WORKING PAPER 1
The ‘radiating effects’ of the European Court of Human Rights on
social mobilisations around religion in Europe – an analytical
frame
Dia Anagnostou and Effie Fokas
v. 22 May 2015
Introduction
Since the 1990s, the European Court of Human Rights has become a central site where
increasingly complex issues regarding religious freedom and diversity are contested. Before
this court, local and national minority and majority faith communities as well as NGOs of
religious, non-religious and other persuasions have invoked human rights principles to
challenge how European states approach and manage religious diversity. In response to a
large number of petitions in the religious field1, the European Court of Human Rights (hereby
ECtHR, or Court) has pronounced authoritative and occasionally landmark judgments that
state-parties to the European Convention of Human Rights (hereby ECHR or Convention)
have an obligation to implement domestically. Controversies related to religious symbols in
public spaces (whether worn, as the headscarf, or on the wall, as in the crucifix), whether a
right not to be offended can be upheld through blasphemy laws, or bioethics and the rights
of homosexuals, are all issues which touch upon deeply held religious beliefs and which have
arisen before the ECtHR. In the context of such cases, the Court has been addressing some
of the most divisive and emotive issues facing European societies.
By applying and interpreting human rights principles in the context of specific disputes
and individual claims, the Court has been setting, from above, wittingly or unwittingly and
fruitfully or not, certain parameters for religious pluralism in Europe. The Court’s religionrelated jurisprudence and its evolution over time have been widely explored by legal
scholars, and some studies have also examined the domestic implementation of relevant
judgments. This research examines the Court’s impact specifically at the grassroots level, with
an aim to bring the Court’s influence on religious pluralism into sharp focus, but from the
ground up. Do ECtHR judgements make a difference when it comes to religious pluralism on
the ground?
The ECtHR’s pronouncement of authoritative judgments in a variety of areas that
encompass how states define and manage religious freedom and diversity exemplifies a
global phenomenon in terms of the rise of international courts. One of the roles that these
courts perform resembles that of constitutional courts in their scope and aim. 2 In their de
facto constitutional review role, courts like the ECtHR scrutinize national laws, policies and
practices for conformity with human rights principles.3 While a growing non-legal scholarship
has begun to explore the domestic implementation of international court judgments in
‘Religious field’ is interpreted broadly to include issues that directly implicate faith groups (whether majority or
minority) but also which relate to deeply-held beliefs and concerns of non-religious, secular and/or secularist,
atheist, and humanist groups; the latter may have no direct link to religion per se but may lie more in the realm of
social ethics (e.g., same-sex marriage). Thus the ‘social actors’ of interest to the research is similarly a broad range
of groups and individuals who engage in social or legal mobilization around such issues.
2 See Karen J. Alter, The New Terrain of International Law – Courts, Politics, Rights (Princeton: Princeton University
Press, 2014), 16.
3 The ECtHR is not formally a constitutional court, but an international tribunal. However, in its evolution over time,
the Strasbourg Court has increasingly performed a role that closely resembles that of constitutional courts. This
evolution is reflected in scholarship on the Court presenting it as ‘largely, though not fully constitutional’; see
Wojciech Sadurski, ‘’Partnering with Strasbourg’, Constitutionalisation of the ECtHR, the Accession of Central and
East European States to the Council of Europe, and the Idea of Pilot Judgments’, Human Rights Law Review, Vol.
9, No. 3 (2009), 397-453, at 448-9. See also Alec Stone Sweet, ‘On the Constitutionalisation of the Convention: The
European Court of Human Rights as a Constitutional Court’, Faculty Scholarship Series (2009), Paper 71, accessible
Online at http://digitalcommons.law.yale.edu/fss_papers/71.
1
1
national law and policy,4 virtually no attention has been paid to their indirect effects. Yet,
the indirect effects of international human rights rulings are arguably far more important than
the direct impact that they can have by means of their formal implementation by state
authorities. 5
Indirect effects include the ways in which international human rights judgments may
influence domestic debates in law, politics and academia, raise public consciousness,
change how social actors perceive and articulate their grievances and claims, empower
national rights institutions, or prompt mobilization among civil society and other rights
advocates. For example, studies show that decisions of high profile and authoritative courts
like the US Supreme Court prompt individuals to clearly elaborate their attitudes on an issue,
crystallizing their views for or against the ruling and underpinning a broad range of
mobilization efforts.6 Alluding – at least in part – to the variable indirect effects of judicial
rulings, some authors claim that the ECtHR in tandem with national constitutional courts play
a significant role in redefining religious freedom in Europe.7 Nonetheless, the indirect effects
of such court rulings remain unstudied.
The Grassrootsmobilise research programme, of which this paper is a part, seeks to
start filling this gap in academic research and knowledge about the indirect effects of
human rights case law in the area of religion and religious freedom. Specifically, the research
programme examines the extent to and ways in which ECtHR religion-related case law
influences social actors’ conceptions of and discourse about their rights, as well as their
strategies in pursuit of those rights. This bottom-up research considers whether and how the
Court’s case law mobilizes grassroots level actors, in terms of rights consciousness raising,
agenda setting, providing the terms of negotiations, etc. Judicially articulated legal norms
take a life of their own when deployed in social actions.8 This means we require a study of
different types of actors, in multiple venues and contexts, and in different country (i.e.,
national, cultural and religious) cases in order to establish a fuller perspective on the indirect
effects of ECtHR case law.
Religion9 and religious freedom form a particularly fruitful focus for study of the Court’s
indirect effects for several reasons. This is an area where the tension between the national
and translational levels is especially acute: considered a fundamental aspect of culture and
identity, religion is a first candidate for falling within the realm of what should be addressed
at the lowest level of governance (subsidiarity) and of what deserves an especially wide
4
Dia Anagnostou and Evangelia Psychogiopoulou (eds.), The European Court of Human Rights: Implementing
Strasbourg’s Judgments on Domestic Policy (Edinburgh: Edinburgh University Press, 2013); Helen Keller and Alec
Stone Sweet (eds.), A Europe of Rights – The Impact of the ECHR on National Legal Systems (Oxford: Oxford
University Press, 2008); Courtney Hillebrecht, ‘Implementing International Human Rights Law at Home: Domestic
Politics and the European Court of Human Rights’, Human Rights Review, Vol. 13, No. 3, (2012), 279–301.
5 Douglass Cassel, ‘Does International Human Rights Law Make a Difference?’, Chicago Journal of International
Law, Vol. 2, No. 1 (2001), 121-136, at 122.
6 Timothy R. Johnson and Andrew D. Martin, ‘The Public’s Conditional Response to Supreme Court Decisions’,
American Political Science Review, Vol. 92, No. 2 (June 1998), 299-310.
7 James T. Richardson and Brian M. Lee, ‘The Role of the Courts in the Social Construction of Religious Freedom in
Central and Eastern Europe’, Review of Central and East European Law, Vol. 39, No. 3/4, (2014), 291-313, at 292.
See also James T. Richardson, ‘Managing religion and the judicialization of religious freedom’, Journal for the
Scientific Study of Religion, Vol. 54, No.1 (2015), 1-19.
8 Michael McCann, 'Reform Litigation on Trial', Law & Social Inquiry, Vol. 17, No. 4 (1992), 715-743, at 733.
9 ‘Religion’ is notoriously difficult to define. In the present paper, the word is used very loosely to refer also to
conscience or belief (as the three notions are presented together in Article 9 of the European Convention on
Human Rights) .
2
‘margin of appreciation’ within the ECtHR context. Further, religion and religious freedom
entail the subject of societal and political debates which are increasing in number and
intensifying in effect at the local, national and international level. Finally, these developments
find their reflection in the rapid judicialisation of religion in the ECtHR (which, for example,
from 0 violations of Article 9 found in its first 34 years of operation, has found over 50 in the
last 20 years).
A sizeable legal scholarship has explored the evolution of the European Court of
Human Rights religion-related case law, its jurisprudential content and legal argumentation.10
But there has been hardly any scholarly attention to the social and legal activism that
emerges in response or in reaction to the ECtHR judgments around religion. (This stands in
stark contrast to the US context in which the socio-legal responses to Supreme Court
decisions on have been widely examined.11) This study is specifically interested in whether
and the extent to which European Court of Human Rights rulings influence and structure
local, national and transnational patterns of contestation and mobilization around religion.
The starting point of this study is a bottom-up perspective of the Court’s influence: it shifts
attention from policy effects to the variable, dynamic and interactive effects of knowledge
and discourses communicated through the Court’s religion-related decisions, on a broad
range of social actors and in a broad range of settings. It investigates whether and how local
communities and various religious and societal actors invoke, react to, or plainly ignore
Strasbourg judgments in the course of engaging in disputes and in activism around religion
vis-à-vis other confessional or non-confessional groups or vis-à-vis state authorities.
