The European court of human rights and religion: Between 'Christian' neutrality and the fear of Islam

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New Zealand Centre for Public Law
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The European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights (the ECtHR), remains open to different constitutional formulae regarding the regulation of the relationship between state and religion. At the present moment non-secular, soft secular and hard secular constitutional arrangements coexist in Europe. A general pre-requisite of the European Convention order is the obligation for states to remain neutral towards religious beliefs and religious institutions. In both secular and non-secular constitutional frameworks, the states' commitment to neutrality is especially relevant to preserve pluralism. In this regard, it is especially disappointing to ascertain that the Court has fallen short of providing a consistent interpretation of the obligation of neutrality. The analysis of the case law provided in this paper demonstrates that the ECtHR offers a biased interpretation of the state's duty of neutrality which, on the one hand, better serves the interest and needs of the Christian churches and, on the other hand, shows the ECtHR's fear of Islam. With its simplistic and reductive reading of Islamic rules and traditions, the Court might be contributing to the negative stereotyping of public manifestations of the Islamic faith. The ECtHR should try to offer a more consistent construction of the state's duty of neutrality that is more respectful of religions other than Christianity, instead of hiding behind the doctrine of the margin of appreciation to mask its fear of Islam.
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The New Zealand journal of public and international Law, v. 11, n. 1, nov. 2013, pp. 75-102