International Human Rights Law Week 7: FREEDOM OF RELIgion

Agenda for Today Article 9 EHCR: Freedom of Religion Case Law Exercise: Religious Symbols and Clothing Concluding Discussion

Article 9 ECHR: Freedom of Religion

Article 9 ECHR: Freedom of Thought, Conscience and Religion Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. On January 20, 2012 the United States Department of Health and Human Services (HHS), under Secretary Kathleen Sebelius, unveiled a new policy which has come to be known at the “HHS Mandate.” The new Mandate would requiring nearly all private health insurance plans to include coverage for all FDA-approved prescription contraceptive drugs and devices, surgical sterilizations and abortion-inducing drugs—drugs that interfere with implantation in the womb and therefore destroy the life of a human being in the earliest stage of development. Churches and houses of worship are currently exempt from the mandate, but this is not the case for religious non-profit institutions. If groups like the Little Sisters do not want to provide contraception, sterilization, and abortion-inducing drugs to their employees, the Obama Administration offers an “accommodation” under which institutions are required to fill out a form noting their objection, which then shifts the coverage obligation to their insurance companies. Supporters of religious freedom have rightly characterized this so-called accommodation as a “sham” because it still requires religious non-profits like the Little Sisters of the Poor to cooperate in a process that results in coverage of contraception for their employee health plans. As the Little Sisters’ brief to the Supreme Court said: It is all well and good for HHS to think it has threaded the needle and found a way for re­li­gious non­profits to com­ply with the man­date without vi­ol­at­ing their re­li­gious be­liefs, but ul­ti­mately it is for the re­li­gious ad­her­ent to de­term­ine how much fa­cil­it­a­tion or com­pli­city is too much. Oral Arguments Supreme Court March 2016

Article 9: Scope of Freedom of Religion - applies to all personal, political, philosophical, moral and religious convictions - personal convictions must have attained a level of cogency, seriousness, cohesion and importance; must be possible to identify formal content - Convention institutions do not have competence to define religion, but must be interpreted non- restrictively Equal protection for all religious groups and their members. Religionsgemeinschaft der Zeugen Jehovas and Others v Austria (2008) - includes freedom to hold or not hold religious beliefs Includes pacifism since it can be regarded as a “belief” Jehovas Witness case – violation of Article 9 bc of 10 year waiting period on new religious communities before they can acquire the status of a religious society Religionsgesellschaft offering a number of substantive privileges such as the right to teach religion in State schools.

Religious Freedom as Pillar of Democracy - State may need to restrict freedom in multicultural democratic societies to reconcile interests of different religious groups - In exercising this function, State has a duty to remain neutral and impartial. - Focus is preservation of pluralism and proper functioning of democracy. Metropolitan Church of Bessarabia and Others and Moldova - Wide margin of appreciation in relations between religious communities and the State. Cha’are Shalom Ve Tsedek v France In democratic societies, multiple religions coexist within the same population, it may be necessary to place restrictions on freedom to reconcile the interests of differing groups and ensure beliefs are respected.

Internal Aspects of Freedom of Religion Internal aspects of freedom of religion are absolute – deeply held ideas and convictions cannot in themselves prejudice public order and therefore cannot be restricted by the state. Includes freedom to manifest one’s religion either alone or in community with others … in worship, teaching, practice and observance, and includes the right to try to convince one’s neighbour Kokkinakis v Greece (1993) But this does not allow general laws to be broken. Pichon and Sajous v France (2001) The crime of proselytism, according to Greek law, meant in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety he court held that the measure complained of was prescribed by law and was in pursuit of a legitimate aim under Article 9 of the European Convention on Human Rights, namely the protection of the rights and freedoms of others.[4] However, it has found a violation of Article 9 (by six votes to three), reasoning that the interference with Kokkinakis' freedom of religion was not necessary in a democratic society since: a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others. Scrutiny of section 4 of Law no. 1363/1938 shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and in so far as they are designed only to punish improper proselytism, which the Court does not have to define in the abstract in the present case. The Court notes, however, that in their reasoning the Greek courts established the applicant’s liability by merely reproducing the wording of section 4 and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means. None of the facts they set out warrants that finding. That being so, it has not been shown that the applicant’s conviction was justified in the circumstances of the case by a pressing social need. The contested measure therefore does not appear to have been proportionate to the legitimate aim pursued.[5] Two french pharmacists refused to dispense oral contraceptives and convicted for that failure. Inadmissiable because refusal to sell contrahe Court emphasized that the pharmacists could not give priority to their personal beliefs over their professional obligations “as long as the sale of contraceptive is legal and occurs on medical prescription nowhere other than in a pharmacy

