Claiming Religious Freedom at the European Court of Human Rights: Socio-Legal Field Effects on Legal Mobilization

2021 ◽  
pp. 1-30
Author(s):  
Lisa Harms
Keyword(s):  
Human Rights ◽  
Power Distribution ◽  
Religious Freedom ◽  
Legal Mobilization ◽  
Social Scientists ◽  
Legal Principles ◽  
European Court ◽  
Transnational Connections ◽  
Depth Study ◽  
Legal Strategies

How do legal strategies at the European Court of Human Rights (ECtHR) vary among activists in highly asymmetrical social positions? Social scientists have demonstrated that legal mobilization raises the pressure on states to provide broader minority accommodation. While this may be true, such outcome-oriented studies overlook the fact that judicial mobilization is itself deeply imbued with inequalities and divergent interests among diverse activists. We lack comparative studies to examine how such differences play out in litigation. Drawing on a qualitative in-depth study among Sikh, Muslim, Catholic, Evangelical, and secular advocacy groups involved in religious freedom disputes at the ECtHR, this article argues that claims making often is a balancing act between legal power relations and extra-legal commitments, which leads to variation in activists’ leverage to challenge legal marginalization. First, hostile legal environments discourage more easily activists with weaker transnational connections who are in vulnerable domestic positions. Second, while the most marginalized readily seek to fit identity narratives into dominant legal frames of religion, more powerful actors can target the core of legal principles and power distribution within the legal field as such. Even when unsuccessful in judicial outcomes, they might affect broader political and legal debates.

Lachiri v Belgium and Bans on Wearing Islamic Dress in the Courtroom: An Emerging Trend

2019 ◽  
Vol 21 (1) ◽  
pp. 48-53
Author(s):  
Kaushik Paul
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Public Spaces ◽  
Religious Liberty ◽  
Recent Case ◽  
European Convention ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Islamic Dress

In recent years, the wearing of Islamic dress in public spaces and elsewhere has generated widespread controversy all over Europe. The wearing of the hijab and other Islamic veils has been the subject of adjudication before the European Court of Human Rights (ECtHR) on many occasions. The most recent case before the ECtHR as to the prohibition on wearing the hijab is Lachiri v Belgium. In this case, the ECtHR held that a prohibition on wearing the hijab in the courtroom constitutes an infringement of Article 9 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of religion or belief. From the perspective of religious freedom, the ruling of the Strasbourg Court in Lachiri is very significant for many reasons. The purpose of this comment is critically to analyse the ECtHR's decision in Lachiri from the standpoint of religious liberty.

Battles Over Symbols: The “Religion” of the Minority Versus the “Culture” of the Majority

2013 ◽  
Vol 28 (1) ◽  
pp. 67-104 ◽  
Author(s):  
Lori G. Beaman
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Religious Symbol ◽  
Anti Semitism ◽  
European Tradition ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Grand Chamber ◽  
The Right

Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.In March, 2011, after five years of working its way through various levels of national and European courts, the Grand Chamber of the European Court of Human Rights decided that a crucifix hanging at the front of a classroom did not violate the right to religious freedom under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Specifically, Ms. Soile Lautsi had complained that the presence of the crucifix violated her and her children's right to religious freedom and that its presence amounted to an enforced religious regime. The Grand Chamber, reversing the lower Chamber's decision, held that while admittedly a religious symbol, the crucifix also represented the cultural heritage of Italians.

Physical Education and Religious Freedom

2019 ◽  
pp. 144-155
Author(s):  
Konstantinos Margaritis
Keyword(s):  
Human Rights ◽  
Physical Education ◽  
Religious Freedom ◽  
Case Law ◽  
Democratic Society ◽  
The Other ◽  
Recent Case ◽  
Freedom Of Religion ◽  
Other Hand ◽  
European Court

Freedom of religion has been constantly characterized as one of the foundations of a democratic society. On the other hand, the significance of physical education in the development of children's overall personality is beyond dispute. Thus, the question that arises is, What happens in a case of a conflict involving the above? The aim of this chapter is to provide an answer on the basis of the case law of the European Court of Human Rights. In particular, the fundamental cases of Dogru vs. France and Kervanci vs. France will be examined, as well as the recent case of Osmanoglu and Kocabas vs. Switzerland. Through the analysis of the cases, useful conclusions will be drawn on the possible impact of religious freedom on physical education.

scholarly journals Freedom of Religion and Freedom from Religion

2016 ◽  
Vol 19 (01) ◽  
pp. 3-13 ◽  
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Well Being ◽  
European Convention ◽  
Freedom Of Religion ◽  
Religious Expression ◽  
European Court ◽  
Religious Extremism ◽  
Domestic Courts ◽  
The Right

The right to freedom of religion, enshrined in the European Convention on Human Rights has been frequently tested, both in UK courts and in the European Court of Human Rights, where successive decisions over a number of years led to the establishment of several well-known principles. However, in recent years religious extremism has brought into focus a tension between the right of freedom of religious expression and the well-being of individuals (not least children) and society. The Strasbourg court requires neutrality on the part of the state and its courts. However, unlike the European Court of Human Rights, the domestic courts have had to face situations where religious observance can be seen to be causing serious harm and where interference in religious freedom and family life has been shown to be justified.

scholarly journals Religious Freedom and the European Court of Human Rights’ Two Margins of Appreciation

2017 ◽  
Vol 12 (2-3) ◽  
pp. 198-209
Author(s):  
Stephanie E. Berry
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
The State ◽  
Complete Picture ◽  
European Convention ◽  
Article 9 ◽  
European Court ◽  
Margin Of Appreciation ◽  
Religious Clothing

Abstract The European Court of Human Rights’ (ECtHR) use of the margin of appreciation (MoA) in cases concerning religious clothing is well-documented. This article paints a more complete picture of the use of the doctrine in cases falling within Article 9 and Article 2, Protocol 1 of the European Convention on Human Rights (echr). The ECtHR’s use of the normative MoA often appears to be superfluous as it does not seem to extend past the Article 9(2) echr, limitations clause. In contrast, the systemic MoA allows almost complete deference to the State, which has the potential to undermine the religious freedom of minorities.

scholarly journals Claims of Religious Morality: The Limits of Religious Freedom in International Human Rights Law

2016 ◽  
Vol 10 (2) ◽  
pp. 341-365 ◽  
Author(s):  
Alison Mawhinney
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Conceptual Status ◽  
European Court ◽  
Freedom Of Thought ◽  
The Right ◽  
Religious Morality ◽  
Historical Treatment

Abstract The right to freedom of thought, conscience and religion is not a constant. As human rights law has progressively acquired a conceptual status as a means of reconciling tensions, the substantive legal content of the right to freedom to manifest religion or belief has widened. This paper argues that the admittance of claims of religious morality within this expanded understanding of the right exposes the conceptual imprecision underlying the right and presents a complex challenge to human rights supervisory bodies to address such claims without undermining their founding objectives. The first part of the paper traces the historical treatment of the right to freedom of religion or belief as a means of understanding its evolving and multifaceted nature. Part II draws on this overview to develop a taxonomy of aspects of the right and, in particular, it suggests that claims of religious morality ought to be viewed and treated as a distinct facet. The final part of the paper examines a group of recent cases before the European Court of Human Rights to explore current judicial responses to such claims and considers the risks posed by claims of religious morality for the contemporary right to freedom of thought, conscience, and religion.

