Not Taking it on Faith: State and Religious Influences on European Court of Human Rights Judges in Freedom of Religion Cases

Abstract

I analyze freedom of religion case law from the European Court of Human Rights (ECHR), arguing that the ECHR has been inconsistent and deferential to state governments. To account for this phenomenon, I consider two theoretical frameworks. First, I ask whether the religious affiliation of applicants matters when it comes to judges’ willingness to decide in their favor. Second, I consider whether ECHR judges are influenced by the preferences of the states that nominated them. Employing logistic regression analysis on an original dataset of 538 judge votes on 70 freedom of religion cases, I find that Muslim applicants are substantially less likely to receive favorable judge votes, and that judges are more likely to vote in favor of the states that nominated them. Additionally, I find that West European states are especially likely to receive favorable rulings, even when controlling for differences in state protections of religious liberty.

Notes

Notes

1 I adopt a definition of Christianity that excludes liminal Christian groups such as the Jehovah’s Witnesses and the Church of Jesus Christ of Latter-Day Saints. In this I follow the classification adopted by the Religious Characteristics of States dataset (Brown and James 2017), the codebook of which notes the substantial doctrinal differences between such groups and the major branches of Christianity, as well as the disputed nature of such groups’ membership in Christianity. It is especially important for the purposes of this research to exclude liminal Christians, as the theoretical expectation is that the Christian heritage of European states will lead the ECHR to decide in favor of Christian applicants. However, the fact that liminal Christian groups have risen in prominence in European states relatively recently, coupled with such groups’ departures from historic Christian doctrine, suggests that they should not enjoy the same favored status as Orthodox, Catholic, or Protestant believers. A similar distinction was not necessary when coding the Muslim variable because, as far as I could determine, there were no cases involving liminal Muslims (e.g., Druzes, Ahmadiyya).

2 It is possible that the relationship goes in the opposite direction. Due to the ambiguous nature of Article 9(2), ECHR judges may be willing to tolerate restrictions on religious liberty if there are national laws in place that justify such restrictions as serving the acceptable purposes described in Section 2. States with restrictive religion laws could thus be at an advantage when it comes to the Court’s judgments. However, the standards set by the Convention ought to be applied in a similar manner to all member states. Even if restrictive states justify their laws in light of Article 9(2), it is up to the ECHR judges to decide whether such argumentation is convincing. Because the standards of the Convention should take precedence over national laws, we should not expect restrictive states to be treated more favorably than less restrictive states in this respect.

3 An alternative operationalization, which excluded Greece, did not yield substantially different results.

Additional information

Funding

No outside funding was received by the author for this research project.

Notes on contributors

Dan Koev

Dan Koev, PhD, serves as assistant professor of government at Regent University. His research interests include nationalist and right-wing populist parties, ethnic minority politics, and the role of national and international institutions in the protection of religious liberty.