2.1 Secularization Theory

The academic scholarship on religion in the 1960s and 1970s, often rooted in the conviction that modernity coincides with the decline of religion, tended to describe Europe as progressing toward secularization.¹⁰ However, while there is an empirical indication that religion is losing importance in various areas of public life, religion in Europe is not undergoing an uncritical decline.¹¹ Hence, some people continue to hold religious or spiritual beliefs even without being affiliated with a religious institution or belong to congregations even without a strong belief in god.¹² The critical work of José Casanova posits that secularization happens differently in various places of the world, and it needs to be contextualized not as an inevitable disappearance of religion but rather as a multifaced phenomenon that exists in various declinations.¹³

Within the European case, secularization theory also needs to take into account migration and religious change. The decline of certain forms of religion goes together with a greater pluralism, which made religion gain increasing public attention, especially when connected to violence and terror or when regarding the presence of religion in the public space—including religious garments and symbols.¹⁴ In this respect, Tobias Müller claims that scholars have to address the socio-political implications of secularization and the growth of religious minorities assuming a post-colonial and gender perspective.¹⁵ Following this line of reasoning, Nella van den Brandt problematizes the notion that women’s emancipation comes from secular values and shows how a decolonial feminist approach may shed light on women’s agency within religious traditions.¹⁶ This is a valid point for this article, which focuses on court cases that mostly regard minority religions, specifically Islam, and whose majority of applicants are women. As we will explain in the method section, a post-colonial and gender approach on secularization helps contextualize ECtHR discourses about minority religions and women’s agency.

2.2 Secularism as a Political Project: ‘Othering’ Islam

Secularization theories in academia coexist with the political project of secularism, which entails specific ideologies and policies. Secularism is often connected to modern nation-states as a constructed hegemonic set of values and identity imaginaries. As Talal Asad writes, European identity tends to be defined also in religious terms by excluding those that are perceived as ‘non-European’ and incompatible with the secularist project: religious minorities and, more specifically, Muslims.¹⁷ For instance, debates about the accession of Turkey to the European Union have also included reflections on the supposedly ‘European’ character of a predominantly Muslim country.¹⁸ Interestingly, Turkey itself (which is a party to the European Convention on Human Rights and under the jurisdiction of the ECtHR) has introduced a ban (in place until the 2010s) regulating the visibility of Islam through prohibitions of wearing veils in schools and other public buildings, as we will analyze in the next sections.¹⁹ Hence, anxieties about Islam being somehow incompatible with so-called ‘European civilization’ have been expressed through the prohibition of visible—and supposedly ‘non-secular’—religious practices even in predominantly Muslim contexts.

Following the enforcement of secularist principles, several European countries restrict and limit the wearing of religious symbols, especially the headscarf covering hair and neck and the face-covering garments, which sometimes result in cases ruled by the ECtHR.²⁰ In France, the 1989 affaire du foulard (‘headscarf affair’) involved three schoolgirls suspended for not removing their Muslim veils at school.²¹ Subsequently, France approved a 2004 ban on ‘ostentatious’ religious symbols in public schools in the name of laicité, the French principle of separation of church and state.²² Even though academic scholarship on the topic described these bans as targeting Islamic headscarves and holding a gendered dimension,²³ they also affected the wearing of other religious symbols, such as headcovers for Jewish and Sikh men. Bills to ban full-face veils in public places further target Muslim garb, introduced in France, Belgium, the Netherlands, and Denmark between 2010 and 2011.²⁴ Bans against various forms of face and head cover tend to consider Islam as a monolithic entity and Muslim women as oppressed subjects.²⁵ By looking at court cases connected with such bans, Turan Kayaoglu argues that the ECtHR follows secularist principles and overlooks the needs of minority religions, sometimes also reproducing existing stereotypes against Muslims.²⁶

2.3 Secularism as a Political Project: Christian Secularism

The secular project that considers certain religions, notably Islam, as ‘other’ to European values may simultaneously frame Christianity as compatible with secular policies. Even if religious practices may be declining in Europe, certain narratives tend to be characterized by a ‘latent’ form of Christianity.²⁷ For instance, far-right political parties, such as the Italian Lega and the French Rassemblement National, emphasize the alleged ‘Christian roots’ of European civilization to sustain a xenophobic and anti-migration agenda.²⁸ This creates what Annalisa Frisina defines, concerning the Italian context, as the “Catholic model of secularism”: the notion that Catholicism is at the basis of the nation’s identity.²⁹ Drawing from this definition, we use the term ‘Christian secularism’ to indicate the ideology of considering European values as based on the entanglement of Christian and secular values. From this perspective, Christianity occupies a privileged position within the European public sphere not only because it is considered as compatible with secularism (while other religions supposedly are not), but also because it is seen as the cultural and traditional force that shapes secular democracies.

