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Moving Beyond the Margin of Appreciation

Gwendolyn Yvonne Alexis, Ph.D., J.D.
Associate Professor
Monmouth University
West Long Branch, NJ 07764

Council of European Studies (CES)

2014 International Conference of Europeanists

March 14 16, 2014
Omni Shoreham Hotel, Washington D.C.

Courting Justice; Flirting with Unity....

Courting Justice; Flirting with Unity: Moving Beyond the Margin of Appreciation
Gwendolyn Yvonne Alexis, Ph.D., J.D.
The European Court of Human Rights (the Court) has a decisive role in determining
whether the newly unified Europe will gain global recognition as a community of states unified by a
commitment to fundamental democratic principles. Increasingly the Court is rendering decisions in cases
involving alleged violations of religious liberty a fundamental right guaranteed by Article 9 of the
European Convention on Human Rights (the Convention).1 Each case has involved a claim of religious
discrimination in one of the 47 COE member states brought by a member of a religious group that is a
new religion in the European religious landscape. Hence, the Courts supervisory role in assuring that
COE member states comply with Article 9 takes on an added significance in terms of facilitating
harmonious integration of immigrant populations into a newly unified Europe.2 Moreover, where the
immigrants filing these Article 9 claims constitute racial or ethnic minorities in Europe, yet another
dimension is added to the Courts aspirational goal of making the Convention the living instrument that
it must be in order to deal with a long-festering problem of racism in Europe.3
1 Council of Europe, European Convention for the Protection of Human Rights and
Fundamental Freedoms, 4 November 1950, ETS 5. (Convention)
2 In its drive to motivate scholars of migration studies to give more attention to the role of
religion in immigrant enculturation, the Social Science Research Council (SSRC) has funded several
international research projects to study the religious lives of migrant minorities (e.g., Pentecostal
Christian, Muslim, Hindu, and Buddhist migrants in London, Johannesburg, and Kuala Lumpur). See,
SSRC, The Religious Lives of Migrant Minorities, Programs - Migration and Religion, Last accessed 4 March 2014.
3 The Court reiterates in this connection that the Convention is a living instrument which
must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States

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Nonetheless in rendering its decisions, the Court has given deference to a member states
interpretation of what is required within its borders to comply with Article 9. Such deference has lowered
the quality of religious liberty enjoyed by Muslims and Jehovahs Witnesses domiciled in France,
Switzerland or Greece when compared to the religious liberty accorded to their counterparts domiciled in
other COE member states. There is no denying the Courts culpability as a facilitator of unequal
treatment of religious minorities domiciled in the COE member states. The Court has resorted to a
dubious sidestepping strategy to avoid confronting COE member states whose laws, judicial rulings, or
administrative actions clearly contravene individual human rights protections secured by the Convention.
Dubbed a margin of appreciation, the strategy has been charitably described as the deference the court
shows contracting states interpretations of the particularities of their own legal systems.4
Margin of Appreciation
In fact, a more apt description is that the Courts posture is tantamount to treating the margin
of appreciation as a routine choice of law procedural matter.5 This enables it to give short shrift to the
fact that the Convention creates substantive rights which are being circumvented by national courts left
free to subjectively evaluate their own laws in terms of compliance with the international human rights
today. Paragraph 102, Case of Bayatyan v. Armenia, 23459/03 (Grand Chamber) 7 July 2011
(Bayatyan II).
4 James W. Hart, The European Human Rights System, 102(4) Law Library Journal (2010),
533-555, at 552.
5 The court uses the same term (margin of appreciation) both for saying that the applicant
did not, as a matter of human rights, have the right she claimed, and for saying that it will not
substantively review the decision of national authorities as to whether there has been a violation. George
Letsas, Two Concepts of the Margin of Appreciation, Oxford Journal of Legal Studies 26(4) (2006),
705-732, at 706.

