government a carte blanche for unbuffered interference. While the Court heavily relies on the unsubstantiated assumption that Muslim women wearing a headscarf are prone to force their views on others, it appears oblivious to the coercive nature of state intervention.Footnote 52 The Grand Chamber’s approach does not fare any better in this regard. After cursorily observing that ‘the impugned interference primarily pursued the legitimate aim of protecting the rights and freedoms of others and of protecting public order’, the majority asserts that ‘having found that the regulations pursued a legitimate aim, it is not open to the Court to apply the criterion of proportionality in a way that would make the notion of an institution’s “internal rules” devoid of purpose’.Footnote 53 Such twofold deference to the views of the national government and the educational institution seriously undermines the Court’s professed role to protect individual rights against emanations of the state. Both the Grand Chamber and the Chamber approach render a meaningful proportionality test impossible, and an effective protection of Ms Şahin’s right to manifest her religious beliefs illusionary.
The ECtHR’s earlier Dahlab decision is even more problematic in this regard. In 1996 Ms Dahlab, a Swiss primary school teacher, was requested to take off her headscarf in class as such conduct was deemed incompatible with section 6 of the Canton of Geneva Public Education Act which requires the public education system to respect pupils’ and parents’ political and religious beliefs. Her appeal to the Geneva cantonal government and the Swiss Federal Court were unsuccessful. In its admissibility decision, the ECtHR agreed with the Swiss government’s contention that Ms Dahlab’s case was ‘manifestly ill-founded’. ‘Weighing’ the right of the teacher to manifest her religion against the need to protect pupils by ‘preserving religious harmony’, the judges considered it ‘difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others, and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils’.Footnote 54 This is a surprisingly bold statement for a court that has repeatedly stressed that ‘the state’s duty of neutrality and impartiality is incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed’.Footnote 55 What is more, the court’s analysis of the symbolic significance and impact of the headscarf is entirely detached from the concrete person and behaviour of the wearer. As a consequence, the association of the headscarf with intolerance and gender discrimination appears perfunctory and stereotypical. The assessment of the impact of the headscarf in the abstract also leads the court to ignore the concrete evidence before it. It was uncontested between the parties that Ms Şahin had been wearing the headscarf in class for more than five years without causing any obvious disturbance or complaints from pupils or parents. The Swiss government’s submission that the headscarf was a ‘powerful religious symbol’ likely to influence children’s beliefs, by contrast, remained unsubstantiated and in want of evidence. With a wave of hand, the ECtHR joins the Swiss Federal Court’s assessment that the ban was ‘necessary in a democratic society’ to protect ‘public order’.Footnote 56
In two more recent judgments, Dogru v France and Kervanci v France,Footnote 57 the ECtHR adopted a more case-sensitive approach, possibly encouraged by the jurisprudence of the French Conseil d’État.Footnote 58 Because both applications centred on the limited issue whether the headscarf could be banned in physical education and sports classes, the Court’s consideration of Article 9(2) ECHR focused on the school’s internal rules on health and safety. In this context, the Court notes that ‘it transpires from … various sources that the wearing of religious signs was not inherently incompatible with the principle of secularism in schools, but became so according to the conditions in which they were worn and the consequences that the wearing of a sign might have’.Footnote 59 However, this promise of a more differentiated approach is immediately mitigated by the court’s statement that because ‘the ban was limited to the physical education class, [it] cannot be regarded as a ban in the strict sense of the term’.Footnote 60 Accordingly, rather than scrutinizing the proportionality of the ban in the light of the alleged health and safety concerns, the ECtHR contents itself with noting that it was ‘not unreasonable’. Having stressed that the headscarf controversy had created a ‘general atmosphere of tension’ within the school, the court fails to inquire the proper source of this tension.Footnote 61 Instead, it jumped to the conclusion that the ‘principle of pluralism’ was an entirely legitimate ground for justifying the exclusion of pupils wearing headscarves from school.Footnote 62 This turns things upside down: the religious clothing of an eleven-year-old girl endangers the pluralistic nature of the French secular-republican education system that its teaching staff is called to uphold.
