Posted on by Claudia E. Haupt

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.

Posted on by Mark Movsesian

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.

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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.

Posted on by annicchino · 1 Comment

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.

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McCrea on The Veil Ban and European Law

Ronan McCrea (University College London) has posted The Ban on the Veil and European Law. The abstract follows. NB: The full text is behind a paywall.

This article argues that the fate of veil bans under European law is uncertain. It shows that European commitments to free speech and freedom of religion cannot accommodate an absolute ban justified solely on grounds of the offensiveness of the veil. However, a ban that applies to public face-covering in general (rather than a ban that only targets the veil), that relates to the specific (though admittedly broad) context of social life and that provides some exceptions allowing the veil to be worn in specific religious or expressive contexts, has a reasonable chance of being upheld by European courts despite the significant infringement of personal autonomy it would involve.

Posted on by Mark Movsesian

Hearing at ECtHR in Spanish Church Autonomy Case

This has been a busy law-and-religion news week in the United States, but there was a major story at the European Court of Human Rights as well. On Wednesday, the Grand Chamber heard argument in Fernández Martínez v. Spain, a case that could have major implications for church autonomy in Europe.

Under the 1979 Concordat between Spain and the Holy See, public schools in Spain must offer optional classes in Catholicism. The instructors are public employees, but must be approved by local bishops. In Fernández Martínez, a public school refused to renew the contract of one such teacher, a married, laicized priest named José Fernández Martínez, after the local bishop voiced his objections. The bishop argued that Fernández Martínez had “given scandal,” an offense under canon law, by allowing himself to be photographed by a newspaper, along with his family, at a meeting of a group calling for optional priestly celibacy. Fernández Martínez claimed that the dismissal violated his rights to privacy, family life, and expression, but the Spanish Constitutional Court and, last May, a chamber of the ECtHR, disagreed. He then sought review in the Grand Chamber.

Wednesday’s hearing was interesting and, at times, fiery. The government presented the case as a straightforward matter of religious autonomy and state neutrality. The bishop had objected to Fernández Martínez on religious grounds, it explained; given the terms of the Concordat, the government had no choice but to defer. The government surely could not second-guess the bishop’s conclusion that someone charged with teaching Catholicism had violated religious law.  The government emphasized that the Church did not have Read more

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Bhuta on Religious Freedom in the European Court of Human Rights

Nehal Bhuta (European University Institute) has posted Two Concepts of Religious Freedom in the European Court of Human Rights. The abstract follows.

This paper considers the way in which recent historical work on the history of freedom of religion and freedom of conscience opens up a new interpretation of the decisions of the European Court of Human Rights in the headscarf cases. These decisions have been widely criticized as adopting a militantly secularist approach to the presence of Islamic religious symbols in the public sphere, an approach that seems inconsistent or even overtly discriminatory in light of the court’s recent decision in Lautsi that the compulsory display of crucifixes in the classroom did not breach Italy’s convention obligations. I argue that the headscarf cases turn less on the balance between state neutrality and religious belief, than on an understanding of certain religious symbols as a threat to public order and as harbingers of sectarian strife which undermine democracy.

Posted on by Mark Movsesian · 1 Comment

Controversy over Proposed Christian Law School in Canada

This really isn’t the time to be starting a law school, at least in the United States. Lawyers face uncertain job prospects–the poor economy, outsourcing, and technological innovation continue to reduce demand for lawyers–and fewer and fewer people see a legal education as a good investment. Applications are down dramatically. Maybe this situation is temporary, maybe it’s permanent; we’ll have to wait and see. But starting a law school in this environment–you really have to wonder.

None of these hard facts explains the controversy surrounding a proposed new Canadian law school, however. Trinity Western University (TWU) in British Columbia wishes to start the first religious law school in Canada. The Council of Canadian Law Deans opposes the new school because TWU requires students, faculty and staff to honor traditional Christian sexual ethics: no sex outside heterosexual marriage. This requirement, the deans argue, discriminates on the basis of sexual orientation in violation of Canadian law. TWU maintains that a Canadian Supreme Court case from 2001 allows it to impose the requirement as a matter of religious freedom.

