Burqas and Bans: The Wearing of Religious Symbols Under the European Convention of Human Rights

Armin Steinbach 

Oxford University - Nuffield College; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

July 1, 2015

Cambridge Journal of International and Comparative Law, Volume 4, Issue 1, 2015

Abstract:    
The wearing of religious symbols has been subject to more or less restrictive national regimes. In Europe, the Convention on Human Rights sets transnational conditions in this regard and has recently been interpreted to give great leeway to national states. Open-face communication is now being accepted an indispensable requirement of “living together” that qualifies as “rights and freedoms of others” within the meaning of Article 9 para. 2 ECHR. In S.A.S. v France, the ECHR created a new ground to justify interference with the freedom of religious expression. This article questions the Court's expansion of existing grounds of justification as no sufficient legal basis exists and sociocultural considerations do not protect individual rights as required under the term “rights and freedoms of others”. To that end, the basis for grounds of justification is examined in light of the evolution of the Court's jurisprudence on the wearing of religious symbols. While public security and order, health and improper proselytism are well-established reasons for interference, the Court's acceptance of secular orders highlights the ambiguity of the terms “pluralism” and “tolerance” as referred to in case-law. The article finds that this jurisprudence has given significant leeway to Member States in regulating religious expression and paved the way for the Court's new approach under which behavioural social norms may be used to ban face-covering religious cloth. In addition, the doctrine of the margin of appreciation does not justify the expansion of the legitimate aims pursued under Article 9 para. 2 ECHR.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2636170