This chapter examines how the European Court of Human Rights balances the public manifestation of religious or cultural identity against the protection of the rights of others and the interests of the State, with particular attention to the doctrine of the margin of appreciation. It shows that Strasbourg generally treats religious dress and symbols as protected manifestations under Article 9 (often alongside Article 8), yet repeatedly upholds restrictions where States invoke secularism, institutional neutrality, equality, social cohesion, or public order. The analysis traces the Court’s deferential approach in cases where the absence of European consensus and the need to reconcile competing rights expand national discretion. The chapter then extends the inquiry to two closely related fields. First, it explores conscientious objection in services, where the Court has treated conscience-based refusals as protected manifestations in principle but has prioritized non-discrimination and effective access to lawful services, particularly regarding sexual orientation equality and reproductive healthcare. Second, it analyzes the emergence of “living together” as a justificatory concept in S.A.S. v. France and subsequent Belgian cases, showing how Strasbourg accepted an abstract societal interest to uphold blanket face-covering bans, while attracting criticism for its indeterminacy and its potential to convert majoritarian preferences into legal norms. Overall, the chapter argues that the Court’s approach is best understood as a variable-geometry model: broad deference in culturally contested areas with weak consensus, narrowing scrutiny where individual autonomy is curtailed without concrete harm, and a consistent reluctance to recognize a general right to religious exemption when it undermines equality, access, or the effective functioning of public institutions.

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Protecting the Rights of Others and the State’s Margin of Appreciation

  • Nikolaos Gaitenidis

摘要

This chapter examines how the European Court of Human Rights balances the public manifestation of religious or cultural identity against the protection of the rights of others and the interests of the State, with particular attention to the doctrine of the margin of appreciation. It shows that Strasbourg generally treats religious dress and symbols as protected manifestations under Article 9 (often alongside Article 8), yet repeatedly upholds restrictions where States invoke secularism, institutional neutrality, equality, social cohesion, or public order. The analysis traces the Court’s deferential approach in cases where the absence of European consensus and the need to reconcile competing rights expand national discretion. The chapter then extends the inquiry to two closely related fields. First, it explores conscientious objection in services, where the Court has treated conscience-based refusals as protected manifestations in principle but has prioritized non-discrimination and effective access to lawful services, particularly regarding sexual orientation equality and reproductive healthcare. Second, it analyzes the emergence of “living together” as a justificatory concept in S.A.S. v. France and subsequent Belgian cases, showing how Strasbourg accepted an abstract societal interest to uphold blanket face-covering bans, while attracting criticism for its indeterminacy and its potential to convert majoritarian preferences into legal norms. Overall, the chapter argues that the Court’s approach is best understood as a variable-geometry model: broad deference in culturally contested areas with weak consensus, narrowing scrutiny where individual autonomy is curtailed without concrete harm, and a consistent reluctance to recognize a general right to religious exemption when it undermines equality, access, or the effective functioning of public institutions.