ABSTRACT
Europe is witnessing a resurrection of religion and, with it, a re-emergence of old and long-debated controversies concerning the appropriate place of religion in liberal democratic societies. Needless to say, this is a profoundly divisive matter, especially in a time in which European states desperately try to fight the ‘invasion’ of refugees and migrants – most of whom are Muslim – by building walls, weakening refugee protection, and promoting European values and traditions. The European Court of Human Rights has been accused of promoting a form of ‘militant secularism’, which authorises a state to act in a militant manner – by imposing strict restrictions on the exercise of religious freedom – in order to safeguard its democracy’s core constitutional commitment to secularism. The aim of this chapter is twofold. First, it urges the ECHR to adopt an approach to religion similar to Laborde’s minimal secularism, which is designed to set out the necessary conditions for liberal legitimacy, while allowing states to pursue their own reasonable interpretation of the principles of justice. This framework seems to be particularly well suited for the European context, where the ECHR’s doctrine of the ‘margin of appreciation’ may be regarded as the tool that allows for the creation of a European space of tolerance understood figuratively – that is, as the realm of possibility within the domain of reasonable liberal conceptions of justice. Second, it assesses whether the ECHR’s protection of the right to religious freedom is sufficient at the bar of liberal legitimacy by discussing some its most debated rulings on the presence of religious symbols in the public sphere. This exercise allows me to highlight some points of disagreements with Laborde’s approach and suggest a revised version of her account that I term ‘tolerant pluralism’. Broadly speaking, it is my contention that Laborde’s notion of minimal secularism is still too secularist with regards to state officials’ right to wear – and states’ permissibility to display – religious symbols in the public sphere.
