Accommodating Muslims in Europe: From adopting sharia law to religiously based opt outs from generally applicable laws

Human Rights Law Review

Volumn 9, Issue 4, 2009, Pages 603-645

  McGoldrick, Dominic ^a  

^a UNIVERSITY OF LIVERPOOL   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 77955749520     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngp024     Document Type: Article

References (269)

1. AlSayyad and Castells, 'Introduction: Islam and the Changing Identity of Europe', in AlSayyad and Castells (eds), Muslim Europe or Euro-Islam (Lanham, MD: Lexington Books, 2002) 1.
2. Loenen and Goldschmidt (eds), Religious Pluralism and Human Rights in Europe:Where to Draw the Line? (Antwerp: Intersentia, 2007)
3. Hellyer, Muslims of Europe - The 'Other' Europeans (Edinburgh: Edinburgh University Press, 2009).
4. See Rohe, 'Sharia in Europe - Perspectives of Segregation, Assimilation or Integration for European Muslims?', available at: http://cmes.hmdc.harvard.edu/files/Mathias.Rohe_.lecture.pdf [last accessed 5 August 2009]. On how accommodation policies have been influenced by the securitisation agenda since 9/11
5. Bleich, 'Muslims and the State in the Post-9/11 West', (2009) 35 Journal of Ethnic and Migration Studies 353.
6. There are three state members of the Council of Europe where Muslims constitute the majority population-Turkey, Armenia and Azerbaijan-but none of them have an Islamically based legal system. Some of the Eastern parts of Russia also have Muslim majorities. Turkey aspires to join the EU. A condition of membership is compliance with the European Convention on Human Rights.
7. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005) 1.
8. See Shavit, 'Should Muslims Integrate into the West?', (2007) 14 Middle East Quarterly 13. On existing accommodation in UK law in a range of areas.
9. see Bradney, Law and Faith in a Sceptical Age (Abingdon: Routledge, 2008).
10. The Convention has been incorporated in some form in all 47 of the states parties to it. See Blackburn and Polakiewicz (eds), Fundamental Rights in Europe: the European Convention on Human Rights and its Member States, 1950-2000 (Oxford: Oxford University Press, 2001).
11. 37 EHRR 1 (GC).
12. See Nasir, The Islamic Law of Personal Status, 2nd edn (London: Graham and Trotman/Kluwer, 2002) at 1. For each topic, e.g. marriage, dower, dissolution of marriage, parentage, inheritance, and waqf, Nasir begins with a consideration of the subject in sharia law, and then goes on to present legislation and contemporary views, in particular countries.
13. However, the rule of law has a modern conception that is translatable into a set of relatively defined principles and rules: see Lord Bingham, 'The Rule of Law', (2007) 66 Cambridge Law Journal 67-85.
14. Feldman, 'Why Sharia?', New York Times, 16 March 2008.
15. See also Feldman, The Fall and Rise of the Islamic State (Princeton: Council on Foreign Relations, 2009) (stressing the critical importance of the relationship between scholars and institutions).
16. See Rehman, 'The Shariah, Islamic Family Laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq', (2007) 21 International Journal of Law, Policy and Family 108 at 109-13 (citing extensive sources). For a historical account.
17. See Ramadan, Radical Reform: Islamic Ethics and Liberation (NewYork: OUP, 2009) 41
18. Abghari, Introduction to the Iranian Legal System and the Protection of Human Rights in Iran (London: BIICL, 2008) at 67
19. Rahimi, infra n. 63 at 1-3, on whether shi'i religious clerics (ulamas) should actively participate in political affairs or claim any political authority.
20. Williams, Archbishop of Canterbury, 'Civil and Religious Law in England: A Religious Perspective', (2008) 10 Ecclesiastical Law Journal 262.
21. The same is true for Jewish law, see Beth Din: Jewish Law in the UK (London: The Centre for Social Cohesion, 2009) at 1 (the positions held by the different branches of Judaism on key issues demonstrate the plurality of interpretation within Jewish law, specifically between Orthodox and non-Orthodox approaches to religious divorces, conversions and determination of Jewish status).
22. In 2009 the President of France sparked controversy by declaring that '[t]he burka is not a religious sign. It is a sign of subservience, a sign of debasement', and suggesting that it should be banned in France.
23. cited in Bremner, 'Burka makes women prisoners, says President Sarkozy', The Times, 23 June 2009.
24. See also Raday, 'Culture, Religion, and Gender', (2002) 4 International Journal of Constitutional Law 663 at 664-5
25. Sunder, 'Piercing the Veil', (2003) 112 Yale Law Journal 1399
26. McGoldrick, Human Rights and Religion: the Islamic Headscarf Debate in Europe (Oxford: Hart, 2006).
27. Bainbridge, infra n. 27 at 271, states: 'This hegemonisation of expertise, this impulse to dominate based on pedigree, artificially stunts the debate on Islam by seeking to unequivocally convince without recognizing the fallibility and limitations of one's own interpretative approach'.
28. For example, issues of what is appropriate female dress according to the sharia arose in R (Begum) v Denbigh High School Governors [2006] UKHL 15
29. [2007] 1 AC 100, where three Islamic authorities were consulted.
30. See Brandt and Kaplan, 'The Tension Between Women's Rights and Religious Rights. Reservations to CEDAW by Egypt, Bangladesh and Tunisia', (1995-1996) 12 Journal of Law and Religion 105 (explaining how such reservation an work differently within the three states examined)
31. Almihdar, 'Human Rights of Women and Children Under the Islamic Law of Personal Status and its Application in Saudi Arabia', (2008) 5 Muslim World Journal of Human Rights, available at: http://www.bepress.com/mwjhr [last accessed 5 August 2009].
32. 999 UNTS 171.
33. For the responses of France and Latvia, see http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en [last accessed 5 August 2009]. Similarly the response of the Netherlands to the reservations made by the Kingdom of Bahrain and the various responses to reservations made by Iran and Saudi Arabia to the Convention on the Rights of the Child 1989.
34. Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights, 2nd edn by Harris, O'Boyle, Bates and Buckley (Oxford: Oxford University Press, 2009) at 341-60.
