By: Richard Defeis
Europe, is becoming increasingly secular. While religious
belief remains sacrosanct, religious liberty, or the freedom to
express religious belief, is devalued. The failure of the
European Court of Human Rights (“ECHR”) to more sensitively address
infringement of religious liberty is symptomatic of this increasing
secularization of Europe. For example, in reviewing claims of
infringement of religious liberty under Article 9 of the European
Convention on Human Rights and Fundamental Freedoms (“ECHRFF”), the
Court has generally allowed each state a wide margin of
appreciation when issues of religion are involved and the role of
national decision-making bodies are given special importance.
Its Grand Chamber decision Leyla Şahin v. Turkey, the ECHR
found the principle of secularism, as reflected in the state
restriction on the wearing of the headscarf by a university medical
student, to be consistent with values underpinning the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (“ECPHRFF”), in harmony with the rule of law and respect
for human rights, and may be necessary to protect a democratic
system.
In his book Can God and Caesar Coexist?, Fr. Robert F.
Drinan is critical of decisions of the ECHR for its lack of
deference to the free exercise claims of petitioners to the
Court. As a partial answer, he questions whether an
international mechanism or forum could better resolve claims of
violations of religious liberty. However, it is questionable
whether such a mechanism is the optimum method to resolve disputes
concerning religious liberty in Europe. The principle of
subsidiarity, first enunciated in papal encyclicals reflects
national cultures and values and is counter to hierarchical
decision-making. While the Court has repeatedly asserted that
it is the ultimate arbiter of guarantees in the ECHRFF, perhaps it
is this flexibility that has made the Court the most effective
Court for the protection of human rights.
This article examines the three systems of church-state
relations in Europe; that of an established religion, a cooperative
relationship between Church and State, and the secular state.
It then examines whether or not any of these models are more or
less favorable to religious freedom in practice in Europe in two
contexts: the regulation of cults or sects and the prohibition on
public displays of religious symbols. The article questions
whether an international tribunal other than the ECHR could be more
effective in resolving infringement of religious liberty issues and
concludes that an international forum for claims of infringement of
religious liberty would run counter to deeply established
traditions in Europe such as the principle of subsidiarity.