Islamic Headscarves: The Other-Religion Effect and Religious Literacy at the European Court of Human Rights

ABSTRACTIslamic headscarves continue to be one of the most controversial issues concerning Muslims across Europe. In order to analyse how the headscarf is evaluated through the prism of human rights values and moral principles in Europe, this article revisits some headscarf cases heard at the European Court of Human Rights (ECtHR). The weaknesses in the rulings have been widely examined but this article will focus on the religious individual, her agency, and the link between her and her associated group, which have been less discussed in the literature. The article highlights that the modern socio-political structure of the Council of Europe countries is strikingly different from that of their pre-modern counterparts. Thus, the contours of religious groups, the link between an individual and her associated group, and the positioning of various religious groups vis-a-vis the state require a set of approaches to a religious claim centred on the individual believer. This can be clearly observed in the theoretical underpinnings of the European Convention on Human Rights, which, however, are not pursued adequately in practice because the actual rulings not only involve logic but also include perception.KEYWORDS: Religious freedomArticle 9 of the European Convention on human rightsMuslim women and agencysecularismstate neutralitylaw and religion AcknowledgementI would like to thank Kerstin Wonisch for her comments and suggestions.Disclosure StatementNo potential conflict of interest was reported by the author(s).Notes1 See Sullivan et al., Politics of Religious Freedom; Sandberg et al., Research Handbook; Cranmer, et al., Confluence of Law and Religion.2 This article uses ‘Islamic veil’ as a general term referring to all kinds of Islamic modesty choices that Muslim women practise such as headscarves and face veils. The article refers to the particular items (headscarf or face veil) in their respective cases. The four main cases that the article examines involve the headscarf.3 The following ECtHR cases involve pupils in middle and high school: Doğru v France (2008), Köse and Others v Turkey (2006), Kervanci v. France (2008), Aktas, Bayrak, Gamaleddyn and Ghazal v France (2009).4 S.A.S v France, para. 135.5 Ibid.; Lachiri v Belgium, para. 46; see Ringelheim, ‘Lachiri v. Belgium’.6 S.A.S v France, para 122. Similarly, the inadmissibility decision in Al-Morsli v France (2008) concerns only the physical entity of the headscarf in the context of identity checks.7 Kaushik, ‘Lachiri v Belgium’, 51.8 Sahin v. Turkey, para. 17.9 Dahlab v Switzerland, 710 Ebrahimian v France, para. 52; Dahlab v Switzerland, 11; Sahin v Turkey, para. 115; Kurtulmuş v Turkey.11 See, for example, Evans, ‘Islamic Scarf’; Elver, Headscarf Controversy; Brems, ‘Hidden under Headscarves?’; Vakulenko, ‘Islamic Headscarves’; Evans and Petkoff, ‘Separation of Convenience’; Bleiberg,‘Unveiling the Real Issue’; Mahmood and Danchin, ‘Immunity or Regulation?’; Gunn, ‘Religious Symbols in Public Schools’. See also Judge Tulken’s dissenting opinion in Sahin v Turkey (2005). For a more conciliatory perspective, see Howard, Law and the Wearing of Religious Symbols; McGoldrick, Human Rights.12 Brems, ‘Hidden under Headscarves?’, 19.13 Evans, ‘Islamic Scarf’, 52.14 Whistler and Hill, ‘Philosophy, Law, and Religion’.15 Sahin v Turkey, para. 55.16 Öztığ, ‘Turkish Constitutional Court’, 595.17 Quoted in Çınar, Modernity, Islam and Secularism, 81.18 Sahin v Turkey, para. 93.19 Ibid., para. 90–96.20 Turkish Constitutional Court, D. 7/3/1989 (1989).21 Note that the Constitutional Court of Turkey reversed this decision in 2014 with the Tuba Arslan decision. TCC 2014/256.22 Elver, Headscarf Controversy, 18.23 Sahin v Turkey, para. 101.24 Elver, Headscarf Controversy, 78.25 Sahin v Turkey, para. 114.26 Hoopes, ‘Leyla Şahin v. Turkey’, 722; Ringelheim, ‘State Religious Neutrality’, 38.27 Sahin v Turkey, para. 115.28 Ibid., para. 111; Dahlab v Switzerland, 27.29 Sahin v Turkey, para. 111–15.30 Dahlab v.Switzerland, 6–7.31 Ibid., 5.32 Dahlab v Switzerland, 7–8, Evans, ‘Islamic Scarf’, 59.33 McGoldrick, ‘Muslim Veiling Controversies’, 461.34 Dahlab v Switzerland, 1335 Evans, ‘Islamic Scarf’, 62–9.36 Dahlab v Switzerland, 13.37 Kurtulmuş v Turkey.38 Garahan, ‘Right to Discriminate?’, 352.39 Ebrahimian v France, para 37.40 Ibid., 44.41 Ibid., 25.42 Ibid., 44.43 Ibid., 61–4.44 Ibid., 72.45 Ringelheim, ‘State Religious Neutrality’, 32–3.46 Mirza, ‘Second Skin’, 10.47 Mahmood, ‘Feminist Theory’, 15.48 Asad, ‘Trying to Understand’, 501. I should note that I