35. A recent example is Dogru v France Application No. 27058/05, Judgment of 4 December 2008, on the regulation under French law of the wearing of Islamic headscarves at schools. The scope of the notion of foreseeability depended to a considerable degree on the content of the instrument in question, the field it was designed to cover and the number and status of those to whom it was addressed. However clearly drafted a legal provision might be, its application involves an inevitable element of judicial interpretation. The role of adjudication vested in the courts was precisely to dissipate such interpretational doubts as remained, taking into account the changes in everyday practice. The interference in question had a sufficient legal basis in domestic law. The relevant rules were accessible since they consisted mainly of provisions that had been duly published and of confirmed case law of the Conseil d'Etat. On 30 June 2009, a Chamber of the Court declared inadmissible the applications lodged in six cases against France concerning the expulsion of pupils from school for wearing conspicuous symbols of religious affiliation (headscarves and under-turbans)
36. see Aktas v France Application No. 43563/08
37. Gamaleddyn v France Application No. 18527/08
38. Baurak v France Application No. 14308/08
39. Ghazal v France Application No. 29134/08
40. J. Singh v France Application No. 25463/08
41. R. Singh v France Application No. 27561/08.
42. See Bracke and Fadil, 'Islam and Secular Modernity under Western Eyes: A Genealogy of a Constitutive Relationship', European University Institute (EUI) Working Paper RSCAS 2008/05, available at: http://cadmus.iue.it/dspace/bitstream/1814/8102/1/RSCAS_2008_05.pdf [last accessed 5 August 2009]. A distinction is often drawn between the classical or pre-modern sharia and sharia as it is currently reflected in modern Islamic State practices.
43. See Baderin, Human Rights and Islamic Law (Oxford: OUP, 2003)
44. Baderin, 'Islamic Law and Human Rights: the Myth of Discord', (2005) 5 European Human Rights Review 165 at 166 ('shariah does morally and legally enjoin the effective protection and promotion of human rights within the Islamic legal and political dispensation')
45. Brems, 'Reconciling Universality and Diversity in International Human Rights: A Theoretical and Methodoloigcal Framework and Its Application in the Context of Islam', (2004) 5 Human Rights Review 5
46. Meyer, 'The Islam and Human Rights Nexus: Shifting Dimensions', (2007) 4(1) World Muslim Journal of Human Rights (reasoning that the position that Islam and human rights are necessarily in conflict is becoming harder to sustain)
47. An'Naim, 'Human Rights in the Muslim World', (1990) 3 Harvard Human Rights Journal 13-52
48. An'Naim , Islam and the Secular State: Negotiating the Future of Sharia (Harvard: Harvard University Press, 2008).
49. Cumper, 'The Accommodation of "Uncontroversial" Religious Practices'
50. Baderin, 'Islam and the Realization of Human Rights in the Muslim World: A Reflection on Two Essential Approaches and Two Divergent Perspectives', (2007) 4 World Mus lim Journal of Human Rights, available at: http://www.bepress.com/mwjhr [last accessed 5 August 2009].
51. Refah Partisi (Welfare Party) v Turkey, Applications Nos 41340/98, 41342/98, 41343/98 and 41344/98, Judgment of 31 July 2001 (Chamber), at para. 100, though this was not repeated in the Grand Chamber.
52. See, e.g. Mernissi, Women and Islam: on Historical and Theological Enquiry (Oxford: Blackwell, 1990)
53. Mernissi, The Veil and the Male Elite: A Feminist Interpretation of Women's Rights in Islam (Reading Mass.: Addison-Wesley, 1991)
54. Feldman, infra n. 11 (particularly on the changing role of scholars)
55. Ramadan, Radical Reform: Islamic Ethics and Liberation (New York: OUP, 2009) (arguing against literalist reduction and cultural projection and for greater attention to context and objectives)
56. Bainbridge, 'War and Peace: Negotiating Meaning in Islam', (2008) 1 Critical Studies in Terrorism 263 (contrasting interpretations of Islam as a religion of peace and one of war)
57. Pigott, infra n. 224 (on Turkey). Such 'reinterpretations' are common, e.g. within the different schools of the Jewish faith.
58. Editorial, 'Lifting the Veil', The Times, 13 June 2009, at 2.
59. Two of the Chamber judges (one of whom was the Turkish judge) also took part in the Grand Chamber decision. The Convention entered into force for Armenia and Azerbaijan (the other two Convention states with Muslim majorities) in 2002, but neither state had a judge in the Chamber or Grand Chamber in Refah.
60. See Macklem, 'Militant Democracy, Legal Pluralism, and the Paradox of Self-determination', (2006) 4 Journal of International Constitutional Law 488. The concept was used to describe the activities of the National Socialist Party in Germany, which through elections became the largest party in Germany and then imposed a dictatorship.
61. There are dangers in intervening too early and in intervening too late: see Fox and Nolte, 'Intolerant Democracies', (1995) 36 Harvard International Law Review 1.
62. There were also some concurring judgments in the Grand Chamber. For the Court the real chances that Refah would implement its programme after gaining power made that danger more tangible and more immediate. That being so, the Court considered that it could not criticise the national courts for not acting earlier, at the risk of intervening prematurely and before the danger concerned had taken shape and become real. Nor could it criticise them for not waiting, at the risk of putting the political regime and civil peace in jeopardy, for Refah to seize power and swing into action (e.g. by tabling bills in Parliament) in order to implement its plans
63. Although the dissolution of political parties is not uncommon in Turkey; Refah was the fifteenth political party to have been compulsorily dissolved by the Turkish Constitutional Court in recent times. Disputes over the Islamic aspirations of political parties have continued. There was an attempted dissolution of the AK party in 2008. It was unsuccessful, just, but its assets were halved. In 2008 the Turkish Constitutional Court reversed constitutional reforms that would have allowed headscarves in universities for students. The headscarves amendments were cited in the application for the dissolution of AK party as evidence of its antisecular approach.
64. The third was that Refah's leaders had not sufficiently distanced themselves from statements advocating recourse to violence to gain and retain power.
65. 1 EHRR 241 at paras. 9 and 10
66. Abdulaziz, Cabales and Balkandali v United Kingdom A 94 (1985)
67. 7 EHRR 741 at pa ra. 72. For an excellent analysis
68. Cumper, 'Europe, Islam and Democracy: Balancing Religious and Secular Values under the European Convention on Human Rights', (2003-2004) 3 EuropeanYearbook of Minority Issues 163.
69. [2008] UKHL 64
70. [2009] 1 All ER 559.
71. A more refined analysis might be that the Islamic perspective sees women as equal but different and so should be dealt with equally but often separately. See Bielefeld, 'Muslim Voices in the Human Rights Debate', (1995) 17 Human Rights Quarterly 587. In a different context the US used to argue that separate but equal treatment was consistent with the US Constitution.
72. The US Supreme Court famously reversed this interpretation in Brown v Board of Education 347 U.S. 483 (1954) (finding that separate educational facilities are inherently unequal).
73. On the Council of Europe's activities, see http://www.coe.int/t/e/human_rights/equality/ [last accessed 5 August 2009].
