Minorities and Religious Attire in Europe: The Data of The Atlas of Religious or Belief Minority Rights
This article is part of our “Clothed in Religion: Law and Religious Attire/Garb” series.
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The issue of religious attire is like a strong wind that suddenly arose some 20 years ago and blew across Europe for a long time. Now that the force of the wind has abated somewhat, it is possible to take an initial stock of the damage this storm has caused to freedom of religion. I shall do this through the lens provided by the data from the Atlas of Religious or Belief Minority Rights, a research project that takes into consideration the rights of 13 religious or belief minorities in 15 European Union countries. The first part of this paper will briefly explain how the Atlas works; the following parts will illustrate and discuss the Atlas findings on religious attire. Some reflections on the significance of this issue to the respect and promotion of minority rights will conclude the article.
The Atlas of Religious or Belief Minority Rights
The Atlas is a tool to map and measure the rights of religious or belief minorities (RBMs) in the EU countries. Mapping illuminates what rights RBMs have in each country, and measuring is essential for developing evidence-based policies that effectively promote the rights of these minorities. To achieve this goal, the Atlas collected a number of data through five questionnaires sent to legal experts in each country which covered the following policy areas: legal status of religious minorities, marriage and family, education, spiritual care in prisons, health care institutions and the armed forces, and religious symbols.
As the data were being collected, the Atlas team identified the international standards on the promotion of RBM rights, which are the benchmark for evaluating the legal experts’ responses. The international standards are derived from conventions, documents and decisions of bodies such as the United Nations, the UN Committee of Human Rights, the Council of Europe, the European Union, and the European Court of Human Rights. They identify the rights that must be accorded to members of RBMs. For example, the Council of Europe has expressed the opinion that “Article 9 of the Convention includes the right of individuals to choose freely to wear or not to wear religious clothing in private or in public. Legal restrictions to this freedom may be justified where necessary in a democratic society.” A blank prohibition on wearing religious attire in public space, regardless of the actual dangers this clothing can possibly pose, does not meet this standard. Once the benchmark has been identified, the rights recognized by the legal systems of different states can be measured and a different score can be assigned to those that meet the international standard, those that do not, and even those who exceed these standards and promote the rights of RBMs to a greater extent than required by the norms of international law.
At the end of this work, it has been possible to construct three indices to measure RBM rights.
The first index (P-index) measures the degree to which the rights of RBMs are promoted. This is measured both in relation to states, thus allowing us to know whether one state promotes RBM rights more than another, and in relation to RBMs, thus enabling us to discover whether the rights of one RBM are promoted more than those of others. Countries in which there are no restrictions on the enjoyment of rights are given a score of 0; if these rights are restricted, the score ranges from 0 to -1 depending on the severity of the restriction; if they are promoted (i.e., not only there are no restrictions but the state puts in place positive actions to develop RBM rights) the score ranges from 0 to 1. The same scoring system is applied to measure the rights to which each RBM is entitled, with one variant. The score 1 is assigned to each minority group that enjoys a right and the score -1 to those that do not enjoy it or enjoy it in a limited way. By applying these criteria to the right to wear religious attire, it was found that RBM rights are less promoted in Austria, Belgium, Denmark, and France than in the other countries considered by the Atlas and that, in these four countries, the rights of the Muslim minority are less promoted than those of any other RBM.
The second index (E-index) measures the unequal treatment of different RBMs. Not all of them enjoy the same rights: some have more, some have fewer, and some have almost none. In countries where there is perfect equality of legal treatment among different RBMs, the score is 0. The more the inequalities increase, the more the score moves away from 0.
Finally, the G-index measures the gap that exists between the legal position of the majority religion and that of different RBMs. Again, a score of 0 indicates the complete absence of a gap between the rights of the majority and those of the minority (this is almost never the case).
At this point it is possible to examine the Atlas data on religious attire. But before doing so, it is necessary to keep in mind that these data concern the legal regulation of RBMs, and it is well known that there is often a large disconnect between legal norms and reality: to get a more complete and accurate picture, we need to wait for the legal data to be supplemented by sociological data (the Atlas will provide this second set of data by the beginning of next year) that measure the actual application of laws and the perception of discrimination by representatives of different RBMs.
The Atlas data on religious attire: promotion of RBM rights by States.