Court cases about religious symbols both reflect and reinforce certain assumptions about religion and secularism in Europe. According to Roberta Medda-Windischer, the ECtHR often applies an “intolerant secularism” or “enlightenment fundamentalism” in prohibiting the wearing of religious symbols.³⁰ However, we would argue that the attitude of the ECtHR is better described through the notion of Christian secularism because it appears to apply “intolerant secularism” or “enlightenment fundamentalism” only to non-Christian symbols. Furthermore, cases involving Islam and Christianity often consider the veil as a threat to European identities and the crucifix as a mark of national traditions.³¹ This tendency is exemplified by the Lautsi v. Italy case regarding the crucifix, which we will analyze in this article. The Italian media and public opinion were divided on whether to consider the crucifix as a religious symbol, a symbol of cultural identity, or a symbol of tolerance and freedom.³² The work of Elayne Oliphant on the Lautsi case precisely describes the decision of the ECtHR to continue displaying the crucifix in Italian public schools as an instance of Christian secularism because some of the actors involved in the case discursively framed the crucifix as also holding secular values.³³

It is important to note that European bans on religious symbols may also involve Jewish garments, but there are no ECtHR judgments about Judaism. Hence, we talk about ‘Christian secularism,’ even though ‘Judeo-Christian secularism’ may be an alternative term to describe the phenomenon. Elizabeth Shakman Hurd employs ‘Judeo-Christian secularism’ to analyze how Judeo-Christian values are the common ground upon which so-called Western democracies lie.³⁴ As opposed to French laicité, Judeo-Christian secularism does not entail a sharp separation between church and state but rather includes certain religious values in the public discourse and describes secularism as something peculiar to ‘the West.’ It is entirely possible that the lack of ECtHR judgments about Judaism is also due to this understanding of Judaism as compatible with secularism. However, since our sample only includes Christian symbols, the article will focus on Christian values.

Europe appears to be increasingly preoccupied with the visibility of non-Christian religions rather than undergoing a linear process of religious decline. This often involves secularist ideologies that implicitly marginalize non-Christian symbols while considering Christianity compatible with state secularism. Through the lens of Christian secularism, and with attention to gender and postcolonial approaches to secularization, we will analyze judgments of the ECtHR to understand how different religions in Europe, and Islam and Christianity in particular, are discursively framed as occupying different positions in the European public sphere.

3.1 The European Court of Human Rights and Religion

The ECtHR applies the European Convention on Human Rights, an international treaty binding the forty-seven member states of the Council of Europe, including the twenty-seven member states of the European Union and twenty other countries. All the decisions discussed in this article were handed down by the ECtHR, which mostly adjudicates cases brought by individuals against the states parties to the European Convention, after such individuals have unsuccessfully sought protection for their human rights before domestic courts. The ECtHR often grants a wide ‘margin of appreciation’ to the states parties, meaning that it allows them ample discretion in the application of human rights in specific cases. The cases are judged by a Chamber of the ECtHR (composed of seven judges). If the applicant or defendant state appeals a chamber judgment, the case is also judged by a Grand Chamber (seventeen judges), and if a case raises a particularly serious question, it is ruled directly by a Grand Chamber. In our sample, the case S.A.S. falls in the latter category, while the cases Lautsi and Leyla Şahin fall in the former category, and, therefore, we analyzed both the Chamber and the Grand Chamber decisions (Table 1). The judges have different nationalities, and the composition of the court is never the same in different cases (except for the cases ruled on the same day, as shown in Table 1).

