JURIST Guest Columnist Malcolm D. Evans of the University of Bristol School of Law (UK) says European Court of Human Rights rulings responding to growing calls to prohibit the wearing of clothing which is of religious significance in public places have laid down a number of key principles that should be taken into account when setting law and policy in this increasingly sensitive area…

Most people have some rather well formed views about fashion — ‘the colours which go and the colours which don’t go’, what suits us and what doesn’t, what we like and dislike. And if others do not share our tastes, then, well, perhaps we do not share theirs. Few, however, would really wish to ban someone from wearing clothes which we consider to be in ‘dubious taste’ — unless it was positively indecent. Yet in recent times, there has been a significant rise in the calls for prohibiting the wearing of clothing which is of religious significance in public places on the basis that this either offends the dominant social or cultural mores or somehow implicates the State in supporting the belief systems in question. As is well known, there have been many contentious cases concerning the wearing of Headscarves or other body coverings by Muslim girls and women in schools, universities, offices, and even in the streets. A British Airways worker was recently disciplined for wearing a cross to work. Questions have been raised as to whether it is right to allow women to wear Burkas in the street. Christmas is coming, but local authorities are increasingly reluctant to allow Christmas Trees to be erected in town centre? Should shops play Christmas carols whilst customers browse? The list of issues expands ever outwards, and as it does tensions increase.

Modern Europe political society owes its origins to the struggle to separate political governance from religious governance and affiliations. Tragically, European history has been punctuated by many instances of conflict between followers of various religious beliefs, and of persecution by both the religious and by the non-religious of those who either did not share or who rejected the belief systems of the dominant groups within the societies of which they formed a part. The need to find a means of accommodating religious diversity has therefore played a significant role in the shaping of modern Europe and the nature of the accommodations made have varied over time and each has left its own historical legacy which still have reverberations today. It can hardly be denied that there is now a renewed interest in the role and place of religion and of systems of belief in contemporary society and, as has already been indicated, and few issues have attracted as much attention as the wearing or visibility of religious symbols in public spaces and in the workplace. It was only a matter of time before this issue came into focus before the European Court of Human Rights, and although related issues had been dealt with previously, the decision of the Grand Chamber of the Court in Leyla Sahin v. Turkey[1] in 2005 proved to be a catalyst for debate. In its decision, the Court accorded the state a broad discretion in determining the necessity for and proportionality of an outright ban on the wearing of headscarves at state run universities in Turkey, in the interests of preserving the neutrality of the State. This fed into the ongoing discussions within the Council of Europe on the place of fundamental rights within a plural society and in 2006 the Committee of Ministers’ Steering Committee for Human Rights decided to make this one of two particular questions on which to focus further work — the other being the equally pressing question of ‘hate speech’. Working groups were created and Reports on each topic adopted. One of the Recommendations of the Reports was the independent experts be commissioned to prepare manuals on each theme which would ‘gather relevant standards, existing case-law as well as provide an analysis of this case-law and give examples of national measures’. These Manuals[2] were launched during the Council of Europe Conference on Human Rights in Culturally Diverse Societies, held in The Hague in November 2008.

The Manual on the Wearing of Religious Symbols in Public Areas seeks to provide a human rights based guide to how best to approach such questions, based on the jurisprudence of the European Court of Human Rights. Article 9 of the European Convention on Human Rights, in common with other major human rights instruments, protects the rights of individuals to ‘manifest’ their religion or belief in ‘worship, teaching observance and practice’, and the wearing of religious clothing (such as headscarves or turbans) or symbols (such as crosses or kirpans) is certainly embraced by this protection. However, the state may restrict such forms of manifestation if it is ‘strictly necessary in a democratic society’ in order to protect, inter alia, the rights and freedoms of others. Moreover, the Court accepts that States have a broad measure of discretion in how to strike the balance between these competing interests. There are, however, a number of key principles which have emerged and which need to be taken into account when assessing the appropriateness of the decisions made.

Neutrality/impartiality

The European Court calls on States to act in a neutral fashion as between religions and as between religious and non-religious forms of belief. This means that States must not privilege forms of religious expression – including wearing religious symbols – over other forms of expression, or to sub-ordinate the expression of religion or belief to the non-religious. This duty to remain neutral and impartial has a number of other facets, perhaps the most important being that ‘the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which they are expressed’.[3] This clearly extends to wearing religious clothing or symbols. If a person considers something to be of religious significance to them, then it is not for others to say that it is not (as has happened in some cases).

