Both these books address the same broad issue using a similar comparative law approach, albeit from British and Dutch perspectives, respectively. However, both are refreshingly prescriptive. Erica Howard, a senior lecturer in law at Middlesex University, sets out her stance immediately, arguing that the bans on the wearing of religious symbols in European educational institutions ‘constitute a breach of an individual's human rights and contravene existing anti-discrimination legislation’ (inside cover). Hana van Ooijen, a former student and researcher at the Netherlands Institute of Human Rights and now a practising lawyer in Holland, concludes that the freedom of ‘public officials’ – meaning the judiciary, police and public teachers – ‘to manifest religion or belief should be the rule and limitations the exception, not the other way round … when states impose limitations they bear the burden of properly justifying them’ (p 256). It is a sad reflection, perhaps, on European religious freedom that such statements have to be made.
Erica Howard uses as her foil the restrictions on religious symbolism in education. She chose this area because of the growing set of domestic and international case law in this field, much of which is well reported and prolific. But she also chose it because education is where ‘children develop and learn to think for themselves, where they learn about diversity, autonomy, community and their country and the values which lie at the basis of this’ (p 5). As such, bans on children's religious clothing – such as the headscarf debates in France – impact on individual and community attitudes to religious freedom and cohesion in later life.
The structure of Howard's book is orthodox. After an exposition of key legal concepts and distinctions in Chapter 1, taking into account ideas such as ‘religion’, ‘belief’, direct and indirect discrimination, and contrasts between the absolute right to freedom of thought and conscience vis-à-vis the qualified right to practise or manifest those beliefs, Chapter 2 explains arguments supporting prohibitions on the wearing of religious symbols. Her purpose here is to show how (unsurprisingly) the same arguments are repeated across cultures and states. Prohibitions exist on the grounds of safety and security (the burqa as a way of concealing weapons); separation, segregation and a barrier to communication (echoed in Jack Straw's admonition to his Muslim constituents to unveil when meeting him in surgery on the grounds that the niqab hindered communication); suppression of women and the preserve of inequality between sexes; and maintenance of the secular state through the laicised public square, a common argument in France. Howard criticises each of these arguments and weighs them as breaches of protected freedoms of religion and anti-discrimination laws – the subject matters of Chapters 3 and 4, where she draws heavily on jurisprudence and case law from the European Court of Human Rights (ECtHR), the United Kingdom and other states party to the European Convention.
Howard carries out a detailed study of the arguments for justifying restrictions on, or interferences with, human rights and anti-discrimination measures – especially Articles 9 and 14 of the Convention – in the subsequent chapter. Some of her consideration of proportionality, legitimate aims, necessity in a democratic society and the states' margin of appreciation in Article 9 jurisprudence and proportionality in Article 14 needs updating in the light of the cases of Eweida and Others v United Kingdom, the first time that the ECtHR addressed the question of applicants wearing crosses. In Chaplin's case, the UK's capacity to prioritise health and safety of staff and patients over her right to wear a small cross over her uniform was protected as a justifiable qualification on religious freedom, whereas in Eweida's case the original position of British Airways prohibiting cross-shaped jewellery – but curiously not any Muslim or Sikh head-covering – over staff uniforms to protect corporate identity (which they abandoned in the face of public outcry long before the case reached Strasbourg) was rejected.
Howard extends her analysis and case summaries by reference to non-Convention states in Chapter 6, which considers the concepts of reasonable accommodation and equality duties as adopted by judges and law-makers in the United States and Canada alongside rights and obligations created by European Union law (particularly the uncertain influence of the EU's Charter of Fundamental Rights) and domestic legislation. What is her conclusion on this hotchpotch of overlapping jurisdictions and the moral claims? ‘All require a balancing of the different interests involved and all consist of a proportionality test: the measure at issue must have a legitimate aim and the means used to achieve this aim must be proportionate and necessary’ (p 159).
Hana van Ooijen frames her research as an exploration of the tension between state neutrality held by public officials on the one hand, against their rights as individuals pertaining to religious freedom on the other. Triggered to write by a provocative interview given by a Dutch MP, van Ooijen notes that the Netherlands has neither an established Church (unlike the UK or Denmark) nor a positive legal obligation to state neutrality as in France; its constitutional protections of religious freedom are nowhere near as strong as the American First Amendment either. Compared with private institutions or sectors, the state must act in the public interest and necessarily holds certain monopolies such as the enforcement of law and the administration of justice. Like Howard, van Ooijen also considers the public provision of education.
After an introductory chapter, Chapter 2 sets out the Dutch context for her study. Judges are bound naturally and as a legal obligation to be independent and impartial while complying with the Dutch Constitution and laws. While robes, bands and a cap are prescribed to be worn by judges in their public function, and appropriate dress is set out for police officers in theirs, no religious symbolism is explicitly prohibited in either case, and van Ooijen asks whether religious imagery can in fact fill that space. The Dutch state is almost silent on what teachers can wear at school, but national guidelines are characterised as being ‘quite outspoken regarding religious dress, in pointing out that a ban on religious dress violates equal treatment law, save for objective justification’ (p 36). Van Ooijen explains the attitude of the national Equal Treatment Commission in considering the ‘objective justification’ of allowing a deputy court clerk to wear a headscarf and the intervention of the Dutch Parliament into a similar case involving a female police officer. Such disputes give a flavour of the complex material in Chapters 3 and 4. Clearly a lot of ink has been spilt in the Netherlands when considering the interplay between different arguments identified neatly in a table on page 76: the equal treatment of the public official as a citizen, the personification of the state in the official, the perception of bias, the risk of proselytism, the image of the state and the separation of Church and state, with the themes of state neutrality and religious freedom cutting across them.
Some examples of these issues are addressed by a discussion of ECHR jurisprudence in Chapter 5, in particular the ECtHR's attitudes to the neutrality of civil servants and judges, and, in the classroom, towards teachers, pupils and curricula. A slightly pedantic recitation of cases and principles is livened up by the introduction of ‘other values’ which shape state neutrality (viz loyalty and authority) and the voluntary obligations which state employees accept as fetters on their freedoms in their employment contracts and because they operate in particular ‘regimes’ such as schools and the military. Van Ooijen makes sense of these permutations by seeking the ‘minimum human rights standards, which Member States have to meet when interfering with the freedom of religion of belief’ (p 160). A wide margin of appreciation does not give states carte blanche to decide whether their restrictions are subjectively justified. Rather, public officials can aver to individual rights and freedoms as a general rule, and then a subtle balancing process should occur.
Comparisons with public functionaries in France (Chapter 6) and Britain (Chapter 7) are necessarily brief characterisations, as the author has not restricted her comparators. What is demonstrated is that, although the stereotypes of French laïcité and British established Christianity do generally shape religious freedoms in schools, the rules governing police and judges similarly err on the side of neutrality (through the non-display of symbols).
Overall, both texts are couched in dry, legal academic language which – at the expense of frequently feeling clunky – gently takes the heat and passion out of the real cultural debates about immigrant assimilation (particularly Islamic integration) and anti-Christian bias which underpin media discourse on the place in society of headscarves and burqas, jewellery crosses and kippas. North American jurisprudence has a great deal to contribute to European debate and, although these books are welcome for the specific points they address, anyone concerned with beefing up protections for religious freedoms will want to read more widely.
