Women's Rights and Religion - The Missing Element in the Jurisprudence of the European Court of Human Rights

Abstract

Many countries have recently experienced heated internal discussions over religion and state matters. These issues indeed tend to be exceptionally poignant, touching the very essence of peoples’ private beliefs and generally generating intense social and political arguments. One of the most controversial debates revolves around the tension between the protection of women’s equality and their religious freedoms. A rigorous expression of it takes place in the European context surrounding the wearing of veils, headscarves, and other modest garments by Muslim women (all of which are claimed to be protected as a manifestation of the right to freedom of religion). Several bans on the wearing of such religious attire have spawned a vast feminist literature laying out robust arguments of both opponents and proponents of the bans. Both sides make strong claims. On the one hand, some introduce sharp criticism of European courts' decisions to endorse the bans. The claim is that the rulings violate women’s religious rights as well as other rights (including the right to personal autonomy, the right of access to education and the right to employment). On the other hand, some assert that a secular approach - that would support and approve the bans - is vital for the protection of gender equality in our ever-growing multicultural democratic societies.

It is in this context that this paper discusses how the European Court of Human Rights has handled the dilemma and dismissed the many claims of religious women. It critically analyzes the Court’s assessment in recent cases and argues against the questionable absence of a comprehensive legal analysis of the issues at stake in the Court’s judgments. The paper points to the Court's failure to fully engage with the complexity of the debate. Ultimately, it advances the argument that the Court’s approach stems from the current construction of religion as law’s “other”, i.e. as an extralegal field, incontestable in the conventional sense. In simple words, the law fails to properly handle religion and religious aspirations of women in the public sphere. As shown, unfortunately, not only religion is constructed as law’s other, but in the context of women's rights, the otherness is exacerbated. Legal demands involving women’s religious rights create a legal field so ‘sensitive’ and controversial, that the Court seems to be avoiding serious discussion and instead turns to make unfortunate generalizations. For the ECtHR, such course of rulings is troubling and even dangerous, particularly in light of the effect of its judgments on national courts, as well as on international human rights tribunals and institutions.

Keywords: women's rights, religion, gender equality, religious rights, freedom of religion, European Court of Human Rights