On 3 May the Grassrootsmobilise Research Programme hosted a public event at the Acropolis Museum in Athens, on the subject of ‘Religion and Secularism: Does the Court go too far – or not far enough?’.
Here one former judge of the European Court of Human Rights (ECtHR or the Court) – Judge Ann Power-Forde, and two scholars of the ECtHR – Professor Eva Brems and Professor Silvio Ferrari, responded to a series of questions asked by Effie Fokas and designed to help us critically assess the nature of the Court’s engagements with religion*. We began the discussions with a focus on Lautsi v. Italy, arguably amongst the most important ECtHR judgements in relation to religion. Here Judge Power-Forde, when asked about the normative judgement of Christianity voiced in her separate consenting opinion in the Grand Chamber judgement, explained it as a statement of fact rather than normative judgement. Professor Ferrari expressed his discontent with both the Chamber and the Grand Chamber judgements in Lautsi, finding the first too rigid and the latter too state –centric an approach, and Professor Brems discussed the large extent to which the later religion-related case of S.A.S. v France, in which she made an oral intervention to the Court in favour of S.A.S., was decided ‘in the shadow’ of Lautsi. Judge Power-Forde addressed the same question regarding the ‘shadow’ of Lautsi over the case of Fernandez Martinez v. Spain, indicating that the very close decision (9 versus 8 judges) suggests little, if any, impact of Lautsi there.
We then turned our attention to the issue of a forthcoming ECtHR case on religious education in the Greek context (Papageorgiou and others v. Greece). Professor Ferrari was asked to draw on his extensive studies of religious education and specifically of Folgero v. Norway in order to predict what might be the verdict in this case; understandably, he expressed a complete lack of certainty as to what the Court would decide but indicated his hope for an acceptance of catechetical teaching of religion where, however, exemption is allowed for any student who seeks it, and where confessional teaching of religion is also available to minority religions wherever such a demand exists. To the potential argument that the latter may lead to a ghettoization, he calls for an integration of minority faith traditions and history into the school curriculum as a whole.
Regarding the Copenhagen Declaration issued under Denmark’s presidency of the Council of Europe, wherein there is a call for increased participation of third parties in ECtHR cases, Professor Brems was asked whether this is a wholly positive development or whether it might open the Court to too much potential political pressure and thus whether some boundaries ought to be put into place. She indicated that it is, indeed, generally a positive development; that the Court needs third party input and that civil society ought to be more engaged in providing the Court with relevant insight; and that, yes, boundaries ought to be put in place by way of far greater transparency required in the intervention process.
Effie Fokas then turned the discussion to how difficult it may be for the Court, or any court, to define religion, citing examples of asylum claims which hinge on a court’s acceptance or not that a claimant’s ‘sincerely held beliefs’ deserve the protection of Article 9 (the European Convention on Human Rights article protecting religious freedom). She asked each of the speakers whether religion is particularly difficult to judge and is thus perhaps best kept out of courts and left to national legislatures, as many scholars argue. Here the response was overwhelmingly negative, with Judge Power-Forde indicating that defining religion is not actually all that difficult, Professor Brems suggesting that because most religion-related claims are minority religious claims, the ECtHR is especially important in offering minority religious protection where (majority-elected) national legislatures often fail to do so, and Professor Ferrari echoed Judge Power-Forde in arguing that defining religion is no more difficult than defining art or conscience, but that we are lacking a paradigm that helps us define religion and particularly one which distinguishes between belief and religion.
Effie Fokas then explained that in Grassrootsmobilise we define the scope of ‘religion’ rather broadly, to include issues which mobilise religious and secularist, humanist or atheist publics, such as social ethics issues (e.g., same-sex marriage), bioethics (e.g.,, abortion) and the public place of religion (e.g., majority church roles in national education systems). Judge Power-Forde was asked whether social and bioethics are areas of law where one can see rather conspicuous fault lines developing within the Court between more socially conservative and more liberal judges, to which she replied that little credence should be given to the labels ‘conservative’ and ‘liberal’ for the judges as they often act in defiance of these externally applied labels. What can be said, she notes, is that some judges are more interested in these questions than others and thus more likely to write separate opinions. And asked whether such fault lines tend to be horizontal or vertical, i.e., dividing Northern from Southern Europe or Eastern from Western Europe, Professor Ferrari indicated that the liberal-conservative divide is not the only divide and is probably not the most important. Rather, the picture is much more complex, with different fault lines depending on the issues that are at stake, and they sometimes intersect and they are also not static.
Finally, we took a number of highly engaging questions from the audience and ended with a lively discussion.
Please watch this space for a link to the video of the event.
* Note: Judge Christos Rozakis was unable to join us as planned due to illness on the day, and Professor Joseph Weiler joined via skype but due to technical difficulties was not able to share his responses to the questions.