The Vices of Leaving This Undecided

—Renáta Uitz, Central European University

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

The European Court of Human Rights (ECtHR) closed 2018 with a much awaited judgment on the applicability of sharia in Europe. The case arose from an inheritance dispute in Greece: the applicant and her late husband were both Muslims, living in Thrace, and us such, falling under a historic minority protection regime that dates back to the dismantling of the Ottoman Empire.[1] Under this regime the Greek state and Greek courts recognized sharia as the law applicable to certain affairs of Greece’s Muslim citizens. In Molla Sali,[2] the Grand Chamber of the ECtHR unanimously found a violation, agreeing with the applicant that Greek courts should have allowed her to inherit under the Greek Civil Code, in accordance with the will and wishes of her deceased husband.

The symbolic impact of the Grand Chamber is significant: the Court confirmed the findings of several regional and international human rights bodies, pointing out the shortcomings of Greece’s practices regarding the treatment of the Muslim minority in Thrace. The practical impact of the judgment is seemingly moderate, as Greece decided to amend its national law about the jurisdiction of courts (and muftis) applying sharia law in January 2018, shortly after the hearing in the Molla Sali case before the Grand Chamber.

The judgment is worthy of attention because of all the issues the Grand Chamber carefully chose not to decide.

The ECtHR treated the matter as a property case involving discrimination by association (Article 1 of Protocol no. 1 together with Article 14): “whether there was a difference in treatment potentially amounting to discrimination as compared with the application of the law of succession, as laid down in the Civil Code, to those seeking to benefit from a will as drawn up by a testator who was not of Muslim faith.” [§ 86].

After careful consideration of a range of preliminary questions the Grand Chamber concluded that

157. Refusing members of a religious minority the right to voluntarily opt for and benefit from ordinary law amounts not only to discriminatory treatment but also to a breach of a right of cardinal importance in the field of protection of minorities, that is to say the right to free self-identification. … The choice in question is completely free, provided it is informed. It must be respected both by the other members of the minority and by the State itself.

For this conclusion ultimately it matters very little that the religious minority in question was a historically mistreated Muslim minority, or whether the applicant herself was a practicing Muslim. In other words, this was not a case about individual religious belief or liberty. Accordingly, the ECtHR did not elaborate on the role of the state in a contemporary European democracy characterized by religious diversity.

The Court did not spend much time on the question of discrimination by association either. It took note of this curious legal constellation (§ 134) and decided to apply the lowest standard applicable in discrimination cases under Article 14 (§ 135). This is disappointing not only because the Grand Chamber has yet to accord religious discrimination the highest level of protection,[3] but also because the case law on discrimination by association is unsettled.[4] For the time being it appears that the ECtHR resorts to applying the entry-level standard of objective and reasonable justification under Article 14, irrespective of the ground of protection and whether it ordinarily triggers a higher level of protection.

In fact, in 2016 in Guberina,[5] an earlier case on discrimination by association where the right to property was at stake the Court also applied the lowest standard (see § 87, 98), shortly after noting that

73: …  if a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion.

Arguably, the Greek state’s treatment of its Muslim minority would fit this broader pattern of historic mistreatment of a vulnerable religious minority, giving rise to a higher standard of scrutiny. This line of reasoning, however, did not lead to the application of the highest standard of scrutiny in Guberina either, in the discrimination by association setting.

The most that can be said in praise of the Molla Sali judgment is that it reinforces the protection of personal autonomy under the Convention, when expressed as an opt out from a special legal regime meant to protect minority rights.

Such narrow and technical judgments are becoming typical in the era of the culture wars – or rather: conscience wars – where courts are sitting in much-hyped cases where religious liberty clashes with other human rights. By the time such cases reach top courts, the media and the legal profession would have already explained the stakes in the case in all-or-nothing terms, often pitching religion (code for Christianity) against human rights (code for LGBT rights, women’s rights, etc). The response of courts is to render rather narrow and technical judgments that reflect more on the proper judicial role in the midst of social conflict than on the fundamental rights at stake.

In the summer of 2018 in the case of the baker who refused to make a wedding cake for a gay couple, Masterpiece[6], the judgment of the US Supreme Court (per Justice Kennedy) turned on whether the initial decision of the Colorado Civil Rights Commission met the obligation of religious neutrality. The Commission was found to be hostile towards the baker, after a commissioner’s remarks were left unchallenged by others.[7] The exact outlines of the requirement of state neutrality were brought to serious doubt, however, after  Trump v. Hawaii,[8] where the majority of the US Supreme Court found no relevant evidence of anti-Muslim bias animating the Trump Administration’s travel ban (original label: Muslim ban).

The other much awaited case of the summer of 2018 was the Law Society’s denial of accreditation to a private Christian law school (at Trinity Western University) in Canada, for TWU requiring its students and faculty to adhere to a faith-based, mandatory Covenant prohibiting sexual intimacy except between married heterosexual couples. The twin judgments of the Canadian Supreme Court[9] turned on the proper standard of review applicable for the individual decision of a regulatory body that limits Charter rights.

In cases of this kind courts are routinely accused of social engineering and a variety of serious biases. But the problem that should concern constitutional scholars is fragmentation and proceduralization of fundamental rights jurisprudence. In the maze of technical rules and fine legal distinctions the broader context of these cases is lost. Asking whether a Christian baker or a faith-based university can impose their views on others is simply not the issue in these cases, nor does it help to ask whether private individuals or faith-based organizations should respect the human rights of others as a matter of constitutional law in a constitutional democracy. Telling same-sex couples to get a wedding cake elsewhere (or make one for themselves) is a sign of treating them without due respect. Failing to acknowledge that TWU law graduates would ultimately enter the legal profession, including public service, also speaks to a lack of willingness to engage with the ultimate consequences of the case.

Irrespective of their factual peculiarities and differences in local context, these cases are about the terms of membership in the diverse political community governed by the constitution. The next court to watch in 2019 is the South African Constitutional Court, expected to decide whether physical punishment is an acceptable way to discipline children in families adhering to traditional values in a constitutional democracy.

Suggested citation: Renáta Uitz, The Vices of Leaving this Undecided, Int’l J. Const. L. Blog, Jan. 3, 2019, at: http://www.iconnectblog.com/2019/01/the-vices-of-leaving-this-undecided/

[1] See e.g. Konstantinos Tsitselikis, Old and New Islam in Greece: From Historical Minorities to Immigrant Newcomers (2011). The author of this work was one of the lawyers representing the applicant in the case.

[2] Molla Sali v. Greece, Application no. 20452/14, Judgment of 19 December 2019 [GC], at http://hudoc.echr.coe.int/eng?i=001-188985

[3] For the application of the highest level of scrutiny in Vojnity v. Hungary, Application 29617/07, Judgment of 12 February 12, 2013 under Article 8 + 14. The Court refused to respond to a claim on this point in Eweida and others v. the United Kingdom, Application nos. 48420/10; 36516/10; 51671/10; 59842/10, Judgment of 15 January, 2013, § 73 (third applicant) and Church of Jesus Christ of Latter-Day Saints v. the United Kingdom, Application no. 7552/09, Judgment of 4 March 2014, § 20.

[4] Constantin Cojocariu, Guberina and Gherghina: the two sides of the Court’s disability jurisprudence? May 17, 2016, https://strasbourgobservers.com/2016/05/17/guberina-and-gherghina-the-two-sides-of-the-courts-disability-jurisprudence/

[5] Guberina v. Croatia, Application no. 23682/13, Judgment of 22 March 2016.

[6] Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)

[7] The commissioner said that “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

[8] Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018). On quote in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)

[9] Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, June 15, 2018.