Faith in Courts: Human Rights Advocacy and the Transnational Regulation of Religion 9781509945047, 9781509945122, 9781509945115

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FAITH IN COURTS: HUMAN RIGHTS ADVOCACY AND THE TRANSNATIONAL REGULATION OF RELIGION The judicialisation of religious freedom conflicts is long recognised. But to date, little has been written on the active role that religious actors and advocacy groups play in this process. This important book does just that. It examines how Jehovah’s Witnesses, Muslims, Sikhs, Evangelicals, Christian conservatives and their global support networks have litigated the right to freedom of religion at the European Court of Human Rights over the past 30 years. Drawing on in-depth interviews with NGOs, religious representatives, lawyers and legal experts, it is a powerful study of the social dynamics that shape transnational legal mobilisation and the ways in which legal mobilisation shapes discourses and conflict lines in the field of transnational law. Volume 13 in the series Hart Monographs in Transnational and International Law

Hart Monographs in Transnational and International Law Series Editor: Craig Scott, Professor of Law, Osgoode Hall Law School of York University, Toronto The objective of this series is to publish high-quality scholarship in public international law and private international law, as well as work that adopts “transnational law” as its thematic, theoretical or doctrinal focus. The series strives to be a leading venue for work of the following sort: * critical reappraisals of foundational concepts and core doctrinal principles of both public and private international law, and their operation in practice, including insights drawn from general legal theory; * analysis and development of conceptions of ‘transnational law’, including in relation to the role of unofficial law and informal processes in transnational regulation and in relation to theories and studies of ‘governance’ in transnational spheres; and * empirical studies of the emergence, evolution and transformation of international and/or transnational legal orders, including accounts and explanations of how law is constructed within different communities of interpretation and practice. In relation to the first of these categories, the series especially welcomes monographs that explore the interactions between the ever-integrating fields of public and private international law. Of special interest are explorations of the extent to which these interactions are structured by higher-order principles and policies, on the one hand, and by politics and the exercise of various forms of power, on the other hand. The series is open to work not only by law scholars but also by scholars from cognate disciplines. Recent titles in this series Interlocking Constitutions: Towards an Interordinal Theory of National, European and UN Law Luis I Gordillo Transnational Terrorism and State Accountability: A New Theory of Prevention Vincent-Joël Proulx Transconstitutionalism Marcelo Neves translated by Kevin Mundy The Institutional Problem in Modern International Law Richard Collins Liability for Transboundary Pollution at the Intersection of Public and Private International Law Guillaume Laganière Faith in Courts: Human Rights Advocacy and the Transnational Regulation of Religion Lisa Harms

Faith in Courts Human Rights Advocacy and the Transnational Regulation of Religion

Lisa Harms

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Adapted from the author’s PhD dissertation submitted to the University of Göttingen and the Institut d’Études Politiques de Paris, Fragmented Universalism: The Making of the Right to Freedom of Religion at the European Court of Human Rights Copyright © Lisa Harms, 2022 Lisa Harms has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. ISBN: HB: 978-1-50994-504-7 ePDF: 978-1-50994-511-5 ePub: 978-1-50994-510-8 Typeset by Compuscript Ltd, Shannon

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Acknowledgements

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his book would not have been possible without the generous support of my mentors, friends and colleagues who read, discussed and advised on this work, from its inception to its final polishing. Above all, I am indebted to Matthias Koenig who has provided invaluable support to this project from its earliest stages at the Max Planck Institute for the Study of Religious and Ethnic Diversity to its latest iterations. His precious advice has contributed tremendously to this book and continues to be a true source of inspiration for my work. I am equally thankful to Kathy Rousselet. Her scholarly passion and her careful guidance from my very first field research as a graduate student at Sciences Po in Paris to the final writing of my dissertation, of which this book is the result, has been of the utmost importance to my path into the social sciences. My sincerest thanks must go to Ran Hirschl for his generous support and the thorough feedback he gave me on many ideas, chapters and book outlines, especially during my post-doctoral fellowship at the Alexander von Humboldt Chair of Comparative Constitutionalism at the University of Göttingen. I am also deeply grateful to Ayelet Shachar for her insightful comments on this project at many different stages and for generously allowing me to join her team at the Ethics, Law, and Politics department at the Max Planck Institute. I can only hope that some of the true interdisciplinary spirit, which made both the Max Planck Institute and the Alexander von Humboldt Chair such special and unique places, is reflected in this book. Three other inspiring scholars, Claire de Galembert, Philippe Portier and Richard Münch, helped me tremendously with their astute reading and discussion of my dissertation. I would like to extend my heartfelt thanks to them. Over the years, many colleagues and friends in Göttingen and Paris and – during its final stages – in Münster have supported this project in countless ways, by reading draft chapters, discussing ideas, or, where necessary, distracting me from my research over meals, drinks and card games. I would like to express my gratitude to all of them: Sinem Adar, Elisabeth Badenhoop, Benjamin Boudou, Florent Catu, Derek Denman, Anja Durovic, Berihun Gebeye, Artem Galushko, Alexander Hudson, Tania Pagotto, Eunike Piwoni, Mareike Riedel, Gülay Türkmen, Sabine Mohamed, Stefan Schlegel, Samuel Schmid, Mira Seyfettinoglu, Sabine Trittler, Mariana Velasco Rivera, Barbara von Rütte, Bouke de Vries, Julius Yam and Jingyang Yu. Thanks to Ines Michalowski and Hakan Yücetas for making the transition to the University of Münster in times of pandemic as smooth as possible.

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Acknowledgements

The core of this book is the result of my encounters with lawyers and legal activists across the European continent. I owe a great deal of gratitude to all my interview partners for their many hours of conversation with me despite their own busy agendas. Without their openness and helpfulness, this research would not have been possible. This project has been generously supported and funded by the Max Planck Institute for the Study of Ethnic and Religious Diversity and the Alexander von Humboldt Chair of Comparative Constitutionalism at the University of Göttingen. I thank the CERI of Sciences Po for hosting me for several months and integrating me in an inspiring community of researchers. The project has profited from support and funding from the Université franco-allemande as well as the Studienstiftung des Deutschen Volkes. In part, the transformation of the dissertation into a book took place at the Institute of Sociology at the University of Münster and benefitted from the sociological exchanges with my colleagues there. I have published a condensed version of the argument of this book has been in an earlier article ‘Claiming Religious Freedom at the European Court of Human Rights: Socio-Legal Field-Effects on Legal Mobilization’, 46 Law and Social Inquiry 1206. Among the conferences and workshops where I had the chance to present parts of this work, I would like to acknowledge in particular the invitation by Claire de Galembert, Claude Proeschel and Sylvie Toscer-Angot to the Collège des Bernardins in Paris. In addition, Effie Fokas has generously allowed me to join, and greatly benefit from, various grassrootsmobilise meetings and conferences. Thanks to the many people at the Max Planck Institute who offered invaluable infrastructural support in my everyday work on the dissertation, especially Marina Adomeit, Jutta Esser, Rami Higazi, Kristin Futterlieb and Norbert Winnige. Equal gratitude goes to Esther Lauer for her patient and caring support at the University of Göttingen. At Hart Publishing, I am grateful to Craig Scott for his careful comments on this book. Thanks to Sinead Moloney for her advice and Sasha Jawed for her unfailing support and patience throughout the editorial and marketing process. Thanks to Anne Bevan for the careful copy editing and Tom Adams who helped me through the production process. Finally, a big thank you to my family, to Ute and Ehler, Nora, Mehdi and Farah, Hannes, Wilken and Henriette, and Christine for standing by my side in the long research and writing process. I want to thank Nora in particular, not least for her unwavering believe that circles can be squared. Tremendous ­gratitude to Martijn van den Brink for reading and discussing draft after draft of this work and for supporting me in every possible way throughout the journey of this book.

Table of Contents Acknowledgements����������������������������������������������������������������������������������������v Abbreviations���������������������������������������������������������������������������������������������� ix Figures and Tables��������������������������������������������������������������������������������������� xi List of Cases���������������������������������������������������������������������������������������������� xiii Introduction: Transnationalisation, Judicialisation and the Regulation of Religion����������������������������������������������������������������������������������������������������1 From the National to the Transnational Regulation of Religion����������������7 Religious Freedom Advocacy in a Transnational Legal Field��������������������12 Trajectories of Legal Mobilisation: Empirical Observations��������������������14 Contributions����������������������������������������������������������������������������������������16 Chapter Outline������������������������������������������������������������������������������������17 1. Fielding Religious Freedom Advocacy: A Sociological Approach to Transnational Legal Mobilisation������������������������������������������������������20 Social Movements and Legal Mobilisation���������������������������������������������22 A Shift of Perspective: Mobilisation in (Transnational) Legal Fields��������29 Methods and Data���������������������������������������������������������������������������������40 2. Enacting the Liberal Script: Religious Transatlantic Networks and an Emerging Legal Field������������������������������������������������������������������47 From the Shadow of National Sovereignty to the Formation of a Transnational Legal Field������������������������������������������������������������49 Jehovah’s Witnesses and Evangelicals: Early Pioneers of Religious Freedom Litigation����������������������������������������������������������������������������62 Enacting the Liberal Frame of Religious Freedom�����������������������������������77 3. Constituting Identities: Sikhs between Symbolic Gains and Legal Marginalisation�������������������������������������������������������������������������������������84 Diaspora Politics and Legal Mobilisation�����������������������������������������������87 ‘Jurimetrics’ of the Challenger: Fitting the Legal Niche��������������������������99 4. The Orthodoxy of the Powerful: Christians Fighting against Change������������������������������������������������������������������������������������������������ 113 Federating Symbolic Capital���������������������������������������������������������������� 117 Defending Incumbency������������������������������������������������������������������������ 126 Inequalities and Symbolic Boundaries�������������������������������������������������� 135

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5. Endogenous Change in the Transnational Field: Jehovah’s Witnesses, Muslims and Christians’ Recursive Mobilisation���������������������������������� 148 Jehovah’s Witnesses and the Expansion of Religious Freedoms�������������� 150 Muslims between Repeat Failure and Growing Activism����������������������� 157 Conservative Christians’ Pushback against Anti-Discrimination Norms��������������������������������������������������������������������������������������������� 175 Conclusion: Faith in Rights or Right Faith?������������������������������������������������ 194 Religious Freedom Mobilisation and the Governance of Religious Diversity������������������������������������������������������������������������������������������ 194 Towards a Field-Theoretical Understanding of Legal Mobilisation?������ 199 Religious Freedom quo vadis? Current Developments and Future Research Perspectives����������������������������������������������������������������������� 201 Appendix��������������������������������������������������������������������������������������������������� 204 Bibliography���������������������������������������������������������������������������������������������� 213 Index��������������������������������������������������������������������������������������������������������� 229

Abbreviations ACLJ

American Center for Law and Justice

ACLU

American Civil Liberties Union

ADF

Alliance Defense Fund/Alliance Defending Freedom

CCIE

Collectif contre l’Islamophobie en Europe

CCIF

Collectif contre l’Islamophobie en France

CCPR

Human Rights Committee of the United Nations

CJEU

Court of Justice of the European Union

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

ECLJ

European Centre for Law and Justice

EU

European Union

ICCPR

International Covenant on Civil and Political Rights

IHRC

Islamic Human Rights Commission

MRG

Minority Rights Group

NGO

Non-governmental organisation

OECD

Organisation for Economic Co-operation and Development

OSCE

Organization for Security and Co-operation in Europe

OIC

Organisation of Islamic Cooperation

OSF

Open Society Foundations

OSJI

Open Society Justice Initiative

ROC

Russian Orthodox Church

SCLJ

Slavic Centre for Law and Justice

UDHR

Universal Declaration of Human Rights

UN

United Nations

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Figures and Tables Chapter 2 Figure 1: Cases involving a religious claim filed at the ECtHR between 1953 and 2019�����������������������������������������������������������������������������55 Figure 2: Submissions per religious group and time period����������������������������60 Chapter 4 Table 1: Third-party interventions in religious freedom cases at the ECtHR����������������������������������������������������������������������������������������� 142 Chapter 5 Figure 1: Number of successful cases per religious group 1959–2019����������� 154 Figure 2: Cases filed per religious group in Member States joining the Court before 1990 (except Turkey)���������������������������������������������������� 158 Appendix Table 1: Initial ECtHR freedom of religion cases involving the ECLJ and its network�������������������������������������������������������������������������������������� 204 Table 2: Success rates per religious group and Member States (overall case outcome)���������������������������������������������������������������������������� 205 Table 3: Success rates per religious group and Member States (regarding Articles directly pertaining to religion)����������������������������������� 206

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List of Cases European Court of Human Rights Ahmet Arslan and Others v Turkey App no 41135/98 (ECtHR, 23 February 2010)��������������������������������������������������������������������������158, 160 Ahmet Sadik v Greece App no 18877/91 (ECtHR, 15 November 1996)������������������������������������������������������������������������������������������������������86 Aktas v France App no 43563/08 (ECtHR, 30 June 2009)���������������������������������2 Barik Edidi v Spain App no 21780/13 (ECtHR, 26 April 2016)��������������������� 159 Bayatyan v Armenia App no 23459/03 (ECtHR, 27 October 2009)��������151, 155 Bayatyan v Armenia [GC] App no 23459/03 (ECtHR, 7 July 2011)�������������� 151 BB v Poland App no 67171/17 (ECtHR, communicated on 29 January 2020)����������������������������������������������������������������������������������� 186 Belcacemi and Oussar v Belgium App no 37798/13 (ECtHR, 11 July 2017)������������������������������������������������������������������������������������� 2, 160 Choudhury v United Kingdom App no 17439/90 (ECtHR, 5 March 1991)����������������������������������������������������������������������������������������56 Dahlab v Switzerland App no 42393/98 (ECtHR, 15 February 2001)������������������������������������������������������������������������������������85–86, 136–37 Dakir v Belgium App no 4619/12 (ECtHR, 11 July 2017)����������������������������� 160 Darby v Sweden App no 11581/85 (ECtHR, 23 October 1990)�����������������������56 Dimitras and Others v Greece App nos 42837/06, 3237/07, 3269/07, 35793/07 and 6099/08 (ECtHR, 3 June 2010)�����������������������113–14 Dogru v France App no 27058/05 (ECtHR, 4 December 2008)����������������� 85–86 Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015) ��������������������������������������������������������������������������������������������103, 159 ES v Austria App no 38450/12 (ECtHR, 25 October 2018)��������������������190, 201 Eweida and Others v United Kingdom App nos 48420/10, 59842/10, 51671/10, 36516/10 (ECtHR, 15 January 2013)���������������������������������������������������������������������������177, 180–81, 186–87 Fernández Martínez v Spain App no 56030/07 (ECtHR, 15 May 2012)���������������������������������������������������������������������������������������� 143 Fernández Martínez v Spain App No 56030/07 (ECtHR [GC], 12 June 2014)���������������������������������������������������������������������������������������� 143 Folgerø and Others v Norway App no 15472/02 (ECtHR [GC], 29 June 2007)���������������������������������������������������������������������������������������� 113

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List of Cases

Grandrath v Germany App no 2299/64 (ECtHR, 12 December 1966)����������������������������������������������������������������������������������������� 55, 150–51 Hamidović v Bosnia and Herzegovina App no 57792/15 (ECtHR, 5 December 2017)����������������������������������������������������������������������������159–60 Herrmann v Germany App no 9300/07 (ECtHR [GC], 26 June 2012)���������� 185 Haci Mehmet Karakuzey v Germany App no 26568/95 (ECtHR, 16 October 1996)������������������������������������������������������������������������������������86 Hasan and Chaush v Bulgaria App no 30985/96 (ECtHR [GC], 26 October 2000)������������������������������������������������������������������������������ 48, 86 Hasan and Eylem Zengin v Turkey App no 1448/04 (ECtHR, 9 October 2007)������������������������������������������������������������������������������������ 113 Imam and Others v Greece App no 29764/96 (ECtHR, 20 October 1997)�������86 Islam v United Kingdom App no 26651/95 (ECtHR, 13 May 1996)����������������86 Jasvir Singh v France App no 25463/08 (ECtHR, 30 June 2009)���������������� 42, 84 Kervanci v France App no 31645/04 (ECtHR, 4 December 2008)�������������� 85–86 Kokkinakis v Greece App no 14307/88 (ECtHR, 25 May 1993)�������������������������������������������������������� 42, 47–48, 61, 63, 65–67, 69, 78–79, 81–82, 103, 150, 186, 208 Lachiri v Belgium App no 3413/09 (ECtHR, 18 September 2018)������ 159–61, 165 Ladele v United Kingdom App no 51671/10 (ECtHR, 15 January 2013) ��������������������������������������������������������������� 42, 177–79, 181, 183–84, 186–88 Larissis and Others v Greece App nos 23372/94, 26377/94, 26378/94 (ECtHR, 24 February 1998)�������������������������������������42, 61, 69, 75, 78–79, 81–82, 204 Lautsi v Italy App no 30814/06 (ECtHR, 3 November 2009)��������������������������������������������������������������������������������� 42, 70, 113, 117, 129, 133, 135–37 Lautsi and Others v Italy App no 30814/06 (ECtHR [GC], 18 March 2011)������������������������������������������������������������������������������114, 128 Lee v United Kingdom App no 18860/19 (ECtHR, 7 December 2021)���������� 182 Leyla Şahin v Turkey App no 44774/98 (ECtHR, 29 June 2004)��������������� 2, 162 Leyla Sahin v Turkey App no 44774/98 (ECtHR [GC], 10 November 2005)��������������������������������������������������������������������������� 85–86 Ligue des Musulmans de Suisse v Switzerland App no 66274/09 (ECtHR, 28 June 2011)������������������������������������������������������������ 138–39, 143 Löffelmann v Austria App no 42967/98 (ECtHR, 12 March 2009)���������������� 152 Mann Singh v France App no 24479/07 (ECtHR, 13 November 2008)������������������������������������������������������������������������������������������� 42, 84, 91 Mariya Alekhina and Others v Russia App no 38004/12 (ECtHR, 26 July 2018)����������������������������������������������������������������������������������190, 201

List of Cases  xv McFarlane v United Kingdom App no 36516/10 (ECtHR, 15 January 2013)���������������������������������������������������������������� 42, 177–79, 181, 183–84, 186, 188 Metropolitan Church of Bessarabia and Others v Moldova App no 45701/99 (ECtHR, 13 December 2001)�����������48, 69, 75, 78, 82, 204 Mariya Alekhina and Others v Russia App no 38004/12 (ECtHR, 17 July 2018)�������������������������������������������������������������������������� 113 Osmanoğlu and Kocabaş v Switzerland App no 29086/12 (ECtHR, 10 January 2017)�������������������������������������������������������������������� 161 Ossewaarde v Russia App no 27227/17 (ECtHR, communicated on 6 July 2017)�������������������������������������������������������������������������������������� 126 Otto-Preminger-Institut v Austria App no 13470/87 (ECtHR, 20 September 1994)��������������������������������������������������������������������������56, 113 Ouardiri v Switzerland App no 65840/09 (ECtHR, 28 June 2011)�������������������������������������������������������������������� 138–40, 163, 207 Pichon and Sajous v France App no 49853/99 (ECtHR, 2 October 2001)�����������������������������������������������������������������������������1–2, 181 Ranjit Singh v France App no 27561/08 (ECtHR, 30 June 2009)��������������� 42, 84 S.A.S. v France App no 43835/11 (ECtHR [GC], 1 July 2014)��������2, 42, 159–61, 163–68, 173, 198, 207 Serif v Greece App no 38178/97 (ECtHR, 14 December 1999)����������������� 48, 86 Supreme Holy Council of the Muslim Community v Bulgaria App no 39023/97 (ECtHR, 16 December 2004)����������������������������������������86 Sindicatul ‘Păstorul cel Bun’ v Romania App no 2330/09 (ECtHR, 31 January 2012)����������������������������������������������������������������������������������� 143 Sindicatul ‘Păstorul cel Bun’ v Romania App no 2330/09 (ECtHR [GC], 9 July 2013)��������������������������������������������������������������������������������� 143 Thlimmenos v Greece App no 34369/97 (ECtHR [GC], 6 April 2000)���������� 152 Valsamis v Greece App no 21787/93 (ECtHR, 18 December 1996)�����������������82 Vavřička and Others v Czech Republic App no 47621/13 and 5 others (ECtHR [GC], 8 April 2021)���������������������������������������������������� 185 Wingrove v United Kingdom App no 17419/90 (ECtHR, 25 November 1996)��������������������������������������������������������������������������56, 113 Court of Justice of the European Union Case C-13/94 P v S and Cornwall County Council [1996] IRLR 347������������ 163 Case C-157/15 Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV [2017]���������������������������� 174 Case C-414/16 Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV [2018] 257������������������������������������������������������������� 202 Case C-188/15 Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA [2017]���������������������������������������������� 174

xvi

List of Cases

Case C-804/18 IX v Wabe eV and MH Müller Handels GmbH v MJ [2021]������������������������������������������������������������������������������� 175 UN Human Rights Committee Atasoy and Sarkut v Turkey (29 March 2012) CCPR/C/104/D/ 1853–1854/2008������������������������������������������������������������������������������������ 156 Bikramjit Singh v France (1 November 2012) Communication No 1852/2008 CCPR/C/106/D/1852/2008 �����������������������������������������������91 F.A. v France (16 July 2018) Communication No 2662/2015 CCPRD/ C/123/D/2662/2015������������������������������������������������������������������������������� 174 Hebbadj v France (17 July 2018) Communication No 2807/2016 CCPR/C/123/D/2807/2016��������������������������������������������������������������������� 174 Jong-nam Kim et al v The Republic of Korea (2 November 2012) Communication No 1786/2008 CCPR/C/106/D/1786/2008 �������������������� 155 Min-Kyu Jeong et al v The Republic of Korea (24 March 2011) Communication Nos 1642–1741/2007, CCPR/C/101/D/ 1642 1741/2007������������������������������������������������������������������������������������� 155 Ranjit Singh v France (22 July 2011) Communication No 1876/2009 CCPR/C/102/D/1876/2009���������������������������������������������������������� 91, 107–08 Shingara Mann Singh v France (19 July 2013) Communication No 1928/2010 CCPR/C/108/D/1928/2010������������������������������������������91, 108 Yaker v France (17 July 2018) Communication No 2747/2016 CCPR/C/123/D/2747/2016��������������������������������������������������������������������� 174 Yoon and Choi v Republic of Korea (3 November 2006) Communication No 1322/2004 CCPR/C/88/D/1321–1322/2004/2006������������������������������� 155 Canada Multani v Commission scolaire Marguerite-Bourgeoys 1 SCR 256, 2006 SCC 6������������������������������������������������������������������������������������������� 101 France Conseil d’État No 285394 5 December 2007��������������������������������������������������91 Cass soc 19 mars 2013, No 11-28845 (affaire ‘Baby Loup’)�������������������������� 173 Germany BVerwG, Urteil vom 12.11.2020 – 2 C 5.19�������������������������������������������������� 173

List of Cases  xvii United Kingdom Mandla (Sew Singh) and another v Dowell Lee and others [1983] 2 AC 548 ������������������������������������������������������������������������������96, 108 Ghai v Newcastle City Council [2009] EWHC 978 (Admin)������������������������ 163 United States Hosanna-Tabor Evangelical Lutheran Church & School v Equal Employment Opportunity Commission 565 US 171, 11 January 2012������������������������������������������������������������������������������������ 143

xviii

Introduction: Transnationalisation, Judicialisation and the Regulation of Religion

I

n 1999, two French pharmacists appealed to the European Court of Human Rights (ECtHR) located in Strasbourg, France.1 Fined for refusing to sell contraceptive pills to their clients, they had exhausted all possible judicial remedies in France and eventually sought justice in the highest European court. The judicial procedure they initiated could not have been more unsuccessful. The Court classified their demand as inadmissible without further investigation of the relevant facts or merits of the case.2 Thereupon, the affair disappeared into the obscurity of the vast archival repository of the ECtHR. Almost 20 years later in 2018, one of the pharmacists, Bruno Pichon, returned to Strasbourg. He had been punished once again for objecting to selling contraceptives. In his application to the ECtHR, he reasserted his faith-based refusal to issue a contraceptive device by invoking his freedom of conscience. This time, however, he could rely on well-equipped supporters. He was backed-up by what can be described as a Christian conservative advocacy group, the European Centre for Law and Justice (ECLJ) that had been established in Strasbourg by its American partner organisation, the American Center for Law and Justice (ACLJ).3 The case thereby became part of a broader international campaign – conducted among others at the Council of Europe and the United Nations – where legal activists have vigorously pleaded for conscientious objection as an integral component of the right to freedom of religion. Meanwhile, around the time of Pichon’s first appearance in Strasbourg, Muslim applicants from Turkey and Switzerland, and several years later from France, started addressing the Court to challenge the prohibitive politics against headscarves in public institutions, which they faced back home. Only a few of them had been supported by international human rights lawyers and none of

1 In the following, the abbreviation ‘ECtHR’ will be used. Alternatively, this body will be referred to as ‘the Court’, ‘the European Court’ or simply as ‘Strasbourg’. 2 Pichon and Sajous v France App no 49853/99 (ECtHR, 2 October 2001). 3 The ECLJ has published the documents related to the campaign on its homepage. eclj.org/ conscientious-objection/echr/recours-de-m-pichon--la-cedh--pour-la-libert-de-conscience-despharmaciens.

2  Introduction them was successful.4 Yet, cases continued to be filed, and when controversies on the prohibition of full-face veils across Europe triggered the high-profile case of S.A.S. v France, the applicants were joined before the ECtHR by a concert of advocates defending the right to wear the Muslim garment, including organisations such as the Open Society Foundations, Amnesty International and the Human Rights Centre from the University of Ghent.5 While Muslims had been frequent applicants at the Court before, these were, to my knowledge, the first of their cases that received such strong support, positioning the case in the midst of a global struggle over liberal values and politics. Pichon and S.A.S. illustrate for the case of religious freedom what a wider literature on socio-legal mobilisation has demonstrated: advocacy groups provide resources and knowledge not only to get cases to courts, but to make them part of globally coordinated political agendas aimed at pushing judges to embrace new legal directions, with the hope of eventually achieving broader social change (Bob 2019, 2012; Cichowski 2007; Epp 1998; Keck and Sikkink 1998; Tsutsui, Whittlinger and Lim 2012). In other respects, however, these cases are unlikely candidates to introduce a book interested in legal mobilisation. To the extent that scholars in this field have a privileged focus on successful rights mobilisation, the decisions rendered in S.A.S. and Pichon are anti-climatic: both cases were unsuccessful.6 And yet, though no legal success stories, these cases tell the story of a profound social transformation – the story of a court that, operating in relative obscurity for decades, is now inescapably involved in almost every major religious controversy. They also tell the story of the expansion of global movements fighting over religious rights. And finally, they can be seen as the prologue to a story yet to be told, that of shifts in claims, frames and venue choices that occur in the face of hostile opportunity structures. However marginal, such endogenous dynamics circumscribe the boundaries within which the meaning of religious freedom is negotiated. This book explores religious freedom as a transnational social field within which competition takes place among a great variety of secular and religious actors. In light of the polyphonic actors active in the transnational judicial sphere, it asks how human rights professionals and religious communities, liberals and conservatives, secular and religious activists struggle for the authoritative interpretation of religious freedom. In so doing, it does not seek to explain legal outcomes, but offers a sociological exploration of the tensions, conflicts and inequalities that influence the contention over this right 4 The applicant of one high-profile Turkish case was supported by a range of lawyers, among whom at least one was practising in London: Leyla Şahin v Turkey App no 44774/98 (ECtHR, 29 June 2004). Aktas v France was supported by a lawyer from the Human Rights League: Aktas v France App no 43563/08 (ECtHR, 30 June 2009). 5 S.A.S. v France App no 43835/11 (ECtHR, 1 July 2014); Belcacemi and Oussar v Belgium App no 37798/13 (ECtHR, 11 July 2017). 6 Pichon was inadmissible: ECLJ (undated) ‘1998–2018. Quelques actions de l’ECLJ’: http:// media.aclj.org/pdf/Article-pour-les-20-ans-de-l’ECLJ,-décembre-2018.pdf.