The Atlas examined the right to wear religious attire in four different environments: the workplace, distinguishing between public and private enterprises; public space (squares, streets, etc.); public institutions (hospitals, government buildings, etc.); and schools, distinguishing between teachers and students. It also considered three categories of people who perform particularly sensitive activities: judges, members of the police force, and members of Parliament. This contribution will focus on the promotion index only; the data concerning the other two indices are available but, for reasons of space, will not be examined here.
Eleven of the fifteen countries that have been surveyed have enacted no specific laws restricting the right to wear religious attire; however, four countries (Austria, Belgium, Denmark, and France) have introduced prohibitions or limitations of various kinds, which are shown in the following table.
The data in this table require some explanation.
Public space (streets, squares, etc.)
In Austria, Belgium, Denmark, and France, four laws enacted between 2010 and 2018 and drafted in very similar terms prohibit circulating in public spaces with the face covered by clothing that prevents recognition. Though these laws are drafted in very broad terms, it is generally recognized that they aim to prevent the use of the burqa or niqab in public spaces. Similar laws exist in other states (see, for example, in Italy, Article 5 of Law No. 152/1975) but unlike those in the three countries mentioned above, they aim to prevent the perpetration of terrorist acts and not the manifestation of religious beliefs. Although the international standards do not provide clear-cut indications, the Atlas considered that a blanket prohibition on wearing religious garments in public spaces is not proportionate to the purpose of ensuring safety or the rights and freedoms of others. For this reason, the Atlas gave a score of “0” to all countries except Austria, Belgium, Denmark, and France which scored “-0.5” (the score is not “-1” because the prohibition concerns only a specific category of religious garments).
Workplace (public sector)
In France, Article 1 of Law No. 2016-483 of April 20, 2016 stipulates that public employees must refrain from manifesting their religious views in the performance of their duties. The rule implies that it is forbidden to wear garments that manifest the employee’s religious beliefs. The other countries have not enacted such provisions even though their legal systems may include rules that impose a general obligation of impartiality and neutrality on civil servants when performing their duties (as in Belgium where, however, there is no explicit reference to religion or its symbols) or that indirectly make it impossible to wear religious garments (such as the obligation to wear a uniform). The Atlas considered that the RBM rights are better promoted when there are no legislative provisions denying or limiting a priori the right to wear religious garments, leaving the field open to courts’ evaluation. France was therefore given a score of “-1” and all other countries a score of “0.”
Workplace (private sector)
No country has enacted regulations specifically preventing workers from wearing religious attire. In most countries, religious garments can be worn at work unless there are contractual clauses stipulating otherwise; courts have also upheld a prohibition of religious garments when the employer has proven that they harm the company’s interests. In France, a 2016 law added an article (Article L 1321-2-1) to the Labor Code that allows the employer to include provisions in the company’s internal regulations that, in the name of neutrality, may restrict the manifestation of workers’ religious beliefs and thus the right to wear religious garments. Applying the same criteria used for the public sector, the Atlas gave a score of “0” to all countries except France, which scored “-0.5” (the score was not “-1” because the law provides a possibility not a right).
Public schools (students)
The only country that has banned students from wearing religious garments in school when they are “ostentatoires” (ostentatious) is France. All others have enacted no prohibitions or restrictions at the national level. In Belgium, Flanders has different regulations than the rest of the country: the network of Flemish public schools introduced a general ban on the wearing of all religious garments in primary and secondary schools for all pupils, including both face-covering and other religious clothing or symbols. Until 2020, it was forbidden in Austria for children under the age of 10 to wear “ideologically or religiously influenced” clothing that covered the head, but the Constitutional Court declared this ban unlawful. The decisions of international bodies on this issue are contradictory: the European Court of Human Rights has held that the prohibition of wearing such garments does not conflict with the right to religious freedom, while the United Nations Human Rights Committee has on several occasions taken the opposite view. In this situation, the Atlas followed the opinion of the UN Special Rapporteur on Freedom of Religion or Belief, according to whom there is a “general presumption in favour of the possibility to wear religious symbols” even if it must be connected “with a number of caveats” that emerge from the specific situations of each country. Therefore, even if the prohibition does not violate international standards, recognizing the students’ right to wear religious symbols can be considered a form of promoting RBM rights that deserves a positive evaluation. Following this criterion, the Atlas scored all countries “1” (including Belgium as there is no nationwide ban) and France “0.5” (because the law does not prohibit the religious garments which are not “ostentatoires”).
