Tag Archives: European Court of Human Rights

Adrian, “Religious Freedom at Risk”

In October, Springer will release “Religious Freedom at Risk: The EU, French Schools, and Why the Veil Was Banned,” by Melanie Adrian (Carleton University). The publisher’s description follows:

This book examines matters of religious freedom in Europe, considers the work of the European Court of Human Rights in this area, explores issues of multiculturalism and secularism in France, of women in Islam, and of Muslims in the West. The work presents legal analysis and ethnographic fieldwork, focusing on concepts such as laïcité, submission, equality and the role of the state in public education, amongst others. Through this book, the reader can visit inside a French public school located in a low-income neighborhood just south of Paris and learn about the complex dynamics that led up to the passing of the 2004 law banning Muslim headscarves. The chapters bring to light the actors and cultures within the school that set the stage for the passing of the law and the political philosophy that supports it. School culture and philosophy are compared and contrasted to the thoughts and opinions of the teachers, administrators and students to gage how religious freedom and identity are understood. The book goes on to explore the issue of religious freedom at the European Court of Human Rights. The author argues that the right to religious freedom has been too narrowly understood and is being fenced in by static visions of Islam. This jeopardizes the idea of religious freedom more broadly. By becoming entangled with regional and domestic politics, the Court is neglecting important nuances and is jeopardizing secularism, pluralism and democracy. This is a highly readable and accessible book that will appeal to students and scholars of law, anthropology, religious studies and philosophy of religion.

Center for Law and Religion Hosts Dr. Pasquale Annicchino

MLM Class 1

Professors DeGirolami, Annicchino and Movsesian with Seminar Students

We were delighted to have our old friend, Dr. Pasquale Annicchino of the EsportareEuropean University Institute in Florence, visit with us yesterday. Pasquale gave a presentation in Mark’s Comparative Law & Religion seminar about his brand new book, Esportare La Libertà Religiosa: Il Modello Americano Nell’arena Globale [“Exporting Religious Freedom: The American Model in the Global Arena”] (Il Mulino). (For those that may not know, il Mulino is Italy’s most prestigious publisher). The book’s primary concern is about the influence of the International Religious Freedom Act of 1998 on international conceptions of religious liberty, and the different sorts of ideological and related resistance that the American model has encountered. The book has been discussed and reviewed in Il Corriere della Sera, Il Foglio, and The Economist.

Here’s the description of the book:

Con l’adozione nel 1998 dell’lnternational Religious Freedom Act gli Stati Uniti hanno posto al centro della loro politica estera la protezione e la promozione del diritto di libertà religiosa. Le istituzioni e le politiche che sono seguite hanno permesso agli Stati Uniti di ergersi a modello di iniziativa per la tutela della libertà religiosa nell’arena globale. Lungi dal rimanere un esperimento isolato, l’iniziativa statunitense ha influenzato l’Unione Europea, il Canada, il Regno Unito e l’Italia. Il volume analizza il modello normativo-istituzionale americano e passa in rassegna i sistemi che ad esso si sono ispirati. Ne risulta una libertà religiosa indebolita nella sua concezione universale ed unitaria e minacciata da specifici interessi politici e nazionali.

[With the adoption in 1998 of the International Religious Freedom Act the United States placed the protection and promotion of religious freedom at the center of its foreign policy. The institutions and politics that followed allowed the United States to raise up its initiative as a model for the defense of religious freedom in the global arena. Far from being an isolated experiment, the US initiative has influenced the European Union, Canada, the United Kingdom, and Italy. This volume analyzes the American normative-institutional model and surveys the systems that it has inspired. What has resulted is the weakening of religious freedom as a universal conception, threatened by specific political and national interests.]

Ironies in Indiana

Some readers have asked me what I think about the Indiana RFRA controversy, as an academic who studies law and religion. To my mind, opponents of the law have succeeded in creating a false sense of crisis about the evil this allegedly unprecedented law would unleash in America. In this, they have been greatly assisted by the media’s framing of the issue and and by the support of corporate titans like Apple and Walmart, which have decided to intervene in the dispute–incidentally proving, as Justice Alito argued in Hobby Lobby, that for-profit corporations sometimes do express goals other than merely making money.

In addition, it seems to me that the controversy contains three very significant ironies, two for the law’s opponents and one for its supporters.

First, notwithstanding opponents’ efforts to portray the Indiana statute as an innovation, the balancing test it establishes is nothing new. The test, which holds that government cannot impose substantial burdens on citizens’ religious exercise without showing a compelling need to do so, and without choosing the least-restrictive means for doing so, was American constitutional law for decades, until the Supreme Court jettisoned it for most purposes in 1990. It is the test embodied in the federal version of RFRA, enacted without opposition more than 20 years ago; in the many state versions of RFRA; and in the constitutional law of many other states. Indeed, according to scholars Cole Durham and Brett Scharffs, the compelling-interest test is the majority rule in the United States today. It’s true that there are a couple of differences in the Indiana law, but those differences are pretty minor, and anyway the debate has not focused on them.