74. See, in particular, Boyle, 'Human Rights, Religion and Democracy: The Refah Partisi Case', (2004) 1 Essex Human Rights Review 1 (the real 'threat is an ideology of secularism that was the mirror image of religious fundamentalism')
75. Moe, 'Refah Revisited: Strasbourg's Construction of Islam', available at: http://www.strasbourgconference.org/papers/Refah%20Revisited-%20Strasbourg%27s%20Construction%20of%20Islam.pdf [last accessed 5 August 2009]
76. Khan, 'Will the European Court of Human Rights Push Turkey Towards Islamic Revolution?', Jurist, 9 September 2002, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=941002 [last accessed 5 August 2009]
77. United Communist Party of Turkey v Turkey 1998-I
78. 26 EHRR 121 (GC)
79. Socialist Party v Turkey 1998-III
80. 27 EHRR 51 (GC).
81. Cf Herri Batasuna and Batasuna v Spain Application Nos 25803/04 and 25817/04, Judgment of 30 June 2009
82. Etxeberr|a and Others v Spain Application No s 35579/03, 35613/03, 35626/03 and 35634/03, Judgment of 30 June 2009
83. Herritarren Zerrenda v Spain Application No. 43518/04, Judgment of 30 June 2009. The first cases concern the dissolution of the political parties Herri Batasuna and Batasuna. The second and third cases concern the disqualification from standing for election imposed on the applicants on account of their activities within the political parties that had been declared illegal and dissolved. The Court found no violations. The national courts had arrived at reasonable conclusions after a detailed study of the evidence before them, which had allowed them to conclude that there was a link between the applicant parties and Euskada Ta Askatasuna (ETA). In view of the situation that had existed in Spain for many years with regard to terrorist attacks, the link between the applicant parties and ETA could objectively be considered as a threat for democracy. The Supreme Court's findings had to be placed in the context of an international wish to condemn the public defence of terrorism. In consequence, the Court considered that the acts and speeches imputable to the applicant political parties, taken together, created a clear image of the social model that was envisaged and advocated by the parties, which was in contradiction with the concept of a'democratic society'.
84. See Gadirov, 'Freedom of Religion and Legal Pluralism'
85. Tamanaha, 'Understanding Legal Pluralism: Past to Present, Local to Global', (2007) 29 Sydney Law Review 375 (particularly on the distinction between normative pluralism and legal pluralism and the fundamental conceptual problem of defining 'law' for the purposes of legal pluralism)
86. Schiff Berman, 'Global Legal Pluralism', (2006-2007) 80 Southern California Law Review 1155
87. Krisch, 'The Case for Pluralism in Postnational Law', LSE Legal Studies Working Paper No. 12/2009, available at: SSRN:http://ssrn.com/abstract=1418707 [last accessed 5 August 2009].
88. See Mowbray, 'The Role of the European Court of Human Rights in the Promotion of Democracy', (1999) Public Law 703
89. Wheatley, 'Minorities under the ECHR and the construction of a"democratic society"", (2007) Public Law 770.
90. See Esposito and Voll, 'Islam and Democracy', (2001) 22 Humanities, available at http://www.neh.gov/news/humanities/2001-11/islam.html [last accessed 5 August 2009], who conclude that, 'it is clear that Islam is not inherently incompatible with democracy'
91. See also Cotran and Sherif, Democracy, the Rule of Law and Islam (London: Kluwer, 1999)
92. Bukay, 'Can There Be An Islamic Democracy?' (2007) 14 Middle East Quarterly 71
93. Mogahed, 'The Battle for Hearts and Minds: Moderate vs. Extremist Views in the Muslim World', available at: http://cmes.hmdc.harvard.edu/files/ModerateExtrem_Flyer_POLL_01.08.pdf [last accessed 5 August 2009].
94. 'Sufi Wants Islamic Rule Worldwide', The Daily Times, 18 February 2009, available at: http://www.dailytimes.com.pk/default.asp?page=2009\02\18\story_18-2-2009_pg1_8 [last accessed 5 August 2009].
95. See Rahimi, 'The Discourse of Democracy in Shi'i Islamic Jurisprudence: The Two Cases of Montazeri and Sistani', EUI RSCAS Working Paper 2008/09, available at: http://cadmus.iue.it/dspace/bitstream/1814/8223/3/RSCAS_2008_09.pdf [last accessed 5 August 2009], discussing the work of two senior shi'i clerics, who refer to such a democratic-minded clerical tradition as 'democratic Usulism'.
96. This was in opposition to US plans for council-based elections: see Wong, 'Direct Elections of Iraqi Assembly Pushed by Cleric', NewYork Times, 12 January 2004.
97. Submits that the modern debate is on how to fuse the structures of liberal democratic principles with Islamic principles or sources. Examples are the new constitutions adopted in Afghanistan (2004) and Iraq (2005).
98. See Cameron, 'Protocol 11to the European Convention on Human Rights: the European Court as a Constitutional Court?', (1995) 15 Yearbook of European Law 219
99. Mowbray, 'An Examination of the Work of the Grand Chamber of the European Court of Human Rights', (2007) Public Law 507.
100. Editorial, 'Wounded and Wiser', The Guardian, 12 February 2008
101. 8 February 2008 Gledhill and Webster, 'Archbishop of Canterbury Argues for Islamic Law in Britain', The Times, 8 February 2008, available at: http://www.timesonline.co.uk/tol/comment/faith/article3328024.ece4 [last accessed 5 August 2009]. As of 2 June 2009 this piece had attracted 320 comments.
102. See also the comments at Dhimmi Watch under 'Rowan Williams, Beth Din courts, and Shari'a', available at: http://www.jihadwatch.org/dhimmiwatch/archives/019878.php4 [last accessed 5 August 2009]
103. Open Democracy discussion forum at: http://www.opendemo-cracy.net/forums/thread.jspa4 [last accessed 5 August 2009].
104. Gadher, Taher and Morgan, 'Rowan Williams Faces Backlash Over Sharia', The Sunday Times, 10 February 2008.
105. 'Sharia law-What did the Archbishop actually say?', 8 February 2008, available at: http://www.archbishopofcanterbury.org/15814 [last accessed 5 August 2009].
106. Lord Phillips, 'Equality Before the Law', East London Muslim Centre, 3 July 2008, available at: http://www.judiciary.gov.uk/docs/speeches/lcj_equality_before_the_law_030708.pdf [last accessed 5 August 2009].
107. See Mirza, Senthilkumaran and Ja'far, Living Apart Together, available at: http://www.policyexchange.org.uk/assets/Living_Apart_Together_text.pdf [last accessed 5 August 2009].
