The European Court of Human Rights on Religious Symbols in Public Institutions – A Comparative Perspective: Maximum Protection of the Freedom of Religion Through Judicial Minimalism?

LAW AND RELIGION IN THE 21ST CENTURY: RELATIONS BETWEEN STATES AND RELIGIOUS COMMUNITIES, pp. 313-321, Silvio Ferrari, Rinaldo Cristofori, eds., Ashgate, 2010

Posted: 24 Feb 2012

Date Written: February 24, 2012

Abstract

How should judges deal with the manifestation of religious symbols in public institutions? In light of the important role of human rights in our legal and political system, we contend that the freedom of religion or belief ought to be central to the approach of the courts. As human rights should only be limited in a democratic society if this is strictly unavoidable, courts should grant individuals and groups maximum protection under the freedom of religion or belief. The central question of our paper shall therefore be whether the ECtHR has lived up to this standard. In order to answer this question, in Section 3, we shall analyze relevant case law of the European Court, notably the case of Leyla Şahin v. Turkey, in which the ECtHR held, that although a Turkish ban on wearing head scarves at state universities interfered with the right of students to manifest their religion, the interference can nevertheless be justified as ‘necessary in a democratic society’. Section 4 will compare European case law with that of the high courts of Canada and South Africa, two nations that, like the Council of Europe, are characterized by a significant degree of religious pluralism. Finally, the paper will assess the case law of all three courts from the angle of interpretation theory and particularly Cass R. Sunstein’s theory of judicial minimalism set out in Section 2. In doing so, we hope in the concluding section to be able to answer the following two subquestions: (1) does judicial minimalism offer a framework that helps to explain differences in outcomes between the ECtHR and the Canadian and South African high courts; and (2) can the ECtHR learn something from the other two jurisdictions?

Keywords: religious symbols, freedom of religion, European Court of Human Rights, religious pluralism, judicial minimalism

Suggested Citation

ten Napel, Hans-Martien and Theissen, Florian H. Karim, The European Court of Human Rights on Religious Symbols in Public Institutions – A Comparative Perspective: Maximum Protection of the Freedom of Religion Through Judicial Minimalism? (February 24, 2012). LAW AND RELIGION IN THE 21ST CENTURY: RELATIONS BETWEEN STATES AND RELIGIOUS COMMUNITIES, pp. 313-321, Silvio Ferrari, Rinaldo Cristofori, eds., Ashgate, 2010, Available at SSRN: https://ssrn.com/abstract=2010508

Hans-Martien Ten Napel (Contact Author)

Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

Florian H. Karim Theissen

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

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