The existing knowledge gap about the indirect effects of international human rights
rulings limits our understanding of the actual effects these rulings have on the ground. It also
inhibits us from discerning their potential to reach and influence the local and national
communities that are most centrally concerned. By developing a research agenda to study
the indirect effects of the ECtHR judgments, this study shall make a contribution not only to
our knowledge of the Strasbourg judiciary; it shall also advance the state of research on
international courts more broadly, and their role and potential to influence domestic politics
and societies, as well as international governance.
See Julie Ringelheim, ‘Rights, Religion and the Public Sphere: The European Court of Human Rights in Search of
a Theory?’, in Lorenzo Zucca & Camil Ungureanu (eds.), Law, State and Religion in the New Europe: Debates and
Dilemmas (Cambridge: Cambridge University Press, 2012), 283-306; Julie Ringelheim, ‘Du Voile Au Crucifix: La
Neutralite ́ Confessionnelle de l’Etat Dans La Jurisprudence de La Cour Européenne Des Droits de L’homme’, in
Actes Du Colloque Sur La Neutralité de l’Etat (on file with author); Susanna Mancini, ‘The Crucifix Rage:
Supranational Constitutionalism Bumps Against the Counter-Majoritarian Difficulty’. European Constitutional Law
Review, Vol. 6, No. 1, 6-27; Carolyn Evans, Freedom of Religion under the European Convention on Human Rights
(Oxford: Oxford University Press, 2001); Carolyn Evans and Christopher Thomas, ‘Church-State Relations in the
European Court of Human Rights’, Brigham Young University Law Review, Vol. 2006, No. 3, 699-725; Malcolm Evans,
‘Freedom of religion and the European Convention on Human Rights: approaches, trends and tensions’, in Peter
Cane, Carolyn Evans and Zoe Robinson (eds.), Law and Religion in Theoretical and Historical Context
(Cambridge: Cambridge University Press, 2008), 291-316; Matthias Koenig, ‘Governance of religious diversity at
the European Court of Human Rights’, in Jane Bolden & Will Kymlicka (eds.), International Approaches to the
Governance of Ethnic Diversity (Oxford: Oxford University Press, 2012) 51-78.
11 See Michael McCann, Rights at Work – Pay Equity Reform and the Politics of Legal Mobilization (Chicago:
University of Chicago Press, 1994); Michael McCann, ‘Law and Social Movements: Contemporary Perspectives’,
Annual Review of Law and Social Science, Vol. 2, 17-38; Marc Galanter, ‘The Radiating Effects of Courts’, in Keith
O. Boyum & Lynn M. Mather (eds.), Empirical Theories about Courts (New York: Longman, 1983), 117-142; Stuart
A. Scheingold, The Politics of Rights – Lawyers, public policy, and political change, 2nd edition (Ann Arbor:
University of Michigan Press, 2004).
10
3
Understanding the indirect effects of international courts has become imperative at
a time when both interest in, but also skepticism about these courts has grown, more in
Europe than anywhere else. As a recent study shows the salience of European courts, the
Court of Justice of the European Union (hereby CJEU) and the ECtHR, has grown for the
citizens of Europe. People pay increasing attention to what these courts do, and their
knowledge about it has significantly improved. The publics’ knowledge of and interest in
European courts is possibly closely linked to the substantial levels of legitimacy and trust these
courts enjoy. Such legitimacy and trust though is likely to vary across countries and to
fluctuate in response to unpopular decisions.12 The political debates around the potential UK
withdrawal from the European Convention on Human Rights pose one conspicuous
example, but of broader relevance to the Convention system as a whole is the reform
process the Court has been undergoing in recent years, resulting in, amongst other things, a
greater emphasis on the principles of subsidiarity and the margin of appreciation.
The primary purpose of this paper is to conceptualize the indirect effects of the ECtHR,
specifically in connection with religion and religious freedom. It draws from socio-legal
perspectives on law and rights to reflect on how local and national actors and faith
communities view, interpret and deploy (to the extent that they do so) European human
rights rulings. How do courts and the ECtHR judgments in particular influence local, national
and transnational struggles around religion and religious freedom in Europe? Do social actors
and their organizations invoke or refer to European human rights rulings in formulating their
claims and strategies of action on religion-related issues? What is the nature of the indirect
influences that the rulings exert, if they exert any such influences at all? The first section of this
paper discusses the assumptions and implications of a constitutive approach to law and
court impact. In the second section, a brief overview of jurisprudential directions in the
Strasbourg Court’s case law precedes a discussion of the relevant case law and the countrycases to be studied in Grassrootsmobilise. The third and fourth parts develop a preliminary
analytical frame to conceptualise the indirect effects of the ECtHR, first with a focus on the
discourses, identities and strategies of social actors and then on the legal and political
context for mobilisations. Finally, the fifth section serves as a guide to the empirical research
in Grassrootsmobilise.
1. The indirect effects of courts: decentering law and rights
How do we understand the indirect effects of courts and why are they significant? An
appreciation of their indirect effects has grown out of the documented limitations of court
rulings in ordering or enforcing significant legal and policy change. While courts are
independent, they are not entirely autonomous as they operate in a system where they
institutionally interact with legislators and the executive. The situation of the European Court
of Human Rights is even more complex as it is part and parcel of an inter-governmental
structure; therefore, it is necessarily attentive to the views and stances of national
Erik Voeten, ‘Public Opinion and the Legitimacy of International Courts’, Theoretical Inquiries in Law, Vol. 14,
No. 2, (2013), 411-436. See also Susannah Mancini, 'The Crucifix Rage: Supranational Constitutionalism Bumps
Against the Counter-Majoritarian Difficulty', European Constitutional Law Review, Vol. 6, No. 1 (2010) 6–27, and
Eyal Benvenisti, 'Margin of Appreciation, Consensus, and Universal Standards', International Law and Politics, Vol.
31, No. 4 (1999), 843-854.
12
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governments of the 47 states that are parties to the Convention. Furthermore, the nature of
judicial decision-making is partial and incremental, and thus unsuitable for providing a
roadmap for reform. For the most part, court decisions focus on specific points of law and on
limited aspects of an issue, rather than provide a complete statement about how to reform
law and policy in a particular issue area.
Within the context of a well-developed American legal scholarship on this question,
scholars have thoroughly questioned the ability of court decisions to bring actual social and
policy change on the ground in line with pronounced judicial norms. 13 Even when they
vindicate those pursuing progressive social change, court decisions arguably mete out little
more than “hollow hope”: they can promote significant legal and social change only when
there is ample support from legislative and executive officials, as well as significant elite and
public support for their rulings.14 As Malcolm Feeley puts it, ‘the conventional wisdom among
political scientists and sociologists who have studied these matters is that the courts by
themselves are not very powerful and, at best, are important at the margins or in conjunction
with other governmental bodies’.15 The message one gleans is that courts are not always
‘where it’s at’: we need a closer look at the margins, and at local and national level
developments on matters of religious pluralism.16
Of course, the tremendous progress made by the European Court of Human Rights
in the area of religious freedom should not be underestimated, both in terms of important
decisions taken and in terms of the engagement of civil society in relation to these. 17
Notwithstanding, the ‘constrained’ nature of courts in instigating legal and policy reform is
particularly pronounced in regard to international courts in general and also specifically to
the ECtHR.18 Focusing on the domestic implementation of ECtHR judgments, a collection of
country-based case studies found their direct policy impact at the national level to be
restricted, and largely dependent upon national social mobilisation and political support. 19
In Greece for example, the ECtHR judgments that vindicated religious freedom claims raised
by Jehovah’s Witnesses (JWs) offered a justification for liberalizing administrative practice
and national jurisprudence in the direction of expanding the religious freedom enjoyed by
this minority. In the absence of sufficient, domestic political and Church support though, they
13
Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago
Press, 1991).
14 Gerald Rosenberg, The Hollow Hope; see also Michael J. Klarman, ‘How Great Were the ”Great” Marshall Court
Decisions?’, Virginia Law Review, Vol. 87 (2001), 1111-1184.
15 Malcolm M. Feeley, 'Hollow Hopes, Flypaper, and Metaphors', Law & Social Inquiry, Vol. 17, No. 4 (1992), 745760, at 751.
16 Michael McCann, 'Reform Litigation on Trial', Law & Social Inquiry, Vol. 17, No. 4 (1992), 715-743. See Effie Fokas,
‘Directions in Religious Pluralism in Europe: Mobilisations in the Shadow of European Court of Human Rights religious
freedom jurisprudence’, Oxford Journal of Law and Religion, Vol.15, No.4 (2015), 54-74, for further development
of this argument in relation to the Grassrootsmobilise research programme.
17 Marco Ventura, ‘Law and Religion Issues in Strasbourg and Luxembourg: the Virtues of European Courts’, Kickoff meeting conference paper, ReligioWest meeting, European University Institute, Florence, 2011; Rachel A.