Introduction  3 and that mark the discursive space within which this global norm takes shape. How do actors frame their various interventions? How do they balance between institutional and judicial constraints on the one hand and ideological commitments on the other? How do lines of conflict and repertoires of framing shift over time? And what do these dynamics teach us about the effects of supranational institution building on the regulation of religion in Europe more generally? Disentangling the complexity of social relations that shape the negotiation of religious freedom in a supranational judicial context, the book is situated at the crossroads of two broader developments pertaining to the ‘governance of religious diversity’ in Europe, by which I mean the relation between religion and the European states – ie, the support, tolerance and restrictions that exists vis-a-vis religion in their respective public spheres. The first development concerns the judicialisation of these relations. As such, the governance of religious diversity follows the broader trend of an increased political ‘reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies’ (Hirschl 2011: 253). Worldwide, constitutional and international courts have come to widen their sphere of influence by consolidating or overturning political developments. The ECtHR is a unique testimony to this process. Today, it covers 46 European countries7 and disposes – when compared with other international courts – of unequalled political power. Operational since 1959, it acts as the judicial arm of the Council of Europe and is, as such, directly accessible for individuals who have exhausted all national judicial remedies. It interprets the European Convention on Human Rights (ECHR) and has been called upon hundreds of times in religious conflicts (details regarding the history and functioning of the Court will be discussed at the beginning of chapter two),8 which shows that public policies vis-a-vis the religious can hardly escape the ‘shadow of Strasbourg’ (de Galembert 2009b). Be it wearing the headscarf, displaying the crucifix, the recognition of places of worship, religious speech restrictions, the recognition of religious law, or dietary conditions in prison, the Court has been confronted with every imaginable religious controversy over the past decades. The second development to which the prominence of the ECtHR in the governance of religious diversity testifies is that of transnationalisation. This transnationalisation concerns the emergence of supranational institutional frameworks as much as the formation of transnationally oriented identities. The first has embedded the relation between states and religion in a multilevel legal

7 Russia left the Council of Europe and the ECtHR in 2022 reducing the number of Member States from 46 to 47. 8 The HUREL-dataset, which will be used in this book, counts more than 1500 cases pertaining to religious conflicts. In more than 1000, the applicants provide concrete information on these claims. See: Matthias Koenig and Lisa Harms (2021) European Court of Human Rights Religious Litigation Dataset (1959–2019) (HUREL) Version 1.0. https://doi.org/10.7910/DVN/VAWUM6.

4  Introduction architecture that has put pressure on the prerogatives of national sovereignty. Although the national implementation of ECtHR decisions can be challenging and depend on a variety of factors (Anagnostou and Mungiu-Pippidi 2014), the ECtHR is considered one of the most powerful international courts acting as a de-facto supranational authority that is, as such, able to put a challenge to the power and sovereignty of states. Such institutional developments have been accompanied by a rising rights awareness among religious groups. Religious minorities have increasingly framed their recognition claims in rights repertoires (Burchardt, Yanasmayan and Koenig 2019; de Galembert 2015; Joppke and Torpey 2013; Koenig 2007), and support networks have helped them to reach supranational judicial institutions (Massicard 2014; Fokas 2016). It should not be a surprise then that the ECtHR has become a battlefield on which a variety of religious groups, activist lawyers, NGOs, academics, international organisations and third-party states from diverse backgrounds and with diverging political and religious agendas operate. While the ‘supply-side’ of legal conflicts, ie, states and courts, often appear as the protagonists in narratives on transnational judicial politics regarding religion, I turn to the ‘demand’ side by making legal mobilisation by religious minorities, majorities and the advocacy groups supporting them my main object of enquiry. In so doing, the book pursues two ambitions. The first is to address an important lacuna in the broader research on the governance of religious diversity. As I will show in detail below, this literature has produced clear evidence of the rising importance of courts and rights-based discourses in the negotiation of religion’s place in the public sphere. Yet, while scholars have frequently examined the impact of judicial politics on the expansion and restriction of religious liberties at the national level (Koenig 2007; Koopmans, Michalowski and Waibel 2012; Sisk and Heise 2012; Wybraniec and Finke 2001; Way and Burt 1983; Finke and Martin 2014), they have seldom analysed judicial contention, especially at the transnational level. As this has remained the purview of legal scholarship, the social scientific potential to dissect the social relations and transformations that infuse legal struggles has remained unused. Moreover, most legal scholarship focuses on a single religious group (mostly Islam) and views transnational legal norms as predefined rather than under construction. For these reasons, the active investment of a large variety of religious groups and their secular supporters in the terrain of religious freedom remains underexplored. Only recently have authors started to pay closer attention to the dynamics of legal mobilisation in transnational legal conflicts over religion (Fokas 2016; McCrudden 2015b). This book contributes to this recent research trend by examining how advocacy groups – both secular and religious – contend over religious freedom at the transnational level. The book’s second ambition is to add nuance to the prominent social scientific narrative on the positive correlation between transnational judicial rights activism and the expansion of democratic governance and minority protection.

Introduction  5 This narrative can very briefly be described as follows: NGOs provide crucial support to the expanding authority of international courts (Alter 2008; Alter, Helfer and Madsen 2016; Cichowski 2007) and spur the worldwide expansion of individual rights (Keck and Sikkink 1998; Risse, Ropp and Sikkink 2013; Tsutsui, Whittlinger and Lim 2012). They bring human rights violations to court (Hodson 2011), create new opportunities for individuals to voice their grievances (Cichowski 2011, 2013, 2016), and increase the pressure on judges to respond to such violations (Conant 2016). Gender equality is likely the most pertinent example, but a similar trend can be discerned in the area of religious rights (Koenig 2015). While the book finds evidence for such dynamics in the case of religious freedom, it also draws attention to the ambivalences and obstacles inhabiting the process of legal mobilisation. For example, the expansion of rights sought by certain minorities has encountered persistent reluctance on behalf of the court, leaving them with little legal leverage to pursue their claims. Moreover, support by advocacy groups is not equally available for all groups, so that legal capital remains unevenly distributed. Finally, dynamics of liberal and secular rights expansion have encountered increasing pushback from conservatives who seek to implement new symbolic boundaries (Lamont and Molnár 2002) towards liberal human rights defenders, as well as certain religious minorities. Ultimately, these ambivalences define the discursive possibilities within which religious freedom is negotiated. More generally then, while this book does not aim to offer an explanatory account of success and failure in ECtHR cases, its ambition is to show how relations of power and organisational interests influence and thereby shape the debates over religious freedom at the transnational level. The book takes religious freedom conflicts at the ECtHR as windows through which we can view the transformations of religious communities and movements, the competition between national and transnational judicial elites, and the relations of power unfolding in the transnational arena. Legal cases serve as a vantage point to understand the social dynamics that shape the claims-making of religious freedom advocates and the broader debate over the meaning of this right. Zooming into a select number of controversies involving Jehovah’s Witnesses, Evangelicals, Sikhs, Catholics and Muslims, the book takes the reader on a journey through three decades of religious freedom litigation carried out at the ECtHR. In analysing the legal strategies that human rights advocates develop to enact, define and contest the right to freedom of religion, I blend insights from 38 interviews conducted with litigants, their lawyers, advocacy groups supporting them and other legal experts with quantitative data on litigious developments at the Court between 1959 and 2019, as well as extensive documentation of public interventions, third-party briefs and legal case material. Building on socio-legal and field-theoretical tools of analysis (chapter one), I contend that the various trajectories of legal mobilisation, in which I am

6  Introduction interested, are predicated on relations of power and diverging organisational identities. The judicial priorities and strategies of advocacy groups vary according to the margin of action they have at their disposal in the legal arena and the symbolic gains they vie for in their respective organisational and national political settings. Consequently, not only legal outcomes, but the very use of law itself carries the imprints of power relations and organisational interests, revealing the ambivalence of transnational judicialisation. I theorise that these dynamics generally unfold in two types of legal mobilisation: on the one hand, there are actors who possess the means and ambition to influence the core legal principles and acquire the judicial authority to define them. These actors engage in competition over the meaning of human rights in general and the right to freedom for religion specifically. Their networking, case-selection and framing-strategies are frequently designed to help them ascend in the rank and file of Strasbourg’s elite. On the other hand, there are actors who neither have the means nor the ambition to reinterpret human rights or to compete for the rank and file, but who are more concerned with convincing judges and support networks that their identity fits the dominant understanding of the law. They can be expected to accept rather than challenge established balances of power in legal and political fields. Sometimes, these dynamics might also be enmeshed, for instance when community activists collaborate with larger human rights NGOs. By examining the variation in trajectories of legal mobilisation in religious freedom cases at the ECtHR from such a field-theoretical perspective, the book corroborates the findings of social scientists who have underlined the ambivalent effects of transnational judicialisation for the legal accommodation of religious minorities (see in particular: Koenig 2007). It argues that while transnational advocacy groups and globally connected religious communities have expanded opportunities for the enactment of religious freedom claims and liberal rights discourses, some religious groups, such as Muslims and Sikhs, have frequently encountered a court that is reluctant to curtail restrictions imposed on them by national governments. Disposing of little legal leverage, they have sought to ‘prove’ their identities to fit into the dominant secular and liberal imaginaries of religion (Amir-Moazami 2016), while also seeking new venues of activism. In so doing, their mobilisation reflects a paradoxical simultaneity of empowerment and precarisation. Meanwhile, it is not only minorities and liberal human rights actors, but also religious majorities and conservative advocacy groups who are able to seize the moment and vie for political influence in supranational institutions (Koenig 2007; Foret 2015). They have built global alliances and seek to legitimise their influential position at the transnational level (Koenig 2015). While not always successful, they have fostered conflicting rights interpretation and sometimes seek to reinforce symbolic boundaries vis-a-vis religious minorities. Overall, these dynamics entrench asymmetries of power and ideological divides in the legal debate over religious freedom. In the remainder of the Introduction, I will first situate my research in the broader literature on the regulation of religious diversity in Europe. This

From the National to the Transnational Regulation of Religion  7 provides the reader with a better understanding of why the interrogation of this book matters, and why it is important to enrich the study on the governance of religious diversity with a view on transnational legal mobilisation and human rights advocacy. I will then turn to the conceptual framework that I employ to study religious freedom advocacy. This framework departs from more conventional approaches to human rights advocacy and legal mobilisation. While briefly sketching its main contours here, I will discuss the details in chapter one. Finally, I will provide an outline of the empirical insights of the book. FROM THE NATIONAL TO THE TRANSNATIONAL REGULATION OF RELIGION

My main interest is the transnational contention over religious freedom, but before getting there, a brief detour is useful. Indeed, the relevance of this topic becomes most salient when entering the scene from the other end of the story: the historically densely knitted relation between religion and the nation state, which dynamics of transnationalisation ‘threaten’ to unmake. A profusion of literature has explored the intricate imbrication of nationhood, statehood and religion in Europe (Brubaker 2012; Gorski 2000, Gorski 2003). To mention just some frequently noted entanglements: the Protestant Reformation, creating a rift among religious powers, allowed the state to unfold as a separate secular sphere (Casanova 1994: 21–22); and the Christian idea of ‘chosen people’ contributed to the emergence of European nationalism (Hastings 1997; Smith 2003; Spohn 2003; Brubaker 2012). Vice versa, the advent of the modern nation state has crucially determined the place of religion in the public sphere. That is, nationally varying socio-political and confessional cleavages have resulted in a large variety of institutional statereligion relations (Martin 1978; Madeley 2003; Kuru 2007; Gill 2008). A vast comparative and macro-sociological literature captured the variation in active state support, passive toleration and explicit restrictions vis-a-vis public manifestations of religion in Europe and beyond (Koenig 2005; Fetzer and Soper 2005; Fox 2008; Madeley 2003; Kuru 2007, 2009). While ‘religious freedom’ figures in most constitutions worldwide (Fox 2011; Grim and Finke 2010; Finke and Martin 2014), its understanding is largely predicated on historical arrangements between states and their religious majorities. Global migration and the related religious diversification of European societies have revealed the resilience of such arrangements in the face of ­ new religious demands. Generally focusing on Islam, macro-sociological comparisons have shown how deep-seated national imaginaries, institutional boundaries and political conflicts have shaped the governance of religious diversity (Zolberg and Long 1999; Rath et al 2001; Fetzer and Soper 2005; Koenig 2005; Statham et al 2005; Kuru 2007, 2009; Casanova 2007; Koopmans, Michalowski and

8  Introduction Waibel 2012). For example, although scholars have observed a trend in expanding rights for religious minorities (Michalowski and Burchardt 2015; Koopmans, Michalowski and Waibel 2012), such dynamics are often contained by existing state-church relations (Fetzer and Soper 2005; Soper and Fetzer 2007; Madeley and Enyedi 2003). Thus, claims for religious rights have conformed to the varying margins granted by liberal, cooperative and laicist regimes of the national regulation of the religious (Carol and Koopmans 2013), sometimes even hardening the frontiers of such regimes (the laicist in particular). Even when ‘disaggregating’ national models (Bader 2007, 2009; Bowen 2007a) scholars find that national specificities and historical legacies remain salient markers for the accommodation of religion (eg Bowen et al 2014). And yet, national path-dependent trajectories describe only part of the picture. Transnational institution building especially has induced new dynamics of change into how religious accommodation is negotiated. I therefore now turn to this set of literature. Institutional Transnationalisation Two decades ago, legal scholar Silvio Ferrari said that conventional classifications of state-church regulation along national specificities had become ‘culturally and legally outdated’ (Ferrari 2002: 6). He argued that beneath the legal surface, a common ‘West European pattern’ (7) was structuring state-church relationships. The role of transnational norms in this possible emergence of a common European standard has since been closely examined and nuanced by sociologists. Supranational norms have certainly not replaced national path-dependent trajectories. However, as Koenig (2007: 914) has shown, European integration has ‘been a particularly prominent example for the emergence of a paradigm of social order no longer premised on the presumed congruence of legal, political and cultural community’. Drawing on neo-institutionalist theories, Koenig has developed a pioneering research agenda to examine the expansion and inherent tensions of universalist rights principles (and the effects of expanding world cultural paradigms more generally) in the area of religious diversity (Koenig 2003, 2007, 2008, 2015; Koenig and Dierkes 2011). Institutional transnationalisation – comprising the f­ormation of supranational architectures such as the European Union (EU), the United Nations (UN) and the Council of Europe – produce sizeable effects. They contribute to weakening the nexus of citizenship and rights by promoting universalist principles of non-discrimination and religious tolerance. (Koenig 2007; Soysal 1997). Moreover, they legitimise autonomy claims by sub-transnational and transnational groups (Koenig 2008), and promote individualist frames of self-perception and claims-making (Thomas 2004; Koenig 2007). In so doing, they might also enhance more diffuse trends of secularisation, such as the progressive individualisation and subjectivation of religiosity (Casanova 1994; Taylor 1998) and the role of religious freedom as a guiding idea in cultures of secularity (Wohlrab-Sahr and Burchardt 2012; Burchardt, Wohlrab-Sahr and Wegert 2013).

From the National to the Transnational Regulation of Religion  9 Dynamics of judicialisation are particularly important in this context. This holds true of course for both the national and transnational level. National as well as international courts have become important venues from where the political limits of accommodation continue to be challenged (Mayrl 2018; Koenig 2010; de Galembert and Koenig 2014; de Galembert 2009). Certainly, there is debate on their contribution to the expanding protection of minorities (Koopmans, Michalowski and Waibel 2012) and on the extent to which they are used (Mayrl and Venny 2021). But by now, a sizable corpus of scholarship has shown the importance of judicial frames for religious claims (Burchardt, Yanasmayan and Koenig 2019) and the influence of courts in political negotiations over religion’s place in public life (de Galembert 2014; Joppke and Torpey 2013; Joppke 2007, 2013). This should not surprise us for we know that courts can be powerful actors because of their symbolic authority and their capacity of anti-majoritarian action. However, yet another reason makes them important: their affinity with universalist rights discourses and their embeddedness in a dense lattice of supranational institutions. As such, they pose challenges of a whole new quality to national secular arrangements, potentially providing access to European-wide norms of governance and securing the juridical independence from national political interests. Scholars have started scrutinising the effects of the ECtHR more specifically, because it allegedly constitutes the world’s most powerful international court. In  this respect, the stark growth of religious freedom litigation at the Court debated in this book speaks for itself (see also: Harms 2022). It has enabled the Court to progressively move from a self-restrictive towards a more activist stance vis-a-vis its Member States and to promote anti-majoritarian interpretations of secularity (Koenig 2015). Important as well, studies interested in the domestic effects of ECtHR jurisprudence (Keller and Stone Sweet 2008; Anagnostou 2010; Psychogiopoulou 2010) have found evidence of a sizeable impact of the ECHR on national legislation relevant for religion (Sandberg 2011: 81 f; de Galembert 2009, 2014). For instance, Anagnostou (2010: 731) has noted with respect to Jehovah’s Witnesses in Greece that ‘Strasbourg case law not only confirmed, but also boosted a latent reform momentum by strengthening and legitimating domestic demands for respecting and protecting religious pluralism’. Besides, scholars have pointed to the potential indirect effects through which ECtHR judgments shape religious legal consciousness and frame repertoires at grassroots level (Fokas and Anagnostou 2019). Yet, the process is fraught with tension. This is not only because religious freedom still encounters manifold restrictions across the globe (Grim and Finke 2006, 2007, 2010; Finke and Martin 2014), or because human rights jurisprudence often lacks enforcement (Anagnostou 2010). Perhaps more importantly, supranational institutions do not necessarily privilege liberal post-national values. In reality, they are infused with conflicts over the interpretation of supranational norms and steeped in political struggles over power. Two rather different sets of scholarship have made this clear. First, scholars have shown that majority religions and national governments can use supranational

10  Introduction institutions to their advantage. ‘If nation-states established themselves as legitimate authorities against the power of the Church’, Koenig (2007: 921) has argued, ‘European authorities did so against nation-states, while co-operating with religious organisations to increase their symbolic legitimacy’. This has allowed debates on the Christian identity of Europe to flourish (Byrnes and Katzenstein 2006; Foret 2015; Koenig 2007), and political and legal elites to use universalist norms not only in favour of, but against minority claims (Burchardt, Yanasmayan and Koenig 2019; de Galembert 2014; Joppke and Torpey 2013). Like Koenig, Joppke and Torpey (2013: 8) highlight that there are conflicts between a rights-based, anti-majoritarian approach to the accommodation of religious minorities and the politicisation of courts. As they contend, ‘it would be naive to assume … that this would lead to the rise of a “procedural postnational state”. This is because judicialized politics is still politics’. A second – very differently oriented – set of critical legal scholars and political scientists has pointed to the dynamics of power behind sustaining the instrumentalisation of religious freedom. They have bemoaned a ‘Christian bias’ at the foundation of human rights (Asad 2003; Danchin 2011; Bhuta 2012; Moyn 2015) and analyse religious freedom discourses in international politics as governmentality techniques (Mahmood 2012; Sullivan et al 2015) that produce types of ‘good’ and ‘bad’ religion (Hurd 2015). From this point of view, religious freedom as a category predicated on Western ideals and preferences presupposes and enacts specific forms of religious identity and tradition that carry a degree of symbolic violence, ie, domination, to non-European settings. However, despite their rich insights, these literatures display noticeable limi­­tations. With the notable exception of some (comparative) case studies that have process-traced individual controversies (Burchardt, Yanasmayan and Koenig 2019; de Galembert 2014) and first studies on grasstops mobilisation in religious ECtHR conflicts by Effie Fokas (2016), we know little about how religious actors actively navigate the ambiguities of transnational institutions so persuasively explained in the literature just examined. Also, since many studies are concerned with the question of ‘how much’ religious freedom, they ignore the social dynamics of this freedom. Before explaining how this book examines such dynamics, I turn to a last set of studies that has started to investigate religious actorhood in transnational institutional settings. The Global De-Privatisation of Religion Religious actorhood in international politics has often been captured under the label of the ‘deprivatisation of religion’. In his path-breaking study, Casanova (1994) analysed this phenomenon as part of the sphere of national civil society. Yet, he later underlined that this phenomenon transcends the boundaries of the nation state. Globalisation has provided new opportunity structures for transnational religious networking and community building (Cesari 2004; Casanova 2008; Haynes 2014; Koopmans and Statham 2003; Saunders 2008), leading to

From the National to the Transnational Regulation of Religion  11 a surge in faith-based NGOs in particular (Bush 2007). In recent decades, religious actors have become actively engaged in transnational legal and political fields, such as the various institutional arms of the EU (Byrnes and Katzenstein 2006; Foret 2015, 2017; Leustean 2013; Minkenberg 2009), the UN (Carrette and Miall 2013, 2017; Glaab and Fuchs 2018; Haynes 2014; Lehmann 2013, 2016; Carrette and Miall 2013, 2017; McCrudden 2014; Stoeckl and Medvedeva 2018), and the Council of Europe (Fokas 2016; Harms 2021; Stoeckl 2016). In studies on religious actorhood in international politics, two analytical dichotomies dominate: the secular–religious divide on the one hand and the conservative–liberal opposition on the other. Scholars have found the salience of the former to be decreasing due to the growing importance of the latter (Haynes 2014; Bob 2012, 2019). Alliance building between ideologically aligned secular and religious actors has been identified as a crucial ingredient for accumulating sufficient soft power to influence international politics (Haynes 2014; Bob 2012). Haynes (2014) for instance has provided compelling evidence for the coalition of the Organisation of Islamic Cooperation (OIC), the Russian Orthodox Church (ROC), and China in promoting an agenda against blasphemy at the UN. Moreover, intra-denominational collaboration, such as the ‘Baptist-Burqa-Network’ (Bob 2012: 36–71) or alliances between Russian orthodox and Evangelical activists (Stoeckl 2020; Shishkov 2017) have emerged in the struggle against gay and gender rights. Taking the liberal–conservative divide as the angle of analysis appears intuitive given the strong value commitment professed by human rights advocates. However, despite the undisputed evidence that shows that religious conservatives seek to translate their cultural value commitments into specific political and legal frames (Stoeckl 2016; McCrudden 2014; Mancini 2017), culture can only explain part of their mobilisation. We know, for instance, that conservatives can also be pragmatic in instrumentalising liberal discourses for conservative purposes (Bob 2019; Mourão Permoser and Stoeckl 2021). However, such nuances in the rationales of mobilisation have, to the best of my knowledge, not yet systematically been analysed. Moreover, scholars have given relatively little attention to the broader contextual relations which religious actors face in transnational institutions. To be fair, several scholars have made the important point that faith-based actors need to tackle concrete bureaucratic settings and everyday institutional logics when engaging at the UN or other institutions (Carrette and Miall 2017; Lehmann 2013, 2016). But we might also examine the effects of broader relations of power on the mobilisation strategies of conservative actors and on the leverage they have to promote faith-based discourses. Furthermore, we are also in the presence of actors that do not necessarily pursue a clearly defined cultural agenda, but move to transnational institutions as community activists, ie, to claim remedy for grassroots grievances rather than to push for broader cultural change. In a nutshell, while the actorhood of religious and secular groups in transnational religious freedom disputes is little explored in the macro-sociological and critical legal scholarship outlined above, studies in the area of international

12  Introduction relations have looked more closely into their actorhood. However, they have paid too little attention to the diversity of actors invested in transnational institutional activism and the broader dynamics of power in which they are embedded. The ambition of this book is to focus on religious and secular actorhood in transnational religious freedom disputes, while also paying attention to the broader relational setting on which their commitments and legal mobilisation trajectories are predicated. RELIGIOUS FREEDOM ADVOCACY IN A TRANSNATIONAL LEGAL FIELD

The foregoing sections have positioned this book in the wider literature on the governance of religious diversity. I have argued that the actor-dynamics in the transnational negotiation of religious freedom have not yet received sufficient attention. I have further proposed to fill this lacuna by focusing on legal mobilisation at the ECtHR, especially as the judicialisation of politics has increasingly affected the domain of religion and therefore makes courts a particularly important object of study. To this end, I also argued, we should not only focus on the increasingly visible fault line between conservatives and liberals, but also assess organisational commitments in the broader power relations in the transnational legal field. To move forward, let me now briefly specify the conceptual tools with which I intend to carry out this analysis. Chapter one provides a detailed discussion of the theoretical literature used for the analysis and engages in a broader enquiry of their benefits and pitfalls. Therefore, I limit myself to the essentials here. Concepts developed in the thriving literature on socio-legal mobilisation provide the theoretical starting point of the book, but I argue that these concepts should be complemented by field-theoretical tools of analysis to best serve their analytical purpose. As mentioned above, my approach dissects how relations of power affect religious claims making, while simultaneously attending to the organisational goals and commitments of the promoters of such claims. In so doing, I seek to understand the social dynamics shaping the transnational field in which the negotiation of religious freedom takes place. Socio-legal studies are important because they provide a very useful conceptual vocabulary for analysing both the constraints of legal mobilisation and the strategic action that actors are capable of. On the one hand, they help explain how legal opportunity structures (Andersen 2005; Evans Case and Givens 2010; Vanhala 2012), material resources (Galanter 1974) and support structures consisting of lawyers and NGOs (Epp 1998) help (or hinder) social movements to transform grassroots grievances into judicial claims. On the other hand, they have demonstrated the capacity of social movement actors to devise legal frames to unite activists and to achieve policy reforms (Pedriana 2006). However, socio-legal scholarship relying on such tools has not sufficiently attended to the relations of power within which both opportunities and frames are embedded.

