The Right to Wear Religious Symbols

D. Hill, D. Whistler

• Publisher: Palgrave Pivot
• Year: 2016
• Print ISBN:
  9781137354167
• eBook ISBN:
  9781137354174
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

Clearly presenting the case-law concerning Article 9 of the European Convention of Human Rights, this is a lively and accessible analysis of a key issue in contemporary society: whether there is a human right to wear a religious symbol and how far any such right extends.

Part I

Trends in Article 9(1)

1

The Manifestation Test

Abstract: In the UK the law of human rights centres on the European Convention on Human Rights (ECHR). Within the ECHR our focus is on Article 9(1), which provides the qualified right to manifest one’s religion or belief. What does ‘manifest’ mean? The Courts have ruled that, while not every action ‘motivated or inspired by’ a religion or belief thereby manifests it, one that is ‘intimately linked to’ or ‘directly expresses’ a religion or belief does manifest it. But what do these relations come to? The Courts have given only a set of examples. This chapter will examine various different attempts to draw from these examples a ‘test’ that will tell, for any given action and belief, whether or not that action manifests that belief.

Keywords: ECHR Article 9, manifestation test, ECtHR case-law, motivated or inspired, intimately linked, directly expresses

Hill J. Daniel and Daniel Whistler. The Right to Wear Religious Symbols. Basingstoke: Palgrave Macmillan, 2013. DOI: 10.1057/9781137354174.

To begin, it is necessary to delimit the scope of this study – the manifestation test as it is to be found (and also not found) in the case-law concerning Article 9 of the ECtHR. This test has cast a long shadow over much of the debate surrounding religious discrimination in the UK and Europe. For while the framing of UK legislation concerning indirect discrimination has played its part, it is for the most part the perceived nature of Article 9’s manifestation test that has led to endless debates over whether certain religious symbols are required or mandated by adherence to a religious worldview, whether they form a ‘core part’ of that religion, are ‘intimately linked’ to it, or ‘a generally recognized form’ of it – and of course to the debate over whether any of these questions should even matter when it comes to protecting freedom of religion.

In Part I, therefore, we embark on a detailed description of the manifestation test as it has emerged out of Article 9 and been deployed by the ECtHR over the past 30 years (Chapter 1); we dispel a widely believed myth surrounding the stringency of this test (Chapter 2); and finally trace recent developments in the Court’s attitude towards it (Chapter 3). Our aim is thereby to provide a detailed exposition of the material that will be the subject of philosophical analysis and interrogation in Part 2.

1 The anatomy of a case under Article 9

Article 9 of the ECHR reads as follows:

Article 9 – Freedom of thought, conscience and religion

1Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2Freedom 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 others¹

In the HRA 1998, the right to religious freedom in the ECHR (as well as all the other rights therein protected) was made directly justiciable in UK courts. Domestic courts must now take account of these Convention rights in their decisions. The protection of religious belief and manifestation accorded in the ECHR is also implicitly affirmed in the UK Equality Act 2010.²

1.1 ‘Religion or belief’

The ECHR and domestic legislation protect both religion and belief. Section 10(2) of the Equality Act 2010 reads, ‘Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.’³ Humanism and atheism are given as examples.⁴ The reference to ‘lack of belief’ ensures that not only freedom of religion and belief but also freedom of lack of religion is protected. It is worth saying a few words to begin with about what is meant by ‘religion’ and then ‘belief’ in this context.

1.1.1 Religion

‘Religion’ is of course a much-contested term; we are interested, however, in the way religious symbolism is understood in cases of religious discrimination in the courts of the UK and Europe; therefore, what is at issue, first, is the courts’ understanding of ‘religion’.

The ECHR and HRA 1998 are praised and criticized in equal measure for avoiding a definition of religion.⁵ By opening the rights afforded in Article 9 up to freedom of thought, conscience, and religion, judges no longer need to distinguish a religion from a non-religious conviction. Both are equally covered. While we agree that the ECHR and HRA 1998 do avoid a substantial, doctrinal definition of religion, nonetheless, precisely by understanding religion in line with thought and conscience, and precisely by pairing it so tightly with belief, they do provide parameters for defining its formal structure.

In this vein, an initial statement often repeated in European judgments is as follows:

Freedom of thought, conscience and religion ... is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and of their conception of life.⁶

In Şahin v Turkey (and in many other cases), such a general statement of the significance of religion is supplemented with the following:

While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares.⁷

This is a distinction between ‘the forum internum ... the sphere of personal convictions and religious beliefs’ and the forum externum.⁸ The underlying view here seems to be that (insofar as Article 9 is concerned) religion is ‘primarily’ a matter of belief, and therefore only derivatively a matter of manifesting belief (whether that manifestation consists in acts of worship and assembly or in the display of religious symbols).

A key concern of many commentators on Article 9 has been the relation of this conception of religion to lived religion itself, particularly its ability adequately to describe religions in all their diversity. That is, if a conception of religion follows from Article 9 of the ECHR in which beliefs held in the forum internum are primary and manifestations only secondarily derivative of them, the question naturally arises: is religion actually like this? If it turns out to be the case that this model of religion is not universal, a question is raised about Article 9’s ability to protect religions of these other kinds. We shall return to this point at length at the end of Chapter 5.

1.1.2 Belief

In order for its manifestations to be eligible for the protection of Article 9, a belief must meet some conditions – and these conditions provide a framework for determining the meaning of ‘belief’ in legislation concerning religious discrimination. As Lord Nicholls put it in R (Williamson) v Secretary of State for Education and Employment:⁹

When questions of ‘manifestation’ arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being unders...

Table of contents

• Cover
• Title
• Introduction: Philosophy of Religion Goes to Court
• Part I  Trends in Article 9(1)
• Part II  Understanding the Practical Turn
• Conclusion: Why Eweida Won
• Bibliography
• Index