Comparing the Two Major Courts Systems in Europe on the Matter of Religious Dress
This article is part of our “Clothed in Religion: Law and Religious Attire/Garb” series.
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There are two major judicial systems currently operating within the European region, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The ECtHR is charged with enforcing the European Convention of Human Rights and Fundamental Freedoms (ECHR) and thus is the court of last resort for claims that human and civil rights (including religious freedom) have been violated within the 46 current members of the Council of Europe. The CJEU has operated since the 1950s within the 27 member European Union, but the Court’s remit has focused mainly on the economic integration of the EU with little attention to religious freedom matters until recently.
The ECtHR has been functioning for over six decades and has developed a substantial record concerning religious freedom issues since the first violation of Article 9 of the European Convention was found in 1993, shortly after the collapse of the Soviet Union and the rapid influx of many formed Soviet-dominated nations into the Council of Europe (CoE). The Court’s strong record in defense of religious freedom has lost some impetus in recent years, in large part because of a growing backlash against some rulings of the Court that have been viewed as violative of national sovereignty (Richardson 2017, 2019). This has led to the reemergence of the “margin of appreciation” doctrine and the development more recently of the concept of “subsidiarity” that leaves many issues, including those concerning the management of religion, to the member states.
The CJEU has come much later to matters concerning religious freedom, basing this newer area of concern on the Charter of Fundamental Freedoms of the European Union in 2000 which was formally accepted as part of EU governing documents in 2009. The Charter, which is modeled after the European Convention on Human Rights and Fundamental Freedoms, has been invoked by the CJEU in its rulings directly involving claims of religious discrimination issued in recent years. Since 2017 the Court has issued a number of significant rulings, and indeed some scholars have suggested that the CJEU may supplant the ECtHR as the preferred venue for religious freedom cases, including those dealing with religious dress.1 See Andrea Pin and John Witte (2020). “Meet the new boss of religious freedom: The new cases of the Court of Justice of the European Union.” Texas International Law Review 55: 223-268 and John Witte and Andrea Pin (2021). “Faith in Strasbourg and Luxembourg? The fresh rise of religious freedom litigation in the pan-European Courts.” Emory Law Journal 70(3): 587-2021. This possible shift of venue for religious freedom cases has gained impetus for several reasons. First, the CJEU has a much more efficient method of operating which means that claims are adjudicated sooner than is usually the case with the ECtHR. This is a result of a process that allows EU national courts to seek a preliminary opinion on cases before them. Such opinions are produced by an Advocate General (AG) of the CJEU and are usually very determinative. Second, any ruling of the CJEU is immediately effective throughout the EU, unlike the situation with the ECtHR, whose rulings are advisory only (and have often been disregarded in recent years, especially by some members states). Third, the rather dramatic shift in recent rulings of the ECtHR deferring to the preferences of member states on matters involving religion has made potential plaintiffs engage in “venue shopping” to seek better outcomes.2For discussions of controversies about how the ECtHR operates and changes that have been wrought as a result in its functioning see citations in endnote 1 and also James T. Richardson (2917). “The European Court of Human Rights: Changes and challenges in the social construction of religious freedom.” Religion, Staat, Gesellschaft 18: 13-34 as well as James T. Richardson (2019). “Religious freedom in flux: The European Court of Human Rights grapples with ethnic, cultural, religious, and legal pluralism.” Changing Societies & Personalities 3(4): 302-317. Whether this shift from the ECtHR to the CJEU will occur remains to be seen, however.
First, we will examine the record of the ECtHR concerning religious dress and then discuss the more recent but potentially different rulings of the CJEU.
The ECtHR and Religious Dress
Although the overall historical record in religious freedom cases adjudicated by the ECtHR has been strong until recently, the Court has for decades not been hospitable to claims made by members of Islam and other minority faiths, including claims concerning religious dress, as will be detailed below. In contrast, the Court has over the years affirmed the presence of symbols representing Christianity in public places and other decisions protective of Christian sensitivities (Otto-Preminger-Institut v. Austria, 1994; Lautsi v. Italy, 2011; Eweida and others v. UK, 2013). This pattern of cases has led some scholars to criticize the Court for promoting a secular agenda and for maintaining a bias against Islam.3See Karen Meerschaut and Serge Gutwirth (2008). “Legal pluralism and Islam in the scales of the European Court of Human Rights,” in Eva Brems (Ed.), Conflicts between Fundamental Rights. (Antwerp: Intersentia, pp. 431-465), as well as Melanie Adrian (2019). “The principled slope: Religious freedom and the European Court of Human Rights,” in Effie Fokas and James T. Richardson (Eds), The European Court of Human Rights and Minority Religions (New York: Routledge). pp. 9-20.
