Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights
| Published date | 01 July 2016 |
| Date | 01 July 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12206 |
| Author | Ronan McCrea |
Secularism before the Strasbourg Court: Abstract
Constitutional Principles as a Basis for Limiting Rights
Ronan McCrea∗
The justification for the restrictions on religion inherent in secularism is the subject of lively
debate in constitutional and political theory. As a rights-focused text, the ECHR struggles to
accommodate constitutional principles such as secularism whose aims and justifications may
go beyond the protection of the rights of others and include abstract goals such as upholding
the religious neutrality of the state. Rights alone cannot provide an adequate account of the
relationship between religion, state and law, and in Ebrahimian vFrance, the Strasbourg Court
rightly reaffirmed that secularism and str ict neutrality can be in harmony with the values of the
Convention. However, the Court needs more clarity about the reasons for this stance and to
be vigilant in its protection of private autonomy so that the use of abstract principles to restrict
religious expression does not give excessive latitude to states to restrict individual autonomy
and minority rights.
INTRODUCTION
The French system of regulating the relationship between religion and the state
has been before the European Court of Human Rights (ECtHR) on several
occasions.1Applicants from France and elsewhere have had little success in
challenging rules restricting religious expression in schools and universities,2
imposed in the name of secularism, and the Court has clearly stated that
state secularism is, in principle, consistent with the values of the European
Convention on Human Rights (ECHR).3In Ebrahimian vFrance4(Ebrahimian)
the Court was faced with a challenge to restrictions on religious expression
in the broader public service, a context where concerns about respect for
parental autonomy and proselytismin the education system which can under pin
restrictions in the educational context, do not apply.
The arguments put forward by the French authorities in favour of the re-
striction of religious expression in the public service as a whole forced the
ECtHR to address the justifications for secularism in broad and abstract terms.
This required the Court to enter into the complex question of the ECHR’s
ability to accommodate a secularism whose aims and justifications go beyond
the protection of the fundamental rights of others and focus on more abstract
∗Senior Lecturer, Faculty of Laws, University College London. I would like to thank an anonymous
reviewer for their helpful comments.
1SAS vFrance [2014] ECHR 695, Dogru vFrance [2008] ECHR 1579, Pichon and Sajous vFrance
Admissibility Decision [2001] ECHR 898.
2Dogru vFrance (ibid), Dahlab vSwitzerland Admissibility Decision [2001] ECHR 899, S¸ahin v
Turkey [2004] ECHR 299.
3Refah Partisi vTur k e y [2003] ECHR 87 at [114].
4 [2015] ECHR 1041. The majority judgment is in French and all translations are my own. The
dissenting and partially dissenting opinions are in English.
C2016 The Author. The Modern Law Review C2016The Modern Law Review Limited.
(2016) 79(4) MLR 678–705 691
bs_bs_banner
To continue reading
Request your trial