The Principle of Religious Neutrality in ECtHR and CJEU Jurisprudence: When Neutral Becomes Biased

Abstract

Even though the principle of neutrality aims, at theoretical level, to ensure absence of coercion, preference, and arbitrary, unjustified State interference with the right to freedom of religion, often, in practice, this is not the case. This is proven by the above interplay between the theoretical scope and the practical outcomes of the use of the principle by the ECtHR. What should protect the right to freedom of religion, often results in allowing States’ violations of the right, based on certain political, philosophical stances such as secularism. Nevertheless, one should not confuse secularism with religious neutrality and liberalism. In this sense, the next phrase should encompass the often blurred, but crucial difference between secularism and religious neutrality and liberalism: ‘The beginning of wisdom in this contentious area of law is to recognize that neutrality and secularism are not the same thing. In the marketplace of ideas, secular viewpoints and ideologies are in competition with religious viewpoints and ideologies. It is no more neutral to favour the secular over the religious than it is to favour the religious over the secular. It is time for a reorientation of constitutional law: away from the false neutrality of the secular state, toward a genuine equality of the rights’.