TY - JOUR

T1 - When Religion Speaks: A Discriminatory Challenge to Face Covering Laws in Europe

AU - Carlson, Kerstin Bree

AU - Slosser, Jacob Livingston

PY - 2022

Y1 - 2022

N2 - This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.

AB - This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.

U2 - 10.1080/18918131.2022.2026044

DO - 10.1080/18918131.2022.2026044

M3 - Journal article

VL - 39

SP - 420

EP - 439

JO - Nordic Journal of Human Rights

JF - Nordic Journal of Human Rights

SN - 1891-8131

IS - 4

ER -