Religious Freedom Advocacy in a Transnational Legal Field  13 Moreover, the strategic framing of advocacy groups is seldom articulated with sustained attention for institutional boundaries and other constraining parameters. This is not least due to the fact that many such studies are interested in explaining successful legal mobilisation, while unsuccessful legal mobilisation and mobilisation in adverse circumstances are less frequently considered (see however: Vanhala 2012). I will suggest that we can gain in analytical depth by integrating the concepts of legal opportunity structure and framing into a more sociologically grounded framework. Relying on field-theoretical tools of analysis (Bourdieu and Wacquant 1992; Fligstein and McAdam 2012), I consider legal mobilisation as predicated on (a) the internal relations of power within what can be termed a religious freedom field and (b) the varying commitments of religious freedom advocates in their respective organisational and national political fields. It is in the context of such relational dynamics that the meaning of religious freedom is negotiated, and that actors seek to achieve – or prevent – legal change. The first of these conceptual arguments builds on the premise that a force field is progressively taking shape in which differently positioned actors compete over influence and authority to define religious freedom. This competition is constrained by certain rules and assumptions shared by all participants (eg, the consensus to conform with certain legal standards and procedures), but also by the relations of power between their respective positions. Contending that the ‘real is relational’ (Bourdieu and Wacquant 1992), field theorists think of strategies as oriented by relations of power (ie, the hierarchy of more or less influential positions). To gain legitimacy and influence in the human rights field in general and the religious freedom field more specifically, actors must not only show mastery of recognised legal techniques and discourses (Bourdieu 1987), but also might have to associate with more influential stakeholders/incumbents to profit from their status and expertise (Fligstein and McAdam 2012). Depending on their position in the field, actors might either strive to gain the authority to define religious freedom, or to fit into established relations of power, thus conforming rather than competing over legal principles. I will argue that the first is more frequently the tactic of more powerful incumbents and challengers with connections to the power centres of the field and the legal as well as material capacities to be recognised as the field’s elite (Bourdieu 1996, 2013; Fligstein and McAdam 2012). They select cases and frames to engage in a competition over the distribution of authority as such. The second manifests itself more often in the attempts of more marginalised actors who select and frame their claims and identities to align with established principles and relations of power. Therefore, I contend that they implicitly acknowledge and reproduce dichotomies of the ‘good’ and ‘bad’ religion (Hurd 2015). The second conceptual argument is that legal (framing) strategies and access to courts are influenced by actors’ organisational commitments. For instance, perceptions of legal opportunities and the choice of framings can change depending on whether litigation serves the struggle for rank and file among

14  Introduction human rights NGOs, is meant to provide religious stakeholders with legitimacy vis-a-vis domestic political elites, or serves the identity-building of a religious movement (van der Vet 2012). Organisational commitments can also influence whether actors decide to conform or to challenge relations of power in the legal field, whether they disengage in the face of failure, or whether they maintain their activism. In this context, it is important to pay attention to how actors balance between the margins of action within the religious freedom field and the relations within specific professional, political, or religious fields where gains from litigation are meant to be invested. My approach takes into account the effect of power relations and (trans-) national movement building on the negotiation of religious freedom. These relations mark the ‘perimeter of discursive possibilities’ available to actors, within which their pursuit of legal and social change unfolds. Through their resonance in trajectories of legal mobilisation, such relations and organisational commitments become entrenched in debates over religious freedom. Moreover, my framework allows us to focus on how such relations influence recursive trajectories of claims-making and push actors to embrace new frames and avenues of activism as their legal margins of action narrow. This, in turn, reveals how they shape and displace the boundaries within which the negotiation of religious freedom as a transnational norm takes place. TRAJECTORIES OF LEGAL MOBILISATION: EMPIRICAL OBSERVATIONS

Conflicts that have been mediated by the highest European judges have come from nearly all its 47 (46 since 2022) Member States and range from dietary conditions in prison and the wearing of religious symbols in public, to exemption from religious teaching or from the religious oath in courts. They include claims for legal recognition, conscientious objection to military service, and construction of places of worship, as well as the right to express publicly one’s religious conviction. Amidst a huge inflow of cases at the ECtHR – I have counted more than 1,000 applications motivated by a religious concern since its inception in 1959 – I have selected those cases which have attracted particular attention by strategic litigants.9 Tracing activists’ strategic considerations, I use the cases as windows into the broader dynamics unfolding within the religious freedom field and its intersection with multiple religious, political and professional fields. The picture unfolding demonstrates the complexity of social relations and entanglements that shape the contentious space in which the right to freedom of religion is negotiated.

9 Note that the religious rights claim is not always the primary nor the only concern in the more than 1,000 cases counted.

Trajectories of Legal Mobilisation: Empirical Observations  15 I outline the following trajectories of mobilisation by strategic religious freedom advocates that reflect how the above-mentioned ambivalences of transnational institutionalisation are entrenched into debates over religious freedom. Jehovah’s Witnesses and Evangelical litigants have pioneered the first successful cases of religious freedom in Strasbourg pertaining to the right to proselytise and the recognition of official religious entities in newly emerging democracies. They can be seen as representing a typical case of liberal rights expansion. Their success has triggered successive cycles of litigation targeted at expanding the legal and geographical scope of religious freedom. The case of conscientious objection against military service is used in the book to illustrate this dynamic. Two dynamics sustain this first mobilisation trajectory. First, at the beginning of the 1990s, Jehovah’s Witnesses and (to a lesser extent) Evangelicals found themselves in a comfortable position, capable of acting as political allies of a court which seized the moment of geopolitical transformations to aspire towards more institutional authority. Second, organisational transformations within these religious communities have enabled repeat litigation at the transnational level. Yet, the progressive expansion of a liberal and state-independent pole in the religious freedom field (which since the Court’s inception was supported by humanists and atheists as well) has also triggered powerful counter-mobilisation by national governments, religious majorities and professional (conservative) human rights experts. They have mounted their political and legal capital to reinstitutionalise their status at the transnational level itself. In conflicts over religious symbols in the public sphere and the recognition of internal church autonomy, they have sought to stage themselves as the natural beholders of authority, not only by ‘culturalising’ their religious status, but by associating with core legal stakeholders and providing rationalised legal discourses to justify the maintenance of symbolic boundaries between religious groups in the name of universal and rational legal principles. This has not least been possible through the transatlantic expansion of conservative networks that have developed within the American ‘culture wars’ and the capacity to stage themselves as legal rather than religious experts. While partially successful in claiming the incumbent position, Christian advocacy groups have nevertheless lost ground through the rising legitimacy of anti-discrimination discourses and jurisprudence. Whereas Evangelical groups have therefore strategically embraced established liberal paradigms to advance their stakes, actors close to the Catholic milieu continue to challenge the liberal interpretation of human rights norms as such by strategically rationalising symbolic boundaries among religious groups and by connecting to former judges and national judicial elites. By promoting an agenda of conscientious objection against abortion and same-sex marriage and developing campaigns to challenge judges’ professional authority, certain actors have contributed to foster new lines of divide in the religious freedom field and the human rights field more generally.

16  Introduction In between an expanding liberal and state-independent orientation of the Court and a simultaneous political backlash against its expanding authority, a third mobilisation trajectory can be distinguished. Certain religious minorities have little margin to advance their stakes at the Court facing numerous negative precedents and perceiving the judges as biased against Islam in particular. While some strategic Muslim advocacy groups have therefore decided to avoid any action at the ECtHR, Sikh community activists have mobilised in Strasbourg despite little hope for success. Liberal secular advocacy groups, traditionally seldomly engaged in religious freedom struggles, have filled the void of Muslim activists, but also supported Sikh litigants thereby providing them with additional legal capital. Importantly, the latter’s intervention has appeared as principally motivated by the ambition to advance principles of ethnic discrimination and freedom of speech. Their support is thus at least in part ‘conditioned’ by whether religious claims provide symbolic credit in other areas of rights and might (for now) remain an occasional phenomenon rather than a systematic structure as in major Christian controversies. Facing legal marginalisation and conforming with the expectations of a liberal cosmopolitan human rights elite, Muslims and Sikhs have framed claims pertaining to religious garments in the public sphere by underlining their expression of subjectively chosen or inherently felt religious identity. Attempts to mould identities on dominant conceptions of what constitutes a legitimate form of religion have further been motivated by Sikhs’ attempts to foster religious community unity through legal action. Rather than competing over core legal principles, they have invested in aligning religious identities with the expectations of the incumbents in the field. This trend of ‘identity’-adjustment contrasts with attempts of Christian conservatives to maintain old and entrench new symbolic boundaries into the religious freedom debate. Noticeable in all these mobilisation efforts, strategic actors have combined their activism at the ECtHR with mobilisation in other transnational venues, such as the UN or – more recently – at the Court of Justice of the European Union. Putting different ‘governance units’ at the transnational level into dialogue, they might also contribute to consolidate a wider emergence of a transnational field with a growing competition between different international courts and human rights bodies. CONTRIBUTIONS

First, to my knowledge, the book offers the first sociological inquiry into religious freedom litigation at the ECtHR. This is important as such given the sheer growth of judicial contention and the relevance of the ECtHR in religious freedom disputes more generally. The study contributes, second, to the literature on the governance of religious diversity that has not yet attended to the transnational contention over religious freedom. The chapters of this book demonstrate how

Chapter Outline  17 religious landscapes are shaped by rising rights awareness and actively shape the legal space within which religious freedom is negotiated. Opening the ‘black box’ of religious freedom contention, it offers new insights into the effects of transnational institutionalisation and the judicialisation of religion more generally. Third and finally, the book contributes to the thriving literature on legal mobilisation. It does so not only by advancing our knowledge in a yet scarcely examined sub-field, namely legal mobilisation in religious conflicts, but by developing an original conceptual approach that could be further tested in future research. Importantly, its suggestion to turn our attention from explaining legal outcomes to tracing broader dynamics of power and competition sustaining legal struggles opens new venues for scholarly debate. CHAPTER OUTLINE

The first chapter dives into the details of the conceptual background of the book. It introduces key concepts of social movement studies that have influenced the study of legal mobilisation. While these concepts remain central in this book, the chapter criticises that they are essentially geared towards providing evidence for what I label the ‘empowerment thesis’, ie, the mutual empowerment of international courts and social movements. Yet, I argue that it is useful to incorporate such socio-legal concepts in a relational approach as provided by the theory of social fields (Bourdieu and Wacquant 1992) and strategic action fields (Fligstein and McAdam 2012). Such a field-theoretical approach allows us to examine legal framing strategies and the perception of legal opportunity structures as predicated, on the one hand, on the relations between more or less powerful actors in the religious freedom field and, on the other, on the interaction between the legal and extra-legal fields such as the religious and the political. The chapter concludes by explaining its methodological strategy, including the case selection and main analytical premises. The following four empirical chapters demonstrate the dynamics through which the right to freedom of religion, barely invoked by litigants until the 1990s, progressively evolved into a polyphonic area of contention. The chapters follow a chronological order and demonstrate how legal mobilisation has evolved within a force field stretching between states’ attempts to affirm their sovereign power in the religious freedom field and a cosmopolitan judicial elite fostering a liberal and state-independent pole in the field. The second chapter asks why – and more pressingly how – after more than 30 years of silence regarding the religious freedom provision, religious actors emerged as vocal litigants in Strasbourg. It starts by outlining the historical background and legal architecture of the Convention and the right to freedom of religion that were for a long time marked by the prerogatives of states’ sovereignty. It then turns to the first successful religious freedom cases, litigated by Jehovah’s Witnesses and Evangelicals against Greece, which marked

18  Introduction a trail-blazing turning point in the Court’s assessment of religious freedom claims and heralded an era of ever-increasing religious litigation. The chapter argues that this turning point was enabled through a twofold development. On the one hand, institutional transformations, geo-political transformations and the emergence of a professional human rights field (Madsen 2007) turned Strasbourg into a viable legal opportunity structure. On the other hand, transformations in the US religious field led Evangelical and Jehovah’s Witnesses to accumulate substantial legal capital and to develop a litigious collective habitus enabling them to perceive Strasbourg as a new window of opportunity for their respective goals. The resulting ‘partnering’ relation (Richardson 2017) helped to foster the emergence of a ‘liberalising pole’ against the until then predominance of state power. However, despite the growing independence of Strasbourg judges from state power and their leverage to interfere with national governments’ regulation of religious diversity, states remain powerful stakeholders in the field. The third chapter examines the legal mobilisation trajectories by a group of actors who are constrained by a more marginal and precarious position in the religious freedom field. This is the case of litigants from Muslim and Sikh minorities, who asserted their right to wear religious symbols in public schools. While Muslim minorities have long lacked the strategic advocacy afforded by other groups, Sikh litigants have been supported by a vibrant support structure. The chapter therefore focuses on this group. It examines the mobilisation around several cases concerning the wearing of the Sikh turban in French schools. The litigants’ attempt to escape the destiny of the Muslim claims against headscarf prohibitions, which the Court has rejected since the early 2000s. Albeit a matter concerning only a small minority, the contention over the turban nevertheless epitomises important relational dynamics within the religious freedom field as well as between religious and legal fields. Thus, the chapter demonstrates that litigating in Strasbourg was not only meant to remedy the grievances of the French Sikh community, but to unite the global Sikh community over a unified identity and understanding of their religious duties. Strasbourg thus also served as a ‘bank of symbolic capital’ (Bourdieu 2014, 122) for community building. I argue that their ambitions in the transnational religious field at least in part explain the Sikhs’ legal mobilisation while no objective legal opportunity structure existed. At the same time, they also elaborated a framing strategy that would adjust to their marginal position in the field. I describe their strategy as an attempt to ‘fit’ into the dominant legal imaginary of religion and secularism. Alliances with liberal human rights lawyers and the carefully distant positioning vis-a-vis Muslim peers further fed into this strategy. The legal mobilisation of Sikh advocates also sheds light onto the ambivalence of legal transnationalisation. While the ECtHR allows the Sikh advocates to assert their rights, they attempt to fit into rather than to challenge the interpretation of secularism by the state. This contrasts with the mobilisation of Christian majorities, which I explore in the fourth chapter. It demonstrates

Chapter Outline  19 the capacity of religious majorities to turn political capital into legal authority, especially with the help of increasingly active Christian conservative NGOs that have transited from the United States to Europe. Focusing on the widely discussed controversy over the display of the crucifix in Italian schools, I show that contrary to Sikh litigants, the powerful coalition of the ROC, the Vatican, Christian conservative NGOs and 21 governments did not primarily try to prove that the crucifix’ ‘fits’ into a secular polity, but to restore the power balance within the religious freedom field, ie, preserving the authority of their special capital and interpretation of religious freedom. In so doing, they not only foster the conservative–liberal line of divide in the religious freedom field, but also a symbolic boundary vis-a-vis Islam. The central role of a small yet very wellconnected Christian conservative NGO in this case also contrasts with the intervention of other, more community-oriented, religious activists. This NGO seeks to compete amidst Strasbourg’s judicial elite and thus to orient the distribution of power within the field itself. This highlights the different rationales, which activists from different groups pursue. In the fifth chapter I return to various of the previously introduced groups and examine their recursive trajectories of legal mobilisation. In so doing, I seek to understand how they seek to push for change in an increasingly consolidated human rights field. This, I argue, allows us to observe endogenous shifts in their strategies, including the development of new frames and the shift towards new avenues of activism. I distinguish three different trajectories of recursive mobilisation. First, Jehovah’s Witnesses have been able to recursively expand their rights, building in particular on a globally coordinated agenda of litigation in international and national courts. By contrast, second, Muslim minority mobilisation in cases concerning religious clothing in the public sphere is marked by their recursive judicial failure. Sustained marginalisation has been met by a rise in secular support networks, tying Muslim cases to new symbolic agendas. This, I contend, has enlarged Muslims’ perimeter of claims-making, but also implicitly conditions Muslims’ legitimacy on a liberal view of religion. In addition, some of their supporters have turned their backs on Strasbourg, while shifting to alternative judicial venues. Third, and finally, Christian conservative actors have pushed against recursive expansion gender and reproductive rights by branding religious freedom and conscientious objection claims against antidiscrimination norms. Despite little judicial success, they have fostered debates over conflicting rights, entrenched natural law conceptions into the religious freedom field, and opened new venues for political and legal opposition. The final conclusion recapitulates and systematises the main arguments and contributions. While reflecting on the scope and limitations of the findings, it also provides thoughts on future research to be conducted.

1 Fielding Religious Freedom Advocacy: A Sociological Approach to Transnational Legal Mobilisation

I

n recent decades, human rights have become an important legal and discursive tool for a wide range of groups seeking redress for perceived social injustices. In addition to their ubiquitous presence in political debates, there has been a rise in rights awareness among citizens, and social movement activists, which has resulted in a growth of legal mobilisation and a steep increase in human rights litigation. This European ‘rights revolution’ (Anagnostou 2014a; Epp 1998) becomes evident when one considers that the European Court of Human Rights (ECtHR) had already delivered more than 10,000 judgments until 2010 (Madsen 2016: 142) and that by 2016 tens of thousands more cases were still awaiting a decision. However, the process and effects of legal mobilisation in the area of human rights remain ambivalent. On the one hand, we know from a growing body of socio-legal studies that European courts – and the ECtHR in particular – have become important legal opportunity structures that encourage litigation by minorities and marginalised groups (Anagnostou 2014a). Vocal support networks not only build bridges for grassroots communities to allow them to make use of such opportunities, but also create opportunities for judges and policymakers to widen their sphere of influence. This, in turn, can spur further mobilisation and litigation by activists. In an iterative movement, then, mutual empowerment occurs between civil society activists and international courts (Alter, Helfer and Madsen 2016; Cichowski 2007, 2011, 2013; Conant 2006). This ‘empowermentcycle’ has, as I will argue in later chapters, also unfolded for the case of religion, with globally connected religious minorities repeat litigating at the ECtHR, pushing for a broader accommodation of their rights and interests. On the other hand, legal mobilisation is also fraught with obstacles, power dynamics and ideological oppositions. Legal mobilisation for religious freedom is a case in point. Although religious freedom is not among the most litigated areas at the Court, it has become an area of fierce contestation between various strategically litigating advocacy groups. It is thus not only the affair of like-minded liberal human rights advocates, but of a host of actors with different

Fielding Religious Freedom Advocacy  21 resources, interests and (sometimes opposing) ideals. Thus, in addition to well-equipped liberal social movement actors, community actors with less expansive agendas, as well as social movement actors vigorously opposed to liberal rights discourses, are engaged in strategic litigation (McCrudden 2015b; Fokas 2016; Stoeckl 2016). This poses the question of how perceptions of opportunity structures and the use of human rights frames vary among such differently equipped and oriented actors. Furthermore, the ‘empowermentcycle’ sketched above does not work equally for all groups and rights agendas. For instance, the repeated legal failures by Muslim minorities seeking to leverage human rights claims against restrictions on various Islamic dress codes raises the question of how such failures affect trajectories of mobilisation, ie, how Muslims themselves, as well as others, attempt (or not) to circumvent the legal obstacles that stand in their way, and how they frame their claims and define their strategies in response. The goal of this chapter is to develop a conceptual framework that allows us to capture not just the successful trajectories of legal mobilisation, but the asymmetries in power, the variety of organisational commitments, and the ideological fault lines that together shape legal mobilisation. In so doing, I will not suggest that scholars’ and citizens’ faith in courts grossly overestimates the capacity of litigation to generate social change (Scheingold 2004: 5). Rather, my aim is to nuance this assumption and broaden our perspective by studying how power dynamics can inflect the use of law, how the rationales underlying litigation vary between actors, and how legal and political obstacles affect their pursuit of social change through law. In other words, rather than determining what legal and social change is brought about through legal mobilisation, my approach seeks to understand the factors and dynamics on which legal mobilisation is predicated and which define the boundaries within which rights and identities of rights holders are negotiated. To develop such an approach, the chapter first revisits the concepts and analytical perspectives commonly used by socio-legal scholars interested in legal mobilisation and human rights advocacy. Such concepts include, in particular, legal opportunity structures (Andersen 2005; Vanhala 2011; Anagnostou 2014a) and legal framing (Pedriana 2006). While acknowledging the analytical precision that these concepts provide, I argue that their predominant use to study successful legal mobilisation by relatively homogenous groups of actors has left us with important blind spots. We know, for example, little about how the perception of legal opportunities and the use of legal framing strategies vary across different actor groups and how power relations affect their use. To address this, I elaborate a more expansive sociological framework that relies on field-theoretical tools. This does not mean abandoning socio-legal concepts altogether, but calls for incorporating them in a broader sociological framework. The core of the chapter is dedicated to presenting this conceptual approach by spelling out its general precepts, as well as its more specific application to the phenomenon

22  Fielding Religious Freedom Advocacy of legal mobilisation. In the last part of the chapter, I provide methodological reflections on the research strategy I have employed to realise the proposed fieldtheoretical analysis. Before I proceed, however, let me briefly clarify what I mean by legal mobilisation and human rights advocacy. Amidst the broad debate on the conceptualisation of legal mobilisation (McCann 2006; Vanhala 2011; McCann 2008), the definition by Frances Zemans has acquired a paradigmatic status. It holds that ‘[l]aw is … mobilized when a desire or want is translated into a demand as an assertion of one’s rights’ (Zemans 1983: 700). Broadly speaking, the concept of legal mobilisation thus concerns the use of legal discourses with the aim of achieving social change. To the extent that human rights advocacy is directed at the promotion of change through legal norms, it can be considered as one type of legal mobilisation. Note that I do not conceive of human rights advocacy as the exclusive domain of NGOs or movement activists, but include, more broadly, all actors advocating on behalf of a certain group by invoking human rights – whether sporadically or frequently. The litigious assertion of rights is in this context only one variant of a broad array of practices. Some authors have therefore argued for a narrower definition in order to maintain conceptual clarity. For instance, criticising an oft unreflexive use of the term, Lehoucq and Taylor (2020: 168) recently defined legal mobilisation as ‘the use of law in an explicit, self-conscious way through the invocation of a formal institutional mechanism’. Although the focus of the present book is primarily on this latter dynamic, I also contend that it is difficult to understand strategic litigation as isolated from broader dynamics such as the construction of legal identities and rights consciousness (Ewick and Silbey 1992) or broader framing dynamics in social movements. I focus on litigation, but consider it as informed by such wider socio-legal dynamics. SOCIAL MOVEMENTS AND LEGAL MOBILISATION

In this section, I will first revisit the core concepts and assumptions of scholarship interested in human rights advocacy and legal mobilisation and, in a second step, elaborate on the shortcomings and blind spots of these concepts. While an exhaustive review of this literature would exceed the space available here, I focus on the most central concepts employed to understand why and how legal mobilisation occurs and which effects it produces. These concepts have been borrowed from scholarship interested in social movements more broadly speaking and are – like that literature – primarily geared towards articulating the relation between courts and civil society as one of mutual empowerment. I will argue that it is precisely this – implicit or explicit – assumption of successful change through legal mobilisation that easily leads us to overlook the more complex and ambivalent dynamics that shape trajectories of legal mobilisation and thus indirectly influence – if not legal outcomes – so at least the various discourses competing in the legal sphere.

Social Movements and Legal Mobilisation  23 Socio-Legal Concepts of (Successful) Legal Mobilisation The process of legal mobilisation can be analytically divided into two distinct steps. The first concerns the decision of movement activists and advocacy groups to direct their activism towards the terrain of law and courts more specifically. As such, the first step entails, most importantly, the question of access to the judiciary. The second step concerns the more substantive content of legal strategies, ie, how the law is used in the pursuit of social change. While access to courts is often (but not always) considered to rest on structural factors constraining or enabling activism, framing strategies are generally seen as reflecting the capacity for intersubjective strategising by movement activists. I will first consider the conditions of access and then turn to the concept of legal framing. While authors drawing on such concepts are aware of the possible barriers to access, they generally find that the process of legal mobilisation – once under way – is a crucial ingredient for (liberal) legal and political change. The two most frequently mentioned factors enabling or constraining access to courts are resources and legal opportunity structures. A third, less frequent discussed factor concerns internal movement dynamics, which breaks with the more common structuralist explanations of litigation. Let me briefly explain these three factors in turn. First, without material and human resources legal mobilisation can hardly occur – neither at the national nor the transnational level (Galanter 1974). The extensive fees of lawyers and costs of proceedings make litigation all but self-evident. Social movement actors, lawyers and expert NGOs can form support structures for individual litigants and equip them with the necessary financial means and expert knowledge (Epp 1998). Such support structures become even more important when the relatively familiar terrain of national law is abandoned, and actors enter the more unknown waters of international law. Importantly, such resource endowment varies greatly among grassroots communities and advocacy groups, and not all individuals have equal access to support structures that help them reach international courts (Conant 2016; Passalacqua 2021). For instance, Sundstrom et al (2019:  5–27) have demonstrated that the paucity of gender discrimination cases against Turkey and Russia reaching the ECtHR can, among other factors, be explained by the fact that many of the victims of such discrimination lack access to feminist human rights lawyers who could help them overcome the arduous way to Strasbourg. Thus, the availability of material resources and knowledge of human rights procedures is a necessary condition for litigation to take place. It is, however, not a sufficient one. Second, courts also need to be institutionally accessible before they can become the target of legal activists. Socio-legal scholars have built on the long-standing debate on political opportunity structures (Koopmans 1999; McAdam 1996; Meyer and Minkoff 2004) to highlight the importance of legal opportunity structures (LOS) in explaining why legal mobilisation occurs (Hilson 2002: 243). Courts can become an

24  Fielding Religious Freedom Advocacy opportunity for action when they are accessible in terms of institutional rules, when the alignment between judges and judicial precedent promises success, and when litigants have supporters with sufficient resources (Andersen 2005; Vanhala 2011; De Fazio 2012). As this latter aspect shows, resources in a wider sense can be seen as part of LOS. Some scholars have broadened this vision of LOS by including the role of ‘cultural frames’ (Andersen 2005) and ‘political contexts’ (McCammon et al 2007) in its definition, but in so doing can easily be criticised for watering down the parsimonious strength of the concept (Koopmans 1999; Vanhala 2011). Applying the concept of LOS to the European context, scholars have demonstrated how formal access conditions vary across national courts and how these differences are reflected in unequal levels of litigation (Börzel 2006; Cichowski and Stone Sweet 2003; Conant 2006). At the international level, the ECtHR is comparatively more accessible than, for instance, the Court of Justice of the European Union (CJEU). While the latter requires a preliminary reference by a national court to become accessible to litigants, the access rules of the former have become more open for both individual and collective actors since it underwent substantial legal reform in the late 1990s (Cichowski 2016). The interplay of various national and international legal levels in the European judicial system inevitably shapes and constrains the structural opportunities which strategic litigants find to assert their claims.1 As Anagnostou (2014a: 20) has summarised: ‘Opportunities and resources for claiming national constitutional, EU or ECHR rights before domestic courts, or for having recourse to European courts to do so, are far more contingent and varying than has so far been suggested in existing studies’. While resource mobilisation and LOS are the main explanatory factors for legal mobilisation and litigation, a third, and for the purpose of this book most relevant, constraining/enabling factor for legal mobilisation is the organisational identity of social movement actors (Vanhala 2011; March and Olson 2008). I mention this aspect last because it overlaps in important ways with the field-theoretical perspective to which I will turn later in this chapter. Unlike studies focusing on resource and LOS approaches, scholars who emphasise this aspect bring to the fore the internal dynamics within the movement that might lead them to turn to the courts. Aligning with social movement theorists, they emphasise that the activation of legal opportunity structures crucially depends on whether the actors in question perceive them as such: No opportunity, however objectively open, will invite mobilization unless it is a) visible to potential challengers and b) perceived as an opportunity ... Attribution

1 The volume on legal mobilisation in the European multi-level system edited by Dia Anagnostou studies among others the effects of the multilayered architecture of the European judicial field on dynamics of legal mobilisation (Anagnostou 2014b).

Social Movements and Legal Mobilisation  25 of opportunity or threat is an activating mechanism responsible in part for the ­mobilization of previously inert populations (McAdam, Tarrow and Tilly 2001: 43).

