What not to wear: Religious rights, the European court, and the margin of appreciation

International and Comparative Law Quarterly

Volumn 56, Issue 2, 2007, Pages 395-414

  Lewis, Tom ^a  

^a NOTTINGHAM TRENT UNIVERSITY   (United Kingdom)

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[No Author keywords available]

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EID: 34247280600     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/lei169     Document Type: Article

References (193)

1. Lancashire Telegraph (5 Oct 2006)
2. Guardian (London, 6 Oct 2006)
3. The Times (London, 7 Oct 2006).
4. Art L41-5-1 Education Code of 15 Mar 2004.
5. Not implemented - pending an inquiry as to whether the ban is compatible with the Constitution, BBC, Mark Mardell, 16 Jan 2006 (available at ).
6. ibid.
7. See, eg, in Germany, Bundesverfassungsgericht (BverfGE), 2 BverfGE 1436/ 02 Judgment of 24 Sept 2003 ('teacher-head scarf' decision)
8. in the United Kingdom, R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15
9. in Switzerland, Dahlab v Switzerland App No 42393/98, admissibility decision (2001).
10. The issue has not been confined to Europe see, eg, Li-ann Thio and Jackly Ling-Chien Neo, 'Religious Dress in Schools: The Serban Controversy in Malaysia' (2006) 55 ICLQ 671
11. C Mahabir, 'Adjudicating Pluralism: The Hijab, Law and Social Change in Post-Colonial Trinidad' (2004) 13 Social and Legal Studies 435.
12. See, eg, T Modood and P Werbner (eds), The Politics of Multiculturalism in the New Europe (Zed Books, London, 1997)
13. B Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Macmillan, London, 2000)
14. S Knights, 'Religious symbols in the school: Freedom of religion, minorities and education' (2005) 5 European Human Rights Law Review 499.
15. S Huntingdon, 'The Clash of Civilizations' (1993) 72 Foreign Affairs 22.
16. See, eg, John Reid MP, Home Secretary, Speech 20 Sept 2006
17. Eliza Manningham-Buller, Director General of the Intelligence Service, Speech 10 Nov 2006.
18. See, eg, Ruth Kelly MP, Communities Secretary, Speech 24 Aug 2006
19. Trevor Phillips, Chairman of Commission for Racial Equality, 'After 7/7: Sleepwalking to Segregation', Speech 22 Sept 2005.
20. See, eg, F Raday, 'Culture Religion and Gender' (2003) 4 International Journal of Constitutional Law 663
21. D Lyon and D Spini, 'Unveiling the Headscarf Debate' (2004) 12 Feminist Legal Studies 333
22. G Davies, 'Banning the Jilbab: Reflections on Restricting Religious Clothing in the Light of the Court of Appeal in SB v Denbigh High School' (2005) 1 European Constitutional Law Review 511
23. J Habermas, 'Intolerance and Discrimination' (2003) 1 International Journal of Constitutional Law 2
24. Baroness Hale of Richmond in Begum (n 5) amongst many others. Of particular difficulty is the paradox that religious injunctions on women to wear particular clothing in public space have been portrayed by liberals as repressive; but cases are brought by women themselves claiming the right to wear this dress.
25. (2007) 44 EHRR 5.
26. Note also the use of Art 9 in tandem with Art 11 - see, eg, The Moscow Branch of the Salvation Army v Russia App No 72881/01, 5 Oct 2006. Issues of religion may also arise under Art 8 and Art 14 (freedom from discrimination in relation to ECHR rights) and Art 2 of the First Protocol (education).
27. For recent commentary on the application of the Margin of Appreciation by the Strasbourg institutions see, eg, Y Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, Oxford, 2002)
28. H Yourow, The Margin of Appreciation in the Dynamics of European Human Rights Jurisprudence (Kluwer, The Hague, 1996)
29. M Hutchinson, 'The Margin of Appreciation Doctrine in the European Court of Human Rights' (1999) 48 ICLQ 638
30. J Sweeney, 'Margins of Appreciation: Cultural Relativity and the European Court of Human Right in the Post Cold War Era' (2005) 54 ICLQ 459.
31. Handyside v UK (1976) 1 EHRR 737, para 48.
32. Şahin (n 11) para 109.
