Two concepts of religious freedom in the European Court of Human Rights

Abstract

In this article, Bhuta revisits the jurisprudence of the European Court of Human Rights’ interpretation of religious freedom in the headscarf cases. He considers how recent historical work on the history of religious freedom and freedom of conscience opens up a new interpretation of these decisions. The court has been criticized as adopting a militantly secular approach to the presence of Islamic religious symbols in the public sphere, one seemingly inconsistent with its decision in the Lautsi case permitting the display of crucifixes in Italian classrooms. Bhuta’s essay argues that the inconsistency reflects not, or not only, a cultural hostility toward Islamic religious symbols, nor an unforgiving secularism. Rather, the cases turn on an understanding of certain religious symbols as threats to public order and harbingers of sectarian strife. This understanding evokes two different historical understandings of the concept of freedom of conscience: an early modern preoccupation with religious plurality as threatening public order, and a postwar understanding of religious freedom as the protection of secularized Christian values against the totalitarian propensities of modern politics.