Fostering pluralism and tolerance

Fostering of pluralism and tolerance is not an ‘incidental outcome’ but is a goal which is to be achieved in its own right. Most religious belief systems advance truth claims which are, in varying degrees, absolutist in nature and reject at least elements of the validity of others. The Court expects believers to cope with a fairly high degree of challenge to their systems of belief in the pursuit of the more general goals of securing pluralism and tolerance. Likewise, society in general may be expected to be able to cope with a fairly high degree of public display of personal religiosity. Whilst respect for the freedom of religion and belief cannot require others to respect the doctrines and teachings of faith traditions other than one’s own (if any) it can, and does, require that one be respectful of them. The role of the State in such cases is to ensure that both believers and non-believers are able to continue to enjoy their convention rights, albeit that they may be troubled or disturbed by what they see and hear around them. The State should not be driving religion ‘off the streets’ or ‘from the workplace’ or ‘underground’ unless there are compelling reasons to do so.

Respect

The principle of respect has emerged as the single most important element in determining the scope of limitations on the freedom to manifest religion or belief and the Court has said that it may be ‘necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and to ensure that everyone’s beliefs are respected’.[4] The Court has developed the principle of ‘respect’ as a key factor when balancing the respective interests which are engaged and both believers and non-believers are entitled to the respect of those who express themselves on matters pertaining to their opinions, ideas and beliefs – even though, of course, there may be profound disagreement regarding the content of those views, since respect for the believer does not necessarily entail respect for what is believed.

In the light of these principles, it is increasingly difficult to justify general restrictions on the wearing of religious symbols in public areas or in the workplace, unless there is a clear functional reason. Neutrality and impartiality does not mean that the public space must be emptied of the religious – it means that all forms of religion or belief must be able to secure their place. Any other approach is hardly likely to help foster pluralism and tolerance or show the appropriate degree of respect for the beliefs of others.

As a result, when decision-makers are considering whether or not to place a restriction upon wearing religious symbols in public the following questions should be asked:

– is this restriction reflective of a general approach which is neutral and impartial as between all forms of religion or belief or does it seek to prioritise a particular form of religion or belief?

– is this restriction discriminatory in that it bears more directly or more harshly on the followers of one religion or belief than of another?

– is the restriction directly aimed at the protection of a ‘legitimate interest’, notably the protection of the rights and freedoms of others?

– is there a pressing reason why that interest needs to be protected?

– are there alternatives to the restriction which would secure the realisation of those interests and which would not involve a greater diminution of the freedom to manifest one’s beliefs through the wearing of such religiously-inspired clothing or artifacts?

– assuming there to be no other viable alternative approach, is the restriction limited to the minimum that is necessary to realise the specific legitimate aims identified?

– is the imposition of the restriction compatible with the principles of respect and or the need to foster tolerance and pluralism?

Above all else, it should be emphasised that the relevant question is not whether a restriction is ‘reasonable’ in all the circumstances of the case, but whether it is ‘necessary’ – which is a very different question and which sets a much higher threshold of legitimacy. Should domestic policy and decision-makers address these questions when considering issues concerning restrictions upon the wearing of religious symbols, then it will be more likely that their decisions will be compliant with human rights standards and be properly respectful the freedom of religion or belief whilst striking a fair balance between the competing interests at stake.

Notes

1. Leyla Sahin v. Turkey [GC], no. 44774/98, para 109, ECHR 2005-XI.

2. Malcolm D Evans, Manual on the Wearing of Religious Symbols in Public Areas (Council of Europe/Martinus Nijhoff, 2008) and Anne Weber, Manuel sur le discours de haine (Council of Europe/Martinus Nijhoff, 2008).

3. Manoussakis and Others v. Greece, judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, para 47.

4. Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, para 33.

Malcolm D. Evens is Professor of Professor of Public International Law and Dean of the Faculty of Social Sciences and Law at the University of Bristol (UK). He is the author of the Manual on the Wearing of Religious Symbols in Public Areas (Council of Europe/Martinus Nijhoff, 2008)
——–