cite Talal Asad and Saba Mahmood as I find that their accounts of how practices can be an integral part of the practitioner very illuminating. However, I do not agree with Asad’s treatment of individuals in his narrative of ‘discursive tradition’. While Asad’s and Mahmood’s seminal work on agency, religion, and the secular is a valuable scholarly contribution in many ways, I also find their analysis limited to a certain type of Muslim experience.49 Ganley, ‘Racial Profiling’.50 Murdock, ‘Dressed to Repress?’, 180.51 Baumgarten, ‘Minority Dress Codes’, 289.52 Ibid., 290–1.53 Murdock, ‘Dressed to Repress?’, 180–93.54 Quataert, ‘Clothing Laws’, 403–7.55 Argıt, ‘Clothing Habits’, 81.56 See Gorski and Altınordu, ‘After Secularization?’.57 Casanova, Public Religions, 212.58 Ertit, Endişeli muhafazakarlar çağı, 101.59 For a similar discussion of accommodation of American Muslim individuals, see Moore, ‘Visible through the Veil’.60 Malik, ‘Complex Equality’, 129; Brems, ‘Hidden under Headscarves?’, 1.61 Karaduman v Turkey, 108; Dahlab v Switzerland, 2–13; Sahin v Turkey, para. 111; Dogru v France, para. 63–4; Aktas, Bayrak, Gamaleddyn, and Ghazal v. France, 2.62 Gürsel, ‘Distinction’, 380.63 ECtHR, Guide on Article 9, 31–2.64 Asad, ‘Trying to Understand,’ 501.65 Mirza, ‘Second Skin’, 10.66 Evans, Manual, 67.67 Ibid., 68.68 In a similar vein, some scholars suggest that the state should respond appropriately, employing the criminal law where necessary, in order to protect women against violence and coercion rather than imposing a blanket ban on headscarves. Although some Muslim girls/women might experience violence or might be coerced by their male relatives into wearing the headscarf, a blanket ban would not solve the problem effectively but rather would oppress autonomous women who choose to wear it. See Malik, ‘Complex Equality’, 143; Evans, ‘Islamic Scarf’, 73.69 Lautsi and Others v Italy, para. 72.70 Gunn, ‘Religious Symbols’, 113.71 Lautsi and Others v Italy; see the Administrative and Supreme Court’s decisions quoted in para. 15–16 and para. 35–6, respectively.72 For a short literature review, see Bhowon and Bundhoo, ‘Perceptions and Reasons’, 33–4. For other accounts, see Mahmood, Politics of Piety; Fernando, Republic Unsettled; Keaton, Muslims Girls; Abu Odeh, ‘Post-Colonial Feminism’; Abu Lughod, ‘Do Muslim Women?’; Hoodfar, ‘The Veil’; Almila and Inglis, Routledge International Handbook.73 Mirza, ‘Second Skin’.74 Peresin and Cervone, ‘Western Muhajirat’.75 Al Wazni, ‘Muslim Women’, 329.76 Rinaldo, Mobilizing Piety, 79; Albayrak, ‘Compressed Identity’.77 For example, see the veil as a symbol of resistance in the Algerian war of independence in El Guindi, Veil. See also, hijab poetry in which veiled women share their experiences of hijab: Amer, What is Veiling?.78 For example, see Huda Shaarawi’s decision regarding hijab in Lanfranchi, Casting off the Veil; Amer, What is Veiling?, 177.79 El Guindi, Veil, 172.80 Almila, Veiling in Fashion, 27 and ch. 1; Okutan, Türkiye’de popüler kültür.81 See Bhowon and Bundhoo, ‘Perceptions and Reasons’, 33–4; Furseth, ‘Hijab’.82 Hidayatullah, ‘Veil’, 702.83 For example, see Read and Bartkowski, ‘To Veil or Not to Veil?’, 400. See also Mernisi, Veil and the Male Elite, 75.84 Evans, Manual, 31.85 Metropolitan Church of Bessarabia and Others v Moldova, para. 118.86 I wish to highlight that the essential reason for the protection of religious organizations under the ECHR is to protect individuals, not for other political reasons such as a special agreement between a religious group and the state. In this context, religious groups do not indicate fixed political ties as individuals have free movement in and out of religious organizations, being members by choice. However, I have not referred to possible conflicts between an individual member and her religious organization – a complex subject that is beyond the scope of this article. Depending on the particularities of the cases, the ECtHR recognizes the organizational autonomy and the doctrinal independence of religious organizations when such conflicts occur. See Ferrari, Wonisch, and Medda-Windischer, ‘Tying the Knot’, 689.87 See Evans, Manual, 284–5.88 Eweida and Others v United Kingdom, para. 81.89 Pretty v UK, para 82.90 Evans, Manual, 11.91 Arrowsmith v UK, para 19.92 Evans, Freedom of Religion, 115.93 Hill and Whistler, Right to Wear Religious Symbols, 49–51.94 Jakobski v Poland, para. 45.95 Chaib, ‘Religious Accommodation’, 33.96 Hill and Whistler, Right to Wear Religious Symbols, 107.97 Ibid., 67.98 Ewieda v UK (2013), para. 82.99 Vakulenko, ‘Islamic Headscarves’, 190–6.100 Marshall, ‘Conditions for Freedom?’.