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  • Print publication year: 2013
  • Online publication date: June 2014

2 - The European Court of Human Rights and religious neutrality


Introduction: the meanings of religious neutrality

It is often said that the state should be neutral in matters of religion, but neutrality is a problematic concept, capable of several different meanings. Despite that, the term is on the whole less problematic than ‘secular’. Several authors have noticed the differing senses of ‘secular’ when used in relation to the state (Taylor, 2009): from its original meaning denoting a division in jurisdiction between political and religious authorities (Benson, 2000) to official indifference (Rivers, 2010) or antipathy towards religion. Even in states such as France with constitutional provisions on secularity there can be considerable debate as to meaning (Laborde, 2008). Debates using the term ‘secular state’ are now so prone to terminological confusion that for the present purpose, in discussing the jurisprudence of the European Court of Human Rights (ECtHR), it is more helpful to focus on different aspects of neutrality.

Of these the least controversial perhaps is the duty of state officials to behave impartially, that is without judging between the merits of different religions and in a non-discriminatory way. Even this does not prevent controversy over whether there is scope for recognizing the religious beliefs of officials over matters of conscience in the workplace or whether to do so compromises the state’s position, as in Ladele v. London Borough of Islington (Malik, present volume). Beyond impartiality, however, conceptual controversy begins and at least four further variants can be identified, with different implications for both individuals and religious organizations. One strand stresses neutrality as the equi-distance of the state from all religions so they are treated even-handedly and none is favoured. This is often taken to entail separation of religion and state, although strictly it does not entail that. A second strand focuses on strict equality of treatment of religions by the state.

