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Religious Symbols in Educational Institutions: Jurisprudence of the European Court of Human Rights

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AbstractThe issue of religious symbols in educational institutions has been a source of vigorous legal and political controversy. Two types of cases have been litigated before the European Court of Human Rights: those concerning the wearing of the Islamic headscarf in schools and universities, and those concerning the presence of the crucifix in school classrooms. In this article, I shall analyse these cases, assessing how the Court balances different rights and State interests, focusing in particular on the Court’s interpretation of the principles of neutrality/secularism and of gender equality. I shall criticise the Court’s deference to the State, arguing that it should more strictly supervise how States respect human rights. Respect for human rights requires that the States respect individual’s religious freedoms, be autonomous from the religion and safeguard the principle of plurality. While the Court has proclaimed these principles, it has failed to apply them in these cases.

1. FN11 I shall discuss those decided on merits: Leyla Sahin v. Turkey, 10 November 2005, No. 44774/98; Dogru v. France, 4 December 2008, No. 27058/05; Kervanci v. France, 4 December 2008, No. 31645/04, with the exception of discussing the case concerning the rights of teachers: Dahlab v. Switzerland, 15 February 2001, No. 42393/98.
2. FN22 Dahlab v. Switzerland, ibid.
3. FN33 Penalties were later lifted under amnesty law, but Ms Sahin had already left to study at Vienna University.
4. FN44 Dogru v. France; Kervanci v. France, supra note 1.
5. FN55 Dahlab argued violation of her freedom of religion and sex discrimination; Leyla Sahin argued violation of her freedom of religion (Article 9 ECHR), freedom of expression (Article 10), right to education (Protocol 1, Article 2), right to private life (Article 8) and right to non-discrimination on the basis of religion (Article 14). Dogru and Kervanci argued violation of the freedom of religion and the right to education.
6. FN66 Dahlab, supra note 1, p. 461; Leyla Sahin, supra note 1, para. 104.
7. FN77 Dahlab, ibid., p. 462; Leyla Sahin, ibid., para. 106; Dogru, supra note 1, para. 62; Kervanci, supra note 1, para. 62.
8. FN88 Leyla Sahin, supra note 1, para. 109; Dogru, ibid., para. 63; Kervanci, ibid., para. 63.
9. FN99 Leyla Sahin, ibid., para. 78; Dogru, ibid., para. 47.
10. FN1010 In the Dahlab case the prohibition was based on Section 6 of the Public Education Act which states: “The public education system shall ensure that the political and religious beliefs of pupils and parents are respected” (para. 457). In the Leyla Sahin case, a circular was based on the case-law of the Supreme Court which implied that students are prohibited to wear the veil. In the Dogru case and the Kervanci cases, the prohibitions were similarly based on the case-law of the Conseil d’Etat as well as statutory and regulatory provisions and internal rules concerning the duty to attend classes and requirements of safety and dressing appropriately for sports practice (paras. 17–33 of the judgements).
11. FN1111 For a critique of the Court’s approach, see Basak Cali, ‘The Limits of International Justice before the European Court of Human Rights: Between Legal Cosmopolitanism and Society of States’, in M. Dembour and T. Kelly (eds.), Paths of International Justice: Social and Legal Perspectives (Cambridge: Cambridge University Press, 2007) p. 111; Fatima Benli, ‘Legal Evaluation of the Ban Imposed on University Students who Wear the Headscarf Subsequent to the ECtHR’s Ruling in Leyla Şahin v Turkey’ <>, 1 March 2012.
12. FN1212 Dahlab, supra note 1, p. 463; Leyla Sahin, supra note 1, para. 111.
13. FN1313 Dahlab, idem.
14. FN1414 Leyla Sahin, supra note 1, para. 111.
15. FN1515 Dogru, supra note 1, para. 71; Kervanci, supra note 1, para. 71.
16. FN1616 Leyla Sahin, supra note 1, para 111.This is an out of context conclusion, since many Muslim women see it as their religious duty to wear a veil, which as the Court accepted was the case with Leyla Sahin.
