INTRODUCTION
“We knew we were going to lose,” Sikh community activists candidly admitted when recalling their efforts at the European Court of Human Rights (ECtHR) to assert their right to wear the turban.Footnote 1 The unlikelihood of winning notwithstanding, they were determined to litigate their cause. At the same place and around the same time, Christian cause lawyers expressed their conviction in “changing culture through law” by litigating the public display of the crucifix and preventing negative precedents in Europe and elsewhere.Footnote 2 While the two advocacy groups demonstrated similar commitment to assert their right to freedom of religion, they diverged in their assessment of what they could possibly achieve through litigation. How did their different prospects affect their respective strategies? This article examines strategic litigation for religious freedom claims at the ECtHR. It compares strategies of highly marginalized religious minorities and their supporters with those of powerful majorities and their allies. Specifically, it focuses on the role of power and interest in their respective use of international human rights. Importantly, such strategies alone do not serve to explain the legal outcomes. Yet, as the comparison demonstrates, activists’ leverage in pushing for, or preventing, legal change can vary significantly. Taking such variations into account allows for a more nuanced assessment of their role in the expansion of human rights.Footnote 3
The number of individual rights claims filed at the ECtHR has skyrocketed over recent decades. What once seemed a toothless compromise between European visionaries and state interests has evolved into arguably one of the most powerful international venues for counter-majoritarian claims in forty-seven member states (Madsen Reference Madsen2007). A burgeoning literature has shown that advocacy organizations are pivotal to this success (Cichowski Reference Cichowski2016). They bring gross human rights violations to the dock (Hodson Reference Hodson2011), create new opportunities for litigants (Cichowski 2011, Reference Cichowski2013), and increase the pressure on judges to respond to such violations (Conant Reference Conant2016). They provide expertise as third-party interveners (van den Eynde Reference Van den Eynde2013; Cichowski Reference Cichowski2016) and help the court to build its administrative capacity (Haddad Reference Haddad2012, Reference Haddad2018) and political authority (Cichowski Reference Cichowski2007, Reference Cichowski2013; Alter Reference Alter2008; Alter, Helfer, and Madsen Reference Alter, Helfer and Madsen2016). Depicting rising levels of mobilization and correlated judicial and institutional progress, these studies testify to the transnationalization of what Charles Epp (Reference Epp1998) famously called a rights revolution.
However, our insight into the different degrees to which communities can access such support structures is limited (see, however, Börzel Reference Börzel2006; Sundstrom, Sperling, and Sayoglu Reference Sundstrom, Sperling and Sayoglu2019), as is our understanding of how the framing of legal claims diverges among various stakeholders. Regarding this latter point, some socio-legal scholars have provided fascinating insight into the tensions between grassroots communities and human rights experts in the translation processes of local grievances into human rights claims (Merry Reference Merry2006; van der Vet Reference Van der Vet2012; Kahraman Reference Kahraman2018). Moreover, recent scholarship has emphasized that, in the course of judicialization, legal claims tend to be standardized through the constraining effects that the legal field has on litigants (Burchardt, Yanasmayan, and Koenig Reference Burchardt, Yanasmayan and Koenig2019). Yet most of these studies focus on samples of one or several similar groups and, as a result, can engage only to a limited extent with the question of how actors’ diverging interests and power affect legal mobilization.
Religious freedom litigation is well suited to compare legal mobilization at the ECtHR by differently positioned actors. There are religious minority communities who have set up organizational structures to enable them to strategically litigate their community’s cause repeatedly (Côté and Richardson Reference Côté and Richardson2001). However, some receive little advocacy support (de Galembert Reference de Galembert2009; Koenig Reference Koenig2007) and face a particularly hostile opportunity structure at the court with little hope of winning a case (Dembour Reference Dembour and Pardo2000). Skilled liberal human rights lawyers’ networks sometimes help religious minorities to go to the Strasbourg court (Massicard Reference Massicard2014), but they also confront organizational resistance to engaging in highly politicized cases. At the same time, there is growing investment by professionals of litigation, such as highly experienced and well-equipped American Christian conservative actors, who have expanded their networks of cause lawyers to the ECtHR, where they defend the interests of Christian majorities that have long been privileged in Strasbourg (Bob Reference Bob2012; McCrudden Reference McCrudden2015; Fokas Reference Fokas2016; Annicchino Reference Annicchino, Mancini and Rosenfeld2018). Not only do they relate differently to their constituent communities compared with some of the more recent minority supporters, but they also differ in their legal resources, their connectedness to judges, and their (historic) standing in the legal field.
To examine the strategies of such differently positioned actors, I have adopted a field-theoretical perspective, which has gained momentum among socio-legal scholars in recent years (Dezalay and Garth Reference Dezalay and Bryant2002; Edelman, Leachman, and McAdam Reference Edelman, Gwendolyn and Doug2010; Kawar Reference Kawar2011; Madsen Reference Madsen2011; Burchardt, Yanasmayan, and Koenig Reference Burchardt, Yanasmayan and Koenig2019). As I explain in the next section, I understand strategic claims making as a balancing act between legal power relations and organizational commitments. The key suggestion is that the very use of human rights—that is, access to the court and the strategic choice of framing—is imbued with inequalities and diverging interests. More specifically, it is bound by the relations of power that structure the wider field of human rights and the political or organizational contexts in which litigants are embedded. This overall proposition unfolds in two more nuanced arguments. First, the risk of losing at the ECtHR does not weigh equally for all would-be litigants in Strasbourg. Advocacy organizations who fear further marginalization in already unfavorable domestic political settings might be more likely to disengage from the ECtHR when the odds are against them than actors who primarily litigate as part of a broader transnational political or community agenda. I argue that Muslim advocates, in particular, are at this type of disadvantage. Second, legal strategies vary substantially between differently positioned actors. Highly marginalized religious groups and their supporters have few political and legal means to challenge dominant views on religion, public order, and the scope of rights; they seek to fit into the power balances either by adjusting their identity discourses so that they are compatible with dominant views or by narrowing claims to technical or procedural questions. Meanwhile, more powerful majorities and their supporters focus on (re)defining legal boundaries and agendas through networking with incumbent stakeholders, strategic framing, and broader legal campaigning. Both conservative and liberal legal elites might employ this action, but the former more than the latter has developed a systematic agenda in the issue area of religion.
Whether such strategies are ultimately successful or not in terms of judicial outcomes depends on a variety of factors that are beyond the scope of this article. Rather than explaining the judicial outcomes, I argue that inequality does not start at the level of court decisions but, rather, begins with the choice of strategy itself. Even if immediate case outcomes are unsuccessful, powerful cause lawyers and historically influential religious majorities dispose of broader leverage in designing legal challenges than certain minority actors who are more marginalized. They are able to target, and frequently affect, broader legal debates, create alliances among core stakeholders, and utilize channels between political and legal fields. In contrast, highly marginalized religious minorities are more likely to resort to niche strategies, from where they defend individual stakes, but they cannot implement more generalizable agendas or shape legal debates in new directions. This perspective is ultimately also important in socio-legal studies, wherein people are interested in determining legal mobilization’s potential to apply pressure for liberalization and minority inclusion. Who receives support, which kind of advocacy group supports whom, and within which margin of maneuver they operate indicate the limits within which civil society actors can pursue legal change.
I focus in this article on the support structures of claims from Sikh and Muslim communities, on the one hand, and from Christian majorities, on the other. This case selection is motivated by the stark difference between these groups in terms of political power, legal capital, and historic position in the human rights field. The article draws on an in-depth qualitative research project on religious litigation at the ECtHR principally conducted between 2015 and 2018. This research comprises thirty-eight expert interviews with litigants, advocacy organizations, religious leaders, lawyers, and legal experts as well as archival material such as third-party briefs and media interventions and comprehensive legal documentation. The second section develops the article’s conceptual framework, and the third section discusses the case selection and methodology of the article. I then turn to the empirical discussion of the different litigation strategies. The fourth section shows how Sikh and Muslim litigants, alongside liberal cause lawyers, deal with their legal marginalization by either reframing religious practices or disengaging from the court. The fifth section demonstrates how conservative cause lawyers who defend religious majorities engage in redefining the balance and interpretations within the legal field. A concluding section discusses what these findings imply for socio-legal scholarship on legal mobilization and points to multiple directions for future research.
