SAS v France: Does Anything Remain of the Right to Manifest Religion?

The finding by the European Court of Human Rights (ECtHR) in SAS v France that the so-called ‘French burqa ban’ did not violate the European Convention on Human Rights (ECHR) will not surprise many in the field of human rights. However, the judgment itself contains a number of developments and departures from the Court’s previous jurisprudence that warrant further consideration. In particular, the conclusion that the right to manifest religion may be restricted on the ground of ‘living together’ presents a worrying development, if this right is to have any practical meaning. (photo credit)

In SAS v France, the applicant challenged the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’), which prohibits the covering of the face in public. The case differs from previous cases concerning the right of Muslim women to manifest religion by wearing religious attire, as the law imposed a blanket ban which extended to the social sphere. The applicant argued that by preventing her from wearing the burqa the ban violated her rights under articles 3, 8, 9, 10, 11 and 14 ECHR. The ECtHR completely dismissed her claims under articles 3, 10 and 11 ECHR, and focused its attention on articles 8, 9 and 14 ECHR, with a notable emphasis on article 9, the right to freedom of religion or belief.

The ECtHR’s judgment in SAS v France, for the most part, is balanced, well-reasoned and provides a thorough consideration of the French government’s justifications for the restriction of the applicant’s right to manifest her religion: public safety and ‘respect for the minimum set of values of an open and democratic society’. The latter category comprises three separate elements: gender equality, human dignity and ‘respect for the minimum requirements of life in society’ or ‘living together’. Whilst public safety is found within articles 8(2) and 9(2) ECHR, as noted by the ECtHR,  ‘respect for the minimum set of values of an open and democratic society’ does not correspond with any of the permissible limitations on article 8 and 9 ECHR (paras 116-7). Consequently, the ECtHR interpreted this justification as falling with the broad ‘protection of the rights and freedoms of others’ (para 117).

While the ECtHR established that the ‘burqa ban’ was prescribed by law (para 112), it did not accept that the ban pursued the ‘legitimate aims’ of gender equality and human dignity (paras 119-120). Specifically, in the context of gender equality, the ECtHR took ‘the view, … that a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions’ (para 119). This marks a significant departure from the ECtHR’s jurisprudence in the hijab cases. InDahlab v Switzerlandthe ECtHR had held that the hijab ‘appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality’ . However, this approach was the subject of criticism, most notably by Judge Tulkens in her dissenting opinion in Leyla Şahın v Turkey:

It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. (para 12)

Neither Dahlab (a teacher) nor Sahin (a medical student) conformed to the idea of Muslim women as victims.  Yet, in thesecases, the ECtHR accepted that the hijab was contrary to gender equality, and disregarded the meaning attributed to it by the applicants. This position both patronised the applicants and essentialised Islam as a religion that discriminates against women. By refraining from analysing the applicant’s choice of religious attire in SAS v France, the ECtHR has avoided repeating these errors. It is contradictory that the ECtHR has been willing to accept that the hijab is contrary to gender equality but not the burqa. Nonetheless, this is a welcome development in the ECtHR’s jurisprudence and it is to be hoped that SAS v France signals the end of the ECtHR making sweeping value judgments about items of religious clothing.

The ECtHR’s dismissal of the French argument that the ‘burqa ban’is necessary to protect human dignity also highlights a change in the approach of the Court.  The ECtHR pointed to the lack of evidence to support the State’s assertion

that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others. (para 120)

 The Court further recognised

the expression of a cultural identity which contributes to the pluralism that is inherent in democracy. It notes in this connection the variability of the notions of virtuousness and decency that are applied to the uncovering of the human body. (para 120)

Thus, rather than adopting an essentialised view of Islam, the ECtHR recognised that pluralism entails the recognition of different perspectives.

While gender equality and human dignity were not found to be legitimate aims pursued by Loi no 2010–1192, public safety and ‘respect for the minimum requirements of life in society’ or ‘living together’ were (para 115, 121-2). Consequently, the ECtHR went on to consider whether the restriction on the applicant’s freedom of religion was ‘necessary in a democratic society’ and proportionate to the aim pursued.

As noted in an earlier post (here), the ECtHR in Mann Singh v Franceaccepted restrictions on the right to manifest religion on the grounds of public safety without requiring evidence of the necessity of the restriction. In SAS v France, the ECtHR accepted the justification that ‘a State may find it essential to be able to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud’ (para 139). However, although the restriction pursued a legitimate aim, the ECtHR did not find that it was necessary in a democratic society.  In the absence of ‘a general threat to public safety’, the ECtHR found that a blanket ban was disproportionate (para 139). Consequently, the ECtHR again departed from its previous jurisprudence to exercise a higher level of scrutiny of the legitimacy of the restriction and the evidence needed for a blanket ban. This perhaps indicates recognition of the serious consequences of a blanket ban and the need for particularly weighty reasons to justify it.