33. See, eg, Wingrove v UK (1996) 24 EHRR 1, para 58
34. Kokkinakis v Greece (1993) 17 EHRR 397, para 47.
35. Şahin (n 11) para 109.
36. There are difficult questions, beyond the scope of this paper, concerning what constitutes political' and 'religious'. In Şahin (n 11) it was noted that the wearing of the headscarf in Turkey had taken on a 'political significance... in recent years' para 115.
37. See M Evans, Religious Liberty and International Law in Europe (CUP, Cambridge, 1997) 284-6.
38. (2002) 34 EHRR 10.
39. One might also contrast eg Wingrove (n 15)
40. and Jersild v Denmark (1994) 19 EHRR 1.
41. (2004) 38 EHRR 13.
42. ibid para 37.
43. ibid para 67.
44. See A Geddis, 'You Can't Say "God" on the Radio: Freedom of Expression, Religious Advertising and the Broadcast Media after Murphy v Ireland' (2004) 2 European Human Rights Law Review 181.
45. For discussion of the various philosophical justifications of freedom of expression that have been advanced see E Barendt, Freedom of Speech (OUP, Oxford, 2005) ch 1.
46. See, eg, Lingens v Austria (1986) 8 EHRR 407
47. Castells v Spain (1992) 14 EHRR 445
48. United Communist Party of Turkey v Turkey (1998) 26 EHRR 121
49. The Moscow Branch of the Salvation Army v Russia (n 12) para 60
50. A Mowbray, 'The Role of the European Court of Human Rights in the Promotion of Democracy' [1999] Public Law 703.
51. A Geddis (n 22) 189. These issues are considered more fully in Part III.
52. J Raz argues in The Morality of Freedom (Clarendon Press, Oxford, 1986) 261 that the 'argument for the entrenchment of liberal constitutional rights derives... from several sources... the interest of the right holder itself... is insufficient to justify that degree of protection. It gets it because it is instrumentally useful to the preservation of a certain political culture, to the protection of various public or even collective goals.'
53. See the debate between P Mahoney, 'Universality versus Subsidiarity in Strasbourg Case Law on Free Speech: Explaining Some Recent Judgments' (1997) 4 European Human Rights Law Review 364 and Lord Lester of Herne Hill, 'Universality versus Subsidiarity: A Reply' (1998) 1 European Human Rights Law Review 73.
54. See Part III below. Some religions, eg Jehovah's Witnesses, require believers to bear of witness, teach and preach - but this is due to perceived religious duty to 'try and convince one's neighbour'.
55. See Kokkinakis v Greece (n 15) para 31.
56. (1982) 4 EHRR 149.
57. ibid paras 56-7.
58. ibid para 52.
59. See also Norris v Ireland (1991) 13 EHRR 186.
60. JS Mill, 'On Liberty' (1859) in S Collini (ed), On Liberty and Other Writings (CUP, Cambridge, 1989) 13.
61. On Art 9 generally see C Evans, Freedom of Religion Under the European Convention on Human Rights (OUP, Oxford, 2001)
62. and M Evans (n 17) 10-12.
63. See also S Langlaude, 'Indoctrination, Secularism, Religious Liberty and the ECHR' (2006) 55 ICLQ 929.
64. For historical background to the Article see C Evans ch 3 and M Evans ch 10.
65. It as been argued that this split between the forum internum and the forum externum has the effect of favouring post-Reformation Christianity which emphasizes more the internal holding of faith than outward display of it; one of the central issues of the European Reformation was whether justification could be sola fide, by faith alone, (Martin Luther's position) or whether good works were necessary: see P Collinson, The Reformation (Phoenix, London, 2005) 47-9.
66. Other faiths, by contrast, place much more weight on outward observance: see C Evans (n 33) 202
67. PW Edge and G Harvey (eds), Law and Religion in Contemporary Society (Ashgate, Aldershot, 2000) 7-8.
68. The quote originates in Kokkinakis (n 15) para 31 and has been intoned by the Court in virtually every Art 9 case.
69. See, eg, John Locke, 'Letter Concerning Toleration' (1685) in David Wootton (ed), John Locke Political Writings (Penguin, London, 1993) 390.