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standards set forth in the Convention.6 And when Article 9 is at issue, deferring to localized
interpretations of what is required for good faith compliance with the Convention results in an
impoverishment of protections for minority faiths.7 Indeed, it is this conspiratorial complacency on the
part of the Court that allows isolated rogue COE member states to undercut the clear language of Article 9
and arrive at convoluted and idiosyncratic interpretations of what religious freedom entails
interpretations tailored to embrace the human rights abuses looming large within their borders as nondiscriminatory and protective of vague national or collective interests (e.g., national identity,
democratization, cultural heritage, societal wellbeing). Needless to say, the Courts kowtowing to outlaw
member states is counterproductive to the overall project of cultivating a community of uniformly
democratic COE member states.
As enshrined in Article 9 (art.9), freedom of thought, conscience and religion is
one of the foundations of a democratic society within the meaning of the
Convention. It is, in its religious dimension, one of the most vital elements that
go to make up the identity of believers and their conception of life, but it is also a
precious asset for atheists, agnostics, skeptics and the unconcerned.


6 Although a regional pact, the Preamble to the Convention aligns its objectives with the
international focus of the United Nations Universal Declaration of Human Rights (Universal
Declaration): Being resolved, as the governments of European countries which are like-minded and
have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps
for the collective enforcement of certain of the rights stated in the Universal Declaration... (Convention,
7 Peter Cumper and Tom Lewis, Introduction: Freedom of Religion and BeliefThe
Contemporary Context in Religion, Rights & Secular Society: European Perspectives, eds. Peter Cumper
and Tom Lewis (Cheltenham, UK: Edward Elgar Publishing Ltd., 2012) 1-16; 15.

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pluralism indissociable from a democratic society, which has been clearly won
over the centuries, depends on it. 8
The Preamble to the Convention notes that, the aim of the Council of Europe is the achievement of
greater unity between its members.9 However, rather than securing unity by strict construction of Article
9, the Court has opted to take the path of least resistance by allowing the self-serving and deviant
interpretations of the Convention by outlaw member states to derail the unifying themes of humanism and
democracy that form the core of European integration. A fledgling American Republic also faced the
daunting challenge of unifying autonomous states under one overriding Basic Law (the U.S Constitution).
It is therefore worthwhile to examine the U.S. solutions to glean what can be of use in the European
setting. I turn to that next.
The Supreme Law of the Land: Federal Preemption Doctrine
The Constitution and the laws of the United States shall be the supreme law
of the land.10
The above quoted passage, known as the Supremacy Clause, is the basis of the Federal
Preemption Doctrine. This Doctrine is the judicial review standard used by the U.S. Supreme Court
(SCOTUS) to establish the pecking order for laws enacted at the federal and state level. Under the
Doctrine, state laws that are inconsistent with federal law are deemed to be unconstitutional. Hence,
federal law in an area (e.g., immigration laws) will preempt (override) state legislative enactments in that
area. Preemption can be either express or implied.

8 Paragraph 31, Kokkinakis v. Greece, 25 May 1993, (1994), no. 14307/88, 17 EHRR 397.
Kokkinakis was the first judgment rendered by the Court in anArticle 9 case.
9 Convention, Fourth paragraph of Preamble.
10 U.S. CONST, Article VI, cl. 2 (the Supremacy Clause).

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It is express preemption when Congress expressly provides that a given federal law shall
override state law. It is implied preemption where it appears to SCOTUS that:
(a) Congress intended for a given federal law to completely occupy the field;
(b) a state law directly conflicts with a federal law; or
(c) enforcement of a state law would frustrate federal purposes indicated in the federal statute.
Where none of the above three situations exists, both federal and state law may exist in the same area,
subject to the provisions of the 14th Amendment to the U.S. Constitution.
The 14th Amendment Provisos
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
..... 14th Amendment, U.S. Constitution11
The 14th Amendment was ratified on July 28, 1868, almost 80 years after the U.S.
Constitution became the Basic Law of the land.12 The Amendment reiterates the Supremacy Clause of
Article VI of the Constitution, making it doubly clear that federal law would pre-empt contradictory laws
enacted by the individual states of the Union. In the first clause (No State shall) of the 14th
Amendment excerpt cited above, a zero tolerance level is established for abridgement of the privileges or
11 Section 1, U.S. CONST. amend. XIV.
12 The U.S. Constitution became effective on March 4, 1789, and provides: This
Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any
State to the Contrary notwithstanding. U.S. CONST. art. VI, cl. 2.