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Ahdar, R. and Leigh, I. 2004. ‘Is Establishment Consistent with Religious Freedom?’, McGill Law Journal, 49, 3, 635–81.
Benson, I. 2013. Religious Freedom in the Liberal State,2nd edn, Oxford University Press.
Bader, V. 2010. ‘Constitutionalizing Secularism, Alternative Secularisms or Liberal-Democratic Constitutionalism? A Critical Reading of Some Turkish, ECtHR and Indian Supreme Court Cases on “Secularism”’, Utrecht Law Review, 6, 3, 8–35.
Benson, I. 2000. ‘Notes Towards a (re)Definition of the “Secular”’, UBC Law Review, 33, 519–49.
Benson, I. 2004. ‘Considering Secularism’, in Farrow, D., ed., Recognizing Religion in a Secular Society. Montreal: McGill-Queen’s University Press, 83–98.
Council of Europe. 2005. Recommendation 1720 (2005) on Religion and Education, text adopted by the Parliamentary Assembly of the Council of Europe on 4 October 2005.
Council of Europe 2007. Recommendation 1804 (2007), text adopted by the Parliamentary Assembly of the Council of Europe on 29 June 2007.
Dworkin, R. 1978. ‘Liberalism’, in Hampshire, S., ed., Public and Private Morality. Cambridge University Press, 113–43.
Evans, C. and Thomas, A. 2006. ‘Church–State Relations in the European Court of Human Rights’, Brigham Young University Law Review, 3, 699–726.
Laborde, C. 2008. Critical Republicanism: The Hijab Controversy and Political Philosophy. Oxford University Press.
Leigh, I. 2012. ‘Objective, Critical and Pluralistic? Religious Education and Human Rights in the European Public Sphere’, in Ungureanu, C. and Zucca, L., eds., Law, State and Religion in the New Europe: Debates and Dilemmas. Cambridge University Press, 192–214.
Leigh, I. and Ahdar, R. 2012. ‘Post-Secularism and the European Court of Human Rights (or How God Never Really Went Away)’, Modern Law Review, 75, 6, 1064–98.
McConnell, M. W. 1998. ‘Equal Treatment and Religious Discrimination’, in Monsma, S. and Soper, J., eds., Equal Treatment of Religion in Pluralist Society. Grand Rapids, MI: Eerdmans, 30–54.
McGoldrick, D. 2011. ‘Religion in the European Public Square and in European Public Life – Crucifixes in the Classroom?’, Human Rights Law Review, 11, 451–502.
Madgeley, J. 2009. ‘Religion and State’, in Haynes, J., ed., The Routledge Handbook of Religion and Politics. Abingdon: Routledge, 174–91.
Mancini, S. and Rosenfeld, M. 2012. ‘Unveiling the Limits of Tolerance: Comparing the Treatment of Majority and Minority Religious Symbols in the Public Sphere’, in Ungureanu, C. and Zucca, L., eds., Law, State and Religion in the New Europe: Debates and Dilemmas. Cambridge University Press, 160–91.
OSCE. 2007. Office of Democratic Institutions and Human Rights, Toledo Guiding Principles on Teaching about Religion and Beliefs in Public Schools: Warsaw, 2007, (accessed 18 July 2012).
Rawls, J. 1999. A Theory of Justice. Oxford University Press.
Raz, J. 1986. The Morality of Freedom. Oxford University Press.
Rivers, J. 2010. The Law of Organized Religions: Between Establishment and Secularism. Oxford University Press.
Taylor, C. 2009. ‘Foreword: What is Secularism?’, in Levey, G. B. and Modood, T., eds., Secularism, Religion and Multicultural Citizenship. Cambridge University Press, xi–xxii.
Temperman, J. 2010a. ‘State Neutrality in Public School Education: An Analysis of the Interplay between the Neutrality Principle, the Right to Adequate Education, Children’s Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers’, Human Rights Quarterly, 32, 865–97.
Temperman, J. 2010b. State–Religion Relationships and Human Rights Law: Towards a Right to Religiously Neutral Governance. Leiden: Martinus Nijhoff.
97 members of the Gldani Congregation of Jehovah’s Witnesses and 4 others v. Georgia, Appl. No. 71156/01 (3 May 2007).
Administrative Court of Veneto, Appl. No. 1110 (17 March 2005).
Alexandridis v. Greece, Appl. No. 19516/06 (21 February 2008).
Alujer Fernandez and Caballero Garcia v. Spain, Appl. No. 53072/99 (14 June 2001).
Appel-Irrgang and others v. Germany, Appl. No. 45216/07 (20 October 2009).
Belgian Linguistics Case, 1 EHRR 252, 284 (1968).
The Canea Catholic Church v. Greece, Appl. No. 25528/94 (16 December 1997).
Choudhury v. UK, Appl. No. 17439/90 (1991) 12 HRLJ 172.
CJ, JJ and EJ v. Poland, Appl. No. 23380/94 (Commission decision of 16 January 1996, DR 84).
Dahlab v. Switzerland, Appl. No. 42393/98 (15 February 2001).
Darby v. Sweden, 13 EHRR 774 (1991).
Dogru v. France, Appl. No. 27058/05 (4 December 2008).
Folgerø and others v. Norway, Appl. No. 15472/02 (29 June 2007).
Grzelak v. Poland, Appl. No. 7710/02 (15 June 2010).
Hasan and Chaush v. Bulgaria, 34 EHRR 55 (2000).
Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and others v. Bulgaria, Appl. Nos. 412/03 and 35677/04 (22 January 2009).
Iglesia Bautista ‘El Salvador’ and Ortega Moratilla v. Spain, 72 D&R 256 (1992).
Kjeldsen Busk Madsen and Pedersen v. Denmark, 1 EHRR 737 (7 December 1976).
Kokkinakis v. Greece, 17 EHRR 397 (1993).
Kuznetsov and others v. Russia, Appl. No. 184/02 (11 January 2007).
Ladele v. London Borough of Islington, EWCA Civ 1357 (2009).
Lautsi v. Italy, Appl. No. 30814/06, Grand Chamber (18 March 2011).
Leela Förderkreis EV and others v. Germany, Appl. No. 58911/00 (6 November 2008).
Leirvåg v. Norway, UN Human Rights Committee, Communication No. 1155/2003 (23 November 2004), (accessed 18 July 2012).
Leyla Şahin v. Turkey, Appl. No. 44774/98, Grand Chamber (10 November 2005).
Manoussakis v. Greece, 23 EHRR 387 (1996).
Metropolitan Church of Bessarabia and others v. Moldova, Appl. No. 45701/99 (13 December 2001).
Mirolubovs v. Latvia, Appl. No. 798/05 (15 September 2009).
Murphy v. Ireland, Appl. No. 44179/98 (10 July 2003).
Otto-Preminger Institute v. Austria, 19 EHRR 34 (1994).
Refah Partisi v. Turkey, 37 EHRR 1 (2003).
Serif v. Greece, 31 EHRR 20 (2001).
Spampinato v. Italy, Appl. No. 23123/04 (29 April 2010).
Wingrove v. UK, 24 EHRR 1 (1997).
Zengin v. Turkey, Appl. No. 1448/04 (9 October 2007).