A FIELD-THEORETICAL APPROACH TO TRANSNATIONAL LEGAL MOBILIZATION
An important part of the current literature that explores legal mobilization at international courts has focused on institutional structures and resources as limiting or enhancing factors (Börzel Reference Börzel2006; Cichowski Reference Cichowski2016; Sundstrom, Sperling, and Sayoglu Reference Sundstrom, Sperling and Sayoglu2019). While such approaches have proven highly insightful, they also have encountered several limitations. Two seem particularly striking. First, they only partially explain the why (or why not) to participate in transnational litigation. Institutional openness to civil society and resource endowment are necessary, but not sufficient, conditions. For example, they cannot account for those activists—Muslim advocacy groups in the sample of this study—who remain absent from the ECtHR despite growing legal resources. One might argue that the attitude of judges and unfavorable precedents sometimes narrow, or even close, legal opportunity structures (Andersen Reference Andersen2005). Yet this argument reaches its limits when taking into account the fact that some actors in similarly unfavorable situations do turn to the Strasbourg court (Vanhala Reference Vanhala2012). Furthermore, such studies eclipse the varying motivations, which drive actors to the ECtHR and which can range from individual grievances to perceived threats (Lehoucq Reference Lehoucq2020). We yet know little about how perceptions of legal opportunity structures vary among differently positioned actors (see, however, Vanhala Reference Vanhala2011) and how this variation ultimately matters in the process of legal mobilization. Thus, second, material and institutional variables only partially explain how actors litigate, which strategies they develop, and what kind of legal framings they adopt. Although legal fields constrain justificatory repertoires in important ways (Burchardt, Yanasmayan, and Koenig Reference Burchardt, Yanasmayan and Koenig2019), it is important to acknowledge the law’s inherent indeterminacy, the competing ideological conceptions of law, and the fact that litigants are not “passive actors simply responding to externally-imposed legal opportunities but instead play a role in creating their own legal opportunities” (Evans Case and Givens Reference Evans Case and Givens2010; Vanhala Reference Vanhala2012, 525).
Recent socio-legal scholarship has called for more attention to be given to the interaction between litigants’ organizational identity and the meso-level structural constraints that shape the dynamics of transnational legal mobilization (Vanhala Reference Vanhala2009, Reference Vanhala2011; Conant et al. Reference Conant, Hofman, Soennecken and Vanhala2018). Not only actors’ various resources, but also their organizational identities, determine whether legal opportunities are considered and how would-be litigants use them (Epp Reference Epp1998; Börzel Reference Börzel2006; Cichowski Reference Cichowski2016). I second these claims but propose to spell out in finer detail how organizational identities interact with relations of power in the legal field. To this aim, the article brings field-theoretical considerations into the picture.
Broadly conceived, field theory enables us to understand that the decision to litigate or not, and the choice of legal framing, depends on the position of prospective litigants within the legal field or within other fields relevant to the organization (such as the political or religious field). A field can be defined as a more or less autonomous social space, a “symbolic terrain with its own networks, hierarchical relationships, and expertise, and more generally its own rules of the game” (Dezalay and Garth Reference Dezalay and Garth1996, 16–17). While competition and jockeying are the modus vivendi of any field, such negotiation is bound by the actors’ position of interest and power (Fligstein and McAdam Reference Fligstein and Doug2012). Regarding the role of power relations, Neil Fligstein and Doug McAdam’s (Reference Fligstein and Doug2012, 13) distinction between incumbents and challengers is helpful in order to capture the dynamism within a legal field, such as the European field of human rights, and to move beyond the sole question of access, on which legal opportunity structure approaches are primarily focused. Fligstein and McAdam argue that incumbents’ preferences are generally encoded in the rules of the field—for example, states’ interests shaped the set up of the European Convention on Human Rights (ECHR) guarded by the ECtHR (Madsen Reference Madsen2007), and the preferences of Christian majorities were relevant to how the right to freedom of religion was drafted (Koenig Reference Koenig, Kymlicka and Bolden2015).Footnote 4 Actors with connections to incumbents of the field can thus more easily seek to target the core rules and power distributions within the field. With respect to religious freedom, Christian advocacy groups have built such links and have sought to translate their position of power into law.
By contrast, certain minority actors, such as Muslims in particular, have crystallized as rather marginalized challengers in the human rights field because of negative precedents and fewer political and legal resources. In a marginalized position, Fligstein and McAdam argue, actors must seek out niches and cracks in the field to vie for change rather than target the core assumptions and distribution of power. As I will show, liberal human rights advocacy groups have recently become more vocal in support of marginalized religious actors. These groups are well connected to incumbents of the field and occupy a central position at the ECtHR with great influence on the codification of human rights law (Thomas Reference Thomas2004). While we can expect that this connection improves minority groups’ strategic leverage at the court, it also binds them to fit into the liberal templates represented by secular human rights groups.
However, the strategic choices of advocacy organizations are not only influenced by their position within the legal field but also by their organizational interests in other social settings, such as the religious and the political. Socio-legal scholars have shown that the ECtHR has served as a “bank of strategic capital” (Kawar Reference Kawar2011), which expanding professional communities could rely on to advance their political and legal careers in national settings (Madsen Reference Madsen2007). Advocacy organizations can borrow from this bank as well, not just to further specific political or legal causes but also, as I will show, to construct or strengthen group identities. Put differently, gains from litigation, either in the form of legal outcome or in the form of publicity or visibility, can be converted into symbolic capital for political struggles or community building. Depending on their targeted audience (community members, national politicians, legal experts), advocacy organizations’ strategic use of law can be expected to vary. Human rights non-governmental organizations (NGOs), for example, may use their legal capital differently from grassroots community advocates. The latter group focuses primarily on representing and defending the interests of their community, while the legal choices made by the former group are also aimed at consolidating their organizational reputation within the transnational legal field (van der Vet Reference Van der Vet2012). The same holds true for Christian conservative NGOs. Thus, even when this group faces a declining popularity vis-à-vis the incumbents of the field, they may resort to different strategies than community actors whose main stakes lie outside the transnational legal field. I argue that the balance that these actors must strike between their legal position of power and their organizational commitments within or outside the transnational legal field has a determining effect on their decision to engage in international litigation and on the legal strategies they pursue.
Access
The way in which challengers in marginalized positions weigh the risks of losing depends on their targeted audience. Cause lawyers who build their legal reputation among professional communities in the transnational field, or actors who use litigation to increase legal consciousness among their constituent communities (Ewick and Silbey Reference Ewick and Susan1992), may decide to litigate even when the chances of loss are high. In contrast, actors with fewer stakes beyond their domestic political situation are likely to strike a different cost-benefit calculation. When losing is too costly, they will tend to disengage from the ECtHR in order to avoid further marginalization.
Legal Strategies
Advocacy organizations in powerful positions—with stronger connections to incumbents and with greater historic influence and resources—are more likely to try to change the rules of the game (including dominant legal interpretations and professional norms) so that they reflect their organizational interests. Alternatively, actors in marginalized positions who consider international law as a tool for community empowerment will be more inclined to adjust to the rules of the game—that is, existing hierarchies and dominant legal narratives. As I show in this article, highly marginalized religious actors have tended to adjust to imaginaries of the “good religion” (Shakman Hurd Reference Shakman2015) and conceptions of secularity encoded in the right to freedom of religion through their legal framings and tactics. When balancing organizational interests and legal power relations, their leverage to challenge legal exclusion and to promote alternative legal framings is much narrower. In contrast, more powerful religious actors seek to encode their views into the human rights script. While neither of these strategies is a guarantee for judicial success, the latter testifies to the capacities of religious majorities and their supporters to diversify and enlarge repertoires of resistance against legal marginalization, which might resonate beyond the individual judicial decision in broader political and legal circles.
METHODS AND DATA
Operationalizing the field-theoretical assumptions requires us to follow the agents through the religious and legal fields “in order to observe what is the alleged core of the game” (Madsen and Dezalay Reference Madsen, Yves, Banakar and Travers2013, 124). At the same time, the researcher must “examine and reframe the issues at play by, for example, relating them to the agents’ multiple national and international interests” in order to surface the power relations, interests, and values that constitute agents’ litigious choices (124). To do so, I have conducted an in-depth qualitative investigation of legal strategies and framings by transnationally connected religious advocacy groups who strategically broker the proper place of religion at the ECtHR.