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immunities secured to U.S. citizens under the U.S. Constitution. However, the premonitory language of
this clause did not bring a halt to lawmaking at the state level. Today, the 50 individual states in the union
continue to enact laws, adopt regulations and take administrative actions that have the potential to conflict
with federal law.
The State of California has a history of enacting state laws that push the envelope in terms of
trespassing on federal territory. In a recent Supreme Court Case, Californias law banning the sale or
rental of violent video games to minors was held to be in violation of the First Amendment protection of
free speech and therefore unconstitutional.13 It is important to note, however, that California was not
completely out of line in enacting a law to fill what it saw as a void in federal legislation. This is because
the 10th Amendment to the U.S. Constitution reserves to the states any powers not specifically delegated
to the central government.

13 Brown vs. Entertainment Merchants Association, 131 S.Ct. 2729 (2011). The State of
Arizona has also engaged in a number of power plays with the federal government because of trying to
enact its own laws to crack down on illegal immigrants despite immigration being the bailiwick of the
federal government. Most recently, Arizona attempted to enact a law under which children born in
Arizona to illegal immigrants would not be considered U.S. citizens. This flies directly in the face of the
U.S. Constitution which provides that, All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. Section
1, U.S. CONST. amend. XIV.

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The Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people.14
It is under the auspices of the 10th Amendment that states enact laws to protect the welfare,
safety, and health of state residents; in doing so, a state is said to be exercising its police powers. Hence,
under the U.S. federalist system of shared power, it is actually state government that fulfills the day-today needs of the populace, providing them with police protection, libraries, school systems, public
highways, and so forth. In short, the laws of the various states fulfill a critical function in terms of
providing American citizens with the quality of life long associated with living in a democracy. For
instance, although the U.S. Securities & Exchange Commission (S.E.C.) administers the federal
securities laws, all 50 states also have their own securities laws (known as Blue Sky Laws) and a
regulatory agency that is the state counterpart to the federal S.E.C., serving the same watchdog function in
terms of protecting the investing public by requiring registration of securities issues, brokers, and dealers
operating within the particular state. Thus the 10th Amendment is reminiscent of Article 53 of the
Convention in that it allows for reserved power in the individual states to act in some of the same areas in
which federal law exists.
Article 53 of the Convention
Article 53 of the Convention acknowledges that the Convention is not the sole arbiter of
human rights with respect to COE member states. As separate political entities, the 47 COE member states
continue to govern the day-to-day activities of their respective inhabitants. Article 53 provides that COE
member states retain (a) the right to enact their own human rights laws and (b) the right to enter into
agreements or pacts with other intergovernmental entities for protection of the human rights and
fundamental freedoms of their respective citizens.15 Thus, Article 53 establishes the continuing relevance
14 U.S. CONST. amend. X
15 Convention, Article 53.

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of the domestic law of COE member states in much the same way the 10th Amendment to the U.S.
Constitution establishes the continuing relevance of and necessity for law-making at the state level in
America. As might be anticipated, the gray area created by the permissible co-existence of national human
rights laws and the Conventions human rights protections is fertile soil for COE member states to take
advantage of the jurisdictional uncertainty by enacting state laws that trespass on rights and freedoms
secured by the Convention.
One obstacle to such predatory behavior on the part of COE member states is found in Article
I of the Convention which admonishes COE member use their lawmaking to secure to everyone within
their jurisdiction the rights and freedoms set forth in Section 1 of the Convention.16 Nonetheless, the
exhortatory tone of Article I (entitled, Obligation to respect human rights) reveals it to be aspirational in
nature. This lessens the ability of Article I to ward off enactment of discriminatory laws by COE member
states hell-bent on protecting their secular culture such as France, Switzerland and Turkey. Add to that
shortcoming the Courts willingness to give COE member states the benefit of the doubt by applying the
margin of appreciation and the outcome is a stacked deck against any complainant before the Court
alleging an Article 9 violation:
The Court also notes that in France, as in Turkey or Switzerland, secularism is a
constitutional principle, and a founding principle of the Republic, to which the
entire population adheres and the protection of which appears to be of prime
importance, in particular in schools. The court reiterates that an attitude which
fails to respect that principle [of secularism] will not necessarily be accepted as
being covered by the freedom to manifest ones religion and will not enjoy the
protection of Article 9 of the Convention. Having regard to the margin of
appreciation which must be left to the member States with regard to the
16 The High Contracting Parties shall secure to everyone within their jurisdiction the rights
and freedoms defined in Section I [Rights and Freedoms] of this Convention. Convention, art. 1.