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The ECtHR case law about religious symbols primarily concerns the interpretation and application of Article 9 of the European Convention on Human Rights.³⁵ According to this provision, everyone has the right to have or change a religion or belief (so-called forum internum), as well as the right to “manifest” religion or belief (so-called forum externum). Article 9 does not define ‘religion’ or ‘belief,’ but the ECtHR understands ‘belief’ broadly, as including not only established religions but also deeply held convictions such as pacifism or veganism. The case law of the ECtHR, discussed below, shows that the use of religious ‘symbols’ (defined as such in the judgments) may constitute a form of manifestation of religion, within the meaning of Article 9, para. 2, echr. By placing restrictions on the use of religious symbols, a state interferes with the manifestation of freedom of religion or belief. Such an interference may be compatible with the echr, but only under the conditions imposed by Article 9, para. 2: any restriction to the freedom to manifest religion or belief must be prescribed by law and be “necessary in a democratic society,” in the interests of public safety, public order, health, morals, or for the protection of the rights of others.³⁶

As Article 9, para. 2, echr is formulated in general terms, its practical application may raise interpretative issues. The European Court of Human Rights is called in particular to determine whether the prohibition (or imposition) of religious symbols may be ‘necessary’ in a ‘democratic’ society to protect imprecise values such as ‘public order,’ ‘morals,’ or the ‘rights of others.’ In the interpretation of these concepts, the European Court of Human Rights developed discourses, which evolved in time, and which we will analyze in the following sections.

The ECtHR adopts its judgments by majority. In some cases, a minority of judges may disagree with the majority decision and write a dissenting opinion, which we will not analyze in this article. While dissenting opinions show the heterogeneity of judges’ views, we focus on the judgments of the ECtHR because they are binding (unlike dissenting opinions) and more likely to influence the solution of subsequent cases.

3.2 Sample: ECtHR Case Law and Religious Symbols

We analyzed the total corpus of ECtHR case law on religious symbols, which are summarized and referenced in Table 1. We did not analyze: Çağlayan v. Turkey (2008) and Edidi v. Spain (2016) because the applicants were ruled against for procedural reasons; Araç v. Turkey (2006) and Tandogan v. Turkey (2007) because they merely restate the case law; and Sodan v. Turkey (2016) because it was not the applicant, but his wife, who was wearing a religious symbol. Moreover, we did not analyze the decisions of the now-abolished European Commission of Human Rights.

The majority of the cases involve applicants who are Muslim (a total of twenty, which makes more than two-thirds of the sample), but there are also Sikh and Christian applicants; in Lautsi, the applicant was an atheist and the symbol in question was Christian. As already mentioned, there are no cases involving other religions, such as Judaism. The applicants come from eight different countries, with a predominance of cases from places, such as Turkey and France, where bans against the wearing of religious symbols existed at the time of the relevant facts.

As can be seen from Table 1, the majority of the cases regards Muslim women wearing veils, which also explains why the applicants are predominantly female (N=23). In talking about religious symbols, we chose to use the terminology that the ECtHR employs. The term ‘veil’ generically indicates women that cover their hair, in some cases with a headscarf and in others with a hat or a bonnet. There is one case, Hamidovic v. Bosnia, of a Muslim man wearing a skullcap. Some cases involve the female full-face veil (generally the niqab). The cases about turbans regard Sikh men, except for the Arslan v. Turkey case, which regards the attire of male members of the Muslim-inspired group Aczimendi Tarikatÿ that included a turban. The Lautsi v. Italy case is the only one that does not concern objects worn by individuals, as it is about Catholic crucifixes hanging from the walls of a public school. Two other cases involve Christian women wanting to wear a necklace with a cross in the workplace.

Some cases are formally separate, but their text is identical or extremely similar because they were decided the same day, by the same judges, and the applicants had the same claims. For instance, the cases of Bayrak, Aktas, Gamaleddyn, Ghazal, Singh R., and Singh J. all involve French high-school students, either Muslim or Sikh, who were prevented from attending public school for wearing religious headcovers. In these cases, we checked the cases for differences and coded the text only once.

Cases can have a length between four and sixty pages, and they contain several sections. Even though we read them all in entirety, we focused our analysis on the sections where the ECtHR explains its decision (generally titled “The Law”). The cases are written either in English or French, and we read them in their original language. Quotes in this article have been translated by the authors from French to English when necessary. The italics in the quotes have been added by the authors.