A selection of religious freedom cases involving third-party interveners constituted the starting point of the research. While many of these controversies have galvanized heated political debate, their transnational litigation has not yet been considered from a socio-legal standpoint. The case selection served as an entrance point to explore the broader field of advocacy groups involved in religious freedom cases at the ECtHR. I conducted thirty-eight semi-structured expert interviews, mostly between 2015 and 2018, with the main actors involved in the cases. Sometimes, interviews with interveners directed me to further interlocutors that had figured as brokers or previous interlocutors of cases. The interviews helped to trace the practices of the involved actors, including the process of legal capital accumulation to the actual strategies deployed in specific cases. Directly relevant to this study are the interviews conducted with legal representatives of the NGOs: United Sikhs, the European Center for Law and Justice (ECLJ), the Alliance Defending Freedom (ADF), Christian Concern, the Open Society Foundation (OSF), the Collectif Contre l’Islamophobie (CCIF), the Islamic Human Rights Commission (IHRC), the Ghent Human Right Center (GHRC), and the Minority Rights Group. Furthermore, my analysis relies on interviews with lawyers representing litigants of the different cases as well as certain litigants themselves. Interviews with several current and former experts working at the ECtHR were highly informative for the analysis as well. While not directly exploited in the empirical part of this article, interviews with representatives of Jehovah’s Witnesses and Scientologists, and their respective lawyers, have informed the broader conceptualization and argument.
The main challenge of these expert interviews was to move beyond the legal discourse and to talk about the practices of litigation. In this way, I hoped to break from the subjective view of my interviewees and see the power dynamics and relations structuring their actions (Madsen and Dezalay Reference Madsen, Yves, Banakar and Travers2013). I addressed this challenge by systematically analyzing beforehand all third-party interventions, media interventions, and relevant court cases in which the actors were involved. This broader material not only allowed for contextualization but also helped me to fine-tune my questions and inquire into the detailed observations and precise choices of cases and arguments. At the same time, the continuous confrontation of different sources, and, most importantly, the comparison between starkly diverging actors, helped to explain the legal practices through which litigants address the legal power relations and their extralegal commitments.
I compared the activists’ involvement in debates over the prohibition of the Sikh turban in French schools, the Islamic full-face veil ban from the public sphere in France, Belgium, and Spain, the challenge to the display of the crucifix in public schools in Italy, and recent controversies over contentious objection to gay marriage and abortion. I have provided contextualization of these cases in the empirical analysis. Comparing activism in these specific controversies is useful not only because these cases have played a determining role in religious freedom case law and mobilization but also because they have involved two sets of actors that occupy highly contrasting social positions and have been at the heart of the most fiercely debated religious conflicts at the ECtHR. The first set includes Sikh and Muslim advocacy groups, which represent relatively recent organizational structures and legal capital for religious minorities increasingly present in Europe since the postwar period. The second set includes Christian conservative advocacy groups with long-standing legal experience that have become particularly vocal in controversies over the privileges of religious majorities. In the remainder of the article, I will explore how these actors mediated between the legal power relations that they encountered when directing their activism to the ECtHR and their extralegal commitment to their political aims and the interests of their constituencies.
FITTING THE NICHE, SHIFTING IDENTITY, EXITING STRASBOURG: LITIGATION BY THE MARGINALIZED
I will begin by discussing how legally marginalized religious minorities and their supporters have litigated for the right to religious freedom at the ECtHR. To do so, I will focus on the cases of Muslim and Sikh litigation. Both groups have faced a particularly hostile legal opportunity structure in Strasbourg after the Islamic headscarf became the target of fierce public debate and legal restrictions across Europe and after Strasbourg’s judges had repeatedly ruled against Muslim applicants. Yet activists of both minorities developed different strategies of resistance to their marginalized position. While Sikh activists have litigated despite having all the odds against them, newly empowered Muslim advocacy groups have decided not to intervene at the ECtHR and to move instead to alternative legal venues. I argue that the risk of losing mattered less to Sikh advocates for whom winning was not their only purpose in Strasbourg. At the same time, Sikh activists as well as Muslim individuals and the secular NGOs who have begun to support their cause are often constrained to niche strategies, consisting of fitting identities into legal hierarchies and abandoning claims of religious freedom. This behavior demonstrates the narrow boundaries within which advocacy groups operate under certain conditions.
Sikhs: Between Collective Identity Construction and Legal Marginalization
When Sikh advocates petitioned the ECtHR in 2008, they were pessimistic about their chances of success: “We knew we were going to lose,” their lawyer admitted retrospectively, alluding to the unsuccessful precedents set by Muslim peers in the preceding years.Footnote 5 The Swiss case of Dahlab v. Switzerland, concerning a primary school teacher prohibited from wearing the headscarf, and Leyla Sahin v. Turkey, in which a medical student sued for being prohibited from wearing the Islamic veil at university,Footnote 6 were followed by unsuccessful French cases that challenged the 2004 law banning “ostentatious religious signs” from schools.Footnote 7 The court considered that the prohibitive actions against Islamic veiling aimed at securing public order fell within the margin of appreciation available to states in matters of religious accommodation. These precedents created not only a hostile legal environment for claims by Muslim minorities but also for the Sikh community. The ruling passed by the French legislator in 2004 had successfully obscured the fact that Muslims were the real target of the law by using the neutral language of law that banned all “ostensibly” religious signs from public institutions. Sikhs were unlikely to escape its consequences when three Sikh individuals filed cases at the ECtHR, two challenging their exclusion from school for wearing the turban and another one complaining about the non-renewal of his driver’s license based on his refusal to provide a picture without the turban.Footnote 8 Added to this pessimistic forecast, the Sikh community was not unanimously supportive of the idea of challenging the law in court. The international legal director of United Sikhs, which had taken the lead in the defense, recalled that “after the French turban issue, the biggest fear that people [from the Sikh community] tried to put in us … was that if it goes against you, you know, then there will be a domino effect in the whole of Europe.”Footnote 9
Despite the headwinds, United Sikhs had not the slightest doubt about their determination to litigate at the ECtHR. As soon as legal conflicts surrounding the turban appeared, United Sikhs “made them [their] clients” and took the lead in the litigation.Footnote 10 I argue, first, that their organizational commitment to community building was an important factor in this decision and, second, that their legal strategy, at the same time, was carefully adjusted to their marginalized legal position without compromising their organizational interests. To start with, it is important to situate the legal strategy within transnational Sikh diaspora politics. The Sikh diaspora has been an ardent carrier of the claim for a separate nation-state in northern India, which is the homeland of the majority of Sikhs worldwide. A plethora of organizations invested in the “politics of belonging” understood as political projects has aimed at constructing community identity in particular ways (Yuval-Davis Reference Yuval-Davis2006, 198). In doing this, the desire for a distant national home was being kept alive. Yet, progressively, with the simultaneous slackening of the Khalistani movement and the intensifying feeling of being targeted as an ostracized minority in the aftermath of 9/11, the landscape of Sikh diaspora organizations was transformed. In this context, United Sikhs “started off in New York in 1999 as a non-profit organization where the major concern was empowerment and community service. That was in 1999,” the international legal director of the organization explained. “But in the year 2001 when 9/11 happened, the whole focus of the organization shifted to advocacy and the Sikh identity.”Footnote 11
The community-funded organization made rights activism a central tool of the politics of identity of the dispersed community. Legal advocates joined the organization and helped to develop rights advocacy as a core focus of the organization’s work. Yet the collective and transnational Sikh identity remained its primary goal (Shani Reference Shani2008, 100–2). For example, the international legal director stated at a global conference organized in the wake of the legal debates at the ECtHR that “[t]he Sikh identity has to be defended like a nation defends its borders—with vigor and resources.”Footnote 12 The cases were used to federate a global movement encompassing grassroots community members. The organization set up local chapters wherever conflicts emerged in order to associate local communities with the struggle. In France, local community members were informed about their inherent right to wear the turban, urging them not to compromise on this religious core predicament. Gatherings in local gurdwaras and at international conferences aimed to raise support and funds. United Sikhs’s international legal director emphasized that she “had to travel around the world,” recalling how she tried to convince gurdwaras in distant places to support the litigation effort.Footnote 13 Following the motto of “making community its own advocate,” the diasporic community was both a source and a target of the legal strategy.