The ECtHR’s supervisory role is often said to be limited to ensuring a common minimum standard of human rights protection in the European legal space. Where Europe’s national traditions diverge on a contentious issue such as the role of religion in the public sphere, this minimum approach leads the Court to granting Contracting States a wide margin of appreciation. The ECtHR’s dictum in Dogru is representative in this regard, and worth citing at length:
Where questions concerning the relationship between state and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions, in respect of which the approaches in Europe are diverse. Rules in this sphere will consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order.Footnote 63
The Court’s deference to diverse national models of social cohesion impedes an effective European protection of religious pluralism. The margin of appreciation doctrine is used to water down the high burden of ‘necessity’ of interference to be discharged by the state. As Judge Tulkens notes in her lone dissent to Şahin, ‘only indisputable facts and reasons whose legitimacy is beyond doubt – not mere worries or fears – are capable of satisfying that requirement and justifying interference with a right guaranteed by the Convention’.Footnote 64 The Court’s unwillingness to seriously scrutinize governments’ submissions in contentious cases such as the headscarf is indicative of a more profound predicament with the trans-national human rights protection of religious minorities. Absent a pan-European approach to freedom of religion, the margin of appreciation doctrine is employed to accommodate national diversity between Convention states. Yet the Court therewith de facto endorses national-majoritarian models of social cohesion within each Convention state – at the expense of vindicating religious pluralism at the trans-national European level.Footnote 65 Instead of protecting the individual’s right to manifest her religion against national-majoritarian assault, the ECtHR’s ‘minimum’ approach undermines the counter-majoritarian role of human rights protection and risks reinforcing religious discrimination by legitimizing national approaches to social cohesion that espouse indifferent and intolerant attitudes towards religious diversity. The Grand Chamber majority in Şahin idly remarks that the ‘state’s role as the neutral and impartial organizer of the exercise of various religions’ should not be discharged by way of removing ‘the cause of tension by eliminating pluralism’ but through ensuring that ‘the competing groups tolerate each other’.Footnote 66 Yet the actual headscarf jurisprudence of the Court speaks to different concerns.
The trans-national politics of human rights adjudication
Much attention has in recent years been devoted to the judicial politics of human rights adjudication in Europe that emerged in the coat-tails of legal and/or constitutional pluralism.Footnote 67 The gist of the argument of this growing body of literature is that the increasing institutional and normative intertwinement of European and national human rights regimes, together with an incremental shift from hierarchical to heterarchical power relations between European and domestic courts, have paved the way for trans-national judicial dialogue. The reception of the European Convention and accompanying ECtHR jurisprudence in the Contracting States has gradually transformed national interpretations of fundamental rights and the ‘constitutional precepts’ of state legal orders, championing the proportionality principle as ‘the crucial mechanism of coordination’ in the European legal space.Footnote 68 At the same time, conflicts between European and national legal orders are resolved through political negotiations between courts geared towards mutual accommodation, under the proviso that the core constitutional requirements of the concerned legal orders are respected.Footnote 69 As Krisch puts it, ‘if the idea of “dialogue” favours transnational judicial conversations about principled questions of interpretation, it also opens space for discretion and realism: in short, for judicial politics’.Footnote 70 On an institutional level, this contributes to a mutual empowerment of the judiciaries that bolsters the authority of the ECtHR (vis-à-vis the Contracting States), as well as of national constitutional courts (vis-à-vis the other branches of government). According to Stone Sweet, the normative upshot of these developments is a renunciation of the ‘lowest common denominator’ approach to human rights protection in Europe:
What is common across the national systems that comprise ... [the Council of Europe] is not a list of norms defined in a lowest-common denominator manner, but a mode of argumentation, and justification: the proportionality framework [PA]. The Court uses PA, in part, to determine how much discretion – the ‘margin of appreciation’ in the jargon – states should have in infringing a right for public purposes. In practice, the Court combines PA with a simple comparative method for determining when the scope of a Convention right has been expanded. Typically, the Court will raise the standard of protection in a given domain of law when a sufficient number of states have withdrawn public interest justifications for restricting the right. The margin of appreciation thus shrinks as consensus on higher standards of rights protection emerges within the regime, shifting the balance in favour of future applicants.Footnote 71
This is not the place to discuss the rich literature on legal and constitutional pluralism in the European legal space. On the one hand, the judicial politics of human rights adjudication may indeed herald the emergence of a new ‘cosmopolitan’ rights-based constitutionalismFootnote 72 that equips ‘post-national’ human rights law with the flexibility it needs to deal with ‘principled contestation’.Footnote 73 Yet, on the other hand, the normative implications of these developments for human rights protection in cases involving conflicts between national majorities and religious minorities are at best ambivalent. If the normative benchmark for an emerging trans-national consensus is Europe’s national majoritarian traditions, or if such a consensus is not forthcoming at all, the judicial politics of mutual empowerment and accommodation result in the reinforcement of national models of social cohesion at the expense of protecting religious diversity. As Sadurski remarks with regard to the accession of Central and Eastern European states to the Council of Europe, while a major reason for the effectiveness of the ECHR used to be a considerable degree of homogeneity among the High Contracting Parties, the arrival of new states with significantly different traditions and cultures raised concerns as to a probable lowering of the standards of protection.Footnote 74 The previous two sections may have shown that these predicaments are by no means exclusive to conflicts between ‘old’ and ‘new’ Contracting States, and one need not be a DworkinianFootnote 75 to worry about the implications of the emerging judicial modus vivendi for the protection of religious minorities.
