Secularism and the European Court of Human Rights

In the decision LEYLA ŞAHİN, posted before, the ECHR defended an ambiguous understanding of the concept of secularism.

At paragraph 113, the ECHR cites the decision of the Turkish Constitutional Court that asserts that secularism, as the guarantor of democratic values, is the meeting poin of liberty and equality.

The reason put forward is that secularism in Turkey protects both freedom of exercise and freedom from establishment.

Now, if it could be argued that secularism protects a certain conception of liberty, it is extremely hard to see how it protects equality.

The Court, in its Grand Chamber formation, sees no good reason to depart from the opinion of the Chamber. The latter held that secularism protected sexual equality insofar that it protected women from being obliged to wear the muslim scarf.

This apparently liberal attitude, disguises in reality a strong paternalist view, according to which it is wrong for women to wear scarf because this undermines their equality. This is far from being a settled issue, and the court cannot just turn a blind eye on the fact that there are women who claim to be exercising their free will when wearing the scarf.

Secularims thus understood, therefore, does not do anything to protect sexual equality. If anything it imposes a certain view of how women should behave within a prefixed view of the society.

The position of the ECHR is also ambiguous because on the one hand it asserts that in this field, the state has a broad margin of manoeuvre. On the other, however, the court cliams that: 'an attitude which fails to respect that principle will not necessarily be accepted as being covered by th freedom to manifest one's religion and will not enjoy the protection of Article 9 of the Convention...'

The ECHR seems to condamn a priori any attempt of the present turkish government to reform the existing law on muslim scarfs. As already pointed out before, however, the Prime Minister Erdogan does not regard this decision as binding his hands.

An interesting perspective comes from the dissenting opinion of Judge Tulkens. He states boldly that 'the role of authorities in such circumstances is not to remove the cause of the tensions by eliminating pluralism, but, as the Court again reiterated only recently, to ensure that the competing groups tolerate each other.'

I strongly agree on the idea that pluralism does not mean watering down competing views so that the social/legal conflict disappears. To the contrary, each position should be taken seriously and heard. And the efforts should be geared towards the creation of a public space that accepts different, and competing, views of how values combine.

Later on Judge Tulkens holds: 'I believe that it is necessary to seek to harmonise the principles of secularism, equality and liberty, not to weigh one against the other...'

This is an interesting statement, although I do believe that it is inaccurately phrased. First of all, I do agree that in cases such as this, it is not a matter of balancing competing values with the belief that those values are in fact commensurable. In other words, there is no hope for a quantitative weighing of the values at stake.

Second, I do not think that the opposite of balancing is harmonizing. Rather, the opposite of balancing consists in the effort of understanding and dealing with social/legal conflicts of rights that may arise in a community.

Seen from this perspective a total ban on scarf on the part of muslim students, as opposed to teachers !!, amounts to an undue interference of the right of freedom of thought, conscience, and religion as protected by art 9. More importantly, the limitation of that right does not seem to be reasonably argued. Secularism cannot possibly mean reducing pluralism to a single paternalist view of the state.