Public schools (teachers)
In France and the Flemish part of Belgium, teachers may not wear religious garments in public schools (with the exception, in Flanders, of religion teachers). In all other countries there are no prohibitions or restrictions. The right to wear religious garments in school is more controversial in the case of teachers than in that of students. Teachers may be in a position to influence students through their behavior, and a teacher’s decision to wear garments manifesting their religious convictions may conflict both with the right of parents to educate their children in conformity with their convictions and with the right of the state to ensure a neutral system of education. For this reason, the international standards do not provide precise guidance and the Atlas decided not to score this question.
Public institutions (healthcare institutions, government buildings, etc.)
In Austria the law that prohibits circulating in public places with a garment covering the face extends this prohibition to public buildings and in Belgium, Denmark, and France the anti-burqa laws (as they are colloquially referred to) are interpreted in the same sense. In the other countries, the internal regulations of some public institutions or the ordinances issued by some local authorities may include a prohibition on entering public buildings with a covered face, but there are no laws that apply this prohibition nationwide. Despite these differences, all countries were given a score of “0” as the prohibition in force in Austria, Belgium, Denmark, and France falls under the rules pertaining to the entire public space, which have already been evaluated and scored under a), and are not contained in specific norms.
Members of Parliament, judges, members of the police force
In France members of Parliament are not allowed to wear religious attire that is “conspicuous“; in all other countries there is no prohibition, although some would frown upon members of Parliament wearing religious attire. In Denmark, a 2020 law prohibits judges from wearing religious garments while performing their duties. As a result, these countries were given a score of “-0.5″ (France, because only some religious garments are forbidden) and “-1” (Denmark, because all religious garments are forbidden). In all other countries there are no specific provisions prohibiting members of Parliament, judges, or members of the police from wearing religious garments, and the rules laid down for public employees (already assessed and scored above) apply. Therefore, the Atlas scored all these countries “0.”
The Atlas data on religious garments: promotion of RBM rights by RBM
Based on the Atlas data, it is possible to measure not only how much each state promotes the rights of RBMs taken as a whole but also how much the rights of each RBM are promoted within a state. The results of this second survey are set out in the following table.
The data in this table also require a short explanation. Concerning public space and public institutions, scoring is given only to public space to avoid duplication of scoring (see what is written under “public institutions” in the section f) of the previous paragraph) and concerning “public schools (teachers)” no score is given because there is no definite international standard (see what is written under “public schools (teachers)” in the section e) of the previous paragraph).
The Atlas data shows a divided Europe. Within its borders there is a group of states —Austria, France, Belgium and Denmark — whose laws restrict the right to wear religious garments. France is the country where these restrictions are most severe. Underlying them are two converging factors: Islamophobia (which explains the ban on circulating in public places with a covered face) and a pervasive conception of secularism that encompasses public institutions and even touches on private ones (which explains the ban on wearing religious garments in schools, public and partially private workplaces, and Parliament). In the other three countries the restrictions are less strong and seem more influenced by political contingencies, although they are not without public support. In the remaining eleven countries no restrictions are in force at national level, although they are sometimes found at the local level.
Restrictions on the right to wear religious garments particularly affect the Muslim minority. It is the target of provisions (such as those banning the burqa and niqab) that, while couched in seemingly neutral language, directly affect it. The other two religious groups most closely associated with the wearing of religious garments, the Jewish and Sikh ones, score better, but not as well as the remaining minorities. This is the consequence of a factual difference. French laws restricting the right of students and MPs to wear religious garments are formulated in general terms and affect all garments that are ostentatious (school) or conspicuous (Parliament): but in fact these laws affect Muslims, Jews, and Sikhs more than the members of other RMs, because scarves, kippas and turbans are inevitably more ostentatious and conspicuous than the more discreet religious garments of other minorities. ♦
Silvio Ferrari is an emeritus professor of Law and Religion which he taught at the Universities of Milan and Leuven. Now he leads the research project “Atlas of religious or belief minority rights in the RU countries.”
Ferrari, Silvio. “Minorities and Religious Attire in Europe: The Data of The Atlas of Religious or Belief Minority Rights.” Canopy Forum, January 9, 2022. https://canopyforum.org/2023/01/09/minorities-and-religious-attire-in-europe-the-data-of-the-atlas-of-religious-or-belief-minority-rights/