The ECtHR’s Grand Chamber judgment in Lautsi illustrates these concerns very well. The applicants had complained that the mandatory display of crucifixes in Italian public schools violated their rights to education (Article 2 of Protocol 1) and freedom of thought, conscience and religion (Article 9 ECHR). In 2002, the Italian Minister of Education had issued a directive requesting school governors to ensure the presence of crucifixes in classrooms. According to the directive, the display of the crucifix did not offend religious pluralism or the objectives of multicultural education because ‘it does not refer to a specific creed but constitutes only an expression of Christian civilisation and culture, and … therefore forms part of the universal heritage of mankind’.Footnote 76 The Italian Regional Administrative Tribunal and the Consiglio di Stato found against the applicants.Footnote 77 The former court, stressing the ‘affinity’ between ‘the “hard core” of Christianity … and the “hard core” of the republican Constitution’, concluded that the crucifix not only expressed the identity of the Italian people but was furthermore ‘a symbol of a value system: liberty, equality, human dignity and religious toleration, and accordingly also of the secular nature of the state’.Footnote 78 In a similar vein, the Consiglio di Stato stressed that the crucifix represented civil values which – in a school setting – could be experienced and endorsed ‘secularly’, that is, irrespective of their religious origin. In an earlier case, the Italian Court of Cassation had espoused the opposite view, namely that the display of crucifixes (in polling stations) infringed the principles of secularism and impartiality of the state, and the applicant’s right to freedom of conscience.Footnote 79 Much to the dismay of many Italian stakeholdersFootnote 80 and the governments of eight High Contracting Parties that intervened with the Grand Chamber, the Second Section of the ECtHR in Lautsi found in favour of the applicants – and Italy in violation of Article 2 Protocol 1 in conjunction with Article 9 ECHR.Footnote 81
In the light of the foregoing considerations, it may not be far-fetched to assume that the widespread opposition to the 2009 judgment of the Second Section influenced the Grand Chamber’s decision. At the outset, the Court conceded by default the Italian Government’s submission that the display of the crucifix in public schools was justified because, apart from being a religious symbol, it also represented ‘the principles and values which formed the foundation of democracy and Western civilisation’.Footnote 82 Noting the disagreement between the Italian Consiglio di Stato and Court of Cassation to this effect, the Grand Chamber declined to ‘take a position regarding a domestic debate among domestic courts’.Footnote 83 Now treading familiar waters of social cohesion, the Court considered that while the presence of crucifixes ‘confer[s] on the country’s majority religion preponderant visibility in the school environment’, this would not infringe the principles of secularism and state neutrality insomuch and so long as it did not amount to ‘indoctrination’.Footnote 84 Ostensibly oblivious to the (plausible) distinction drawn by the German Federal Constitutional Court between the crucifix in classrooms as a symbol associated with the state and the headscarf as an individual statement of the person concerned,Footnote 85 the Grand Chamber distinguished the crucifix in Lautsi as a ‘passive’ symbol from the headscarf as a ‘powerful external symbol’ within the meaning of Dahlab.Footnote 86 Accordingly, while the headscarf in Dahlab was ‘difficult to reconcile with the message of tolerance, respect for others, and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils’,Footnote 87 in Lautsi ‘there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers, or who held non-religious philosophical convictions’.Footnote 88 This (dubious) distinction between ‘passive’ Christian and ‘active’ Islamic symbols, finally, appears to alleviate the Court’s concern that ‘reference to a [national] tradition cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols’.Footnote 89 Noting that ‘there is no European consensus on the question of the presence of religious symbols in state schools’Footnote 90 the Court concluded that the decision to require the display of crucifixes fell within Italy’s margin of appreciation.
Give and take: while the ‘constitutionalisation’ of the European Convention places the individual at the centre of an emerging trans-national system of human rights protection,Footnote 91 it also betrays the hope that a human rights court placed outside the constitutional and normative framework of the nation state may strengthen the rights of religious minorities vis-à-vis their national majorities.Footnote 92 A trans-national judicial politics geared towards the accommodation of conflicts between Europe’s diverse national traditions indiscriminately defers to decisions of state authorities to prescribe the presence of majoritarian religious symbols, and to prohibit the presence of minoritarian religious symbols, in educational institutions and the broader public sphere.
