State Religious Neutrality as a Common European Standard? Reappraising the European Court of Human Rights Approach

Abstract

This article explores the development by the European Court of Human Rights (ECtHR), of the notion that states have a duty to be neutral in religious matters. It is submitted that such a principle of neutrality, which echoes a classic tenet of liberal philosophy, can legitimately be derived from the rights and ideals enshrined in the European Convention on Human Rights (ECHR). It can be considered as a corollary of religious freedom, non-discrimination, and pluralism. However, the way the Court has interpreted the concept of state religious neutrality throughout its case law gives rise to criticism. In dealing with cases raising the question of the place of religion in public institutions, the Court has failed to remain consistent in its approach to neutrality. In effect, it balances between three different understandings of the concept. They are characterized here as 'neutrality as absence of coercion', 'neutrality as absence of preference', and 'neutrality as exclusion of religion from the public sphere'. The present article argues that 'neutrality as absence of preference' provides the most adequate model for an ECHR-based concept of state religious neutrality.