17. FN1717 The relationship between human rights and religion is complex, stirring many debates, among them that of universalism v. cultural relativism. Religiously based States which condition their acceptance of international human rights obligations on compatibility with Islamic law pose particular problems for international human rights law. However, secularism might also be problematic, particularly in respect of guaranteeing the freedom to manifest religion in public space. See Dominic McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Oxford: Hart Publishing, 2006), pp. 22–28. See also Michael Freeman, ‘The Problem of Secularism in Human Rights Theory’, 26:2 Human Rights Quarterly (2004), pp. 375–400.
18. FN1818 See the Dissenting Opinion of Judge Tulkens to the Leyla Sahin judgment, supra note 1.
19. FN1919 The Court has not made a distinction between the concept of neutrality and the concept of secularism, though many argue that secularism, at least when it takes the form of an anti-religious as supposed to a-religious secularism, is not neutral towards religion. For a discussion of different concepts of secularism, see Michel Rosenfeld, ‘Can Constitutionalism, Secularism and Religion be Reconciled in an Era of Globalization and Religious Revival’, 30 Cardozo Law Review (2008–09), pp. 2333–2368. See also Freeman, supra note 17.
20. FN2020 BVerfG, 2 BvR, 24 September 2003, No. 1436/02, <>, 1 March 2012.
21. FN2121 See Interim Report of the Special Rapporteur of the Commission on Human Rights on the elimination of all forms of intolerance and discrimination based on religion or belief, Add. 1 Situation in Turkey (UN. Doc. A/55/280/Add. 1).
22. FN2222 Hasan and Eylem Zengin v. Turkey, 9 October 2007, No. 1448/04.
23. FN2323 Rosenfeld, supra note 19.
24. FN2424 Veit Bader, ‘Constitutionalizing Secularism, Alternative Secularisms or Liberal-Democratic Constitutionalism? A Critical Reading of Some Turkish, ECtHR and Indian Supreme Court Cases on ‘Secularism’, 6:3 Utrecht Law Review (2010), pp. 8–35.
25. FN2525 Jeremy Gunn, ‘Fearful Symbols: The Islamic Headscarf and the European Court of Human Rights’ (2005) Conference paper, <>, 1 March 2012.
26. FN2626 Natasha Walter, ‘When the Veil Means Freedom: Respect Women’s Choices that Are not Our Own, Even if they Include Wearing the Hijab’, The Guardian, 20 January 2004. See also, Jane Freedman, ‘Secularism as a Barrier to Integration? The French Dillema’ 43:3 International Migration (2004), p. 5. For reactions to the Leyla Sahin judgment, see the Turkish on-line journal:
27. FN2727 Dahlab, supra note 1, p. 464.
28. FN2828 The measure could be challenged (by teachers, university staff or civil servants as employees) as indirect discrimination under EU Directive on Equal Treatment in Employment and Occupation 2000/78/EC, 27 November 2000. Blair and Aps have argued that, in the UK context, a prohibition on a teacher wearing jilbab would probably always raise a prima facie case of indirect discrimination. See Ann Blair and Will Aps, ‘What Not to Wear and Other Stories: Addressing Religious Diversity in Schools’, 17:1/2 Education and the Law (2005), pp. 1–12.
29. FN2929 See Dissenting Opinion of Judge Tulkens to the Leyla Shain judgment, supra note 1. See also Jill Marshall, ‘Freedom of Religious Expression and Gender Equality: Sahin v Turkey’, 9 Modern Law Review (2006), pp. 452–461.
30. FN3030 Siobhan Mullallay, ‘Civic Integration, Migrant Women and the Veil: at the Limits of Rights’, 74:1 Modern Law Review (2011), pp. 27–56; Maleiha Malik, ‘Feminism and its “Other”: Female Autonomy in an Age of “Difference”, 30 Cardozo Law Review (2008–09), pp. 2613–2628.
31. FN3131 The concept of intersectionality of discrimination refers to the interrelatedness of the different systems of oppression. It was first developed by feminists of colour; see, e.g., Kimberle Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Anti-Racist Politics’, University of Chicago Legal Forum (1989), pp. 139–167.
32. FN3232 Murat Borovali, ‘Islamic Headscarves and Slippery Slopes’, 30 Cardozo Law Review (2008–09) 2593–2611, at 2601.
