What not to Wear: Religious Rights, the European Court, and the Margin of Appreciation

Lewis, Tom

doi:10.1093/iclq/lei169

Cited by 52 publications

(9 citation statements)

References 38 publications

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“…In the Lautsi case, the judge reminded that in the majority of European countries religious signs exposed on the walls of classrooms, such as a crucifix, were subject to strict regulations and that, when European supreme courts had been asked to rule on this issue, they had always positioned themselves in favor of state neutrality towards beliefs. For a detail analysis of the margin of appreciation in the Sahin case, see Vakulenko (2007) and Lewis (2007). 8.…”

Section: Resultsmentioning

confidence: 99%

“…9. For a detail analysis of Sahin case, see, for example, Gibson (2007), Lewis (2007), Marshall (2006), McGoldrick (2006), and Ssenyonjo (2007). 10.…”

Section: Resultsmentioning

confidence: 99%

“…Moreover, inasmuch as a number of scholars have analyzed the rulings of the ECHR on religious symbols (in particular rulings concerning headscarf bans in Turkey and Switzerland;see, e.g., McGoldrick 2006;Marshall 2006Marshall , 2008Gibson 2007;Gökariksel and Mitchell 2005;Lewis 2007;Vakulenko 2007;Danchin 2011), those that have compared the rulings of UN bodies and the ECHR on this topic are not numerous. The few who have done so, have focused on revealing the differences in opinions between those bodies with respect to headscarf bans (McGoldrick 2006;Ssenyonjo 2007) but have not looked at how those rulings are the result of two different types of secularisms and are therefore exercising dissimilar authority on the religious.…”

Section: Theorymentioning

confidence: 99%

“…Religious plurality is undermined since religious beliefs and subjectivities of religious minorities or non-Christian groups are being regulated and reshaped in order to fit the shape and form religion ought to have in our modern times (e.g., Danchin 2011). This process is clearly illustrated in the Sahin case where, as pointed by Lewis (2007), judges have underlined that, even if the wearing of the headscarf is banned, practicing Muslims still remain able to "manifest their religion with habitual forms of Muslims observance" (Sahin v. Turkey 2005: para. 18).…”

Section: : Para 2 Emphasis Added and Author's Translation [Origmentioning

confidence: 99%

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Transnational Understandings of Secularisms and Their Impact on the Right to Religious Freedom—Exploring Religious Symbols Cases at the UN and ECHR

Barras

2012

Journal of Human Rights

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Drawing on a theoretical approach that understands secularism to be an authoritative discourse that shapes the boundaries of the religiously acceptable in a modern nationstate, this article explores the usage by international human rights bodies (United Nations bodies and European Court of Human Rights) of secularism in religious freedom cases. More specifically, the article investigates how, while both those bodies ground their rulings and opinions on religious symbols in secularism, they propose alternative readings of the term, which in turn affects the boundaries of the right to religious freedom and therefore the politics enabled by this right. This finding has theoretical implications, as it does not only highlight how secularism and religious freedom are deeply interrelated but also points to the fact that the meaning of the "universal" right to religious freedom is unstable and a source of debate between transnational human rights spaces. Moreover, this has repercussions at the praxis level, where the hegemony of secularism accompanied by a shift in meaning affects both the discourse and strategies of plaintiffs.

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Section: Resultsmentioning

confidence: 99%

“…9. For a detail analysis of Sahin case, see, for example, Gibson (2007), Lewis (2007), Marshall (2006), McGoldrick (2006), and Ssenyonjo (2007). 10.…”

Section: Resultsmentioning

confidence: 99%

Section: Theorymentioning

confidence: 99%

Section: : Para 2 Emphasis Added and Author's Translation [Origmentioning

confidence: 99%

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Transnational Understandings of Secularisms and Their Impact on the Right to Religious Freedom—Exploring Religious Symbols Cases at the UN and ECHR