Several cases have been adjudicated in which the Court ruled against public displays involving dress for Muslim women: Dahlab v. Switzerland (2001); Sahin v. Turkey (2005); Kurtulmus v. Turkey (2006); SAS v. France (2014); Ebrahimian v. France, (2015). These cases involved laws that banned the wearing of religious garb in public or at work (regardless of whether the business was private or public). However, in Arslan and Others v. Turkey (2010) the court overturned a 1997 decision by Turkish courts convicting 127 Turkish nationals (apparently all males) of breaking two laws, one which prohibited wearing headwear and the other which prohibited wearing religious clothing in public other than for religious ceremonies. More recently Hamidovic v. Bosnia and Herzegovina, decided in December 2017, involved a member of a fundamentalist Islamic religious community in Bosnia and Herzegovina (BiH) who refused to remove his headwear even when directed to do so by the Judge. The witness was respectful of the court and willing to testify but unwilling to remove his headwear for religious reasons. He was sanctioned for contempt and fined, but he refused to pay the fine and served a 30-day imprisonment. After being released, Hamidovic appealed to the Constitutional Court of BiH but that Court ruled that his contempt citation was a lawful interference with his religious rights. Hamidovic then applied to the ECtHR for relief, claiming that his rights under articles 9 and 14 of the Convention had been violated.
The ECtHR took considerable care in analyzing the case, noting that among other things BiH was 51% Muslim and 46% Christian, with a constitution that guaranteed religious freedom, and was based on secular principles. The Court presented the results of a comparative analysis focusing on rules applied to the wearing of religious symbols in court proceedings in 38 CoE member states. This research revealed that only four states required removal of headwear in court proceedings, and that in those four the rule was not enforced consistently. The Court then focused on whether such a requirement concerning headwear was necessary in a democratic society and ruled that in this case it was not. The Court found a violation of articles 9 and 14 of the Convention.
The Court tried in its ruling to make it clear that this decision was specific to the facts of this case and did not overrule earlier ECtHR decisions concerning religious dress in public spaces (which could only refer to dress cases involving Muslim women). It also stated that there might be future cases where removal of religious symbols, including headwear, in courtrooms would be justified. Thus, the Court tried to limit application of the decision; nonetheless, the Court’s ruling seems to represent a recognition of some circumstances in which Muslins are allowed to follow basic tenets of their religion within a courtroom setting. This ruling (and a few others, see Richardson 2021) suggest that the ECtHR may be seeking some rapprochement with Islamic values in its rulings, but the ruling also raises a question about a possible gender bias in the Court’s rulings.
The Court of Justice of the European Union and Religious Dress
The CJEU has generally accepted the ECtHR’s growing dependence on the “margin of appreciation” and “subsidiarity” in such cases, a development worrisome to some religious freedom scholars. This assessment derives from Court rulings in religious freedom cases that do not demonstrate much sympathy to such claims. For example, the Court has ruled against claimants in two cases involving ritual slaughter, as well in a few other cases. On the other hand the CJEU has shown some independence from the ECtHR in a few cases involving employment in religious institutions (“ministerial exception” cases) and in the area of religious dress for Muslim women in the workplace.4See Witte and Pin, note 1.
The cases involving Muslim women’s religious dress offer a more nuanced approach than the ECtHR has usually shown in such cases. The first such ruling, Achbita v. G4S Secure Solutions (March 14, 2017), involved a Muslim woman in Belgium who was fired from her job as a receptionist in a security company for refusing to stop wearing a hijab in her position, which required interaction with members of the public. Archbita appealed her dismissal, but her refusal to abide by the company dress code was deemed an adequate ground for termination. She sought redress in the national court system, which referred the case to the CJEU for a preliminary opinion. The CJEU ruled that the firing did not involve “direct discrimination” since the policy was generally applicable to all workers. The Court also ruled that it was not “indirect discrimination” because the dress code was “proportionate” given the company’s desire to maintain neutrality involving religion. Thus, the Court ruled in a manner analogous to previous rulings in this area by the ECtHR.