Cichowski, ‘Civil society and the European Court of Human Rights’, Paper delivered at the 2010 Annual Meeting
of the American Political Science Association, Sept. 1-4 2010, Washington D.C.; and Carolyn Evans, Freedom of
Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2001).
18 Virginie Guiraudon, ‘European Courts and Foreigners’ Rights: A Comparative Study of Norms Diffusion’,
International Migration Review, Vol. 34, No. 4 (Winter 2000), 1088-1125.
19 Dia Anagnostou (ed.), The European Court of Human Rights – Implementing Strasbourg’s Judgments on
Domestic Policy (Edinburgh: Edinburgh University Press, 2013).
5
did not bring about any reform of the underlying and restrictive legal frame. 20 Even a
supranational court like the Court of Justice of the European Union (CJEU) has limited power
in ordering domestic change. The decisions that it issues are often evasively complied with
by national authorities, which often seek to circumvent their prescriptive content, thereby
‘containing’ justice.21A normative implication underlying the ‘constrained’ view of courts is
that as institutions they are on the side of the powers that be, rather than on the side of the
less privileged or more marginal social actors. Courts often appear to provide powerful
support for the status quo but weak sources for challenging the prevailing order.22 By the
same logic, international and supranational courts could be seen as basically upholding
rather than challenging the interests and sovereignty of states. The affirmation of state
sovereignty is in fact enshrined in the principle of the margin of appreciation that is variably
but frequently invoked by the Strasbourg Court. From this perspective, law is a weapon for
maintaining rather than challenging the dominant distribution of power and political order
in the national and international system.
From a decentred perspective of law and rights, however, whether courts maintain
or challenge the status quo is far more contingent and dependent upon contexts of social
or religious struggle. Such a perspective moves away from the centre – a court’s ruling – to
explore how interested actors view it, decipher and enact its perceived messages. McCann
argues that there is nothing either inherently conservative or socially emancipatory in law
and rights’ claiming; whether and in what way these matter for reform, depends on the
context in which the social and political struggle takes place, and of which the legal action
and the court’s decision form a part. 23 From such a decentred perspective, socio-legal
research has shifted the terrain of inquiry away from the direct, policy-related effects of
courts, to probe into their indirect and constitutive effects. It builds upon the socio-legal
notion of law as primarily a cultural institution that forms and transforms via the meanings that
people attach to it. Through its lens, law and rights are primarily understood as discursive
logics, and as traditions of knowledge that shape the normative frames through which
individual and collective actors conceptualise and seek to address social problems.24
In an early formulation of the constitutive perspective of law and rights, Marc
Galanter’s seminal contribution referred to ‘the radiating effects of courts’. 25 Galanter
proposed a consideration of the centrifugal flow of influence outward from courts and into
the wider world. 26 From this perspective, the principal contribution of courts to dispute
resolution is the provision of a background of norms and procedures against which
20 Dia Anagnostou and Evangelia Psychogiopoulou, ‘Under what conditions do national authorities implement
the ECtHR’s rulings?’, in Dia Anagnostou (ed.), The European Court of Human Rights – Implementing Strasbourg’s
Judgments on Domestic Policy (Edinburgh: Edinburgh University Press, 2013), 143-165.
21 Lisa Conant, Justice Contained (Ithaca: Cornell University Press, 2002). See also Lucy Vickers, Religious Freedom,
Religious Discrimination and the Workplace (Oxford: Hart Publishing, 2008), 96-100.
22 Michael McCann, 'Law and Social Movements', in Austin Sarat (ed.) The Blackwell Companion to Law and
Society (Oxford: Blackwell, 2004), 507.
23 Michael McCann, ‘Law and Social Movements: Contemporary Perspectives’, Annual Review of Law and Social
Science, Vol. 2 (2006), 17-38, at 19.
24 Michael McCann, Rights At Work - Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University
of Chicago Press, 1994). See also the debate with Rosenberg, in Gerald Rosenberg, ‘Hollow Hopes and Other
Aspirations: A Reply to Feely and McCann’, Law and Social Inquiry, Vol. 17, No. 4, (1992), 761-778.
25 Galanter, ‘The Radiating Effects of Courts’, 117-142.
26 ibid 119.
6
negotiations and regulation take place in both private and governmental settings.27 ‘Courts
produce not only decisions, but messages. These messages are resources that parties use in
envisioning, devising, pursuing, negotiating, vindicating claims (and in avoiding, defending,
and defeating them)’.28 Courts of course are not the only, nor are they the primary, sources
of normative messages in a given society, or of controls in a given society: family, work group,
church, associations and networks of various forms, all of these make up what Galanter calls
the ‘indigenous law’, or the ‘indigenous ordering’ of society.
While Galanter’s ‘radiating effects’ refer to judicially pronounced norms that exert
influence both in the public sphere and in private relations, other scholars have explored the
indirect effects of law and courts specifically in terms of developing a ‘politics of rights’.29 A
politics of rights develops, for example, when marginalised groups capitalise on perceptions
of entitlement associated with particular legal norms in order to initiate social mobilisation.
Even though law and rights are neither necessary nor indispensable resources for social
movement activism, they can potentially transform the tactical landscape in favour of the
latter. Pay equity legal action in the 1980s in the USA has been studied by McCann as such
a case. The relevant federal and state court decisions, when victorious, signalled to activists
that they may have a powerful ally in courts, but they also helped dramatize social injustices
even when the rulings did not vindicate pay equity advocates. Equally importantly, activists
appropriated the language of rights to name and interpret gender inequalities at work in
new and more compelling terms, cultivating rights awareness among a broader circle of
constituents and allies.30
In sum, legal norms and judicial rulings may have various less conspicuous but
nonetheless important constitutive effects: they can alter both the context of social struggles,
as well as the strategies and identities of social actors. Their variable and multifaceted effects
that go well beyond policy change and elude the control of the state and government
institutions. Court decisions can recast the contours of public debates on an issue by
imparting legitimacy on, or enhancing the salience of particular kinds of rights claims. They
can influence the discursive frames of social movement actors, reconstruct their interests, and
at times empower them. At the same time, they can provoke reactionary mobilization to
curtail rights’ advancements, as it has often been the case in legal action related to religion
and religious freedom. In these variable and contradictory ways, courts can contribute to the
emergence, growth or decline of social movements, not only of progressive but also of
conservative ones.31 Such largely unintended and often contradictory indirect effects are
amongst the least studied aspects of law and social change. In fact, as scholars suggest,
activists often use litigation and seek court rulings “more for their secondary consequences
such as changing people’s perceptions about a stigmatised social group or situation”. 32
27
id 121.
Galanter, 'The Radiating Effects of Courts', 126.
29 Stuart A. Scheingold, The Politics of Rights – Lawyers, public policy, and political change, 2nd edition (Ann Arbor:
University of Michigan Press, 2004).
30 Michael McCann, Rights at Work – Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University
of Chicago Press, 1994), 89, 136-7.
31 Michael McCann, ‘Law and Social Movements: Contemporary Perspectives’, Annual Review of Law and Social
Science, Vol. 2 (2006), 17-38.
32 Lauren B. Edelman, Gwendolyn Leachman and Doug McAdam, ‘On Law, Organizations and Social
Movements’, Annual Review of Law and Social Science, Vol. 6 (2010), 653-685, at 664.
28
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Viewing law and rights as primarily a cultural institution, to which people in particular
situations appeal to construct meaning and to negotiate disputes, entails a loud cry for
contextualisation of any study of the radiating effects of the courts. In the ‘shadow’ of
European Court of Human Rights religious freedoms cases, judicial enunciations of human
rights supply standards and the setting for negotiations and conflicts among the multiplicity
of religious, social and state actors active in the field of religion. The nature, extent, and results
of the dynamics that emerge are critical to an understanding of the fuller impact of the Court
on religious pluralism, which cannot be limitedly focused on implementation or nonimplementation of its decisions. Instead, this study takes a national and local case-study
based approach to the impact of the European Court of Human Rights religious freedoms
case law on religious pluralism at the grassroots level. Through qualitative empirical research
it asks the following questions: Do local and national-level social actors know and pay
attention to relevant ECtHR judgments, and how do they perceive them? How do they
change (if they do change) their views and understand their goal and mission in the
aftermath of and in response to a Court’s judgment? What kinds of strategies do they employ,
and do their strategies change in response to ECtHR’s judgments? If yes, why so?
Answers to such questions will impart valuable insight into the radiating indirect effects
of the Court’s case law, and thus also on the Court’s impact, or lack thereof (as the case may
be) on religious pluralism at the grassroots level. Consideration of the latter requires at least a
brief overview of the types of cases that may impact upon religious pluralism at the grassroots
level.