This perception, in turn, depends in important ways on the organisational dynamics and identity formation within these collective actors. Social movement actors need to attend to their members and constituencies, who in certain cases might be reluctant to embrace legal strategies (Leachman 2013; McCann 2006; McCann and Silverstein 1998). Moreover, the internal culture and identity of the movement can have activating and restraining effects. In this regard, scholars have relied on the concept of ‘logic of appropriateness’ developed by March and Olson (2008), which refers to the organisational rationale through which grievances and the remedies for these grievances are perceived by specific organisations (Vanhala 2011). Once legal discourses and practices become part of organisations’ logic of appropriateness, the likelihood of litigation increases substantially. Going a step further, Vanhala contends that once law becomes the logic of appropriateness of an organisation, legal mobilisation might even occur when there is no objective legal opportunity. She has argued that ‘[t]he reality of strategic litigation has been more complex than simply one of actors conforming to constraints in legal norms. There are numerous examples of organized interests that have pursued litigation strategies even when apparently excluded from legal protection’ (2011: 19). There is potential, I will argue in the field-theory section, to carry these insights further by questioning how different types of organisational settings lead to divergent engagements with the law (see also on this aspect: Leachman 2013). These three factors are preconditions for the access of collective and individual actors to courts. However, they reveal relatively little about the more substantive use of legal discourses, ie, the way actors employ legal tools. To capture this more substantive side of litigation, scholars have most prominently drawn on the concept of legal framing, which – similar to the concept of logic of appropriateness – contrasts with structural explanations of legal mobilisation, because if focuses more explicitly on the strategic side of activists. ‘Frames’ have commonly been defined as ‘schemata of interpretation’, a notion prominently put forward by Erving Goffman (1974). Schemata of interpretation ‘help to render events or occurrences meaningful and thereby function to organize experience and guide action’ (Benford and Snow 2000: 614). Frames are instruments with which identities, discourses and collective interpretations of social and political problems are produced. As such, they reflect ‘the manner in which grievances are interpreted and the generation and diffusion of those interpretations’ (Snow et al 1986: 466). Legal frames have been defined as ‘master frames’ (Pedriana 2006), ie, as frames that have a deep cultural resonance and therefore appeal to a broad range of different groups and actors. As such, they are not only ‘tools’ (ie, calculated action) from the ‘tool box’ of movement activists, but have themselves a constitutive impact on social movements (McCann 1994; Pedriana 2006).

26  Fielding Religious Freedom Advocacy Framing strategies describe the inter-subjective process by which movement activists make use of the law. These strategies include, but also expand beyond, the formal arena of the courts. Movement actors orient their activism towards those legal discourses that most efficiently rally movement members and/or promise success in court (Leachman 2013; Wedeking 2010). International legal norms and individual or civil rights can thereby become a key vocabulary and a tool to express grievances and advance solutions (Jodoin, Snow and Corobow 2020; Pedriana 2006; Tsutsui, Whittlinger and Lim 2012). Scholars have shown that this involves processes of ‘frame alignment’ among movement members, ‘frame amplification’ vis-a-vis alternative narratives, and ‘frame extension’ to new issues or circumstances (Benford and Snow 2000; Pedriana 2006; Snow et al  1986). Thus, if resources, legal opportunities and organisational dispositions are the preconditions for litigation, framing strategies sustain the entire process of legal mobilisation. These strategies play an important role in raising legal consciousness and in providing courts with justificatory repertoires for realising social change. The factors that shape such framing processes are mostly attributed to the internal dynamics and characteristics of social movements (Leachman 2013), but also include contextual and institutional aspects (Ferree 2003; McCammon and Beeson-Lynch 2021; Wedeking 2010). Regarding the first, it has frequently been highlighted that movement actors chose rights frames both to respond to opposing or competing movements (see eg: Ayoub and Chetaille 2020) and to align with the actors’ own movement audiences (Leachman 2013). There is debate as to the impacts of the second constraining factor, ie, the institutional context, in which legal arguments are advanced. For instance, while some have found strategic litigants to be ‘trapped’ in the legal arguments used in the first instances of litigation (Wedeking 2010), others have argued that litigants can advance innovative frames when legal opportunities are hostile (McCammon and Beeson-Lynch 2021). A more expansive conceptualisation of how institutions affect legal framing has been advanced by Ferree (2003), who has argued that marginalised actors tend to adjust their frames to hegemonic legal discourses. Sometimes, the frames privileged by movement constituencies can conflict with frames that appear institutionally speaking most promising (Leachman 2013). How such conflicts are waged remains however largely an open question. Overall, studies exploring the why and how of legal mobilisation leave little doubt as to the efficiency of this process in bringing about legal and social change. The picture that social movement and socio-legal scholars paint of empowerment and change is broadly as follows: across the globe, human rights frameworks have provided an incentive for new social movements to emerge or for dormant activists to be reinvigorated. Minorities have found in human rights potent tools to articulate their grievances (Tsutsui 2017), gender rights activists have succeeded in creating transnational movements (Merry 2006), and more generally, transnational advocacy networks

Social Movements and Legal Mobilisation  27 have succeeded in expanding human rights norms to all regions of the world (Keck and Sikkink 1998). Studies of globally connected civil society movements have demonstrated how legal frames are generated through cooperation and creative intersubjective meaning-making by ‘norm entrepreneurs’ working towards global social change (Finnemore and Sikkink 1998). As members of ‘epistemic communities’ (Haas 1992), these entrepreneurs connect actors and bridge national and transnational levels, make resources available for grassroots communities, and provide important means of diffusing ideas, norms and information (Keck and Sikkink 1998; Tarrow 2005; Jodoin, Snow and Corobow 2020). Litigation is an important part of this picture. Once access to courts is gained, the process of legal mobilisation is generally seen as an important cog in the machinery of social change. While European courts have provided opportunities for NGOs and other activists to push for social change (Cichowski 2016; Conant et al 2018; Evans Case and Givens 2010; Passalacqua 2021), such NGOs, in turn, facilitate access to European courts for minority communities and allow judges to become more activist and expand their authority vis-a-vis national governments (Cichowski 2016; Helfer and Ryan 2022). All this might attract further litigation and judicial activism, thus creating an ‘iterative empowerment’ between rights advocacy and international courts. If national courts are collaborating with their international counterparts, and litigants at the national level recursively bring cases to courts, significant social and political change might follow (Alter and Vargas 2000; Alter 2014). Blind Spots Existing socio-legal concepts help us understand why and how legal mobilisation by social movements occurs. However, I see at least three shortcomings in existing socio-legal accounts which, as I shall argue in the next section, can be overcome by adopting field-theoretical tools of analysis. First, the actor diversity, both in ideological and organisational terms, has not been sufficiently addressed by scholars of legal mobilisation. Advocacy groups involved in litigation can appear in existing studies as overly homogenous and inclusive in their support for minorities. However, these groups are anything but like-minded, are embedded in very different organisational contexts at both the national and the international level. Certainly, the liberal–conservative divide among social movement activists has received increasing attention (see for instance: Ayoub and Chetaille 2020; Bob 2012). More specifically, Christian conservative advocacy groups have become a prominent focus of scholarship interested in religious rights litigation (Fokas 2016; Lehoucq 2021; McCrudden 2015b; McIvor 2019; Mourão Permoser and Stoeckl 2021). However, because such studies generally focus on a single group, the strategies of conservatives are seldomly addressed in a comparative perspective. Moreover, ideology is only

28  Fielding Religious Freedom Advocacy one of the dimensions along which activists differ. Legal mobilisation in the area of human rights includes national and transnational NGOs, grassroots actors and professional repeat litigators, actors from marginalised as well as from dominant groups. Little attention has been paid to how access to courts and framing strategies vary among these actors (see however: Leachman 2013). Finally, not only the presence but the absence of actors should also be included in the picture. Who is supported by strategic advocacy networks and who is not? Who envisions litigating in the transnational arena and who does not? Addressing such questions can help us better understand the organisational dispositions that enable or restrict access to international courts and the use of human rights instruments. The second shortcoming concerns the interrelationship between contextual constraints and the strategic capacities of human rights advocates in the process of legal mobilisation. On the one hand, the concept of legal opportunity structure, which focuses on structural constraints on legal action, easily loses sight of the organisational predispositions and strategic capacities of advocacy groups to reach the courts. Referring to structural determinants in explaining access to courts risks underestimating the capacity of actors to actively work towards opening new legal opportunities (Vanhala 2012). On the other hand, and conversely, studies that focus on legal framing often say little about how such framings are shaped by legal opportunity structures and dynamics of (institutional) power more broadly speaking. Although the above-mentioned authors have provided some insights into the room for argumentative innovation that strategic litigators can afford in judicial settings (McCammon and Beeson-Lynch 2021; Wedeking 2010), they have seldom asked how this leverage varies according to the position of power of actors in the legal field and beyond (see however: Ferree 2003). In other words, how structural constraints and the characteristics of legally mobilised actors operate together has not yet been the object of systematic theorising or empirical investigation in socio-legal mobilisation studies. Specifically, studies on legal mobilisation in Europe have primarily studied the rule-based access conditions to the European level (Cichowski 2011, 2016; Conant 2016; Conant et al 2018), but are less frequently interested in attending to the factors that ‘mediate’ between constraints and strategy, ie, the rationales according to which actors strike a balance between what they want to achieve and what they can achieve. This hints already at the third, more general, shortcoming of the sociolegal mobilisation literature: power relations often remain invisible. Socio-legal scholars generally consider legal mobilisation as a crucial factor contributing, directly or indirectly, to broader legal and social change, and – despite their growing interest for conservative backlash in the terrain of law – mostly understand legal mobilisation as empowering the marginalised and the downtrodden. Studies of legal mobilisation in European courts, in particular, have mainly focused on recursive cycles of empowerment, which can unfold once access to court is achieved. Implicitly or explicitly geared towards explaining successful

A Shift of Perspective: Mobilisation in (Transnational) Legal Fields  29 legal change, legal mobilisation scholars are primarily interested in the capacity of movement actors to help in overcoming power asymmetries and to reduce the influence of powerful national stakeholders. As such, studies on legal mobilisation stand in striking contrast to realist accounts of courts, which view the delegation of power to constitutional and international courts as a means of preserving (rather than undermining) the power of national political elites (Hirschl 2004, 2008; Garrett 1995). In contrast to socio-legal mobilisation scholarship, such approaches expect that constitutional courts will remain an important zone of influence for such elites. Rather than opposing such scenarios, I suggest that we might gain from integrating them more explicitly into one approach that asks how the legally mobilised deal with persistent affirmations of political power in transnational judicial contexts.2 This would allow us to understand which mechanisms and tactics these actors use to accommodate structural and political obstacles, but also how manifestations of power at the transnational level can constrain and shape trajectories of mobilisation. In other words, without challenging the possibility of empowerment, we should give due attention to the structuring impact that powerful stakeholders can have on the margin of action of more marginalised groups. To address these blind spots and ambivalences, I develop a field-theoretical approach to legal mobilisation that emphasises the relations of power and competition within which actors operate. A SHIFT OF PERSPECTIVE: MOBILISATION IN (TRANSNATIONAL) LEGAL FIELDS

A field-theoretical approach introduces a change in perspective. Rather than following like-minded movement actors and their turn towards the legal or other forms of activism, it focuses on the legal space and follows diverse actors, including legal professionals, governments and activists from various organisational, ideological and religious backgrounds, as they move into (and out of) this space. Approaching law as an area of contention between these actors, it provides an analytical grid for grasping the relations of power and organisational rationales that shape the use of law, and – as a result – the boundaries within which the law is negotiated. This shift does not require us to abandon familiar concepts of socio-legal studies such as LOS and legal framing, but enables us to consider these concepts as embedded in field-specific relations of power.

2 See Koenig (2015) for a similar call to integrating realist and constructivist approaches to international courts. Koenig also provides a useful synopsis of both realist and constructivist approaches to international courts.

30  Fielding Religious Freedom Advocacy The idea of applying field theory to legal mobilisation is not new. Social movement scholars have emphasised with reference to Bourdieu ‘that social movements, organizations, and law should be conceptualized as overlapping institutional fields that help to constitute and shape one another’ (Edelman, Leachman and McAdam 2010: 655). Moreover, there is a growing number of sociologists who have examined professional trajectories of civil and human rights lawyers from a field-theoretical perspective (Dezalay and Garth 2001; Kawar 2011; Madsen 2007, 2011). Social movement scholars and sociologists more generally have argued that the use of field-theoretical tools would help us to better understand the dynamics of social change and reproduction (Fligstein and McAdam 2012; Mayrl 2013). However, despite this visible turn to field theory in social movement studies, students of legal mobilisation have only seldomly relied on such tools. In what follows, my aim is to demonstrate what the literature on legal mobilisation could gain from a field-theoretical approach. On the one hand, I will draw inspiration from Pierre Bourdieu’s work. Although he has not been the only author to develop a theory of fields, he has gained in currency among scholars exploring the transnationalisation of legal practices.3 On the other hand, taking seriously some critical voices of Bourdieusian sociology, I will also draw on more recent field-theoretical accounts which integrate insights from social movement scholarship into field theory (Fligstein and McAdam 2011, 2012). I will first introduce field-theoretical assumptions at a general level. Only then will I discuss their implications for legal mobilisation more specifically and turn to the notions of human rights and religious freedom field employed in this book. Social and Strategic Action Fields At a general level, a social field can be defined as a relatively autonomous social space structured by relations of power: a battlefield, where social actors in diverging positions of influence compete for recognition and the authority of interpretation of what is at stake (Bourdieu 1987, 1996). In Bourdieu’s account, ‘autonomous’ means that there is a rationale of action (or logic of practice) inherent in the field, which is functionally distinct for each field, whether the legal, economic, political, academic, religious and so forth. Within each social field, there are specific resources and capacities (or capital) that are rewarded with more influential positions than others. Thus, participation and competition in each social field requires actors to obtain field-specific capital. This may 3 Schützeichel and Wächter (2017) have produced a useful overview of the ‘field’ of field theories. They remind us of the original conceptualisation by Kurt Lewin in particular and compare more recent field theories. Kurt Lewin (1963), as an early influential field theorist, understands fields as a relational space, in the sense that the multiple components of a field are interdependent. The field is dynamic because any part of the field is dependent on every other part of the same field.

A Shift of Perspective: Mobilisation in (Transnational) Legal Fields  31 include professional titles, acquaintances, connections, language skills, etc, all of which can help actors gain in recognition by complying with the rules of the field and by being able to vie for the most distinguished positions. With Bourdieu we can argue that the struggle for influence in a social field is twofold: first, there is competition over what type of capital is valuable and, relatedly, over the authority of interpretation of the main stakes in the field (eg, human rights). Second, there is the struggle to accumulate valuable capital and to comply with the established interpretation of what is at stake (see eg Bourdieu and Wacquant 1997: 99). The first concerns the struggle over the ‘rules of the game’ as such, ie, the distribution of power and authority. This implies that actors seek to increase the value of their specific resources and world-views. The second generally comes with an acceptance of the rules of the game. This means that attempts to occupy influential positions in the field are characterised by compliance with established hierarchies and the acceptance of field-specific capital and world-views. Such struggles over authority and recognition are, by definition, predicated on the relations of power in the field. As Bourdieu argued with reference to Marx, ‘the real is the relational: what exist in the social world are relations – not interactions between agents or intersubjective ties between individuals, but objective relations which exist “independently of individual consciousness and will”’ (Bourdieu and Wacquant 1992: 97). More specifically, actors tend to recognise both their own position and its relative distance to more influential (or marginalised) positions in the same field. In a conventional Bourdieusian perspective, the rationale of these struggles is largely subconscious. The views of the most influential actors are institutionalised in the doxa of the field, ie, the core assumptions and values on which competition turns. While generally taken for granted by the actors in a field, the doxa is the outcome of historical struggles over power during the genesis of the field. Actors internalise the field relations and its doxa. This internalisation is manifest in the habitus (or disposition), which describes the predisposition of actors to reproduce internalised relations by orienting their strategies along such relations without challenging the field’s doxa.4 Pragmatist scholars have criticised that Bourdieu’s field concept rigidifies what is fluid and subject to change.5 Notions of habitus and doxa allegedly freeze what is multiple, changing and flexible. In response, Bourdieusian social scientists have argued that actors’ strategic capacities and ensuing dynamics of change can be found in the genesis of new fields (Bourdieu 1996) and the ongoing competition over legitimate capital (Bigo 2011; Madsen and Dezalay 2002; Leander 2011). Yet at least part of the criticism remains valid. The habitus concept mostly captures the internalisation of relations of power, 4 Bourdieu is criticised for not providing an extensive explanation of the concept despite its extensive use in empirical studies. For a brief conceptualisation see (Bourdieu 1990: 66). For another explanation of the habitus concept see (Bourdieu 1990: 52–63). 5 For a summary of these criticisms see (Leander 2011).

32  Fielding Religious Freedom Advocacy ie, their unconscious absorption by individuals. The strategic potential of actors, their collaboration towards new understandings (eg, of human rights), and the constant small-scale jockeying over influence is difficult to perceive. This makes it especially difficult to conceive of collective action that is so crucial to legal mobilisation (Fligstein and McAdam 2012: 24–26). Moreover, in Bourdieu’s account, change is mostly (though not exclusively) understood as radical breaks with relations of power, the subversion of a field-specific doxa (Bourdieu 1991: 127–32). Such subversion ‘presupposes a conjuncture of critical discourse and an objective crisis, capable of disrupting the close correspondence between the incorporated structures and the objective structures which produce them’ (Bourdieu 1991: 128). Bourdieu thus primarily pays attention to the rare moments of break and rupture with the established field logic and authority, without including the multiple and piecemeal changes, adjustments and struggles which field participants induce.6 Fligstein and McAdam’s (2011, 2012) ‘theory of strategic action fields’ seeks to overcome such challenges and provides a useful additional perspective. Their definition of strategic action fields reads as follows: A strategic action field is a constructed mesolevel social order in which actors (who can be individual or collective) are attuned to and interact with one another on the basis of shared (which is not to say consensual) understandings about the purposes of the field, relationships to others in the field (including who has power and why), and the rules governing legitimate action in the field (2012: 9).

Critics have argued that their social movement inspired agency-oriented and interactionist approach has almost nothing in common with Bourdieu’s vision of social fields (Schützeichel and Wächter 2017). Yet I see common ground and complementarity: fields are, in both accounts, relational settings that animate the competition over common stakes. The shared understandings that constitute the basis of interaction in Fligstein and McAdam’s account include, just as for Bourdieu, a sense of the general stakes of the field (eg, defining human rights), an understanding of power distribution and of the relevant rules. The twofold jockeying – over the authoritative position as such and the recognition according to established rules – apparent in Bourdieu’s field-theoretical account is articulated in Fligstein and McAdam’s approach as well. However, while competition in Bourdieu’s account involves mostly the notion of capital, Fligstein and McAdam also emphasise ‘strategic framings’ as an instrument of struggle. They expect ‘to see different interpretative frames reflecting the relative positions of actors within the strategic action field’ (2012: 11).7 Both, dynamics of capital

6 In this sense, the emphasis placed by pragmatist scholars on the existence of multiple ‘repertoires of justification’ (Boltanski and Thévenot 1991) has posed a serious challenge to a Bourdieusian perspective. 7 Fligstein and McAdam formulate here an alternative view from what is generally understood by ‘institutional logic’.

A Shift of Perspective: Mobilisation in (Transnational) Legal Fields  33 accumulation and framing seem relevant to grasp strategic action dynamics. What Fligstein and McAdam furthermore add is a greater emphasis on actors’ capacity for cooperation and their constant adjustment and negotiation.8 This capacity is not necessarily captured by the socially only slowly evolving individual habitus. The authors suggest that ‘[a]ction depends on both the structural position and opportunities actors have and their ability to recognize how they can mobilize others in order to maximize their chances for both narrowly instrumental and broader existential gain’ (ibid: 49). Actors operate through coordinated action, which requires [them] not to simply focus on their position in a field but to seek cooperation with others by taking the role of the other and framing lines of action that appeal to others in the field. [Fligstein and McAdam] view these collective dynamics as complementary to the generally individual action that is Bourdieu’s central concern’ (ibid: 25).

I also find that each account has its value for understanding social change and the reproduction of power relations. Bourdieu’s emphasis on the internalisation of power-relations is discarded by Fligstein and McAdam. However, I am not sure that it should be. Dynamics of reproduction can in fact coexist with strategic capacities to promote change. Actors might internalise their positions to a degree, but are still able to introduce new or subtle shifts in existing framings, exploit new opportunities and connect discourses from different fields. Importantly however, while Bourdieu envisioned change primarily as the reversal of the doxa of a field, Fligstein and McAdam’s approach also captures small-scale movements that, while not necessarily challenging the overall distribution of power or the main world-views in the field, participate in slower and incremental shifts and changes. We might win by keeping analytically open both possibilities: the strategic capacity of actors so dear to social movement approaches, and its boundedness by the distribution of power in which actors are individually and collectively embedded. Finally, Fligstein and McAdam’s field-theoretical account also introduces a useful terminological distinction between incumbents, challengers and the governance unit helping to operationalise the central focus on power relations within a field.9 As they explain, incumbents ‘are those actors who wield disproportionate influence within a field and whose interests and views tend to be heavily reflected in the dominant organization of a strategic action field’ (ibid: 13). This concurs with Bourdieu’s argument that the objective structures of a field reflect the dominant’s position and influence. Challengers have less influence and must wait for ‘new opportunities to challenge the structure and 8 Different from both Bourdieu’s and neo-institutionalist accounts of the field, Fligstein and McAdam position their approach more closely with the theory of symbolic interactionism (Mead 1973). 9 The incumbent/challenger distinction was introduced by Gamson (1975) and has become a prevalent concept in social movement theory. The conceptualisation of the governance unit has been added by Fligstein and McAdam.

34  Fielding Religious Freedom Advocacy logic of the system’ (ibid: 13). The incumbent’s imprint very much shapes the internal governance unit which oversees the formal rules and functioning of a field. It often works in the sense of naturalising the ‘logic and rules of the field’ (ibid: 14) and therefore can be seen as producing what Bourdieu terms as the doxa of a field.10 In the case of the European human rights field and the religious freedom field of interest here, the ECtHR occupies the role of the governance unit. Mobilising in the Legal Field: Accommodation of Relations of Power and Competition How does this field-theoretical view enrich more conventional perspectives on socio-legal mobilisation and help address the previously outlined limitations? At a general level, we should first note the change in perspective. The approach to social movements discussed in the previous section is mainly interested in the capacity of rights discourses to improve the position of the marginalised and the role of civil society in this process. A field-theoretical approach turns this perspective upside down: the litigation of human rights, while a means of overcoming marginalisation in its various forms, is itself imbued with power ­relational considerations and historically shaped understandings of rights that have acquired a taken-for-granted status. A field-theoretical view makes it possible to consider legal strategies, including activists’ perception of legal opportunities and their choice of legal framing, as embedded in such relations and institutional understandings. The legally mobilised do not only use the law to overcome legal and political exclusion, but also reproduce, implicitly or explicitly, social hierarchies and asymmetries when mobilising the law. Let me make this general argument more specific. Analogous to Bourdieu’s notion of social fields, we can define the legal field as a ‘symbolic terrain with its own networks, hierarchical relationships, and expertise, and more generally its own rules of the game’ (Dezalay and Garth 1996: 16). Following the general assumptions about the competition in a field, actors in a legal field can compete over the authority to define legal principles or strive for recognition within the established principles of action and interpretation. Put differently, legally engaged actors will (a) compete over the recognition of their legal professional capital and preferred legal interpretations and/or (b) try to follow the already established professional paths and legal interpretations recognised as authoritative. In the first case, legal mobilisation represents an attempt to increase the symbolic value of the specific capital (eg, political, legal, scientific, etc) that those who mobilise possess. For instance, governments might seek to increase the value of their political resources and related understanding of the law whereas 10 On the distinction with the Bourdieusian field theory, see (Fligstein and McAdam 2012: 24–26; Fligstein and Vandebroeck 2014).

A Shift of Perspective: Mobilisation in (Transnational) Legal Fields  35 international NGOs might try to increase the authority of international judicial capital and fight for legal interpretations that would allow them to expand the influence of a cosmopolitan de-territorialised legal elite (Dezalay and Garth 2001; Madsen 2007). In the second case, legally mobilised actors might try to accumulate the form of capital most influential in the legal field (and available to them) and conform to the dominant legal practices and interpretations (doxa). Importantly, this allows us to address the above-mentioned shortcomings of more conventional approaches to legal mobilisation by paying due attention to the variation of legal trajectories among actors in different positions of power. Following the field-theoretical assumptions developed above, we can expect that the legal frames chosen by actors and their responses to negative precedents vary according to their own vis-a-vis more (or less) influential positions. More specifically, actors in a fragile position will be more likely to opt for frames that do not challenge the core legal assumptions of the Court. Others might have the leverage to target legal principles at the core of the field itself. Moreover, actors might use strategic alliances and framings not only to challenge (or defend) a position of influence, but to dissociate themselves from more vulnerable or marginalised actors. For example, as I will show, certain actors have sought to distance or dissociate their claims from unsuccessful Muslim litigants. It is important to note that these dynamics are, by definition, relational. Religious NGOs new to the human rights field are aware of the influential position of the more established actors such as Amnesty International or the Open Society Foundations. Legal activists are also aware of the influential position of governments in supranational legal fields, as well as of groups that have become influential in certain legal areas or, on the contrary, that have been knocked back by judges. The distance or proximity that actors perceive towards more influential or marginalised positions guide strategic alliances and competition. For instance, NGOs may be more likely to defend and support cases that help them acquire the experience and reputation needed to occupy more influential positions in the field. Moreover, they keep an eye on powerful stakeholders, such as governmental elites or adversarial NGOs when developing new frames. In other words, legal strategies carry with them the power relations that define the legal field. As a result, when making their choices, actors might (unconsciously) subscribe to the world-views that have been institutionalised by the law and become taken for granted, thereby implicitly reproducing the world-view of the powerful even when siding with the marginal. While we can expect that actors in different positions of power adopt different strategies of legal mobilisation and that these strategies are shaped by their relational context, I try to avoid the over-determinism for which Bourdieu’s field account is often criticised. By giving due attention to alliance building and collaboration among actors from diverse national and ideational backgrounds, we acknowledge the possibility that individual dispositions (or habitus) can be overcome, world-views can be adjusted, and new possibilities for action can be discovered. Moreover, a field-theoretical approach also allows us to assess

36  Fielding Religious Freedom Advocacy dynamics of change that are frequently overlooked in socio-legal studies interested primarily in judicial and political success. Much of the jockeying in the legal field can take the form of piecemeal, endogenous change, manifested in changing alliances, the case selections made, and the legal framings chosen. These dynamics can eventually add up and lead to changes in legal or political outcomes. But even when they do not produce change on a larger scale, they are noteworthy for they constitute the competitive field within which mobilisation and legal discourses evolve. One example explored in this book is that strategic litigants frequently make use of various transnational LOS at the same time, including the ECtHR, the UN Human Rights Committee (CCPR), and increasingly also the CJEU. Such strategic moves, even if unsuccessful in terms of legal outcomes, might foster an integrated transnational judicial space with competing governance units. Nested Fields and Capital Transformation: Avoiding Over-Determinism and Under-Determinism As Fligstein and McAdam have argued, fields do not exist independently from each other, but ‘have relations with other strategic action fields and these relations powerfully shape the developmental history of the field’ (2012: 59). Two types of field intersections are particularly relevant here: first, legal activists are influenced not only by legal field relations, but by their respective organisational settings. Second, there is interdependence between legal fields and the field of state power (Madsen and Dezalay 2002; Kawar 2011). This is, as we will see throughout this book, particulary important for a transnational legal field such as the religious freedom field or the human rights field more generally. By taking into account these interrelationships, we can more thoroughly articulate the entanglement of organisational and power-relational factors, which – as I have argued above – are not sufficiently addressed by conventional sociolegal approaches. The first type of interrelationship between fields concerns the embeddedness of legal activists in different legal, organisational and political fields. While accommodating the relations of power structuring the legal field, strategic litigants also have to attend to their constituencies when taking strategic decisions (Leachman 2013; Vanhala 2011; McCann and Silverstein 1998). This can affect their decision whether or not to litigate. We know, for instance, that movement actors who are closely tied to grassroots constituencies are more reluctant to engage in formal institutional settings (McCann and Silverstein 1998), while larger professional organisations tend to invest heavily in litigation tactics (Levitsky 2006). But such organisational differences also matter for other reasons that are as yet little explored, such as their legal framing and handling of power relations in the legal field (Leachman 2013). Depending on

A Shift of Perspective: Mobilisation in (Transnational) Legal Fields  37 their organisational identities and commitments, actors might either decide to adjust to the power relations in the legal field or decide to contest such relations, even if in a relatively marginal position. The transnational dimension of the field under investigation in this book makes the aspect of embeddedness particularly important. For example, we might expect that actors embedded in national organisational fields follow different rationales from actors embedded in transnational settings when confronted with the realities of the legal field. The field-theoretical idea of capital transformation is helpful to further conceptualise the simultaneous embeddedness of advocacy groups in multiple (national and transnational) fields and how that affects their mobilisation strategies. We can think of courts as ‘banks of symbolic capital’ for strategic litigants.11 In fact, litigating can serve various purposes, such as realising political change, contributing to community building, and increasing the actors’ legitimacy in the NGO sector. As we will see throughout the book, rationales of litigation vary depending on actors’ organisational commitments. Litigation can be a means to build religious cohesiveness, as for the Sikh community for instance, or it can serve legal scholars to gain in visibility and symbolic credits for their careers. Some actors will aim to increase their margins of action in domestic political fights, while others compete for a place in the ranks of transnational legal elites. All of this is to say that litigation can have ‘extra-legal’ value; or, put differently, that legal capital can be transformed into symbolic gains outside the legal field. Vice versa, activists also carry their extra-legal commitments into the legal field and sometimes face a trade-off between legal strategy and grassroots accountability (Ferree 2003). Thus, how religious freedom is approached depends in important ways on whether actors belong to a national or transnational legal field, on the stakes in their respective organisational fields, and the value that is attributed in these fields to human rights. The second type of interrelationship concerns interdependence between legal fields and the field of state power, which can be specified as follows: legal professionals depend on the state, which can withhold important career paths (Kawar 2011). International courts also depend on states since their legitimacy rests upon governmental support. Conversely, states depend on the corpus of legal specialists as a source of legitimacy. Law is essential to the exercise of state power because it has become one of its main sources of legitimacy. This confers a particular power on judicial professionals, allowing them to push for legal and social change. Consequently, the relationship between lawyers and the state is an ambiguous one. Lawyers appear, on the one hand, as ‘guardians of tradition and order, and on the other as advocates of post-revolutionary liberalism’ (Madsen and Dezalay 2002: 196–97). 11 Bourdieu has developed the idea of ‘bank of symbolic capital’ by referring to the capacity of the state to credit specific sets of capital with recognition and value (Bourdieu 2014: 122).

