Transnational Understandings of Secularisms and Their Impact on the Right to Religious Freedom—Exploring Religious Symbols Cases at the UN and ECHR

Abstract

Drawing on a theoretical approach that understands secularism to be an authoritative discourse that shapes the boundaries of the religiously acceptable in a modern nation-state, this article explores the usage by international human rights bodies (United Nations bodies and European Court of Human Rights) of secularism in religious freedom cases. More specifically, the article investigates how, while both those bodies ground their rulings and opinions on religious symbols in secularism, they propose alternative readings of the term, which in turn affects the boundaries of the right to religious freedom and therefore the politics enabled by this right. This finding has theoretical implications, as it does not only highlight how secularism and religious freedom are deeply interrelated but also points to the fact that the meaning of the “universal” right to religious freedom is unstable and a source of debate between transnational human rights spaces. Moreover, this has repercussions at the praxis level, where the hegemony of secularism accompanied by a shift in meaning affects both the discourse and strategies of plaintiffs.

Acknowledgments

Amélie Barras recently finished her PhD at the London School of Economics in the Department of Government and is currently a post-doctoral fellow working with the Canadian-based Religion and Diversity project. She specializes in politics and religion, with a focus on secularism, Islam, and human rights. Her recent publications include “A Rights Based Discourse to Contest State Secularism? The Case of the Headscarf Bans in France and Turkey” (Democratization, 2009) and “The Struggle of Turkish Devout Women for Full Citizenship” (Middle East Report, 2012).

Research for this article would not have been possible without a doctoral grant from the Canadian Social Sciences and Humanities Research Council and a “Subside-Tremplin” post-doctoral grant from the University of Geneva. I am very grateful for the discussions and comments I received on earlier drafts of this article from participants at a workshop on international law, human rights, and the politics of religious difference at Princeton University in April 2011, as well as panelists at the ISA meeting in New Orleans in February 2009. Finally, I would like to thank two anonymous reviewers for their insightful comments that have helped me push my reflection further. I bear, of course, responsibility for any shortcomings.

Notes

1. For a discussion of the reasons that explain this traditional apolitical reading of secularism see Asad (2003: 4) and Haynes (2005: 399, 400).

2. Her statement makes reference to a remark made by a committee member during the drafting of General Comment 22 on Article 18 of the International Covenant on Civil and Political Rights (ICCPR).

3. Limitations on the right to religious freedom are found in Articles 29 (2) of the Universal Declaration of Human Rights, Article 18 (3) of the International Covenant on Civil and Political Rights and Article 9 (2) of the European Convention on Human Rights (ECHR). These articles foresee limitations on the ground of public safety, order, health, moral, fundamental rights, and freedom of others.

4. This expression is borrowed from Ahmet Kuru (2009), who makes a distinction between “passive secularism” where the state is required to be neutral towards beliefs while allowing for the visibility of religions in the public realm and “assertive secularism” where the state favors a secular worldview and aims at confining religious expressions to the private realm.

5. More precisely Mahmood considers a sign to be “arbitrarily linked to the abstractions that humans have come to revere as sacred” (2009: 73).

6. Vakulenko in her discussion of judgements on religious dresses explores this aspect in greater detail (2007).

7. In many cases, the court justifies this margin of appreciation because it considers that there is a lack of consensus at the European level with respect to the presence/absence of religious symbols in the public realm. This argument has been refuted by dissenting judges in the Leyla Sahin v. Turkey (2005) and in the Lautsi and others v. Italy (2011) rulings. In the Sahin case, it was argued that no such lack of consensus existed in European universities where headscarf bans were not implemented anywhere. In the Lautsi case, the judge reminded that in the majority of European countries religious signs exposed on the walls of classrooms, such as a crucifix, were subject to strict regulations and that, when European supreme courts had been asked to rule on this issue, they had always positioned themselves in favor of state neutrality towards beliefs. For a detail analysis of the margin of appreciation in the Sahin case, see Vakulenko (2007) and Lewis (2007).

8. Except for the El Morsli case that pertains to the requirement of removing one's headscarf for an identity check in a French Consulate, the other cases concern bans on headscarves or Sikh turbans affecting students or teachers (e.g., Dahlab case) in public schools or universities (e.g., Sahin case). Rulings for which decisions were given in 2009 are cases where plaintiffs contested the validity of the French 2004 law.

9. For a detail analysis of Sahin case, see, for example, Gibson (2007), Lewis (2007), Marshall (2006), McGoldrick (2006), and Ssenyonjo (2007).

10. It is relevant to note that the dissenting judge, Tulkens, in the Sahin ruling pointed to the fact that the majority of judges failed to review whether the Turkish state provided proof that the wearing of the headscarf was in fact disturbing public order or pluralism (Sahin v. Turkey 2005: Dissenting Opinion, para. 12).

11. This point makes reference to the previously mentioned implications, put forth by Mahmood (2009), of considering religious dress as signs or symbols.

12. The terms “practice” and “observance” are used in reference to the aforementioned distinction by the Special Rapporteur on freedom of religion or belief.

13. For a dissenting opinion on this issue, see Note 7. It is interesting to note that the Italian government argued that keeping the crucifix in classrooms could be interpreted as a “secular tradition” reflecting the cultural and historical past of Italy and symbolizing key values such as tolerance and mutual respect.

14. The dissenting judge, Kalaydjieva, disagreed with that point as she considered the presence of a crucifix to be a greater threat to religious freedom and to the right to education of children than the wearing of a religious sign by a teacher. In the case of the teacher, her own right to religious freedom needed to be respected by the state; a right that could not be evoked by public institutions in the case of the crucifix.

15. This is exemplified in the Lautsi case, where the Italian government argued that the crucifix had become a secular sign (see Note 13) or in the French cases where students stressed that hats and bandanas were not conspicuous religious signs and/or did not carry a religious connotation (e.g., Aktas v. France 2009: para. 2). In both cases, the court positioned itself vis-à-vis those statements evaluating the religiosity of these “signs.”

16. The expression “assertive secularism” is explained in Note 4.

17. The Capital Women Platform was the first faith-based NGO to actively participate in the CEDAW process and to submit a short shadow report on headscarf bans in 2005. This faith-based NGO was established in Ankara in 1995 by a group of well-educated urban women and has been the first umbrella organization regrouping religious women organizations throughout Turkey. This involvement in the CEDAW process continued, and in 2010, more than 70 Muslim organizations formed a coalition to draft a shadow report focusing again on headscarf bans for the 46th CEDAW session (July 12–30, 2010). See The Coalition for the Partial Preliminary Evaluation Report (2010).

18. As a result of this lobbying, the committee asked several questions to the Turkish state on this issue and included reference to this point in its final reports (CEDAW 2005, 2010). It is relevant to note that this involvement in international activities can be partly explained by the recent economic empowerment of devout Muslims in Turkey. Several of the women involved in those activities are members of the new Turkish devout bourgeoisie, which implies that they have the financial means and a good knowledge of English to attend international meetings.

19. For a more detailed discussion of this aspect, see Barras (2009).

20. This is an expression used by Danchin (2011), which was previously mentioned in the “ECHR Position on Secularism and Religious Freedom” section of this article.

21. Cady and Hurd (2010), Danchin (2011), Sullivan (2002), and others have already started this reflection in their research.

22. The “impossibility” of religious freedom is an expression used by Sullivan (2002).