108. Ismail, 'Islamism, re-Islamization and the fashioning of Muslim selves: Refiguring the public sphere', (2007) 4 Muslim World Journal of Human Rights, available at: http://www.bepress.com/mwjhr/vol4/iss1/art3/ [last accessed 5 August 2009]. For a wider European perspective of Muslim attitudes
109. See Fetzer and Soper, Muslims and the State in Britain, France and Germany (Cambridge: CUP, 2005)
110. Joppke, 'Limits of Integration Policy: Britain and Her Muslims', (2009) 35 Journal of Ethnic and Migration Studies 453.
111. In Bankovic and Others v Belgium and Others 2001-VII
112. 44 EHRR SE5, at para. 75, the Grand Chamber stated: '[T]he positive obligation in Article 1 to secure "the rights and freedoms defined in Section I of this Convention"could not be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question.'
113. See Shah , Legal Pluralism in Conflict (London: Glasshouse Press, 2005) at 4. On efforts for and against the development of a specific sociology of Islam
114. In survey results published in 2005, 70% of British Muslim leaders came out in favour of 'legal dualism', that is, of applying religious sharia rules in private law, such as marriage and divorce: Klausen, The Islamic Challenge (NewYork: OUP, 2005) at 192.
115. Joppke, 'Liberalism and Muslim integration: Through the prism of headscarf restrictions in Europe', available at: http://131.130.1.78/veil/Home3/index.php?id=36,79,0,0,1,0 [last accessed 5 August 2009]
116. Madera, infra n.91 at 63 states:'In Islamic countries, there is a trend towards permitting judicial intervention in the breakdown of marriage, and the courtroom is increasingly becoming "a negotiation area"for conjugal conflicts.'
117. It remains the fact that in Muslim countries where the law is founded on Sharia principles, the law includes sanctions for failure to observe those principles and there are courts to try those who are alleged to have breached those laws. The definition of the law and the sanctions to be applied for breach of it differ from one Muslim country to another. In some countries the courts interpret Sharia Law as calling for severe physical punishment. There can be no question of such courts sitting in this country, or such sanctions being applied here. So far as the law is concerned, those who live in this country are governed by English law and subject to the jurisdiction of the English courts.
118. This would raise Convention issues under Articles 3, 8 and 14. See Jabari v Turkey 2000-VIII (real risk of the applicant being subjected to treatment contrary to Article 3 if she were to be returned to Iran where she might face stoning for adultery).
119. See HJ (Iran) v Secretary of State for the Home Department [2009] EWCA Civ. 172
120. The Times, 8 April 2009, where the Court of Appeal held that the need to protect fundamental human rights transcended national boundaries, but, in assessing whether there had been a breach of such rights, a degree of respect for social norms and religious beliefs in other states was appropriate. In considering what was reasonably tolerable in a particular society, the fact-finding tribunal was entitled to have regard to the beliefs held there. Analysis of in-country evidence was necessary in deciding what an applicant could expect on return and could not be ignored when considering that issue. A degree of discretion could be required in all sexual relationships, heterosexual as well as homosexual. The applicant homosexuals could be deported to Iran and Cameroon, respectively.
121. 35 EHRR 447.
122. Islamic law does not distinguish between civil and religious marriages, Lord Phillips, supra n. 77, has observed that '[s]o far as aspects of matrimonial law are concerned, there is a limited precedent for English law to recognise aspects of religious laws, although when it comes to divorce this can only be effected in accordance with the civil law of this country.' On marriages 'in accordance with the usages of Jews', see section 10(a) of the Matrimonial Causes Act 1973 (UK).
123. See also Jackson, ""Transformative Accommodation" and Religious Law', (2009) 11 Ecclesiastical Law Journal 131 at 150
124. Madera, 'Juridical Bonds of Marriage for Jewish and Islamic Women', (2009) 11 Ecclesiastical Law Journal 51.
125. In 2009 an 8-year-old girl from Saudi Arabia was granted a divorce from her 50 year old husband. However, the country's highest religious authority, the Grand Mufti Sheikh Abdul Aziz al-Shaikh, said that marrying girls who are even under the age of 15 years was not against sharia-Islamic law which forms the basis of the Saudi legal system. See Spencer, 'Girl, 8, Gets Divorced in Saudi Arabia', The Daily Telegraph, 30 April 2009.
126. Under sharia law, a man is permitted to marry up to four wives at any one time.
127. Admittedly, this is an issue on which the basis may be cultural, or more cultural than religious, but that is a divide which is often not clear with respect to sharia rules. The issue is by no means particular to Muslims. In a case in 2008 in the village of Karnal, Haryana, India, a young couple was murdered by the girl's family for having eloped. It was reported that the family had the support of the village, see 'Haryana family kills couple for honour', available at: http://www.stophonourkillings.com/?name=News&file=article&sid=2591 [last accessed 5 August 2009].
128. Murphy, International Dimensions of Family Law (Manchester: Manchester University Press, 2005) at 76-7, states: 'English law, in a notable volte face, now predominantly recognises foreign polygamous marriages so long as they were validly created both in terms of the formal requirements of the local law and in terms of the capacities of the parties... [P]arties to a valid polygamous marriage can nowadays expect it to attract recognition for nearly all purposes.' Such recognition is consistent with the Convention
129. However, there are situations in which Muslim women could benefit. In 2008 Baroness Butler-Sloss, the former head of the Family Division of the Court, called for judges to stop granting civil divorces to separating Muslim couples unless they had already been through a religious divorce. She submitted that the move would end the injustice of women being left unable to remarry if their husband refused to grant them a divorce, because under Islam only men have the power to end marriages. See Beckford, 'Butler-Sloss Urges Courts to Recognise Sharia Divorces', The Daily Telegraph, 27 December 2008. The wording of the Divorce (Religious Marriages) Act 2002 (UK) is arguably wide enough to cover all religious marriages.
130. See also Ishaque, 'Islamic Principles on Adoption', (2008) 22 International Journal of Law, Policy and Family 393 (rights of illegitimate children under Islamic principles governing kafalah as well as inheritance are inconsistent with international agreements concerning identity, non-discrimination, and the best interest of the child)
131. Under Article 9 of the Convention there is an express right for an individual to 'change his religion'.
132. Cited in Khan, 'Christian Registrar Demoted to Receptionist After She Refused to Preside Over Gay "Marriages"", The Daily Telegraph, 22 June 2009.
