NARROW INTERPRETATION

It is not immediately apparent from the jurisprudence of the European Commission on Human Rights (EComHR) or the European Court of Human Rights (ECtHR) whether Article 9 of the European Convention on Human Rights (ECHR) actually protects a right to be free from religion or belief. In fact, linguistic analysis reveals that neither the phrase ‘freedom from religion’ nor the right to be ‘free from religion’ ever appears in the case law. This is certainly striking but it is not definitive evidence that such a right does not exist under Article 9. In terms of phrases used to describe Article 9 rights, there is considerable conceptual variation.Footnote ³ While the EComHR and ECtHR have often used the expression ‘freedom to X’ to describe Article 9 rights, such as the ‘freedom to hold’Footnote ⁴ and the ‘freedom to manifest’Footnote ⁵ a religion or belief, they have not typically used the expression ‘freedom from X’ to describe Article 9 rights.

Generally speaking, the Strasbourg organs prefer to describe Article 9 rights as either rights ‘to do X’ (such as the rights to hold, to change and to manifest religion or belief) or as rights ‘not to do X’ (such as the rights not to hold and not to disclose religion or belief). The former are considered positive rights, the latter negative rights.Footnote ⁶ In recent years, recognition and protection of a number of new negative rights by the ECtHR has drawn into focus this distinction between positive and negative rights to the extent that it can now be used as another way of categorising Article 9 rights.Footnote ⁷

Positive and negative rights are corresponding rights which ‘go together like two sides of a coin’.Footnote ⁸ Largely, for each positive Article 9 right identified and protected in the case law there is a correlating negative Article 9 right. Take the positive right to hold a religion or belief; this has as its corresponding negative right the right not to hold a religion or belief.Footnote ⁹ According to the Strasbourg jurisprudence, this negative right includes not only the right not to be forced to hold a religion or belief but also the right not to be forced into taking part in religion- or belief-related activities against one's will.Footnote ¹⁰

In the literature relating to the right to freedom of thought, conscience and religion (just as in the case law), it is common to see positive rights referred to interchangeably as both rights ‘to do X’ and rights to be ‘free to do X’. What is distinctive about the literature, however, is that, unlike the case law, negative rights are referred to not only as rights ‘not to do X’ but also as rights to be ‘free from X’. The right not to hold a religion or belief (or to participate in religion- or belief-related activities against one's will) is, therefore, sometimes referred to as the right to be free from religion or belief.Footnote ¹¹

Following this particular understanding of the freedom to/freedom from framework, if the right to be free from religion is understood synonymously with the right not to hold a religion or belief or be forced into religion- or belief-related activities, there is evidence that Strasbourg does recognise and protect such a right. The fact that neither the EComHR nor ECtHR has made reference to a right to be free from religion does not mean that there is no such right. It is simply a matter of semantics.

This is, however, a very precise interpretation of freedom from religion and one which is largely limited to academic analyses. In material from practitioners and organisations working in the field, it is more common to see a much broader interpretation of freedom from religion. It is claimed that included in the scope of the right to be free from religion is not only the right not to hold a religion or belief and the right not to be forced into participating in religion- or belief-related activities, but also a right to be free from exposure to manifestations of religion or belief by others in the public sphere.Footnote ¹² This broad interpretation of freedom from religion has been, and continues to be, used to support arguments for restrictions on manifestations of religion or belief in the public sphere and the enforced privatisation of religion or belief.Footnote ¹³ But is there any support for this interpretation of ‘freedom from’ religion in the Strasbourg jurisprudence? At this point it is necessary to turn to the controversial case of Lautsi v Italy.Footnote ¹⁴

BROAD INTERPRETATION

In the 2009 case of Lautsi v Italy (Lautsi I), Mrs Lautsi complained, inter alia, that the display of crucifixes in school classrooms was contrary to the principle of secularism according to which she wanted to raise her children (an Article 2, Protocol 1 complaint relating to the education of children) and that it infringed her right and her children's right not to hold a religion or belief (an Article 9 complaint). The broader purpose of these complaints was to persuade the ECtHR to rule in favour of religious neutrality in state school classrooms and to recognise an extensive right to freedom from religion under Article 9. The ECtHR did, in fact, do both of these things. First, the Court explained that the state had a ‘duty to uphold confessional neutrality in public education’.Footnote ¹⁵ Second, it provided a broad interpretation of the negative right not to believe under Article 9.

It is this interpretation of the negative right not to believe which is particularly interesting for this discussion of freedom from religion. The Court began by reiterating the general principle that Article 9 protects both the ‘freedom to believe and the freedom not to believe’, the latter being described as a ‘negative freedom’.Footnote ¹⁶ When the Court applied this principle to the facts of the case, however, it dramatically expanded the meaning of this negative freedom. The Court explained that negative freedom was not ‘restricted to the absence of [coercion to take part in] religious services or religious education’ but extended to the absence of ‘practices and symbols expressing, in particular, or in general, a belief, a religion or atheism’.Footnote ¹⁷ This was a radical interpretation of negative freedom which can be read as creating a new right not to be exposed to manifestations of religion or belief (whether through practices or symbols) under Article 9.

