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Ringelheim on Rights, Religion & the Public Sphere in the European Court of Human Rights

Julie Ringelheim (U. of Louvain, Belgium) has posted Rights, Religion and the Public Sphere: The European Court of Human Rights in Search of a Theory?  The abstract follows.

This paper seeks to analyze the European Court of Human Rights’ (ECtHR) case-law on religious freedom in the light of political and social theory debates on the place of religion in the public sphere. The Court’s jurisprudence on these matters denotes an increasing attempt at going beyond casuistry and building a consistent vision of religious freedom and its implications for state-religions relations, valid across Europe. Alongside the core notion of pluralism, three major principles have progressively emerged in this case-law: the right to autonomy of religious communities vis-à-vis the state; an obligation of neutrality for the state; and the necessity of the secularity of the legal order’s foundations. These principles, it is submitted, are in line with the democratic ideal that underlies the European Convention. Yet, the Court’s approach to religion-related disputes is not without tensions and problems. These are especially manifest when the Court handles disputes that go beyond the issue of the respective autonomy of religion and public authority, and concern the multifaceted question of expression ofreligion in the public sphere, in particular, the status of religion in public discourse, the wearing of religious garments at public school or university, and claims for accommodation of religious practice in the workplace. In some cases of this sort, the Court has adopted stances that are questionable from the viewpoint of the principles it has itself identified as central for religious freedom. In other instances, these principles themselves appear to be in need of further elaboration. But the significance of the tensions surrounding the treatment of religious disputes by the Court cannot be fully grasped without having regard to present-day discussions in social and political theory on the relations between religion and the public sphere. From this perspective, it appears that the ECtHR’s case-law is to a large extent built on assumptions stemming from the classic secularisation thesis, and that this, among other factors, makes it theoretically ill-equipped to deal with situations that do not fit this paradigm.

Posted on by Mark Movsesian

European Human Rights Court Rules Clergy Have a Right to Unionize

Here’s an interesting approach to church autonomy. This week, a chamber of the European Court of Human Rights ruled that clergy (and lay employees) of the Romanian Orthodox Church have a right to unionize, notwithstanding the Church’s objections. In 2008, clergy in a Church diocese formed a union to defend their “professional, economic, social and cultural interests” in their dealings with the Church. When the Romanian government registered the new union, the Church sued, pointing out that Church canons do not allow for unions and arguing that registration violated the principle of church autonomy. A Romanian court agreed with the Church, and the union challenged the court’s judgment in the ECtHR. The union argued that the decision not to register it violated Article 11 of the European Convention, which grants a right to freedom of association.

In this week’s decision, the chamber reasoned that, under Article 11, a state may limit freedom of association only if it shows “a pressing social need,” defined in terms of a “threat to a democratic society.” Romania had shown no such need here. The chamber faulted the Romanian court for considering only church traditions and ignoring other important factors, such as domestic and Read more

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Pin on the Italian Separation of Church and State

Andrea Pin (University of Padua – Faculty of Law) has posted Public Schools, the Italian Crucifix, and the European Court of Human Rights: The Italian Separation of Church and State. The abstract follows.  – ARH

The recent judgments of the European Court of Human Rights (“ECHR”) with regard to the presence of the Catholic symbol of the crucifix in Italian public schools are just the latest episodes of the ongoing juridical and political struggle for the secularization of the Italian state. This debate involves the interpretation and the enactment of the Italian Constitution as well as the  political and cultural trends that shape the Italian public debate about the public role of religion.

The decisions of the ECHR, which operates in Strasbourg, pushed the debate further: from the interpretation of the Italian Constitution to the respect for international treaties. In the first degree, the Court found Italy’s policy of displaying crucifixes in public schools violated Article 9 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights”) that protects the right to freedom of religion. The popular and political criticisms of the judgment were immediate and forceful throughout Italian public discourse, because a majority in Italian society supports the presence of the crucifix in public schools. Read more

Posted on by Mark Movsesian

European Court of Justice on Human Dignity and the Patentability of Human Embryos

An interesting judgment from the European Court of Justice this week relating to work with human embryonic stem cells: In response to a certification from the German Federal Court of Justice, the ECJ held that the European Directive on the Legal Protection of Biotechnological Inventions (1998) forbids the patenting of human embryos, or techniques that require the destruction of human embryos, for industrial or commercial purposes, including purposes of scientific research. The Directive prohibits patents for “uses of human embryos for industrial or commercial purposes,” and indicates that this prohibition extends to all processes that “offend against” the fundamental principle of “human dignity.” The ECJ concluded that the Directive’s reference to “human dignity” required that the phrase “human embryo” be “understood in a wide sense” to include not only fertilized human eggs, but also unfertilized eggs and stem cells, if they are “capable of commencing the process of development of a human being.”

