The Right to Religious Freedom and the Threat to the Established Order as a Restriction Ground: Some Thoughts on Account of the Achbita Case

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On March 15, 2016, the European Court of Justice (ECJ) heard two different cases, the case of Achbita and that of Bougnaoui. As noted here, while both cases had the wearing of the Islamic headscarf at work as a common factual background, the legal questions asked were different. The Achbita case, referred to the ECJ by the Belgian Cour de Cassation, concerned Achbita’s dismissal from work as a receptionist. The dismissal took place after she refused to comply with a prohibition to wear the Islamic headscarf when dealing with customers. The Bougnaoui case, referred by the French Cour de Cassation, focused on a similar dismissal after she refused to abide by her boss’ demands and take off her Islamic headscarf, following the relevant wishes expressed by one of the enterprise’s clients. Nevertheless, the two courts brought different questions before the ECJ for a preliminary ruling. The Belgian supreme administrative court asked the ECJ whether such a ban from wearing the headscarf at work constituted direct discrimination. Its French counterpart focused on the client and whether his will not to have services provided by an employee wearing a visible religious symbol or attire contravened EU law.

On Mach 14, 2017, almost a year after the hearing of the cases, the ECJ issued its judgments (here and here). In the case of Achbita, the ECJ ruled that employers, coming to pursue a policy of political, philosophical and religious neutrality, have the right to prohibit their workers from adhering to a specific religious dress code or from wearing at work visible religious symbols. On the contrary, in the Bougnaoui case, the court’s holding was that employers cannot discriminate between employees who wear religious symbols and those who do not, due to a customer’s demand. Accordingly, while the Bougnaoui judgment closes the door to any potential restricton of religious expression at work, this is not the case with the Achbita one. The latter can be seen as introducing a possible infringement on religious freedom even if the Court ruled that employers have the option and not the obligation to impose such a ban on visible religious symbols. Through the granting of such an option, the ECJ sends the message that an individual cannot cite religious beliefs in order not to comply with generally set applicable norms.

This has been palpably demonstrated in domestic jurisprudence on both sides of the Atlantic. For example, in the Employment Division v. Smith, the U.S. Supreme Court held that two Native Americans had been justifiably dismissed from their work after the ingestion of peyote, a powerful entheogen. The fact that their religious beliefs sanctioned such an ingestion was not a valid ground for them to contravene the laws of the State of Oregon which prohibited possession and use of the particular substance. Similarly, in the case of Bull v. Hall, the UK Supreme Court held that the religious beliefs of a hotel keeper could not justify discrimination against same-sex couples and justify a policy according to which the hotel suites destined for married couples would be given only to heterosexuals.

At the same time, the Achbita case holds some differences. The question of non-compliance does not relate to an Act of Parliament or to a general principle of law, like that of non-discrimination. The normative background rather comes from the private initiative and the will of the employer to pose certain norms in his business according to which his employers must abide. In that sense, the Achbita judgment poses the legal question whether the private will and the setting of private norms similar to these governing the everyday life of a firm can ultimately restrict religious freedom. The question becomes more demanding once two things are taken into account: first, neither article 10 of the EU Charter of Fundamental Rights, read in conjunction with article 52, nor the European Convention on Human Rights, include the preservation of religious neutrality as a ground for restricting religious freedom. Article 9, paragraph 2 of the Convention contains a number of grounds for restricting religious freedom, including reasons of public order and health, or the respect for the rights of others, but not any reference to the preservation of religious neutrality. In that sense, the possible creation of new restriction grounds raises questions of judicial activism and imperils human rights’ protection.

Secondly, the teleological reasons behind the imposition of such religious neutrality restrictions must be taken also into account. On this, Achbita and the other aforementioned judgments largely differ. In the latter, a policy of religious neutrality is imposed in the name of respect for legality and the rule of law. On the contrary, in Achbita, such a policy is linked with the subjective and ideologically-loaded perceptions of a firm’s owner and his opposition to any change to his firm’s image or to the dynamics at work. In that sense, by siding with such an employer, the Achbita judgment should be read as a wider ECJ attempt to crown the preservation of the status quo as a legitimate ground for the restriction of human rights and liberties. This resembles the approach the European Court of Human Rights has already taken on the matter.

