Law and the Wearing of Religious Symbols in Europe

Erica Howard

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429603792
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Written in accessible language, this book provides a comprehensive analysis of a topical subject that is being widely debated across Europe. The work presents an overview of emerging case law from the European Court of Human Rights and the Court of Justice of the European Union, as well as from national courts and equality bodies in European countries, on the wearing of religious symbols in public spaces. The author persuasively argues that bans on the wearing of religious symbols constitutes a breach of an individual's human rights and contravene existing anti-discrimination legislation. Fully updated to take account of recent case law, this second edition has been expanded to consider bans in public spaces more generally, including employment, an area where some of the recent developments have taken place.

1 Key concepts

Introduction

Before law and the bans on the wearing of religious symbols can be discussed, there are a number of key terms and concepts that need to be examined. First, the meaning of the terms ‘religion’ and ‘belief’, which are often used together in human rights instruments and anti-discrimination legislation,¹ will need to be analysed. Second, as this book examines bans on the wearing of religious symbols as a breach of human rights measures, we will discuss the meaning of the fundamental human right to freedom of religion, which includes the right to freedom of thought and conscience, the freedom to change one’s religion or belief, and the freedom, either alone or in community with others and in public or in private, to manifest one’s religion or belief in teaching, practice, worship and observance.² The wearing of religious symbols can be seen as a manifestation of a person’s religion or belief, and bans are thus claimed to be a violation of the right to manifest one’s religion. The difference between the right to freedom of thought, conscience and religion, on the one hand, and the right to manifest one’s religion or belief, on the other, will also be analysed. As we will be concentrating on Europe, Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) and the case law of the European Court of Human Rights (ECtHR) – the court established under the ECHR³ – will be central to this analysis.

Third, there is a need to discuss what is meant by ‘religious discrimination’, as this book also examines bans on the wearing of religious symbols as a breach of anti-discrimination measures. Both direct and indirect religious discrimination will be defined in this chapter. Fourth, the term ‘religious symbols’, and in what way these are distinguishable from other symbols, such as, for example, political symbols, needs to be discussed. Religious symbols as well as political symbols could both play a role within, for example, the workplace and in educational establishments: should an employee, a teacher or pupil be prohibited from wearing a clear sign of affiliation to a (mainstream or extreme) political party, to creationism or to human rights or environmental campaign groups? The first terms to be examined are ‘religion’ and ‘belief’.

1 As in the title of the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; in Directive 2000/78/EC, which prohibits discrimination on the grounds of religion or belief; in Section 4 of the British Equality Act 2010 (EA 2010), where ‘religion or belief’ is mentioned as one of the characteristics protected by the Act.

2 See, for example: Article 18 United Nations’ Universal Declaration of Human Rights 1948; Article 18 International Covenant on Civil and Political Rights 1966; Article 9 ECHR.

3 The ECHR established a European Commission of Human Rights (ECnHR) as well as the ECtHR. Protocol 11 to the ECHR, which came into force in 1998, abolished the Commission, enlarged the ECtHR and allowed individuals to take cases directly to the ECtHR. The case law from the Commission from before 1998 will be referred to where relevant.

Religion and belief

Legal provisions

‘Religion or belief’ is one of the protected characteristics under the British Equality Act 2010 (EA 2010), and this Act gives the following definitions in Section 10:

1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

The Explanatory Notes to Section 10 state that this is:

a broad definition in line with the freedom of thought, conscience and religion guaranteed by Article 9 of the European Convention on Human Rights. The main limitation for the purposes of Article 9 is that the religion must have a clear structure and belief system. Denominations or sects within a religion can be considered to be a religion or belief, such as Protestants and Catholics within Christianity.⁴

The Explanatory Notes refer to the ECHR. The case law of the ECtHR under the ECHR on the definition of religion and belief will be analysed later in this section. The Explanatory Notes to the EA 2010 also describe the criteria for determining what a ‘philosophical belief’ is:

it must be genuinely held; be a belief and not an opinion or viewpoint based on the present state of information available; be a belief as to a weighty and substantial aspect of human life and behaviour; attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.⁵

4 Equality Act 2010, Explanatory Notes, note 51: www.legislation.gov.uk/ukpga/2010/15/notes/contents.

5 Ibid. note 52.

As examples of religion, the Explanatory Notes mention: the Baha’i faith, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism, Rastafarianism, Sikhism and Zoroastrianism, while humanism and atheism are mentioned as examples of beliefs. The notes point out that adherence to a particular football team is not a philosophical belief.⁶

In Britain, freedom of thought, conscience and religion was not protected in any statute until the Human Rights Act 1998 (HRA 1998), which incorporated the ECHR into domestic law. Religious discrimination was not expressly prohibited until that time either. When the HRA 1998 came into force, a complaint of religion or belief discrimination could be made under Article 14 ECHR – the general prohibition of discrimination in the enjoyment of the rights and freedoms in the Convention – in conjunction with Article 9 or another Convention right, but there was no other provision against this form of discrimination. The Employment Equality (Religion or Belief) Regulations 2003 (EE (RB) Regs 2003) implemented EU Directive 2000/78/EC and prohibited discrimination on the ground of religion and belief in the employment area. The protection was extended to other than employment areas by the Equality Act 2006 (EA 2006). The EA 2010 replaced both pieces of legislation when it came into force in October 2010.

Regulation 2(1) of the original EE (RB) Regs 2003 defined ‘religion or belief’ as ‘any religion, religious belief or similar philosophical belief’, and the Government Guidance in the Explanatory Notes, which are in some places similar to the Notes on the EA 2010, but more extensive, explained that:

The reference to ‘similar philosophical belief’ does not include any philosophical or political belief unless it is similar to a religious belief. That does not mean that a belief must include faith in a God/Gods or worship of God/Gods to be ‘similar’ to a religious belief. It means that the belief in question should be a profound belief affecting a person’s way of life or perception of the world. . . . As with a religious belief, a similar philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society, and not incompatible with human dignity.⁷

6 Ibid. note 53.

7 Explanation of the Provisions of the Employment Equality (Sexual Orientation) Re...

Table of contents

• Cover Page
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Table of Cases
• Acknowledgements
• Introduction
• 1 Key concepts
• 2 Arguments for and Against Bans on the Wearing of Religious Symbols
• 3 Bans on Religious Symbols as a Breach of the Human Right to Freedom of Religion
• 4 Bans on Religious Symbols as a Breach of Anti-Discrimination Laws
• 5 Justification
• 6 Reasonable Accommodation and Equality Duties
• 7 Conclusion
• Bibliography
• Index