Skip to main contentSkip to navigationSkip to navigation
A woman wearing niqab walks at Square Trocadero near the Eiffel Tower in Paris
A woman wearing a niqab walks in Trocadero square in Paris, 2009. France banned the burqa and the niqab in April 2011. Photograph: Gonzalo Fuentes/Reuters
A woman wearing a niqab walks in Trocadero square in Paris, 2009. France banned the burqa and the niqab in April 2011. Photograph: Gonzalo Fuentes/Reuters

Religious freedom in Europe – when both sides go too far

This article is more than 11 years old
Four British cases at the European court of human rights highlight the collision of libertarian and secularist approaches

Who could have imagined that a court in Cologne would, this year, rule the ancient and sacred practice of male circumcision illegal, or that the previous year the European court of human rights (ECHR) would overturn its earlier ruling that crucifixes should not be displayed in state schools? The see-sawing nature of such judgments about religious freedom suggests something is going seriously wrong in the way the whole issue is being approached.

American commentators think they know what it is – the chickens of European secularism are coming home to roost. Marginalise religion, install secular elites and what do you get? A new secular intolerance to match Europe's old religious intolerance. Bans on headscarves and minarets strike Americans as egregious. Such things could never happen in the US, with its more robust tradition of respect for religious freedom.

Martha Nussbaum is the doyenne of this approach. Free exercise of religion is essential, she argues, because a person's religion is essential to their identity. To deny someone the right to live by their conscience is what the 17th-century pioneer of religious freedom Roger Williams called "soule rape". The only possible reason for restricting religious freedom is when it violates civil law or harms others.

This libertarian approach contrasts starkly with the secularist approach more common in Europe, according to which individuals should be free to express their religion in the privacy of their own homes, churches or temples – but not in public. Hence the restrictions in some countries on the display of religious symbols in public places – whether burqas on the streets of France or minarets on the skyline of Switzerland. Some leading political thinkers, including Jürgen Habermas before he revised his view, would even restrict the use of religious reasons in political debate, arguing that only "universal" secular reason is appropriate in public.

Such secularism lies behind some of the four British cases that are currently being appealed to the ECHR, cases concerning a British Airways employee who wore a crucifix, a nurse who prayed with a patient, a Christian registrar who refused to conduct civil partnerships and a Christian counsellor who would not work with gay couples. Examples of the secular "persecution" of Christianity, say the conservative Christian lobby groups who are backing the appeal.

It's at this point, where they start to go head to head, that we need to stand back and get some perspective on these opposed views regarding religious freedom. I agree with the libertarian view that the ban on wearing a crucifix or saying a prayer in public is an unnecessary violation of religious freedom. No law is broken, and no serious harm is done. But the cases of the registrar or the counsellor – or of the bed and breakfast owners who would not give a room to a gay couple – are significantly different, for here the exercise of religious freedom clashes with equality law.

Case closed, say the secularists. But religious libertarians have a powerful retort. The law, they point out, is not sacred and timeless. It is the law of the majority, and it can be wrong – morally wrong. Religious people who believe a law to be immoral must at least be allowed to opt out – to sit on their hands and do nothing, so long as no one is harmed. This, after all, has long been permitted in the case of Catholic medical staff who do not wish to perform abortions. The law of the majority should not bear down unnecessarily hard on minorities.

I think this is right. But it misses the important point that majorities have rights too. If you wish to ignore what a majority has decided to be true or lawful, your action is likely to be costly to wider society – and why should the majority bear the cost of your dissent? It was surely right to allow those with conscientious objections to opt out of killing in war, but it would not have been right to allow them to stand idly by while others defended their country. Being a member of democratic society involves duties as well as rights.

When they take their approaches to their logical conclusion, then, both the libertarian and secularist positions go too far. One pushes individual liberty, and sometimes group autonomy, so hard that it denies state and society any space at all. The other pushes state and society so hard that it denies any space for individual liberty or group self-determination. In that sense, they are mirror opposites. But in another way they both make the same mistake, for they are equally careless of democracy. Libertarians deny the legitimate claims of democratic decision-making, while secularists forget that democracies include religious people as well as secular ones, and that genuine democracy tries to balance competing interests rather than impose a single norm.

So the libertarians are surely right that you can have exceptions without the sky falling in. But they forget that submitting yourself to the democratic will when you don't agree can be a matter of humility, as well as humiliation.

Most viewed

Most viewed