70. The same point might be made about human rights generally. See C Gearty, Can Human Rights Survive? (CUP, Cambridge, 2006) esp ch 2.
71. As opposed to justifications based on religious perspectives on which see eg R Ahdar and I Leigh, Religious Freedom in the Liberal State (OUP, Oxford, 2005) ch 1
72. C Evans (n 33) 25-8.
73. eg the Wars of Religion following the Reformation in Europe.
74. J Locke (n 36) 431.
75. GA Res 36/55, UN GAOR, Supp (No 51) 171, UN Doc A/36/684 (1981).
76. R Ahdar and I Leigh (n 38) 53-4
77. C Evans (n 33) 23.
78. Such arguments have been offered as the basis for human rights generally. See eg R Dworkin, Taking Rights Seriously (Duckworth, London, 1977)
79. J Rawls, A Theory of Justice (Clarendon Press, Oxford, 1999)
80. J Raz (n 26)
81. J Griffin, 'First Steps in an Account of Human Rights' (2001) 9 European Journal of Philosophy 306
82. D Feldman, Civil Liberties and Human Rights in England and Wales (OUP, Oxford, 2002)
83. R Ahdar and I Leigh (n 38) 57-60
84. C Evans (n 33) 29-33.
85. J Raz (n 26) 369-71.
86. R Dworkin (n 43) 272.
87. J Raz (n 26) 398-9.
88. ibid 395-9.
89. J Raz, 'Multiculturalism: A Liberal Perspective' in J Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (OUP, Oxford, 1994) 164.
90. R Dworkin (n 43) 272-3.
91. Dworkin, 'Liberalism' in S Hampshire (ed), Public and Private Morality (CUP, Cambridge, 1977) ch 6 127
92. Raz (n 26) 110.
93. There is a debate between proponents of perfectionist and anti-perfectionist or 'procedural' liberal thought - those who believe the State should remain strictly neutral as between different conceptions of the good (Rawls (n 43), Dworkin (n 43)) and those who consider that the State may endorse certain values as good (Raz (n 43)
94. WA Galston, Liberal Purposes (CUP, Cambridge, 1991)).
95. See R Adhar and I Leigh (n 38) 42-3.
96. The Court's case law reflects the liberal principle of neutrality; the State has a duty to remain neutral and impartial and is not entitled to assess the legitimacy of religious beliefs or their means of expression: see, eg, Hassan and Chaush v Bulgaria (2000) 30 EHRR 50, para 78.
97. C Evans (n 33) 32-3.
98. R Ahdar and I Leigh (n 38) 60-1.
99. M Evans, 'Religion law and human rights: Locating the debate' in PW Edge and G Harvey (n 34) 182.
100. See also F Raday (n 10) 663.
101. C Gearty, 'The Holism of Human Rights: Linking Religion Ethics and Public Life' (2004) 6 European Human Rights Law Review 605.
102. See R Ahdar and I Leigh (n 38) 60-4.
103. See R Ahdar and I Leigh (n 38) 62-3
104. J Garvey, 'Free Exercise and the Values of Religious Liberty' (1986) 18 Connecticut Law Review 779, 791
105. PW Edge, 'Religious rights and choice under the European Convention on Human Rights' (2000) 3 Web Journal of Current Legal Issues.
106. This point was made by the government before the Chamber in Şahin v Turkey (2005) 41 EHRR 8, para 92.
107. eg the literal meaning of 'Islam' is 'surrender [to the will of God]. See K Armstrong, The Battle for God (Harper Collins, London, 2000) 375. Some commentators have argued that the whole notion of individual rights sits uneasily with some religious cultures, eg, the Islamic concept of ummah or community raises potential difficulties for Muslims bringing individual human rights claims;
108. see A Bradney, 'Law and Religion in Great Britain at the End of the Second Christian Millennium' in PW Edge and G Harvey (n 34) 24-6.
109. Ch 24 (the Light) Verse 31.
110. Ch 33 (the Clans) Verse 59. There are many translations of these verses. The above are taken from that of MAS Abdel Haleem (OUP, Oxford, 2004).
111. Documented reports of the sayings of the Prophet Muhammad that do not appear in the Qur'an but were recorded for posterity by his close companions and family.