38  Fielding Religious Freedom Advocacy For transnational legal fields, the connection to the state field of power (and national legal fields) amounts to a specific type of embeddedness. Regarding the human rights field as a specific type of legal field, we can clearly see a tension with fields of different orders, specifically the field of state power. The first ECtHR judges were chosen for their diplomatic, rather than their international judicial, capital (Madsen 2007), transnational legal elites often have their national roots and national interests (Kauppi and Madsen 2013; Bigo 2011), while governments can threaten to withdraw from international organisations (Madsen 2016; Voeten 2020). In parallel, however, an independent corpus of human rights professionals has developed (Madsen 2007), and the rising symbolic power of human rights has given more power to international courts. Politicians must show compliance with their adherence to human rights values; and even if this is only symbolic it can produce meaningful consequences. In subsequent chapters, we will see that the religious freedom field as a sub-field of the broader human rights field displays, since its formation, a strong tension between, on the one hand a statedependent pole and, on the other hand, a state-independent pole supported by actors who seek to push for a greater autonomy and power of judges and unified European legal standards. This entanglement points to the interrelationship between political and legal opportunity structures. The legally mobilised navigate this tension between the legal field and the field of state power. As the political value of human rights capital increases, international legal opportunity structures can be expected to become more attractive for individual and collective action. Thus, the ‘openness’ of legal opportunities depends not only on institutional features (access rules, etc), but on the political value of human rights litigation. At the same time, as the power of courts such as the ECtHR grows, we should expect powerful incumbents to take advantage of this power themselves. Fligstein and McAdam alert us to the fact that ‘incumbents … resist significant change in the field and to bring their own considerable resources – existential as well as political and material – to bear on the outcome of any struggle for control over a given strategic action field (2012: 106). Human rights can then become ‘weapons’ not only of vulnerable minorities, but also of incumbent stakeholders (Bob 2012, 2019). This further underlines that it is not helpful to oppose the ‘realist’ and the ‘constructivist’ views of courts (Koenig 2015). Instead, we need to ask how the tension between incumbents and challengers influences the dynamics of legal mobilisation. To summarise the foregoing, the field-theoretical approach is useful for addressing the three conceptual limitations identified in the socio-legal mobilisation literature inspired by the social movement literature. As I have shown, this approach allows us, first, to integrate strategic capacities and relations of power in one approach, by considering how the legally mobilised accommodate, challenge, or adjust to the positions of more powerful actors in the field. Second, it thereby necessarily shifts our perspective from one specific

A Shift of Perspective: Mobilisation in (Transnational) Legal Fields  39 type of actor to the multiplicity of actors involved in the field. This enables us to see how oppositions and competition between these actors, and their diverging positions of power, play out in legal mobilisation. Third, the fieldtheoretical perspective allows us to avoid the risk of over-determinism and under-determinism in the use of concepts such as LOS and legal framing. It is not only the power relations in the legal field, but the balance that actors must strike between different fields, that mediate the perception and use of opportunities and legal frames. Delineating the Religious Freedom Field My focus in this book is on the religious freedom field, that is, the field in which actors contend and compete over (the authority to define) the meaning of the right to freedom of religion. I am interested in the power relations specific to this field and the legal mobilisation strategies that religious and secular religious freedom advocates employ in response to these relations. As should have become clear from the foregoing explanations, the religious freedom field and, more generally, the human rights field, are conceptually speaking variants of what I have termed the ‘legal field’. That is, the dynamics specific to these fields can be understood with the same analytical tools as any other social field. Their specificities do not, therefore, lie in the analytical tools needed to comprehend them, but in the empirical manifestation of the power relations between and struggles over authority by different actors. For example, the transnational character of the religious freedom field makes its entanglement with lower order fields particularly important. As I have said, actors engaging in Strasbourg have different national and/or transnational types of capital and priorities, and power relations within the field are marked by the tension between the state dependence of human rights institutions and the growing autonomy of human rights professionals and activists. I will start in the following chapter with an account of the historical formation of the field, in which this latter tension becomes immediately apparent. However, before specifying how to carry out the field-theoretical analysis, one additional question needs to be addressed: how do we know that the religious freedom field is indeed a field? In this respect, the following proposition by Fligstein and McAdam is useful: If two or more organizations or groups are attempting to attain ends that are sufficiently similar that they are compelled to take one another’s actions into account in their behavior, then we can say that we are observing an attempt at field formation (2012: 167).

It is relatively easy to see how this applies in the case of religious freedom. NGOs specialised in religious freedom, religious community activists, generalist

40  Fielding Religious Freedom Advocacy NGOs and governments all have at least partially converging ideas of what ­religious freedom entails. Moreover, when dealing with questions and conflicts on this topic, they at least indirectly consider other viewpoints and stakeholders. To the extent that there is a degree of competition and conflict between the different stakeholders over the meaning of religious freedom, involving actors who observe others’ successes and ideas, we can speak of a field. Things become slightly more complicated when we follow Bourdieu, who emphasises the ‘relative autonomy’ as a key parameter for defining fields. We can easily see how, for instance, legal professionals follow an internally shared logic of career making, or how NGOs in the human rights sector organise their work according to criteria of project management and fundraising. These ‘logics of practice’ make sense for the internal universe of their specific field but no longer organise action outside the field. Can we define a distinct logic of practice followed by actors competing over religious freedom? The empirical research presented in this book does not reveal the existence of a strong unifying logic of practice in the sense of professional standards in the religious freedom field. There are, of course, NGOs and experts (especially those located in the United States) whose primary organisational or professional mission is to defend ­religious freedom across the globe. However, many other actors in the field work on religious freedom only as part of a broader human rights mission or as a part of their religious advocacy. Their ‘logic of practice’ is therefore infused with their respective commitments in these other fields, such as the larger human rights field, the national political field, the NGO field, or the religious fields to which some of the actors belong. Nevertheless, I believe it remains useful to distinguish the religious freedom field as a sub-field from the broader human rights field. This is because there are power relations that are unique to this field and that are distinct from other legal fields, such as that of gender or racial equality. Moreover, there are taken-for-granted ideas of religion and its protection that are specifically relevant to this field. However, we must remain alert to interfering logics, whether those of the larger human rights field or specific organisational realms. The autonomy of the religious freedom field remains ‘relative’ and thus interconnected to the dynamics in other fields. METHODS AND DATA

With these preliminary points clarified, the question is how to concretely carry out the field analysis. Socio-legal scholars who have used a field-theoretical approach have generally started with identifying important institutions, organisations and individuals and traced their career patterns and relations to national and transnational legal centres of power (Dezalay and Garth 1996; Madsen 2007). Legal cases have complemented their studies in an illustrative and deductive manner to show how the broader field relations unfold. By contrast, in the present work, legal cases have, methodologically speaking, a more

Methods and Data  41 inductive place. They constitute the starting point of the analysis from where field dynamics are explored. The bulk of the present thesis focuses on a selection of legal cases and the actors involved in their litigation. Yet, although serving as entrance points to the field, lawsuits do not define the boundaries of my enquiry. Rather, they serve as windows that open onto the organisational ­trajectory of actors, their alliances and the relations of power within which they act. Case Selection This brings me to the question of case selection. Several sources helped me to identify the legal cases that I explore in the empirical chapters. The HUREL dataset provides an overview of all religious freedom cases that have reached the Court since the enactment of the ECHR up until 2019.12 Overall it comprises more than 1,500 cases that involve an Article 9 (Freedom of religion) claim and/or concern a religious conflict negotiated through the lens of freedom of speech, anti-discrimination, freedom of assembly, or other rights areas. While many only evoke Article 9 without giving any more precise information, more than 1,000 cases give more precise information about the religious conflict at stake. Only these cases were included in the research for this book. HUREL includes information on basic case parameters, but also about the concrete object of the religious conflict at stake, the religious affiliation of the applicants, third-party interventions, and the case outcome (overall and per Article). The dataset is unique for it does not only include judgments rendered by the ECtHR since 1959, but applications that have been found inadmissible for a consideration of the merits.13 The dataset is thus instructive on the actual extent to which the Court has been used by individual and collective litigants. I have used the dataset as a first approach for the case selection. Identifying issues repeatedly brought to the Court as well as third-party interventions, I oriented my research towards those cases with high political salience. HUREL contains 62 cases with third-party interventions (59 if only including cases with a clear religious claim). Many of these have happened in cases filed by applicants with a Christian background. Therefore, orienting my research at third-party interventions alone would not have given access to the diversity of religious stakeholders and communities active in the field. I have thus in addition focused on identifying prominent issue areas per religious group and I relied on legal

12 Matthias Koenig and Lisa Harms (2022) European Court of Human Rights Religious Litigation Dataset (1959–2019) (HUREL) Version 1.0. https://doi.org/10.7910/DVN/VAWUM6. Cases were identified via the Court’s online-archive Hudoc. 13 Other datasets cover all rights areas, but do not include inadmissibility decisions. See in ­particular, R Cichowski and E Chrun (2017) European Court of Human Rights Database (ECHRdb) Version 1.0 Release 2017, available at: depts.washington.edu/echrdb/.

42  Fielding Religious Freedom Advocacy and sociological literature to identify cases, which have sparked high political and academic interest in order to ensure focus on core issues of the field. While I am confident about having selected cases that allow the capture of the polyphony of strategies and dynamics in the field, there are obvious limitations. Especially, I cannot claim exhaustivity, as not all actors (eg. humanists) could be included in this study. I study the cases in chronological order in order to capture the main shifts and developments in the religious freedom field over time. I start with a focus on two cases respectively brought by a Jehovah’s Witness applicant and Evangelical litigators, claiming the unlawful prohibition of proselytism. Kokkinakis v Greece and Larissis and Others v Greece were early cases that followed from religious advocacy and community networks, though not yet involving third parties (not allowed at this stage). I then shift the attention to cases filed by Sikh applicants against France’s prohibition of religious symbols in the public space: Ranjit Singh v France, Jasvir Singh v France and Mann Singh v France. They illustrate the pluralisation of the religious freedom field where religious actors with a migration background became more active. Involving a well-organised and outspoken religious support network, the Sikh cases are different from a range of Muslim applications against the same law which did not involve any faith-based support structure. Yet, the cases also indirectly speak of the dynamics related to the highly politicised Muslim headscarf cases, because they had to accommodate the latter’s preceding negative outcome. In the next chapter, I shift the focus onto the most outstanding religious freedom case that has been disputed at the ECtHR: Lautsi v Italy. The case concerned the disputed display of the Catholic crucifix in Italian schoolrooms and galvanised a rare moment of attention among activists and scholars alike. With Lautsi, I move the focus onto a case involving a majority religious belief – Catholicism in Italy – which triggered an impressive political mobilisation among different religious denominations. It also constitutes a trigger for intensified third-party mobilisation, which I explore briefly in chapter four. Finally, in the last empirical chapter, I examine three different sets of cases, with a central focus on Bayatyan v Armenia, Ladele and McFarlane v United Kingdom and S.A.S. v France. The cases respectively concern the conscientious objection to military service by Jehovah’s Witnesses, the conscientious objection to gay marriage by Christian believers, and the prohibition of the burqa in the public sphere. Each of these cases again involves broad advocacy networks and intervene at a stage where the field has entered a more settled phase. Zooming in on such cases must necessarily come with attention to broader developments in the field, which was possible through in-depth interviews with involved actors, their public and media interventions, as well as the HUREL dataset.

Methods and Data  43 Tracing Field Dynamics A field analysis consists in following the agents, articulating their relations and positions, while at the same time moving beyond their subjective views. As Madsen and Dezalay write: Basically, the researcher has to follow the agents in order to observe what is the alleged core of the game, but at the very same time he or she must also examine and reframe the issues at play by, for example, relating them to the agents’ multiple national and international interests (2013: 124).

Similarly, in his writings on EU lawyers, Vauchez has underlined that [m]ethodologically speaking, this academic endeavour requires ‘following the legal actors’ themselves as they engage in their legal and extra-legal undertakings and as they connect with other EU-implicated undertakings outside the legal realm (2013: 2).

As I enter the field through the selected cases, I seek to follow the preceding advice through a threefold research strategy: first, 38 expert interviews conducted with actors involved in the selected cases allow us to understand the rationales and social dynamics underlying various strategies. This is the most important pillar of my work. Second, the comparison of these various actors helps to prevent being ‘consumed’ by the subjective view of one group of actors, but to better understand how various positionalities play out in legal strategising. Finally, third, the HUREL dataset allows us to keep in mind broader litigious developments in which the case selection is embedded. The quantiative view remains, however, only descriptive, while the core of the analysis relies on the qualitative inquiry. I briefly explain each of the foregoing. To start, the qualitative interviews let me trace the trajectories of a geographically dispersed, religiously diverse and professionally complex set of actors. Fokas (2016: 544) has rightly noted in her research on grasstops mobilisation at the ECtHR and the CJEU that ‘intuitively one might expect Brussels, Strasbourg, and Luxembourg to be the centrifugal spaces of grasstops mobilizations’. But, so she adds, ‘an intricate network which stretches at least as far east as Moscow and as far west as San Francisco is in place, with shifting strands connecting cause lawyers with potential claimants and NGOs with particular governments across countries and continents’. Primarily between 2015 and 2018, I interviewed a total of 38 actors, including NGO representatives, religious representatives, lawyers and barristers, applicants, and members of the ECtHR, from Strasbourg, Paris, London, Cambridge, Brussels, Ghent, Vienna, Athens and New York.14 More specifically, I interviewed lawyers who have represented or were otherwise involved in 14 Seven of these interviews served mostly as background information but were not directly relied upon for the analysis in this book.

44  Fielding Religious Freedom Advocacy Jehovah’s Witnesses cases at the ECtHR, legal counsels of the Evangelical NGO Alliance Defending Freedom (ADF), the director of the Christian conservative European Centre for Law and Justice (ECLJ), advocacy professionals involved with the Open Society Foundations (OSF) Minority Rights Group (MRG), the French Collectif contre l’Islamophobie en France (CCIF) and the British Islamic Human Rights Commission (IHRC), a scholar involved in the Human Rights Centre at Ghent University and a representative of the Sikh advocacy organisation UNITED SIKHS. To these must be added various lawyers supporting the different cases selected as well as various religious individuals involved in legal disputes, one judge and two experts from the ECtHR, and finally various experts of ECtHR religious freedom developments. The semi-structured interviews contained three sets of questions but left space to discuss topics and thoughts brought up by the interviewees during our conversations. First, we discussed the organisational/biographical trajectory of the actor. Second, we talked about the strategic goals and choices, zooming also in on very specific cases and technical details. Third, I generally opened the possibility of talking from a more general perspective about the views of the respective informants on the religious freedom politics of the ECtHR and thereby attempted to give room for the interpretative knowledge of my informants. I should mention here that one generally avoided topic was that of money. I was able to reconstruct a general sense of material richness and scarceness on the part of the different organisations by document analysis and through indirect information (eg, who could hire lawyers, who relied on pro-bono help), but no precise information on the budgetary situation was made available. I aimed at avoiding an interview situation in which interviewees simply relate what can be read in the legal documents of the cases. Instead, I wanted to connect to the more subjective dimension of the expert knowledge and experience that would allow uncovering the deeper rationales and conditions of strategising (Bogner, Littig and Menz 2009). This required, as much as possible, to be at ‘eye level’ in the interview by becoming a ‘quasi-expert’ myself (Pfadenhauer 2009). Being well informed about the actors’ work, the Court’s case law and the legal arguments was necessary to gain the confidence and interest of the interviewees. It helped to move beyond the legal discourse because it enabled me to ask very precise questions such as why specific arguments evolved in a certain direction or why some cases figured on the actor’s agenda and not others. The second methodological premise, namely the comparative approach, also helped in achieving this. Small-N comparison across groups and time did not ensure representativity but allowed to better situate the expert as the carrier of a constructed social reality and to overcome the ‘naïve image of the expert as a source of objective information’ (Bogner, Littig, and Menz 2009: 5). And as Madsen and Dezalay (2013: 125) have suggested ‘[T]he described mobility of the researcher within the field is absolutely key to conducting an analysis that is formed both by the oppositions of positions and by their subjective links,

Methods and Data  45 such as alliances and networks’. Crucially, only the comparative contrast enables the researcher to question categories often taken for granted by the actors themselves. The third methodological aspect, the use of the quantitative large-N HUREL dataset, helped to maintain an overall view of the controversies developing in the field. Although explaining judicial outcomes is not the purpose of the present work, assessing litigation and success rates is useful in order to gain a sense of the power structure within the field. Who is more successful than others and how did litigation evolve over time? Who is frequently represented in third-party interventions and who is not? Like the comparative perspective, these broader observations within the field facilitate understanding the relational setting in which legal strategies are conceived. 

In this chapter, I spelled out the conceptual and methodological framework of my study. I argued that field-theoretical instruments will bring the social relations on which legal mobilisation is predicated to the fore. In so doing, they enable us to see how power relations, ideological oppositions, and diverse organisational contexts shape trajectories of mobilisation at the ECtHR and – by extension – the boundaries within which the right to freedom of religion is negotiated. As such, this conceptual approach proposes an innovative frame which integrates realist and constructivist perspectives on courts, bringing the structural concept of LOS and the actor-centred concept of legal framing into flexible articulation. Moreover, it advocates for decentring the analytical look at the diversity of legal actors instead of zooming in on one specific set of like-minded activists. At the same time, this approach also allows us to add to the growing scholarship, which has proposed applying the field-theoretical approach to the legal phenomenon (Dezalay and Garth 2001; 2006; Kawar 2011; Madsen 2007; Vauchez and de Witte 2013). Yet, while this scholarship has focused primarily – along Bourdieusian lines of thinking – on the dynamics of legal professionalisation and the competition between different types of legal professionals, I have proposed a more expansive view of the field, which also includes those actors whose main career or professional specialisation is not in the field of interest, but who might occasionally enter the field. Moreover, by drawing on both Bourdieusian and more recent social movement inspired tools of analysis, I have suggested keeping greater flexibility as to the strategic capacities and flexibility of legal actors. Methodologically, my conceptual approach requires following a great variety of actors in the field. Different from most socio-legal scholarship, I will not centre on one specific movement and its unification and activism through law but trace the legal trajectories of a broad range of differently positioned

46  Fielding Religious Freedom Advocacy actors. Comparing the strategies of differently positioned actors will help to spell out the rationales that guide the divergence of these trajectories. Overall, the framework spelled out here allows us to dive into the social dynamics and constructions inhabiting the right to freedom of religion and which make it a contentious space rather than a well-defined and contoured category. Not the ‘how much’ of religious freedom, but the inherent social contention and ambivalence will be spotlighted through my approach. The following chapters will put empirical flesh on this claim.

2 Enacting the Liberal Script: Religious Transatlantic Networks and an Emerging Legal Field

B

y the end of the 1980s, it did not seem self-evident that the European Court of Human Rights (ECtHR) would emerge as a strong force in defence of individualist religious freedoms. Indeed, three decades into its enactment, the ninth Article of the European Convention on Human Rights (ECHR), ie the right to freedom of religion, seemed an orphaned provision. The highest European court had systematically dismissed cases involving matters of faith that had been brought to its attention. With the European judicial arm refraining from interfering with the states’ regulation of religion, the latter remained constrained by the boundaries of national sovereignty. However, things started to change when the case of Kokkinakis v Greece was brought to court in the early 1990s. The main actor in the case, Minos Kokkinakkis, a Greek Jehovah’s Witness who had already been involved in more than 60 trials for proselytism in Greece became the emblematic figure who breathed life into the provision presumed dead. His conviction for attempting to convert the wife of a Greek Orthodox priest would go down in the Court’s history. He was an obstinate litigator. Going against his advocate’s advice to adopt a conciliatory attitude to the Greek judiciary, Kokkinakis proudly pronounced in front of the audience: ‘Ladies and gentlemen, I divorced the Orthodox church fifty years ago’ (Goldhaber 2007: 70). Unsurprisingly, he lost his case in the national courts. Yet, to his lawyer’s disbelief, Kokkinakis continued proclaiming with unbreakable faith, ‘Jehovah will win’.1 His optimism proved right, since he won his case before the ECtHR. On 25 May 1993, the European judges declared that he had not crossed the line towards ‘improper proselytism’ and that his conviction therefore constituted a violation of the Convention.2 The case turned out to be trail-blazing. To this day, Kokkinakis v Greece is considered the foundation

1 Interview 30, lawyer involved in Kokkinakis v Greece, Athens, 4 May 2018. Michael Goldhaber (2007) mentioned the same anecdote. 2 Kokkinakis v Greece App no 14307/88 (ECtHR, 25 May 1993). Although the Court found a violation of the applicant’s right to freedom of religion, it did not consider the Greek anti-proselytism law in itself as contrary to this right.

48  Enacting the Liberal Script of the ECtHR’s jurisprudence in matters of religious freedom and, more specifically, of the pluralism principle therein pronounced.3 For the very first time since its inception, the Court had dared to interfere with national politics regarding the regulation of religion. While Kokkinakis is quasi-systematically invoked by studies interested in religious freedom at the ECtHR, one of the most intuitive questions following from this legal episode has remained open: why then and why there? Why did this case in particular turn out to be so central? More than simply explaining Kokkinakis’ success, this question aims at detecting the dynamics through which the ECtHR became an appealing forum for this applicant and his supporters. After all, Kokkinakis was only the first of a host of Jehovah’s Witnesses to bring the ECtHR to finding violations of the right to religious freedom, mainly against Greece in cases involving convictions for proselytism, claims for the right to object to military service, and claims against the prohibition of places of worship. Moreover, Evangelicals followed upon their success in similar cases, and the Court soon started finding violations regarding the legal status and autonomy of Orthodox and Muslim communities in newly emerging democracies.4 This chapter examines the factors that fuelled early strategic religious freedom litigation in Strasbourg. In so doing, I argue that this activism was enabled and shaped by two concomitant conditions. The first is commonly confirmed by research on socio-legal mobilisation: the ECtHR appeared as an opportunity structure for religious minorities and secular human rights professionals. This legal opportunity structure (LOS) was not only predicated on the structural opening the Court was undergoing in the 1990s (eg, the institutional possibility to directly apply to the Court) (Andersen 2005; Cichowski 2011, 2016), but also on the growing autonomy from its Member States and the political valorisation of human rights capital (Alter, Helfer and Madsen 2016; Madsen 2007). As field-theoretical accounts of legal dynamics have demonstrated, such developments made the ECtHR an attractive ‘bank of symbolic capital’ for activists and legal professionals in quests of symbolic capital (Dezalay and Garth 2001; 2006; Madsen 2007). Second, transatlantic networks of community and cause lawyers played an important role in activating the emerging LOS. In line with socio-legal scholarship underlining the importance of organisational fields for the activation of legal opportunity structures

3 In Kokkinakis v Greece (§31), the ECtHR underlines that the pluralism principle ‘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, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it’. 4 Hasan and Chaush v Bulgaria App no 30985/96 (ECtHR, 26 October 2000); Metropolitan Church of Bessarabia and Others v Moldova App no 45701/99 (ECtHR, 13 December 2001); Serif v Greece App no 38178/97 (ECtHR, 14 December 1999).

Between National Sovereignty and Transnational Autonomy  49 (Edelman, Leachman and McAdam 2010; Vanhala 2011), I show that a ‘communal’ legal habitus, formed in wider transatlantic religious fields, facilitated the perception of the opportunity structure at the Court. As such, litigation also served as symbolic credit for community and cultural agendas extending beyond the European continent. As they expanded their mobilisation to Europe, a mutually empowering – or ‘partnering’ – relationship (Richardson 2017) was established between transnational religious movements and the Strasbourg Court. It is at this moment that the Court started to become the gravitational centre of a field spanning between the long uncontested discretionary power of states, on the one hand, and the increasing power of actors pushing for stateindependent interpretations of religious freedom, on the other. This tension was to become the structuring dynamic of the struggle over the authority to interpret religious freedom in subsequent decades. By zooming in on the framings invoked in early (successful) cases in Strasbourg, we gain a first understanding of the subjectivist and pluralist interpretation emphasised by actors at the state-independent ‘pole’ of this field. Attesting to the doxic force of this interpretation, we will see in the following chapters how other religious actors made considerable efforts to ‘prove’ their fit with this interpretation. Others, to the contrary, have mounted resistance against it, either by fighting for states’ discretionary power or by pushing for competing universalist rights interpretations. The chapter begins with an examination of the transformation of the ECHR from an instrument that had been conceived primarily as a diplomatic endeavour by the Council of Europe to one with greater political independence and influence. This resulted in a new legal opportunity structure, which has increasingly been used by religious minorities since the 1990s. In the second part of the chapter, I turn to two of these minorities: Jehovah’s Witnesses and Evangelical actors. Both groups are characterised by their embeddedness in transatlantic religious fields, which shape their legal predisposition and use of litigation. In a third part, I analyse the universalist, subjectivist framing of religious freedom that these actors drew on and that reflects the emergence of a subjectivist, individualist doxa of religious freedom. FROM THE SHADOW OF NATIONAL SOVEREIGNTY TO THE FORMATION OF A TRANSNATIONAL LEGAL FIELD

The Convention, which was ready for signature on 4 November 1950, was the fruit of significant compromise. One of the main figures involved in its drafting, Paul-Henri Spaak, is reported to have introduced the signing ceremony with the following words: ‘It is not a very good Convention, but it is a lovely Palace’.5 5 Quoted from Fyfe (1964: 183–84). The same quote is used by Bates (2011: 29). Spaak was a member of the Belgian Socialist Party, a former Belgian Prime Minister and the first President of the Consultative Assembly of the Council of Europe.

