The principled slope: religious freedom and the European Court of Human Rights
Melanie Adrian
Abstract
This contribution examines four cases, Dahlab v. Switzerland, Şahin v. Turkey, SAS v. France and Ebrahimian v. France, handed down by the European Court of Human Rights (ECtHR) between 2001 and 2015, The ECtHR has increasingly prohibited women from wearing the headscarf and face veil in public spaces. I argue that the rationale used to support these limitations has progressively moved away from an adjudication of harm and evaluation of the facts, to emphasising general principles and creating vague new legal concepts. This trend is problematic because appealing to general principles lessens the requirement of member states to present a fact-based case that carefully weighs trade-offs on key issues such as religious freedom vis-à-vis diversity and pluralism. This tendency also makes it easier for the Court to expand the already widening application of the margin of appreciation to states.
Introduction
This contribution examines four cases handed down by the European Court of Human Rights (hereafter ECtHR or Court) between 2001 and 2015. Each of these cases is a landmark case shaping the right to religious freedom in this period. Through an examination of Dahlab v. Switzerland Şahin v. Turkey, SAS v. France and Ebrahimian v. France, this text shows that the ECtHR has increasingly prohibited women from wearing the headscarf and face veil in public spaces.
The Court's judgements have barred elementary school teachers from wearing the headscarf in public schools, restricted university students from wearing the veil, banned the face veil for all citizens in most public spaces1 and, finally, stripped civil servants from the right to don the headscarf at work.2 Thus, the type of wearers (from civil servants to citizens) and the spaces (from schools, to streets, to other public institutions) have broadened in the last 16 years, thereby curtailing the right to manifest religious freedom for more people and in more places.
This contribution demonstrates that the legal rationale used to support these limitations has progressively moved away from a reasoned adjudication of harm and mindful evaluation of the facts. As will be argued, the Court is (over) emphasising general principles - such as secularism - and creating new and vague concepts in its decisions in these cases. It is not that the facts are irrelevant to the Court, but that the emphasis has shifted in favour of more general values, such as the right of states to take their own decisions on sensitive matters to do with religion generally and the face veil, in particular.3
This decisional trajectory is perilous for two reasons. First, because appealing to general principles lessens the requirement of member states to present a rigorously considered and fact-based case that carefully weighs trade-offs on key issues. Cases shape and advance domestic and international norms (see, e.g. Brauch 2004; Lugato 2013). They are part of a conversation that tests the boundaries of religious freedom vis-à-vis diversity and pluralism, and, religious manifestation vis-à-vis secularism, as two possible examples. The specific context of the case matters because it impregnates the conversation with real-world experience and furthers the law as both application of rules and philosophy of social cohesion.
Second, the trajectory that favours giving more weight to general values gives the Court easy leave to expand the already extensive application of the margin of appreciation allowed to states. Decisions made on the grounds of margin of appreciation are decisions that favour majority narratives of church-state relations. To be sure, a margin of appreciation is a necessary measure at the disposal of the Court that allows it to balance national interests with minority rights (see Lugato 2013). However, its overextension imperils the ability of the Court to exercise its supervisory functions around the European Convention on Human Rights (hereafter Convention) and its application. In short, it undermines the mandate of the Court to protect vulnerable minority populations in Europe (see, e.g. Evans 2001; Greer and Wildhaber 2012; Gunn 2012; Yourow 1987).
This text takes up the first two cases, Dahlab v. Switzerland and Şahin v. Turkey in the section, entitled 'Facts'. In these two cases, the Court argued that the headscarf endangered women's dignity and equality, was an affront to secularism, and, in the Şahin case, in particular, that it represented a dangerous form of political Islam. In both cases, the veil needed to be prohibited, the Court ruled. This section shows that domestic courts and the ECtHR weighed the specific facts of these cases with some gravity versus secularism and state neutrality.
