Islamic Headscarves, Religious Pluralism, and Secular Human Rights

This paper considers the Article 9 religious freedom jurisprudence of the European Court of Human Rights. It opens by looking at recent decisions involving Islam that stand in tension with the Court’s endorsement of normative religious pluralism. It is argued that the inability of the Court to construct a satisfying account of the place of public Islam within a religiously pluralistic order reflects inherent limitations of the liberal tradition of religious freedom. In particular, the Court’s approach to these cases reveals ways in which the category of human rights has become tethered to a normative secularity that cannot ultimately support a vigorous promotion of religious pluralism. This being the case, the challenge confronting the European Court of Human Rights in its treatment of religious pluralism might be understood as not merely jurisprudential but moral, ontological, and finally, theological. That is, the problematic that must be identified and critiqued concerns the deep ways in which law has been formulated in relation to religion within the modern order. With this in mind, the paper turns in its final section to discussing conceptual jurisprudential alternatives. It is revealing that some of the most creative alternatives, particularly addressing the status of Islam, are being advanced by theologians positioned to think about certain elemental matters outside the sphere of normal jurisprudential considerations. As a point of entry into these conversations, the concluding section considers two of the most important recent reflections on this topic by Rowan Williams and John Milbank.