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Emory Law Journal

Abstract

The religious landscape of Europe has changed dramatically in the past two generations. Traditional Christian establishments have been challenged by the growth of religious pluralism and strong new movements of laïcité and secularism. Once powerful religious cultures have been shattered by exposures of clerical abuses and financial self-dealing, leading to emptier pews and waning political influence. Once quiet, homogenous European communities are now home to large groups of new Muslim emigrants, making new demands and sparking strong anti-immigrant movements. Once strictly controlled national borders have opened across Eastern and Western Europe, leading to massive migration and tense local intermixtures of Orthodox, Catholics, Protestants, Jews, Muslims, Buddhists, Confucians, Hindus, Atheists, and Secularists never seen on this scale before. Old constitutions, concordats, and customs that privileged local forms and forums of Christian identity and morality have come under increasing attack. A single mention of God in the proposed new European Constitution triggered continent-wide debate. Old Christian Europe is dying; a new religious and political order is beginning to form. These new religious movements have reshaped the religious freedom law not only of individual European states but also of the European Court of Human Rights sitting in Strasbourg and the Court of Justice of the European Union sitting in Luxembourg. These two pan-European Courts have become new hotspots for religious freedom claimants from all over Europe. The rapidly expanding case law of these two Courts reflects the transition and tenuousness of European law and religion. Both Courts do often repeat and apply firmly the core religious freedom mandates of the 1950 European Convention of Human Rights and the 2010 European Charter of Fundamental Rights and Liberties and their statutory echoes—freedom of thought, conscience, and belief for all; freedom from direct and indirect discrimination by state and private actors; freedom to manifest one’s beliefs in public, alone, and in religious groups that deserve legal personality and religious autonomy. Both Courts have emphasized the need for State neutrality toward religion, for strong protections of religious pluralism, and for ample deference to local political traditions. Both Courts have also stepped in to remove blatant religious discrimination by some state officials. But both these pan-European Courts have also been notably churlish of late in their treatment of both Muslim and conservative Christian claimants, even while generously accommodating self-professed Atheists, Agnostics, and Secularists. Both Courts have repeatedly rejected requests by religious claimants to protect their religious dress, jewelry, dietary rules, holiday observance, and traditional beliefs about sex, marriage, and family, in each instance privileging the rights of others and the interests of democratic society over the claims of religious freedom. Both Courts have repeatedly held against Eastern European Orthodox state policies on religion, even while granting wide margins of appreciation to French, Belgian, Swiss, and other States’ policies that blatantly targeted religious minorities, especially Muslims. And particularly the Luxembourg Court has begun to second-guess internal church employment decisions long protected by religious autonomy norms, and to question longstanding constitutional forms of church-state relations, even though the European Treaty formally protects them. This Article offers a detailed comparative analysis of the religious freedom jurisprudence of these two pan-European Courts. It outlines their approaches to the variety of religious traditions and church-state models within the Old Continent and the principles and precepts of religious freedom that they have developed to date. This Article analyzes how the two Courts operate and highlights the reality that the Strasbourg Court issues only soft law that depends on individual state compliance, while the Luxembourg Court issues hard law that is binding throughout the European Union. This reality is rapidly making the Luxembourg Court an attractive forum for transnational litigation, including on religious freedom. This is a worrisome trend for the future of religious freedom, however, for the Luxembourg Court has been notably less accommodating than the Strasbourg Court of religious freedom claims, more insistent on state neutrality on religion even at the cost of religious exemptions, and more willing to unsettle longstanding church-state models and cooperative arrangements.

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