Religious Symbols: An Introduction

Chapter 21
Religious Symbols: An Introduction1


Malcolm D. Evans


Most people have some rather well formed views about clothes, fashion and jewellery, 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 clothing or jewellery 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, jewellery and other items which are of religious significance to the wearer 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. Workers have been disciplined for wearing crosses at work. Questions have been raised as to whether it is right to allow women to wear burkas in public. Should shops play Christmas carols whilst customers do their shopping? 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, few issues have attracted as much attention as the wearing or visibility of religious symbols in public institutions, 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. Turkey2 in 2005 proved to be a catalyst for debate. In that 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.


How does this bear upon the display of religious symbols in public institutions? In some sense, this is merely a particular aspect of the much more general question concerning the ‘visibility of religion’ within the structuring of the public life of the State. Not all of the things which are of symbolic significance to religious believers are things which are displayed or worn. For example, State recognition of the special status of a religious day or festival can be seen as an act by a public institution which has a symbolic status. However, the symbolism here is not the symbolism of the religion but a symbolic statement by the State regarding the status of the religion. A whole host of other regulatory activities by state institutions also can take on a similar significance, such as those involving the use of planning laws. One of the clearest manifestations of religion within a community is the presence of religious structures. Religious buildings are a symbolic presence in and of themselves and their distinctive architecture and adornment, as well as the activities which take place in and around them, again take on a symbolic meaning which is both ‘conceptual’ and ‘tangible’: the presence of a minaret or church tower dominating the skyline in a town or village is more than the mere physical display of a symbol but is a statement of a physical presence within the community, with the size and location of such buildings being similarly significant.


Since it is engaging with such issues on an ongoing basis from a variety of public law perspectives, there is no reason for a State to shy away from regulating matters concerning religious symbols where it is appropriate to do so. Indeed, it can hardly avoid such regulation: when religious believers and organized religions enter the public arena their activities, in common with that of all other participants, are subject to the legislative and regulatory powers of the state (which are of course to be exercised in accordance with human rights law). Nor can it be seriously maintained that the duty of neutrality and impartiality which European human rights law now imposes on States means that religious symbolism is to be removed from the public space, generally understood. Article 9 of the ECHR itself makes it clear that the freedom of religion includes the freedom to manifest beliefs ‘in public’ and this, of necessity, requires that the State facilitates rather than frustrates this through its regulation of the public domain.


Determining what comprises a religious symbol is not a straightforward task. In the Otto-Preminger-Institut case the Court said that ‘provocative portrayals’ of ‘objects of religious veneration’ may amount to a ‘malicious violation of the spirit of tolerance’,3