50  Enacting the Liberal Script On the one hand, his statement reflects the disappointment of the drafters, given that initial idealist ambitions had to be largely abandoned in the negotiation process. On the other hand, in retrospect, the statement appears to have anticipated the ample space that the Convention would offer lawyers and legal activists to build an unprecedented legal architecture with judicial review powers over states: institutional reforms, an emerging corps of human rights professionals, and changes in the political balance at the Council of Europe progressively gave the Court growing authority over its Member States (Madsen 2007). In this context, growing rates of religious freedom litigation against newly constituted democracies contributed to the mutual empowerment of minority groups and the Court. While the former were given a new opportunity to voice their grievances, the growing inflow of cases allowed the Court to expand its scope of influence. I will begin this section by examining the state monopoly reflected in both the Convention and early religious freedom cases. I then shift the focus to the gradual emancipation of the Court and the rise in religious freedom litigation. In so doing, this section also introduces the reader to the main institutional workings of the ECtHR. The European Convention on Human Rights The activism of the European Movement, a loose association of politicians whose aim was to build a politically united Europe, was critical to the elaboration of the European Convention on Human Rights. The Movement, dedicated to developing solutions for Europe’s political and economic crisis, included Winston Churchill, David Maxwell-Fyfe, Pierre-Henri Teitgen, Fernand Dehousse, Paul-Henri Spaak and Alcide de Gasperi.6 At their meeting in The Hague in 1948, the Message to Europeans was released. It stated: Human dignity is Europe’s finest achievement, freedom her true strength. Both are at stake in our struggle. The union of our continent is now needed not only for the salvation of the liberties we have won, but also for the extension of their benefits to all mankind.7

In July 1949, the European Movement came up with a human rights convention, which contained many of the elements of the final draft that would be agreed upon two years later, including a statute for the envisioned ECtHR. The project thus was an ambitious one from the outset, including mandatory adherence to a court in charge of guarding a convention with a broad range of rights. Yet, as Alter (2011: 397) has underlined, ‘[t]he dreams of the ECtHR’s legal architects were immediately tempered by state sovereign concerns’. The intention 6 For detailed accounts of the movement’s activities, see Bates (2010: 45–76); see also Simpson (2004: 604–05). Both authors have produced comprehensive accounts of the ECtHR’s history and the negotiation process of the ECHR. 7 Congress of Europe, ‘Message to Europeans’ (The Hague, 10 May 1948).

Between National Sovereignty and Transnational Autonomy  51 of the signatory governments was to send a political message to any new threat of totalitarianism, not to allow the Convention to undermine their sovereignty (Bates 2010; Simpson 2004). Andrew Moravcsik (2000: 219) has succinctly described the problem: ‘Why would any government, democratic or dictatorial, favor establishing an effective independent international authority, the sole purpose of which is to constrain its domestic sovereignty in such an unprecedentedly invasive and overdly nonmajoritarian manner?’ The United Kingdom in the first place, but also Scandinavian countries, the Netherlands, Greece and Turkey did not hide their reservations regarding the idea of a European Convention. The numerous points of controversy included the question of whether membership of the Council of Europe would make adherence to the Court mandatory, whether there would be a right to individual petition, and whether it would include a right to property and a right to education. In the end, it was not the proposition of an obligatory court, but the suggestion to make adherence optional that was accepted (Bates 2011: 27–29). Such was the reluctance on the part of the states that it was not even sure whether the minimum number of 10 signatures required to effectively establish the Court would be reached (ibid: 33). In August 1950, the Committee of Minsters agreed on an optional right to individual petition laid down in Article 25 of the Convention, which was to be ratified by 12 of the 15 initial signatory states (France, Greece and Turkey would sign it much later).8 The two rights in question could not be agreed upon in what Bates (2011: 23–24) described as ‘heated debates’ over the Convention draft. They were added in the First Protocol to the Convention, which was signed in 1952. None of the former communist countries ratified the Convention in 1950, mirroring Europe’s geopolitical divide. National political interests and ideas clearly dominated the early years of the Convention’s life. The Convention was signed in 1950 by Belgium, Denmark, France, Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, Norway, Sweden, Turkey and the United Kingdom.9 Given the reluctance of many European states, the outcome of the negotiations was a state-oriented architecture. The European Commission of Human Rights at its centre was subject to considerable political control. It was a ‘quasijudicial, quasi-political institution’ (Bates 2011: 35), charged with receiving and examining the applications submitted to the Court and issuing its opinion regarding the facts and merits of the cases. However, the ultimate guardian was the Committee of Ministers representing the Member States, which was not bound by the Commission’s recommendations and could decide the merits of a case by a two-thirds majority. Thus, power over the Convention rested de facto with the states. The Court had to be instructed by the Commission or a Member State to render a judgment, meaning that it had no influence on the cases it

8 These controversies are documented in detail in the Travaux Préparatoires published by the Council of Europe. 9 Bates has noted that the Saar, integrated into Germany by the time the Court started operating, was also among the first signatories (2011: 29).

52  Enacting the Liberal Script heard. Its judgments were to be transmitted to the Committee of Ministers, which would supervise their execution. The ambition of the states involved in the negotiations to protect their sovereignty also influenced the discussion of the religious freedom provision that would become Article 9 ECHR. As I will show below, some of the states involved in the drafting process had serious concerns about the possibility of future interference of the Court with their domestic religious affairs. In the end, as we will see, the amendments proposed by these states were not accepted. However, as Evans (1997: 263) has emphasised, ‘the preparatory work tends only to highlight the problems surrounding the texts, rather than resolve them’. Nevertheless, the drafting process remains revealing for the early life of Article 9. As Evans has highlighted, ‘given that the freedom of religion has received comparatively little attention [until the end of the 1990s] from the Strasbourg organs, the drafting history still has a relevance to its interpretation and application’ (ibid: 263). Moreover, the conflicts during the preparatory works illustrate well the political tensions that structured the emergence of the religious freedom field. It is from this perspective that I propose to take a brief look at the negotiation process. Early drafts of the Convention simply stated that freedom of thought, conscience and religion should be applied in accordance with Article 18 of the Universal Declaration of Human Rights (UDHR), which had been signed two years earlier.10 This proposition was passed on to the Committee of Ministers, which charged a Committee of Experts with the task to discuss the draft. Several amendments were submitted by the participating states. The amendments proposed by Turkey and Sweden, in particular, sparked controversy in the negotiations.11 These countries feared that their state-religion relations would be undermined and sought to prevent the Convention from altering or impeding the way they regulated their respective religious majorities and minorities. Turkey proposed amending the Article so as to allow states to maintain ‘measures required for ensuring security and public order, as well as those restrictions which, for reasons of history, it has been considered necessary, by the States, signatories of this Convention, to place on the exercise of this right’.12 The Swedish delegation expressed similar concerns and suggested adding a limitation provision along these lines: ‘This provision does not affect existing national laws as regard rules relating to religious practice and membership of certain faiths’.13

10 Article 18 reads as follows: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’. 11 For a detailed examination of the negotiation process of Article 9, see (M Evans 1997: 262–80; C Evans 2001). Besides these secondary sources, I use here the excerpt from the Travaux Préparatoires: Council of Europe (1956), Travaux Préparatoires, TP DH56(14) 16 August 1956. 12 Travaux Préparatoires (n11), 6. 13 ibid, 6.

Between National Sovereignty and Transnational Autonomy  53 A subcommittee examining these amendments explained that they ‘were prompted by the desire to retain certain restrictions as laid down under existing legislation which it would be difficult not to retain for the time being’.14 Turkey and Sweden finally joined their propositions in a common amendment to the religious freedom provision, which was included in a preliminary draft as Article 7(b) and reads as follows: ‘Nor may these provisions be considered as derogating from already existing national rules as regards religious institutions and foundations or membership of certain confessions’.15 The Dutch and British representatives expressed their reservations and considered that such additional restrictions should not be imposed by two states on the majority of signatories. The Dutch representative noted that: The maintenance of this paragraph might be interpreted as meaning the collective responsibility of the signatories for exceptional situations which relate, in fact, to only two countries, Turkey and Sweden. While understanding the reasons which lead Turkey to impose restrictions on certain religious activities in the interests of the cultural recovery of the country, the Netherlands representative stated that, for his part, he could not associate himself with the general reservations contained in paragraph (b) of Article 7.16

In response, the Turkish delegate explained the country’s concern about political instabilities related to its religious landscape, pointing out that in the course of [their] history a number of attempts at reform and modernisation have been frustrated by stubborn resistance on the part of certain persons or groups of persons who wished to keep the population in ignorance for their own ends.

It therefore was of crucial importance to abolish the ‘Moslem orders and their archaic institutions’.17 The Swedish delegate underlined that the place occupied in the Swedish State by the Lutheran faith had its origin in the distant past, and that this did not impede the right, freely recognised in that country, to adopt another faith, provided that the person concerned joined some other religious community. If the great homogeneity of the Swedish population in the matter of religion appeared to render the inconveniences of this situation almost negligible, it could not be overlooked that there were considerable obstacles, both constitutional and others, which would oppose any attempt to modify it.18

As a result of these debates, a draft version of what would become Article 9(2) included a clause inspired by the Swedish and Turkish propositions. However, because this clause could not command agreement, a more general clause was introduced that allowed Member States to express reservations regarding specific articles. This clause, however, was only used by Norway until 1956



14 ibid,

7. 8. 16 ibid, 12. 17 ibid, 14. 18 ibid, 13–14. 15 ibid,

54  Enacting the Liberal Script (M Evans 1997: 271). More importantly, the version of Article 9 ECHR that was adopted in the end did not include the amendments proposed by Turkey and Sweden.19 Thus, while illustrating the foundational tension underlying the right to freedom of religion, the ultimately adopted text also preserved a degree of leverage, which the Court would start using by the end of the 1990s. The final version of Article 9 reads as follows: 1.

2.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one’s 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 freedoms of others.

The first paragraph protects both the personal beliefs and active manifestation of religion in the private and the public spheres. The second paragraph limits visible, actively expressed beliefs, while the passive right to hold certain beliefs is unrestricted (M Evans 1997: 284). Thus, without diving into the legal complexities of this architecture (see ibid for such an endavour), it can be stated at a general level that while the inner beliefs and convictions legally speaking enjoy unlimited freedom, the external expression of those beliefs, can be limited in the name of public order, health and morals. Besides concerns about national sovereignty, the Convention and the right to freedom of religion was also (indirectly) influenced by Christian ideas. For example, it has been argued that the distinction between the private and the public in Article 9 reflects a Protestant heritage. For this reason, critics have said that the right to freedom of religion is intrinsically biased when addressing claims from non-Western religious minorities (Danchin 2011; Gülalp 2010; Moyn 2015). It should be added that the Convention was initially meant not only to protect against future totalitarian threats, but to secure the political influence of Christian conservative parties. In this respect, the historian Duranti (2017: 3) has emphasised that the ECHR was intended to help conservatives secure a ‘Christian vision of the European legal order, not a liberal cosmopolitan one’. He argues that Christian conservatives were driven both by anti-communism and by anti-secularism in their embrace of the European unity movement. They believed that left-wing majorities’ opposition to the fundamental freedoms of property owners and ecclesiastical schools could be overcome by establishing a supranational authority infused with Christian conservative values.20 19 C Evans (2001: 44) has noted that the preparatory works allow relatively little insights into the controversies unfolding during the drafting process, but she notes that the argued that the amendment was inappropriate, and that the general limitation clause allowed Sweden to address concerns of limiting religious freedom. 20 Bates (2011: 23–26) has also argued that these two provisions are the most controversial. Yet, he has not explored the potential religious and conservative dimensions to them.

Between National Sovereignty and Transnational Autonomy  55 The religious freedom conflicts fought in Strasbourg between the establishment of the Court in 1959 and its major institutional reform in the 1990s illustrate the influence of Member States and Christian majorities. First, the politically dependent architecture hardly provided a legal opportunity structure for religious claims. This is illustrated by the scarcity of cases in the first decades of the Court (Figure 1). Figure 1  Cases involving a religious claim filed at the ECtHR between 1953 and 2019 60 50 40 30 20 10

1954 1959 1961 1963 1965 1968 1970 1972 1974 1976 1978 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011 2013 2015 2017 2019

0

Source: HUREL, graph first published by Harms (2022). Note: N=1054. The graph shows the number of cases registered per year. While the Court’s work started officially in 1959, some cases were already filed prior to that year. One case may include several applications which have been joined by the Court. These joint cases are taken as the unit of analysis (except when the Court reached different decisions in the individual cases joined together, in which case they have been counted separately). The following cases have been excluded from the dataset for the analysis: those that invoke Article 9 but do not give any further information about the precise religious freedom dimension of their claims. Moreover, claims to asylum invoking Article 9 have also been excluded from the analysis because they pertain to religious conflicts in countries of origin rather than in countries covered by the ECtHR.

Second, not only was the Court hardly ever addressed by religious individuals or organisations, but it also quickly made clear that it was not ready to restrict the sovereignty of its Member States in religious affairs. Of the few cases (when compared with later decades) that reached the Court, none were successful, and – more so – the vast majority were declared inadmissible. That the interests of states took priority is visible, for example, in the fact that the Court would at times not even address claims under Article 9. The very first judgment invoking the free exercise of religion concerned a claim brought by Albert Grandrath, a Jehovah’s Witness, who sought exemption from both military and civilian service in Germany.21 The claim under Article 9 was assessed on the basis of Article 4, which forbids forced labour except for military service, and

21 Grandrath

v Germany App no 2299/64 (ECtHR, 12 December 1966).

56  Enacting the Liberal Script thus was a clear expression of the political context of the time. Moreover, in a case against Sweden’s church tax law, the Court rejected the Commission’s finding of a violation of Article 9. While the Commission considered the obligation of a non-Swedish resident working in Sweden to pay the church tax a violation of the right to freedom of religion, the Court ruled that ‘it finds it more natural to examine the case under Article 14 of the Convention taken together with Article 1 of Protocol No 1 (art 14+P1-1), which concerns the peaceful enjoyment of possessions’.22 Moreover, the so-called ‘margin of appreciation’ doctrine played a particularly important role in the ECtHR’s religious freedom jurisprudence early on. This doctrine grants a certain perimeter of discretion and flexibility to the Member States when interpreting the Convention rights. Legally speaking, this doctrine promotes the respect of diversity of legal and cultural contexts in the Court’s Member States. As we will see in subsequent chapters, this doctrine has become of utmost importance both to preseve majority privileges and to maintain restrictions vis-à-vis certain majorities. Finally, the influences discussed above may also explain the differential treatment accorded to religious majorities and minorities in early cases, especially in cases involving religious speech. For example, the claim by the Muslim applicant Abdul Hussain Choudhury that Salman Rushdie’s The Satanic Verses should be considered as an illegal blasphemous attack on Islam, was rejected by Strasbourg.23 On the contrary, the seizure of the film Das Liebeskonzil to protect the religious feelings of Christian believers was seen as falling within the margin of appreciation of the Austrian state.24 The ban on the distribution of the video work Visions of Ecstasy was considered legitimate on the same grounds.25 In other words, at the dawn of the 1990s, the Court seemed an unlikely venue for bringing about major changes regarding the place of religion in national societies. The Construction of an Autonomous Transnational Legal Field The governmental ‘tutelage’ under which the Court initially stood, changed substantially over the following decades. This change happened progressively but was the result of three concurrent developments: extensive institutional reforms, the enlargement of the Court’s jurisdiction to post-Soviet Europe, and the growing body of human rights professionals. The institutional reforms carried out during the 1990s proved important in renovating the ‘palace’. By 1990, the former Soviet countries started joining the Council of Europe and submissions to the Court were steeply increasing. 22 See also Koenig (2015) on this specific aspect. Darby v Sweden App no 11581/85 (ECtHR, 23 October 1990) § 28. 23 Choudhury v United Kingdom App no 17439/90 (ECtHR, 5 March 1991). 24 Otto-Preminger-Institut v Austria App no 13470/87 (ECtHR, 20 September 1994). 25 Wingrove v United Kingdom App no 17419/90 (ECtHR, 25 November 1996).

Between National Sovereignty and Transnational Autonomy  57 To keep pace with the enlarged role of the Court, the Member States initiated an important institutional reform process for the European judicial arm, which created the structural conditions for litigation to increase. First, with the adoption of Protocol 9 in 1990 (enactment in 1994), individuals, groups and organisations gained direct access to the Court and were finally allowed to submit cases without the Commission’s filtering role.26 The adoption of Protocol 11 in 1994 set a second major milestone for the development of the ECtHR.27 Motivated by ‘the urgent need to restructure the control machinery established by the Convention in order to maintain and improve the efficiency of its protection of human rights and fundamental freedoms, mainly in view of the increase in the number of applications and the growing membership of the Council of Europe’, this reform (enacted in 1998) substantially expanded the powers of the Court.28 From then on, the Court would ‘function on a permanent basis’ (Article 19). Most importantly, the reform made individual application mandatory and further enlarged the access of NGOs to the Convention system.29 In fact, the Protocol states that the ‘Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties’.30 With direct access being guaranteed, the Court ‘became a de facto review body’ for national court rulings pertaining to human rights (Alter 2011: 402). Moreover, third-party access to the Court became an integral part of the Convention.31 As I will show later, third-party interventions (or amicus curiae) have become common practice among Christian groups in particular. Such interventions allow third parties (individual experts, NGOs, states) other than the applicant (or the state against which the application is filed) to take part in the proceedings by providing information and legal analysis. With all of these changes, the structural conditions for strategic litigation were set. The greatly increasing level of case inflow clearly demonstrated the institutional opening thereby created.32

26 Protocol 9 to the Convention for the protection of human rights and fundamental freedoms, Rome, 6-XI.1990, enacted in 1994. The protocol amended Articles 44 and 48 of the Convention, extending the right to file cases to the Court to individuals, NGOs and groups of individuals. 27 Protocol 11 to the Convention for the protection of human rights and fundamental freedoms, restructuring the control machinery established thereby, Strasbourg, 11.V.1994. 28 ibid. 29 For a useful overview on the details regarding NGO application to the Court as well as the status of direct and indirect victim see (Cichowski 2011). 30 Protocol 11 to the Convention, 1994, Article 34. 31 Article 36(2) of the Convention reads as follows: ‘The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings’. 32 European Court of Human Rights (2022) Overview 1959–2021, available at: www.echr.coe. int/Documents/Overview_19592021_ENG.pdf. According to the Court’s figures, it issued 177 judgments in 1999 (695 in the year 2000). By contrast, 10 years later, in 2009, it issued 1,499 judgments. In 2021, it rendered a judgment in 1,105 cases.

58  Enacting the Liberal Script It is important to note, however, that litigation in Strasbourg became not only technically possible, but politically valuable. Perhaps most important in this respect, the institutional opening of the Court occurred at a time when global political changes provided a window of opportunity, or – as Alter (2011) has put it – a ‘critical juncture’ for the Court to expand its authority (see also: Moravcsik 2000). With the accession of post-Soviet Europe to the Convention, the diversity of the legal systems with which the Court had to deal increased considerably. Until then, it had had to speak to ‘like-minded’ Western European states that had conceived of the Convention as a diplomatic signal to the outside, the Soviet Bloc, and to the inside, post-Nazi Germany (Sadurski 2008). With enlargement, not only did this mission fall apart, but the Court was asked to decide cases with far-reaching implications for the national political and legal landscape (Madsen 2007; Sadurski 2008). As Sadurski (2008: 5) has underlined, ‘[t]his evolution from a fine-tuning role to that of the scruitnizer of failing legal and political systems brought to the agenda of the Court many cases of greater importance’, allowing the Court to strengthen its quasi-constitutional position and broaden its leeway for judicial activism. In addition, enlargement led to a different composition of the Court, with new judges from the former Soviet countries. These judges displayed a more activist bent, seeking to consolidate the nascent democracies in their home countries (Voeten 2007). It has also been suggested that the Court’s greater activism towards developing democracies allowed it to increase its authority by issuing judgments with potentially higher rates of compliance (Dothan 2011). In each of these scenarios, the political changes provided new opportunities for the Court to broaden its institutional power vis-a-vis its Member States. From a legal perspective, the interpretation of the Convention as a ‘living instrument’ and the apparition of so-called pilot-judgments indicated in fact the strengthened position of the Court (Sadurski 2008). However, even before the Iron Curtain fell and the Court started to gain authority, its transformation was under way. As early as the 1970s, the Court ‘began to step out of the cloudy smokescreen of postwar political strategies and jump on the bandwagon of [a] new legal practice of human rights’ (Madsen 2007: 152). It was helped by a new cohort of judges drawn from the emerging corps of human rights professionals. Their legal predispositions diverged from those of their predecessors, most of whom came from foreign ministries and were specialists in diplomatic affairs (Madsen 2007). By contrast, these new professionals made skilful use of the special kind of moral authority inherent in judicial power, which gave them a degree of leverage in their actions (Alter 2008). Committed to the legal development of human rights jurisprudence rather than a diplomatic use of the human rights framework, these judges started developing the jurisprudential doctrine of the Convention as a ‘living instrument’, ie, an evolving and up-to-date interpretation of the Convention in ‘present-day conditions’. In its efforts to offer ‘effective and practical’ protection of human rights, the Court expanded its activism in cases involving severe human rights violations (Madsen 2007: 153).

Between National Sovereignty and Transnational Autonomy  59 These developments occurred as a veritable global human rights field was taking shape, including the expansion of human rights movements, the development of important human rights NGOs, and the professionalisation of human rights lawyering more generally (Alter, Helfer and Madsen 2016; Dezalay and Garth 2006; Madsen 2007; Vauchez 2015). Finally, the establishment of national institutions supporting the implementation of the ECHR, the acceptance of the more far-reaching jurisprudence of the Court by national judges, and the multiplication of international courts around the world further credited the Court with legal and political legitimacy (Alter 2011). In other words, the ‘tutelage’ of the Member States had become far from absolute. It is clear that the possibility for individual litigants to access the Court greatly contributed to making the Court a much more appealing investment of time, energy and money. As Cichowski (2016) has emphasised this increase in judicial power encouraged litigious activism by individuals and groups and thus their capacities to make use of rights enforcement ­mechanisms. The fact that the expansion of the legal opportunity structure at the Council of Europe coincided with a sharp increase in litigation by religious individuals and groups clearly supports this argument (Figure 1). Although case numbers had already started to rise by the beginning of the 1990s, they did so even more markedly by the end of the decade, after the institutional reforms had been implemented. This holds true for the case of religion as well. Figure 2 provides a more detailed overview of the litigation activity by period and religious group based on the data provided by the HUREL dataset. The periods were chosen according to the following rationale: from 1990 onwards, the former Soviet countries started joining the Court, galvanising a marked increase in cases. The year 1998 marks the year of the most far-reaching institutional reforms. Since 2010, new institutional reforms have been implemented to improve the Court’s capacity to handle the ever-increasing case inflow, leading to a facilitated procedure to decide on the (in)admissibility of cases. The 2010s are also characterised by a renewed debate over the political authority of the Court. This had become especially clear with the Brighton Declaration, in which all 47 Member States declared themselves committed to both further streamline the administration of the swelling caseload and to strengthening the principle of subsidiarity (Madsen 2016).33 Of course, the merely descriptive findings presented here do not provide evidence for any causal dynamic. Yet, showing that the progressive institutional opening correlated with an increase in cases from all religious groups supports the argument that religious individuals and groups increasingly perceived the Strasbourg Court as an opportunity structure for voicing grievances (Harms 2022) and that transnational norms gained in relevance as a cognitive frame for struggles over recognition (Koenig 2007). 33 Council of Europe (2012) Brighton Declaration (20 April 2012): www.echr.coe.int/Documents/ 2012_Brighton_FinalDeclaration_ENG.pdf.

60  Enacting the Liberal Script Figure 2  Submissions per religious group and time period

180 160 140 120 100 80 60 40 20 0 1950-1989

1990-1997

1998-2009

2010-2019

Muslims

Christians

Jehovah's Witnesses

Other minorities

Non-religious

Missing information

Source: HUREL Note: N=1060. The following cases have been excluded from the dataset for the analysis: those that invoke Article 9 but do not give any further information about the precise religious freedom ­dimension of their claims. Moreover, asylum related claims invoking Article 9 have also been excluded from the analysis because they pertain to religious conflicts in countries of origin rather than in countries covered by the ECtHR. Some cases have involved individuals from various religious backgrounds. These cases have been counted for each concerned religious group. The group ‘Christians’ comprises a range of Christian denominations, including, among others, Orthodox, Catholics, Protestants, Anglicans. The group ‘other minorities’ comprise Alevis, Buddhists, Hindus, Sikhs, as well as diverse new religious movements. The group ‘non-religious’ comprises declared atheists and humanists, as well as non-religious organisations, and applicants with other beliefs, such as pacifism and veganism. A small number of applications has been filed before the Court started officially working in 1959. The numbers per time period are based on years of case application.

Noteworthy is that Jehovah’s Witnesses – a relatively small religious community – are among the most important repeat litigators (see also: Richardson 2017; Richardson and Garay 2004). To understand this, we must turn to where they first began their litigious activities. I argue that with the broadening of the legal opportunity structure in Strasbourg, the Court and religious freedom litigants from Greece and Eastern Europe entered a mutually empowering relationship. On the one hand, the Court offered new opportunities for religious minorities in politically highly restrictive contexts. The Greek case makes this clear. The complex relationship between the Greek national identity and the Orthodox majority religion during both the Ottoman Empire and the military dictatorship (1967–74) had, according to Fokas (2008: 12), ‘inestimable long-term effects on the relationship between church and national identity’. As a result, Fokas explains, the Orthodox Church maintained an influential role in deciding when religious minorities were allowed to build places of worship, and significant

Between National Sovereignty and Transnational Autonomy  61 restrictions on proselytism by minorities were introduced. These manifestations of the relationship between State and Church were not so much rooted in unsurmountable legislative obstacles as in prevailing political practices. In this context, the Court provided a powerful opportunity structure for religious minorities in a politically deadlocked situation. Not surprisingly, the cases in which the Court found the first religious freedom violations were all filed against newly emerging democracies, and especially Greece. On the other hand, the Court could use Greece as a ‘poster child’ for former Communist countries that had newly joined the European Council (Richardson and Garay 2004: 233).34 A judge at the ECtHR stated with respect to the Kokkinakis case: Kokkinakis came to the Court … at a time when the reputation of Greece as a democratic country had already been severely dented. So, I would suspect, but I can’t prove this, that the Court would examine such cases under a microscope when they come from a country where there is this general reputation historically or suddenly or for some reason.35

Litigants were receptive to the Court’s new position of power and posed as ‘accomplices’ of a Court seeking to strengthen its authority. That early strategic applicants staged themselves very explicitly as ‘partners’ in activating this new leverage has even surfaced in the legal argumentation itself.36 For instance, the lawyers in Larissis appealed directly to the Court’s obligation to send a sign of religious freedom throughout Europe. ‘This Honourable Court can do nothing to stem the tide of religious repression in other parts of the world’, they argued, ‘but it can surely now, by way of the instant case, send a clear signal throughout Europe that what philosopher Karl Popper termed the “open society” applies here’.37 The lawyers went on: It would appear that the Court’s responsibility – and privilege – is potentially great in this respect if recently resigned secrétaire-général-adjoint of the Council of Europe, Peter Leuprecht, is correct in saying that, with the expansion of Community membership, ratification of the ECHR is in danger of becoming little more than a paper requirement.38 34 At the same time, commentators of the Kokkinakis case have also deplored the ‘failure’ of the Court ‘to take the right to conscience seriously’, because the Court did not find the law against proselytism in violation of Article 9, but rather held that Kokkinakis’ activities fell within the scope of legitimate proselytism: (Gunn 1996: 306). 35 Interview 18, ECtHR judge, Strasbourg, 28 July 2016. 36 I borrow here an expression from Richardson (2017: 242), who has described the relation of Jehovah’s Witnesses and the ECtHR as a ‘partnering’ relation. He has argued that ‘while courts partner with other courts quite openly … they also could be considered to be partnering with some parties which bring cases to the court. This was clearly the case in the United States when the Supreme Court used cases brought by minority religious groups, including Jehovah’s Witnesses, to extend its purview and authority over states and local governments’ in religious matters. 37 Montgomery, John W (2001) The Repression of Evangelism in Greece. European Litigation vis-à-vis a Closed Religious Establishment (Lanham, MD, University Press of America): 122. 38 ibid.