This commitment to consolidating a global community awareness for religious duties and legal rights outweighed possible local concerns about losing. In the first instance, litigation was a tool for raising awareness among a transnational community. The legal framing itself reflected the ambition of creating a cohesive religious community. Activists involved in the legal campaign tirelessly advocated that the turban is a non-negotiable part of the inner being of a Sikh, supporting a unified conceptualization of the religiously mandatory Sikh turban.Footnote 14 Distinguishing between the holding of a belief and its manifestation as an outer demonstration, the international legal director underlined that turbans “are not symbols. They are not worn to show [one] is a Sikh. They are worn to be a Sikh.”Footnote 15 In this sense, she mentioned that the framing of the turban as part of the inner being of a Sikh “is not a jurisprudential point alone,” adding that “this is a theological point” as well.Footnote 16 Serving the goal of vernacularizing a unified conceptualization of religious duties, litigation provided valuable capital in the diaspora construction. Using the ECtHR as a “bank for strategic capital”—that is, as a means of accumulating symbolic resources for community construction—did not make winning unimportant, but it did outweigh the risk of losing.
However, to fully understand the Sikhs’ litigation strategy, it must be linked not only to their diaspora commitment but also to their marginalized position at the ECtHR. The involved actors had to walk a tightrope between accommodating to a narrow margin for legal maneuver and their organizational priorities. The framing of United Sikhs was not only a means to consolidate the community but also a way “to shift the meaning of the turban so that it did not constitute an ostensible manifestation of religion” (Beaman Reference Beaman2013, 100–1).Footnote 17 Sikh advocates made sure to present the turban as a “discrete sign,” thus fitting the argument of secularity. “The keski is a small discrete piece of cloth,” their lawyer’s brief stated. It “acts as an under-turban, covering the long hair that is considered sacred according to Sikh religion.”Footnote 18 The “real” religious sign, the Sikh advocates emphasized, was not the turban but, rather, the hair covered by it.Footnote 19 This framing also implies that the margin of action was too narrow to primarily focus on challenging the assertive secularist interpretation of the French law and its legitimization by the ECtHR. Rather, identity frames needed to fit into dominant secular narratives. At the same time, it upheld the United Sikhs’s priority of framing “religious” identity rather than “cultural” identity, as suggested by local community activists in France. In fact, this question triggered some tensions between grassroots actors who wanted to privilege a narrative tailored to the context of French laicité in France and United Sikhs who privileged the focus on the global religious community. Yet United Sikhs made sure to accommodate the power balance at the court while, at the same time, prioritizing its own commitment to religious community building over the local wish to adjust to a specifically French cultural context.
Moreover, when questioned about their position toward the Muslim headscarf cases, activists also made clear that this strategy was a careful balance between their marginalized legal position and organizational commitment. Despite reluctant voices within the community who felt a legal and political necessity to mark their difference with the highly politicized Muslim question, United Sikhs considered an explicit dissociation from the headscarf cases to be contrary to their organizational commitment to work for all minorities. Yet creating an alliance with their Muslim peers also encountered skepticism. Approached by Muslim actors who sought to foster a collective force, the Sikh advocates carefully marked out their fight as a “separate case,” underlining that “you must strategically not fight together…. Cause the victory will be a victory for religious freedom.”Footnote 20 Legal marginalization might ultimately discourage activists’ in joining forces in order to increase their strategic potential.
The fact that their cases were declared inadmissible by the ECtHR did not come as a surprise. It testifies to the fact that advocacy groups may have little chance of success when judicial and political elites align against them. On the one hand, the Sikh advocates were able to keep a gateway open to the courts by having successfully raised the legal consciousness of their members. Sikh legal activists have contributed to fostering a sense of community and religious duty among community members. Almost ten years after the episode, the actors involved in the Parisian suburb Bobigny vividly emphasized the community goal that United Sikhs had insisted upon: “You must remember, this is not a case of six people fighting for their right to wear the turban. This is about 25 million Sikhs’ right to wear the turban.”Footnote 21 On the other hand, the judicial loss led activists to envision further retreating into niche strategies. For example, members of the Sikh community in France thought about introducing a claim against turban prohibitions from identity photographs by pointing to the fact that screening technologies for identification were able to identify individuals despite their head coverings.Footnote 22 Thus, while the community consciousness for legal rights was rising, activists remained constrained to defending a niche for the turban alone rather than focusing more extensively on more inclusive legal principles or on federating cooperation with other (minority) actors, as Christian conservatives often do.
To conclude this section, a final point merits discussion. As the international legal director of United Sikhs emphasized, “because we knew that the European Court is not a sympathetic court, … we definitely knew from day one that we were going to the UN.”Footnote 23 The advocates thus strategically “twin-tracked” their cases, helping one of the applicants to bring his case to the Human Rights Committee (HRC) of the United Nations (UN), which seemed more favorably disposed toward minority claims (Barras Reference Barras2009, Reference Barras2012). “This is called jurimetrics. You must know your judges,”Footnote 24 the director exclaimed, recalling Leyla Şahin’s case in particular. The legal argument adopted at the HRC was very similar to the ECtHR’s cases, though the emphasis on the emotional humiliation that a Sikh will experience when being obliged to renounce the turban was highlighted even more strongly.Footnote 25
As predictable as the loss at the ECtHR was, success at the UN was expected. It seems plausible that, by using both legal venues, United Sikhs not only multiplied the sites within which it could raise the consciousness of its community members but also aimed to keep open an opportunity for future legal challenges (Vanhala Reference Vanhala2012). Although HRC decisions are not binding for states—unlike decisions taken by the ECtHR—winning the case opened new venues for pressure in the legal field. For example, Sikh activists in France mentioned the possibility of bringing a challenge to the ECtHR regarding France’s lack of respect for the positive decision by the HRC.Footnote 26 Again, this demonstrates the strategic search for niches—here, a procedural one—to keep legal opportunities open. At the same time, their success has encouraged other actors, such as Muslim advocacy groups, to turn their backs on the ECtHR and instead invest in the UN, among others. I will turn to their case now.
Muslims: Between Joining the Global Fight of NGOs and Exiting Strasbourg
Perhaps the most striking and, certainly, the most contentious case of a politically and legally marginalized, as well as resource-scarce, minority is the one of the Muslim minorities in Western Europe. Strategic Muslim advocacy groups, to the best of my knowledge, have remained absent from the ECtHR. However, mobilization patterns in Muslim minority cases have started to change with recent disputes over the full-face veil in the public realm and the Islamic veil worn by employees in the private sector. First, I will explore this changing support structure in a situation of sustained marginalization. Second, I will show that growing support structures notwithstanding, margins of action remain narrow. Bound by the liberal self-understanding of their secular supporters and their politically precarious position, Muslim litigation pursued the path of an “identity fit” that was similar to the Sikh applicants. The emphasis on conformity with dominant scripts of religion (rather than broader frames for inclusion) prevails. Third, and most importantly, the increasingly hostile opportunity structure has led Muslim advocacy groups, contrary to the Sikh advocates, to turn their backs on Strasbourg. I argue that this can at least in part be explained by their different organizational priorities.
