Tag Archives: European Court of Human Rights

Kontorovich on the Council of Europe’s New Recommendation to Ban Circumcision

Eugene Kontorovich has an interesting and, to my mind, in portions persuasive comment on the Council of Europe’s new recommendation that nations should consider banning circumcision. I say this as someone who disagrees with Professor Kontorovich about the constitutional merits of the test laid out in Employment Division v. Smith. Indeed, as I have written before, there is a largely unfounded optimism in the wisdom and good will of democratic majorities that is presumed in the approach of Smith–a presumption that is borne out beautifully when the majority is with you, but less well when it turns against you. An aristocratic (in the Tocquevillian sense) buffer (see the judiciary) on the moral certitudes of popular, democratic fancy is a healthful thing, particularly when it serves to remind the people of its fundamental, deeply rooted, political traditions.

That is why I have some questions about the first half of Professor Kontorovich’s comment, and it is also the reason that though I sympathize with the final line of his post, I find that the Smith approach is likely to make things much worse. But the second half seems right on target to me. A bit:

Yet from a broader perspective, such measures are [an] historic, epochal, dizzying step backward for religious liberty. They are illiberal and intolerant in the deep sense. Jews have been allowed to fully practice their religion on the Continent since even before the Enlightenment (though subject to other restrictions). Now, at the time of the supposed greatest openness and freedom, the end of religious wars, the central Jewish rite would be banned.

It requires an extraordinary moral certitude to conclude that one established the evil of a universal normative practice of the oldest monotheistic religion, a practice that Europeans, including anti-Semites, have tolerated for as long as Jews have been there. Burkeans they are not, at the Council of Europe.

This represents a massive failure of the liberal imagination. Tolerance requires, perhaps more important than legal restraints, habits of the mind. All religious practices seem odd and bizarre to outsiders. Tolerance requires understanding the importance of these practices to the practitioner – a lack of total certitude . . . .

Indeed, the new European conscience might find circumcision repugnant, but certainly not as repugnant as Protestants and Catholics in Europe for centuries regarded each other’s practices. Yet for over 300 years, they have been able to live and worship fully in each other’s countries. On this backdrop, anti-circumcision legislation shows how far back we have gone while making progress.

It seems that such laws are a product less of an anti-Semitic mind-set than an anti-religious one, in which a practice that seems odd is more likely to be barbaric if it is a religious rite. Today’s secularism may be less forgiving than yesterday’s pietism. . . .

There are important lessons for the U.S. Religious freedom depends in many ways on the tolerance of the majority, if one thinks as I do that Employment Division v. Smith was rightly decided. That tolerance has long existed, more or less, in a predominantly Protestant America, a Christian America, and a simply religious America. But it is not guaranteed.

Adhar on Secularism

Rex Adhar (University of Otago, New Zealand) has published an article, “Is Secularism Neutral?”, in this month’s edition of Ratio Juris (subscription required). The abstract follows:

This article argues that secularism is not neutral. Secularization is a process, the secular state is a structure, whereas secularism is a political philosophy. Secularism takes two main forms: first, a “benevolent” secularism that endeavours to treat all religious and nonreligious belief systems even-handedly, and, second, a “hostile” kind that privileges unbelief and excludes religion from the public sphere. I analyze the European Court of Human Rights decision in Lautsi v Italy, which illustrates these types. The article concludes that secularism as a political philosophy cannot be neutral, and the secular state is not neutral in its effects, standpoint, governing assumptions or treatment of religious truth claims.

Pearson on Article 9 and the Eweida Judgment

From Oxford’s Human Rights Law Review, an essay by Megan Pearson (PhD Candidate, LSE) on Article 9 of the European Convention on Human Rights, particularly its prohibition on state interference with religious freedom:

Freedom of conscience and religion is probably unique in its potential to challenge almost every area of law. Since society contains a multitude of religious and moral beliefs, many religious people will constantly be faced with practices with which they disagree and will in a myriad of ways be constrained from living an ideally religious life. Not all of this can constitute an interference with the right under Article 9 of the European Convention on Human Rights (ECHR) to manifest belief ‘in teaching, practice and observance’. However, the European Court of Human Rights’ (‘the Court’) approach has historically been unnecessarily restrictive in considering whether an interference under Article 9(1) exists, thus shutting out cases at an early stage of reasoning and before justification is considered under Article 9(2). This approach has been narrowed even further by the British courts.

