A Critical Appraisal of the Margin of Appreciation Left to States Pertaining to “Church–State Relations” under the Jurisprudence of the European Court of Human Rights

Abstract

In Europe the most central reference point concerning fundamental rights is the European Convention on Human Rights (ECHR) and the related jurisprudence of the European Court of Human Rights (ECtHR). This chapter starts with an identification and appraisal of problems with the margin of appreciation doctrine in general. It focuses on problems with the margin of appreciation doctrine as applied to church-state relations. The chapter highlights the special position of secularism and the protection of secularism as a legitimate aim of restrictions to the freedom to manifest one's religion. A connection is made with duties of reasonable accommodation on grounds of religion in terms of the prohibition of discrimination. Potential future developments in this respect are discussed. While the Court still tends to use the language of a broad margin of appreciation for states concerning church-state relations, in several contexts the margin is de facto reduced. Keywords:church-state relations; European convention on human rights (ECHR); European court of human rights (ECtHR); freedom of religion; margin of appreciation