Pei on Burqa Bans and the European Court of Human Rights

Sally Pei (Yale University Law School) has posted Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights. The abstract follows.

Over the past decade, Europe has been the site of strident debates over integration and Islam. One major pole of controversy is the trend toward enacting legislation to prohibit Islamic veils from public places. Laws banning face coverings, already in force in France and Belgium, are under consideration in a number of European countries, including the Netherlands, Italy, and Switzerland. The laws raise fundamental questions about what it means to be French, Belgian, Dutch, or indeed European. But the bans are of special interest for another reason: They provide a likely testing ground for the nascent nondiscrimination jurisprudence of the European Court of Human Rights (“the Court”), and a potential opportunity to bolster legal safeguards against discrimination at the regional level.

The laws might seem to invite an obvious challenge on the grounds that they deny the right to religious freedom guaranteed by Article 9 of the European Convention. But previous cases addressing restrictions on religious dress have sharply narrowed that avenue for redress. This Comment argues, however, that Article 14 nondiscrimination claims can fill that void. The Court’s Article 14 jurisprudence has long been criticized for its limited scope and application, but a recent line of cases in the education context evinces the emergence of a new doctrinal approach to discrimination. Properly applied and reinforced, that case law could mature into a general analytical framework for addressing the claims likely to arise from anti-burqa legislation and other discriminatory measures.

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