Headscarves and religious liberty

August 9, 2004

With regard to the headscarf debate in Europe, specifically in Germany and France, my Greek friend Giorgos raised an interesting question to me: How can we determine the limits between religious liberty (which can be defined as the respect of the society to the right of person to believe in the ontological axioms and to obey the ethical demands of a specified religion) and human rights?

I agree that it is an important question. Certainly the state must act sometimes to prevent such horrible cruelty as e.g. female circumcision, whether that practice is a religious, cultural, or ethnic practice. The state can implement limitations on religious liberty that are “prescribed by law” and that are “necessary in a democratic society,” according to Article 9, para. 2 of the European Convention. The question is, is wearing a headscarf susceptible to limitation on these grounds? (The European Court of Human Rights found that it was in the case of Dahlab v Switzerland, [2001] Eur. Ct. H.R., no. 42393/98, Decision of Feb. 15, 2001). More importantly, is neutrality the correct argument to use to limit freedom of religion in the case of wearing headscarfs? Because if the state bans headscarfs using the neutrality argument, then it is really hostile toward religion, rather than truly neutral.

So, I agree that the state plays an important role in policing against the violation of human rights under the pretext of religion or culture or ethnicity. But also I think we should be careful in how we ask the question. If phrased as Giorgos posed it–”How can we determine the limits between religious liberty (which can be defined as the respect of the society to the right of person to believe in the ontological axioms and to obey the ethical demands of a specified religion) and human rights?”–it almost sounds as if the freedom of religion is not also a human right. But in many ways it seems like the most important human right because it serves as a measurement of how free society is. So as we discuss the philosophical limits of the freedom of religion (i.e. where the free exercise of religion harms someone physically or serves as the premise for oppressing someone else) we need to remember that freedom of religion is also a human right that the state must protect in a neutral way by not favoring one religion over another, but rather allowing all religions to flourish and thus promote a pluralistic society where freedom rules, not prejudice.


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