2. Religion-related case law in the European Court of Human Rights: a tailored approach
As noted above, religion and religious freedom form a particularly fruitful focus for study of
the Court’s indirect effects. The Court has radically changed the context for religious
pluralism in Europe (and beyond) through its handling of a large number of issues which are
central to the concerns of religious minorities and majorities, but also of many secularist and
humanist groups. Increasingly, and especially through certain high-profile cases such as
Lautsi v. Italy, Eweida et. al v. UK, and S.A.S. v France, the messages communicated by the
Court relating to religion are drawing the attention of various groups of social actors with
vested interests in the Court’s handling of religion-related cases.33 This attention forms the
basis for potential social and legal mobilisations around European Court of Human Rights
case law.
The ECtHR’s ‘active’ engagement with freedom of religion emerged late – forty years
after the Court’s establishment – with the watershed case of Kokkinakis vs. Greece, in 1993,
with which it issued its first conviction in this field. It was in Kokkinakis that the Court first
elaborated the notion of pluralism as central to the flourishing of democracy:
As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is
one of the foundations of a "democratic society" within the meaning of the
Convention. It is, in its religious dimension, one of the most vital elements that go
to make up the identity of believers and their conception of life, but it is also a
See Cichowski, ‘Civil Society and the European Court of Human Rights’ and Fokas, ‘Directions in religious
pluralism in Europe’.
33
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precious asset for atheists, agnostics, sceptics and the unconcerned. The
pluralism indissociable from a democratic society, which has been dearly won
over the centuries, depends on it.
The Court has built on this foundation in significant ways in the years since Kokkinakis
and its broader engagement with religion has grown increasingly diverse. 34 Well beyond
judgments in which the Court reviews disputes in relation to Article 9 of the Convention (on
Freedom of Thought, Conscience and Religion), the Court’s religion-related case law also
encompasses disputes which invoke a variety of other provisions that have a bearing on
religious freedom, including Article 10 on Freedom of Expression; Article 11 on Freedom of
Assembly and Association; Article 14 on Prohibition of Discrimination; and Articles 1 and 2 of
the first Protocol, on Property and Education, respectively. Over time the case law has
evolved from addressing more ‘classic concerns’ around religion stemming from protection
of or respect for majority religion through issues such as church tax (Darby v. Sweden, 1990),
blasphemy (Otto-Preminger v. Austria, 1994), and religious education (Folgero v. Norway,
2007), to an increasing trend to include issues such as bioethics (e.g., abortion, ABC v. Ireland,
2010), limitations on religious symbols in public spaces (Lautsi v. Italy, 2011), social ethics (e.g.,
civil partnership, Vallianatos v. Greece, 2013), and religious dress in public spaces (S.A.S. v.
France, 2014).
The Court’s religion-related case law bears special relevance for the countries
examined in the Grassrootsmobilise research programme. In all the cases of Greece,
Romania, Italy and Turkey, religion is socially, culturally and politically significant, and the
stakes are perceived by a broad range of religious, social and political actors to be relatively
high in relation to ECtHR religious judgements on religion. In each of these countries, a strong
relationship between religion and national identity, and church and state (whether ‘positive’,
in the cases of Greece, Romania and Italy, or ‘negative’, as in the case of Turkey) renders
highly salient the Court’s pronouncements that bear the potential to influence the public
place of religion.
At the heart of the Strasbourg Court’s religion-related case law are what Hunter-Henin
describes as “tensions between a systemic approach, sensitive to States’ heritages and legal
frameworks, and an individual approach, more attuned to individual rights and beliefs”. 35
The ultimate resolution of such tensions carries broad-ranging implications for religious and
ideological majorities and minorities, whether these are operating in overarching secularist
environments or, alternatively, in contexts with differing levels of established religion. 36 As
Evans and Thomas (2006: 706) note, the ECtHR has held that establishment of religion is not
in itself a breach of the Convention but is only prohibited to the extent that it implicates one
of the other Convention rights, and this is the case for at least three reasons. First, the
34 Between 1959-2014, the ECtHR issued judgments finding a violation of Article 9 ECHR only in 59 cases, which is
strikingly small in comparison to violations of related Convention provisions such as Articles 8, 10 and 11 ECHR. See
http://www.echr.coe.int/Documents/Stats_violation_1959_2014_ENG.pdf. See also Lourdes Peroni, ‘The ECtHR
and Intra-Group Religious Diversity: A Critical Review’, Chicago Kent Law Review, Vol. 89, No. 2 (January 2014),
663-687, at 664.
35 Myriam Hunter-Henin, ‘Introduction. Religious Freedoms in European Schools: Contrasts and Convergence’, in
ed. Myriam Hunter-Henin, Law, Religious Freedoms and Education in Europe (Farnham, Surrey: Ashgate, 2012), 133, at 4.
36 Establishment of religion entails state official recognition and support of a particular religious institution as a
national institution.
9
Convention does not mention establishment and takes no explicit position on whether or not
it should be permitted. Second, at the time the ECHR was drafted, a number of member
states had established churches, including the UK, Sweden, and Norway; prohibition of
establishment could have threatened the Convention’s ratification. Third, the Court ‘is not
convinced that all forms of establishment are necessarily incompatible with the right set out
in the ECHR’.37 Still, establishment or significant privileging of a majority faith have many times
been on trial in the Court. For example, in Grandrath v. Germany (1964), Mr. Grandrath, a
minister of Jehovah's Witnesses, was a "total objector", seeking to be exempted both from
military and from civilian service, an exemption allowed to Roman Catholic and Protestant
ministers but not to Jehovah’s Witnesses. Similarly, in Darby v. Sweden (1990) the applicant,
a Finnish citizen of British origin, complained about the mandatory payment of a church tax
benefiting the Church of Sweden.
Such privileging of a majority faith is highly relevant in the Greek, Romanian and Italian
contexts, and evinced also in ECtHR case law against these states. In Kokkinakis v. Greece
(1993), ‘the Court recognizes that the Christian Eastern Orthodox Church, which during nearly
four centuries of foreign occupation symbolised the maintenance of Greek culture and the
Greek language, took an active part in the Greek people’s struggle for emancipation, to
such an extent that Hellenism is to some extent identified with the Orthodox faith’ (para 14).
Thus the Court stopped short of declaring the Greek ban on proselytism in violation of the
Convention but rather only reprimanded the Greek state for its disproportionate to a
legitimate aim implementation of the ban. 38 In Sindicatul Pastorul v. Romania (2013), the
Court defends the Romanian state’s upholding of the Romanian Orthodox Church’s ban on
a union of its clergy: ‘Having regard to the lack of a European consensus on this matter … it
considers that the State enjoys a wider margin of appreciation in this sphere, encompassing
the right to decide whether or not to recognise trade unions that operate within religious
communities and pursue aims that might hinder the exercise of such communities’
autonomy’ (para 171). In Lautsi v. Italy, in its defense in the 2011 hearing, the Italian
government claimed that ‘the presence of the crucifix was the expression of a ‘national
particularity’, characterised notably by close relations between the state, the people and
Catholicism, attributable to the historical, cultural and territorial development of Italy and to
a deeply rooted and long-standing attachment to the values of Catholicism’ (para 36). This
framing of the issue as a matter of preserving national identity factored significantly in the
Grand Chamber’s decision to rule in favour of the Italian state.
Meanwhile in the Turkish case, we find a parallel privileging of state-promoted
secularism.39 In Sahin v. Turkey, ‘the Court considers [the] notion of secularism [defended by
the Turkish government] to be consistent with the values underpinning the Convention. It finds
that upholding that principle, which is undoubtedly one of the fundamental principles of the
Carolyn Evans and Christopher Thomas, ‘Church-State Relations in the European Court of Human Rights’,
Brigham Young University Law Review, Vol. 2006, No. 3 (2006), 699-725.
38 Specifically, the Court found application of the ban against proselytism, set out in section 4 of Law 1363/1938
(a law dating back to the Greek military dictatorship under general Metaxas), as prescribed by law (para.41),
with in pursuit of a legitimate aim (para.44), but not ‘necessary in a democratic society’ in that Kokkinakis’
conviction was not shown to be justified by a pressing social need and could thus not be deemed proportionate
to the legitimate aim pursued for the protection of the rights and freedoms of others (para. 49). See also Nikos
Alivizatos, ‘A new role for the Greek Church?’, Journal of Modern Greek Studies, Vol. 17, No. 1 (1999) 23-40.
39 Natan Lerner, ‘How wide the margin of appreciation? The Turkish headscarf case, the Strasbourg Court, and
secularist tolerance’, Willamette Journal of International Law and Dispute Resolution, Vol. 13, No. 1 (2005), 65-85.