62  Enacting the Liberal Script This illustrates how the geopolitical window of opportunity was perceived by litigants, who directly implored the Court’s political responsibility. This conjuncture of a Court aspiring towards institutional autonomy and authority on the one hand, and the turn of religious minorities to the highest European judges on the other, reflects a situation of mutual empowerment, in which a new understanding of religious freedom could take shape. It illustrates for the case of religion the dynamic of mutual empowerment between litigants and the ECtHR that has been so aptly described by Cichowski: As European rights and the ECtHR present social activists with the opportunity to bring legal claims, we would expect activists to mobilize and exploit these ­opportunities. This litigation, in turn, can empower the ECtHR by providing the opportunity to clarify, enforce, and give meaning to Convention rights (2011: 79–80).

JEHOVAH’S WITNESSES AND EVANGELICALS: EARLY PIONEERS OF RELIGIOUS FREEDOM LITIGATION

However – although evolving political relations strengthened the Court’s authority and opened up a new legal opportunity structure, this only explains part of the developments of (successful) religious freedom litigation in the 1990s. In the following, I demonstrate that transatlantic dynamics within the movements of Jehovah’s Witnesses and Evangelicals were crucial to their perception of the new opportunities in Strasbourg. They had developed over a period of several decades an organisational predisposition – or habitus – towards litigation. In addition, for Jehovah’s Witnesses litigation before the ECtHR was intrinsically tied to the aim of maintaining global community cohesion, and for Evangelicals it served as symbolic credit for their global organisational expansion. Jehovah’s Witnesses: A Collective Legal Habitus Expanding to Europe Litigation by Jehovah’s Witnesses was central to the formation of the religious freedom field with the Court as its central governance unit. As demonstrated above, Jehovah’s Witnesses – while a relatively small community – account for an important portion of the influx of cases. Moreover, when compared with other religious groups, they have been much more successful (see chapter five). To understand their engagement in Strasbourg, it is important to move beyond the sole explanation proposed by the LOS approach and consider the factors internal to their religious community that enabled litigation. In this respect, legal mobilisation by Jehovah’s Witnesses can be described as one of ‘community lawyering’, ie, legal mobilisation by and for the community. More specifically, two aspects are crucial: first, Jehovah’s Witnesses have formed what might be called a collective legal habitus, which allowed them to publicly assert their claims while remaining committed to a complete disengagement from the

Early Pioneers of Religious Freedom Litigation  63 political sphere. Second, they have a global and centrally coordinated approach to litigation. Both aspects have supported an extensive use of the European Court and contributed to the connection of different legal spaces. To understand the collective legal habitus that characterises the functioning of the Jehovah’s Witness’ community, it is important to dive into its organisational development and its longer history of intense activity in American courts. Jehovah’s Witnesses emerged as a religious group towards the end of the nineteenth century. Even at its very beginnings, this religious group and its main leading figure, Charles Taze Russell, undertook the first missionary steps to expand the movement from North America to other continents. According to official numbers published by the Watchtower Society, ie, the central organisational unit of the community, in 2015, more than 1.6 million Witnesses had actively engaged in ‘publishing’ Jehovah’s message all over Europe.39 As stated in Kokkinakis, estimates of the number of Witnesses in Greece at the time of the event varied between 25,000 and 70,000.40 Throughout its history of prosecution and deep antagonism with political institutions, the movement has strengthened its internal cohesiveness.41 Judicial actions have played a central role in this development. From the 1940s onwards, Jehovah’s Witnesses have made extensive use of the American judiciaries. In fact, many of the conflicts through which Jehovah’s followers waded during the early and mid-1940s in North America and Canada – flag salute cases, objection to military service, freedom of speech claims – reached the European Court around 50 years later.42 Between 1938 and 1960, more than 50 cases involving the community reached the American Supreme Court (Mazur 1999: 30). More generally, as a highly litigious community, the Witnesses left an important imprint on civil liberties jurisprudence dealing with minorities in the United States (Peters 2000), but also in Canada (Penton 1976). The legal self-understanding that the Watchtower organisation developed in the 1950s echoes this development as becomes clear in a manual titled ‘Defending and Legally Establishing the Good News’, published by the Watchtower Society: In most countries Jehovah’s witnesses have had to actually help the judges write the law relating to civil liberties, a field where there are no decisions locally to help the judges. By their stand for the right to preach they have established living, practical applications and precedents to what were formerly only theoretical rights. This has been true even in the United States, where the constitution guarantees certain rights 39 The organisation considers as ‘publishers’ those members who are engaged in missionary work for some hours per month at least: www.jw.org/en/publications/books/2015-yearbook/ preaching-and-teaching/europe/. 40 Kokkinakis v Greece (n 2) § 22. 41 See Beckford (1975) for a detailed account of the emergence of the Watchtower movement fuelled by the central impetus of Russell. He also analysed the internal conflicts emerging after Russell’s death and the following organisational and ideological developments the Watchtower organisation underwent. 42 For a detailed analysis of the Jehovah’s Witnesses’ litigation during the 1940s in the United States, see Peters (2000).

64  Enacting the Liberal Script but very few cases had ever sought to enforce them until the persecution of Jehovah’s witnesses started.43

As this statement illustrates, the organisation considered itself as a support for developing the legal system in the United States. Conversely, the massive effort put into litigation to protect the rights of Jehovah’s Witnesses and protect them from persecution progressively altered the organisation’s initial approach of strict refusal to engage with civil authorities.44 This process was further encouraged by an internal crisis of the Jehovah’s Witnesses’ organisation due to prophetic failures in 1914 and 1925, and by the ambition of the Church’s second president, Rutherford, to engage all Jehovah’s Witnesses in street proselytism (Côté and Richardson 2001). Rutherford was himself an attorney working for the legal board of Jehovah’s Witnesses (Mazur 1999: 31). Under his presidency, the organisation oriented its doctrine towards a strong opposition to earthly government. The constitutional confrontation resulting from these developments were met early on by a strengthening of the litigious activity. Moreover, it led the Witnesses to place an increasing emphasis on being recognised as a ‘socially established religion’ in the North American landscape (Côté and Richardson 2001: 14). Soon, the use of litigation evolved from being an instrument to fight harassment into an intrinsic element of the group’s identity. ‘[I]nternalized as optimal group strategizing and positioning in society and in the outside world in general’, the fight in courts became a form of ‘disciplined litigation’ (ibid: 14), which has been incorporated into the very religious organisation and doctrine. In this sense, the centralised structure of the Jehovah’s Witnesses allowed for the creation of a substantial legal department, with resources being deployed to educate Witnesses at the grassroots level to systematically report problems in exercising their faith. Under Covington, the general counsel who followed Rutherford in 1942, the organisation made substantial efforts to diffuse legal knowledge among community members, including how to behave in court and how to make use of the judicial system (ibid). The purpose of the above-mentioned booklet released under Covington is described as a guide for all Witnesses, as well as lawyers and judges, in how to respect the guarantees of civil rights: The purpose of this booklet is to give advice to all Jehovah’s witnesses, and others who want this truthful information, so that each of us may reflect accurately the holdings of the courts in the democratic lands. Such counsel will help us show to all officials, police and courts that they should allow our work to go unhampered. It is also to aid judges, lawyers and officials to avoid violations of the fundamental law by

43 Watchtower Bible and Tract Society (1950) ‘Defending and Legally Establishing the Good News’ (New York, 32). Côté and Richardson (2001) have extensively drawn on this document in their analysis of Jehovah’s Witnesses’ litigation strategy. 44 Côté and Richardson (2001) have extensively described this process of progressive transformation of Jehovah’s Witnesses into a highly litigious community. The following description of this process mainly draws on their research.

Early Pioneers of Religious Freedom Litigation  65 imposing restrictions contrary to the constitutional guarantees of freedom of speech, press and worship, and law of Almighty God. Considerations of these precepts which have been written into the law of the land by the courts may lead the officials and police to recognize our freedom guaranteed by Jehovah God.45

The booklet further contains detailed instructions on how to prepare a trial and how to behave in front of the judiciary. For example, it provides that the conflict, and the different legal steps undertaken, should be reported to the Watchtower Society’s branch office. The booklet also interweaves theological and legal considerations. For instance, one reads that ‘The apostle Paul appealed to higher authorities in order to escape persecution and death at Jerusalem’. Citing his answer ‘I appealed unto Caesar’ and ‘I stand at Caesar’s judgment seat, where I ought to be judged’, the booklet’s authors emphasised that ‘[h]is appealing set the pattern for [witnesses] today’.46 It promotes a unified approach to legal action, even prescribing the precise words and the biblical references to use when introducing the legal testimony. Thus, the whole community is associated with the legal struggle and ‘deformed’ (Côté and Richardson 2001) into an intrinsically litigious group. Côté and Richardson have shown that litigation slowed down under the third president of the Witness organisation, Nathan Homer Knorr, but from the 1980s onwards it continued with renewed vigour. Specifically, the introduction of a blood taboo, ie, the prohibition of donating or receiving a blood transfusion under any circumstance, led to huge social controversies, bringing Jehovah’s Witnesses back to the courtrooms. Over time, this systematic use of the courts to solve restrictions on religious exercise and prosecution evolved into what has been called ‘vigilant litigation’. This form of judicial struggle is ‘pre-emptive, realist, pragmatic in tone and substance’ (Côté and Richardson 2001: 18). It is this vigilant judicial strategy that, according to Côté and Richardson, made its way to Europe. From the Kokkinakis case onwards, Jehovah’s Witnesses’ litigation at the ECtHR has become recurrent. Lawyers are systematically contacted, not by the applicants, but by community representatives, whenever community members encounter obstacles in exercising their faith. Most of the time, the lawyers form part of the community. One of my interviewees underlined in this respect that it is not so much ‘status’ as religious commitment that counts who defends the Witnesses’ claims.47 The community provides the legal expertise, yet not out of a political or ideological commitment, but out of a commitment to the community and its right to practise freely. Litigation is carried out by community members and directed at the practical conditions of practising their faith in society.



45 Watchtower

Bible and Tract Society (1950) (n 43) 2. 14. 47 Interview 8, lawyer and assistant, Jehovah’s Witnesses, Paris, 15 October 2015. 46 ibid,

66  Enacting the Liberal Script The consolidating human rights field in Europe and the legal habitus of the community worked hand-in-hand. Greece had signed Article 25 of the Convention, which allows individuals to submit applications to the ECtHR, at the very moment that Kokkinakis was making its way through the Greek judicial system. Jehovah’s Witnesses recognised the new institutional leeway in Strasbourg. One of my interviewees involved in Jehovah’s Witnesses fights in the courts recalled: The European Court was established at the end of the Second World War, so … we did file in the 1950s. But not too much, just a couple of cases. We had few attorneys in Europe, so we had less experience. At that point, we had fought battles in Canada, in the US in highest courts. So the European Court became a legal battle field maybe in the late 80s, early 90s. The European Court became more, rather than a factor to deal with, more prestigious as a human rights court. So, the early cases were like Kokkinakis, allowing … and it really focuses on Greece because the Orthodox Church has a monopoly … The ECtHR did establish itself as a relevant court. Deciding on central issues.48

The statement makes clear that the Court’s growing political authority (even before its major institutional reform in the 1990s) sent encouraging signals to the community. The ECtHR was perceived as a ‘relevant’ actor ‘deciding on central issues’ and became a valuable arena for the already judicialised community. Two lawyers, who were not members of the Jehovah’s Witnesses community itself, played an important role in the Jehovah’s Witnesses’ first activities at the ECtHR. The lawyer Bitsaxis and the human rights activist Vegleris. After Kokkinakis was rejected by the Greek Supreme Court, ‘the community’ asked Bitsaxis to litigate the case before the European Court.49 Not religious himself (but formally a member of the Greek Orthodox Church), he has been one of the few lawyers to defend Jehovah’s Witnesses without being a member of the community. Years before Kokkinakis, he was approached by several Witnesses while working as a counsellor at the Ministry of Justice. After a meeting where the community reported on the severe problems they were experiencing with conscientious objection to military service, he mobilised his professional connections in politics to reduce the repeated punishment they faced. A few years later, when the Kokkinakis case was filed, he was again contacted by the community. As a practicing lawyer, he decided to help pro bono given that he had defended Kokkinakis before the courts of appeal.50 In addition, the Kokkinakis case also indirectly benefited the human rights movement in Greece through Vegleris, the second lawyer involved in Kokkinakis. He was a fervent defender of the secular human rights movement in Greece. Co-founder of the Ligue hellénique pour la defense des droits de 48 Interview 23, one representative of the Watchtower Society and one lawyer representing Jehovah’s Witnesses, 4 November 2016, interview conducted via skype. 49 Interview 30, lawyer involved in Kokkinakis v Greece, 4 May 2018 (n 1). 50 ibid.

Early Pioneers of Religious Freedom Litigation  67 l’homme (2000) and a member of Amnesty International, Vegleris dedicated his life to the fight for individual liberties. At least in part, therefore, the case also credited secular human rights advocates with symbolic capital. While litigation was otherwise (with few exceptions) carried out by the community, it was also an instrument for the community – the community being understood as a global one. This becomes clear when considering the prerogative of the Watchtower Society to pursue a globally coordinated and cohesive legal agenda. The 1950 booklet mentioned earlier emphasised the centrality of a unified legal approach and the exportation of American jurisprudence: It is recognized that American decisions are not binding and do not force the judges to the same conclusions in countries outside the United States, yet there can be no question that they are of persuasive value and should be used to assist the courts in reaching a reasonable conclusion. Judges of every land must render decisions in harmony with justice, especially when the legal questions raised by the cases are without precedent in their country, where the cases of Jehovah’s witnesses are being tried.51

International litigation had been systematically anticipated early on and is as far as possible coordinated centrally from the New York-based headquarters, where the office of the General Counsel of the Watchtower Society is located. While Jehovah’s Witnesses are ‘not an American religion’, as emphasised by the Watchtower Society representative I interviewed, ‘the world ­headquarters’ legal department is indeed here in New York’. Soon after Kokkinakis, the New  York-based headquarters then also started to coordinate the pool of lawyers working on cases before the ECtHR. This approach echoes a previously developed ambition: ‘Where it can be conveniently arranged, it is the desire of the Society to have an attorney of [the society’s] choice, such as its general counsel or some regular attorney, to work with the local counsel in the trial and appeal of certain important cases’.52 Lawyers from North America or Canada work with local attorneys in European countries often specialised in presenting cases before going to internationals judicial bodies such as the European Court of Human Rights and/or the UN Human Rights Committee. This is why in many cases brought to the Court, American lawyers were working alongside European-trained attorneys. For instance, one lawyer frequently involved has an affiliation with both the Canadian and the Paris Bar and has closely cooperated with attorneys in ECtHR cases. While the lawyers from the various national offices benefit from each other’s legal expertise, the New York headquarters chiefly coordinates the work. This network of lawyers cooperates to maintain the coherence of the legal approach of the community. Illustrating this challenge, my interviewees underlined that ‘[if] you don’t want to have Jehovah’s Witnesses in

51 Watchtower 52 ibid,

11.

Bible and Tract Society (1950) (n 43) 30–31.

68  Enacting the Liberal Script Germany arguing [in one way] and Jehovah’s Witnesses in France arguing in a different way, you have to ensure the internal coherence, so that the arguments are the same’.53 This coordination of worldwide litigation was described as follows by my interviewees. The pleadings came into the headquarters, were edited there, and were sent back and forth with the domestic legal team. The names of the lawyers coordinating did not appear in the pleadings. Once everyone’s input was polished, the submissions were finalised. They suggested that this is ‘why there are a lot of references to international law’. Underlying the necessity of bringing together the expertise of various legal contexts, they emphasised that while a local lawyer will be well versed in the country’s jurisprudence and case law, he may not know a case from another jurisdiction. They underlined that ‘the best case we ever received was a decision [by the ECHR against] Russia. And if you look at that case, it’s the Jehovah’s Witnesses of Moscow v Russia, [the Court] quoted victories around the world’. As the interviewees mentioned, the Court relied not only on decisions it had handed down earlier, but on nine decisions Jehovah’s Witnesses had obtained from the highest courts of nine other countries. Referring to the fact that they had included those nine decisions in their submission to the ECHR, they continued by explaining ‘well, Miss Harms, we put that in our papers. We were not focused on human rights in France. We said, you know, the Philippines, India, South Africa, Brazil, United States and Canada brought all of those cases into the pleadings’. It is important to underline that such global coordination, while certainly important, is not total. The lawyers of Jehovah’s Witnesses in Europe emphasised that although there was a constant exchange of information with the New York Watchtower, there remain differences in litigating in Europe as compared with the United States.54 They underlined their independence and the indispensable value of knowledge of the specific legal context. For example, those litigating pioneering cases against Greece, but later also in France for example, maintain that the litigation was broadly disconnected from what was happening back in the United States. And Kokkinakis’ lawyer himself made clear that no connection whatsoever existed at the time to the US offices of the Jehovah’s Witnesses. As several European lawyers underscored, legal considerations did not flow straight from the Watchtower Society’s headquarters in New York to the European ‘periphery’. They said that ‘the work was done in Europe’, while the legal department in New York emphasised its coordinating and supervising role. Thus, while the centralised organisation gives the community of

53 Interview 23, 2016 (n 48). 54 This was, for example, underlined by a Jehovah’s Witnesses’ lawyer who had appeared in at least three Jehovah’s Witnesses cases at the ECtHR. This lawyer emphasised that the cooperation with the US offices was limited to an exchange of information. The same interviewee was very careful underlining that most of the work regarding the defence of Jehovah’s Witnesses in Europe was done by European lawyers. Interview 8 (2015) (n 47).

Early Pioneers of Religious Freedom Litigation  69 Jehovah’s Witnesses a litigious identity and ensures the connectedness of a dense network, it does not entirely control the legal process. This does not, however, detract from the fact that litigation in Strasbourg is firmly supported by the central governance of Jehovah’s Witnesses and – directly or indirectly – oriented towards a globally cohesive community. This transnational dimension ultimately also connects legal spaces with each other, as I will further demonstrate in chapter five. Evangelicals: Searching for Symbolic Capital in the American Culture Wars? Two other early successful cases concerned Evangelical and Orthodox individuals. The first case, Larissis and Others v Greece, concerned, just as the Kokkinakis case, the conviction of several individuals for proselytism.55 The case involved three applications, two of which were ultimately successful. The three applicants in the case were officers in the Greek air force who belonged to the Pentecostal Church. They were convicted for trying to convert air force soldiers serving under them and civilians to Pentecostalism. The second is the case of the Metropolitan Church of Bessarabia v Moldova (‘Metropolitan Church case’ in the following), which concerned the independence of the Orthodox Metropolitan Church of Bessarabia from the Moldovan Orthodox Church.56 While the case concerned an inner-Orthodox struggle, it was defended by the lawyers who had already defended the Larissis case and were affiliated with an Evangelical network, which is why I mainly discuss this case in this section. As with the cases filed by Jehovah’s Witnesses, the widening opportunity structure in Strasbourg was an incentive for Evangelicals to turn to the ECtHR, but this alone cannot account for their mobilisation. The cases also benefited from the expansion of a Christian network of lawyers from the United States to Europe. The mobilisation of activists from this network in Europe can be traced to two enlaced dynamics in the US–American political and religious field since the 1960s. First, the emergence of Christian conservative public interest groups as part of the then unfolding ‘culture wars’. By ‘Christian conservative’ I understand broadly speaking legally and culturally engaged actors who, driven by a commitment to a branch of the Christian faith, lobby for religious freedom of Christians and conservative public morals. Second, the judicialisation of this movement, including the development of a professional legal habitus among Evangelical activists inextricably interwoven with this dynamic. Litigating in Strasbourg, I argue, was intended at least in part to increase the symbolic capital of Christian conservatives in cultural struggles in the United States. While the dynamics unfolding in the American religious field are well ­documented in a thriving literature, the moment when Evangelical actors started

55 Larissis and Others v Greece App nos 23372/94, 26377/94, 26378/94 (ECtHR, 24 February 1998). 56 Metropolitan

Church of Bessarabia and Others v Moldova (n 4).

70  Enacting the Liberal Script to build a presence at the Council of Europe is rarely addressed. It is only with the infamous case of Lautsi v Italy, decided by the Grand Chamber in 2011 (chapter four), that these actors have started to receive sustained scholarly attention (Annicchino 2011, 2018; Bob 2013; Casanova 2020; McCrudden 2015a; Mourão Permoser and Stoeckl 2021). However, Evangelicals from the United States started forging ties with Europe about a decade earlier. Interestingly, as we will see in chapter four, while their intervention in Lautsi was aimed at limiting the Court’s activism and at strengthening the sovereign status of states in matters of religious freedom, their initial activism was – to the contrary – targeted at increasing the judicial authority of the Court. I will first briefly discuss the longer-term transformative dynamics under way in the American religious field, ie, the emergence of the so-called ‘culture wars’ and the related judicialisation of the Christian conservative movement. These developments highlight that those Evangelical actors who have established ties with Europe could build on decades of legal capital accumulation in the United States. The metaphor of the ‘culture wars’ has become the ontological concept to capture the divide between conservatives and liberals in American society since the 1960s. This divide cuts across all areas of American life, including religion, family, sexuality, education (Hunter 1991). Actors on each side have invested in multiple venues of activism to push for social change in one or the other direction. What is essentially at stake in these struggles is the moral authority over values and public life (den Dulk 2008). The Christian Right, a diverse and multipolar movement consisting of Evangelicals but also Roman Catholics, among others (Brown 2002: 2), is heavily involved in these conflicts because it sees public morality threatened by moral relativism, subjectivism and secularisation. Actors of this movement compete with liberal foes over public authority to define core political and cultural values. As Wuthnow (1989) has extensively documented, these cultural struggles were enmeshed in the transformation of the wider religious field. Conservative and liberal factions existed within the religious communities and, for a long time, the major fault lines ran between denominations, such as Protestants and Catholics, and Christians and Jews. Important political changes, particularly the rise of anti-war and civil rights movements, shifted the divide from one running between religious denominations towards one running within them, thereby dividing liberals and conservatives in each group. The fundamentalist Protestant movement, which had long drawn a thick line between the pietistic life and ideology of its members on the one hand, and the worldly affairs of politics on the other, progressively transformed into a political movement in the 1970s.57 Importantly, the conservative factions within the religious denominations gradually built their own organisational structures (Wuthnow 1989: 26–38). After it had lost its monopoly on public morality at



57 For

a more detailed account, see also Casanova (1994: 146–57).

Early Pioneers of Religious Freedom Litigation  71 the turn of the twentieth century, Evangelicals’ ‘business was booming’ again on the political stage by the mid-1970s (Casanova 1994: 146). The emergence of this cultural divide went hand-in-hand with what I term the ‘judicialisation of the Evangelical movement’. In fact, in the context of political struggles over culture, law took on a new symbolic value for Evangelicals. The narrative of Evangelical advocacy organisations is that they were ‘forced’ into litigation by the judicially very active and politically progressive American Civil Liberties Union (ACLU), as a means of preventing the loss of further ground in American society (Bennett 2014; Brown 2002; Hacker 2005; Hoover and den Dulk 2004). More generally, pointing to a dynamic of institutional isomorphism (DiMaggio and Powell 1983), scholars have emphasised that several conservative public interest law organisations evolved in response to the surge of liberal advocacy organisations in the 1960s and 1970s (eg: Southworth 2008). As Ivers reported, one attorney of a separatist Protestant group extensively engaged in litigation put it as follows: Our hope is that, in those cases, we can make the Court aware of the impact the case will have for religious communities from religious organizations that speak for themselves, and not how that issue is seen through the eyes of the government or the American Civil Liberties Union (Ivers 1992: 252).

Although religious actors among the conservative movement were mostly opposed to rights activism (Southworth 2008: 12), more pragmatic leaders of some of the most influential Evangelical organisations pushed the movement in new directions (Hacker 2005). This judicialisation also led to the formation of what might be called a ‘Christian legal habitus’. In the early 1990s, in parallel with the formation of conservative legal advocacy organisations, a movement of Christian lawyers began to form who viewed the legal struggle for Christian morality and culture as their vocation, using the narrative ‘law as a calling’ (Wilson and Hollis-Brusky 2014). This movement focuses not just on individual injustices or systematic discrimination against members of the community, as in the case of Jehovah’s Witnesses. Litigators from the Christian Right often act as purpose-driven cause lawyers, ie, lawyers who pursue moral activism and who are motivated by the goal of realising broader social change (Sarat and Scheingold 1998, 2006). What motivates Christian conservatives to go to court transcends politics (den Dulk 2008; Wilson and Hollis-Brusky 2014) and at the same time goes beyond the cause of religious freedom or freedom of speech. As den Dulk (2008: 62) observed, ‘[t]he fight is not primarily in legal offices, courtrooms, or even mass protests in the streets; it is in the more amorphous realm of culture as they understand it, which comprises the various ways to express worldview’.58 58 In a similar vein, some authors have emphasised that institutional, organisational or resource endowment are, though certainly important, not sufficient to explain Evangelical and Christian conservatives’ judicial activism (Hacker 2005; Krishnan and den Dulk 2002). Considering them as

72  Enacting the Liberal Script Thus, given their deep cultural self-awareness and commitment, the network of Christian lawyers presents a different picture from that of the Jehovah’s Witnesses. Without a doubt, both movements derive their litigious engagement from a deeper divine calling (Wilson and Hollis-Brusky 2014): litigation reflects not only a material need for defence, but is also a means of serving God and realising His law. Yet, while Jehovah’s Witnesses’ community-lawyering is mainly motivated by the ambition to remedy the oppression and restrictions that followers face at the grassroots level, the Christian Right serves an agenda of social change. As their actions are deeply engrained in the socio-political conflicts of American society, their case selection transcends the stakes of religious practice. Convinced that ‘culture follows law and law follows culture’, litigators of the Christian Right see litigation as part of their very religious ideological mission.59 It is important to underline here that the collective identity formation within the conservative movement enabled legal mobilisation by fusing religious and professional purposes, thereby overcoming the reluctance of Christian activists to embrace legal careers. That this network has spread from the United States to the European judicial scene is in particular due to two Christian conservative organisations. First, the American Center for Law and Justice (ACLJ) founded two sister organisations in 1998, in Strasbourg under the name of the European Centre for Law and Justice (ECLJ) and in Moscow under the name of the Slavic Centre for Law and Justice (SCLJ). Pat Robertson founded the ACLJ in 1990 as a legal advocacy organisation connected to both Robertson’s Christian Broadcasting Network, and the Regent University. According to Hacker (2005: 31), the ACLJ had a budget of about $30 million in 2004, reflecting the important resources of this religious lobby. As he has aptly shown, the organisation’s mastermind is Jay Sekulow, a Messianic Jew who has developed an extraordinarily successful strategy for the ACLJ. According to Hacker, Sekulow is ‘in almost every way precisely what one would not associate with [the] social and political movement’ (ibid: 17). Unorthodox and charismatic, his strategic legal reasoning has had tremendous influence on the development of cases conducted in courts by the Christian Right. In particular, he shaped the movement’s predilection for framing conflicts within the terms of the freedom of speech clause, a surprising choice potentially conflicting with the group’s commitment to conservative values. About two and a half decades after the ACLJ’s establishment, his influential and charismatic personality would gain even wider public resonance when Sekulow entered the legal team of the Trump presidency in 2016.

a product alone of the American exceptionalism, ie, a political culture that is not only particularly litigious, but also particularly religious, seems insufficient to understand their mobilisation in the courtroom. Rather, driven by a deep cultural commitment, it is the ideational factor that has ­galvanised the legal mobilisation (Hoover and den Dulk 2004). 59 Interview 11, legal counsel Alliance Defending Freedom International, Vienna, 23 October 2015.