Barras

2012

Journal of Human Rights

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“…It is the Court's task to redress procedural justice by considering the voice of all parties and by genuinely weighing the arguments against each other as prescribed by the second paragraph of article 9 ECHR. 127 Procedural fairness requires moreover that this balancing exercise is done in a transparent manner, clarifying the weight given to each argument, as well as the underlying reason. Unfortunately the Court's adjudication in article 9 cases has often lacked clarity and consistency, in contrast with its case law under other provisions, such as freedom of expression.…”

Section: B) Recognizing the Weight Of The Applicant's Rightmentioning

confidence: 99%

Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe

Chaib¹,

Brems²

2013

J Muslims Eur

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The French and Belgian bans on face veils in public places have been subjected to strong substantive human rights critiques. This article takes a complementary approach, examining the bans from the perspective of procedural fairness. Indeed, the French and Belgian bans are extreme examples of legislative processes taking place above the heads of the people concerned, neglecting the ban's possible human rights impact. After exploring what the social psychology notion of procedural fairness entails for the judiciary and the legislator, especially in a multicultural context, this article details procedural fairness shortcomings with respect to the face veil ban in France and Belgium. Subsequently, the article sets out how the European Court of Human Rights might compensate for these shortcomings.Key words: Face veil bans, Human Rights, Procedural Justice, Freedom of religion, European Court of Human Rights.In the name of women's rights, public security and social cohesion, two European countries, France and Belgium, have enacted laws prohibiting face covering in the public space, generally known as 'burqa bans'. 2 These bans have been strongly criticized as violations of religious freedom and Published in Journal of Muslims in Europe 2 (2013) 1-262 discriminations on grounds of religion and sex. 3 Complementing such substantive human rights critiques, this paper takes a different approach, examining the bans from the perspective of procedural fairness. Indeed, the French and Belgian bans are extreme examples of legislative processes taking place above the heads of the people concerned. Not only was the voice of the women concerned missing in the debates, even more striking was the fact that a discussion of the ban's human rights impact was nearly non-existent.In a first section, we will refer to social psychology research to explain what procedural fairness encompasses and what it entails for both the judiciary and the legislator, particularly in a multicultural context. Next, we will demonstrate how the French and Belgian authorities have neglected procedural fairness at the domestic level. In the third section, we will argue how the European Court of Human Rights, if confronted with the subject matter, might restore procedural fairness. Procedural Fairness and Minority JusticeProcedural fairness or procedural justice refers to the fairness of the procedures by which a decision is taken or by which an outcome is arrived at in a case. Social psychology research has shown that in their fairness assessment of authorities and the law, people tend to accord more importance to procedural fairness than to distributive justice. 4 In other words, the way people are treated by judges and authorities is more relevant to them than the particular outcome in their case or the policy Published in Journal of Muslims in Europe 2 (2013) 1-264 Although it follows from Tyler's research that procedural fairness is equally important to majority populations as to minorities 13, there are several reasons to believe that procedural f...

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Islamophobia as a Key Contextual Factor in Human Rights Adjudication

Trispiotis

2019

Countering Islamophobia in Europe

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There is no systematic coverage of the racialisation of the planet. This series is the first attempt to present a comprehensive mapping of global racisms, providing a way in which to understand global racialisation and acknowledge the multiple generations of different racial logics across regimes and regions. Unique in its intellectual agenda and innovative in producing a new empirically-based theoretical framework for understanding this glocalised phenomenon, Mapping Global Racisms considers racism in many underexplored regions such as Russia, Arab racisms in North African and Middle Eastern contexts, and racism in Pacific countries such as Japan, Hawaii, Fiji and Samoa.

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What not to Wear: Religious Rights, the European Court, and the Margin of Appreciation

Cited by 52 publications

References 38 publications

Transnational Understandings of Secularisms and Their Impact on the Right to Religious Freedom—Exploring Religious Symbols Cases at the UN and ECHR

Transnational Understandings of Secularisms and Their Impact on the Right to Religious Freedom—Exploring Religious Symbols Cases at the UN and ECHR

Doing Minority Justice Through Procedural Fairness: Face Veil Bans in Europe

Islamophobia as a Key Contextual Factor in Human Rights Adjudication

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