In recent years, political initiatives to prohibit the wearing of the burqa have galvanized heated debates across many European countries. In this context, Muslim individuals brought France and Belgium to the European dock by filing the cases of S.A.S. v. France and Belcacemi and Oussar v. Belgium.Footnote 27 Alerted by the increasing marginalization of Muslim communities, human rights lawyers and a range of liberal cause lawyers took an activist stance in the conflicts over the full-face veil. Human rights lawyers in London and Brussels, who had previously gained a reputation in religious freedom matters, defended the burqa cases. The speed of submission—one day after the ban had been enacted in France—certainly signaled the preparation in advance, which signified a considerable change to the previous precedent-setting cases regarding headscarf controversies. These had mostly been lawyered by non-human rights lawyers or sometimes by friends of the applicants, due to a lack of resources.Footnote 28 For the first time, a substantial support structure was put in place. Besides the internationally renowned lawyers, third-party interveners such as Amnesty International, Liberty, Article 19, and the OSF as well as outspoken academics, such as the GHRC, joined the case of S.A.S. v. France. Whilst most of these actors had years of experience at the ECtHR (Hodson Reference Hodson2011), they had rarely intervened in cases submitted to the ECtHR by religious minorities.Footnote 29
Why did some join the Muslim cause when they had been largely absent from the latter’s struggles in the ECtHR up until then? Some of the interveners hoped to accumulate symbolic capital for political fights other than those of religion and for professional trajectories in the field of human rights. While religion was not their main area of interest, the burqa cases could be of interest in other human rights areas as well. The example of the OSF is most revealing in this respect. The OSF, a philanthropic and well-known defender of the liberal political cause, is not primarily known for its interest in religion. Religious freedom mobilization grew out of a local cooperation between the OSF and Muslim representatives in France in the fight against ethnic profiling.Footnote 30 A representative reported that religious freedom was “not the main issue” but, rather, “tangential” to the organization’s efforts to increase litigation on ethnic discrimination. “We don’t have a strategy to address religious discrimination,” he stressed. “We have a strategy to address ethnic discrimination. So, what we are interested in is when the two are joined together.”Footnote 31 Far from being the core preoccupation of the advocacy group, religious freedom provided an opportunity to advance arguments relevant to legal and political fights other than that of religion, and such cases were scarce.
With the exception of the GHRC who intervened in further Muslim cases such as Lachiri v. Belgium, the interveners of the French burqa case did not continue their engagement in later cases against Belgium or more recent conflicts over the Islamic headscarf.Footnote 32 Moreover, one involved advocate reported that intervening in the Muslim question encountered reluctance from parts of his organization’s “older” generation of feminist members.Footnote 33 Another NGO intervening in support of ethnic minorities, in particular, emphasized that the question of the Islamic veil was politically so sensitive that they decided not to engage in the fight. Thus, inner organizational conflicts and reluctance to engage in a politically highly sensitive topic led some actors to consciously decide against supporting the Muslim cause, while others found an opportunity to further agendas beyond the question of religion. While this observation should not lead to an over-generalization, it shows that the emerging support structure remains fragile and unevenly distributed across groups in the human rights field.
Importantly, although the newly constituted legal support structure helped to shift attention to new strategic arguments, the most prominent arguments focused on the identity narrative rather than principled broader inclusion. In fact, on the one hand, support by a range of NGOs with multiple agendas in the field of human rights has opened a broader margin for resistance for Muslim communities by moving away from the question of religion. Responding to the very contentious and fragile position of their Muslim allies, they have sought to leave the shaky terrain of religious freedom and to move to the defense of other rights instead. With NGOs coming from diverse rights areas—the Belgian lawyer as a fiscal expert and the British lawyers as experienced human rights experts—there was enough legal capital to open new legal terrain. Besides religious freedom, they invoked the right to freedom of speech, the right to privacy, and anti-discrimination. Making the case one of general legal principles, rather than specifically dealing with a highly marginal religious practice, was meant to broaden the scope of the challenge. To this end, the involved lawyers in all of the cases also brought considerations of privacy into the debate (Burchardt, Yanasmayan, and Koenig Reference Burchardt, Yanasmayan and Koenig2019). In a similar vein, actors such as the GHRC, for example, shifted its narrative to the terrain of procedural justice, underlining that burqa wearers were barely heard in the proceedings.
On the other hand, whilst leaving the terrain of religious freedom was one response to marginalization, fitting religion into the liberal narrative, which these groups themselves represented, was another. Applicants in the early headscarf cases had claimed that the French justification for banning the hijab from schools did not meet the conditions required to justify the limitations to the right to manifest a religious belief.Footnote 34 In contrast, the applicant herself and interveners in the burqa cases put a strong emphasis on the subjectivist, intimate, and individual nature of the religious choice, positing that the full-face veil was an expression of identity, lifestyle, and authenticity. S. A. S.’s lawyers emphasized her keen wish to emphasize this aspect. Paralleling a broadly noted and advertised report drafted by the OSF on the practice of full-face veil wearers, the GHRC, for example, argued that women wearing the niqab consider “it a crucial matter that the wearing of a face veil should be an autonomous personal choice, amongst others because Islam explicitly prohibits pressure in religious matters.”Footnote 35 This discursive choice mirrors both the narrow legal margin existing on the terrain of religious freedom for certain minorities and the archetypical liberal agenda that these cause lawyers have successfully inscribed in the field of human rights (Roan Reference Roan, Vyver van der and Witte1996; Thomas Reference Thomas2004). Despite growing support by experienced litigators, highly marginalized minorities politically and socially, such as Muslim communities, remain in a position where their identity, rather than the principle of religious freedom as such, becomes the main focus of the debate. This might even be a prerequisite for receiving support by liberal NGOs who embody the liberal ideal of actorhood and individual subjectivism and who face internal division regarding the question of veiling. The framing strategy thus reflects the fact that Muslim minorities become audible only under the condition of adopting dominant frames of secular identity (Amir-Moazami Reference Amir-Moazami2008).
The ECtHR acknowledged many of the arguments of the litigants but resorted to the hugely controversial “principle of living together” to maintain the lawfulness of the bans.Footnote 36 It thereby narrowed the margin of maneuver for future challenges. Again, strategies were futile when confronting unfavorable alliances of powerful stakeholders, which led Muslim advocacy organizations to turn their back on Strasbourg. Despite a growing support structure in some instances, Muslim activists remained constrained to an outsider position, which led some activists to disengage from the ECtHR. To date, no faith-based Muslim advocacy group has participated in legal proceedings in Strasbourg. This is not solely due to a lack of legal capital. Some local organizations have emerged with a specific focus on the international scene. The CCIF and the IHRC in London are two such organizations that have gathered substantial legal capital and influence in their respective national contexts. Both organizations started by developing partnerships at the European level “because certain topics were less taboo than they were at the national level,” as the CCIF noted in particular.Footnote 37 For the IHRC, the idea was to reproduce the Amnesty idea with a Muslim voice.Footnote 38
With growing organizational capacities, these actors have proven capable of supporting a large number of legal conflicts at the national level and—for the CCIF, in particular—some at the international level at the UN and Court of Justice of the European Union (CJEU). So why not at the ECtHR? In contrast to United Sikhs, the CCIF and the IHRC did not seek to use litigation for purposes of community building. In the absence of a transnational community-building process or similar organizational interests and acting not only within a locally, but globally, marginalized position, Muslim advocacy organizations had little interest in litigation if it was not for winning their cases. The CCIF, for example, took the S. A. S. case as a measure of the likeliness to win subsequent episodes of litigation. It became aware of the case only late into the proceedings and therefore could not intervene as a third party. While S. A. S. waited for the Strasbourg judges to announce their verdict, the CCIF strategically held back another case, the so-called “Baby Loup affair.”Footnote 39 This case concerned the dismissal of Fatima Afif, who refused to take off the headscarf she was wearing during her work at a French private nursery school.Footnote 40 Litigating Afif’s case, the CCIF considered appealing to a transnational court as an option after the case was lost in the French Cour de Cassation.Footnote 41 A representative of the CCIF explained: “[W]e decided to wait for the decision in the S. A. S. case. This was our barometer. We decided not to rush because we have six months to appeal to the ECtHR or to the UN, we would see with the S. A. S. decision.”Footnote 42 The ECtHR’s decision in S. A. S. marked a point of no return for the CCIF. The negative outcome and striking asymmetries between judgments involving religious majorities and Muslim minorities created ambivalent feelings among Muslim activists. The CCIF perceived the path to Strasbourg as irremediably blocked. Likewise, the IHRC emphasized its reluctance to invest in European courts since there was a real risk that they could “end up setting such a bad precedent that there isn’t anything further to be done.”Footnote 43
The Muslim activists in this study did not engage in a global agenda of community building but were primarily engaged in domestic political settings, in which any further loss would add to their marginalization. It appears from the preceding observations that disengagement from a hostile legal venue seems more likely than in cases such as those involving the Sikh activists, who found a community building purpose in the ECtHR. In contrast to Christian activists, Muslim communities faced exclusion across many European countries, and this much more fragile political position in domestic settings enhances their reluctance to initiate further negative precedents. Instead of going to the ECtHR, the CCIF turned its attention to the HRC and the CJEU.Footnote 44 Importantly, the CCIF’s reaction fed into a mobilization pattern that had already become visible in the Sikh litigation episode: “However, before doing this we still asked for a consultation with Maître B. [lawyer’s name anonymized by author] who concluded that there is a 50 percent chance. So, we thought that after S. A. S., no, we go to the UN committee, because there was the Singh decision as well regarding the 2004 law. I am sorry but the UN is really much more pragmatic.”Footnote 45 This statement shows how exclusion affects legal practices, culminating here in the disengagement from the ECtHR as a viable legal opportunity. It should be added that, in late 2020, the CCIF, which was accused of contributing to an anti-Republican climate, has been dissolved by the French government after the murder of a French teacher by an Islamic terrorist. This much-criticized dissolution adds to the already difficult process of accumulating legal capital in the Muslim community.Footnote 46 However, future change is not excluded. In particular, the noted shift of focus toward alternative legal venues (Fokas Reference Fokas2016) potentially increases the competition between different international legal units and might open new legal opportunity structures for Muslim minorities.
