Framing Multicultural Challenges in Freedom of Religion Terms

AuthorKatayoun Alidadi,Marie-Claire Foblets
Date01 December 2012
Published date01 December 2012
Subject MatterPart A: Article
Netherlands Q uarterly of Human R ights, Vol. 30/4, 460–488 , 2012.
388 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
Limitations of Minimal Human Rights for
Managing Religious Diversity in Europe
K A and M-C F*
Multicultural challenges in Europe are being framed in human rights language, and in
particular in terms of the freedom of thought, conscience and religion.  e question is
whether the practical case-by-case application of the fundamental right to freedom of
religion in national and European case law fac ilitates a ‘deep (and normative) diversity’ in
Europe or rather only allows space for a limiting or ‘conditi oned diversity’ instead. While
opening up possibilities for minorities to live out their live s in accordance to their deeply-
held convictions, it se ems to us that the human rights working frame in a predominantly
‘minimalist’ conception comes with its inherent limitations as to the management of
Europe’s religious diversity. While human rights purport to liberate and protect, they
also impose conditions, criteria and standards that are grounded in a Western vision of
law, society and religion. Religious minorities stand to gain from playing by the human
rights rules a s long as they accept to mould, shape and limit their claims to  t dominant
conceptions, which perhaps diverge from their o wn understandings, needs and a spirations.
Drawing on case law collected through the R ELIGARE project network, this article aims
to illustrate some of the limitations and con nes that Europe’s diverse communities face
in the areas of the workplace, the public pla ce, the family, and State support to religions.
Keywords: employment; family life; freedom of religion; minimal/maximal human
rights; State support to relig ion; the public space
* Katayoun Alida di is a PhD Researcher in law at the K U Leuven (Belgium); Marie-Cla ire Foblets is
professor of law at the KU Le uven (Belgium) and director of t he Law & Anthropology de partment at
the Max Planc k Institute for Soc ial Anthropolo gy in Halle (Ger many).  is work was supported by the
RELIGAR E project, which received fu nding under the Europea n Commission’s Seventh Framework
Programme (Soc io-economic Sciences and Hu manities) under gra nt agreement number 244 635.  e
positions and vie ws set out in this Artic le are those of the authors and do not nec essarily re ect the
o cial opinion of t he European Union. We want to thank Wibo Van Rossum, A ntoine Buyse and
Michaël Merriga n for their remarks a nd input. Websites were last access ed in September 2012.
Framing Mult icultural Cha llenges in Freedom of Relig ion Terms
Netherlands Qu arterly of Human Ri ghts, Vol. 30/4 (2012) 389
Over the last thre e decades much emphasis and reliance has come to be placed across
Europe on the framework of human rights, both when it comes to longstanding
struggles and new societal challenges. Europe’s multicultural condition, closely
linked to the issue of Islam in Europe, has given new vitality to the tool of human
rights, in particular by shedding new light on the debate on the meaning and limits
of fundamental rights such as the freedom of religion, the freedom of expression
and the right to non-discriminatory treatment. While freedom of religion is not
conceptually limited to religious minorities, in the European context it is highly
minority-relevant.  e frequent mobilisation of the tool of human rights to address
the new societal rea lity of Europe’s increasing religious heterogeneity w ill, in the long
run, no doubt transform our u nderstanding of the human rights system itself. I n the
more short term, the question is what type of diversity our current understandings
and conceptions of human rights and, in particular, the freedom of religion allow
for: a truly ‘deep diversity’1 where minorities or ‘nonconformists’ are allowed space
to live out their lives on their own terms according to own norms and aspirations,
or rather a more limited diversity which restricts practices and ways of life that are
considered beyond the acceptable con nes surrounding dominant/majority-biased
(even if implicit) Western standards. By ‘deep diversity’, we refer to an open-ended
engagement with the already-there factual heterogeneity in beliefs, practices and
values on the ground in Europe, which is not a priori limited by conceptions and
categories motivated by more common or majoritarian values in society. Under such
an approach, individual interests (of minorities) are ‘taken seriously’2 and not easily
trumped by considerations der ived from ‘social cohesion’ or ‘common values’, which
are the marks of a more ‘utilit arian’ approach.
When considering certain limitations and shortcomings of the human rights
system for managing a nd giving breathing room to Europe’s religious pluralism, one
could argue, as will be illustrated below in a number of areas, for more progressive
or ‘horizon’ conceptions of human rights . However, we want to argue that, at least in
the more immedi ate timeframe, it is a lso justi ed to look beyond the someti mes rigid
tool of human rights into better responsive legal and policy solutions. Whi le human
rights form the unconditiona l minimum threshold to which European States shou ld
strongly commit, the challenging questions surrounding religious pluralism in our
1 is concern for ‘deep diver sity’ shows some a l iation with the ‘ deep equality ’ advocated for in the
Canadian c ontext, see Bea man, L., ‘Dee p Equality : Moving Beyond Tolerance a nd Accommodation’,
available at: ww mpetus/winter2012/l beaman; see al so Day, S. and Brodsky, G.,
‘ e Dut y to Accommodate: Who Will B ene t?’, La revue du Barreau Canadien, Vol. 75, 1996, pp.
433–73; Beaman, L .G., ‘ e Myt h of Plu ral ism, Dive rsit y, and V igor:  e Constitutional P rivilege of
Protestantis m in the United States and Ca nada,’ Journal for the Scien ti c St udy of Religion, Vol . 4 2,
No. 3, 2003.
2 Dworkin, R., Taking Rig hts Seriously, Har vard University Press, C ambridge, 1978.

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