37
10
Turkish State which are in harmony with the rule of law and respect for human rights, may be
considered necessary to protect the democratic system in Turkey’ (para 114). 40
As suggested in the Sahin case, the Court has also sought to uphold a standard of
state secularism and neutrality that are seen to be central to European identity and
democracy.41 In spite of this, it has affirmed the legitimacy of national traditions and statereligion arrangements, even if they do not quite conform to a clear standard of neutrality.
For example, while the Court has defended a tradition of state neutrality in the public sphere
in countries like France and Germany, which bar Muslims from wearing a headscarf or other
religious attire in certain public spaces (or in all public spaces, as in the case of the French
burqa ban), it has also accepted a national tradition that prescribes the display of religious
symbols of the majority in public places, as in the final judgment of the Lautsi case. In this
regard, it can invoke the principle of the margin of appreciation that states enjoy, and refrain
from scrutinizing the entrenched and variable national traditions shaping relations between
religion and the state across European countries. Specifically in regard to the ECtHR’s
unwillingness to accept symbols of Islam in public space, critical analyses have questioned
whether in fact the ECtHR case law defends particular normative values in religious affairs.42
All of the above forms the backdrop against which social and legal mobilisations
around European Court of Human Rights case law may occur. Mobilisations around the Lautsi
case were particularly conspicuous, not least in the unprecedented number of third party
interventions in the case.43 Less conspicuously though, as the Court’s case law has grown far
more diverse so that the scope of ‘religion-related’ jurisprudence is intensively diversified, the
case law finds its way into the discourses, identities and strategies of a very wide array of
addressees and interested stakeholders – social and state actors – situated in different
countries. The effects of the case law may also reverberate over different time periods: as
Mary Ziegler argues in relation to abortion politics in the aftermath of Roe v. Wade,
ideological entrenchments around certain issues may develop long after the cases they have
as reference points. 44 Achieving insight into the various ways in which the Court’s
The case of Refah v. Turkey also serves as a pertinent example: ‘The Court further observes that there was
already an Islamic theocratic regime under Ottoman law. When the former theocratic regime was dismantled
and the republican regime was being set up, Turkey opted for a form of secularism which confined Islam and
other religions to the sphere of private religious practice. Mindful of the importance for survival of the democratic
regime of ensuring respect for the principle of secularism in Turkey, the Court considers that the Constitutional
Court was justified in holding that Refah’s policy of establishing sharia was incompatible with democracy’ (para
125).
41 ‘State neutrality’ is far from a neutral term, drawing a great deal of controversy around it. See for example José
Casanova, ‘Religion, European secular identities and European integration’, in Michalski Krzysztof (ed.), Religion
in the New Europe (Budapest: Central European University Press, 2006), 23–42. For extensive discussions of the term
see Marie-Claire Foblets, Katayoun Alidadi, Jørgen S. Nielsen and Zeynep Yanasmayan, Belief, Law and Politics
(Farnham, Surrey: Ashgate, 2014); see also Effie Fokas, ‘Sociology at the intersection between law and religion’,
in Silvio Ferrari (ed.), Routledge Handbook of Law and Religion (Abingdon: Routledge, 2015), 59-74, at 62-64.
42 Haldun Gulalp, ‘Secularism and the European Court of Human Rights’, European Public Law, Vol. 16, No. 3
(2010), 455-471; see also Julie Ringelheim, ‘Rights, Religion and the Public Sphere: The European Court of Human
Rights in Search of a Theory?’, in Lorenzo Zucca and Camil Ungureanu (eds.), Law, State and Religion in the New
Europe: Debates and Dilemmas (Cambridge: Cambridge University Press, 2012), 283–306, and W. Cole Durham,
Rik Torfs, David M. Kirkham and Christine Scott (eds.), Islam, Europe and Emerging Legal Issues, (Farnham, Surrey:
Ashgate, 2013).
43 Fokas, ‘Directions in religious pluralism in Europe’.
44 Mary Ziegler, ‘Beyond Backlash: Legal History, Polarization, and Roe v. Wade’, Washington and Lee Law Review,
Vol. 71, No. 2 (2014), 969-1021. Meanwhile, the effects of the case law may also reverberate with greater or lesser
degrees of accuracy; this point is supported by evidence of Lautsi after-effects in the Greek case, where long
after the ‘resolution’ of the issue in the Grand Chamber, Greek clerics continue to wage discursive campaigns
40
11
jurisprudence is reflected in the discourses, identities and strategies of social actors is a
significant aim in and of itself. Such insight may also be necessary for a fuller understanding
of legal mobilisations that occur in the aftermath of ECtHR religion-related case law.
3. The discourses, identities and strategies of social actors
Religious and social actors decide to pursue particular kinds of legal or political, domestic or
international action, independently or in alliance with state actors, because they perceive a
particular course of action to be essential and appropriate, or conversely irrelevant or
unavailable.45 Their perceptions of the legal and political environment are closely linked to
their prevailing discursive frames and their organisation’s identity. Changing discourses and
identities are central in explaining why an organisation or group resorts to legal action, and
or to a particular amalgam of legal and political strategies.46 This is particularly essential for
religious actors, for whom involvement in any form of public engagement may not cohere
with religious convictions and a religious way of life. As Krishnan and den Dulk argue based
on the experience of religious groups mobilizing in the USA, changing attitudes and normative
orientations towards the law and its potential implications were instrumental in the decision
of religious organizations in the USA to use courts to pursue their policy goals.47
Shifting patterns of discourse, identity formation and strategy building can be
observed at two levels: at the level of a social-religious movement organisation (SRMO),
and/or at the level of a broader constellation of organisations and professional groups (i.e.
academics, lawyers) that are active in a particular issue area and constitute a social
movement field. By influencing the perceptions, identities and discourses of an SMO, court
decisions can impact on a) the level of organisational momentum, b) the kinds of strategies
that they pursue, and c) the forms of networking and alliances that they may forge with other
individual and collective actors.
Contrary to how it is sometimes depicted, a social movement is not a coherent and
unified entity. Instead, it may be comprised of organisations and other loosely associated
actors who are not necessarily in agreement with each other in how they view the main issues
of the movement, their priorities and their proposals on how to tackle the problems at stake,
or the kinds of strategies that should be pursued.48 It is important to recognise the internal
diversity and to differentiate among the various actors in a social movement field.49 Likewise,
the field of religion-related mobilization comprises a highly pluralistic and diverse array of
against the threat to religious symbols represented by the ECtHR. See Makis Adamopoulos, ‘’Values can’t be
bought; they require struggle and sacrifice’, emphasised the Archbishop from Argos’, Ecclesia.gr, 3 May 2015.
See also Fr. Demetrios Bathrellos, ‘Christians in times of (post-) secularisation’, to be published as part of a
monograph by the same author in 2016 by En Plo, Athens.
45 For instance, this perspective is advanced in the study on legal mobilisation of disability rights by Lisa Vanhala,
Making Rights a Reality? Disability Rights Activists and Legal Mobilization (Cambridge: Cambridge University Press,
2011).
46 Lisa Vanhala, Making Rights a Reality?
47 Jayanth K. Krishnan, and Kevin R. den Dulk, ‘So Help Me God: A Comparative Study of Religious Group
Litigation’, Georgia Journal of International and Comparative Law, Vol. 30, No. 2 (2002), 233-275, at 233.
48 Lauren B. Edelman, Gwendolyn Leachman and Doug McAdam, ‘On Law, Organizations and Social
Movements’, 669.
49 William A. Gamson and David S. Meyer, ‘Framing Political Opportunity’, in Dough McAdam, John McCarthy
and Mayer Zald (eds.) Comparative Perspectives on Social Movements: Political Opportunity, Mobilizing
Structures, and Cultural Framing, (Cambridge: Cambridge University Press, 1996), 275-290, at 283.
12
actors, who are relevant to this study. These include religious minority actors; religious majority
actors; representatives of secular, religious, and other ideological NGOs; ‘cause lawyers’
representing religious freedoms cases; and state representatives dealing with religious
freedoms issues.