33. FN3333 See, e.g., Dawn Lyon and Debora Spini, ‘Unveiling the Headscarf Debate’, 12 Feminist Legal Studies (2004), pp. 333–345; Lama Abu-Odeh, ‘Post-colonial Feminism and the Veil’, 43 Feminist Review (1993), pp. 26–37; and McGoldrick, supra note 17.
34. FN3434 The fundamental question is rather whether women should change their clothing in order not to be ‘attractive’, or whether men should change their (sexually harassing) behavior.
35. FN3535 For discussions by Muslim women on the meaning they assign to veils, see <>, accessed 1 March 2012.
36. FN3636 I use ‘veil’ as a generic term, to include all of the Islamic dresses for women.
37. FN3737 Art 5(b) of the Convention on the Elimination of All Forms of Discrimination against Women Convention.
38. FN3838 On the other hand, it has been reported that some Muslim women and families found the French law of 2004 prohibiting the headscarf in schools to be a liberating experience: see Sage, ‘The Headscarf Ban is Judged Success as Hostility Fades’, The Times, 5 September 2005, cited in McGoldrick, supra note 17, 270–275.
39. FN3939 While other judges engaged in what could be described as ‘the ethics of justice’ in defining relevant rights and principles in an abstract manner, without reference to the particular situation of the applicant, and then balancing them in a hierarchical manner (gender equality versus freedom of religion), Judge Tulkens reasoned in an ‘ethics of care’ mode. She was sensitive to the applicant’s situation (as constituted by her different identity characteristics and her relationships in society), and concerned to find a solution which would ‘harmonise the principles of secularism, equality and liberty, not . . . weigh one against the other’: at para. 4 of her Dissenting Opinion. The idea of a ‘different voice’ was developed by Carol Gilligan in her book In a Different Voice: Psychological Theory and Women’s Development (1982).
40. FN4040 At para. 12 of her Dissenting Opinion, supra note 1.
41. FN4141 Rosenfeld, supra note 19.
42. FN4242 See Madhavi Sunder, ‘Piercing the Veil’, 112 Yale Law Journal (2003), pp. 1399–1472.
43. FN4343 Lautsi v. Italy, 3 November 2009, No. 30814/06.
44. FN4444 Ibid., para. 13.
45. FN4545 Ibid., para. 35.
46. FN4646 Ibid., para. 48.
47. FN4747 Ibid., paras. 54–55.
48. FN4848 Ibid., para. 55.
49. FN4949 Ibid., para. 46.
50. FN5050 Dominic McGoldrick, ‘Religion in the European Public Sphere and in the European Public Life: Crucifixes in the Classroom?’, 11:3 Human Rights Law Review (2011), pp. 451–502.
51. FN5151 The mentioned Governments criticised the Chamber’s judgment, indicating that its reasoning had been based on a misunderstanding of the concept of neutrality, which was confused with secularism. All of the NGOs, except ECLJ, Zentralkomittee der deutchen katholiken, Semaines socials de France and Associaziooni lavatory italiani, defended the Chamber’s position, while the members of the European Parliament held that the issue should be left to the State’s margin of appreciation. In the proceedings before the Chamber there was only one intervener—Greek Helsinki Monitor, which argued that a display of a crucifix in a public school breaches the principles of neutrality and impartiality of State towards religion.
52. FN5252 In its judgment of 18 March 2011.
53. FN5353 Dissenting opinion of Judge Maliverni joined by Judge Kalaydjieva to the Lautsi judgement, ibid., para. 6.
54. FN5454 Ibid., para. 8.
55. FN5555 BVerfGE 93, I I BvR, 16 May 1995, No. 1097/91, para. C (II) (1).
56. FN5656 Moreover, many arrangements are in principle compatible with the duty of neutrality and impartiality. See Rosenfeld, supra note 19.
57. FN5757 Matthias Mahlmann, ‘Freedom of Faith – Foundations of Freedom of Religion’, 30:6 Cardozo Law Review (2009), pp. 2473–2493.
58. FN5858 See Bader, supra note 24.

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Affiliations: 1: Ivo Pilar Institute of Social Sciences University of Zagreb Zagreb Croatia, URL:


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