3.3 Critical Discourse Analysis and ECtHR Case Law

In analyzing ECtHR cases about religious symbols, we wanted to go beyond the court’s legal reasoning and discover which discourses support certain decisions. After an in-depth reading of the selected sections of the cases, we employed the program Atlas.ti to create thematic coding categories to find which notions were more recurrent within the cases and to establish patterns and similarities among the cases (Table 2). We found 142 initial codes that we afterward grouped in fourteen thematic categories, summarized in Table 2. Then, we performed a critical discourse analysis to understand how these themes are discursively framed and connected to the ECtHR’s expressions of religious and secular values.

View Table

We chose cda as a method of analysis because we want to understand how linguistic nuances in the cases give indications of deeply ingrained ideologies that mirror societal values, as discourse gives insights into hegemonic and non-hegemonic meanings.³⁷ For example, cda can be used to analyze populist discourses that employ xenophobic and Islamophobic tropes in political communication or policy papers about migrants and people belonging to gender, sexual, and ethnic minorities.³⁸ cda has also been found to be useful in understanding concepts that are socially constructed within legal documents.³⁹ Lourdes Peroni highlights that the ECtHR tends to depict minorities, such as Muslim women, Sikhs, and Roma Gypsies, in negative terms through stereotypes, generalizations, and essentializations.⁴⁰ For example, in exploring the cases of Leyla Şahin v. Turkey and Dahlab v. Switzerland, which we also analyze in our sample, Peroni finds that the ECtHR often puts more emphasis on the action of wearing a veil (referring to it as the “the wearing of the [Muslim] headscarf”) rather than the agency of the woman wearing it. Furthermore, Peroni notes, the veil is often connected to terms such as “proselytizing,” while the Catholic crucifix was described in Lautsi as being “passive.”⁴¹ These linguistic nuances show that legal texts are not necessarily neutral but reflect certain ideologies and values.

Drawing from the work of Peroni and starting from the premise that some European practices and policies may perpetuate the aforementioned ideology of Christian secularism, cda helps us pay attention to language nuances that indicate power (im)balances concerning gender and religious belonging. Peroni’s analysis focused on a mix of cases regarding religious and cultural practices, as well as gender and sexuality, addressing four judgments. In contrast, we consider decisions dealing specifically with religious symbols, and our analysis, the findings of which are explored in the next section, systematically explores the entire ECtHR case law in this area.

4 ECtHR on Religious Symbols: Discourses and Changes

The decisions of the ECtHR about religious symbols, summarized in Table 1, suggest that the general tendency is for the court to rule against applicants wishing to display religious symbols, but some patterns urge further investigation. First, when cases regard certain countries, such as France, the applicants always lose. This can be explained by the fact that the ECtHR tends to take into account the ‘margin of appreciation’ and, therefore, acknowledges the strict enforcement of laicité in France (see the theme ‘national identity’ in Table 2). Second, out of the five cases in which symbols were allowed, two involve Christian symbols—Lautsi v. Italy (2011) and Eweida v. UK (2013)—while the ECtHR generally rules against applicants wishing to wear veils or turbans. Third, there are only two cases involving Muslim symbols in which the applicants are men—Arslan (2010) and Hamidovic v. Bosnia & Herzegovina (2017), and they both won their cases. Lastly, the two most recent cases—Hamidovic and Lachiri v. Belgium (2018)—were ruled on in favor of the applicants. These observations suggest that there is a need to understand the discursive differences of the ECtHR about Christianity and Islam and its narratives about gender and to analyze how case law has changed over the years.

Our analysis highlights some dominant and recurrent themes in the ECtHR case law, summarized in Table 2. As the table shows, there are three main categories: discourses that refer to state and society; discourses about the applicant; and discourses about compromises between the applicant and the state. In the following sections, we will analyze such discourses and establish a comparison between ECtHR narratives about Islam and Christianity. Then, we will describe how ECtHR discourses about religious symbols change over time, focusing on Islam.

4.1 ECtHR Discourses about Religious Symbols

As the quote suggests, the symbol was intrinsically attributed proselytizing effects. The ECtHR did not have actual proof of her proselytizing in the classroom (apart from claiming that it “cannot be denied outright”) but seemed to consider the symbol per se as incompatible with pluralist and secular values. The ECtHR also mentioned gender (see Table 2) by claiming that the practice of the veil “is hard to square with the principle of gender equality” but did not mention the applicant’s motivations for wearing the headscarf.