In the context of the Court's assessment, and in the light of the direction of earlier case law relating to the wearing of headscarves in an educational setting following Karaduman v Turkey,Footnote ¹⁸ this far-reaching interpretation of negative freedom was not entirely unexpected. Relying on both Dahlab v Switzerland and Karaduman v Turkey for support, the Court drew upon a line of thought in the case law that manifestations and symbols of religion may place ‘pressure’ upon individuals ‘who do not practise that religion or … adhere to another religion’.Footnote ¹⁹ In respect of the complaint in Lautsi I, the Court argued that the crucifix was a ‘powerful external symbol’ and, while it might ‘be encouraging for some religious pupils', it might ‘be emotionally disturbing for pupils of other religions or who profess no religion’.Footnote ²⁰

What is more striking than the interpretation itself, however, is the weight given to this expanded notion of the negative freedom not to believe. In Lautsi I the Court argued that in situations where it is the ‘State which expresses a belief and dissenters are placed in a situation from which they cannot [easily] extract themselves’ this ‘negative right deserves special protection’.Footnote ²¹ Therefore, rather than arguing for the precedence of the right to manifest religion or belief, or for a balancing between the positive right to manifest and the negative right not to be exposed to manifestations, the Court argued that when these positive and negative rights collide in the educational context, it is the negative right not to believe which trumps.

This, along with the opinion that the state had failed in its duty to respect neutrality in the field of education, led the Court to the conclusion that the ‘compulsory display of a symbol of a particular faith’ in the classroom restricted ‘the rights of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not to believe’.Footnote ²² In a unanimous decision, the Court held that the presence of crucifixes in state school classrooms violated Article 2 of Protocol 1 taken together with Article 9.

This broad interpretation of negative freedom not to believe in Lautsi I can, therefore, be interpreted as providing support for the claim that Strasbourg protects a right to be ‘free from religion’ in the sense of a right not to be exposed to manifestations of religion or belief in the public sphere. Furthermore, where the positive right to manifest and this negative right not to be exposed to manifestations collide in the public sphere, it is the negative right which should take precedence.

CRITICISMS

There are three fundamental problems with continued reliance on Lautsi I. First, the judgment demonstrates a serious lack of legal rigour with respect to, and a misunderstanding of, the concept of ‘negative rights’. It was explained above that, in terms of the Strasbourg jurisprudence, positive and negative rights are corresponding rights. While a right not to be exposed to manifestations of religion or belief may look like the negative counterpart to the positive right to manifest a religion or belief, it does not function in the same way as other negative Article 9 rights. This is because the right not to be exposed to manifestations of a religion or belief does not correspond to but rather stands in complete contradiction to the positive right to manifest religion or belief in worship, teaching, practice and observance in public or private. It is, then, an ‘anti-right’.Footnote ²³ Furthermore, the Court's suggestion that, where these two rights conflict, the right not to be exposed to such manifestations should be given precedence, seriously undermines the protection of the right to manifest religion or belief and flies in the face of established EComHR and ECtHR jurisprudence.

Second, when Lautsi I was reviewed by the Grand Chamber in 2011 (Lautsi II), the decision was completely overturned. Unlike the Court in Lautsi I, the Grand Chamber focused mainly on the issue of indoctrination under Article 2 of Protocol 1 rather than on the Article 9 complaint. Since it found that the display of crucifixes in state school classrooms did not denote a process of indoctrination and was within the margin of appreciation afforded to states, it held (by 15 votes to 2) that there was no violation of Article 2 of Protocol 1 and decided that no separate issue arose under Article 9. In respect of Article 9, the Grand Chamber simply noted that this article protects the ‘freedom not to belong to a religion’ and imposes an obligation upon states of neutrality and impartiality.Footnote ²⁴ The fact that it adopted an entirely different approach, avoided using the concept of negative freedom and made no mention of a right not to be exposed to practices or symbols relating to religion or belief suggests an implicit rejection of the earlier Court's broad interpretation of the freedom not to believe in Lautsi I.Footnote ²⁵

Third, when the Strasbourg Court could have used the broad interpretation of the freedom not to believe, set out in Lautsi I, to support its finding in SAS v France that the French ban on face coverings in public did not violate Articles 8 or 9, it did not do so.Footnote ²⁶ Rather than following Lautsi I and reasoning on the basis of a negative right to be free from exposure to manifestations of religion or belief in the public sphere, in this case the Court relied instead on the notion of ‘“living together” as an element of the “protection of the rights and freedoms of others”’.Footnote ²⁷ This can be taken as further evidence that Strasbourg has abandoned the broad interpretation of the negative right not to believe in Lautsi I.