The Federation of Canadian Law Schools, the body that accredits law schools in Canada, has not yet decided whether to grant TWU permission to start its new school. Whatever decision the Federation takes, a lawsuit will no doubt follow. Canadian law on religious exercise uses a balancing test similar to the one in the European Conventi0n on Human Rights. Under that balancing test, government may limit citizens’ freedom of religion if necessary to protect important countervailing interests, including “the fundamental rights and freedoms of others.” Just last week, in fact, the European Court of Human Rights applied this test and ruled that the European Convention allows member states to limit employees’ religious freedom in order to protect the right of same-sex couples to be free from discrimination.

It’s a different jurisdiction, of course, and the Canadian and European cases don’t line up exactly. As a religious university, TWU could raise arguments the European case didn’t address. But, like the European case, TWU’s claim will require judges to balance the right of religious exercise against the rights of sexual minorities. If Canadian judges adopt the ECtHR’s general view of things, TWU’s chances of prevailing in the long run don’t look great.

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Haverkort-Speekenbrink, “European Non-Discrimination Law”

Intersentia Publishing has published European Non-Discrimination Law: A Comparison of EU Law and the ECHR in the Field of Non-Discrimination and Freedom of Religion in Public Employment with an Emphasis on the Islamic Headscarf Issue by Sarah Haverkort-Speekenbrink.  The publisher’s description follows.European Non-Discrimination Law

Contemporary multicultural issues in Europe raise the question whether the overlap between the non-discrimination regimes of the European Union (EU) and the Council of Europe in the field of public employment may lead to conflicting case law. Would the Court of Justice of the European Union (ECJ) and the European Court of Human Rights (ECtHR) address potential sex, race and religious discrimination in a similar manner or would the Courts take a different approach?

This study consists of three parts. Firstly, an analysis is presented of the EU non-discrimination Directives 2006/54, 2000/43 and 2000/78, and the ECJ’s assessment in cases of alleged sex, race and religious discrimination in the public workplace. Secondly, the non-discrimination provisions of the European Convention on Human Rights (ECHR) and the right to freedom of religion are studied. Further, the ECtHR’s assessment in cases involving potential discrimination in the public workplace based on sex, race and religion are examined. In the final part a comparison is made between the provisions and the assessment of the ECJ and the ECtHR.

Besides an examination of European legislation, case law and academic literature, this research also uses a legal case study to explore the similarities and differences between the non-discrimination regimes. Accordingly, the theory is again discussed, but now in light of a much debated issue in Europe: the wearing of the Islamic headscarf in public employment. The result of the study is a detailed explanation of the relevant similarities and differences between the approaches of the two Courts to claims of discrimination.

Posted on by Mark Movsesian

European Court’s Judgment in UK Religious Freedom Cases: A First Read

Today, a chamber of the European Court of Human Rights announced its decision in the highly-anticipated Eweida and Others v. United Kingdom, a group of four consolidated cases brought by British Christians who alleged that the UK had violated their religious freedom under the European Convention on Human Rights. From the claimants’ perspective, the outcome was, at best, mixed: the chamber ruled in favor of only one of the four claimants. With respect to the other three, the chamber accepted the government’s argument that important countervailing interests, including the protection of gay rights, outweighed concerns about religious freedom.

The claimants alleged that their employers had violated their religious freedom by disciplining them for manifesting their Christian beliefs. Nadia Eweida, a British Airways employee, and Shirley Chaplain, a hospital nurse, complained that their employers had forbidden them from wearing cross necklaces at work. Lillian Ladele, a public registrar, lost her job when she declined, out of religious conviction, to officiate at civil partnership ceremonies for same-sex couples. Gary McFarlane, a psychotherapist, was fired by a sex counseling service because of his objections to providing sexual advice to same-sex couples. British courts had ruled against all four claimants, who then applied to the European Court for relief.

I won’t get into the details of the analysis here, but, briefly, the European Convention provides that individuals have the right to manifest their religious beliefs, but that governments may limit that right if necessary to protect important countervailing interests, such as public health and “the protection of the rights and freedoms of others.” With respect to the first two claimants, the chamber held that Read more