Even though the ECtHR was not willing to accept that the restriction on the applicant’s freedom of religion was justified on the ‘usual’ grounds of gender equality and public safety, it was willing to accept that the ‘burqa ban’ pursued the legitimate aim of ‘living together’ under ‘the protection of the rights and freedoms of others’. Despite not being listed in articles 8(2) and 9(2) as a legitimate justification for restricting a convention right, the ECtHR was willing to accept that this ‘far-fetched and vague’ concept (dissenting opinion para 5) fell within the ground of ‘the protection of the rights and freedoms of others’ (para 117). In assessing the scope of the concept, the Court recognised that

the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. (para 122)

Consequently, after recognising that the restriction only impacted a relatively small number of Muslim women (para 145) and that the law was framed in a neutral manner (para 151), the ECtHR accepted that the practice of wearing the burqa or niqab was ‘deemed incompatible, in French society, with the ground rules of social communication and more broadly the requirements of “living together”’ (para 153). Therefore, the ‘burqa ban’ was proportionate to the aim pursued (para 157) and the applicant’s rights had not been violated.

A number of inconsistencies in the ECtHR’s consideration of ‘living together’ warrant further elaboration. The Court expressly recognised ‘the flexibility of the notion of “living together” and the resulting risk of abuse’, and, thus, the need to ‘engage in a careful examination of the necessity of the impugned limitation’ (para 122). However, the Court’s recognition that it should ‘engage in a careful examination of the necessity’ of the ‘burqa ban’ was contradicted by the acceptance of the ‘wide margin of appreciation’ of France (para 155). It is difficult to see how these two concepts are compatible with one another. In particular, the ECtHR recognised that France had a wide margin of appreciation because the ‘burqa ban’ had been adopted following a democratic process (para 154). However, in Young, James and Webster v United Kingdom, the ECtHR established the position that

[a]lthough individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. (para 63)

Consequently, the democratic process does not per se justify restrictions being placed on the rights of minorities. In fact, in SAS v France, the ECtHR emphasises that it was ‘very concerned by the indications of some of the third-party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010’ (para 149). The ECtHR should in this instance have prioritised ‘a careful examination’ above the ‘wide margin of appreciation’ of the State, as legitimate concerns had been raised regarding prejudice and intolerance against Muslims in French society influencing the adoption of the law in question.  As surmised in the dissenting opinion of Judges Nussberger and Jäderblom:

While it is perfectly legitimate to take into account the specific situation in France, especially the strong and unifying tradition of the “values of the French Revolution” as well as the overwhelming political consensus which led to the adoption of the Law, it still remains the task of the Court to protect small minorities against disproportionate interferences. (para 20)

The concept of ‘living together’ used by France to justify the restriction placed on the religious manifestation of Muslim women pursues a distinctly assimilationist agenda. Although the ECtHR, throughout the judgment, reiterates that ‘pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”’, the ECtHR’s conclusion that there is no violation of the applicant’s rights legitimises a law which eliminates pluralism from the social sphere and, thus, the associated intolerance against Muslims. Indeed, as stressed in the Dissenting opinion ‘… the blanket ban could be interpreted as a sign of selective pluralism and restricted tolerance … It has not sought to ensure tolerance between the vast majority and the small minority, but had prohibited what is seen as a cause of tension’(para 14).

In sum, the decision is a distinct departure from the ECtHR’s jurisprudence in other cases concerning the rights of Muslim women to wear religious attire. The rejection of France’s justifications based on gender equality and public safety makes progress towards rectifying some of the criticisms of the ECtHR’s earlier decisions in this area. However, the recognition of the concept of ‘living together’ as a justifiable ground for the restriction of the right to manifest religion is cause for concern. The concept, which does not find expression in the ECHR, has been prioritised above ‘concrete individual rights guaranteed by the Convention’ (para 2 dissenting opinion). This introduces the risk that the majority will be permitted to dictate that minorities assimilate in order to ‘live together’ instead of pursuing the more integrationist aims of ‘pluralism, tolerance and broadmindedness’.  Although the ECtHR has recognised the ‘risk of abuse’ of this concept, by affording France a wide margin of appreciation, the ECtHR has not heeded its own warning. The concept of ‘living together’ has the potential to proliferate into future judgments concerning the right to manifest religion, in a similar manner to the concept of secularism following the Sahin case (paras 115-16). As noted in an earlier post, the ECtHR must decide whether it is willing to protect the rights of Muslim women to manifest their religion. The addition of ‘living together’ to secularism, gender equality, public safety and the protection of children as permissible grounds of limitation in these cases gives little cause for optimism. What little remained of the right to manifest religion may just have been eroded.

 The author acted as a legal adviser for the applicant in the case of SAS v France. The opinions expressed in this post are the author’s own and do not necessarily represent the views of other members of the legal team.