REDEFINING LEGAL CAPITAL AND PRINCIPLES: CONSERVATIVES LITIGATING FOR CHRISTIAN MAJORITIES
Christian majorities occupy a very different position in the European human rights field when compared to Sikh and Muslim minorities. Not only do they hold the position of a historical insider because of their influence on the drafting of the ECHR (Moyn Reference Moyn2015; Lindkvist Reference Lindkvist2018), but they also have enjoyed protection for a long time by judges reluctant to touch their privileges (Evans Reference Evans2010). They have increasingly been backed by Christian conservative advocacy groups. These actors stand in stark contrast to the previously analyzed minority advocates in terms of their organizational commitments and their position of power at the ECtHR. This position has translated into very different strategies for defending religious freedom claims. Christian advocates have attempted to (re)define the legal principles and capitals on which the field rests rather than retreating to niche strategies.
To start with, rather than commit to a specific community’s cause, Christian conservative advocacy groups have inscribed themselves into what has been termed transnational culture wars (McCrudden Reference McCrudden2015). Cause lawyering by NGOs belonging to the so-called “Christian Right”Footnote 47 emerged within the particularly litigious and religious American society. As the front-runners in the American “culture wars” (Hunter Reference Hunter1991), they fight for the moral authority over values and public life (den Dulk Reference den Dulk, Sarat and Stuart2008). Conservative advocacy organizations decided to follow judicially active liberal NGOs, such as the American Civil Liberties Union, and started using courts as a means to influence culture and politics in the United States in the 1980s (Brown Reference Brown2002; Hacker Reference Hacker2005; Hoover and den Dulk Reference Hoover and den Dulk2004; Bennett Reference Bennett, den Dulk and Oldmixon2014).
Over the past decades, the American culture wars have gone global (Annicchino Reference Annicchino2011; McCrudden Reference McCrudden2015). In fact, since the late 1990s, conservative faith-based advocacy groups have started reaching European courts. Two organizations stand out in this context. The American Center for Law and Justice set up its office in Strasbourg and Moscow in 1998. Its former chief counsel, Jay Seculow, developed a highly influential strategy among Christian conservatives in the United States (Hacker Reference Hacker2005).Footnote 48 Since that time, the French lawyer Grégor Puppinck, who is a follower of the Thomist Catholic doctrine, has chiefly presided over the Strasbourg-based branch of the ECLJ. The Evangelical Alliance Defense Fund followed suit in the year 2000 by building an “army of attorneys” in Europe (Bob Reference Bob2012, 84). The organization established the ADF in Vienna, from where the ECtHR and other European institutions are lobbied. Christian lawyers have transitioned between both organizations as well as to local organizations such as Christian Concern in the United Kingdom. Embedded in the US-driven culture wars, Christian advocates have stressed their ambition to prevent legal precedents in Europe that could negatively affect the public influence of Christian morale overseas (Hacker Reference Hacker2005; Bob Reference Bob2014; McCrudden Reference McCrudden2015). In this context, they have also noted that their liberal opponents have had long achieved victories in courts overseas and, hence, made a transatlantic move by the conservative side necessary as well (Bob Reference Bob2014; McCrudden Reference McCrudden2015).
Since the years 2000, litigants at the ECtHR—sometimes supported by secular and humanist NGOs (Bob Reference Bob2019)—increasingly challenged the long-held privileges of Christian majorities. Moreover, advances in anti-discrimination law supported by their liberal foes increasingly threatened the influence of Christian moral standards in the public realm.Footnote 49 When the ECtHR started to yield to the pressure in certain cases, advocacy groups of the Christian right developed a visibly activist stance to the liberal human rights frame, thus taking action against this rising threat of secularization (Lehoucq Reference Lehoucq2020). They have emerged in this context as typical cause lawyers (den Dulk Reference den Dulk, Sarat and Stuart2008), with priorities on securing political and cultural influence and an insider position within the legal elite itself.
Securing ties with political and legal incumbents is crucial both to prevent and to trigger change in the legal field (Fligstein and McAdam Reference Fligstein and Doug2012, 106). To a much greater extent than Muslim and Sikh minorities, Christian cause lawyers have excelled in this strategy in recent years by building political and legal power alliances in order to oppose the alleged secular attack on the values, traditions, and morality of the European nation-states. They thereby have secured a more comfortable margin to challenge cuts on the privileged position of Christian majorities. The ECLJ, in particular, has enabled established religious actors to exchange “power for law” (Dezalay and Garth Reference Dezalay, Garth, Sarat and Stuart2006). It did so in two distinct ways: by allying with powerful political and religious stakeholders and by seeking the support of members of the legal elite of the court itself.
Scholars have emphasized the first aspect, which became very visible in the case of Lautsi v. Italy.Footnote 50 In a hugely controversial judgment in 2009, the ECtHR ruled in favor of Soile Lautsi’s claim that the display of the crucifix in public school rooms contravened her right to educate her children according to her humanist beliefs. Galvanizing an instant outcry among Christians in Europe and their supporters, the decision led a self-declared “alliance against secularism,” comprising the Vatican, the Russian Orthodox Church (ROC), faith-based NGOs, ten Eastern European governments, renowned academics, and eminent lawyers, to combine forces to lobby against the judgment. One of the most renowned international legal scholars and lawyers, Joseph Weiler, represented the interveners and thus added substantial legal capital to the case. The Vatican charged the ECLJ with leading the strategy to challenge the first Lautsi decision. At the same time, the ROC contacted the ECLJ to cooperate in the case (see also Annicchino Reference Annicchino2011). The Lautsi case took place at a time when the ROC had abandoned its principled rejection of any human rights discourse to embrace a traditionalist and anti-liberal human rights agenda closely connected to Russian politics (Stoeckl Reference Stoeckl2014). The ECLJ, converging with the ROC’s ambition to shape human rights by relying on a religious understanding of human dignity, disposed of the necessary legal capital to translate the opposition into the language of law. When the Grand Chamber, in a historic move, reversed the first decision with a fifteen-to-two vote in 2011, it not only set an extremely important precedent for future jurisprudence but also fundamentally marked the broader landscape of mobilization.Footnote 51 For instance, the ADF emphasized that “Lautsi was important mostly because that’s where strategy changed for a lot of organizations and they realized the importance of third-party intervening” (see also Fokas Reference Fokas2016).Footnote 52 Since then, Christian advocacy groups, unlike minority religious actors, have systematically joined high-profile cases as third parties and gained legal and public visibility. On more than one occasion, they have done this by allying with transnational geopolitical forces.Footnote 53
What has attracted less scholarly interest, but is nevertheless of importance, is that, by progressively establishing itself as a very visible and articulate actor in the ECtHR and mobilizing prominent legal elite actors, the ECLJ has actively built connections with current and former members of the court and gained notoriety among some centrally positioned legal stakeholders. Some legal experts at the ECtHR itself systematically follow the ECLJ’s writings and have participated in conferences and seminars organized by the advocacy group. Lawyers, such as one expert working at the court who sees himself primarily “as a Thomist theologian and only then a lawyer,” are important in such connections.Footnote 54 Two former judges have joined the ECLJ as research fellows.Footnote 55 This development resonates with the ECLJ’s self-understanding as a legal, rather than a religious, interlocutor and helps the organization’s image as a neutral and impartial legal expert, matching the requirement of transnational legal elites.