Internal Aspects of Freedom of Religion Collective Aspects of Freedom of Religion means: - state cannot oblige a religious community to admit new members or exclude existing ones - state does not guarantee a right of dissent within a religious body - religious communities have some autonomy in organisation and employment Obst v Germany (2010) – European Director of PR for the Mormon Church Schuth v Germany (2010) – Organist and choirmaster at a Catholic Church Two french pharmacists refused to dispense oral contraceptives and convicted for that failure. Inadmissiable because refusal to sell contrahe Court emphasized that the pharmacists could not give priority to their personal beliefs over their professional obligations “as long as the sale of contraceptive is legal and occurs on medical prescription nowhere other than in a pharmacy

Article 9 ECHR: Freedom of Thought, Conscience and Religion Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

External Aspects of Freedom of Religion Otto-Preminger-Institut v Austria (1994) Institute banned from showing the film Liebeskonzil Austrian penal code – behaviour likely to arouse justified indignation, disparages or insults a person who…is an object of veneration of a church or religious community ECtHR: no violation as law was to protect right of citizens not to feel insulted in their religious feelings by public expression of the views of others

Case Law Exercise: Religious Symbols and Clothing

Case Law Exercise Dahlab v. Switzerland, European Court of Human Rights, (Application no. 42393/98) http://hudoc.echr.coe.int/eng?i=001-22643 Lautsi v. Italy, European Court of Human Rights, Grand Chamber, (Application no. 30814/06) http://hudoc.echr.coe.int/eng?i=001-104040 Singh v. France, Human Rights Committee, Communication No. 1876/2000, Sept. 2011 http://www.ccprcentre.org/doc/OP1/Decisions/102/1876%202009%20France_en.pdf S.A.S. v. France, European Court of Human Rights, (Application no. 43835/11), Judgment, 1 July 2014 http://hudoc.echr.coe.int/eng?i=001-145466

Case Law Exercise Dahlab v. Switzerland (2001) – No violation primary school teacher prohibited wearing headscarf -> representative of the State; young children are more easily influenced Lautsi v. Italy (2011) - No violation crucifixes on wall of state school -> margin of appreciation, display of crucifix not the same as indoctrination, parent retains right to enlighten and advise child Singh v. France (2011) – Violation requiring practicing Sikh to appear bare headed in residence permit photograph – no demonstration that turban interferes with public safety and order. (but see violation found in Singh v France (2008) ECHR case) S.A.S. v. France (2014) - No violation in prohibition on wearing niqab -> respect for conditions of “living together” legitimate aim and state has wide “margin of appreciation” (Articles 8, 9, 14)

Ban on the Veil in Europe France – April 2011 ban on wearing full-face Islamic veil in public places Belgium – July 2011 ban on any clothing that obscures the identity of the wearer in places like parks and on the street Spain – Barcelona ban on full-face Islamic veil in municipal offices, public markets and libraries Britain – no ban, but schools can decide own dress code

R (Begum) v Denbigh High School [2006] UKHL 15 Shabina Begum arrived at Denbigh High School wearing jilbab which did not comply with school dress code. She would have been permitted to wear salwar kameez. HL held no interference as: (a) she had chosen a school which did not permit wearing of jilbab and (b) not impossible to continue to wear it elsewhere – e.g. she could practise her religion without undue hardship or in convenience

Madani Girl’s School (Independent East London)

Ban on the Veil in Europe France – April 2011 ban on wearing full-face Islamic veil in public places Belgium – July 2011 ban on any clothing that obscures the identity of the wearer in places like parks and on the street Spain – Barcelona ban on full-face Islamic veil in municipal offices, public markets and libraries Britain – no ban, but schools can decide own dress code Do you think Britain will take steps in future to ban the veil in public places? Why or why not?

Agenda for Today Article 9 EHCR: Freedom of Religion Case Law Exercise: Religious Symbols and Clothing Concluding Discussion

Thank you! Any Questions?