FORCED MIGRATION, HUMAN RIGHTS AND SECURITY, J. McAdam, ed., pp. 181-212, Hart Publishing, UK, 2008
28 Pages Posted: 1 Nov 2008 Last revised: 27 Feb 2009
This paper critically examines three key recent cases of superior courts concerning restrictions on religious symbols: a prohibition on wearing headscarves in Turkish universities, upheld by the Grand Chamber of the European Court of Human Rights (Sahin v Turkey)(2005); a restriction on a particular kind of Islamic dress in an English school, upheld by the British House of Lords (R (on the Application of Begum) v Headteacher and Governors of Denbigh High School); and an absolute ban on wearing a Sikh kirpan (a symbolic dagger) in a Quebecois school, struck down by the Canadian Supreme Court (Multani v Commission scolaire Marguerite-Bourgeoys). Each case focused on similar arguments about freedom to manifest one's religion, and dealt with subsidiary arguments about the impact of the respective restrictions on the right to education. While each case proceeded from different factual circumstances, there are considerable differences in their approaches to what were essentially the same human rights law questions. The decision of the European Court of Human Rights is the least satisfactory in both its reasoning and its result; the House of Lords arguably reached the correct result but its reasoning was abbreviated; and the Canadian Supreme Court properly reasoned its way to a correct result.
Keywords: headscarves, restrictions, freedom of religion, right to education, discrimination, human rights, terrorism, extremism
JEL Classification: K10, K30, K33
Suggested Citation: Suggested Citation
Saul, Ben, Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbols. FORCED MIGRATION, HUMAN RIGHTS AND SECURITY, J. McAdam, ed., pp. 181-212, Hart Publishing, UK, 2008; Sydney Law School Research Paper No. 08/128; Islamic Law and Law of the Muslim World Paper No. 09-56. Available at SSRN: https://ssrn.com/abstract=1292568