The following section, entitled 'Principles', takes up the third and fourth cases, SAS v. France, and Ebrahimian v. France. The section is called 'Principles' because, in contrast to the first two cases, the Court did not read the veil as being engrained with certain characteristics or specific threats. The rulings emphasised that the veil represented a more general affront to secularism and social cohesion, thereby appealing to a general principle and allowing a wide margin of appreciation. In this text I argue that giving such consideration to principles, the Court took a turn in their reasoning, one which will have to be elaborated on in future cases. In fact, in SAS, the Court rejected the government claim that the face veil is contrary to women's rights and equality but went on to ban it because it offends the French ideal of social conviviality and the principle of living together - le vivre ensemble. The second case in this section, Ebrahimian, builds on this basis. This piece is entitled 'The principled slope' - a play on words of the saying 'the slippery slope'4 in order to denote both worry and question about where this approach will lead us.
Facts
Dahlab v. Switzerland (2001)
The applicant, Lucia Dahlab, a Swiss national, began teaching as a primary school teacher in the Geneva canton in 1990. In 1991, Ms Dahlab converted to Islam and began wearing an Islamic headscarf in order to honour the Quran.5 In 1996, after a school inspection, Ms Dahlab was asked to stop wearing the headscarf at work. Ms Dahlab appealed the decision to the Director General of the school board, who maintained the position, arguing that no matter the intention of Ms Dahlab, or the fact that there had been no accusation of proselytism, or complaint by a student, parent or fellow teacher, the headscarf is a means of 'conveying a religious message'.6
The religious message the veil was thought to convey - later described as a 'powerful religious symbol'7 - stood in tension with the 'denominational neutrality' required in educational institutions in Switzerland. The argument was further elaborated by the Swiss Federal Court, which held that over and above neutrality, Ms Dahlab's pupils were particularly vulnerable given that they were between 4 and 8 years of age. The Federal Court stated, '[...] her pupils are therefore young children who are particularly impressionable.'8
In its evaluation of the case, the ECtHR took note of the fact that the Swiss Federal Court weighed the applicant's profession and position as a representative of the state. It also evaluated the importance of educational neutrality with her right to religious freedom. The ECtHR agreed that the children were of an impressionable age, and thus the headscarf could have, they argued, some kind of proselytising effect.
The ECtHR noted, in addition, that the headscarf represented something more insidious, 'seeing that it appears to be imposed on women If imposed, the Court had a hard time understanding how 'to square [the veil with] ... the principle of gender equality...'.9 If the veil is forced, it is not a symbol of gender equality. The argument went on to hold that since this is the case, the headscarf also stands in tension with tolerance, respect for others, equality and nondiscrimination in a democratic society.
Although these last statements about the headscarf have been shown by social scientists over the last 20 years to be categorically false (see, e.g. Cesari 1998; Killian 2006; Scott 2007; Selby 2012), the purpose here is not to delineate the ways the Court was substantively wrong about this issue. The point is to show that the domestic courts as well as the ECtHR engaged deeply with the specific context of the applicant: that she was a public-school teacher, that her students were young, that she converted to Islam after her appointment, etc. These context-specific particulars were weighed against the interests of neutrality and the state's obligation to protect its children. For these reasons, the Court found that Switzerland had not exceeded its margin of appreciation and taken reasonable action by prohibiting Ms Dahlab from wearing her headscarf while teaching.
Although the following case, Şahin v. Turkey, originates in Turkey, it shares similarities with Dahlab. In both cases, the Court examines in detail the applicant's educational context and weighed this with Turkey's vision of secularism. As in Dahlab, the Court makes unproven generalised connections between the veil and women's social positionality, but the point here is that they engage these issues.
Şahin v. Turkey (2005)
The case of Şahin v. Turkey involved a young Muslim woman who claimed her right to wear her headscarf at the University of Istanbul.10 She had studied medicine for 4 years without incident at the University of Bursa and transferred to Istanbul in 1997. B...