A similar case is that of Leyla Şahin v. Turkey (2004/2005), relating to a student who was prevented from wearing the Muslim veil at a university. In Leyla Şahin, the ECtHR accepted that the wearing of the veil runs counter to “equality before the law of men and women” and this garment may consequently be banned to “protect the rights and freedom of others.”⁴⁴ However, in this case the ECtHR also presented the prohibition of wearing the headscarf as linked to “public order” (see Table 2) because this symbol was allegedly connected with religious fundamentalism in Turkey, regardless of the claims or the practices of the person wearing it.⁴⁵

In this case, the prohibition of the hijab was also justified on the basis of secularism and gender equality. The symbol was also generically considered against “fundamental principles,” an expression that may stress the incompatibility of the veil with democratic values. The ruling continued by mentioning pluralism (Table 2), referring approvingly to the case law of the Turkish Constitutional Court, whereby in a country “where the vast majority of the population adhered to a specific religion,” the manifestation of rights and symbols of that religion “might put pressure on pupils who either did not practise that religion or adhered to another religion.”⁴⁷ In this case, the Muslim veil was considered as being “ostentatious” and exerting pressure on women not in spite of but precisely because Turkey is a predominantly Muslim country.⁴⁸

Another similar case is Kurtulmuş v. Turkey (2006), regarding a university professor made to resign from her post because she wore a Muslim headscarf. The ECtHR mentioned Dahlab and ruled against the applicant to protect “neutrality” and “secularism” (Table 2).⁴⁹ These cases show how the language used in Dahlab and Leyla Şahin arguably influenced later case law and that the prohibition of the hijab was justified for various reasons, including its alleged incompatibility with secularism and pluralism, its intrinsic proselytizing character, and the threats it poses to gender equality.

While such discourses applied to the Muslim veil, the ECtHR treated Christian symbols differently. For instance, in the Lautsi v. Italy (2009/2011) case, an atheist mother asked for the Catholic crucifix to be removed from the walls of public schools. The ECtHR Chamber initially described the crucifix as a “powerful external symbol” through a direct quote from Dahlab.⁵⁰ However, the ECtHR Grand Chamber overruled the Chamber, by writing that the crucifix on a wall is essentially a “passive symbol,” in contrast with the Muslim veil previously described as a “powerful external symbol.”⁵¹ In Lautsi, the Grand Chamber of the ECtHR used a language that does not imply specific supporting evidence, alleging that “it cannot reasonably be asserted” that the crucifix does or does not have an influence on pupils.⁵² This statement may be contrasted with the court’s case law on the Islamic veil discussed above, in which the Court found that it “cannot be denied outright” that the veil has a proselytizing effect. It seems that veiled applicants, such as Dahlab, need somehow to prove that the symbol is not harmful to pupils, while the crucifix is considered harmless and as not effecting schoolchildren until proven otherwise.

The quote shows the reasoning behind the claim of the applicant and that of the company (‘need to compromise between applicant and state,’ Table 2). While the company’s motivations were only briefly mentioned (“project a certain corporate image”), Eweida’s “desire” to manifest her religious beliefs was considered an important right of the applicant, as she “made religion a central tenet” of her life. In addition to being “discreet,” Eweida’s cross was also described as being able to “communicate” a belief (and not as “proselytizing”). It seems remarkable that the court ascribed a “proselytizing” intent to Muslim women who intended to comply with a religious requirement (Dahlab) but not to a Christian woman who expressly intended to “bear witness” (as explicitly written in the Eweida judgment) to her faith. Be that as it may, the court concluded in Eweida, thus echoing Lautsi, that there was “no evidence” that the crucifix worn by the applicant had any negative impact on her employer brand.⁵⁵

One may note that the case Chaplin v. UK (2013), judged jointly with Eweida, resulted in a Christian applicant being denied the right to wear a crucifix at work. Chaplin, a nurse who wished to wear a necklace with a cross, was prohibited to do so because it did not comply with the safety rules of the hospital. Chaplin, at any rate, does not contradict Eweida: the ECtHR reasoning exclusively concerns safety measures (see Table 2) and does not mention secularism, pluralism, or other themes that are recurrent for the other analyzed cases.

The comparisons between discourses about Christian and Muslim symbols show how the ECtHR seems to consider Islam as the ‘other’ to European culture by offering a monolithic view of the Muslim veil and by attributing a set of meanings to it implicit in its own visibility. The applicants who wear the veil are seldom subjects of the narratives, and their needs and motivations are overlooked to privilege the protection of society and national identities. In contrast, the Christian cross is allowed a nuanced set of meanings, and it is not deemed as incompatible with secularism, and the applicants wishing to wear this symbol are accorded the agency to explain their reasons and their needs. Even though the applicants of the aforementioned cases are all women, Muslim women are accorded less agency than non-Muslim women to determine the meanings of their garments.

4.2 Evolution of ECtHR Discourses

Even though the ECtHR’s discourses about Muslim symbols tend to offer a negative portrayal of Islam, they become more nuanced over time, and certain themes have been abandoned over the years. This is exemplified by the cases of Bayrak, Aktas, Gamaleddyn, Ghazal, Singh R., and Singh J (2009), involving pupils wearing religious symbols in French public schools. These decisions are similar to those previously described because they still describe the veil (or, in the case of Singh R. and Singh J, the Sikh turban) as “ostentatious” and against the principle of state secularism. However, in these cases, the court did not consider it as having a “proselytizing” effect and did not make explicit references to gender.

The text proceeds by explaining that the applicant had a respectful attitude and was willing to comply with the requests of the court by testifying. While the viewpoints of Dahlab or Leyla Şahin were not fully acknowledged, the beliefs of Hamidovic were described as “importan[t] to an individual” and “sincere.” The ECtHR did not need proof of the sincerity of Hamidovic’s beliefs, as it saw “no reason to doubt” them, analogous to Eweida. The court’s approach in Hamidovic seems indeed inspired by an increased concern for religious pluralism, as the ECtHR also writes that “authorities must not neglect the specific features of different religions.”⁶⁰

Hamidovic was followed by another case dealing with a person wearing religious attire in a courtroom, Lachiri v. Belgium (2018). This is the only ECtHR case on religious symbols won by a Muslim woman and in which the court found that the Muslim veil did not threaten public order. However, in this case, the court did not refer either to the ‘sincerity’ or ‘importance’ of Lachiri’s beliefs and did not call for respect of the “specific features of different religions.”⁶¹ Arguably, the case was won because of its similarities with Hamidovic, which probably made it difficult for the ECtHR to take a different decision. However, Hamidovic’s beliefs and needs are explored more at length, perhaps because of his being a man and wearing a garment (a skullcap) less diffused in Europe than the female veil or because the facts took place in a country (Bosnia and Herzegovina) in which there are no strict secularist policies.

In this quote, the headcover, while not considered as intrinsically proselytizing as in the Dahlab case, is described as “ostentatious.” The judgment proceeds by explaining that, even if the applicant did not actively exert pressure, the mere visibility of her bonnet compromised the right of the patients, who are potentially vulnerable people and belong to different religions. Even if the applicant did not employ the symbol to proselytize (or to explicitly show her faith, as Eweida was allowed to do), the perception that other people may have by looking at the symbol seems to determine its social impact.

Therefore, the ECtHR discourses about religious symbols changed in time, but they did not necessarily become more favorable towards Muslim symbols. In the earlier cases, such as Dahlab and Leyla Şahin, the veil was negatively associated with extremism and lack of gender equality, discourses that are progressively abandoned. While cases such as S.A.S. and Hamidovic show a concern for the applicants that make them somehow similar to Eweida, the Ebrahimian case allows for the prohibition of the Muslim headcover based on it being “ostentatious.” The reasons for this may be that Ebrahimian was not a “private citizen,” as the ECtHR describes Hamidovic and Lachiri, nor wearing her headcover in a public space, as in the case of S.A.S., but a civil servant working for a state hospital.⁶⁴ As Table 2 suggests, ‘public function and space’ is a recurrent theme in the cases: when applicants are students or employers within public institutions, they need to adhere to secularism more strictly, to the extent that any visible expression of their (Muslim) faith is depicted as “ostentatious.”