133. For example, Article 8 on military service and Article 12 on the right to marry.
134. O'Connell, 'Cinderella Comes to the Ball: Art 14 and the right to non-discrimination in the ECHR', (2009) 29 Legal Studies 211
135. Stavros, 'Freedom of Religion and Claims for Exemption from Generally Applicable, Neutral Laws: Lessons from Across the Pond?', (1997) 6 European Human Rights Law Review 607.
136. Thlimmenos v Greece 2000-IV
137. 31 EHRR 411 (GC) at para. 44. T, a Jehovah's Witness, had been convicted for refusing on religious or philosophical grounds to wear the military uniform. However, unlike other convictions for serious criminal offences, the conviction could not imply any dishonesty or moral turpitude likely to undermine T's ability to exercise the accountancy profession. Excluding T on the ground that he was an unfit person was not, therefore, justified. Note also Protocol No. 12 to the Convention, which provides for a more general equality protection. As of 5 August 2009 it had 17 ratifications.
138. See Arbitration and Conciliation Council (ACAS), A Guide for Employers and Employees: Religion and Belief in the Workplace, at para. 4.9 and p. 34, available at: http://www.acas.org.uk/CHttpHandler.ashx?id=107&p=0 [last accessed 5 August 2009].
139. See also Freedland and Vickers, 'Religious Expression in the Workplace in the United Kingdom', (2009) 30 Comparative Labor Law & Policy Journal 597.
140. McColgan, 'Class Wars? Religion and (In)equality in the Workplace', (2009) 38 Industrial Law Journal 1.
141. UKEAT/453/08, [2009] ICR 387
142. [2009] IRLR 154.
143. Another example is Azmi v Kirklees MBC [2007] ICR 1154
144. [2007] ELR 339
145. Munby J in R (on the application of E) v JFS Governing Body [2008] EWHC 1535 (Admin)
146. [2008] ELR 445, said: 'It is important to realise that reliance upon religious belief, however conscientious the belief and however ancient and respectable the religion, can never of itself immunise the believer from the reach of the secular law. And invocation of religious belief does not necessarily provide a defence to what is otherwise a valid claim. Some cultural beliefs and practices are simply treated by the law as being beyond the pale.'
147. 'Cardinal Tells Blair of Opposition to Gay Adoption', Christian Today, available at: http://www.christiantoday.com/article/cardinal.tells.blair.of.opposition.to.gay.adoption/9242.htm [last accessed 5 August 2009]. Similar issues arise in the US in terms of calls for language that exempts religious organizations from having to participate in the provision of services to same sex couples
148. See Goodnough, 'New Hampshire Legalizes Same-Sex Marriage', New York Times, 3 June 2009.
149. Tony Blair, 'No place for discrimination in society - PM', Statement, 29 January 2007, available at: http://www.number10.gov.uk/Page10869 [last accessed 5 August 2009].
150. See 'Gay Catholics welcome rulings against adoption agency discrimination', available at: http://www.ekklesia.co.uk/node/9585 [last accessed 5 August 2009]. A gay Christian who won a discrimination claim against the Church of England was awarded more than »47,000 in compensation. John Reaney took the Hereford Diocesan Board of Finance to an employment tribunal after his appointment to the role of youth worker was blocked on the grounds of his sexuality by the Bishop of Hereford.
151. See http://thinkinganglicans.org.uk/uploads/herefordtribunaljudgment.html [last accessed 5 August 2009]. A Christian counsellor has claimed unfair dismissal, harassment and discrimination on the grounds of religion after he was sacked for refusing to offer sexual therapy to gay couples because it was against his religious beliefs
152. See Savill, 'Christian Counsellor Sacked for Refusing Sex Therapy for Gay Couples', The Telegraph, 1 December 2008.
153. For US perspectives, see McConnell, 'Accommodation of Religion: An Update and a Response to the Critics', (1992) 60 George Washington Law Review 685
154. Gey, 'Why Is Religion Special?: Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment', (1990) 52 University of Pittsburgh Law Review 75
155. Kelley, 'The Primacy of Political Actors in Accommodation of Religion', (2000) 22 University of Hawaii Law Review 43, available at: SSRN: http://ssrn.com/abstract=1136345 [last accessed 5 August 2009]
156. Employment Division, Department of Human Resources v Smith 494 US 872 (1990).
157. See Vickers, Religious Freedom, Religious Discrimination and the Workplace (Oxford: Hart, 2007)
158. Vickers, Religion and Belief Discrimination in Employment-the EU Law, (Luxembourg: European Commission, 2007), available at: ec.europa.eu/social/BlobServlet?docId=2013 &langId=en[last accessed 5 August 2009]
159. Knights, Freedom of Religion, Minorities and the Law (Oxford: OUP, 2007).
160. See section 4 of the Abortion Act 1967. As to how far this extends, see R v Salford HA Ex parte Janaway [1989] AC 537 (HL) (a medical secretary who was required by her employer to type a letter referring a patient to a consultant with a view to the termination of the patient's pregnancy was not thereby participating in any treatment within the meaning of section 4(1) of the Abortion Act 1967, and she was not, consequently, entitled to claim conscientious objection as justification of her refusal to do so). The Archbishop specifically cited this exemption, see supra n. 14 at 11. In a sense the exemption can be considered acceptable as long as there are sufficient doctors willing to provide abortion such that the service can be described as generally available.
161. If there were such a legislative exemption in Ireland, that might not be the case: see A., B. and C. v Ireland, Application No. 25579/05, relinquished to the Grand Chamber of the Court in 2009, complaining of restrictions on abortion and supporting services, and the lack of clear legal guidelines regarding the circumstances in which a woman may have an abortion to save her life. One of the applicants in that case was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued to term or to give her clear advice as to how the foetus might have been affected by the tests she had undergone.
162. See Regulation 26 of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003 1660). A 'no headwear' policy may constitute indirect discrimination against Sikhs under those Regulations.