Article 9 has therefore been of limited use to claimants. The first full case to be heard on it by the Court was not until 1993 as earlier cases were ruled inadmissible by the European Commission of Human Rights. However, the Court’s approach is currently in a state of flux, as demonstrated by Eweida v United Kingdom and is moving to a broader approach that correctly moves the attention to the justification stage.

This article focuses on Article 9(1) and the question of interference. It does not consider when interferences will be justified. The first part will consider various proposals for deciding ‘where rights begin’. It will then address specific questions arising from ECHR and English case law on the topic, considering in particular whether it should be possible to claim an interference where the conflict could be avoided by resigning from employment or taking other similar action. The third section will consider the change brought by Eweida and discuss some remaining issues that have not yet been resolved.

Hill & Whistler, “The Right to Wear Religious Symbols”

ShowJacketNext month, Palgrave Macmillan will publish The Right to Wear Religious Symbols by Daniel J. Hill (University of Liverpool) and Daniel Whistler (University of Liverpool). The publisher’s description follows.

Few issues concerning religious freedom provoke so much controversy and debate as the extent to which religious symbols should be protected in the public sphere and the workplace. This book provides the first sustained philosophical analysis of the concepts at issue in this debate, as well as covering all the major recent cases brought under Article 9 of the European Convention of Human Rights, including the landmark judgment Eweida v UK. In particular, it gives a clear presentation of the current state of the case-law, grounding it, in a unique contribution to the debate, in an investigation of its philosophical underpinnings. Particular attention is paid to different functions of the symbol and their theoretical background, with new emphasis on the role of the symbol in bearing witness to faith. This book will open up new vistas for philosophers of religion and legal theorists alike.

European Court Rules Clergy Cannot Unionize Over Church’s Objection

In a much-anticipated decision, the Grand Chamber of the European Court of Human Rights ruled today, 11-6, that Romania did not violate the European Human Rights Convention when it refused to register a trade union that Romanian Orthodox priests had formed against the wishes of the Romanian Orthodox Church. The decision, with important implications for church autonomy, overrules a contrary judgment by a chamber of the court last year.

Article 11 of the European Convention grants citizens–including, the Grand Chamber ruled today, clergy–the right to form trade unions, subject to restrictions that are necessary to advance legitimate governmental interests, including the “protection of the rights and freedoms of others.” Here, the Grand Chamber reasoned, Romania had restricted the priests’ right to form a union in order to protect the autonomy of Romanian Orthodox Church. Among other things, the proposed union was meant to promote members’ ability to obtain representation in the Holy Synod, the Church’s highest authority, and to strike in order to advance members’ interests within the Church. By registering a union with goals like these, the Grand Chamber reasoned, the state would hamper the ability of the Church to organize and govern itself according to its own rules:

Respect for the autonomy of religious communities … implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is … not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them.

In other words, because the union posed a real risk to the organizational integrity of the Romanian Orthodox Church, Romania was justified in refusing to register the union–particularly given the wide “margin of appreciation” the Convention grants states with respect to church/state relations.

The Grand Chamber’s decision contains language suggesting a sweeping view of church autonomy, but one could also see it as somewhat narrow. The Grand Chamber noted that nothing would stop clergy from forming a union “that pursues aims compatible with the Church’s Statute and does not call into question the Church’s traditional hierarchical structure and decision-making procedures.” And it emphasized the the fact-specific nature of the inquiry, stating at one point that “national courts must … conduct[] an in-depth examination of the circumstances of [a] case and a thorough balancing exercise between the competing interests at stake.” The resistance to a categorical rule is reminiscent of the US Supreme Court’s analysis in Hosanna-Tabor, the “ministerial exception” case. A third-party submission by the Becket Fund and the International Center for Law and Religion Studies discussed Hosanna-Tabor, but the Grand Chamber did not expressly rely on the American decision in its own reasoning.

The case is Sindicatul Pastoral cel Bun v. Romania (July 9, 2013), available at the ECtHR’s website, here. The Becket Fund’s press release about the decision is here.

Worth A Thousand Words

In my last post, I discussed the question of attribution of messages. Today, I want to turn to the perception of messages, in particular, the visual perception of religious symbols. We all know the saying that a picture is worth a thousand words. Does it make sense, then, for courts to distinguish between the textual and the visual, and to consider the latter less troublesome than the former?

Let me start with the European Court of Human Rights (ECtHR) Grand Chamber decision in the Italian classroom crucifix case, Lautsi v. Italy. The Italian government argued “[w]hatever the evocative power of an ‘image’ might be . . . it was a ‘passive symbol’, whose impact on individuals was not comparable with the impact of ‘active conduct’.” Referencing an earlier decision of the German Federal Constitutional Court, the applicants conversely argued “[a]s to the assertion that it was merely a ‘passive symbol’, this ignored the fact that like all symbols—and more than all others—it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible.”