The concept of human dignity is a fundamental one in European law; many religious-freedom cases in the ECtHR employ it, for example. The concept is not so prominent in American jurisprudence, which tends to be more libertarian. Some scholars argue that roots of the principle in European law lie in Catholic Social Theory, and the principle is certainly consistent with Christian ethics. I assume that, like most concepts in European jurisprudence, the principle has roots in Enlightenment thought as well. The judgment is Brüstle v. Greenpeace (Grand Chamber) (18 Oct. 2011). – MLM

Posted on by Marc O. DeGirolami

Zucca on the Case For Monism in European Law

Lorenzo Zucca (King’s College London) has posted Monism and Fundamental Rights in Europe.  Though the piece does not directly reference or discuss cases of religious liberty in Europe (nor, curiously, Isaiah Berlin for that matter), the application of the author’s approach to such questions should be evident.  Among other reasons, I am posting the piece because it represents a point of view nearly diametrically opposed to the one that I defend in my forthcoming book, Tragedy and History: The Quality of Religious Liberty.  The abstract follows.  — MOD

Fundamental Rights in Europe are protected by national, supranational and international judicial bodies. Yet, the likelihood of discrepancies between the solutions reached by those bodies opens the whole practice to a number of problems and risks. Legal Pluralists claim that the risk of conflicting views should not be regarded as a problem, and should instead be regarded as an occasion to engage in a dialogue between various jurisdictions.

In this article I resist the legal pluralist claim and suggests that the only way of understanding the relationship between fundamental rights and law is monist. There are two opposite monist understandings of the same relationship. On the one hand, there is a value monist approach which argues for the unity of value across law and morality. On the other hand, there is a legal monist perspective, which argues for the unity of legal norms and claims that disagreements about fundamental rights are settled by competent institutions within the monist legal framework. I defend the latter legal monist position and suggests that that is the best way of understanding law and fundamental rights at the national, supranational and international level.

Posted on by Mark Movsesian · 1 Comment

Calo on Headscarves, Pluralism, and Human Rights

Zachary Calo (Valparaiso) has posted a new piece, Islamic Headscarves, Religious Pluralism, and Secular Human Rights.  The  abstract follows. — MLM

This paper considers the Article 9 religious freedom jurisprudence of the European Court of Human Rights. It opens by looking at recent decisions involving Islam that stand in tension with the Court’s endorsement of normative religious pluralism. It is argued that the inability of the Court to construct a satisfying account of the place of public Islam within a religiously pluralistic order reflects inherent limitations of the liberal tradition of religious freedom. In particular, the Court’s approach to these cases reveals ways in which the category of human rights has become tethered to a normative secularity that cannot ultimately support a vigorous promotion of religious pluralism. This being the case, the challenge confronting the European Court of Human Rights in its treatment of religious pluralism might be understood as not merely jurisprudential but moral, ontological, and finally, theological. That is, the problematic that must be identified and critiqued concerns the deep ways in which law has been formulated in relation to religion within the modern order. With this in mind, the paper turns in its final section to discussing conceptual jurisprudential alternatives. It is revealing that some of the most creative alternatives, particularly addressing the status of Islam, are being advanced by theologians positioned to think about certain elemental matters outside the sphere of normal jurisprudential considerations. As a point of entry into these conversations, the concluding section considers two of the most important recent reflections on this topic by Rowan Williams and John Milbank.

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Haupt on Nonestablishment in Europe

Claudia E. Haupt (George Washington University Law School) has posted Transnational Nonestablishment. The abstract follows. –YAH

Over the past decade, significant changes have occurred in the religious freedom jurisprudence of the European Court of Human Rights. The most recent indicators of change are the conflicting opinions displayed in the 2009 Chamber decision finding the mandatory posting of crucifixes in public school classrooms in Italy impermissible, and its subsequent reversal by the Grand Chamber in 2011. Taking a broader perspective, this Article argues that an emerging trend toward a transnational nonestablishment principle seems to be developing in contemporary Europe. This Article first places the emerging principle into a larger multi-level religious policy framework, one of several such frameworks that also include the Post-Reformation model as well as the U.S. Establishment Clause model. After surveying the development of nonestablishment principles in the United States, under the European Convention, in the law of the European Union and in individual countries, this Article then traces the contours of nonestablishment. In doing so, this Article illustrates that several useful comparisons can be made between the evolving understanding of nonestablishment in the United States and current developments in Europe. Some of these comparative insights – particularly in the public school context – may prove helpful in anticipating the likely future effects of an emerging transnational nonestablishment principle. Read more