Religion, Conscience, and Belief in the European Court of Human Rights

Abstract

In this paper, I suggest that a more critical view toward the notion of “religion” under Article 9 by the European Court of Human Rights would take an important step toward a more inclusive and egalitarian human rights jurisprudence. In other work, I have shown that “religion” as a legal term of art is generally understood by judges to refer primarily to belief, and that this understanding privileges Christianity at the expense of others.I begin by reviewing the position of religion in Europe and the special role of religion in the origin of the Westphalian system, the emergence of liberalism and, ultimately, modern human rights. I then turn to the specific right at issue, that of religion or belief under the ECHR. I discuss the origin of the Convention, review the structure of the Court and Commission it created, and take account of the analytical approach applied in addressing claims arising under Article 9. I suggest that Christian bias may be observed both in the terms of the Convention itself, and in its application by the Court. The final language used in the text of the Convention introduces inequality between religions based on the relative centrality of belief by tacitly equating religion with “belief” and with a similarly vague and belief-based notion of “conscience.”I then discuss how the Court has exacerbated the problems inherent in the convention through Court-made doctrines including the forum internum and forum externum, a historical theological dialectic the Commission repurposed as a legal doctrine, the margin of appreciation, consensus, and subsidiarity. I conclude that maintaining religion as a legal term of art is inherently problematic because it requires a focus on belief that does not comfortably fit outside of a Western context. Court adjudicating claims for religious protection involving religious minorities should take due care not to assume that belief plays a central role in those traditions.