Rights, Religion and the Public Sphere: The European Court of Human Rights in Search of a Theory?

This paper seeks to analyze the European Court of Human Rights’ (ECtHR) case-law on religious freedom in the light of political and social theory debates on the place of religion in the public sphere. The Court’s jurisprudence on these matters denotes an increasing attempt at going beyond casuistry and building a consistent vision of religious freedom and its implications for state-religions relations, valid across Europe. Alongside the core notion of pluralism, three major principles have progressively emerged in this case-law: the right to autonomy of religious communities vis-à-vis the state; an obligation of neutrality for the state; and the necessity of the secularity of the legal order’s foundations. These principles, it is submitted, are in line with the democratic ideal that underlies the European Convention. Yet, the Court’s approach to religion-related disputes is not without tensions and problems. These are especially manifest when the Court handles disputes that go beyond the issue of the respective autonomy of religion and public authority, and concern the multifaceted question of expression of religion in the public sphere, in particular, the status of religion in public discourse, the wearing of religious garments at public school or university, and claims for accommodation of religious practice in the workplace. In some cases of this sort, the Court has adopted stances that are questionable from the viewpoint of the principles it has itself identified as central for religious freedom. In other instances, these principles themselves appear to be in need of further elaboration. But the significance of the tensions surrounding the treatment of religious disputes by the Court cannot be fully grasped without having regard to present-day discussions in social and political theory on the relations between religion and the public sphere. From this perspective, it appears that the ECtHR’s case-law is to a large extent built on assumptions stemming from the classic secularisation thesis, and that this, among other factors, makes it theoretically ill-equipped to deal with situations that do not fit this paradigm