On 1 July I posted a note on SAS v France  ECHR 695. Given that it was an immediate reaction to the judgment, it was intentionally long on description and short on comment – though it did express some reservations about the Grand Chamber’s majority decision. Initial reaction around the blogosphere has been almost entirely unfavourable.
On St John’s University Law School’s Center for Law and Religion blog Mark L Movsesian heads his post European Human Rights Court to France: Do Whatever You Want and describes the level of deference displayed in the judgment as “quite breathtaking”:
“Essentially, the European Court is saying, a state can ban religious expression in order to maintain local norms of “living together.” What ban on religious expression would not be allowed under such a standard? Let’s pose a hypothetical case. France already prohibits conspicuous religious dress in public schools. Let’s assume France decides to extend this ban to all public places, arguing that conspicuous religious dress in public creates unnecessary tension and interferes with social interaction à la française. Under the court’s deferential approach, wouldn’t such a ban be permissible? What would be the basis for second guessing France’s assertion about what French social norms require?”
He concedes that a degree of deference to national norms is unavoidable, given that the Council of Europe includes scores of states with widely varying cultures and histories and “one size simply doesn’t fit all”. However, though the ECtHR needs to show sensitivity to national judgments on delicate issues, it also
“… purports to pursue a common European standard in respect of human rights. Decisions like SAS suggest that pursuit has a long way to go”.
On EJIL: Talk!, the blog of the European Journal of International Law, Stephanie Berry of Sussex University (who acted as a legal adviser to the applicant in the case) is equally critical. She asks Does Anything Remain of the Right to Manifest Religion? and concludes, “not a lot”:
“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” [emphasis added].
She fears that the concept of “living together” may be imported into future judgments about the right to manifest and concludes that “What little remained of the right to manifest religion may just have been eroded”.
On the Oxford Human Rights Hub Lucy Vickers points out in Conform or be confined: S.A.S. v France that the judgment
“… builds a strong case against the ban. First, it considers relevant international law and practice, and concludes that a ban on the burqa in public would breach human rights standards and would be alien to European values. Second, the Court reviews the situation in other European states and finds almost universal consensus against bans in public spaces. Third, the Court considered the legitimate aims that have been used previously to justify ban on religious symbols, and shows how the ban is unnecessary to achieve most of them. It finds that the aim of public safety does not require a ban on the burqa in all public spaces. It is not necessary to uphold gender equality; nor is it necessary for human dignity”.
However, the Court identified one legitimate aim: “living together”. Professor Vickers characterises this as “one of the weakest of legitimate aims identified by the Court” and concludes that the judgment is “something of a let-down, coming as it does after such a careful and well evidenced demolition of the standard arguments in favour of banning the veil”.
In The French Ban on Public Face-veiling: Enlarging the Margin of Appreciation on EU Law Analysis, Ronan McCrea is less inclined to dismiss the arguments of the majority and suggests that
“[j]ust as ‘mandatory requirements’ had to be read into the Treaty by the Court of Justice to allow economic free movement rights to be curtailed so as to protect collective goals, the Strasbourg Court has had to adopt an expansive interpretation of ‘rights and freedoms of others’ to ensure adequate protection of broader commitments to religious coexistence”.
On the whole, he seems inclined to give the majority the benefit of the doubt, particularly in light of the row that broke out after the Chamber judgment in Lautsi.
“The dissenting judges are right that the majority’s reading of this term is strained. However, it is necessary to consider whether any other approach is possible. Whether the approach of the French authorities in this case was or was not proportionate, our life together is about more than the rights that we hold against each other and there are important principles that underpin liberal democratic life that are very imperfectly translated into rights terms”.
The commentator who seems least unhappy at the outcome is Joshua Rozenberg. Writing in the Law Society Gazette he concludes that if the GC has bowed to Realpolitik, in doing so it has simply taken the prudent course:
“But what’s wrong with being deferential to democratic governments on contentious issues? Sure, this is a cop-out. But it’s one that shows the Strasbourg court now has a well developed sense of self-preservation”.
Writing in the Daily Telegraph (which is no great admirer of Strasbourg), Rabbi Pinchas Goldschmidt, Chief Rabbi of Moscow and President of the Conference of European Rabbis, sees the ban on the building of minarets in Switzerland in 2009 [see Ouardiri v Switzerland  ECHR (No.65840/09) and Ligue des Musulmans de Suisse & Ors v Switzerland  ECHR (No.66274/09), in which both complaints were held to be inadmissible on the grounds that the applicants were not “victims” of any violation] and the ECtHR ruling on wearing a burqa as having “crossed a red line”:
“My personal view is that to suggest that the particular appearance of a place of worship (of which there were only four across the entire country at the time of the Swiss referendum) could somehow negatively impact on a person in any meaningful way is ludicrous in the extreme. I am also deeply suspicious of claims that a ban on the burka is designed to promote intercommunal relations. How intimidated would you really be if a lady with her face covered walked past you? Let’s imagine for a moment that you are somewhat intimidated by the fact that you can’t see what is behind that lady’s burka. Would you be less intimidated by a large man, wearing torn clothing, tattooed from head to toe, who you happen to know always keeps a baseball bat stowed in his motorcycle? Is anyone calling for a ban on tattoos and concealed sports equipment?”
