The European Court of Human Rights (ECtHR) can also play a positive role in this process. Yet the court's inconsistencies in three key decisions have produced suspicions about its neutrality toward Islam and its potential role in protecting religious freedoms of Muslims in Europe.
The first case is Dahlab v. Switzerland (2001) in which the court upheld that the Swiss authorities had legitimate reasons for disallowing a public school teacher to wear a headscarf, since this would violate the neutrality of public education. In the second case, Şahin v. Turkey (2005), the court approved the Turkish state's ban on headscarves for students at both public and private universities. This decision was based on several speculations. The court noted that it did not “lose sight of the fact that there were extremist political movements in Turkey which sought to impose on society as a whole their religious symbols and their conception of a society founded on religious precepts.” The court also appreciated assertive secularism that led to the headscarf ban, by arguing that such secularism was needed in Turkey to protect democracy, as well as defending “the individual … from extremist movements.” The court clearly associated students wearing headscarves in Turkey with the so-called extremists and a potential pressure toward those “who chose not to wear” headscarves. In short, referring to Turkey's special condition (it being a Muslim-majority country), the court claimed that banning headscarves at universities could be seen as necessary, although such a ban in universities did not exist in any of the European democracies, even including France.
Some thought that the ECtHR's decisions against headscarves were the result of its secularist views. Yet the court's recent decision on crucifixes surprised these commentators and created a perception that the court used secularist rhetoric only against Muslim headscarves, but not toward Christian crucifixes. In March 2011, in Lautsi v. Italy, the court decided that the display of crucifixes (including those with Jesus' body) in Italian public school buildings and classrooms was compatible with non-Christian and other students' freedom of religion and education. Unlike in its decisions on headscarves, the court did not pay attention to protecting the freedoms of religious minorities or dissenting groups in the case on crucifixes. Although the court had speculated that adult university students could be pressured by the headscarves of their friends in universities, it argued that there was no evidence to support the “subjective” claim that school children under the age of 13 would be affected by the official display of crucifixes in public school classrooms.
The two judges who dissented in the Lautsi decision, which was approved by 15 other members of the court, explicitly emphasized the court's inconsistency regarding headscarves and crucifixes: “The presence of crucifixes in schools is capable of infringing religious freedom and schoolchildren's right to education to a greater degree than religious apparel that, for example, a teacher might wear, such as the Islamic headscarf. In the latter example the teacher in question may invoke her own freedom of religion, which must also be taken into account, and which the State must also respect. The public authorities cannot, however, invoke such a right.”
Several scholars already noted that the ECtHR was not neutral toward various religions; it was largely accommodating of Protestant and Catholic perspectives, while being generally intolerant toward Orthodox and Islamic traditions. The court's contradictory decisions on crucifixes and headscarves deepened these suspicions. So far, the court has missed several opportunities to play liberal roles in and to make positive contributions to the processes of impeding Islamophobia in Western Europe and moderating assertive secularism in Turkey. The headscarf ban in Turkey is now eclipsing despite the court's clear attempt to justify it. In a few years there will be no headscarf ban in Turkey, but the court's decision will always be remembered. To produce excuses for an illiberal and oppressive policy is not something to be proud of. Muslims in Turkey no longer need the court to moderate assertive secularism, but Muslims in Western Europe do need it to protect against Islamophobia. With a more neutral stance toward Islam, the court can still play a more positive role in hindering Islamophobia in Western Europe.
*Ahmet T. Kuru is an assistant professor of political science at San Diego State University.