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establishment of the delicate relations between the Churches and the State,
religious freedom thus recognized and restricted by the requirements of
secularism appears legitimate in the light of the values underpinning the
Convention.17 (Emphasis Added.)
In the above excerpt from the Case of Dogru, the Court applies the margin of appreciation doctrine to a
case in which the Complainant alleges violation of Article 9, religious freedom. Religious freedom is a
qualified right in that the second paragraph of Article 9 lists certain limitations on the right to manifest
ones religious beliefs.18 Moreover, Article 9 cases are deemed by the Court to involve protection of
morals and thus COE member states are given a wide margin of appreciation when a claim is filed
alleging a violation of religious freedom.19 Why a wide margin? The Court generally grants a wide
margin where there is no consensus among COE member states as to an issue (which there is not where
morality is concerned); and the Court therefore feels it would be unfair to uniformly apply Convention
standards given the divergent views of COE member states.20 Hence in applying the margin of
17 Paragraph 72, Case of Dogru vs. France, 27058/05 Judgment (Merits) Court (Fifth
Section) 27 October 2009.
18 Freedom to manifest ones religion or beliefs shall be subject only to such limitations as
are prescribed by law and are necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the rights and freedom of others.
Article 9(2), ECHR.
19 Open Society Foundation, An overview of the Strasbourg Courts margin of appreciation
doctrine Margin of Appreciation (April 2012). 8 March 2014
20 Where questions concerning the relationship between State and religions are at stake, on
which opinion in a democratic society may reasonably differ widely, the role of the national decisionmaking body must be given special importance. Paragraph 63, Dogru v. France, supra.

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appreciation the Court focuses on the interests of COE member states, rather than on the interest of the
complainant even where the complainant is alleging violation of a fundamental right like religious
freedom a hallmark of democracy.
Strict Scrutiny Standard
The Courts margin of appreciation approach stands in stark contrast with the perspective
utilized in the U.S. for cases involving government policies that intrude upon civil rights such as religious
freedom or the right to vote. SCOTUS utilizes the strict scrutiny standard for judicial review. Under
the strict scrutiny standard, the challenged policy is presumed to be unconstitutional. Thus, once it is
established that violation of a fundamental right is involved, the burden of proof is shifted to the
governmental entity to defend its policy.21 This is how it should be when fundamental rights are involved.
When a COE member state interprets its own domestic law as not being in violation of the
Article 9 religious liberty guarantee and yet the law clearly has a deleterious effect on the religious liberty
of the states religious minorities, the Court should view the recalcitrant states interpretation of its
domestic laws with the hermeneutics of suspicion, rather than with appreciation. Indeed, where a
national courts interpretation of what constitutes religious liberty under local law deviates from the
Article 9 standards to such an extent that basic rights and privileges secured by Article 9 are denied to
those residing in the domestic courts jurisdiction, the Court should reject the national courts ruling out of

Article 9 provides a uniform standard for religious freedom within the democratic and

democratizing countries of Europe. And, the Court is uniquely situated in terms of heralding in a new
European Culture - a community of states unified by a humanistic worldview and a commitment to
21 To defend its policy, the government must overcome the following three hurdles: (1)
demonstrate that a compelling state interest is involved, (2) show its policy is necessary to achieve the
compelling state interest, and (3) demonstrate that the legislation is narrowly tailored to achieve the
intended result.

