CMV: In the EU, we should not tolerate member states restricting the right to religious freedom

Sun Jul 08 2018 12:00:00 GMT+0000 (Coordinated Universal Time)


Rainer Forst

University of Frankfurt

Professor of Political Theory and Philosophy

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The European Union is an ambitious political project that needs to be placed within European history – not just recent history, but also the long history of religious conflict, discrimination and war since the 16th Century. Thus the formation of a political union of former enemies is a major achievement, and the guarantee of basic rights to religious freedom within the member states and the Union generally (as declared in the European Convention on Human Rights) is a cornerstone of that achievement.

Today, this achievement sends an ambivalent message as to the question of religious freedom and toleration. The kind of toleration in question is no longer of the classical (vertical) form of a monarchy backed by a religious majority “tolerating” religious minorities while relegating them to second-class citizenship. Today, tolerance is the political and social (horizontal) virtue that accompanies equal rights to religious liberty. Two conclusions can be drawn from this in the current EU, but they point in opposing directions.

The first conclusion is that there must be no discrimination against persons based on religious grounds; they enjoy equal rights as citizens regardless of their religion. The state has to be a religiously neutral institution, and the citizens have to tolerate each other’s views and practices as long as they do not violate basic rights. Thus laws (such as in Bavaria or in Italy) ordering Christian symbols to be placed in public buildings are as impermissible as are laws banning certain forms of religious dresses such as headscarves or burqas. That also applies to headscarves of teachers, since a teacher has the personal liberty to wear a religious symbol, while the state has no right to declare some religious symbols to be official symbols of the state’s “identity.”

Still, the European Court of Human Rights has held that countries like Italy or France enjoy a “wide margin of appreciation” when it comes to laws regarding crucifixes in classrooms or the ban of burqas because of their own interpretation of the national public order and its basic values. From the perspective of equal human rights, this is unacceptable.

But here the second conclusion regarding toleration comes in. Many argue that the EU is a political union in which different national political communities should tolerate each other in the manifold ways in which they regard and manifest their political identity, even if that leads to unequal treatment of different religions.

From the first perspective of equal rights that is a mistake. A political union that rests on a consensus of fundamental human rights and liberties must regard the rights of minorities as an important value, for that is the very point of having basic rights: they protect minorities. A European Union that forgets this disregards its own principles and its history.

Background Information

  • Religious freedom as a fundamental right is enshrined in the legal DNA of the via the European Convention on Human Rights, which all members of the Council of Europe have signed, via a number of documents:

    • The EU Charter of Fundamental Rights (Article 10)

    • The European Convention on Human Rights (Article 9)

  • Moreover, EU member states are bound to uphold religious freedom by their participation in conventions and charters ratified via the United Nations, most notably:

    • The Universal Declaration of Human Rights (UDHR)

    • The International Covenant on Civil and Political Rights (ICCPR)

  • With debates around headscarf-bans and similar pieces of potential legislation in some EU member states, however, the discussion on the de facto viability of religious freedom within the EU has picked up again

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