Even more: something like the compelling-interest test is the rule in liberal societies around the world. The European Convention on Human Rights, for example, provides that a member state can interfere with citizens’ exercise of religion only where the state shows that the interference is “necessary” to achieve an important interest. Many countries have similar balancing tests, including Canada, Israel, and South Africa. From a global perspective, there is nothing unusual about the Indiana statute.

Second, the Indiana statute leaves ultimate determinations to the courts. It does not, as some of its opponents  misleadingly claim, legalize discrimination against gays and lesbians. In the unlikely event that an Indiana business refused, in violation of any applicable anti-discrimination laws, to serve gay people, and claimed a religious justification for doing so (how many such businesses are there, anyway?), the case would proceed to litigation, in which a court would determine (1) whether requiring a business to serve gay customers is, genuinely,  a substantial burden on its religious exercise; (2) if so, whether the state’s interest in preventing discrimination against gays is compelling; and (3) whether there is some way other than requiring the business to serve gay customers that could advance that interest equally as well. I wouldn’t bet on the business’s chances in such a lawsuit. Given the great success supporters of gay rights have had in American courts in recent years, it is ironic that they would lose faith in the courts now.

And this leads to the third irony, one for the statute’s supporters. Some supporters evidently are confident the Indiana statute would allow a business to refuse, on religious grounds, to participate in same-sex wedding ceremonies—caterers and photographers, for example.  (This is not the same thing as refusing generally to serve gays and lesbians, incidentally, and it is not helpful to conflate the two situations). That’s why they are fighting so hard for the law. But it is not at all clear they are correct. Whatever one thinks about the merits of a religious exemption in these circumstances, it is uncertain that a court would actually rule in favor of the business. Maybe the business would prevail in a RFRA lawsuit, maybe not.

On the basis of distortions, mistakes, and uncertain predictions, we seem ready to abandon a foundational principle that exists, not only in American law, but in legal systems across the world. The New York Times refers, without irony, to “so-called religious freedom laws.” On Morning Joe this week, Mika Brzezinski suggested that stopping the Indiana statute would not be enough; it’s time, she hinted, to revisit the federal RFRA itself.  We seem ready, in other words, to take courts out of the business of protecting religious minorities. Does that seem a good idea?

European Court Decides Church Autonomy Case; Russian Judge Calls Clerical Celibacy a Human Rights Violation

I’m a little late getting to this, but I wanted to say a few words about Fernández Martínez v. Spain, the church autonomy case the European Court of Human Rights decided last month. By a vote of 9-8, the court held that Spain did not violate the European Convention on Human Rights when it declined to renew the contract of a public school teacher who had been offering classes in Catholicism.

Because of the close vote, some commentators have expressed worries about the case’s implication for church autonomy in Europe. I think those worries are overstated. The closeness of the vote turns on the peculiarities of the Spanish public school system, in which state employees offer religious instruction. The dissent of the Russian judge does cause concern, however. Judge Dedov’s opinion suggests a bias against Catholicism unlike anything I can remember in a judicial opinion.

In Spain, public schools offer religious instruction at state expense. The teachers are state employees. But the Spanish government has entered into agreements with four religious communities–Catholic, Evangelical, Jewish, and Muslim–which provide that schools will select instructors in those religions from candidates the communities certify as suitable. With respect to classes in Catholicism, the local Catholic bishop must approve instructors. Fernández Martínez lost his job when the local bishop refused to approve him. The bishop withdrew his approval when Fernández Martínez, a Catholic priest who had decided to marry and raise a family, appeared at a public protest in favor of optional clerical celibacy.

Fernández Martínez argued that the refusal to renew his contract violated his right under Article 8 of the Convention “to respect for his private and family life.” The court disagreed. The interference with the claimant’s right was justified in this case, it held. Spain had acted to protect the important principle of church autonomy, specifically, the right of the Catholic Church to designate which people could offer Catholic instruction in the public schools. Although the instructors were state employees, they were also representatives of the Church. It was not unreasonable for the Church to assert that Fernández Martínez’s conduct affected his credibility as a Catholic representative.

All this seems straightforward. So why was the vote so close? The eight dissenting judges expressed some unfortunate skepticism about what they called “absolute” church autonomy. To my mind, though, the key factor seems to have been that Fernández Martínez was a state employee, paid from public funds. As a result, the dissenters believed, the state had an obligation to him independent of the Church’s decision. It “is not the Bishop’s decision that should be scrutinized,” the dissenters wrote, “but the [state’s] reaction to that decision.” For example, the state might have tried to find Fernández Martínez another position that would not involve teaching Catholicism. Instead, the state had simply let him go.