The Grand Chamber explicitly addressed the active/passive distinction, stating that “a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court’s view, particularly having regard to the principle of neutrality. It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.” Several concurring opinions also addressed the designation of the crucifix as a “passive” symbol. The concurring opinion of Judge Power agrees with the majority’s assessment of the crucifix as a passive symbol “insofar as the symbol’s passivity is not in any way coercive,” but her assessment is more nuanced. She “concede[s] that, in principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner.” In her framing, the question is not whether symbols can communicate like textual language—she asserts they can—but whether the message communicated is one that violates the negative religious freedom of the observer under the Convention.

The ECtHR is not alone in asserting that visual religious symbols are “passive”: In Lynch v. Donnelly, Chief Justice Burger said the crèche was “passive”; in Allegheny County, Justice Kennedy used the “passive” label to describe the holiday displays; Chief Justice Rehnquist said the Ten Commandments monuments (featuring text) in Van Orden v. Perry were “passive”; in his dissent in McCreary County, Justice Scalia said the Ten Commandments display was “passive”; and the lower courts use the “passive” symbols language as well.

The “passive” label is used in two ways (alternatively or cumulatively). It can be an empirical claim about the way in which visual images communicate. Passivity used in this way suggests less ability to communicate effectively than textual speech. Or “passive” is a label for a bundle of factors—including brief exposure to the symbol, a vague notion of minimal offensiveness, or other characteristics of the symbol that result in its presumed noncoerciveness. But these notions, unlike the empirical claim, go to the context and cultural meaning of the symbol. The empirical claim is false; the neuroscience of visual perception just does not work that way. The context-and-cultural-meaning claim is complex and the “passive” designation is at best an ambiguous and misleading label. Either way, courts here and abroad should stop using the “passive” label to describe religious symbols.

Thanks, Mark and Marc, for having me over!

Says Who?

Just in time for my post on symbols, the New York Times picks up the topic as well. So this is page A1 news! Of course, the underlying issue—the treatment of religious symbols in the public sphere—is hardly new. But it continues to be contested and rich and fascinating to study in comparative perspective.

Let me focus in this post on the question of attribution and the role of individual religious expression as opposed to expression of a religious viewpoint or identity by the state. The Times story opens with a Roman Catholic archbishop reminiscing about visiting Brussels and encountering there “the insistently secular bureaucracy of the European Union.” The story continues with the statement “’They let me in wearing my cross,’ the archbishop recalls.” Should he have been surprised? The story then continues with “the rude surprise” that ensued after the Commission objected to crosses on commemorative Euro coins. But should that be surprising?

None of this should be surprising to anyone accustomed to the U.S. concept of a free exercise and establishment distinction. Attribution is a central threshold question in the United States. We are very familiar with the attribution issue, because deciding whether the message is one attributable to the state or the individual determines whether the message is fully protected as a matter of free speech and free exercise or whether it is subject to Establishment Clause limits (which, by the way, does not automatically indicate a violation on the merits). When I talk about religious messages in the U.S. context, I must therefore distinguish between messages of the government and messages of individuals. (I’ve written about the intricacies of that question in the U.S. context in more detail here.)

This (from the U.S. perspective) familiar question of attribution is also gaining importance in the European context, and what makes it particularly interesting there is that we do not have this split into free exercise and nonestablishment in most systems. Take, for instance, the European Convention on Human Rights. The Convention itself contains no Establishment Clause-type provision. But in the case law of the European Court of Human Rights (ECtHR) an interesting development is occurring. Article 9 contains the Convention’s religious freedom provision. In Article 9(2) we find the limitations clause (also a typical feature of continental constitutions). It states: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

As I’ve discussed here, recent case law seems to be slowly developing the meaning of the limitations clause beyond the limit on individual free exercise that it originally was by focusing on the type of democratic society envisioned by the Convention. An indicator of that development is the ECtHR’s emphasis on pluralism in the sense of allowing citizens of all faiths as well as nonreligious citizens to flourish in a democratic society. And that leads to a limit to religious identification imposed on the state itself, as opposed to limit on the individual’s free exercise. In short, the clause might become a limit on the state’s identification with religion. This is where we ask the attribution question. And in a system without a distinction between free exercise and nonestablishment, the interesting point to me is that we’re now starting to ask this question in the first place.

