Regulating the Role of Religion in Society in an Era of Change and Secularist Self-doubt: Why European Courts Have Been Right to Adopt a Hands-Off Approach

Abstract

Abstract Why have the European Court of Human Rights and Court of Justice of the European Union adopted such a hands-off approach in relation to the steady stream of national measures that have intensified limits on religious expression in, and influence over, the public realm? This article argues that the intensifying of these limits can be seen, in part, as reflective of a justified loss of confidence in previously dominant, deterministic narratives that saw secularization of society as inevitable. In response, many states are attempting to harness the power of the law to push a secularization process that they previously regarded as inevitable. The article suggests that, while these laws are sometimes troubling, given the scale, pace and unprecedented nature of the religious change Europe is undergoing, how coexistence and freedom of and from religion can best be preserved cannot but be an open question. It concludes that in these circumstances, judges in pan-European courts have been correct to avoid attempting to identify ideal solutions and to impose them across the board.