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fundamental democratic principles. Therefore, the Court needs must establish a zero-tolerance level for
deviations from the Article 9 grant of religious liberty to citizens of the newly integrated Europe.
The Errors and Omissions of Proportionality
The Court applies the principle of proportionality only after the Court has determined that a
COE member state is justified in restricting a right provided for in the Convention. In other words, the
question with proportionality is not if a right may be restricted, but by how much it may be restricted.
Therefore, the proportionality principle it is too little, too late. This tepid principle cannot serve as a
corrective to a defective system in which a member state need only make the self-serving claim that the
intrusion on fundamental rights serves a legitimate public goal. Indeed, the proportionality principle
and its after-the-fact use is a reflection of the Courts indifference to the curtailment of religious liberty. It
is the casual manner in which the Court refers to the proportionality principle that allows it to consistently
rule that Frances long-standing commitment to being a secular state carries more weight than religious
conviction.22 Of course, coerced secularism (such as exists in France) cannot be evaluated without
reference to its disparate impact on adherents to non-Christian religions. Applying the proportionality
principle does not require the Court to engage in the type of in-depth analysis that is necessary to weigh
the interests of overtly religious minorities vis--vis the interests of the aggressively secularized state.
United Nations Human Rights Committee

22 On June 30, 2009, in a simultaneous ruling the Court held that the following five cases
brought by Muslims students who were expelled from French schools for refusing to remove
conspicuous symbols of religious affiliation during lessons were inadmissible as not constituting
violations of either Article 9-1 (manifest religion or belief) or Article 14 (discrimination): Aktas v. France,
No,. 43563/08; Bayrak v. France, No. 14308/08; Gamaleddyn v. France, No. 18527/08; Ghazal v. France,
No. 29134/08; and Jasvir Singh v. France, No. 25463/0-8.

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In the case of Ranjit Singh v. France,23 the wrong-headedness of the Courts cursory
application of the proportionality test was made evident by the United Nations Human Rights Committee
(UN Committee). The UN Committee is the interpreter of the International Covenant on Civil and
Political Rights (ICCPR), an international pact (to be contrasted with the Convention which is only a
regional pact) on human rights.24 The Singh case involved an application by Ranjit Singh, an Indian
national with refugee status in France. In connection with renewing his residence permit, Mr. Singh
produced two photographs of himself wearing a turban. Since bareheaded photos were required by the
French regulations, Singhs photos were rejected and he filed an application under Article 9 of the
Convention charging violation of his freedom of religion. However, the Court held that Mr. Singhs
religious freedom had not been violated in light of the proportionality test and giving due weight to
Frances legitimate interest in protecting the public order and safety (by requiring bareheaded
photographs!). Subsequently Singh filed the Article 18 application with the UN Committee which ruled
that his religious freedom had been violated. Striking a blow for realism, the UN Committee ruled that
France had not explained, how, specifically, identity photographs in which people appear bareheaded
help to avert the risk of fraud or falsification of residence permits. Hence, unlike the Court which was
satisfied with performing a perfunctory proportionality test, the Committee delved into Frances
regulation in search of substantive content that would merit infringing upon the religious freedom of the
applicant and determined that the regulation lacked substance.25
23 Ranjit Singh v. France, Communication No. 1876/2009, U.N. Doc.
CCPR/C/102/D/1876/2009 (2011). < >
24 Article 18 of the ICCPR commits nations signing the pact to uphold the religious liberty of their

25 Apparently some members of the Court have a better grasp of its role than others. In a
dissenting opinion in the Case of Bayatan vs. Armenia, 23459/03 (Third Section) 27 October 2009, Judge

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I now turn to the U.S. experience with the Equal Protection Clause of the 14th Amendment
which provides a useful comparison in terms of shedding light on how the Court might use judicial
activism to move beyond the margin of appreciation.

Equal Protection Clause: Moving Beyond the Margin of Appreciation

No State shall ... deny to any person within its jurisdiction the equal protection of
the laws.