112. Sunan Adbu-Dawud: Book 32 Hadith 4092. Beliefs as to what these verses actually require by way of dress differ widely within Islam. See, eg, the judgment of Brooke LJ in R (on the application of Begum) v Denbigh High School Governors [2005] EWCA Civ 199
113. [2005] 1 WLR 3372, paras 31-48.
114. Note the Court's vague pronouncements on pluralism and the importance of religion to the individual believer (n 35).
115. See n 16 and n 21.
116. App No 16278/90 May 1993, 74 DR 93. For comment and comparison with Sa̧hin see H Gilbert, 'Redefining Manifestation of Belief in Leyla Şahin v Turkey' (2006] 3 European Human Rights Law Review 308.
117. Dahlab (n 5) 15. For comment on both Karaduman and Dahlab see D Lyon and D Spini (n 10).
118. (2003) 37 EHRR 1. For comment see P Cumper, 'Europe, Islam and Democracy - Balancing Religious and Secular Values under the European Convention on Human Rights' (2003/4) 3 European Yearbook of Minority Issues 163.
119. Refah had been elected as the largest party in the Grand National Assembly in 1995. Party members had, inter alia, called for jihad, encouraged the wearing of Islamic headscarves, advocated the introduction of sharia law and a plurality of legal systems.
120. Refah (n 66) Para 99.
121. ibid para 93. The Court cited the Turkish Constitutional Court's strong affirmation of secularism (para 40) and endorsed that court's strong critique of sharia law as incompatible with democracy (para 123).
122. ibid para 92.
123. This was pursuant to a series of judicial decisions of the Turkish Administrative and Constitutional Courts. For comment see Human Rights Watch Briefing Paper,'Memorandum to Turkish Government on Human Rights Watch's Concerns with regard to academic Freedom in Higher Education, and Access to Higher Education for Women who Wear the Headscarf' (29 June 2004).
124. She also claimed breaches of Art 2 of Protocol 1, Art 8, Art 10, and Art 14. For comment see J Marshall,'Religious Freedom and Gender Equality' (2006) 69 Modern Law Review 452
125. S Langlaude (n 33).
126. For comment on the Chamber judgment see D Decker and M Lloyd (2004) 6 European Human Rights Law Review 672
127. H Gilbert (n 64)
128. Human Rights Watch: Human Rights News,'Headscarf Ruling Denies Women Education and Career' (16 Nov 2005).
129. Art 2 of the Turkish Constitution states: 'The Republic of Turkey is a democratic, secular (laik) and social State based on the rule of law, respectful of human rights in a spirit of social peace...' Art 10 states: 'All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion... Men and women shall have equal rights. The State shall take action to achieve such equality in practice...'
130. Judgment of 7 Mar 1989 cited in Şahin (n 11) paras 39 and 113.
131. See also the quotes from the Turkish Constitutional Court cited in Refah Partisi (n 66) paras 40 and 123.
132. Şahin (n 11) para 114.
133. ibid para 115 (quoting paras 107-9 of the Chamber judgment).
134. See, eg, Refah Partisi (n 66).
135. Şahin (n 11) paras 115-16
136. ibid para 121.
137. The majority also found there to have been no breach of the other Articles. The only one considered in any detail was Art 2 of the First Protocol (n 11) paras 134-42.
138. Şahin (n 11) Judge Tulkens's dissent para 3.
139. See S Langlaude (n 33) 936-7.
140. Translated into Art 9(2) terms it was held to be necessary in order to protect the 'rights and freedoms of others' and 'public order'.
141. Şahin (n 11) Judge Tulkens's dissent para 7. She also contrasted the position of students (in the instant case) with that of teachers (eg in Dahlab (n 5)): 'While the principle of secularism requires education to be provided without any manifestation of religion and while it has to be compulsory for teachers and all public servants, as they have voluntarily taken up their posts in a neutral environment, the position of pupils and students seems to me to be different'.
142. See C Langenfeld and S Mohsen, 'Germany: The Headscarf Teacher Case' (2005) 3 International Journal of Constitutional Law 86, 92-3 commenting on the German position.
143. Şahin (n 11) (Judge Tulkens) para 8.
