Singing from the same hymn sheet? : what the differences between the Strasbourg and Luxembourg courts tell us about religious freedom, non-discrimination, and the secular state

Abstract

This article considers how the approach of the European Union (EU) and its Court of Justice to religion maps on to that of the European Court of Human Rights (ECtHR). It will show that there is a high degree of convergence but that the broader remit of the Luxembourg Court means that its approach to religion will not be restricted to following that of the ECtHR. In particular, there is scope for significant differences between the two courts on the question of a 'ministerial exemption' in relation to the protection of the rights of employees of religious bodies and the question of indirect discrimination on grounds of religion or belief. These differences highlight the degree to which restricting indirect discrimination on religious grounds draws on ideas of collective disadvantage which are distinct from (and somewhat in tension with) the right to freedom of religion and belief as interpreted by the ECtHR which has seen religious freedom as primarily an individual right that applies equally to all forms of belief. The article closes by assessing what these potential differences tell us about the nature of the EU legal system, and the limits of role of rights in providing the basis for defining the relationship between religion, the state, and the law more generally.