Judicial rulings can have significant indirect effects on the perceptions and identities
of religious and social actors: they may be invoked by different organizations seeking to carve
a distinct identity in a competitive and highly diverse social movement field. NeJaime argues
that court losses may allow an organisation to carve out a distinct niche and identity within a
competitive social movement environment. An organisation may take up issues that are not
favored by the large and well-established SMOs in the field; it can appear as daring to stand
up and defend a legal cause that courts are not (yet) willing to accept, articulating a “vision
of justice unachievable in the present” but which may be attained in the future by a more
enlightened court.50
In understanding the formation and change of the perceptions and discourses of
SRMOs, an analytically useful notion is that of framing. Framing refers to the contentious
processes in which meanings and ideas are both debated and contested, but also
negotiated and produced. 51 Social movement activists extensively engage in the
construction of collective action frames; the product is “action-oriented sets of beliefs and
meanings that inspire and legitimate the activities and campaigns of a social movement
organisation”. 52 Framing takes place through contestation as individuals and groups are
called to navigate amidst contradictory conceptions and worldviews – “sets of ideas that
help groups explain, evaluate, and engage the social and political world”, and which may
encourage or discourage legal advocacy and resort to courts.53
Being sufficiently flexible, inclusive and broad in interpretive scope and cultural
resonance, human rights can be seen to function as a ‘master frame’ in Europe but also
globally. It has spread across many countries, and in a wide variety of issues and situations
which were not originally seen to be fundamental human rights but which may be
increasingly cast through such a lens. Over the past twenty to twenty five years, an increasing
number of activists and lawyers in Europe have actively engaged in articulating and
constructing rights claims on behalf of various religious and ethnic minorities, secularists and
atheists, migrants and refugees, among others, by invoking human rights principles.54 They
have been engaging in ‘frame bridging’, namely, the linking of two or more ideologically
congruent but structurally unconnected frames regarding a particular issue or problem.55 The
interpretations and ideas contained in the ECtHR’s decisions and judgments can be seen to
significantly influence such framing processes, bolstering or weakening the connection
between human rights and religious groups or ethnic minority claims.
50
Jules Lobel, Success without Victory, Lost Legal Battles and the Long Road to Justice in America (New York:
New York University, 2004), 123; quoted in Douglas NeJaime, ‘Winning Through Losing’, Iowa Law Review, Vol. 96,
No. 3 (2011), 977.
51 For an overview of a sizeable social movement scholarship on framing, see Robert D. Benford and David Snow,
‘Framing Processes and Social Movements: An Overview and Assessment’, Annual Review of Sociology, Vol. 26
(2000), 611-639.
52 Benford and Snow, ‘Framing Processes and Social Movements’, 614.
53 Krishnan and Den Dulk, ‘So help me God’, 246.
54 See Dia Anagnostou, Human Rights Law and Activism on behalf of the Disadvantaged: Minorities and
Immigrants in the Strasbourg Court, unpublished book manuscript.
55 Benford and Snow, ‘Framing Processes and Social Movements’, 624.
13
Framing social and religious issues as human rights issues has often been quite effective
and empowering for movement mobilisation. 56 Relevant ECtHR judgments that promote
religious pluralism can be drawn upon by disadvantaged social actors to place new issues
on the agenda of religious freedom (agenda setting), and also to raise their consciousness:
they may invoke human rights in order to ‘name’ and to challenge existing social wrongs or
injustices.57 In another context of pay equity reform in the USA, successful lawsuits sparked
and were supplemented by local organising efforts, which provided crucial impetus for
collective action. 58 But a judicial defeat may also allow SMOs and litigators to raise
consciousness among and mobilise constituents and to dramatise social injustices in the face
of judicial resistance and rejection. The judicial denial of a claim may raise awareness by
triggering more aggressive organization, advocacy and direct action by highlighting more
intensely the injustice suffered by the group, and the courts’ ineffectiveness in redeeming it.59
It must be noted that legal advocacy and court decisions are “… less likely to bring together
isolated individuals than to transform, active and unite citizens already integrated into some
form of common group activity or allegiance”.60
Framing issues and grievances as human rights is significant because it opens up the
potential for creating new alliances and transforming social institutions such as religion.61 For
instance, new alliances become possible when the right to practice one’s minority religion is
seen as significant not only by minorities but also for larger groups of citizens and for majorities
who defend religious pluralism as a key component of democracy. If human rights can
meaningfully and obviously be construed to advance liberal, rights-expansive claims on
behalf of disadvantaged groups, such ‘bridging’ is far from self-evident when it comes to
established and privileged religious actors. Whether they challenge or uphold the views,
convictions and interests of particular faiths, court judgments also influence and potentially
alter the discourse, views and strategies of status quo religious actors. Conservative religious
actors in the USA appropriated the language of rights but they reframed their arguments to
reflect an alternative understanding of equality itself – in the process constructing a
‘competing’ myth of rights.62 In large part, they did so in response to Supreme Court decisions
that expanded rights for minorities and upheld abortion rights in the 1970s but also earlier.
These decisions heightened concern among Catholics and Evangelicals with what they
perceived as the ascendancy of secular humanism and the moral decay of the broader
culture.63
56
Michael McCann, 'Law and Social Movements: Contemporary Perspectives', Annual Review of Law and Social
Sciences, Vol. 2 (2006) 17–38, at 28.
57 On rights consciousness raising, see Michael McCann, 'Law and Social Movements', in Blackwell Companion to
Law and Society, 511.
58 McCann, Rights at Work, 68.
59 Douglas NeJaime, ‘Winning Through Losing’, Iowa Law Review, Vol. 96, No. 3 (2011), 941-1012, at 984.
60 McCann, Rights at Work, 111.
61 David W. Maciacek and Adrienne Fulco, ‘The Courts and Public Discourse: The Case of Gay Marriage’, Journal
of Church and State, Vol. 46 (2004), 767-785, at 785.
62 Kevin R. Den Dulk, ‘In Legal Culture, but Not of It: The Role of Cause Lawyers in Evangelical Legal
Mobilization’, in Austin Sarat and Stuart A. Scheingold (eds.), Cause Lawyers and Social Movements, (Stanford:
Stanford University Press, 2006), 197-219, at 200.
63 Krishnan and Den Dulk, ‘So help me God’, 253; Dennis R. Hoover and Kevin R. Den Dulk, ‘Christian
Conservatives Go to Court: Religion and Legal Mobilization in the United States and Canada’, International
Political Science Review, Vol. 25, No. 1, 9-34, at 18.
14
In sum, an important unintended effect of US Supreme Court decisions promoting
pluralism and religious freedom was that they prompted conservative religious actors to
engage the law. They began to use the courts and the language of rights in order to defend
their rights and values, and to curtail liberal advancements.64 Against secular and egalitarian
adversaries who supported separation of religion from state and equal acceptance and
recognition of all faiths, religious conservatives argued that they value of equality demanded
greater state accommodation of religion in public life.65 Norms such as religious freedom and
equality, among others, were appropriated to advance a conservative agenda invoking
morality and a religious way of life. In developing active legal and political strategies, religious
conservatives had to overcome their profound ambivalence about actively engaging in
political and social life Significantly, the legal activism of Catholics and Evangelicals helped
shape a highly active movement and powerfully injected religion into US politics.
The case of religion-related legal mobilization in the USA is instructive in helping us
conjecture the kind of dynamics that law and courts may unleash among religious actors.
Even though most of the initial religion-related cases in the ECtHR have raised claims on
behalf of minority groups whose religious freedom was allegedly and variably restricted by
states, they subsequently expanded and diversified. Human rights have also been invoked
in the Strasbourg Court by minority groups within dominant religions, by secularists, atheists,
or by individuals from majority religions alleging discrimination in expressing their faith. Such
diversification of religion-related claims in the ECtHR may suggest that one of the unintended
and indirect effects of its judgments may have been to instill human rights discourse into a
variety of liberal, progressive, or conservative and reactionary religion-related mobilization,
in judicial and/or political arenas.
Strasbourg Court judgments may spark action on behalf of disadvantaged minorities
and egalitarian rights claims, but they may also prompt reaction and counter-mobilization
on the part of status-quo religious actors whose privileges may be questioned. Social actors
may draw on ECtHR legal discourses to preserve the status quo (e.g., in the case of religious
majorities which may use case law to maintain what other groups might consider ‘existing
social wrongs and injustices). They may seek to uphold national and state traditions against
European-wide standards of religious freedom enunciated by the Strasbourg Court (countermobilizing to restrict rights established by law and/or courts).66 Do established religious groups
or majorities view themselves as members of a disadvantaged constituency? Do they use
human rights to frame their views, positions and strategies, or do they invoke alternative and
competing values of tradition, nation and religious morality?
A number of further empirical questions can be raised: have religion and religious
pluralism gained greater public attention in the aftermath of ECtHR decisions? How, if at all,
do the decisions factor into the articulation of religious rights (whether of the majority or of
minority faiths or other groups) and strategies developed for pursuing individual and group
goals? To what extent do ECtHR judgments on religious freedom prompt activism on behalf
See Kevin R. Den Dulk, ‘In Legal Culture, but Not of It: The Role of Cause Lawyers in Evangelical Legal
Mobilization’, in Austin Sarat and Stuart A. Scheingold (eds.), Cause Lawyers and Social Movements, (Stanford:
Stanford University Press, 2006), 197-219.
65 Den Dulk, ‘In Legal Culture, but Not of It’, 205
66 For instance, this has been clearly the case in the USA and in Canada. See Dennis R. Hoover and Kevin R. den
Dulk, ‘Christian Conservatives Go to Court: Religion and Legal Mobilization in the United States and Canada’,
International Political Science Review, Vol. 25, No. 1 (2004), 9-34, at 11.