National pride and religious prejudice
It has been suggested that there is after all a discernible pan-European approach to freedom of religion that relies on a ‘dichotomy between Islam and Christianity to prescribe restrictive regulation of manifestations of Islamic religion and culture in the public sphere’: while the crucifix is ‘legitimised as representing cultural values that are universally shared by the citizenry’, the headscarf is banned ‘either as incompatible with certain core principles of a democratic system (frequently gender equality) or with democracy tout court’.Footnote 93 Indeed, what unites Ms Ludin in Germany, the French schoolgirls in the Parisian suburb of Creil, Ms Begum in the United Kingdom, Ms Dahlab in Switzerland, Ms Şahin in Turkey, and Ms Lautsi in Italy (apart from being female)Footnote 94 is that they all contest the emerging European overlapping consensus on the role of religion in the public sphere associated with ‘common civility’ and ‘Western civilisation’. However, it is equally important to note that this overlapping consensus that justifies the obligation of Mrs Lautsi’s children to study under the Italian cross and Ms Şahin’s obligation to remove the headscarf while pursuing her university education in Turkey is the historical product of Europe’s diverse national-majoritarian traditions that prove difficult to reconcile with each other.Footnote 95 As a consequence, the bias against religious diversity common to Europe’s national models of social cohesion is reinforced by the majoritarian bias of a trans-national court that uses the absence of a European consensus as a pretext for deferring to the decisions of national authorities to shelter their religious majorities.Footnote 96 The ECtHR’s Grand Chamber judgment in Lautsi reveals the shortcomings of a European approach to religious pluralism and social cohesion that oscillates between the affirmation of Europe’s common roots in ‘Western civilisation’ and the deference to its diverse national traditions: it legitimizes indifferent and intolerant attitudes towards religious diversity within Convention states, bolsters national majoritarianism at the expense of protecting religious minorities, and undermines the counter-majoritarian function of human rights protection.
Different from the Grand Chamber majority in Lautsi, the second section of the Court did not ‘see how the display in state-school classrooms of a symbol that it is reasonable to associate with Catholicism (the majority religion in Italy) could serve the educational pluralism which is essential for the preservation of “democratic society” within the Convention meaning of that term’.Footnote 97 One need not reduce the Court’s argument here to a question-begging equation of secularism and state neutrality, only to refute it because ‘in a society where one of the principal cleavages is not among the religious but between the religious and the secular, absence of religion is not a neutral option’.Footnote 98 To disguise secular state neutrality of the laïcité-type as non-neutralFootnote 99 is not sufficient to justify the prescription of the crucifix in public schools of a predominantly Christian country, as there is no necessary contradiction between rejecting (militant) secularism and protecting religious minorities against national-majoritarian assault. Rather, one may read the ECtHR as endorsing a positive notion of state neutrality that promotes religious pluralism and that is for this very reason incompatible with the legally mandated display of crucifixes in Italian (and Bavarian) public schools.Footnote 100 On the one hand, it is difficult to see how a legal requirement to equip state buildings with majority religious symbols should be conducive to developing appreciative attitudes towards religious diversity, as it is difficult to maintain that this was the Italian government’s principal concern. On the other hand, the treatment of minority religious symbols in the European public spheres casts doubts on the veracity of appeals to Christian tolerance as a natural ally of the secular state.Footnote 101 Indeed, as Evans notes commenting on Dahlab it may not be the headscarf but its ban that sends a message of intolerance and discrimination:
The Court’s judgment makes clear that there were Muslim children in the school who wore traditional Muslim clothing and they might well wonder why dressing as they do or as their mothers do is so terrible that it requires an otherwise good teacher to be forced out of the school community. In addition, children who are already inclined towards mistrust, religious hatred or racial discrimination could be sent the message that their fears are justified and their stereotypes valid.Footnote 102
Building on a more positive and accommodating notion of state neutrality, an alternative approach to religious pluralism in the European legal space would consist of challenging the reputed linkage between social cohesion and the suppression of religious diversity inherited from the formative period of the European nation state. Such an approach starts from the premise that the European nation states accommodate religious diversity, rather than that religious minorities be assimilated to national majoritarian models of social cohesion. It draws on a different – arguably more genuine – imaginary of ‘Western civilisation’ common to Europe’s national traditions that depicts the interrelation of Christianity and secularization which paved the way for the evolution of the Western European nation state as an inherently conflictive process. As John Locke noted in what was to become – somewhat despite itself – a canonical text of European liberalism, ‘it is not the diversity of opinion, which cannot be avoided, but the refusal of toleration to those that are of different opinions, which might have been granted, that has produced all the bustles and wars, that have been in the Christian world upon account of religion.’Footnote 103 According to Habermas and Derrida, such a conflictive experience of living together in (religious) diversity is the hallmark of a pan-European culture ‘which for centuries has been beset more than any other by conflicts between … sacred and secular authorities [and] by the competition between faith and knowledge’, and that ‘had to painfully learn how differences can be communicated, contradictions institutionalised, and tensions stabilised’.Footnote 104