..... 14th Amendment, U.S. Constitution26

The U.S. Congress enacted the Fourteenth Amendment in 1868 on the heels of the Civil War
for the specific purpose of requiring states to grant equal treatment to the freed slaves. In particular, the
southern states had to approve the amendment to the Constitution as a precondition to their re-entry into
the Union.27 However, the law alone was not sufficient to secure equal treatment for African-Americans
who right up to the tumultuous years of the 1960s engaged in acts of civil disobedience to draw attention
to their position as third-class citizens in the country to which they came chained together as slaves
destined to be sold as chattel on the auction block. Marches, sit-ins, boycotts, and protests served to call
attention to the plight of the black man in America, but racism and discrimination continued. Judicial
activism is a necessary element in securing rights for despised minorities. A case in point, even after the
14th Amendment became law, the Separate-But-Equal Doctrine announced in Plessy vs. Ferguson served
Power stated that notwithstanding the lawfulness of a permitted interference with a Convention right, the
Court retains its supervisory role in assessing the proportionality of any measure taken.
26 U.S. CONST. amend. XIV (Section I, second sentence).
27 American Bar Association. "Equal Protection: Historical Perspective: What Was the Intent
of the Framers of the 14th Amendment?" 7 March 2014.

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to validate racial segregation in America for six decades.28 It was not until 1954, in the case of Brown vs.
Board of Education, that SCOTUS overturned Plessy by holding that separate is inherently unequal.29
In short, even with progressive legislation, like the 14th Amendment, it takes judicial activism to bring
about real change.
With its designated role as both (a) interpreter of the Convention and (b) monitor of COE
member state compliance with the Convention, the Court sits in the catbirds seat in terms of using its
Court decisions to establish that the Convention is indeed the supreme law of the region and that, as
such, it trumps laws of COE member states that serve to erode the rights and privileges secured by the
The Complementary Article 14 of the Convention
Article 14.Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.30
Although Article 14 of the Convention prohibits discrimination, it is a long way from granting
citizens of the newly integrated Europe equal protection of the laws as is accomplished with respect to
U.S. citizens by Section 1 of the 14th Amendment to the U.S. Constitution (nor deny to any person within
its jurisdiction the equal protection of the laws).31 Unfortunately, Article 14 in and of itself does not have
the effect of assuring that all who dwell in the newly integrated Europe enjoy the same quality of religious
28 165 U.S. 537 (1896). Plessy held that the Fourteenth Amendment was not violated by
states enacting laws mandating segregated railroad cars.
29 347 U.S. 483 (1954).
30 Article 14, ECHR.
31 Section 1, U.S. CONST. amend. XIV.

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freedom. This is made painfully obvious by the Court-endorsed disparity that results in an inability of
Muslims residing in France, Switzerland, or Turkey to manifest their religious belief by modes of attire
and other religious symbolisms whereas Muslims residing in other COE member states such as the
Scandinavian countries are allowed to manifest their religious beliefs through modes of attire, symbolisms
and grooming customs (e.g., beards, uncut hair for Sikh males).
The Court has consistently held that Article 14 has no independent existence; rather it
complements the other substantive provisions of the Convention. 32 Since Article 14 is not substantive
law, one cannot file a claim with the Court that simply alleges a violation of Article 14. Of course, being
able to do so would be beneficial in challenging laws that have a disparate negative impact on the
religious freedom of minority religious groups even though the laws treat everyone in a particular
category the same, such as Frances law prohibiting all students from wearing headscarves to school.33
An additional area in which an autonomously functioning Article 14 would be useful is with
the religion-friendly legislation (RFL) that has been enacted by COE member states to encourage growth
of the religious sector as a segment of civil society.34 Whereas this legislation seems beneficial to the
religious sector on the surface, access to the states largesse comes with a price. Under RFL, religious
groups can receive tax exemptions, reduced tax rates, subsidies, grants, and free state services provided

