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?

Chapter 24
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?


Hans-Martien Th. D. ten Napel and Florian H.K. Theissen


Introduction


The starting point of our chapter is the fact that the European Court of Human Rights’ (ECtHR) jurisprudence on religious symbols in public institutions is raising increasing concern and criticism. For example,1 in 2005, during a conference in Strasbourg, T. Jeremy Gunn argued that the then current judgment in Leyla Şahin v. Turkey (2004) ‘serves as a warning of how failing to analyze the issues objectively and openly can result in the suppression of human rights by an institution that was created to protect them’.2 On that same occasion, Ingvill Thorson Plesner warned that ‘the approach of the ECtHR … exhibit[s] an understanding of the role of religious manifestations in the public realm that resembles what we might call “secular fundamentalism” or “fundamentalist secularism” … The “fundamentalist” aspect of this approach lies in the fact that it imposes a secularist way of life on all individuals when they enter the public domain, also on those whose religious identity calls for certain manifestations like wearing a particular jewel, clothing or other symbols’.3


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 this chapter shall therefore be whether the ECtHR has lived up to this standard.


In order to answer this question, in the third section, we shall analyse 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 headscarves 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’.4 The fourth section 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 chapter will assess the case law of all three courts from the angle of interpretation theory and particularly Cass R. Sunstein’s theory of judicial minimalism5 set out in the second section. In doing so, we hope in the concluding section to be able to answer the following two sub-questions: (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?


Judicial Minimalism


C.R. Sunstein, professor of jurisprudence at the University of Chicago and a prominent participant in the discourse on constitutional interpretation in the United States, argues that striking differences in rulings concerning similar or identical provisions are caused by different theories of interpretation to which judges adhere. While most judges might not actively follow a coherent and consistent theory of interpretation, such theories developed by academics may help to categorize case law systematically. Sunstein himself proposes minimalism as most suitable for pluralistic, democratic societies. Judicial minimalism is characterized by shallow and narrow decisions rather than decisions which involve major and widespread principles.6 Judicial maximalism, on the other hand, favours deep and wide rulings. Yet judgments can also be shallow and wide, or deep and narrow. Table 24.1 visualizes the difference and convergence between minimalism and maximalist.


Table 24.1 Minimalist and maximalist convergence


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The shallowness of minimalist decisions refers to the fact that most foundational issues are left undecided (if possible). Instead, minimalists prefer deciding issues on the surface, leaving room for foundational disagreement on the deepest issues. Minimalists thus reach ‘incompletely theorized agreements’.7


Minimalist decisions are narrow in the sense that they apply to the case at hand. Minimalist judges do not want to produce broad and general rules, which will almost automatically decide all future cases. Of course, narrowness is a relative concept as much as shallowness and is to be understood as a comparative term.


Sunstein produces several arguments for incomplete theorization.8 Thus, for example, incompletely theorized agreements assist the promotion of two important goals of constitutional democracy and a liberal legal system. They enable different people to live together, and to show each other a measure of reciprocity and mutual respect.


Secondly, incompletely theorized agreements reduce the political cost of enduring disagreements. When a party – for example, a girl wanting to wear a headscarf in a particular school – loses a case that is decided shallowly and narrowly, she loses a decision but not the world. After all, it has not been decided whether or not she is protected in wearing the headscarf at work and whether or not other girls might be entitled to wear a headscarf in very different schools. Therefore, incomplete theorization enables the losing party of a case to submit to legal obligations (albeit reluctantly) without being forced to renounce his or her larger ideals.9 These arguments show that minimalism and, in particular, incompletely theorized agreements are of great value, especially for relatively pluralist societies that are often characterized by a higher degree of disagreement between various groups of the population than more homogeneous societies.


Is minimalism always preferable? Sunstein himself does not think so.10 Wide judgments rather than narrow judgments can give clear guidance, which at times is necessary. Segregation in the southern United States serves as an example here.11 For decades, the US Supreme Court had investigated on a case-by-case basis whether ‘separate’ was also ‘equal’. In the famous case of Brown v. Board of Education (1954),12 the Supreme Court decided that ‘separate is inherently unequal’. Brown was not only a wide decision but also a deep one.13 The Supreme Court ruled that the principle of equality was, in effect, a ban on government efforts to subordinate an identifiable group.


Judicial Protection of Religious Symbols in Europe’s Public Sphere


If one looks at the ECtHR’s jurisprudence on religious symbols in public institutions, it turns out that the Court includes both minimalist and maximalist reasoning in its judgments. Thus, for example, as Carolyn Evans has remarked, one of the main reasons that the ECtHR has thus far not succeeded in developing an altogether satisfactory jurisprudence on article 9 of the European Convention on Human Rights is the lack of a coherent philosophy of the freedom of thought, conscience and religion.14 Yet, from the point of view of judicial minimalism, it is at least equally possible to argue that the ‘shallow’ approach by the Court makes sense, given the fact that a wide variety of conceptions of the freedom of thought, conscience and religion exists in the Member States of the Council of Europe.15 Similarly, the fact that the ECtHR has adopted a relatively liberal definition of religion or belief16 is very much in line with a minimalist, shallow approach. Finally, the approach by the Court can be characterized as narrow because of the rather generous way in which the doctrine of the margin of appreciation tends to be applied in cases like these. Thus, for example, in Leyla Şahin v. Turkey the Court ruled that: