4. The ECtHR and the margin of appreciation doctrine
4.2. The ECtHR and the Christianity-Islam dichotomy
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whole cannot be expected to relate to every religion in the same manner.
Although the outcome of the application of the ECtHR’s margin of appreciation doctrine will then be inevitably linked to the historical differences between minority and majority religions in Europe, the Strasbourg rulings seem nevertheless to be unduly based on the dichotomy Christianity/democracy versus Islam/fundamentalism. In its decisions concerning the Islamic headscarf, the ECtHR consistently interpreted the veil as a religious symbol irreconcilable with Western values. In the ECtHR’s line of reasoning, juxtaposed against intolerant Islam is tolerant secularity, which must be protected against fundamentalism and what the judges describe as «political Islam».303 Thus, the Strasbourg Court does not merely provide States with a wide margin of appreciation in deciding how to interpret the headscarf, but it also makes a values judgment. Whereas Christian symbols are interpreted mainly as historical and cultural signifiers of national identity, Islamic symbols are primarily considered as manifestations of political values and practices which are at odds with the Western democratic principles. Furthermore, in Dahlab, even though the applicant did not try to propagandize her religious beliefs, the Strasbourg judges found the prohibition of the headscarf to be justified on the m ere grounds that such symbol might arouse pupils’ curiosity and, therefore, wound their sensitivity. According to the ECtHR, a dialectical confrontation between different religious convictions is thus to be avoided for it is likely to disturb the peaceful coexistence in the educational environment. However, this reasoning was contradicted in Lautsi, as the Grand Chamber held:
«a Christian symbol on a classroom wall presents another and a different world view. […] It acts as a stimulus to dialogue. A truly pluralist education involves exposure to a variety of different ideas including those which are different from one’s own. […] Education would be diminished if children were not exposed to different perspectives on life and, in being so exposed, provided with the opportunity to learn the importance of respect for diversity».304
The judges justified this contradiction by arguing that the crucifix, in contrast to the
303 Judgment Şahin, above, para. 35.
304 Judgment Lautsi GC, above, concurring opinion of Judge A. Power.
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Islamic headscarf, is a “passive” symbol. Nevertheless, as previously noted, the Court did not clarify what features make a religious symbol “active” or “passive”, even though this distinction seems to be of crucial importance.
In Dahlab and Şahin, the ECtHR also argued that Islamic religious symbols might jeopardize the fundamental principle of equality between the sexes. In particular, it claimed that the hijab:
«appears to be imposed on women by a precept which is laid down in the Koran and which […] is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for other and, above all, equality and non-discrimination».305
While recognizing that in certain situations the wearing of the veil is a manifestation of oppression, there is no doubt that this is not always the case. When «the particular context of the […] case is that of an educated woman seeking to participate in the labour market of a […] Member State», then all the more reason to refrain from giving a priori an oppressive meaning to the headscarf, for «it would be patronising to assume that [the]
wearing of the hijab merely serves to perpetuate existing inequalities and role perceptions».306 Admittedly, in recent judgments, the Strasbourg judges have given little weight to the gender-equality argument.307
It was previously argued that the Bulut-Karaduman, Dahlab and Şahin decisions implicitly suggest that religion cannot participate in the public arena, which should only be presided over by a traditional secularism that allows for the presence of non-religious worldviews but not their religious counterparts. In light of the Grand Chamber’s ruling in Lautsi, it nevertheless appears that the Strasbourg judges have adopted this approach only
305 Judgment Dahlab, above, p.6
306 Court of Justice of the European Union, Opinion of Advocate General E. Sharpston delivered on 13 July 2016, Case C-188/15, Bougnaoui, fn. 76.
307 In 2014, the ECtHR claimed for instance that «a State Party cannot invoke gender equality in order to ban a practice that is defended by women […] in the context of the exercise of the right enshrined in [certain]
provisions, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms» and, in relation to the wearing of the burqa, that
«the Court is aware that the clothing in question is perceived as strange by many of tho se who observe it.
It would point out, however, that it is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy». Judgment S.a.S., above, paras. 119-120.
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in relation to Islamic ideas and symbols. As Mancini and Rosenfeld note, the Court
«openly rel[ies] on the dichotomy between Islam and Christianity and assume[s] that, while the latter constitutes a structural element of democracy, the former is at odds with it».308 The Christian crucifix has been protected even at the expense of infringing upon fundamental individual freedoms, for it has been perceived as compatible with the core values of the Convention. On the other hand, Islam, even when it constitutes the majority religion as in case of Turkey, has been heavily restricted on the grounds that it is inherently irreconcilable with the democratic principles of the State.309 In all decisions concerning the headscarf, the furthering of pluralism has been the key justification of the ECtHR’s restrictive line towards Islam. «Pluralism» as «indissociable from a democratic society» had been indeed central to the Strasbourg Court’s first case ever concerning the alleged violation of Art. 9 ECHR by a signatory State, in Kokkinakis v. Greece,310 and it has been referred to ever since as the «main model of the Court’s case law related to freedom of religion and the core principle which organizes Church-State relations».311 However, when applied to Islam, the pluralism argument was not used to foster but to restrict religious manifestations. It thus seems that «toward Christianity an accommodative stance of “liberal pluralism” prevails, whereas toward Islam a restrictive stance of “liberal antipluralism” is dominant».312 While the recognition in Lautsi that manifestations of (Christian) religion in the public sphere do not necessarily clash with State neutrality is certainly to be welcomed, the matching of Islamic practices with concepts such as intolerance, discrimination and inequality endorses the preservation of rigid wall of separation between Islam and politics as an imperative feature of European secular democracies.
308 MANCINI, ROSENFELD, above.
309 See S. MANCINI, The Crucifix Rage: Supranational Constitutionalism Bumps Against the Counter-Majoritarian Difficulty, in European Constitutional Law Review, 6, 2010, p. 23; D. MCGOLDRICK, above, p. 498.
310 Judgment Kokkinakis, above, para. 31.
311 F. TULKENS, The European Convention on Human Rights and Church-State Relations. Pluralism vs.
Pluralism, in Cardozo Law Review, 30, 2009, p. 2580.
312 C. JOPPKE, above, p. 98. See also P. DANCHIN, Islam in the Secular Nomos of the European Court of Human Rights, in Michigan Journal of International Law, 32, 2011, p. 706.
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SECTION 2. Religious symbols in the private workplace: the jurisprudence of the