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 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,
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".
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
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
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" , 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
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  together with the securitization  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" .
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".
 "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).
 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.
 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.
 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).