The Liverpool View: Banning or not banning? On bags, walls and human rights

Dr Gaetano Pentassuglia is a Reader in International Law and Human Rights in the University of Liverpool’s School of Law

“Britain is anything but new to debates over religious diversity in the public sphere.

But the issue partly resurfaced last September following a London court decision requiring a defendant Muslim woman to remove her full-face veil while giving evidence, and more recent controversial remarks by party coalition government members on the Islamic full veil (‘a kind of bag’ for former Conservative justice minister Ken Clarke), and the state’s role in preventing veils ‘being imposed on girls’ (according to Lib Dem Home Office minister Jeremy Browne).

‘Overt and conspicuous’

Interestingly, on the other side of the Atlantic, Quebec, Canada’s overwhelmingly Francophone province, looks set for a European-style kind of debate as the leading party of the current ruling coalition, the Parti Québécois, plans to prohibit government employees from wearing ‘overt and conspicuous’ religious symbols on the job.

The proposal, which is part of a move to reinforce Quebec’s strictly secular model through adopting a Charter of Quebec Values, is seen as a response to the rise of Muslim immigration into major provincial cities over the past ten years or so, and the politics of ‘reasonable accommodation’ for religious groups entrenched in Canadian legislation. The authorities behind the plan have defended it by appealing to Thomas Jefferson’s famous notion of a ‘wall of separation between church and state’ – hardly the relational pattern reflected in the British constitutional set up.

The European Court of Human Rights has been criticized for being unduly insensitive to religious beliefs. Restrictions on the wearing of religious clothing by school teachers and students, as well as university students, have been justified in the name of secularism, democracy and gender equality. Individual claims to religiously-motivated exemptions from domestic regulations or laws have been rejected on public safety or public order grounds. In both sets of cases respondent states were given considerable leeway (‘margin of appreciation’) in dealing with the case, and their argument upheld without a great deal of discussion. Individuals manifesting their religion in the public sphere; state officials wearing religious symbols or state institutions using religious symbols; and the role of the state and courts, including international courts, in looking at the entanglement of law, religion, and diversity – these are some of the questions which have long informed this domain of public discourse.

Exemptions or accommodations on a case-by-case basis typically work from genuine religious beliefs back into appropriate forms of special protection, whereas decisions based on comprehensive secular value-judgments or conceptions of the public good generally work the other way around – from those proclaimed values back into restrictions on religious manifestations as human rights matters. The French and Turkish narrative of secularism buttressed by wide-ranging bans and overriding the religious rights of individuals and groups, or external interpretations of religious symbols and whether or not they should be understood as integral to those rights are typical cases in point. Exemptions cannot be defended or challenged as a class. They raise issues of equal liberty and communal significance of particular practices. They can only be considered contextually. General bans cannot tolerate exceptions because they would go against the very rationale for the ban – repeal is what is normally sought by those who challenge it.

Despite Strasbourg’s apparent idiosyncrasies with religious rights, questions should be raised as to the extent to which the Court can pursue the argument of state neutrality (and even secularism) in any consistent manner. In fact, it has allowed for Catholic symbols to continue being displayed in Italian public schools; it has upheld the right of Muslims (admittedly, men in the case) to wear religious attire in public places, on roads and outside religious premises, and then in court, in Turkey; it has recognised an element of ‘reasonable accommodation’ in relation to domestic legislation impacting on Jehovah Witnesses’ religious beliefs in Greece or Jewish rituals in France; and it has upheld cultural diversity as a value to be protected, which arguably includes religious diversity as well.

The Parti Québécois’ current line on religious symbols is said to follow in the wake of the 2004 French ban on signs or dress manifesting a religious affiliation in the school system (and presumably the later French ban on burquas in public places). But the party’s leaders would do well to (re-)read a much closer source – the Supreme Court of Canada’s resounding support for terms of inclusion for members of non-dominant communities that are respectful of their religious beliefs and consistent with Canadian multicultural values.

The Court (http://www.scc-csc.gc.ca/) has effectively called on French-speaking Quebec to be culturally inclusive while still being rightfully protective of French identity. For its part, the European Court, in the much disputed Lautsi v Italy, accepted Italy’s argument that the display of the crucifix in the classrooms of public schools was a matter of (majoritarian) cultural tradition, but simultaneously undermined its own strictly religion-free view of the public sphere implied by the narrow logic of state neutrality, making a rebalancing in favor of minority religions in future cases a question of, at least, logical necessity.

Context sensitive

Blackfriars Crown Court Judge Peter Murphy’s nuanced approach to the matter of wearing the full veil in court – allowing the respondent to wear the veil while standing trial but still requiring her to remove it while giving evidence, possibly shielded from public view – seeks to tread a delicate path between general prohibitions overriding the significance of religious dress to those who wear it and practical accommodations based on the human rights of individuals and the collective interest they carry with them. Indeed, special arrangements typically begin by valuing the individual’s religious beliefs and acknowledging public institutions’ responsibility to create fair terms of inclusion for more vulnerable communities as they attempt to strike a balance between that aim and the role of the state in matters of compelling public interest.

This sort of context-sensitive, proportionality-based approach should generally attract a relatively low level of scrutiny by Strasbourg (should a similar case ever make it to the Court). But there is every reason for the Court itself to engage in heightened scrutiny when comprehensive bans wholly substitute for individual and communal religious beliefs and understandings, and there appears to be no domestic space for a serious discussion about the concrete human rights-compatible modalities of diversity within distinctive public settings – judicial or otherwise. If anything, universal bans push traditionally marginalized communities further underground (look at France).

Verbal eccentricity and unsustainable commitments to state neutrality aside, politicians from both sides of the Atlantic, and courts, should take notice.”