How the European Court of Human Rights’ Concern Regarding European Consensus Tempers the Effective Protection of Freedom of Religion

Abstract

In accordance with the European Court of Human Rights’ steady jurisprudence, Member States are granted a wide margin of appreciation concerning ‘church-state relations’, owing to the lack of European consensus in this regard. This article reveals that the level of scrutiny adopted by the Court in cases involving church–state relations is not always wide but in fact ranges from being somewhat narrow to very broad. Throughout this analysis, the argument is made for an overarching rationale: namely, differences in the levels of European consensus on the religious matter at hand. Arguably, the Court provides effective protection of freedom of religion only when, and insofar as, there is a clear consensus about a particular religious matter. In this respect, the Court’s concern regarding European consensus tempers the effective protection of freedom of religion. The Court is urged first to define the lack of a European consensus at a sufficiently concrete level, and second to slowly but surely reduce the margin of appreciation left to states. The gradual increase in the level of scrutiny adopted would allow the Court to work gradually towards a more effective protection of freedom of religion.