Religious Freedom and the European Court of Human Rights’ Two Margins of Appreciation

Abstract

The European Court of Human Rights’ (ECtHR) use of the margin of appreciation (MoA) in cases concerning religious clothing is well-documented. This article paints a more complete picture of the use of the doctrine in cases falling within Article 9 and Article 2, Protocol 1 of the European Convention on Human Rights (ECHR). The ECtHR’s use of the normative MoA often appears to be superfluous as is does not appear to extend past the Article 9(2) ECHR, limitations clause. In contrast, the systemic MoA allows almost complete deference to the State, which has the potential to undermine the religious freedom of minorities.