Sunday, November 20, 2005

ECHR Upholds Denial of Graduate Student's Right to Wear Hijab

The European Court of Human Rights last week upheld Turkey's refusal to allow an adult Muslim woman the right to wear a hijab (female headscarf) to graduate school. The case is available here and the press release summarizing the case is here. In the case of Şahin v. Turkey, the claimant was a medical student at Istanbul University who came from a traditional Muslim family and considered it her religious duty to wear the hijab. (For many Muslim women, wearing the hijab is a religious duty that preserves their dignity and modesty). The faculty at Istanbul University refused to allow her to enroll in class, attend classes, or sit exams if she wore the hijab.

In her claim she argued that her choice to wear the hijab "had been based on religious conviction, which was the most important fundamental right that pluralistic, liberal democracy had granted her. It was, to her mind, indisputable that people were free to subject themselves to restrictions if they considered it appropriate. It was also unjust to say that merely wearing the Islamic headscarf was contrary to the principle of equality between men and women, as all religions imposed such restrictions on dress which people were free to choose whether or not to comply with." (Para. 101).

The ECHR emphasized that "[p]luralism, tolerance and broadmindedness are hallmarks of a 'democratic society'.... Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society.... Where these 'rights and freedoms' are themselves among those guaranteed by the Convention... it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a 'democratic society'" (Para. 108).

It then applied that balancing test to deny her right to freely exercise her religion and to uphold the centrality of secularism as an essential component of a democratic society. "[I]t is the principle of secularism, as elucidated by the [Turkish] Constitutional Court, which is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn." (Para. 116).

What a remarkable decision. A devout graduate student in Turkey must choose between practicing her faith and pursuing her profession. Happily, in the end Şahin chose both, but it required a move to Vienna to continue her studies.

To this American, Şahin reads as a headlong embrace of secularism and a regretful rejection of a more enlightened approach of "preserving religious liberty to the fullest extent possible in a pluralistic society." McCreary County, 125 S.Ct. 2722 (2005) (O'Connor, concurring). Can you even begin to imagine telling a graduate student in this country that a yarmulke, hijab, or clerical collar is prohibited attire? Can you imagine the long-term repercussions of the professional class in a society having few persons who espouse such strongly-held religious convictions?

Of course I appreciate the particular problems that Turkey has in accommodating Islam, including radical Islam. But Turkey is by no means alone in Europe in imposing severe restrictions on religious attire.

Let's just hope that Justice Kennedy does not advert to Şahin anytime soon to justify a curtailment of our First Amendment rights. Of course, there's no obvious reason why the internationalists on the Court would not wish to do so. As Ronald Dworkin put it in the recent issue of NYU Law School Magazine: "These problems are all the same... We have the same basic philosophical issues facing us.... What is the role of the judge? What rights of moral independence do people have? ... What is free speech about? ... We're talking about sensitive people of the same general intellectual background as ours facing the same issues we face and our listening to what they have to say."

UPDATE: More on Şahin from Jacco Bomhoff at Comparative Law Blog here.


Blogger Adil Haque said...

You had me until the very end.

No one contends that legal principles should be transplanted from one context to another without careful attention to relevant differences between nations, histories, and cultures.

In Europe, religious differences have lead to civil strife, to violence in the streets; hence the importance placed on creating strong secular institutions from which religious displays are largely prohibited.

In the U.S., religious differences have lead to groups attempting to gain political power to benefit their sect or impose their beliefs on others; hence the importance placed on restricting the government from coercion of conscience and discriminatory subsidies, combined with broad freedom of individual religious expression.

The ECHR decision offends me as an American and as a Muslim, but it hardly provides evidence against the value of reading foreign decisions. On the contrary, sometimes we best understand our own law by contrasting it with the law of other nations. Hence the need for constructive engagement, not blind incorporation or legal solipsism.

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