32 Case of Koppi v. Austria, 33991/03, Court (First Section) 12 October 2009.

33 For more on this topic, see: Gwendolyn Yvonne Alexis, "Not Christian, but Nonetheless
Qualified: The Secular Workplace - Whose Hardship?," Journal of Religion and Business Ethics: Vol. 3:
Iss. 1, Article 1. Available at: <>
34 For a more thorough discussion of the Tripartite Theoretical Model (TTM) of which RFL is a part,
see: Gwendolyn Yvonne Alexis, Legislated Isomorphism of Immigrant Religions: Lessons from
Sweden, in Migrant Marginality: A Transnational Perspective, Eds. Philip A Kretsedemas, Jorge
Capetillo-Ponce, and Glenn Jacobs. (Routledge, 2013.), 63-81.

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they conform to the standardized norms of mainline religious groups in the area. Organized religions with
denominational structures and traditional governing hierarchies have no difficulty fitting the mold and
thus qualifying for the governmental goodies. It is the members of newer non-traditional (and often nonChristian) religious groups taxpayers though they may be who fail to qualify for the government
handouts even where registration as a religious organization seems to be a fairly straight-forward and nondiscriminatory requirement:
According to the bill, in order to be registered a church has to prove 20 years
existence in Hungary (as a church or association) and has to have at least 1000
members residing in Hungary 35

35 Renata Uitz, The pendulum of church-state relations in Hungary, in Peter Cumper and
Tom Lewis (eds.), Religion, Rights and Secular Society: European Perspectives (Edward Elgar Publishing
Ltd., Cheltenham, UK)189-214, 210-11.

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A Living Instrument and Judicial Activism
It is somewhat surprising that the Courts case-law under Article 9 is not more
Judge Furas Concurring Opinion in Bayatan I36
The surprise expressed by Judge Fura in the above excerpt from Bayatan I over the absence of
proactive interpretation of Article 9 is well founded. Indeed, even the dissent in Bayatan I, called for more
judicial activism on the part of the Court by pointing out that the Convention is a living instrument
whose provisions must be interpreted in accordance with current legal standards and norms. 37 Bayatan I
involved an application to the Court by a Jehovah Witness who was a conscientious objector and thus
sought alternative service at a time when Armenian law did not recognize conscientious objectors.
Although Armenian law was subsequently changed to allow alternative service for conscientious
objectors, the Jehovah Witness in Bayatan I was imprisoned for refusing to serve in the military and his
period of imprisonment began after the new law was in place allowing alternative service for
conscientious objectors. The Complainant served 10-1/2 months of a 2-1/2 year sentence and sued for
violation of Article 9; however, the Court found no violation because Article 4 3(b) of the Convention
provides that COE member states do not have to recognize conscientious objectors.
To Judge Furas credit, he referred the case to the Grand Chamber for review and this resulted
in Bayatan II in which the Court ruled on July 7, 2011, that Article 9 had been violated by Armenia.
Taking a more proactive stance in terms of breathing new life into the living Convention, the Court
noted that in rendering decisions it may also have regard to any consensus and common values emerging
36Case of Bayatyan v. Armenia, 23459/03, Court (Third Section) 27 October 2009 (hereafter
Bayatyan I).
37Bayatyan I, supra, Dissenting Opinion of Judge Power.

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from the practices of the States parties to the Convention. 38 This is indeed a proper role for the Court to
take on. It is a proactive stance that entails the kind of judicial activism that has long been the modus
operandi of SCOTUS. The social world is constantly changing and laws that remain glued to the past do
not serve society well. Under the U.S. Constitution, slavery was tolerated, women had no right to vote,
Jim Crow laws existed and the Separate-But-Equal Doctrine was considered a justifiable compromise for
maintaining segregated schools.39 These shameful periods in the history of the U.S. were ended by an
activist U. S. Supreme Court that opted to allow the Constitution to grow and mature along with the
American people. The Court can do no less for a newly integrated Europe.


38 Case of Bayatyan v. Armenia, 23459/03 (Grand Chamber) 7 July 2011 (Bayatyan II).
39 See discussion of Brown v. Education and Plessy cases above under section entitled Equal
Protection Clause: Moving Beyond the Margin of Appreciation.