The limits of European liberalism: freedom from/for religion

Religious liberty and freedom (as a classical human right) are protected by national and international legal instruments; the religious liberty aspirations are reflected in a number of national constitutions and international declarations and provisions. On the other hand, the international provisions as Article 9 of the ECHR establish general principles of religious liberty, while at the same time leave national states an autonomy to decide how these principles should be integrated into domestic law.

As far as the definition of religious liberty, "the most precious of all human rights" as called by Arcot Krishnaswami (a special reporter of the sub-commission on Prevention of Discrimination and Protection of Minorities) is concerned, within the ideology of liberalism, as explained by Wolfe, liberalism calls for freedom from religion and demands freedom for religion. By the freedom from religion, people should be untied from the closed-mindedness that is likely imposed by superstition and dogma, while by the freedom for religion, everyone should have the right to choose and practice a religion voluntarily. "No matter how much liberals may want to ensure that every person thinks for himself, they have to make room for a believer who, in thinking for himself, chooses God".

John Locke, in his Letter Concerning Toleration – one of the classics of liberal political thought - wrote: "neither pagan, nor Mahometan, nor Jew, ought to be excluded from civil rights of the commonwealth because of his religion".

Defining religion

Within the practice of ECHR, religion is defined as a vital element of the identity and conception of life, whereas the religious freedom is emphasized as part of promotion of democratic pluralism.

However, up to date, neither the Commission, nor the Court did not provide with a specific definition of religion.The article 9 (ECHR) introducing the terms "through, conscience and religion" stands for a wide scope of application, though, in practice, when it comes to the law – cases, as a rule, a much narrower application is being practiced. Witte underlines that "defining religion is probably the most difficult exercise in crafting a theory and drafting on religious rights. No universal definition can readily embrace today’s religious heterogeneous world. No bright line tests can readily resolve all penumbral cases. It is not always easy to distinguish between legal and non-legal norms, genuine and spurious religious claims".

A number of differential rationales for freedom of religion and belief and the adapted conceptions give a way to different interpretations of the scope and the importance of freedom. Besides, religious freedom working in practice might differ considerably due to the differing conceptions people have. On the other hand, it is indeed important to distinguish the definitions drawn by scholars and the institutional ones.

Although religious freedom is one of the "oldest claims" [1], until 1993 there were few cases undertaken by ECHR under the Article 9. For instance, in prisons, conflicts between respect for belief and contractual duties in employment are the most common treated issues while fairly few cases dealt with collective manifestation of belief.  "In more recent years, however, the Court has been called upon to address the scope and content of Article 9 in an increasing number of key cases involving matters as diverse as proselytism, refusals to grant authorisation for places of worship or registration for religious bodies, and prohibitions on the wearing of religious symbols in public places". The above described dynamics reveal a controversy: in the ever secularized Europe we meet the increasing trends and cases of religious discrimination and intolerance.

Religious discrimination

When it comes to speak about religious discrimination and intolerance, inevitably and unfortunately, though, once again, we have to refer to the Muslim case….In the yearly reports of 2011-2012, ENAR (the European Network Against Racism) confirms a widespread Islamophobia, that is prevalent in all sections of the European societies, specifically in employment, education and access to goods and services. Furthermore, as observed by T. Hammarberg: "European countries appear to face another crisis beyond budget deficits – the disintegration of human values. One symptom is the increasing expression of intolerance towards Muslims. The Swiss referendum banning the building of minarets was no exception: opinion polls in several European countries reflect fear, suspicion and negative opinions of Muslims and Islamic culture".

In addition, in the light of increasing discrimination and intolerance tendencies, we find that the recent discussion about religious diversity management and migration are of distinct character, while radical anti-immigration parties are currently gaining support in Europe. P. Bramadat highlights two main reasons. First of all, it is due to the increasing non-Christian as well non-European Christian religious affiliations of the incoming migrants that raise new significant challenges to policy makers.

Furthermore, the association of Islam and immigration [2] together with the securitization [3] of Islam, as Cesari argues, has been followed by the restricted immigration policies and hardened national discourses on immigration. What is more, "European nations face a paradox: although they seek to facilitate the socio-economic integration of Muslims, anti-terrorism and security concerns fuel a desire to compromise liberties and restrict Islam from public space" [4].

Secularity issue

Muslim integration and interaction in secularized spaces "reopens" the question of the state – religion relationship that is strictly covered by the secularity. Within this context, Ferrari identifies a dual challenge: "on the one hand, for the Muslims themselves who have to find a means of integration in a reality (the secular state) that is culturally alien to many of them, and on the other, for the Europeans who have to understand how far the secularity of the state can go in integrating this reality". On the other hand, Casanova questions and reveals that the "Islamic problem" is an indicator of disparity between liberal and illiberal facets of European secularism. Cesari calls it "visibility of Islam", Casanova puts it as "religious otherness" explaining the challenges posed by Muslim integration. Altogether, we are dealing and reopening the question of the role of religion in the public space, "which European societies assumed they had already solved according to the liberal secular norm of privatization of religion".

Secularity not only holds an ideological character, it is assumed as one of the cornerstones of European identity. Casanova (2004) comes to challenge the latter argument, stating that "the problem of religion in relation to democracy may not be a real problem intrinsic to religion itself, but rather a problem linked to widespread secularist assumptions about religion, democracy and their relationship". On the other hand, Cesari argues that it is the secularist assumptions about the proper place of religion in modern secular democracies and not religion per se that is problematic for European democracies. The argument is that the widespread negative association that religion is ‘intolerant’ and ‘conflictive’ do not find any ground/base in the historical experience of Europe while all the latest conflicts were "product of modern secular ideologies".

[1] "The freedom of religion is one of the oldest and most controversial of the claims that are now recognized as forming part of the corpus of human rights" (Evans: 1997, p. 1-5).
[2] Immigration to Europe and Islam are tended to be used as synonyms, while a big majority of immigrants in many EU countries are Muslims and at the same time, the majority of Europe’s Muslims are immigrants.
[3] As defined by Cesari (2009): "It involves actors who propose that Islam is an existential threat to European political and secular norms and thereby justifies extraordinary measures against it", p. 1.
[4] The concept "culture talk" is borrowed from Mahmood Mamdani (2004) which justifies the artificial division between modern and pre-modern religions and between secularism and Islam. Under the concept of 'culture talk', Islam is viewed as a single unified ideology, incapable of innovation, unable to adapt to current challenges and liberal thought, (Cesari: 2009, p. 1).

Author info:
Lina Klemkaite is a PhD Student in International and Intercultural Studies, University of Deusto, Bilbao (ES).