Finally, how did this position in the struggle over legal power translate into legal framing strategies? Instead of fitting religious identity into legal hierarchies, the ECLJ, and, in some instances, the ADF as well, aimed to shape legal principles and hierarchies as such. In so doing, they could draw on accumulated legal capital within the field in terms of connections and historic status and sophisticated legal expertise. To start with, in contrast with community lawyers who solely litigated for the sake of their specific religious practice, the ECLJ has used its connections and notoriety as an insider of the human rights field to build a strategy that targets legitimacy questions more generally. A recent episode is a striking case in point: the ECLJ has galvanized a public outcry among conservative factions by a report targeted at its number one enemy, billionaire philanthropist George Soros. The report accuses several ECtHR judges of being too closely associated with liberal NGOs such as the OSF (Puppinck and Loiseau Reference Puppinck and Delphine2020).Footnote 56 In the latest development of this controversy, a number of legal professionals and law professors have issued an open petition for stronger surveillance of ECtHR judges based on the ECLJ’s report, signed by more than fifty-thousand individuals, and spread the news via the ultra-conservative French newspaper Valeurs Actuelles.Footnote 57 In the meantime, a member of the European People’s Party, with whom the ECLJ has formed contact after the Lautsi case (Bob Reference Bob2019), has addressed written questions on the ECLJ’s allegations to the Parliamentary Assembly of the Council of Europe.Footnote 58 Moreover, the Russian foreign ministry has publicly supported the allegations and urged the ECtHR to take measures.Footnote 59 This contentious episode illustrates how conservative NGOs, by becoming insiders of the human rights field, can provide legal professionals and states with further symbolic resources to increase opposition to the ECtHR’s liberal push (Voeten Reference Voeten2020). To complete the empirical picture, it is noteworthy that the targeted OSF—to the best of my knowledge—has not (yet) reacted to the allegations. This episode does extend, of course, beyond the religious freedom agenda, but it shows the various levels on which powerful cause lawyers may play in order to secure influence.
Competition over legitimate legal capital as well as the case selection and framing strategy developed by Christian conservatives contrasts with the niche position of Sikh and Muslim activists. Drawing on states’ and religious majorities’ geopolitical power, as well as on the Christian legal heritage, these actors have attempted to shape legal principles as such rather than resorting to niche strategies and inclining toward a minoritarian position or to the strategic compliance with liberal claims. This is most powerfully exemplified in the Lautsi case. In discussions of the Lautsi decision, the ECLJ’s director has argued that the ECHR is increasingly being interpreted “in an evolutionary way, by conceptualizing the society as the ‘open society.’ Open Society. Société ouverte.” By framing its legal argumentation as based on the “original intention of the writers of the Convention,” the organization not only fashioned its argumentation for upholding Christian privilege in secular and rational principles but also targeted the principle of power distribution itself.Footnote 60 These efforts contrast with minoritarian attempts to fashion their religious image as being compatible with secularism. Translating the majoritarian position into legal principles, Christian conservatives were able to successfully overturn the case of Lautsi, which remains an outstanding and lasting success of the Christian coalition. This capacity of brokering the religious and the political and their translation into the legal sphere is perhaps the most outstanding feature of the Christian conservative intervention in Lautsi. Confirming Vauchez’s (Reference Vauchez2014, 3) observation that “the most successful legal entrepreneurs are often the ones who manage to prove that their respective take is the least innovative and the most faithful to the ‘legal tradition’.”
This position has fed into broader campaigning, which is sometimes also in opposition to minority claims, such as in Ouardiri v. Switzerland, where the ECLJ submitted a third-party intervention in support (though not expressly stated) of the Swiss government by legitimizing the ban of the minaret when arguing that there is a need to take into account the “religious and collective dimension of national cultures” as well as the “social dimension of religion” instead of resorting to a mere individualist approach to religious freedom.Footnote 61 However, Christian conservatives are not systematically in a dominant position. In fact, the growing recognition and success of anti-discrimination laws has put Christian majorities increasingly at odds with many Western European governments. In this context, they have invested in promoting claims of conscientious objection in order to oppose gay marriage and abortion (supported by liberal advocacy organizations) on the grounds of religious freedom (Mancini Reference Mancini, Anthony and Wiener2017; Mancini and Rosenfeld Reference Mancini, Michel, Mancini and Rosenfeld2018). One might expect that, as the margin of maneuver narrows, conservatives will switch to strategies similar to those employed by more marginalized minorities and their supporters. The ADF, for example, has tended to embrace principles of anti-discrimination and to fashion itself as a minority group, which echoes similar strategic moves taken by Evangelical actors in the US legal field (Lewis Reference Lewis2017).Footnote 62 Yet the influential ECLJ, in particular, has sought to strike a different balance between its conservative organizational commitment and the narrowing margin of power. It “doubted for long about the appropriateness of [litigating conscientious objection], given that conscientious objection was too much imbued with subjectivism and relativism to be a just and trustworthy concept.” Still, it considered a shift to conscientious objection as “politically opportunistic” (Puppinck Reference Puppinck2016).
Whilst acknowledging a loss of legal territory, the ECLJ has attempted to use the right to conscientious objection as a new template for a “rational” and “objectivist” interpretation of religious freedom corresponding with its Catholic ideal of law.Footnote 63 Although retreating to a legal niche, it has refused to claim a minoritarian position or to embrace subjectivist approaches to religious identity. Instead, its focus has remained on shaping legal core principles, which became clear, for instance, in the case of Eweida and Others v. United Kingdom.Footnote 64 The case included several applications, including, inter alia, Ladele v. United Kingdom and McFarlane v. United Kingdom.Footnote 65 The ECLJ, together with other organizations, supported the applicants as third-party interveners and legal counsels. The applicants had been dismissed for objecting to carry out a civil marriage and for objecting to counsel a gay couple.Footnote 66 The cases were defended initially by Christian conservative organizations in the United Kingdom in opposition to implementing European Union anti-discrimination norms.Footnote 67
In the amicus brief filed in Ladele and in McFarlane, the ECLJ aimed to clarify, in particular, that conscientious objection to abortion and gay marriage was based on the “complementarity of belief and reason,” which itself was the “essential and distinctive element of Catholicism.”Footnote 68 In its intervention and additional campaigns in the European Parliament, the Council of Europe, and the UN, the ECLJ attempted to delineate legitimate from illegitimate reasons for conscientious objection and argued that “conscientious objection in a strict sense is motivated by a conscientious prescription, i.e., by the ‘dictamen rationis’, and not by a religious or subjectivist prescription.”Footnote 69 The organization thereby sought to frame objections grounded in Catholicism as being motivated by reason and moral rather than by subjectivist religious beliefs. It arrived at the conclusion that, while religiously grounded objections could in certain cases be legitimately restricted, the unity of moral and reason allegedly underlying objections from Catholic believers against gay marriage and abortion, marked the limit to these restrictions (Puppinck Reference Puppinck2017). In attempting to fuse sophisticated legal analysis with a reasoning originating in a Thomist view of natural law, the organization continued targeting the core legal principles despite its narrowed margin of action.