Judge Dmitry Dedov

In short, the closeness of the vote reflects the peculiarities of the Spanish system, in which teachers of Catholicism are state employees, rather than the principle of church autonomy itself. (I recognize that the Spanish system may not be so peculiar in the European context, but that’s a subject for another post.) On the other hand, one of the dissents does raise serious concerns. In a personal dissent, which no other member of the court joined, the Russian judge, Dmitry Dedov, argued that mandatory priestly celibacy was itself a human rights violation the court should not tolerate.

Mandatory celibacy has been a “well-known and serious problem” in Catholicism for centuries, Dedov wrote, citing Victor Hugo’s The Hunchback of Notre Dame and Colleen McCullough’s The Thorn Birds. It had caused a great deal of grief and led priests to abuse children “in many countries.” One could not justify holding people  to a vow of celibacy, even a voluntary one:

The Convention protects freedom of religion…. But it does not entitle religious organizations, even in the name of autonomy, to persecute their members for exercising fundamental human rights. If the Convention system is intended to combat totalitarianism, then there is no reason to tolerate the sort of totalitarianism that can be seen in the present case.

“I believe,” he concluded, “that optional celibacy is the best way out of this problem and that it could also–I hope–serve as a preventive measure against clerical sex abuses of children in the future.”

I suppose Judge Dedov, who attended a Soviet university in the 1980s, is in a position to know something about totalitarianism. But, really, his dissent is an embarrassment. No one asked Judge Dedov for his views on clerical celibacy. The merit of religious doctrine is not a matter for secular human rights judges to address, and certainly not in a simplistic and gratuitously insulting way. (The Thorn Birds? Really?) And to assert, without offering evidence, that Catholicism’s rules on clerical celibacy have themselves caused the sex abuse crisis–a crisis that has, no doubt, many causes–is not what one expects from a judge.

In a human rights court, litigants from religious communities have a right to think the judges will treat them fairly and, to the extent possible, decide cases without bias. Judges are not there to offer musings on comparative religion. Judge Dedov’s dissent suggests he has a personal problem with the Catholic Church. He should take that problem somewhere else.

European Human Rights Court to France: Do Whatever You Want

This week, Americans understandably have been occupied with the Hobby Lobby case and its implications for religious freedom in our country. But across the Atlantic, the European Court of Human Rights was handing down its own decision on the scope of religious freedom, S.A.S. v. France. The European Court held that France’s ban on clothing designed to cover one’s face in public–what everyone knows, for obvious reasons, as the “burqa ban”–does not violate the European Convention on Human Rights. The court’s ruling reveals the challenges of enforcing a regional, European standard with respect to religious expression.

Some background: Article 9 of the European Convention recognizes a right to manifest one’s religion or belief, subject to limitations that are necessary to promote certain legitimate state interests, including public safety and “the protection of the rights and freedoms of others.” Any such limitation must be proportionate to the interest the state asserts. The European Court has made clear that Article 9 need not apply uniformly across Europe. Given different national histories and cultures, states have discretion to adapt article 9 in light of the needs and values of their particular societies. The Europeans refer to this discretion as the states’ “margin of appreciation.”

France argued that the ban on burqas is necessary to promote public safety and protect the rights and freedoms of others–specifically, the right of people to live in an “open society” characterized by “civility” and “social interaction.” The court rejected the first argument. Even assuming the burqa posed a risk in some circumstances, it held, a blanket ban is disproportionate. If the concern were public safety, a more targeted ban would be appropriate–in the context of security checks, for example.

The court agreed with France, though, that the ban could be justified on the basis of promoting an “open society”–at least, an open society in the French manner. Obviously, not all societies see the burqa as problematic. In Europe, only Belgium has a similar ban. But the French people had decided that the burqa violates “the ground rules of social communication” in their country. This decision deserved deference, the court held. Given the margin of appreciation in such matters, the court would honor France’s determination that “the voluntary and systematic concealment of the face is … incompatible with the fundamental requirements of ‘living together’ in French society.”

This level of deference is really quite breathtaking. Essentially, the European Court is saying, a state can ban religious expression in order to maintain local norms of “living together.” What ban on religious expression would not be allowed under such a standard? Let’s pose a hypothetical case. France already prohibits conspicuous religious dress in public schools. Let’s assume France decides to extend this ban to all public places, arguing that conspicuous religious dress in public creates unnecessary tension and interferes with social interaction à la française. Under the court’s deferential approach, wouldn’t such a ban be permissible? What would be the basis for second guessing France’s assertion about what French social norms require?

The deference to national norms is unavoidable in the context of the Council of Europe, a regime that includes scores of states with widely varying cultures and histories. One size simply doesn’t fit all. If the European Court is to have any legitimacy, it will often need to defer to national judgments on sensitive issues. Still, the European Court purports to pursue a common European standard in respect of human rights. Decisions like S.A.S. suggest that pursuit has a long way to go.

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.