64
15
of minorities, or alternatively trigger social mobilisation to defend and uphold national and
state traditions related to religion (or secularism, as the case may be)? In the aftermath of
ECtHR judgments, do shifting interests and identities of religious actors and their constituents
become more organised and concerted? Have religious and social actors gained, or lost,
leverage as a result of the judgements? In a final assessment, do ECtHR judgments promote
the mobilization and empowerment of liberal and pluralist religious and social actors? Or do
they conversely prompt reactionary and conservative religion-related activism and politics?
In addressing all of these questions, it is important to determine the national legal-political
context in which religious actors operate.
4. Legal-political context and opportunities for mobilization
Relations between religion and the state are shaped by deeply ingrained and highly diverse
traditions across countries, where there is often a dominant or official religion; by degrees of
tolerance for minority faiths; and by the presence or accommodation of religion in public life,
among other factors. 67 Such religion-specific variables alongside broader structures of
political representation and participation domestically shape the opportunities and
constraints that different religious actors face in mobilizing to promote their views and ideas,
as well as to press their claims. Existing constitutional provisions, laws and policies may privilege
one official or state religion of the majority at the expense of other faiths or of secular and
atheist groups. While majority religions may be able to access and influence decision-makers,
non-majority religious actors and minorities may be faced with variable restrictions in regard
to their recognition, operation and ability to influence decision-makers. National courts may
be more or less receptive to equality claims from different religious groups. In tandem with
broader legal characteristics that define access to courts and rules of standing, normative
parameters may create incentives or disincentives for the different groups to claim rights
through litigation.
The nature and degree of opportunities available for collective action can first be
defined in reference to the structural features of a political or the legal system or it can be
conceived to encompass both as components of an integrated structure. Opportunity for
collective action refers to the relatively stable set of rules, institutions and legal norms that
shape how closed or open a legal or a political system is to the participation and influence
of particular groups and social actors. A broader notion of opportunities for (or constraints to)
collective action though must also take into account contingent and more volatile factors
that enhance or restrict the possibilities for social or religious groups to mobilize, such as the
receptivity of elites, as well as established patterns of political conflict or alliance.68 Judicial
decisions can have effects external to social movement actors and organisations; these are
the “effects that advocates cultivate in relation to non-movement actors, including both
state actors and the general public” in the aftermath of a judicial victory or even defeat. 69
Finally, legal and political opportunities (LPO) are present at the national level but they can
67 James T. Richardson, ‘Managing Religion and the Judicialization of Religious Freedom’, Journal for the Scientific
Study of Religion, Vol. 54, No. 1 (2015), 1-19.
68 Chris Hilson, ‘New social movements: the role of legal opportunity’, Journal of European Public Policy, Vol. 9,
No. 2 (April 2002), 238-255, at 242.
69 NeJaime, ‘Winning Through Losing’, 988.
16
extend beyond it, and encompass access to and potential to influence judicial or political
arenas at other levels of government – the federal, the supranational or the international.
The normative content of ECtHR judgments may influence the structure of
opportunities (SO) and thus the mobilization strategies of different sets of religious actors.
ECtHR judgments may alter the legal stock of rules and precedents around religious freedom
issues and prompt shifts in the approaches of national judges, and in domestic case law. In
this way, they can provide new or complementary resources to activists to articulate their
grievances and make claims in national, European or international judicial bodies. In
response to ECtHR decisions, national courts and judges tend to adjust their approaches and
interpretations incrementally, interpreting international norms creatively in response to followup domestic litigation.70
An overall trend is noted in courts across different European countries and in the ECtHR,
to grant greater recognition to religious pluralism and the rights of minority faiths.71 Such a shift
in case law can be seen to alter the legal opportunities by making existing legal stock more
favorable and responsive to the religious claims of minorities, possibly leading them to
redefine the amalgam of legal, social and political tactics that they employ. In another
context, Riddell shows how the legal victories of the French-speaking communities in
Canadian courts in the 1980s expanded the deployment of legal strategies to mobilise in the
political system, to draw legitimacy for their claims, and to overcome opposition to minority
language education.72
Court decisions may prompt social or religious organizations to partly shift their
mobilization efforts to other levels of law and government where conditions are more
propitious. In Europe, since the 1970s the decisions of the European Court of Justice (now
Court of Justice of the European Union) expanded substantive and procedural rights. In this
way, they opened up opportunities for social activists in gender equality and environmental
protection across different Member States. These advocates invoked them before courts and
in social activism in order to push for more rights and greater space for public participation
at the EU level.73 Alternatively, in the wake of a judicial loss or victory, advocates may shift
their energy and efforts into other venues, either across levels of government (i.e. from courts
in the federal to state level or vice-versa), and/or across different branches of government
(i.e. from courts to legislative and executive officials). In the USA, the rejection of the Supreme
Court to rule against sodomy laws in the Bowers case led LGBT organisations to turn to courts
at the state level where they actively pursued their legal struggles. State courts recognized a
wider right to privacy than what was available under the US Constitution.74 At the same time,
a loss in court may prompt activists and advocates to shift the battle out of courts altogether
and into public opinion.
Nancy Maveety and Anke Grosskopf, ‘“Constrained” Constitutional Courts as Conduits for Democratic
Consolidation’, Law and Society Review, Vol. 38, No. 3 (2004), 463-488.
71 Richardson, ‘Managing Religion and the Judicialization of Religious Freedom’, 5.
72 Troy Riddell, ‘The Impact of Legal Mobilization and Judicial Decisions: The Case of Official Minority-Language
Education Policy in Canada for Francophones Outside Quebec’, Law and Society Review, Vol. 38, No. 3 (2004),
583-610.
73 Rachel A. Cichowski, The European Court and Civil Society – Litigation, Mobilization and Governance
(Cambridge: Cambridge University Press, 2007).
74 NeJaime, ‘Winning Through Losing’, 991-992.
70
17
International legal norms and court decisions can potentially form the basis for forging
collaborations and endorsing common causes together with other social and religious actors
across state borders. 75 Considering the geographic and cultural barriers that exist, the
difficulties of forging collective interests and identities at the transnational level are far greater
than at the national level. Yet, as Kay shows in the case of the North American Free Trade
Agreement (NAFTA), the set of labour rights that it guaranteed arguably provided a nexus for
developing common interests and identities among trade union activists across the
participating countries. It did so by establishing a legal redress mechanism that required crossnational collaboration and by providing a common transnational arena for adjudication and
enforcement across states. In these ways, international law helped build a transnational
labour movement in North America.76
From the above perspective, the ECtHR decisions and judgments can be seen to
contribute to the (trans)formation of transnational networks around different issue areas. As
we saw in the case of Lautsi, but also in cases related to Jehovah’s Witnesses (JWs), legal
recourse in the ECtHR often involves the mobilisation and participation of a variety of actors
such as nationally-based JW organisations, organisations working on religious freedom issues
more broadly, public law organisations acting as third party interveners, and academic
experts, among others. We may hypothesise that ECtHR judgments promote the creation of
new or contribute to the buttressing of formerly existing transnational advocacy networks.
These are loosely or more densely associated non-governmental actors motivated primarily
by shared principled ideas and values employing “strategies aimed to use information and
beliefs to motivate political action and to use leverage to gain the support of more powerful
institutions”. 77 Transnational advocacy networks are significant because they multiply the
channels of access to the international system and they also make international resources
available to new actors in domestic political and social struggles.78
How do ECtHR judgments influence legal opportunities for religious actors in different
countries, and do they alter established alliances between elites, as well as the leverage that
less advantaged religious actors have? Furthermore, do Strasbourg Court judgments open
up opportunities for transnational collaboration, and the development of activism at different
levels of government?
5. A research agenda
As elaborated above, jurisprudential shifts and the related changes in the structural power of
various religious actors to access, leverage and influence a legal and political system do not
alone shape the patterns of mobilization, demobilization or counter-mobilization of religious
actors. How social actors are likely to react and respond to court decisions, whether victorious
or not, and whether and how they change their mobilization strategies is impossible to infer
at the outset. As one factor – among many others – affecting legal and political opportunities,
Tamara Kay, ‘Legal Transnationalism: The Relationship between Transnational Social Movement Building and
International Law’, Law and Social Inquiry, Vol. 36, No. 2 (Spring 2011), 419–454, at 423.
76 Tamara Kay, ‘Legal Transnationalism’.
77 Margaret Keck and Kathryn Sikkink, Activists Beyond Borders – Advocacy Networks in International Politics
(Ithaca: Cornell University Press, 1998), 30.