So if we ask about attribution—a question that has not traditionally been asked in the European context precisely because those systems tend not to have an establishment clause-like provision—we ask about the state’s actions, or religious expressions, as distinct from the individual’s actions or messages. And if we set the problem up this way, we are creating a dichotomy that many European national systems do not recognize. And so I find myself wondering whether national concepts of the public sphere may be on a collision course with what the European Court of Human Rights appears to be tending toward.

Annicchino on Religious Autonomy

For our followers who read Italian, CLR Forum guest poster Pasquale Annicchino (European University Institute) has posted a comparative essay on religious autonomy in the US and Europe, The Conflict between the Autonomy of Religious Groups and Other Fundamental Rights: Recent Decisions of the U.S. Supreme Court and the European Court of Human Rights. Here’s the abstract:

The principle of autonomy of religious groups has acquired new importance in the recent decisions of the United States Supreme Court and the European Court of Human Rights. This article will analyze and compare the decisions by these two courts, with a particular focus on the circulation of legal arguments between the two different legal orders.

McCrudden & O’Leary, “Courts and Consociations”

This May, Oxford University Press will publish Courts and Consociations: Human Rights versus Power-Sharing by Christopher McCrudden (Queen’s University, Belfast & University of Michigan Law School) and Brendan O’Leary (Queen’s University, Belfast).  The publisher’s description follows.Courts

Consociations are power-sharing arrangements, increasingly used to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts. Current examples include Belgium, Bosnia, Northern Ireland, Burundi, and Iraq. Despite their growing popularity, they have begun to be challenged before human rights courts as being incompatible with human rights norms, particularly equality and non-discrimination.

Courts and Consociations examines the use of power-sharing agreements, their legitimacy, and their compatibility with human rights law. Key questions include to what extent, if any, consociations conflict with the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements.

In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and then in Sejdic and Finci v Bosnia regarding the constitution established for Bosnia Herzegovina under the Dayton Agreement. The Court’s decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in Belgium. This book accounts for this change and assess its implications. The problematic aspects of the current state of law are demonstrated. Future negotiators in places riven by potential or actual bloody ethnic conflicts may now have less flexibility in reaching a workable settlement, which may unintentionally contribute to sustaining such conflicts and make it more likely that negotiators will consider excluding regional and international courts from reviewing these political settlements.

Providing a clear, accessible introduction to both the political use of power-sharing settlements and the human rights law on the issue, this book is an invaluable guide to all academics, students, and professionals engaged with transitional justice, peace agreements, and contemporary human rights law.

Pussy Riot Goes to Strasbourg

Year by year, it becomes clearer that Russia will be an important participant in global conversations about law and religion. This is true with respect to religious law—the canons of the Russian Orthodox Church (ROC)—and also with respect to church- state and religious freedom issues.

For European scholars, it will be crucial to understand how the vocal and active presence of the ROC in the courts will influence the case-law of the European Court of Human Rights (ECtHR). I have already shown that the ROC was a key player in the Lautsi case on the display of the crucifix in Italian public schools. After the first decision in Lautsi, Metropolitan Hilarion of Volokolamsk, chairman of the ROC’s Department of External Church Relations, clearly expressed his opinion–on the judgment, the Court, and the need for action by religious groups–in a letter to the Vatican Secretary of State, Cardinal Tarcisio Bertone:

“We consider this practice of the European Court of Human Rights to be an attempt to impose radical secularism everywhere despite the national experience of church-state relations. The above mentioned decision is not the only one in the practice of the Court, which has increasingly shown an anti-Christian trend. Taking into account the fact that the decisions of the European Court of Human Rights have clearly lost touch with legal and historical reality in which most of the Europeans live, while the Court itself has turned into an instrument of promoting an ultra-liberal ideology, we believe it very important that religious communities in Europe should be involved in a discussion concerning its work”.

For these reasons, it will be interesting to see how the ECtHR decides the recently-lodged case of the Pussy Riot punk band (above), some of whose members were arrested after performing a “punk prayer” in one of the most important Russian churches. Maria Alekhina, Yekaterina Samutsevich and Natalia Tolokonniva were in fact sentenced to two years in prison on the charge of “hooliganism motivated by religious hatred”. The complaint at the ECtHR, filed one month ago, alleges that the group’s conviction amounts to a violation Convention’s guarantees of  freedom of speech, the right to liberty and security, the prohibition of torture and the right to a fair trial.

If the cases moves forward, it promises to be an important one in many regards: both for the legal arguments and standards that the Court will apply to balance (or not) the different rights at stake, but also for the position religious groups, like the ROC, take in any third party interventions before the Court.