On the Mashable news and comment site Louise Roug describes the French ban as Bad News for Women and contends that the argument that the veil is “an affront to French secular traditions” is “a slippery slope”. On the contrary: the judgment
“… negates the idea that different cultures and religions can live side by side. Plus, it raises questions about who gets to determine what are the right and proper cultural norms. Finally, there is a specious argument about terrorism and security: that the veil hides people’s identities. But so do certain hats, scarves and beards”.
In a press release John Dalhuisen, Europe and Central Asia Programme Director at Amnesty International (which made a written submission on the case), described the majority’s reasoning as
“… deeply disturbing to all those who value the freedom of expression. In forcing people to ‘live together’, the ruling will end up forcing a small minority to live apart, as it effectively obliges women to choose between expressing their religious beliefs and being in public. It is stereotypical to assume that all women who wear traditional or religious symbols or dress are coerced to do so, and no country should legislate away their rights, never mind punish them, based on such a crude generalisation”.
On Strasbourg Obervers, Saïla Ouald Chaib and Lourdes Peroni offer a rather less jaundiced view than many; but they nevertheless describe the judgment as a Missed Opportunity to Do Full Justice to Women Wearing a Face Veil. They suggest that, despite its positive aspects, the majority judgment’s reluctance to engage with the restriction on the applicant’s Article 8 and 9 rights is “worrisome”, particularly given the majority’s doubts about the legitimacy of “living together” and concerns about “indications of prejudiced remarks in the debates preceding the ban”. In their view, the GC
“… should have not only pointed out the convincing reasons why the ban is problematic but also lived up to these findings. Organizing diversity is indeed one area where the society concerned is best placed to decide. However, as the dissenting judges argue, ‘it still remains the task of the Court to protect small minorities against disproportionate interferences’ “.
Chaib’s and Peroni’s conclusion seems to me to go to the heart of the problem. Clearly, there is an issue about the margin of appreciation and the extent to which an international court can substitute its own judgment for that of the democratically-elected legislature of the respondent state. However, at an estimated 5 million, France has the largest Muslim minority in Western Europe; and if the ECtHR is not going to protect minorities against the erosion of their rights by over-mighty governments, who will?
The problem is surely that majorities are sometimes totally unable to empathise with the members of minorities – and that seems to be particularly the case in matters of religion. An additional problem in the case of veiling, specifically, is that critics seem to take it as a given that it is something imposed by men on women. That may be true in some cases but it is very unlikely to be true in every single one of them. Nor am I entirely convinced by the distinction drawn by the Court [paras 135 & 136] between the present case and Ahmet Arslan & Ors v Turkey  ECHR 2260; legal summary  ECHR 2261 (which related to a ban on wearing religious clothing in public places outside religious ceremonies), on the basis that the religious dress at issue in Ahmet Arslan did not entirely conceal the face. And as I suggested in my earlier post, the argument that the maximum fine for wearing a niqab or burqa in public is only 150 euros (with the possibility of an obligatory citizenship course) [para 152] is specious: if the interference is legitimate then the penalty is irrelevant, but if the interference is illegitimate then there is no penalty that can be acceptable.
It will be interesting to read more measured analyses in the journals in due course; but in the meantime I simply cannot shake off the feeling that the Grand Chamber has been too generous in the margin of appreciation it has accorded France in the matter and my suspicion that the ban was inspired, at least unconsciously, as much by distrust of Islam as by the French tradition of secularism.
Update 13 February 2015: SAS tops the Strasbourg Observers poll for the worst ECtHR judgment of 2014…
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“France already prohibits conspicuous religious dress in public schools. Let’s assume France decides to extend this ban to all public places, arguing that conspicuous religious dress in public creates unnecessary tension and interferes with social interaction à la française.”
France would be right to so argue and indeed all ‘ECHR’ jurisdiction countries would be right to so argue. It seems inarguable that this is so.
Why is it inarguable?
There is another way of looking at this deplorable judgement – that the Court (as in Lautsi to a different effect) is running scared of ruling against a major member state of the Council of Europe and so stretching the margin of appreciation to breaking point.
I don’t think I’d go quite so far as that; but it’s pretty clear, to my mind at least, that the way the Court has gone in Lautsi, Sindicatul Păstorul cel Bun, Fernández Martínez and now SAS seems to suggest an increasing reluctance to go against the domestic courts on Article 9 matters. And in Sindicatul Păstorul cel Bun – which I thought was a seriously eccentric decision – the respondent state was Romania, which is hardly a major player in the Council of Europe.
(Incidentally, I hope you won’t take this amiss, but it’s interesting that a humanist should find the judgment in SAS so unsatisfactory, given that the principal arguments of the French Government were “living together” and laïcité.)
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This secularist (of the English tradition) also finds the judgment in SAS unsatisfactory. I think women who are brought up in a “strict” Moslem tradition and who wish rebel against the niqab and the burqa should be aided and protected from coercion if possible but those wishing to introduce a law against banning it must, in my mind, demonstrate plausible harm caused to the reluctant wearer and/or the public in general. None of the justifications in the French case seem to meet that test. An interesting consideration would be the morality of a State sponsored campaign to educate girls in the disadvantages of wearing the veil in “Western” society… assuming that there are such disadvantages.