144. See G Davies (n 10) 520.
145. Şahin (n 11) (Judge Tulkens) para 5.
146. Şahin (n 11) (majority) para 115.
147. Şahin (n 11) (Judge Tulkens) para 9.
148. See also Baroness Hale's speech in Begum (n 5) para 96,
149. G Davies (n 10) 520. Otto-Preminger Institute v Austria (1994) 19 EHRR 34 would seem to be an exception to this.
150. Şahin (n 11) (Judge Tulkens) para 10.
151. ibid para 11.
152. See, eg, A v UK (1998) 27 EHRR 611
153. X and Y v Netherlands (1985) 24 EHRR 188.
154. On positive obligations generally see A Mowbray, The Development of Positive Obligations under the European Convention on Human Rights (Hart Publishing, Oxford, 2004).
155. Kokkinakis (n 15) paras 48-9.
156. Arguments of this kind were influential in the Court's decision in Murphy (n 19) paras 77-8.
157. See P Sales and B Hooper, 'Proportionality and the Form of Law' (2003) 119 Law Quarterly Review 426.
158. App No 72881/01 5 Oct 2006 (Chamber: First Section).
159. The grounds for the refusal changed throughout the course of the domestic proceedings. They included: An insufficient number of founding members and the absence of documents showing their residence in Russia; the paramilitary structure of the organization; inconsistent indication of the organization's religious affiliation.
160. Salvation Army (n 94) para 58.
161. ibid para 61.
162. ibid para 76.
163. Contrast with the Art 11 claim in Refah where the Court found that the party's policies were anti-democratic and thus contrary to the entire ethos of the Convention (n 68).
164. The Court in Salvation Army concluded that despite its paramilitary structure and appearance '[i]t could not seriously be maintained that the applicant branch advocated a violent change of constitutional foundations or thereby undermined the integrity or security of the State' (n 94) para 92.
165. G Davies (n 10) 528.
166. M Evans (n 54) 183.
167. See also A Bradney (n 57)
168. J Martinez-Torron, 'The European Court of Human Rights and Religion'in R O'Dair and A Lewis, Law and Religion (OUP, Oxford, 2001) 185, 203
169. F Raday (n 10)
170. S Langlaude (n 33).
171. F Raday (n 10) 663
172. A Bradney (n 57) 24.
173. Begum (n 5) especially the speech of Baroness Hale, para 97
174. F Raday (n 10) 663.
175. Dahlab (n 5)
176. for arguments on the German 'headscarf-teacher case' (n 5) see C Langenfeld and S Mohsen (n 83)
177. O Gerstenberg, 'Freedom of Conscience in Public Schools' (2005) 3 International Journal of Constitutional Law 94.
178. Refah Partisi (n 66) paras 107-8.
179. Şahin (n 11) Para 115.
180. See, eg,Brogan v UK (1988) 11 EHRR 117
181. McCann v UK (1995) 21 EHRR 97. It is worth remembering that during this period the United Kingdom Cabinet was blown up in the Grand Hotel, Brighton on 12 Oct 1984 and 10 Downing Street was subjected to a mortar attack on 7 Feb 1991. I am grateful to Peter Cumper for this point.
182. E Manningham-Buller (n 8).
183. Begum (n 5).
184. ibid para 33.
185. Indeed their Lordships rejected the 'procedural' approach of the Court of Appeal (n 61), which had found that the school had approached the issue from the 'wrong direction' rather than deciding on the substance of the matter.
186. See Lord Bingham paras 27-31, Lord Hoffmann Para 68.
187. Begum (n 5) para 63 citing the dicta of Lord Hope in R v Director of Public Prosecutions, Ex parte Kebilene [2000] 2 AC 326, 381.
188. Begum (n 5) para 62.
189. ibid para 63.
190. ibid para 64.
191. M Evans (n 54) 177.
192. The recent approach of the majority of the Supreme Court of Canada demonstrates how courts may drill down into the facts of individual cases rather than accept generalized fears as justifying prohibition: Multani v Commission scolaire Marguerite-Bourgeoys and AG of Quebec [2006] SCC 6.
193. Paraphrasing the comment of a Muslim woman interviewed in Unveiled BBC Radio 4, 12 Oct 2006.