New Trends in Religious Liberty and the European Court of Human Rights

2010 ◽  
Vol 12 (3) ◽  
pp. 266-279 ◽  
Author(s):  
Ian Leigh
Keyword(s):  
Human Rights ◽  
Religious Education ◽  
Military Service ◽  
Religious Freedom ◽  
Religious Affiliation ◽  
The State ◽  
Religious Liberty ◽  
European Convention ◽  
European Court ◽  
The Right

This article analyses recent trends in the jurisprudence of the European Court of Human Rights concerned with the right to freedom of thought, belief and religion (Article 9, European Convention on Human Rights) and the right of parents to respect by the state for their religious and philosophical views in the education of their children (Article 2, Protocol 1).1 These developments include notable decisions concerned with protection from religious persecution in Georgia, with religious education in Norway and Turkey and with the display of crucifixes in state schools in Italy. It is apparent that the European Convention religious liberty jurisprudence increasingly stresses the role of the state as a neutral protector of religious freedom. For individuals religious freedom is now also recognised to include not only the right to manifest their religious belief but also freedom from having to declare their religious affiliation. As the religious liberty jurisprudence comes of age, other significant developments, for example in relation to conscientious objection to military service, can be anticipated.

scholarly journals Perpetuating Anti-Muslim Discrimination through the Interpretation of Religious Equality in the European Court of Human Rights

2018 ◽  
Vol 7 (1) ◽  
pp. 27-46 ◽  
Author(s):  
Pier-Luc Dupont
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
State Policies ◽  
European Court ◽  
Prejudice And Discrimination

AbstractFaced with widespread prejudice and discrimination, European Muslims are increasingly resorting to the European Court of Human Rights as a last-ditch strategy to transform state policies toward minority faiths. While the Court has a mandate to protect religious freedom and equality, the conservative and sometimes biased way in which it has interpreted these concepts has enabled the persistence of stark asymmetries in the legal and social statuses of different religions. Using an analysis of relevant cases, this article seeks to highlight the judicial processes that currently sustain Muslim subordination and pinpoint specific reforms that could reverse the trend.

Transnational Agrarian Movements, Food Sovereignty, and Legal Mobilization

2020 ◽  
Author(s):  
Priscilla Claeys ◽  
Karine Peschard
Keyword(s):  
Human Rights ◽  
Social Justice ◽  
Food Sovereignty ◽  
Civil Disobedience ◽  
Legal Mobilization ◽  
Main Argument ◽  
Social Actors ◽  
Food Governance ◽  
Legal Strategies ◽  
Global Food

In this chapter, we analyse a diversity of legal mobilizations by contemporary agrarian movements, from the creation of new human rights to direct participation in global food governance, the institutionalization of food sovereignty, civil disobedience, and peoples’ tribunals. Our main argument is that there is a need to expand the scope and methods of research in law and anthropology to account for the diversity of actors and alliances, their innovative legal strategies, the different scales, and the multiplicity of institutional and extra-institutional arenas in which transnational agrarian movements engage with the law in their struggles against capitalism and neoliberalism. To document and analyse social movement innovations, lawyers and anthropologists must engage with transnational, multidisciplinary, and transdisciplinary approaches, and critically reflect on their methods, roles, and positionalities as social actors involved in social justice struggles.

scholarly journals THE SCOPE OF RELIGIOUS GROUP AUTONOMY: VARIETIES OF JUDICIAL EXAMINATION OF CHURCH EMPLOYMENT DECISIONS

Legal Theory ◽  
2019 ◽  
Vol 25 (4) ◽  
pp. 244-271
Author(s):  
Paul Billingham
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Religious Group ◽  
Religious Organizations ◽  
Religious Groups ◽  
Employment Decisions ◽  
European Court ◽  
Great Harm

ABSTRACTThe idea of “church autonomy” has risen to prominence in law and religion discourse in recent years. Defenders argue that church autonomy is essential to protecting religious freedom, while critics argue that it permits great harm. This heated dispute often obscures the fact that religious group autonomy is not all-or-nothing. Religious organizations can enjoy some autonomy without being free from all legal oversight. This article thus seeks to make progress in the debate by providing a taxonomy of kinds of judicial examination of religious organizations’ decisions—focusing on employment decisions—and normatively assessing each kind. I argue that religious groups should enjoy protection from certain kinds of examination, but other kinds are justifiable, and even required. My argument supports an approach similar to that seen in some recent European Court of Human Rights decisions, rather than the less discriminating approach of U.S. courts.

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