Directions in Religious Pluralism in Europe: Mobilizations in the Shadow of European Court of Human Rights Religious Freedom Jurisprudence

E Fokas

doi:10.1093/ojlr/rwu065

Abstract

Over the past 20 years the European Court of Human Rights (ECtHR) has evolved into a conspicuous, often contentious, force in the multilevel battles over the place of religion in the European public sphere. In the light of scholarly debates, questioning the direct effects of courts on the issues they address, this article explores how the nature and extent of European juridical influence on religious pluralism are better understood through developments taking place ‘in the shadow’ of the Court. Specifically, what is the aftermath of the Court’s religion jurisprudence in terms of its applications at the grassroots level? And how might legal and political elites operating at the national and international levels influence the Court’s engagement with religion? These questions are important because ECtHR case law will shape, to a large extent, both local and national case law and—less conspicuously but no less importantly— grassroots-level developments in the promotion of or resistance to religious pluralism, which will, in turn, influence the future of the ECtHR caseload. The European public square has, in the past 20 years and increasingly so, been inundated with controversies and debates broadly conceived around the place of religion in the public sphere. In spite of (and, some would argue, because of) popular and scholarly expectations of religion’s retreat in Europe, issues such as freedom of religious expression, freedom of speech versus protection against blasphemy, and the public display of religious symbols loom large in the workplace, in schools, in media coverage, etc throughout Europe, at local, national, and supranational levels. The presence of Islam in Europe has acted as a catalyst in many debates on religion in Europe, but these debates have now grown to encompass much broader assumptions about the nature of religious communities, their relationship to state institutions, and the place of minority religious communities in society. In short, the

Highlights

Over the last twenty years the European Court of Human Rights has evolved into a conspicuous, often contentious, force in the multilevel battles over the place of religion in the European public sphere
In light of scholarly debates questioning the direct effects of courts on the issues they address, this paper explores how the nature and extent of European juridical influence on religious pluralism are better understood through developments taking place ‘in the shadow’ of the Court
What is the aftermath of the Court’s religion jurisprudence in terms of its applications at the grassroots level? And how might legal and political elites operating at the national and international levels influence the Court’s engagement with religion? These questions are important because ECtHR case law will shape, to a large extent, both local and national case law and – less conspicuously but no less importantly – grassroots developments in the promotion of or resistance to religious pluralism

Summary

Grasstops mobilisation and the ‘politics of the margin of appreciation’

The term ‘grasstops mobilisation’ encompasses a broad range of activity carried out by an broad spectrum of actors; here the term is used to indicate legal and political mobilisation which takes place at the national, international, European and transnational levels and which may be enacted by cause lawyers, judicial activists, NGOs, faith-based organisations (FBOs), political figures and national governments, and by transnational networks which may develop within and between the above groups, depending on their stakes in a given issue.[51]. The Romanian government argued that ‘the Chamber had taken insufficient account of the wide margin of appreciation available to the Contracting States where sensitive issues were involved and that there was no European-wide consensus’.59 For their part, the MEPs, acting collectively, argued that the Court must respect the principle of subsidiarity and recognise a ‘ broad margin of appreciation’ on religion-state relations: ‘a State which, for reasons deriving from its history or its tradition, show[s] a preference for a particular religion d[oes] not exceed that margin’.60. In the 2011 Grand Chamber judgement, the margin is mentioned 27 times in total, and eight times in the final paragraphs of assessment, which is indicative of the importance the margin is imparted in the Court’s overall reasoning.[62] In the latter ruling the Court declares, ‘the fact that there is no European consensus on the question of the presence of religious symbols in ibid para. We turn our attention to mobilisations at the grassroots level

Grassroots mobilisations ‘at the margins’

Directions in religious pluralism