Balancing Secularism and the Right to Wear the Hijab in Europe: Why and How the ECtHR Needs to Recalibrate the Scales

Abstract

The European Convention on Human Rights protects the fundamental right to manifest one’s religious beliefs, including protecting a Muslim woman’s right to wear a hijab in Europe. However, some member States are prohibiting the hijab in certain contexts to protect the principle of secularism and the European Court of Human Rights is upholding these restrictions by employing a wide margin of appreciation. This paper argues that this is not justifiable as there are numerous and wide-reaching issues with the Court’s approach, ranging from a failure to properly apply the legal test to a failure to consider the consequences of the restrictions on the applicants. It also argues that some member States are using abstract aims like ‘secularism’ and ‘living together’ to disguise a hostility toward Islam and that the Court is unwilling to directly address this reality. Therefore, this paper recommends three practical reforms that address the flaws in the Court’s analysis and strike a more appropriate balance between state autonomy and the protection of fundamental individual rights. These reforms are necessary to promote tolerance in Europe and prevent states from relying on increasingly abstract and self-defined principles to restrict individual rights.