163. The original cycling exemption was in the Motor Cycle Crash Helmets (Religious Exemption) Act 1965 (UK). The motorcycle exemption has caused controversy in the US and in Canada. In 2008, an Ontario judge ruled in favour of the government and against a Sikh, for not wearing a helmet in accordance with the province's mandatory helmet law, citing safety issues and the medical costs of involved in traumatic brain injury. In the US in the late 1970s the Occupational Safety and Health Administration (OSHA) exempted Amish and Sikh workers who refused to wear hard hats based on religious grounds. In the 1990s the decision was revised, broadening the general exemption to all individuals who'for reasons of personal religious convictions, object to wearing hard hats in the workplace'. But OSHA also included clause G.5 stating: 'There may be, however, circumstances in the future that would involve a hard hat hazard sufficiently grave to raise a compelling governmental interest for requiring the wearing of hard hats, notwithstanding employee personal religious convictions': see OSHA Instruction STD 1-6.5, 20 June 1994, The original cycling exemption was in the Motor Cycle Crash Helmets (Religious Exemption) Act 1965 (UK). The motorcycle exemption has caused controversy in the US and in Canada. In 2008, an Ontario judge ruled in favour of the government and against a Sikh, for not wearing a helmet in accordance with the province's mandatory helmet law, citing safety issues and the medical costs of involved in traumatic brain injury. In the US in the late 1970s the Occupational Safety and Health Administration (OSHA) exempted Amish and Sikh workers who refused to wear hard hats based on religious grounds. In the 1990s the decision was revised, broadening the general exemption to all individuals who'for reasons of personal religious convictions, object to wearing hard hats in the workplace'. But OSHA also included clause G.5 stating: 'There may be, however, circumstances in the future that would involve a hard hat hazard sufficiently grave to raise a compelling governmental interest for requiring the wearing of hard hats, notwithstanding employee personal religious convictions': see OSHA Instruction STD 1-6.5, 20 June 1994, available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1789 [ last accessed 5 August 2009].
164. R (on the Application of Animus - MSFand Others) v Secretary of State forTrade and Industry and Others [2004] EWHC (Admin) 860.
165. [2000] OJ L 303, 2 December 2000, at 303/16.
166. Available at: http://www.opsi.gov.uk/si/si2003/20031661.htm#7 [last accessed 5 August 2009].
167. See Savage, 'ACAS Research Paper: Sexual orientation and religion or belief discrimination in the workplace, available at: http://www.acas.org.uk/CHttpHandler.ashx?id=689&p=0 [last accessed 5 August 2009].
168. SI 2003/1660, available at: http://www.opsi.gov.uk/si/si2003/20031660.htm#29 [last accessed 5 August 2009]. See Savage, ibid. at 43, who notes that 461 cases where religion or belief discrimination was the main jurisdiction were brought between January 2004 and August 2006. Of these cases, around half of the claimants were Muslim; two thirds of the claimants were men.
169. Regulation 7(2) of the Employment Equality (Religion or Belief) Regulations 2003. An example is that a halal butcher must be a Muslim.
170. Regulation 7(3) of the Employment Equality (Religion or Belief) Regulations 2003.
171. See COM(2008)0426-C6-0291/2008-2008/0140(CNS); and Report of the European Parliament, A6-0149/2009, 20 March 2009.
172. Wilson, 'Islamic Finance in Europe', EUI Working Paper RSCAS 2007/02, available at: http://cadmus.eui.eu/dspace/bitstream/1814/7739/1/RSCAS_PP_2007_02.pdf [last accessed 5 August 2009].
173. See Part 2, section 50 of the Equality Act 2006 (UK). However, faith schools have no exemption from race discrimination: see R (on the Application of E) v The Governing Body of JFS [2009] EWCA 2187 at 2188, heard by the new Supreme Court of the United Kingdom in October 2009.
174. Sections 58-60 of the School Standards and Framework Act1998 (UK) deal with the appointment and dismissal of teachers in schools with a religious character and section 21 of the Education (Scotland) Act 1980 (UK) deals with the management of denominational schools. The Employment Equality (Religion or Belief) Regulations 2003, are without prejudice to these provisions: see reg. 39. For detailed treatment, see Harris, Education, Law, Diversity (Oxford: Hart, 2007).
175. The suggestion is drawn from Martin, 'Muslim Medical Students Refuse to Learn About Alcohol or Sexual Diseases', The Daily Mail, 7 October 2007, available at: http://www.daily-mail.co.uk/news/article-486213/Muslim-medical-students-refuse-learn-alcohol-sexual-diseases.html [last accessed 5 August 2009].
176. 'In October 2006, Lloyds chemist was forced to apologise to a mother after a Muslim pharmacist refused her a morning-after contraceptive pill on religious grounds in Rotherham', reported in Martin, ibid. See the 'Practice Guidance' of the Royal Pharmaceutical Society, at para. 4, available at http://www.rpsgb.org.uk/pdfs.ehcguid.pdf [last accessed 5 August 2009]. Quaere whether safe substitutes for illegal drugs or tobacco could similarly be refused based on religious objections?
177. Section 45 of the Employment Rights Act1996 (UK) provides for those working in the retail or betting trades to opt out of Sunday working by giving their employer three months notice of their intention to stop working on Sundays. This does not apply to those working only on Sundays.
178. See the majority view in Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932
179. [2005] ICR 1789
180. The views of Lords Scott, Hoffmann and Bingham in R (Begum) v Headteacher and Governors of Denbigh High School
181. 4 EHRR 126.
182. 23 EHRR CD168.
183. See also Kosteski v FederalYugoslav Republic of Macedonia 45 EHRR 712, where the Court was not persuaded that attendance at a Muslim festival was a manifestation of K's beliefs in the sense protected by Article 9 or that the penalty imposed on him for breach of contract in absenting himself from work without permission was an interference with those rights. Furthermore, the Court did not find it unreasonable that an employer might regard absence without permission or apparent justification as a disciplinary matter. Where an employee sought to rely on a particular exemption, it was not oppressive or in fundamental conflict with freedom of conscience to require some level of substantiation. The Court therefore concluded, unanimously, that there had been no violation of Article 9 in conjunction with Article 14.
184. 'The question of proportionality will depend on a number of issues such as the requirements for cover during the member of staff's absence, the ease with which shifts can be swapped between staff, the availability and cost of cover, the length of time off requested, the frequency of requests, and the interaction between these factors. If it is easy to cover an absence using volunteers, it may be that it is not proportionate to refuse a religiously motivated request for absence. If there are no volunteers, it may be more difficult to require accommodation'
185. The examples are drawn from Brown, 'Outcry As Muslim M&S Worker Refuses To Sell ""Unclean" Bible Book', The Daily Express, 15 January 2008, available at: http://www.express.co.uk/posts/view/31491/Outcry-as-Muslim-M-S-worker-refuse [last accessed 5 August 2009].
186. Lawson , Disability and Equality Law in Britain - The Role of Reasonable Adjustment (Oxford: Hart, 2008).
187. On practices within Muslim schools in the UK (of which there are 166), see MacEoin, Music, Chess and other Sins: Segregation, Integration, and Muslim Schools in Britain (London: CIVITAS, 2009).
188. Phillips, 'After 7/7: Sleepwalking to Segregation', 2005, available at: http://83.137.212.42/sitearchive/cre/Default.aspx.LocID-0hgnew07s.RefLocID-0hg00900c002.Lang-EN.htm [last accessed 5 August 2009].
189. Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain - A consultation paper, 12 June 2007, at 171-5, available at: http://www.communities.gov.uk [last accessed 5 August 2009].
190. See the explanations in the Discrimination Law Review at paras 5.68-5.72 (extending single public sector equality duty to cover religion and belief), 10.13 (gender and organised religions) and 14.15-14.17 (harassment on grounds of religion or belief).
191. See Government Equalities Office, Framework for a Fairer Future: the Equality Bill (Cm 7431)
192. The Equality Bill-Government Response to the Consultation (Cm 7454)
193. In January 2009, the Government published the New Opportunities White Paper (Cm 7533)
194. The Explanatory Notes on the Equality Bill 2009, available at: http://services.parliament.uk/bills/2008-09/equality.html [last accessed 5 August 2009]. In the Government's response to the Consultation, the Government accepted that there were good reasons to allow exceptions because of religious doctrine but not where the religious organisations carry out public functions (see, e.g. paras 9.18-9.33 on gender reassignment).The list of respondents to the Consultation refers to three Muslim organizations: the Al-Manaar Muslim Cultural Heritage Centre, the Muslim Council of Great Britain and MuslimWomen's Network UK.
195. Bano, 'In Pursuit of Religious and Legal Diversity: A Response to the Archbishop of Canterbury and the 'Sharia Debate' in Britain', (2008) 10 Ecclesiastical Law Journal 282.
196. Lawson, Disability and Equality Laws Britain - The Role of Reasonable Adjustment (Oxford: Hart, 2008).
197. See Boyd, 'Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion', December 2004, available at: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/executivesummary.pdf [last accessed 5 August 2009]
198. Cross, 'Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion', Women Living Under Muslim Laws, Dossier 27, December 2005, available at: http://www.wluml.org/ [last accessed 5 August 2009]. Any proposed arbitration system by a Convention state could be subject to the Convention as a base line.
199. Family Statute Law Amendment Act 2006 (UK). See Bakht, 'Family Arbitration Using Sharia Law: Examining Ontario's Arbitration Act and its Impact on Women', (2004) 1 Muslim World Journal of Human Rights, available at: http://www.bepress.com/mwjhr [last accessed 5 August 2009]
200. Eisgruber and Zeisberg, 'Religious Freedom in Canada and the United States', (2006) 4 International Journal of Constitutional Law 265.
201. See Tamer, 'Revealed: UK's First Official Sharia Courts', The Sunday Times, 14 September 2008
202. Hamilton, 'Non-Muslims Turning to Sharia Courts to Resolve Civil Disputes', The Times, 21 July 2009. See also the website of the Muslim Arbitration Tribunal (MAT), established in 2007, available at: http://www.matribunal.com/ [last accessed 5 August 2009]
203. See also Yilmaz, 'The Challenge of Post-Modern Legality and Muslim Legal Pluralism in England', (2002) 28 Journal of Ethnic and Migration Studies 343 at 343 ('Muslim law is still superior and dominant over English law in the Muslim mind and in the eyes of the Muslim community').
204. MacEoin, Sharia Law or One Law For All (London: CIVITAS, 2009).
205. Beth Din: Jewish Law in the UK (London: The Centre for Social Cohesion, 2009).
206. Cf Broker v Marcovitz [2007] 3 S.C.R. 607 (recognising the enforceability by civil courts of agreements to discourage religious barriers to remarriage).
207. The Act could be applied to Muslims but no Islamic group has sought the necessary prescription from the Lord Chancellor: see section 1(6).
208. Cavanaugh, 'Islam and the European Project, (2007) 4 Muslim World Journal of Human Rights, available at: http://www.bepress.com/mwjhr [last accessed 5 August 2009].
209. Mandaville, 'Muslim Transnational Identity and State Responses in Europe and the UK after 9/11: Political Community, Ideology and Authority', (2009) 35 Journal of Ethnic and Migration Studies 491.
210. Rees v UK A 106 (1986)
211. 9 EHRR 56 at para. 37
212. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (New York: CUP, 2007).
213. See Potz and Weishaider (eds), The European Union and Islam (Leuven: Peeters, 2004)
214. See Hasan and Church v Bulgaria 2000-XI; 34 EHRR 1339 (GC), concerning a dispute within the Bulgarian Muslim community as to who should be the Chief Mufti. Cf R (on the Application of E) vThe Governing Body of JFS [2009] EWCA 2187 and 2188, in which the claimant, a non-orthodox Jew, successfully asserted that the school's admission criteria were racially discriminatory in giving admission priority to orthodox Jews.
215. Metropolitan Church of Bessarabia v Moldova 2001-XII; 35 EHRR 306
216. Manoussakis v Greece 1996-IV; 23 EHRR 387.
217. Moscow Branch of Salvation Army v Russia 2006-XI; 44 EHRR 912.
218. See 97 Members of the Gldani Congregation of Jehovah's Witnesses and Others v Georgia 46 EHRR 613.
219. See Otto-Preminger-Institute v Austria A 295-A (1994)
220. 19 EHRR 34
221. Wingrove v United Kingdom 1996-V; 24 EHRR 1
222. Murphy v Ireland 2003-XI: 38 EHRR 212.
223. See IA v Turkey 2005-VIII; 45 EHRR 703, concerning what the Court considered to be an abusive attack on the Prophet of Islam: discussed in Cram, infra n. 208.
224. 46 EHRR 1060
225. The decision was based on a major decision of the Grand Chamber concerning the teaching of Christianity in Norwegian schools, Folgerø v Norway 46 EHRR 47.
226. See generally Evans, 'Religious Education in Public Schools: an International Human Rights Perspective', (2008) 8 Human Rights Law Review 449.
227. Leyla Şahin v Turkey 2005-XI; 44 EHRR 99 (GC) at para. 78. Cf. Karaduman v Turkey (1993) 74 DR 93. For recent decisions, see Dogru v France, supra n. 20, and El Morsli v France Application No. 15585/06, Decision of 4 March 2008, concerning a refusal to raise veil so that identity could be verified at a French consulate in Marrakesh. The Article 9 complaint was held to be manifestly ill-founded.
228. McGoldrick, 'Muslim Veiling Controversies in Europe', in Neilsen et al. (eds) (2009) 1 Yearbook of Muslims in Europe 427
229. Joppke, Veil: Mirror of Identity (London: Polity, 2009).
230. Hamdan, 'The Issue of Hijab in France: Reflections and Analysis', (2007) 4 Muslim World Journal of Human Rights, available at: http://www.bepress.com/mwjhr [last accessed 5 August 2009].
