Last Wednesday, the French Cour de Cassation (pictured left), in the Baby Loup case, permitted yet another restriction to be placed on the right to manifest religion in France. The applicant had been fired from her job at Baby Loup, a private crèche and nursery, for violating the organisation’s rules of procedure. By wearing the hijab, the applicant purportedly breached the rule that
the principle of freedom of conscience and of religion of each staff member may not impede respect for the principles of laïcité [secularism] and neutrality that apply in the exercise of developmental activities, either on the premises of the crèche or during outside activities in which staff accompany children enrolled in the crèche.
The applicant will now take the case to the European Court of Human Rights (ECtHR). The decision of the Cour de Cassation in Baby Loup is made all the more significant by the pending judgment in SAS v France, due to be handed down by the ECtHR today. Will the ECtHR continue to permit the creeping erosion of the right to manifest religion (article 9 European Convention of Human Rights (ECHR)) by deferring to the State’s margin of appreciation?
The decision of the Cour de Cassation was based on Articles L. 1121-1 and L. 1321-3 of France’s Labour Code, which require any restrictions on an employee’s freedom of religion to be proportionate and justified by the nature of the employment. The Courtfound that the private nursery could not justify the restriction of the freedom of religion of the employee by direct reference to the principle of laïcité, as the principle applies only to public bodies. Nonetheless, it was willing to accept that the adoption of the principle of laïcité in the organisation’s rules of procedure was designed to protect children and to promote gender equality, rather than promoting and defending laïcité as a religious, political or philosophical belief. Consequently, the Cour de Cassation found that the restriction on the applicant’s freedom of religion was permissible.
The ECtHR is also likely to consider whether the freedom of religion of the applicant in Baby Loup can be justified by either the principle of secularism or ‘the rights and freedoms of others’ (article 9(2) ECHR). The recent cases of Ahmet Arslan and others v Turkey and Eweida and others v United Kingdom are directly relevantas previous ECtHR cases addressing the restriction of the right to manifest religion in the private sphere.
Ahmet Arslan concerned the arrest of members of the Aczimendi tankaı religious community for wearing religious clothing in public. The ECtHR found that the restrictions placed on the community by the authorities could not be justified by reference to the principle of secularism as the applicants were not State officials (para 48) and were not wearing religious clothing in a State institution such as a State school (para 49). Thus, Ahmet Arslan limits the circumstances in which States may justify the restriction of freedom of religion on the grounds of the principle of secularism to public officials and institutions. Consequently, it seems unlikely that France will be able to rely on the principle of laïcité in the Baby Loup case, as the nursery was a private organisation.
The ECtHR’s decision in Eweida and others underscored that private employers cannot place unjustified restrictions on the freedom of religion of their employees. In Eweida and others, the applicant wished to wear a crucifix contrary to the uniform policy of British Airways. While the ECtHR was willing to accept the legitimacy of the restriction, as it was ‘the employer’s wish to project a certain corporate image’, it did not accept that the restriction was proportionate (para 94). The crux of the ECtHR’s decision in Eweida and others appears to be that the wearing of the crucifix did not impact ‘the rights and freedoms of others’. Specifically, the ECtHR noted that ‘Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance’ (para 94). Consequently, ‘in these circumstances where there is no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant’s right to manifest her religion’ (para 95). However, in the instance of the third and fourth applicants in Eweida and others, the applicants had refused to perform civil partnership ceremonies and to offer relationship and sex therapy to homosexual couples, respectively, on the basis that it ran counter to their religious beliefs. The ECtHR accepted that as the applicants’ beliefs led to the discriminatory treatment of others, the restrictions placed on their freedom of religion were justifiable (paras 106 and 109). While the wearing of the hijab in the Baby Loup case does not raise the issue of the discriminatory treatment of others, the ECtHR’s decision in Eweida and others reveals that States retain a wide margin of appreciation to restrict freedom of religion in order to protect ‘the rights and freedoms of others’.
Although France cannot rely on the principle of secularism in Baby Loup, it can invoke the ‘rights and freedoms of others’ and, in particular, the need to protect children and promote gender equality, to justify the restriction of the applicant’s freedom of religion. The ECtHR’s decision in Dahlab v Switzerland indicates that it is likely to be sympathetic to this argument. Specifically, the ECtHR held:
The Court accepts that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children. The applicant’s pupils were aged between four and eight, an age at which children wonder about many things and are also more easily influenced than older pupils. In those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.
Thus, in Baby Loup, the young age of the children that attend the nursery, combined with the alleged ‘proselytising effect’ of the hijab suggests that the ECtHR will likely accept that the restriction on freedom of religion falls within the State’s margin of appreciation. In Ahmet Arslan, the ECtHR acknowledged that the manifestation of religion may be restricted if the act involves ‘proselytising nor exerting undue pressure on’ others. In Dahlab,the ECtHR did not require evidence of the proselytising effect of the hijab. Furthermore, in Leyla Şahın v Turkey, the ECtHR reiterated its position in Dahlab that the hijab is contrary to gender equality (para 111). Thus, the ‘mere worries or fears’ (para 5 Judge Tulken Dissenting Opinion) outlined in the Baby Loup case would appear to be sufficient to justify the restriction of the applicant’s freedom of religion. It does not seem that the ECtHR will need to consider the principle of laïcité in order to find that the restriction of the applicant’s right to manifest religion in Baby Loup was justifiable.
In Baby Loup, the ECtHR will again be asked to consider the legitimacy of restrictions placed on the right of Muslims in France to manifest their religion. While the ECtHR has been willing to accept that restrictions placed on a ‘discreet’ crucifix were disproportionate, it has yet to uphold the right of Muslims to wear what it considers to be ‘the powerful, external symbol’ of the hijab. Prior to the restriction placed on the wearing of the niqab and burqa by Loi no 2010-1192, the restrictions placed on freedom of religion in France had been limited to State officials and institutions. As SAS v France and the Baby Loup case indicate, restrictions on this right are now creeping into the private sphere. Despite this shift, if the ECtHR is to be consistent with its previous jurisprudence, it seems likely that it will find that France has acted within its margin of appreciation in the Baby Loup case.
There is an immediate danger that the right of Muslim women to manifest their religion will continue to be eroded if the ECtHR does not scale back the margin of appreciation afforded to States under article 9. As the ECtHR emphasised in Eweida, article 9 ‘is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others’ (para 94). The ECtHR needs to decide whether the principles of tolerance, pluralism and diversity extend to Muslims in Europe. The pending decision in SAS v France will reveal whether the Court is willing to uphold the right of Muslims in Europe to manifest their religion.