Religious Accommodation before the European Court of Human Rights: Moving Forward a New Approach Towards Religious Minorities?

Abstract

European case law has extensively analysed the relationship between public institutions and the wearing of religious attire in a plurality of cases, emphasising different competing readings of secularism and the public sphere. Although we are experiencing a return of the religious factor within the public arena, the increasing tension between demands of ‘deep diversity’ and new forms of ‘secular anxiety’ give rise to the need to implement new mechanisms and techniques of management of religious-cultural pluralism . In common law legal contexts, the concept of ‘reasonable accommodation’ arises as an effort by public or private actors to adjust their general rules or practices in view of the specific needs of minority identities. On the other hand, in the European context, where religious diversity and the demands of new minorities are still widely perceived as a controversial issue rather than as a driving force for new social dynamics, the ‘transplantation’ of the notion of reasonable accommodation is still controversial. Starting from two recent ECtHR judgments (Hamidovi ć v Bosnia and Herzegovina and Lachiri v Belgium) concerning the freedom to wear religious attire in the courtroom (where the ECtHR showed a renewed sensitivity towards the status of religious-cultural minorities and the search for new effective strategies for their full ‘incorporation’ into host societies), the present contribution will investigate whether reasonable accommodation is possible in the ECHR framework, and whether reasonable accommodation may be an effective means to implement a more substantial equality, in the pursuit of the integration of religious minorities. Last but not least, the present contribution aims to assess whether the concept of religious accommodation allows an appropriate balance between religious neutrality policies and new claims of ‘deep diversity’, and how it can reasonably interact with the difficult European balance between ‘unity’ and ‘diversity’ .