1/12/2010—A panel of the last session at the AALS convention this year concerned the freedom of religion and belief under Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The panelists described a court unwilling to defend religious rights. That was surprising to me. Equally surprising was the suggestion that the court has viewed Islam as essentially incompatible with democracy and has allowed governments to suppress religious dress, as in the French headscarf case.
It is not the language of Article 9 that is at fault, but the apparent willingness of the court to accommodate the claimed needs of government at the expense of religious liberty.
It is true that the United States Supreme Court has sometimes acted the same way. In Goldman v. Weinberger (1986), the Court held that the Air Force could keep an ordained rabbi from wearing his yarmulke while on duty. And, given Employment Division v. Smith (1990), religious objectors now have almost no constitutional religious rights versus generally applicable regulations.
Nevertheless, American society is such that religious rights are usually protected despite the Supreme Court. If the Court has not done all it should, the American people have done more. That is not as true in Europe. It is inconceivable that America would deprive Muslims of the right to choose headwear in schools.
The panel conversation reminded me of a dark time in American life when free speech was denied to Communists on the ground that they would deny free speech rights to others were they to achieve political power. We have learned that human rights are best protected when they are extended to all and not just to those whom we view as “deserving” them.