Abstract: As guarantor of individual liberties in the Council of Europe’s 47 member states, the European Court of Human Rights (ECtHR) is tasked with balancing the competing rights of citizens against citizens and states against citizens. In a group of controversial continent-spanning cases dealing with the right of female Muslim students and teachers to wear Islamic headscarves in public schools–known collectively as the “headscarf cases” and called by one scholar “almost a touchstone for the reflection on the presence of Islam in the public space”–the Court has found itself adjudicating between the sometimes contradictory values of state-sponsored secularism and religious freedom.
In this article, I argue that the ECtHR has failed miserably in the “headscarf cases” at fairly balancing these rights. I distill the reasoning used by the Court in Dahlab v. Switzerland and Leyla Sahin v. Turkey, the two most significant of these cases, into four major arguments: Argument from Religious Pressure, Argument from Political Symbolism, Argument from Gender Inequality, and Argument from Subjugation of Women. Using this novel argument categorization, I show that rather than protecting the rights of individuals to practice their religion freely with only the necessary restrictions, it has defended the actions of over-reaching national governments infringing on those rights under the banner of secularism. I also argue that these decisions hint that the Court does not understand the multifaceted meaning of the Islamic headscarf and has a generally negative view of Islam, both of which color its judicial decisions.
Author: Oren Fliegelman is a student at Princeton University, majoring in Politics.