Perhaps more importantly, an approach to religious pluralism that challenges the association of social cohesion with the suppression of religious diversity recalibrates the judicial politics of trans-national human rights adjudication in line with the counter-majoritarian telos of human rights protection. It takes seriously the ECtHR’s appraisal of freedom of religion as avouching ‘the pluralism indissociable from a democratic society, which has been dearly won over the centuries’,Footnote 105 and the corresponding role assigned to the state as an ‘impartial organiser of the exercise of various religions’ that is not to ‘remove the cause of tension by eliminating pluralism’ but to ensure that ‘the competing groups tolerate each other’.Footnote 106 It also suggests a different way to mediate the tensions between religious and national diversities in the relationship between European and domestic courts. None of the domestic judgments discussed in this article stipulates the general ban of (minority) religious symbols from educational institutions and the broader public sphere as a core constitutional requirement of the national legal order – which is often considered the threshold issue of a successful trans-national judicial dialogue.Footnote 107 Rather, while the Conseil d’État indicated that the display of religious symbols in French public schools was not per se incompatible with the principle of laïcité and attempted to restrict their ban to situations of concrete and manifest dangers to the public order and the health and safety of pupils,Footnote 108 the German Federal Constitutional Court posits a choice between a ‘negative’ interpretation of state neutrality that bans the display of (minority) religious symbols in state schools to minimize conflicts in increasingly religiously diverse societies, and a ‘positive’ one that permits the display of such symbols in order to foster mutual tolerance and integration through the active encounter of religious difference.Footnote 109 While in the United Kingdom, courts have questioned whether the insistence on uniform dress codes in schools is truly conducive to fostering mutual tolerance in a religiously diverse society,Footnote 110 Italian courts disagree as to whether the prescription of the crucifix in public schools is compatible with the Italian interpretation of secular state neutrality.Footnote 111 This disagreement within Europe’s national traditions as well as the absence of a trans-national consensus between them should, rather than justifying a wide margin of appreciation, provide an entry point for the ECtHR to vindicate religious pluralism in the European legal space.
If taken seriously, the shift from an international to a trans-national system of European human rights protection that issues in a new form of ‘cosmopolitan’ rights-based constitutionalism cannot exhaust itself in a political power-play between European and national courts that confuses mutual accommodation with deference to Europe’s national majoritarian traditions. Rather, being confronted with conflicts between national majorities and religious minorities, it is the role of a trans-national human rights court to correct patterns of structural discrimination within Europe’s national democracies, and to protect religious liberty against national majoritarianism. Challenging the association of social cohesion with the suppression of religious diversity not only gives effect to the individual’s right to manifest her religion by strengthening the counter-majoritarian function of human rights protection; it is also instrumental to sustaining religious pluralism as ‘one of the foundations of a democratic society’.
As part of the evidence that the defendant state in Lautsi had respected its obligations under the European Convention, the Grand Chamber approvingly considered that Italy had opened up its school environment to religions other than Christianity, permitting inter alia the wearing of Islamic headscarves and other symbols or apparel with a religious connotation.Footnote 112 Thus, and despite the Court’s question-begging equation of the prescription of the crucifix with the prohibition of the headscarf, Lautsi could be welcomed were it to indicate a move towards a more positive interpretation of state neutrality that accommodates religious diversity. Alas, the ECtHR sends a mixed message in this regard, and the national pathos that flows through some of the judges’ opinions warrants healthy scepticism:
A court of human rights cannot allow itself to suffer from historical Alzheimer’s. It has no right to disregard the cultural continuum of a nation’s flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity.Footnote 113
Sancte Pater, sic transit gloria mundi.
Acknowledgements
Earlier drafts of this article were presented at the University of Southampton’s Centre for Law, Ethics and Globalisation; the Colloquium of Legal Philosophy at Tilburg University; the University of Sydney’s Centre for International Law; and the European and Global Governance Colloquium at the Hertie School of Governance. I am grateful to participants in these events, as well as to two anonymous reviewers, for their valuable comments and suggestions.