231. See Gibson, 'Faith in the Courts: Religious Dress and Human Rights', (2007) 66 Cambridge Law Journal 657
232. Davies, 'The House of Lords and Religious Clothing in Begum v Head Teacher and Governors of Denbigh High School', (2007 ) 13 European Public Law 423
233. Vakulenko, 'Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends', (2007) 7 Human Rights Law Review 717
234. Cumper and Lewis, 'Taking Religion Seriously"? Human Rights and Hijab in Europe-Some Problems of Adjudication', (2009) 24 Journal of Law and Religion 101.
235. See also Leader, 'Freedom of Futures: Personal Priorities, Institutional Demands and Freedom of Religion', (2007) 70 Modern Law Review 713.
236. See also Vakulenko, ""Islamic Headscarves" and the European Convention on Human Rights: A Intersectional Perspective', (2007) 16 Social and Legal Studies 183
237. Evans. 'The "Islamic Scarf" in the European Court of Human Rights', (2006) 7 Melbourne Journal of International Law 52
238. Süral, 'Islamic Outfits in the workplace in Turkey, A Muslim Majority View', (2009) 30 Comparative Labor Law and Policy Journal 569.
239. Skjeie, 'Headscarves in Schools: European Comparisons'
240. Barras, 'Using Rights to Re-invent Secularism in France and Turkey', EUI RSCAS Working Paper 2008/20, available at: http://cadmus.iue.it/dspace/bitstream/1814/8870/1/RSCAS_2008_20.pdf [last accessed 5 August 2009].
241. See also R (on the application of X) v Headteacher of Y School (2007) EWHC 298 (Admin)
242. [2008] 1 All ER 249 (school could refuse to admit a schoolgirl who wanted to wear a niqab)
243. [2007] ICR 1154
244. [2007] ELR 339 (school had not discriminated against a teacher who insisted on wearing a veil when assisting with the teaching of small children).
245. A subject of increasing controversy is the building of mosques, some on a massive scale, across Europe. These have engendered significant political disputes in, e.g. Germany (over 180 mosques planned) and Italy. See Boyes, 'Mosques are "land grab, not a place of prayer"", The Times, 6 December 2008
246. Owen, 'Muslims "not welcome" at interfaith prayer centre in Genoa', The Times, 6 August 2008.
247. For a recent application, see Ghai v Newcastle City Council [2009] EWHC 978 (Admin)
248. (2009) 159 NLJ 713
249. The Times, 18 May 2009 (G's Hindu belief concerning an open air funeral had the requisite degree of seriousness and importance to justify protection, However, the Secretary of State's interference with G's rights was justified under Article 9(2). The Secretary of State was entitled to conclude that the present legislative framework was consistent with mainstream cultural expectations of persons living in this country and secured in a practical way the avoidance of likely offence and distress).
250. In Ben El Mahi and Others v Denmark, Application No. 5853/06, Decision of11 December 2006, the Court held that there was no jurisdictional link between the applicants, a Moroccan national resident in Morocco and two Moroccan associations which were based in Morocco and Denmark. Accordingly, the Court had no competence to examine the applicants'substan-tive complaints under the Articles of the Convention relied upon.
251. See Cram, 'The Danish Cartoons, Offensive Expression, and Democratic Legitimacy', in Hare and Weinstein (eds), Extreme Speech and Democracy (Oxford: OUP, 2009) at 309-30
252. Nathwani, 'Religious Cartoons and Human Rights- a Critical Legal Analysis of the Case Law of the European Court of Human Rights on the Protection of Religious Feelings and its Implications in the Danish Affair Concerning Cartoons of the Prophet Muhammad', (2008) European Human Rights Law Review 488.
253. Lindekilde, 'Claims-making of Danish Muslims during the Muhammad Caricatures Controversy: A Challenge to the Principles of the Secular Public Sphere?', EUI Working Paper 2008/05, at 24, available at: http://cadmus.iue.it/dspace/bitstream/1814/8812/1/SPS_2008_05.pdf [last accessed 5 August 2009].
254. Lewis, 'What Not to Wear: Religious Rights, the European Court, and the Margin of Appreciation', (2007) 56 International and Comparative Law Quarterly 395.
255. It found a violation of Article 10 by six votes to one.
256. Khan v United Kingdom (1986) 48 DR 252 at 253.
257. Application No. 71907/01, Judgment of 5 April 2007.
258. Application No. 8691/02, Judgment of 5 April 2007.
259. Application No. 15394/02, Judgment of 5 April 2007.
260. Although this essay has principally focussed on Muslims, the power of modern non-discrimination norms make many of its central concerns relevant to other religions including majority religions. Behind all the issues are meta-debate about the place of religion in modern society and religions' claim to some kind of privileged status.
261. See Williams, Archbishop of Cantebury, 'Faith in the Public Square', Leicester Cathedral, 22 March 2009, available at: http://www.archbishopofcanterbury.org/2423 [last accessed 5 August 2009]
262. For a US perspective, see Carter, God's Name inVain: TheWrongs and Rights of Religion in Politics (New York: Basic Books, 2000) (warning against a perspective which starts from the point of view of the state). On religious teaching and practices in a predominantly Muslim school, see American Civil Liberties Union of Minnesota v Tarek ibn Ziyad Academy, District Court of Minnesota, 21 July 2009.
263. Finnis, 'Endorsing Discrimination Between Faiths', in Hare andWeinstein (eds) Extreme Speech and Democracy (Oxford: OUP, 2009) at 430-41.
264. See POLITIS, Building Europe with New Citizens? An Inquiry into the Civic Participation of Naturalised Citizens and Foreign Residents in 25 Countries, Final Activity Report, available at: http://www.uni-oldenburg.de/politis-europe/download/POLITISFinalReport.pdf [last accessed 5 August 2009].
265. See Ramadan, Western Muslims and the Future of Islam (New York: OUP, 2004)
266. See The Great Divide: How Westerners and Muslims View Each Other (Washington DC: Pew Research Center, 2006), available at: www.pewglobal.org [last accessed 5 August 2009]. There is a sense in which the European Convention is an expression of modernity.
267. Pigott, 'Turkey in radical revision of Islamic texts', BBC News Channel, 26 February 2008, available at: http://news.bbc.co.uk/1/hi/world/europe/7264903.stm [last accessed 5 August 2009] (on suggestions of reinterpretations of Islam in Turkey)
268. Adelman, 'Rights and the hijab: Rationality and Discourse in the Public Sphere', (2008) 8 Human Rights and HumanWelfare 43 (on transforming Islam into its European manifestation).
269. Amghar et al., European Islam: Challenges for Public Policy and Society (Brussels: Centre for European Policy Studies, 2007) at 6 (arguing that 'European Islam is already a reality for Muslims').