Religious Expression

On July 17, despite the lack of any evidence of a specific threat to public order, the rights of others, or the secular status of France’s public institutions, the European Court of Human Rights upheld a French law that prohibits the wearing of conspicuous symbols of religious affiliation in government run schools. The dismissal by the European Court of Human Rights of the claims of the affected students as inadmissible reflects the ongoing dilemma European nations and public authorities face in trying to properly calibrate their response to possible threats posed to democracy by religious extremism.

This particular case concerns complaints made against France by four Muslim girls and two Sikh boys who arrived at their first day of school during the 2004-2005 academic year wearing head coverings. School administrators deemed such attire to be in violation of the French law established in March 2004, which forbids the wearing of dress or other symbols that  religious affiliation in a classroom setting. Because they refused to remove their head coverings, the students were prevented from entering the classroom. Failed discussions between the pupils’ parents and French education officials led to the expulsion of the students from the state school system. After appealing this decision unsuccessfully in domestic courts, the applicants brought their cases to the European Court of Human Rights, primarily claiming violations of Article 9 of the Convention (freedom of thought, conscience and religion) and

Article 14 of the Convention.
The European Court of Human Rights rejected the claims in all six cases because it found the restrictions on the manifestation of religion as provided for in French law to be necessary for guaranteeing public order and the rights and freedoms of others. The Court relied heavily on a decision it issued in 2005 concerning a complaint brought by a Turkish university student who was forbidden to wear a headscarf to class. In that case, Leyla Sahin v. Turkey , the European Court of Human Rights decided that there had been no violation of Article 9, as such restrictions of religious expression were necessary in order to protect the democratic system in Turkey. The Court noted that Turkey is a predominantly Muslim country struggling to establish the notion of secularism within its political and social system. By banning the wearing of headscarves in universities, the Court found that the Turkish government was taking legitimate steps to protect the freedoms of others and maintain public order by minimizing the pressure felt by those who chose not to wear headscarves, and by reducing the effect of extremist political movements present in Turkey who sought the establishment of a religiously motivated Turkish society.

The European Court of Human Rights cited many of these same arguments in its decisions regarding the six French pupils. Yet, the European Court of Human Rights did not consider the significant differences that exist in the political and social contexts of the two cases. As noted in the 2005 decision, the majority of the Turkish population is Muslim, and there are very real concerns that Islamic extremism could undermine the democratic advances made by the Turkish government. In addition, the Court commented that Muslim head coverings have a very strong political significance in Turkey, which could put pressure on women to wear headscarves who would have otherwise chosen not to cover their heads.

The situation in France is quite different. Muslims make up a minority of the French population and, absent specific evidence to the contrary, their religious practices and expressions do not pose an inherent threat to the democratic order. Further, the wearing by students of religious apparel like the Muslim headscarf or the Sikh keski does not place the same level of peer pressure on non-believers or more moderate adherents residing in the pluralistic French society.

While appreciating the challenges faced by western European democracies in addressing the internal threats posed by religious extremism, national authorities need to be very circumspect as they craft laws and policies containing curbs on religious expression. Likewise, the European Court of Human Rights needs to base its decisions in this area on specific and credible evidence that the religious expression in question poses a threat to public order, the rights of others, and the preservation of secular democratic principles. This is especially a concern in light of the fact that, in two recent cases, the Supreme Court of the United States has referred to decisions of the European Court of Human Rights as justification for the Supreme Court’s rulings on the right to privacy and capital punishment.