Two further observations seem important. While eager to push the ECtHR to delineate further legitimate grounds of conscience by aligning with a Catholic idea of moral, the ECLJ did not challenge existing conscientious objection jurisprudence developed specifically in cases of Jehovah’s Witnesses objecting to military service.Footnote 70 Rather, the legal analysis was combined with a distancing toward the most marginalized of the field—namely, Muslim actors. In Ladele, for instance, the ECLJ wrote: “Article 9 does not necessarily grant the positive liberty to wear the veil, but it always grants the negative liberty not to wear it.”Footnote 71 Repeatedly, the organization distinguished Catholic “moral” claims from allegedly subjectivist Muslim claims. It thus used its legal reasoning to draw a clear boundary between Christian and Muslim actors, which hardly seems to be a coincidence given that the ECLJ was acutely aware of the difficult standing of Muslim actors at the ECtHR. Furthermore, its emphasis on defining systematic, reason-guided, and objective legal criteria also enhanced the ECLJ’s attempts to be perceived as a legal expert and not solely as a faith-based advocate and, thus, to increase its symbolic capital in the human rights field. In this respect, it also seems interesting that the ECLJ even chose to intervene in other, non-religious cases, such as conscientious objection to the practice of hunting and vaccination.Footnote 72 Finally, it should be added that the agenda is not only pursued in multiple cases at the ECtHR but also in other forums, such as the UN. Thus, the ECLJ coordinated, for example, a submission by thirty French mayors to object to gay marriage, thereby also broadening its scope of influence.Footnote 73
In certain instances, such as in the cases of Ladele and McFarlane, Christian advocates have faced fierce opposition by liberal and secular advocacy organizations, mostly from the national context.Footnote 74 These interveners have supported the British courts and sought to prevent Christian activists from claiming concepts such as reasonable accommodation for their conservative purposes.Footnote 75 Although not systematically carried out, this counter-mobilization by liberal activists demonstrates that the strategic attempt to reframe religious freedom as a tool in the global culture wars does not remain unanswered. Religious freedom, instead, becomes a new terrain of ideological opposition and divisiveness. Although Christian activists have not yet achieved a major legal success in their conscientious objection agenda, this new agenda illustrates the capacity of Christian conservatives to open new venues for resistance against the loss of territory by majoritarian groups. Using their presence in different legal bodies, Christian conservatives have developed a new legal template that has allowed them to multiply challenges to the threatening legal marginalization and to aliment a global conservative alliance of geopolitical actors (Annicchino Reference Annicchino, Mancini and Rosenfeld2018).
The carefully designed conscientious objection narrative has entered the legal reasoning of central legal stakeholders. Judges close to the ECLJ, which is an important religious freedom expert at the ECtHR, and the former UN special rapporteur on freedom of religion or belief, Heiner Bielefeld (who was invited to several seminars organized by the ECLJ), have all shown themselves to be receptive to these arguments.Footnote 76 Most importantly, the conscientious objection agenda of Christian conservatives has moved the legal debate as such in a new direction. The substantial legal debate on “conscience wars” (Mancini and Rosenfeld Reference Mancini, Michel, Mancini and Rosenfeld2018) that explores the competing nature of religious and non-discrimination claims testifies to the shift achieved in the legal debate. Even if not in terms of legal outcomes, the ECLJ has helped a new trend to emerge within legal knowledge production. This success highlights the capacity of Christian conservatives to resort to a broader array of challenges to threats of legal mobilization than the community actors considered in previous sections.
CONCLUSION AND DISCUSSION
This article has examined how different positions of power and interest influence the strategic choices of advocacy organizations in support of religious freedom claims at the ECtHR. By pointing out how access, as well as strategic framings vary according to both the position of power and the organizational commitments of community activists and powerful cause lawyers, the article opens both theoretical and empirical venues for the scholarship on transnational legal mobilization. First, field theory appears as an interesting addition to scholarship that has emphasized the need to articulate the dynamic between relations of power and organizational identities (Vanhala Reference Vanhala2012; Conant et al. Reference Conant, Hofman, Soennecken and Vanhala2018) in two specific ways. It enables us to understand that actors’ choices to litigate (or not) depend on the field in which they seek to use the fruits of litigation. Some actors see an interest in litigation even if they lose because they also seek to increase professional capital or build community narratives. Others might litigate solely for domestic political purposes and hence are more vulnerable to eventual losses. Moreover, it allows to touch upon a neglected question within the literature on opportunity structures—namely, the legal framing that actors chose. Such choices are not a mere legal calculation but, rather, depend on both the position within the human rights field and—once again—the audience of the litigants. Attention to these framings can enrich our understanding of the dynamics induced by civil society participation in the legal field. In addition, the article also contributes to the literature that has applied field-theoretical approaches to the study of socio-legal dynamics. Existing socio-legal studies have explained the emergence of new legal fields and their progressive liberalization (Madsen Reference Madsen2007), the contrasting constitution of liberal legal elites (Kawar Reference Kawar2011), and the translation of claims from political to legal venues (Burchardt, Yanasmayan, and Koenig Reference Burchardt, Yanasmayan and Koenig2019). Yet, in order to comprehensively study legal field dynamics, further categories of actors such as non-elite actors, advocates excluded from the legal field, actors from communities other than that of human rights (such as religious community actors), and anti-liberal advocates should be taken into account.
The article secondly invites socio-legal scholars to analyze more thoroughly variations among legally mobilized actors. The finding that access to the ECtHR is uneven, even among advocacy groups who have sufficient legal capital at their disposal, is important. The disengagement by Muslim actors (in contrast to Sikh activists) illustrates that, for this particular minority, the trend is the opposite of the generally emphasized growing openness and opportunities for NGOs in transnational litigation (Evans Case and Givens Reference Evans Case and Givens2010; Cichowski Reference Cichowski2013). Such unevenness should receive greater attention among socio-legal scholars. Moreover, the finding that Christian supporters have mobilized in order to overthrow trends of liberalization adds to Emilio Lehoucq’s (Reference Lehoucq2020) recent emphasis of a “threat” as an additional element in understanding legal opportunity structures, which also shows that courts’ counter-majoritarian potential increasingly triggers strong opposition among civil society actors. Taken together, these findings show that the perception of legal opportunity structures might vary substantially depending on the group’s societal position.
Depending on power and professional commitments, framing choices vary. I have demonstrated that, among Sikh and Muslim actors, there is an important trend of either framing religious narratives in a way that fits dominant secular and liberal assumptions of the “good religion” (Shakman Hurd Reference Shakman2015) or escaping religious freedom framings. In contrast, Christian advocacy organizations with more substantial insider connections at the ECtHR and the ambition to be part of the legal elite itself have invested more in developing alternative principled approaches, which are often at odds with a liberal understanding of human rights. Importantly, this is not exclusively a matter of power. In fact, I have observed that, even when increasingly at odds with incumbent stakeholders, some conservatives elaborate strategies to fit legal niches and yet do not give up on principled positions, which reflects a very different balance between power relations and organizational commitments than the one struck by Muslim or Sikh actors. Their resources and connections allow them to expand such strategies and multiply cases at the ECtHR.
These divergent framings underline the broader claim of a thriving socio-legal literature that legal activists need to balance divergent, and sometimes conflicting, commitments when using legal repertoires (Merry Reference Merry2006; van der Vet Reference Van der Vet2012). Yet, so far, scholars have not put a strong emphasis on comparative approaches. Domestic versus transnational commitments, legal versus community agendas, and insider versus outsider positions are all possible positions that merit greater attention when examining how grievances are translated into human rights claims and how the leverage for resistance against legal marginalization can vary across advocacy groups. Expectations as to activists’ capacity to promote legal inclusion should be nuanced by emphasizing the different repertoires of action that unequally positioned actors can use.
Finally, legal change is a question that goes beyond the scope of this article. Sikh and Muslim strategies had little or no chance of success from the outset since both political and judicial elites were against them. Christian conservatives were more successful, and their capacity to mobilize powerful stakeholders has clearly mattered in this respect. However, when governments turn against them, they have proven to be less successful, as the example of conscientious objection has shown. This observation suggests at least for the cases at hand that political constellations are a more determining explanatory factor for legal change than the legal strategies adopted. While the research design adopted here does not allow this finding to be generalized, it becomes clear that, even when Christian conservatives oppose incumbents, they remain in a position from which to promote new legal agendas, multiply legal challenges, attack judges’ legitimacy, and feed into globally rising anti-liberal frames, which are debated in a growing field of judicial studies. This reflects a broader leverage to oppose/vie for legal change than observed in cases by highly marginalized Muslim minorities, in particular. These findings should not overshadow the importance of advocacy groups and the fact that the ECtHR remains essentially a tool for minority inclusion. My conclusion is more nuanced in that I propose that it is not only case outcomes, but also margins of maneuver and discursive repertoires deployed in the human rights field (retreat to niches versus a global counter-agenda against liberalism), that mirror inequalities and can be influential in future legal debates.
