Two Concepts of Religious Freedom in the European Court of Human Rights

Abstract

This paper considers the way in which recent historical work on the history of freedom of religion and freedom of conscience opens up a new interpretation of the decisions of the European Court of Human Rights in the headscarf cases. These decisions have been widely criticized as adopting a militantly secularist approach to the presence of Islamic religious symbols in the public sphere, an approach that seems inconsistent or even overtly discriminatory in light of the court’s recent decision in Lautsi that the compulsory display of crucifixes in the classroom did not breach Italy’s convention obligations. I argue that the headscarf cases turn less on the balance between state neutrality and religious belief, than on an understanding of certain religious symbols as a threat to public order and as harbingers of sectarian strife which undermine democracy.