In a number of cases, the Strasbourg court has appeared willing to protect individual religious freedom. Yet, such a protection is provided only to the extent that this freedom does not pose a threat to the existing socio-political status quo. For example, in the  Dahlab case, the court refused to grant to a teacher convert to Islam the right to wear an Islamic headscarf at school, out of fear that the headscarf as an ‘external, powerful symbol’ would proselytise the students and disrupt the existing religious and, by extension, social harmony. Preservation of the social harmony is also a parameter stressed by the Court in its upholding of the French burqa ban in the SAS case. In the Sahin case, the disruption of the political harmony and of the existing political status quo of Turkey as a secular democracy were put, according to the Court, at stake. Along these lines, the Court sided with the State and prohibited Sahin from attending a Turkish university wearing the Islamic headscarf out of fear that this would peril secularism in Turkey. Similarly, through in its Achbita judgment the ECJ appears ready to acknowledge religious freedom, this is only to the extent that it does not hinder a person’s quest to preserve the existing status quo in his enterprise, even if this status quo is one of religious neutrality. Emphasis is placed on the employer’s ‘I’, not on the employee’s ‘thou’.

Such emphasis on the preservation of the existing status quo at all costs, even if this will lead to a restriction or violation of other people’s rights, constitutes undoubtedly a conservative approach. Consequently, the particular judgment should be read also in a socio-political context.

Already under the first democratic regime in ancient Athens, the question whether man should be seen as ‘good in nature’ or as a cynical, self-centred being, has been a matter of debate between Socrates and the sophists. The former adamantly believed in man’s benevolent character, while the latter held that people’s viewpoints can change according to their interests. In modern times, the Socratic viewpoint has been endorsed in the stance liberal democracy has taken towards freedom, tolerance and human rights. Nevertheless, the particular viewpoint has equally been lately menaced through the voices heard around the world – from France, to the U.S. and Australia – against immigration and minority rights. Read in this framework, the recent judgment seems to place another nail in the coffin of liberal democracy’s Socratic stance.

On this account, it will be interesting to see the impact the recent judgment may exert to the overall upholding of liberal values in Europe. With the extreme right lurking for its rise to power, so far, domestic European courts have been divided as to whether to unequivocally side with minorities and be understanding towards their religious needs. Thus for example, in Germany, in 2015, the Federal Constitutional Court ruled that a ban on teachers wearing Islamic veils at schools was not compatible with religious freedom and that veils did not pose a threat to the school’s learning environment.

Nevertheless, despite such a decision, lower instance German courts have not been unanimous in awarding compensation to teachers who were discriminated against due to their wearing of such a veil. For example, last February, Berlin’s Labor Court ruled in favour of a Muslim woman who had been rejected from a teaching job because she was wearing the Islamic headscarf. Interestingly enough, in that particular case, the State proposed to the applicant to wear a wig at school instead of the headscarf, because the wig was ‘ideologically neutral.’ The ‘ideological neutrality’ argument was ultimately not endorsed by the court. On the other hand, in August 2016, the Osnabruck Administrative Court held that a school had valid reasons not to allow teaching duties to a Muslim teacher who wore the Islamic headscarf.

In this framework, the judgment of the European Court of Justice may augment voices calling for further restrictions to minority rights. Ultimately, it may serve as the nightingale of a less liberal era not only in parliaments and governments but also in courts. Whether we will shout ‘we are all Socrates,’ is something that remains to be seen.

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Ted Folkman says

March 23, 2017

The reference to the Smith case is correct, but it risks leaving the impression that Smith was the last word on this side of the Atlantic. In the wake of Smith Congress overwhelmingly approved the Religious Freedom Restoration Act, which applied the rule of strict scrutiny to burdens on the right of free exercise of religion.

RFRA had its own constitutional problems (having to do with federalism, not the underlying issue) but to address those problems many states have enacted their own versions of RFRA. So in America at least, the idea that religious scruples provide no basis for exceptions to otherwise generally applicable laws is not really right.