However, in a ruling released the same day (Bougnaoui and Association de défense des droits de l’homme (addha) v Micropole sa, March 14, 2017) a somewhat different approach was presented. The case involved a Muslim woman working for a French firm which had no set policy concerning religious dress. She had been asked not to wear the hijab at work but continued to do so with no repercussions. She was eventually promoted to a design engineer, and she worked in that capacity until a customer complained about her headwear. She was then fired and sought recourse through French courts which referred the case to the CJEU for an opinion. The case was eventually resolved in her favor, with the CJEU ruling that she had suffered direct discrimination on religious grounds. The company lacked a clear and consistently applied dress policy that would have led to a ruling in its favor, thus allowing the plaintiff to prevail. Interestingly, the Court cited an ECtHR case (Eweida and Others v. The United Kingdom, 2013) as part of its justification for its ruling. However, the Court noted that the policy elucidated in Eweida clearly demonstrated limitations to any policy prohibiting displays of religious symbols in the workplace (three of the four claimants in Eweida did not prevail).
Since those two decisions there have been several others that have fleshed out the CJEU approach to such cases, including XI v. WABE eV (July 15, 2021) and Müller Handels GmbH v. MJ, (July 15, 2021), two cases, both involving German private companies which had policies that prohibited the wearing of any visible symbols of political, religious, or philosophical belief. Both women were reprimanded for refusing to abide by company policy and sought recourse through various German courts. Those courts referred the cases to the CJEU and requested preliminary opinions about whether the actions of the two employers constituted either direct or indirect discrimination, and under what circumstances differential treatment on basis of religion or belief might be justified, as well as what facts in such cases should be determinative.
The opinion of the Court made it clear that direct discrimination was not an issue if the companies had a generally applicable policy that was adhered to for all such visible signs of belief (which in both these cases they did). The AG’s opinion concerning indirect discrimination was that a genuine need must be established to enforce such a policy that promotes the interests of the business. The policy cannot be based solely on the personal desire of the employer; an actual need for the policy must be demonstrated in terms of the tasks to be accomplished by the employee and the goals of the business enterprise. Further, the opinion stated that any difference in treatment based on belief must be appropriate for the purpose of ensuring the company’s policy of neutrality and that the action of the company must be “strictly necessary” to accomplish that end. The Court also made it clear that national provisions protecting religious freedom should be taken into account, even if they offer more protections for religious freedom than is the case in established EU guiding principles and legal precedents in this area. Thus the CJEU has asserted the need to balance the requirements of the employer with the religious freedom rights of its employees. The Court also explicitly recognized a margin of appreciation for member states but urged that the principle of proportionality should govern decisions made in this area. These same principles were reaffirmed in a more recent case from Belgium, LF v. SCRL (October 13, 2022).
Comparison of the Two Courts on Religious Dress
The two courts approach cases dealing with religious dress in similar ways. Both seek to promote a posture of neutrality toward matters of religion, which of course includes cases involving the display of religious symbols such as headwear for Muslims. The much longer record of the ECtHR seems to present a bias against Muslim claimants, although there the two cases mentioned above reveal limited circumstances where males were allowed to display headwear. The CJEU, on the other hand has not adjudicated any cases involving headwear for Muslim men; thus the issue of possible gender bias appears moot. However, it is noteworthy that in its recent cases involving the wearing of headwear by Muslim women working in the private sector the CJEU offers a more nuanced approach than that presented by the ECtHR cases. The CJEU cases have laid down criteria whereby some Muslim women have won cases, thus allowing them to wear their preferred headwear (or be compensated for their termination). Employers are forced to justify policies about religious dress and demonstrate that they are directly related to the business activities of the employer. The interests of the employer must be balanced with the religious freedom interests of the employees. Also, national policies which favor employees’ religious freedom above the interests of their employers are sanctioned. Thus, it seems appropriate at this time to suggest that those bringing religious freedom cases involving the broad area of employment may prefer to have their cases heard by the CJEU.♦
James T. Richardson, J.D., Ph.D., is Emeritus Professor of Sociology and Judicial Studies at the University of Nevada, Reno where he directed the Judicial Studies Graduate Degree Program for trial judges for many years. His recent research focuses on judicial systems and their involvement in the management of religion.
Richardson, James. “Comparing the Two Major Courts Systems in Europe on the Matter of Religious Dress.” Canopy Forum, January 24, 2023. https://canopyforum.org/2023/01/24/comparing-the-two-major-courts-systems-in-europe-on-the-matter-of-religious-dress/.