Hijabs, burqas, headscarves. They always seem to be at the center of some debate. Is wearing a headscarf oppressive or an assertion of femininity? Should women wear them in private or in public? Are they signs of a failure to assimilate or a new brand of multiculturalism we must embrace?
Debates like this are taking place in democracies all over the world, as countries struggle to adapt to their increasingly diverse populations. In Europe especially, states have been charged with the task of upholding religious freedom as well as public safety, walking a fine and ever more ambiguous line.
This article is intended to explain the current legal protections in place for religious freedom in the European Union as well as highlight some of the recent controversies demonstrating that religious freedom may be under threat.
Religious Freedom in the European Union
The European Union is a political and economic union comprised of 28 member countries. The European Parliament along with the Council of the European Union and the European Commission make up the legislative branch of the EU.
There are a few different ways in which the EU seeks to protect and preserve freedom of religion in member countries.
Article 9 in the European Convention on Human Rights proclaims that "Everyone has the right to freedom of thought, conscience and religion.” (1)
Article 10 of the EU Charter of Fundamental Rights states that "Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.” (2)
Interestingly, there is no single constitution that EU member states must abide by. However, all member states have adopted the Treaty of Lisbon, which includes the EU Charter of Fundamental Rights and is a binding treaty.
Weaknesses of the EU Approach
Conceiving of a legal system to impose some measure of uniformity on 28 different countries is difficult. These countries have different languages, cultures, histories, and systems of governance. Furthermore, the European Union is still a new organization, having been founded only in 1993. Given this, it is not surprising that the EU approach to safeguarding religious freedom has weaknesses.
One such weakness is the hesitation for EU courts to interfere in domestic debates regarding religious freedom. If a citizen believes their rights have been violated, they must first file suit and exhaust their appeals in their own country. Only then can they appeal to the European Court of Human Rights, which decides whether they will hear the case or not. If the Court decides not to hear the case, there is no other legal option for the citizen to pursue. But even if the Court does decide to hear the case, it doesn’t exactly have the best record of ruling in favor of protecting religious freedom.
Reverend Eric Roux, a member of the European Interreligious Forum for Religious Freedom, explains that the prevailing attitude in the governance of the EU is that it is the responsibility of individual member countries to protect religious freedom in their own domain. (3)
This is demonstrated by the principle of “Margin of Appreciation,” which has been cited by the European Court of Human Rights on several occasions and means that the courts assign a large margin of appreciation for individual governments to decide how to apply religious context in their own domains. (4) This is problematic because it prevents uniformity both in identifying and responding to violations of religious freedom.
Furthermore, even though all 28 EU member states recognize the right to freedom of religion in their respective constitutions, the degree of clarity and specificity varies widely from country to country. For example, compare the constitutions of France and Poland:
|No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law. (French Declaration of the Rights of Man and of the Citizen, Article 10)||Freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing of rites or teaching. Freedom of religion shall also include possession of sanctuaries and other places of worship for the satisfaction of the needs of believers as well as the right of individuals, wherever they may be, to benefit from religious services. (Constitution of Poland, Article 53(2))|
As France’s constitution is much less explicit than that of Poland, its citizens may have more difficulty proving that their religious freedom is being infringed upon and have less of a legal case against the government than Polish citizens.
Another issue that prevents uniformity in the protection of religious freedom among EU countries is the fact that Article 9 of the ECHR also states that freedom of religion is not absolute; it is subject to limitation when it may interfere with "the interests of public safety, the protection of public order, health or morals, or the protection of the rights and freedoms of others.” (7) This limitation is quite broad and can be interpreted in a multitude of ways, which has proven to be problematic in a number of EU countries.
In 2012, a Higher Regional Court in Cologne, Germany ruled circumcision of a male child for religious reasons by request of the parents constitutes “bodily harm” and is an infringement on the rights of the child. (8) This threatened both Jewish and Muslim communities in Germany, who have been practicing it for thousands of years, believing that circumcision of a male child is a sacred covenant God made to Abraham. Genesis 17:14 underlies the importance of keeping this covenant, as it states, “Any uncircumcised male, who has not been circumcised in the flesh, will be cut off from his people; he has broken my covenant.” (9)
The German Parliament ultimately passed a law allowing male circumcision to be performed by both doctors and qualified members of the religious community, but the 2012 ruling blew open a debate on religious freedom and a perceived lack of understanding of the significance of religious practices on behalf of various governments in Europe. (10)
In 2006, a British Airways employee was suspended after refusing to take off her crucifix at work. In Britain, the court initially ruled in the employer’s favor, declaring that the crucifix was not a “requirement” of the Christian. (11) This ruling, however, was later overturned by the European Court of Human Rights, who argued that the British court failed to adequately protect the employee’s right to manifest her religion under Article 9 of the European Convention on Human Rights. (12) Although this may seem like a win for religious freedom, the same court ruled against another woman for seemingly the same issue. This time, the court justified her employer's request for her to remove her crucifix because it constituted a “health and safety” risk. The woman was a geriatric nurse at a hospital and it was determined that the crucifix could be a vessel for germs and an object for patients to grab.
In 2011, the Hungarian Parliament passed a law that changed the requirements for religious groups to be officially recognized by the state. Only 14 out of 358 religious groups recognized under a previous 1990 law maintain their status as officially recognized religions because the new law requires a group to prove that it has existed in Hungary for over 20 years and present 1,000 citizen signatures to the government. This has been an unfortunately effective tool of marginalizing smaller religious groups and giving favor to others. (13) This also reflects an alarming trend of intolerance in Hungary. In 2012, Maton Gyongyosi, a member of Hungary’s far-right and openly anti-Semitic Jobbik party, even suggested that the government should “tally up” the number of Jews in Hungary because they were a national security risk. (14)
Conclusion: Reason for Concern
It is important to note that some of the court battles mentioned above were ultimately won by the defendants. This implies that the legal institutions of the EU may still be functioning as a mechanism to uphold freedom of religion. It is alarming, however, that parents who wanted to circumcise their infant sons and women who wanted to were crucifixes to work needed to even go to court in the first place to defend these rights. The cases in Germany and the United Kingdom suggest an emerging trend that European governments are lending too much weight to the part of Article 9 that states that the right to religious freedom is trumped by the interests of public safety, health, and the protections of the rights and freedoms of others. Recent events in Hungary, as well as the rise of other far-right nationalist political parties in Great Britain, France, Austria, and the Netherlands also illustrate the threat of rising intolerance to freedom of belief in Europe.
In fact, nowhere are these trends more evident today than in France, a historically secular country that has been embroiled in controversy regarding expression of religion in recent decades. Read more the intricacies of advocating for religious freedom in France.
This article is part of the Religious Freedom Collection.
An interview conducted with Rev. Eric Roux on June 19th, 2017.
Email exchanged with Rev. Eric Roux on August 26th, 2017.