78 Keck and Sikkink, Activists Beyond Borders, 1.
75
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court decisions are neither just a resource nor just a constraint for movement building. Their
utility in this regard varies depending on the local and national circumstances and the
situations in which they are deployed, as well as on how social actors view and interpret
them.79
This study employs a bottom-up approach that contextualizes court judgments within
broader processes of religion-related social mobilization. Such an approach includes
attention to the various ways that groups and individuals deploy legal resources – i.e., ECtHR
judgements and decisions, including the language of those judgements and decisions and
the reasoning therein – to wage their campaigns in multiple venues including but also
beyond courts. In order to understand why and under what conditions ECtHR judgments can
been seized upon as resources to mobilise and empower social and religious actors, we must
unravel the local and national conditions and contexts within which they are received and
debated, and which may have important similarities or differences across the four country
cases. Qualitative in-depth interview research with such actors will yield critical insight into
how, why and under what conditions the Court’s religious freedom jurisprudence impacts
upon grassroots level mobilisations around religion, and upon religious pluralism as seen in
action at the grassroots level.
The basic aim of research into mobilisations at the grassroots level is to determine
levels of religious, political, legal and NGO awareness of, engagement with and uses of
ECtHR religion-related judgements. The Grassrootsmobilise research employs a two-pronged
approach to ascertain the impact of the Courts’ case law at the grassroots level. First, it
explores the extent to which social actors with a vested interest in selected issue areas invoke
Strasbourg Court judgments, and how they (re)configure their discourses, identities and
interests in response to these judgments. Here, the research aims to trace the impact of the
Court’s religious freedom case law on certain issue-areas/themes identified by the
Grassrootsmobilise programme researchers as salient in the given country context. The issuebased research allows a broader sense of what is (or is not) happening on the ground in the
shadow of the Court’s case law, thus imparting insight into the impact of the case law on
religious pluralism more generally.
A wide range of issue-areas addressed by the Court is relevant to this study. As noted
above, the relationship between church and state is highly salient in the four countries under
study; so too, minority religious rights, religious autonomy, religious education in public
schools, the right to manifest ones faith; and, to a lesser degree of salience across all cases,
bioethics and life issues (such as abortion, beginning-of-life and end-of-life issues), and
family/marriage issues (e.g., civil partnerships, discrimination against same-sex
unions/couples, etc.).
In order to ensure a certain degree of comparability across the country cases, two
particular issue areas have been chosen for examination across the cases (whilst additional
issues particularly relevant to the individual cases will also be examined): these are religious
pluralism in the educational arena, and the legal status of religious minorities (including
minority rights to property and places of worship). This selection allows for insights to be drawn
on the secular vs. religious dimension of case law impact, in that around both religious
education and legal status questions, both religious and secularist actors actively contribute
79
McCann, Rights at Work, 137.
19
to the relevant social and political debates. The selection also allows examination of the
minority vs. majority dimension in that religious majorities and religious minorities have vested
interests and actively engage in social and political struggles around both the teaching of
majority religion in public schools (and rights to exemption for minority groups) and the rights
to religious minority education in accordance with their own faith, as well as around the rights
of minority groups to property and places of worship (with both the latter often impeded by
religious majority mobilisations).80
Secondly, the research focuses on how particular ECtHR judgments influence the
structure of opportunities and constraints for mobilisation in different national contexts, but
also at the transnational level. It aims to trace the impact on the grassroots level and on
grassroots mobilisations in each country of selected ECtHR religious freedom cases arising in
each country context. The ECtHR case-based research facilitates the tracing of impact of
particular cases where mobilization has occurred on the ground (thus imparting insight into
the impact of the case law on mobilisations more specifically).
In terms of the particular ECtHR cases to be studied, one specific case is chosen for
each country for in-depth study (though not to the exclusion of other relevant cases), based
on salience in each country and conduciveness to examination of mobilisations taking place
around particular cases. These are, in the Greek case study, Vallianatos v. Greece; in the
Romanian case study, Sindicatul Pastorul v. Romania, in the Italian case Costa and Pavan v.
Italy; and in the Turkish case, CEM Vakfi v. Turkey.81 Here too the selection as a whole covers
both secular vs. religious dimensions and minority vs. majority dimensions.
Together the two approaches (a focus on issue-areas and a focus on particular ECtHR
cases) are well suited to understanding the often interrelated indirect effects of case law on
movement building and social mobilisation, as well as on changes in the political and legal
context of opportunities and resources. Insights into the above will be pursued through indepth interviews conducted in the four country cases with religious minority actors, religious
majority actors, representatives of secular, religious and other ideological NGOs, cause
lawyers representing religion-related cases, and state representatives dealing with religious
freedoms issues, as well as through careful examination of references to ECtHR case law in
local and national level litigation.
The fieldwork conducted in Grassrootsmobilse speaks to a number of questions which
help get to the heart of how and the extent to which the European Court of Human Rights
impacts upon religious freedom in the European setting. First, who mobilises? To whom are
the ECtHR engagements with religion relevant, interesting, important, accessible? At the
grassroots level this can only be ascertained through qualitative fieldwork on the ground in
80 Additional issue-areas proposed for study are conscientious objection in the Turkish case; same-sex unions in
the Greek and Italian cases and more generally LGBT-related issues also in the Romanian case; bioethics in the
Italian case (beginning of life issue of assisted reproductive technology); and conflicts around religious hierarchies
in the Romanian case. Also, since the drafting of this paper the researchers in the project have agreed to conduct
a systematic study of references to the ECtHR religious freedom case law, with a focus on our two selected issueareas and those additional issues mentioned above, in 5 mainline newspapers in the four country case studies.
For more information, see www.grassrootsmobilise.eu under ‘Research’ and ‘In the field’.
81 Since the original drafting of this paper the research team has agreed also to study references to the ECtHR
religion-related case law in national high courts; this study will lead to in-depth study of further ECtHR cases in
each country case. For more details see www.grassrootsmobilise.eu under ‘Research’ and ‘Before the Courts’.
20
particular localities.82 Second, to what effects? The implications of who mobilises and where
are contingent upon a number of factors, including the relative potential impact of different
groups of actors.83 Third, what are the main overarching issues that are contested? And do
we see changes in these over time? E.g., after Lautsi, are issues arising from relationships
between religion and national identity less likely to mobilise groups, locally, nationally and
transnationally? After S.A.S. v. France, are strategic litigators abandoning headscarf cases
for other domains of religious discrimination?84 Further, what are the fault lines in the Court’s
case law? For quite some time, and most conspicuously post-Sahin, a focal point of criticism
of the Court had to do with differential treatment of Islam as a minority faith.85 In the present
context do the uses of the margin of appreciation form a new fault line? Answers to such
questions will yield a more holistic picture than is currently discernable of the impact of the
European Court of Human Rights on religious pluralism in Europe.
82
At the grasstops level even preliminary research suggests a very complicated picture, geographically and
substantively: grasstops actors mobilise around religion in the ECtHR with fluency in their movement between New
York, Brussels, Washington D.C., Moscow and London, and the geography of the mobilisations also has some
bearing on the content of the mobilisation activity (e.g., evangelical Christians and human rights activists tend to
work transatlantically more than other stakeholder groups).
83 Again, based on preliminary research at the grasstops level, the relative weight of intervening governments is
significant. Thus for example in 3rd party interventions certainly the overall number of interventions is key, and the
content of the arguments, either for or against the state in question, is important; but the participation of
governments in the interventions seems to be a more decisive factor.
84 Here the Court ruled in favour of the French state, finding the French ban on the wearing of the full-face veil in
public not in violation of Article 8 of the Convention (Right to respect for private and family life) or of Article 9 (152 majority on both points), and not in violation of Article 14 prohibiting discrimination, taken together with Article
8 or 9 (a unanimous finding on this point). The criticisms of the judgement’s reasoning focus especially on the
Court’s acceptance of the promotion of ‘living together’ as a legitimate ground for the restriction of fundamental
rights (see Eva Brems, ‘S.A.S. v France as a problematic precedent’, available online at
http://strasbourgobservers.com/2014/07/09/s-a-s-v-france-as-a-problematic-precedent/ (2014))
85 See Jeremy Gunn, 'Religious Symbols in Public Schools: The Islamic Headscarf and the European Court of Human
Rights Decision in Sahin v. Turkey', in W. Cole Durham, Rik Torfs, David M. Kirkham, and Christine Scott (eds.), Islam,
Europe, and Emerging Legal Issues, (Farnham, Surrey: Ashgate, 2012), 111–46, and Françoise Tulkens, ‘The
European Convention on Human Rights and Church-State Relations: Pluralism vs. Pluralism’, Cardozo Law Review,
Vol. 30 No. 6 (2009) 2575-2591. For a quick introduction to criticisms around the Court’s handling of Islam in Sahin
and beyond, see also Effie Fokas, review of Islam, Europe, and Emerging Legal Issues, in Religion, State and
Society, Vol. 42, No.1 (2014) 89-94.
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