Mixed Messages on religious symbols and dress code

Decisions on religious symbols and dress code by the European Court of Human Rights appear to treat Christians and Muslims in a different light, writes Dr Claire Hogan.

DECISIONS on religious symbols explore the contours of the limits to religious freedom under the European Convention on Human Rights. Unfortunately, the Strasbourg court may be criticised for construing Christian symbols as benign and traditional, but Islamic symbols as powerful and proselytising.

For instance, when Lucia Dahlab sued Switzerland for its measure prohibiting her from wearing her hijab while teaching, the Court in 2001 described the headscarf as a “powerful external symbol”. Dahlab’s pupils were at a tender age and the headscarf might have “some kind of proselytising effect”. The headscarf seemed to be imposed on women by a Koranic precept which was “hard to square with the principle of gender equality” and “the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils”.

This may be contrasted with the court’s pronouncement in 2013 on the case of Nadia Eweida — a British Airways worker who was sent home for refusal to conceal her cross. The court held in favour of Eweida and stressed “the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others”. Notably, the court held that the cross was discreet and “cannot have detracted from her professional appearance”.

However, it must be acknowledged that the court recognises that employment context is important, and in the same ruling in relation to another applicant, the Court held that the protection of health and safety on the wards legitimated a UK hospital’s demand that nurse Shirley Chaplin remove her Christian cross.

Leyla Sahin was excluded from lectures in the University of Istanbul for wearing her headscarf. In 2005, the court upheld the Turkish ban on the grounds of secularism and gender equality. The notion of secularism was necessary “to protect the democratic system in Turkey”. The court pointedly noted that universities were places where “the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women, are being taught and applied in practice”.

The spotlight was shone on Christian symbols when Soile Lautsi objected to the crucifixes on the walls of the classrooms of Italian state schools. In 2011, the court ruled that the crucifix was “above all a religious symbol”. However, the decision “whether or not to perpetuate a tradition” was a matter for the Italian state. The preponderant visibility given to Christianity was not enough to prove indoctrination.

The court noted that the crucifix is “an essentially passive symbol” that “cannot be deemed to have an influence… comparable to didactic speech or participation in religious activities”.

The differing approach in these cases is explained by the margin of appreciation doctrine. This commands a softly-softly approach in sensitive cases involving religion.

Therefore, Strasbourg will defer to Turkey when it claims it must ban headscarves to maintain a stable secular state, and similarly accept Italy’s position that the display of crucifixes in state classrooms is a vital tradition.

Here in Ireland, Kerry County Council’s vote to display a crucifix in the council chamber is being referred to the Equality Authority after Atheist Ireland says the placement of a cross in a council chamber represents the promotion of the supremacy of one religion over other religions and none.

However, broad protection for veiling bans has been articulated in defence of secularism, gender equality, and most recently “living together”. Meanwhile, crosses have been described as discreet and passive; their display traditional. Inevitably, these statements may be construed by some as revealing an Occidental Christian bias in favour of the familiar, and the Court ought to be vigilant to avoid even an unconscious endorsement of Islamophobia.

The discrimination analysis in the veiling decisions is worryingly absent. France argued that the ban was not expressly based on the religious connotation of the clothing in question, but solely on the fact that it concealed the face.

However, Islam entails dress requirements which Christianity does not, and an apparently neutral measure is less so when one considers that veils are, per se, conspicuous and concealing, whereas crosses worn around the neck can remain discreet.

Therefore, Muslims, already a minority in France, are placed at a particular disadvantage.

There is no veiling legislation in Ireland. Government recommendations issued in September 2008 suggested that decisions regarding school uniforms are a matter for each individual school.

The latest decision of the court gives a green light for restrictive clothing laws. It remains to be seen which states will take on that mantle.

* Dr Claire Hogan is a barrister and law lecturer at Griffith College