“Taking Religion Seriously”? Human Rights andHijabin Europe— Some Problems of Adjudication

Abstract

It is a view widely held amongst psychologists that human beings have a basic need to create a positive social identity for themselves, either as individuals or as members of a group. In this regard, choice of dress is likely to be particularly important. A person's clothes can reveal much about their identity, in relation to their gender, class, sexual orientation, and religious beliefs. Yet what an individual wears can also attract great controversy, as evidenced by the fact that, in Europe of late, there have been few issues more controversial than that of religious dress.Today in towns and cities across Europe a significant proportion of Muslims—in particular Muslim females—have eschewed conventional western clothes in favor of garments (such as veils and headscarves) traditionally associated with Islam. With a new generation of “European Muslims” keen to cultivate a distinct identity for themselves as members of the continent's second largest religion, Islamic dress often has an “emblematic status” as a “powerful and overdetermined marker of difference.” Yet the right to wear religious dress varies significantly in Europe. In some countries there are clear restrictions on what can (or cannot) be worn in public (e.g., France and Turkey), whereas in other parts of the continent (e.g., the U.K.) young people are relatively free to wear the religious dress of their choice. Mindful of this state of affairs, the European Court of Human Rights has chosen to tread warily, letting governments retain considerable discretion in the field of religious dress. Consequently, states enjoy a wide “margin of appreciation” when determining whether their curbs on religious symbols or related garments are compatible with Article 9 of the European Convention on Human Rights (ECHR).

The veil you know: Individual and societal-level explanations for wearing the hijab in comparative perspective

“…Countries which placed legal restrictions on women's ability to wear the hijab, as was true in the past of Muslim Turkey and Tunisia and non-Muslim France, arguably heightened the sensitivity to interpreting the hijab as a political symbol counter to modern secular values of individuality (Carol et al, 2015;Ghumkhor, 2012;Croucher, 2008;Clark, 2007). Other scholars point out the case against regulating freedom of expression through banning the hijab due to inevitable legal inconsistencies of what might be interpreted as legal oppression (Taylor et al, 2014;Allen, 2010;Cumper and Lewis, 2008). It is important for us to note that studies of hijab in non-Muslim and Western countries have been conducted in countries with a significant variation in religiosity levels.…”

Bans on the Wearing of Burqas, Niqabs and Hijabs, Religious Freedom and the Secular Nature of the State

“…Moreover, 'there was no evidence of the applicant having a political agenda, and even the Swiss Federal Court accepted that she only wished to wear the headscarf "in order to obey a religious precept"'. 63 Sharpston suggests that Dahlab should not be seen as authority for accepting that a ban is justified because the wearing of the headscarf in itself is a form of proselytising, mainly because: the events in Dahlab happened in the early 1990s; the ECHR is a living instrument and moves with the times; and, the ECtHR has already moved on from its decision in Dahlab. 64 Support for this can also be found in Ahmet Arslan v Turkey, where the ECtHR considered, in relation to the allegation of the Turkish government of possible proselytising on the parts of the applicants, that there was no evidence to show that they had sought to exert inappropriate pressure on passers-by in public streets and squares in order to promote their religious beliefs.…”

‘Burqa Avenger’: Law and Religious Practices in Secular Space

“…20). The distinction between 'belief' and 'manifestation' made by article 9 has received little attention from jurists as it is taken as necessary in the legal reasoning (Cumper and Lewis 2008).…”