Early Pioneers of Religious Freedom Litigation  73 The second organisation is the Alliance Defense Fund (ADF), later renamed Alliance Defending Freedom, which was founded in 1994 by a group of evangelical Protestants. The ADF established ties to the continent – notably via its Vienna-based organisation ADF International – in the early 2000s and gained visibility at the European Court by the end of the same decade. The organisation originally sought to restrict itself to funding Christian legal activities, but eventually evolved into a litigious organisation itself during the 2000s (Bennett 2014: 90). According to the ADF, more than 3,200 attorneys are allied with the network, whose mission is ‘to keep open the door for the spirit of the gospel’.60 Through advocacy, training lawyers and funding legal cases, the organisation seeks to have a lasting impact on society. According to the organisation’s statement on its website, ‘It is not enough to just win cases; we must change the culture, and the strategy of Alliance Defending Freedom ensures lasting victory’. The ECLJ and ADF figure among the most engaged religious actors in North American courtrooms (Bennett 2014). Although their agendas are in many ways distinct (chapter five), their establishment in Europe was interconnected. A lawyer employed by the ECLJ at its beginning later became employed by ADF International until taking a position in a British Evangelical organisation more recently. The chief counsel and executive director of ADF International, Benjamin Bull, who perceived the importance of the ADF transitioning to Europe, was initially supposed to oversee the European activities of the ACLJ (Hacker, 2005), before being hired by the ADF in 2001. These initial network dynamics helped in extending the Christian cause lawyering ties from the United States to Europe. The ECtHR became a source of symbolic credit that could ultimately also serve the cultural agenda in the United States, and at the global level more generally. In this sense, several enquiries into the shift of Christian advocacy groups from the United States to Europe have suggested, though with caution, that the ambition of these groups is to prevent European precedents from spilling overseas and threatening the religious privileges they are enjoying in North America (Bob 2012; Fokas 2016; McCrudden 2015a, 2015b, 2018). In support, Hacker has quoted the following comment of ACLJ senior counsel Joel Thornton during a discussion about the opening of the European branch of the organisation: If we don’t fight the fight in America against same-sex marriages, if we don’t fight the fight to preserve Christians’ right in public places in Europe, then we’ll have to fight that fight again here or over there. The ultimate goal is to have an international objective. There is a group that wants to set up an Australian Center for Law and Justice. We want to have as many international centers as possible (2005: 33).

60 Interview 10, legal counsel, Alliance Defending Freedom International, Vienna, 21 October 2015.

74  Enacting the Liberal Script Bob has observed in this regard that the ADF trained an ‘army of allied attorneys’ to oppose the ACLU’s programme of ‘bringing human rights back home’ and of defending the importation of foreign case law to the United States (2012: 83). Another lawyer from the ADF went in a similar direction: When we were first began our mission, when we were a much smaller organisation, we were heavily influenced by what was going on in the US offices. And so, we had a board-ruling that said that basically, we were test driving ADF International. So, we had to give it a reason that would make the US based board happy with the idea of expanding. Because it has been so successful in the US, why would you not experiment in other jurisdictions. So, the original modus operandi was that when we got involved in cases that had to be to protect US case law.61

Note here, however, that this initial motivation should not be ‘over-stretched’, because soon the organisations transiting to Europe developed their own agenda. In this sense, the same interviewee from the ADF continued, underlining: And because of how successful we were in those early [days], we quickly transitioned out of that [American zone of influence] and basically have our own independence to act as a [not understandable] organisation without any question of whether we affect US case law or not.

All my interviewees from Christian conservative organisations emphasised a clear ‘need’ in becoming active in Europe, lamenting in particular the dominant position of ‘Open Society’ within Europe (see also: Fokas 2016; McCrudden 2015a) and the ‘absence’ of ‘the other side’ (ie, the religious conservative side). One important trigger that led the ADF to perceive this need was, as one of its lawyers explained to me, the Åke Green case. The Swedish Evangelical pastor Åke Green had become a global story when he was convicted in 2003 for hate speech in his sermons against homosexuals. Two years later, the decision was overturned by North American Christian lawyers flying to his aid.62 Confirming Bob’s (2012) findings, the interviewee underlined that the implication in the case of the Swedish pastor constituted a crucial moment for ADF’s transition to Europe: He preached on a number of things, but one was to … a traditional understanding of sexuality and a biblical view on homosexuality. The prosecutor initiated proceedings, he was convicted, sentenced to prison term and … He appealed this and it ended up being appealed with a way to the Supreme Court. Now, Ben[jamin] Bull who is our chief council and executive director of ADF International had the opportunity, was invited to get involved in Åke Green. And it was actually through use of the European Convention on Human Rights, reference to European standards that ultimately at the Supreme Court Åke Green’s conviction was overturned. So that was in some ways [a triggering event], but obviously there are a lot of things that



61 Interview 62 For

11 (n 59). a detailed assessment, see Bob (2014).

Early Pioneers of Religious Freedom Litigation  75 are missed out, but if there is one trigger event, then this would be it. So, Ben was involved, so he saw the need.63

Overall, litigating in Strasbourg appeared as a symbolic resource both for the cultural struggle back in the United States and in Europe itself. While many of the foregoing accounts of the transitional moment are focused on the pushback against a cultural agenda, the ECLJ was initially mostly invested in religious freedom cases from former communist countries, Greece and Turkey. These initial cases, including Larissis and the Metropolitan Church case, helped the organisation to gain in reputation. This becomes clear when we zoom in on the dynamics through which the organisation got involved in them. John Warwick Montgomery, a committed Evangelical author and lawyer in the United States, connected the ECLJ with its first important cases, Larissis v Greece and the Metropolitan Church of Bessarabia v Moldova. By the time the ACLJ sought to establish a presence in Europe, Montgomery had already established his local presence through the successful defence of the so-called Athens 3 case in the Greek courts. In this case, two leading members of a missionary boat crew of Mercy Ships International (owned by Youth With a Mission) as well as a Greek Evangelical leader fought against their arrest for proselytism.64 As Montgomery reports in his book The Repression of Evangelism in Greece, where he summarised the litigation of the Athens 3 and Larissis cases, the American Evangelical organisation Youth With A Mission had contacted him to appellate ‘and testify as an international expert on human rights’. In addition, he said that ‘the conviction of the Athens 3 became a global story overnight’, with more than 400,000 Americans signing petitions to the Greek Prime Minister.65 Certainly, it is difficult to measure and assess his subjective appreciation. At the very least, however, it seems to have given Montgomery enough credit to be asked again for judicial support. After Athens 3, the applicants filing the Larissis case and, some years later, those lodging the Metropolitan Church case approached Montgomery. ‘The cases came to him and not to the ECLJ’, another lawyer familiar with the case stressed, ‘and basically what happened is when the ACLJ wanted a presence in Europe, they came to him and asked for assistance with that … so they effectively adopted the cases’.66 Montgomery thus contributed to the first steps which the ECLJ was undertaking at the time to establish a presence in Europe. An article published by Keston News Service in the context of the Metropolitan Church case further attests to the search for

63 Interview 10 (n 60). 64 Donald Stephens, an American missionary, Alan Williams, a British missionary from New Zealand and Costas Macris, former missionary to New Zealand, were convicted by Greek courts for having tried to convert Greek civilians. 65 Montgomery (2001) (n 37) 24–25. 66 Interview 26, lawyer, London, 7 December 2016.

76  Enacting the Liberal Script organisational legitimacy by the ECLJ. It reports on the first steps of the ECLJ, which by then was seeking to take on further pro bono cases, and suggests that efforts to build a network and reputation were undertaken.67 In fact, the article quotes Montgomery, who emphasised the ECLJ’s willingness to take on further cases for free: The Romanian Orthodox Patriarchate engaged the European Centre [for Law and Justice] and they engaged me to represent the Bessarabian Church at the court … The Centre is willing on a pro bono basis to sponsor religious liberty cases in the European Court of Human Rights. This is in effect the only provision in Europe to have cases taken up at no cost to the applicant.68

Montgomery, established with one foot on each side of the Atlantic, thus contributed to the first activities of the ECLJ in those countries that had undergone a democratic transition. The Central and Eastern European cases, in which the ECLJ became involved, can be considered as crediting the organisation with legitimacy, both among potential litigants and the partner organisation in the United States, and thus contributed to the further expansion of activity in Europe. A slightly different perspective on these early events has been put forward by the ECLJ itself. The ECLJ’s director has repeatedly emphasised that the Strasbourg-based NGO is operating largely independently of the American homologue. He also underlined that the initial shift to Europe was based on Central and Eastern European churches ‘calling for help’ and on the Court’s assistance in managing the democratic transition in Europe: The ECLJ is a non-governmental organisation founded in 1998 here in Strasbourg by American Catholics and Protestants and Messianic Jews who have often been called to Europe by Protestant churches in Central and Eastern Europe. They were asked to help them with the democratic transition and at the beginning – mainly for status questions, the recognition of collective status of Protestants in Orthodox countries of the East.69

This statement seems somewhat contradictory with the appreciation that the ECLJ was actively seeking new cases in order to expand from the United States to Europe. It is unlikely, however, that the mere ‘call for help’ from Central and Eastern Europe motivated the ACLJ to expand its organisational ties. Rather, the statement illustrates that the organisational predisposition of this Christian advocacy group and the changing legal opportunity structure in Europe mutually 67 Keston News Service was a part of the Keston Institute, providing ‘resources for the study of religion in communist countries’. It was discontinued in 2002: www.keston.org.uk/kns/knsindex. shtml. Kristina Stoeckl (2014, 18) has included in her book on the Russian Orthodox Church and Human Rights a short note on the Institute. Founded in 1969 as the ‘Centre for the Study of Religion and Communism’, it has documented the situation of religion in communist countries. 68 F Corley (unknown date) ‘Moldovan Authorities Continue to Refuse Recognition to Bessarabian Church’ Keston News Service. 69 Interview 7.2, ECLJ, director, Strasbourg, 28 July 2016 (original in French, translation by the author).

Enacting the Liberal Frame of Religious Freedom  77 enabled each other. Actors linked in various ways to the ECLJ were involved in a range of early religious freedom disputes from Turkey and Eastern Europe in particular (see list of cases in Table 1 Appendix), which then offered new opportunities for actors who were not only predisposed to litigation but also preparing to globalise their networks. A final observation must be added to this picture. The transition of conservative Christians to Europe coincided with the enactment of the International Religious Freedom Act 1998 by the American Congress. This act provided a legislative base for the United States to promote its religious freedom agenda beyond its borders. Note that scholars have criticised the interventionism legitimised in the name of religious freedom (Mahmood 2012) and the religious lens through which this instrument analyses complex social and economic conflicts (Hurd 2015; Decherf 2002). More important for the transatlantic dynamics enabling a religious freedom field to take shape at the ECtHR, is that this policy might have constituted another impetus for Evangelicals to expand their activism to Eastern Europe and Turkey. At the time of the Act’s passing, its application was chiefly presided over by the president of the Evangelical NGO World Vision (Decherf 2002: 16) and the Act supported religious freedom missionaries beyond the US border. The emphasis of an individualist conception of religious freedom promoted by this law would also – as I show below – be at the heart of the litigation efforts by Evangelical lawyers who provided the ECLJ with its first cases. ENACTING THE LIBERAL FRAME OF RELIGIOUS FREEDOM

So far, I have shown how the Court slowly began to move out of the states’ sphere of influence and expanded its authority into the area of religious freedom. The judicialisation of the organisational structures of Jehovah’s Witnesses and American Evangelical networks played a key role in this development. At the same time, it was only with its gain in autonomy during the 1990s that the Court became the gravitational centre of a field in which actors from different fields compete for the authority of interpretation of religious freedom. The changing power balance between the Court and its Member States is surely the most important outcome of the 1990s. However, the first successful religious freedom cases also allow us to take a closer look at the framings through which actors sought to give meaning to the transnational norm of religious freedom. In the following, I discuss the frames that were centrally invoked by litigants in early successful cases: that of a universalist liberal frame of religion and religious freedom; the pluralism frame; and a free speech frame. Most importantly, these frames reflect deeper cultural understanding that underlie transnational discourses on religious freedom and that, through these initial cases, are ‘activated’ in the religious freedom field that was emerging in Strasbourg. As will become clear in the following chapters, these framings have, what we might call with Bourdieu, doxic effects, i.e. develop

78  Enacting the Liberal Script a taken-for-granted status. While some actors go to great lengths to reconcile and align their own identity with these framings, others are intent on refuting their validity by advancing competing human rights understandings. To start with, both Kokkinakis and Larissis relied on an ideal-type universalist liberal understanding of religion and religious freedom. The arguments put forward by the parties essentially focused on the right to choose one’s religion and on the extensive protection of religious expression that should be afforded to the uncompromisable missionary duty of Pentecostals. One of the Watchtower lawyers paradigmatically expressed the importance of this framework in the Kokkinakis case: Kokkinakis was to think outside the box. And the attorneys made a very simple observation which was that freedom of religion means the freedom to choose. If you have the freedom to choose, someone has to talk to you. So, we can’t limit the right to talk, but we can limit an abusive use of that right. But we can’t limit the right to talk to other people. So, this is ground-breaking. Very simple and ground-breaking.70

Slightly differently focused, but no less principled, Montgomery referred in his pleadings in Larissis to the first part of Article 9, namely ‘religious freedom, including the right to change one’s religion or belief’ and argued: It is a truism to observe that the purpose of the Convention is to proclaim and protect rights, not to limit them – that the first section of such articles as Article 9 represents the overriding purpose of the Convention, and that the second section does no more than indicate the narrowest range of permissible limitation on the given right.71

Moreover, the plaintiffs in the Metropolitan Church case also stressed the importance of religious autonomy and the freedom of choice, albeit not that of individuals but of religious groups, and not by referring to Article 9 but to Article 11, on the freedom of association: How many times must we reiterate that Article 9 of the ECHR vests in believers, not in government, the determination of their religious commitment, and that Article 11 definitively guarantees religious believers the right to choose their organisational associations?72

Those individual rights frames might not have been surprising if Kokkinakis’ lawyer had not made the following remark. He pointed out that two different ways of arguing the case had been discussed. On the one hand, there was the

70 Interview 23, 2016 (n 48). 71 Montgomery (2001) (n 37) 68. 72 Montgomery and dos Santos (2001) Oral submissions on behalf of the applicants in Metropolitan Church of Bessarabia v Moldova, 13 December 2001.

Enacting the Liberal Frame of Religious Freedom  79 option to refer to the right to choose one’s religion. On the other hand, there was a more pragmatic approach of arguing that Kokkinakis had not crossed the step towards so-called ‘improper proselytism’, which was distinguished from legitimate forms of proselytism according to the Greek law. Certainly, both arguments found their way in the pleadings as one can read in the case documents: The applicant did not only challenge what he claimed to be the wrongful application to him of section 4 of Law no 1363/1938. His submission concentrated on the broader problem of whether that enactment was compatible with the right enshrined in Article 9 (art. 9) of the Convention, which, he argued, having been part of Greek law since 1953, took precedence under the Constitution over any contrary statute. He pointed to the logical and legal difficulty of drawing any even remotely clear dividing-line between proselytism and freedom to change one’s religion or belief and, either alone or in community with others, in public and in private, to manifest it, which encompassed all forms of teaching, publication and preaching between people.73

However, that both argumentative strategies had been discussed seems revealing. It points to the fact that the lawyers in Kokkinakis tried to argue their case not ‘only’ with the aim of winning pragmatically by conforming to the Greek legislation. Rather, they also sought to oppose the Greek law on a more fundamental level. It seems plausible to see herein a reflection of the different orientations of the lawyers involved in the case. One lawyer, firmly embedded in the Greek domestic legal landscape, was leaning more favourably towards a pragmatic approach. The other, by contrast, who acted not only as the attorney of Kokkinakis, but as an academic and public intellectual figure committed to the civil rights movement in Greece, was more eager to push for a principled approach. The same applies to the lawyer defending the applicants in Larissis. He could have limited his argument in a similar way, especially since this was the ground on which Kokkinakis ultimately won his case. But instead, he urged the judges to move beyond the Kokkinakis decision: Finally, if the Commission, in spite of all the above, should ultimately decide that the Greek statute does not per se violate Article 7 [principle of natural justice], we pray that it send the case up to the Court for its judgment on the question, since the matter is surely ripe for reconsideration, and as, Judge Pettiti [dissenting judge in Kokkinakis] has emphasised, it deserves far more attention than was given to it in Kokkinakis.74

This principled stance on applying a broad protection for individual expressions of religious freedom and on abolishing the Greek law altogether

73 Kokkinakis

v Greece (n 2) § 29. (2001) (n 37) 67.

74 Montgomery

80  Enacting the Liberal Script reflects that this case was not only a case of individual grievance, but also a principled transnational cause of Evangelical missionaries and human rights advocates alike. As such, the frames used in the cases also reflect a deeper cultural understanding of human rights, based on ideas of subjectivism, individualism and pluralism. George Thomas (2004) has described the case of the Evangelical claims of proselytism as a typical case illustrating that the assumption of an autonomously choosing individual is entrenched in what he and other neoinstitutionalist scholars call ‘world cultural principles’ (Elliott 2007). Such cultural principles, anchored in legal templates, become ‘taken for granted as meaningful and legitimate’ (ibid: 350). Consciously or not, actors will seek to align with them. This does not mean that they do not spark controversy. To the contrary, as Thomas contends, they are likely to conflict with collectivist and objectivist understandings of religion and religious freedom. However, the first successful cases discussed here illustrate well how these deeper cultural assumptions were enacted on the legal terrain in Strasbourg. It is important to note here that the emphasis on individualism and freedom of choice, though more or less diffusely anchored in world cultural p ­ rinciples, is also tied to a Christian legacy in the human rights debate. In fact, as noted in the first part of this chapter, critical scholars have repeatedly pointed to the Christian legacy echoed in the individualist and subjectivist understanding of religious freedom (Asad 2003; Bhuta 2012; Danchin 2011; Hurd 2015; Mahmood 2012). This Christian influence became clear in the negotiations of the r­eligious freedom provision inscribed in the UDHR. The negotiations involved the very engaged delegate Charles Malik. A committed Lebanese philosopher, his rights language was inspired by the Catholic social doctrine developed by Pope Leo XIII and Pope Pius XI (Glendon 2013).75 Embodying a personalist approach, he thought of the human being as able to seek the ultimate and divine truth and to choose between the morally good and the evil (Lindkvist 2013: 436–37). His emphasis on inward spirituality was both a statement against communism and against religious fanatism (ibid). It is also because of his emphasis on individuals’ inner process of conversion that the right to change one’s religion, enshrined in both Article 18 of the UDHR and Article 9 of the ECHR, mattered to him. The efforts deployed to include this aspect was backed up by a larger ecumenical movement that ‘sought international legitimacy for those forces that worked to transform the political and religious landscapes of “Mohammedan societies”’ (Lindkvist 2013: 442). We could of course go to greater length to explore the historical origins of the cultural assumptions resonating in the framing of the early successful religious freedom cases in Strasbourg. However, this brief sketch should clarify that the frames we can observe in early religious freedom litigation in



75 For

a detailed account of Charles Malik’s role in the drafting of the UDHR see Glendon (2001).

Enacting the Liberal Frame of Religious Freedom  81 Strasbourg ultimately also reflect the distribution of authority and power in the religious freedom field. That is, as notions of individualism, subjectivism and individual choice gain in taken-for-granted status, they also mandate the legitimacy of certain types of (religious) identities and actions while delegitimising others. Ultimately, it is not only the tension between a state-independent and state-dependent ‘pole’ that orients struggle in the field, but also the degree of legitimacy certain cultural understandings of rights and identities enjoy. The judges of the Court converged with these general assumptions when they ruled in Kokkinakis that: According to Article 9 (art. 9), freedom to manifest one’s religion is not only exercisable in community with others, ‘in public’ and within the circle of those whose faith one shares, but can also be asserted ‘alone’ and ‘in private’; furthermore, it includes in principle the right to try to convince one’s neighbour, for example through ‘teaching’, failing which, moreover, ‘freedom to change [one’s] religion or belief’, enshrined in Article 9 (art. 9), would be likely to remain a dead letter.76

It must be noted, however, that they did not ultimately rule that the Greek antiproselytism law as such violated such principles. Instead, the majority of the judges ruled in favour of Kokkinakis and two of the three applicants in Larissis on the ground that they had not overstepped the line towards improper proselytism. Thus, while a liberal understanding of religious freedom was granted legitimacy, the Court was reluctant to go too much against the state in defining the limits within which this understanding is to be implemented. Despite the Court’s reluctance to push against the Greek law on proselytism, the lasting achievement obtained through Kokkinakis was the pluralism principle therein pronounced. The emphasis on religious diversity and pluralism, and the Court’s commitment to protecting such pluralism, was one of the dominant frames in all the early cases in which the Court found a violation of the right to religious freedom. Such a frame might appear self-evident but is nevertheless important to note. Not only does this idea illustrate the normative horizon within which subsequent struggles at the Court would be fought, it also opens the path for the counter-majoritarian activism that the very same groups supporting Larissis would seek to restrict a decade and a half later when it threatened to undermine the privilege of Christian churches in Western Europe (chapter four). It is also interesting to note how this frame was enmeshed with notions of the ‘free religious marketplace’, which reminds us of the idea of the deregulation of the religious landscape prevalent in the United States (Finke 1990). In the preface to his aforementioned book, Larissis’ advocate Montgomery argued for an ‘open marketplace of religious ideas’: It is the author’s contention that religious establishment per se (a state church) is not the source of the problem to be found in Greece. The state and its established

76 Kokkinakis

v Greece (n 2) § 31.

82  Enacting the Liberal Script church, in Greece and elsewhere, should distinguish between ‘first generation’ human rights (civil liberties) and ‘second generation’ rights (economic and social benefits), carefully limiting the privileges of establishment to the latter whilst preserving an open marketplace for religious expression and practice on the part of other belief systems.77

Although Montgomery did not put into question the existence of an established church per se, he claimed that it should not contravene an open space where all religiosities can be equally expressed. This line of reasoning emerged at multiple moments in the argument. Pointing to the fact that the overwhelming majority of the Greek population belongs to the Orthodox Church, Montgomery argued in his concluding oral argument: ‘The Greek, no less than the other nationalities of Europe, deserves to be able to test his or her religious beliefs in the marketplace of ideas, subject to competition and criticism from other viewpoints’.78 A third, and final, line of argument appearing in the early cases at the Court was that of freedom of speech. While the reference to the ‘free religious ­marketplace’ indirectly recalls the principle of non-regulation prevalent in the American conception of secularism, this line of argument more directly shows US influence. For example, referring to the high-profile US Supreme Court jurisprudence on freedom of speech, the lawyers in Larissis stressed that although ‘not all kinds of speech are protected by the 1st Amendment to the US Constitution’, it was not allowed to ‘regulate in advance what may be said or published’. Thus, giving the example of the US Navy Regulations regarding the treatment of religion, they asked: ‘[W]ould we want anything less in the European military scene?’79 Another example is the oral arguments of the lawyers in the Metropolitan Church case. Arguing that defining the boundaries of a religious body is exclusively the task of that religious body, they claimed the following: Suppose, in the United States, the government were to assert that Southern Baptists could not function as a recognised church body, since their beliefs are really no different from those of the Northern Baptists – and that Southern Baptists should be satisfied to worship in Northern Baptist churches? Would anyone today in a civilised nation benefiting from the common or civil law traditions regard this as a legitimate governmental act?80

Finally, although no such traces of US jurisprudence can be found in Kokkinakis, another early Jehovah’s Witnesses case, Valsamis v Greece, includes a reference to American free speech law.81 The case concerned the exemption 77 Montgomery (2001) (n 37) xi. 78 ibid, 121. 79 Larissis v Greece, written arguments in Montgomery (2001) (n 37) 82–83. 80 Oral submissions in Metropolitan Church of Bessarabia v Moldova (n 72). 81 Valsamis v Greece, App no 21787/93 (ECtHR, 18 December 1996). The case concerned the request of a Jehovah’s Witness schoolchild to be exempted from religious education, Orthodox masses and festivities celebrating national holidays. Specifically, the application challenged the punishment for refusal to participate in a school parade.

Enacting the Liberal Frame of Religious Freedom  83 of a schoolchild from parades and other national celebrations at school. As Goldhaber reported, Kokkinakis’ lawyer drew in this case on a ‘canonical’ First Amendment passage authored by Justice Robert Jackson. Jackson had argued that ‘We can have intellectual individualism and its cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and ­abnormal attitudes’. Mirroring this idea, Kokkinakis’ lawyer argued for voluntary participation in patriotism that would encourage the ‘appeal of our institutions to free minds’ (Goldhaber 2007: 74). Overall, the influences by the US legal field are perceptible upon a close look but should not be taken as a general principle. 

In this chapter, I have examined the formational dynamics of the emerging religious freedom field in Europe. After more than three decades of silence in matters of religious freedom, the highest European court started devoting increasing attention to religious claims. It soon found that the Greek state, but also former communist European countries, were violating the right to freedom of religion. These developments coincided with the institutional reform process allowing the Court to evolve from a Cold War diplomatic tool to a more autonomous actor disposing of a growing leeway to sanction violations of the Convention by states. However, the structural emancipation of the Court alone does not suffice to account for the emergence of a religious freedom field. While the legal activism of all religious groups grew substantially during the 1990s, strategic support structures were particularly developed in the case of Evangelical and Jehovah’s Witnesses’ claims. A fine-grained analysis of these religious actors highlighted the importance of the mutually empowering dynamics between the evolving logic of the autonomous human rights field more largely and the dynamics within transatlantic religious fields. While political change and institutional reform contributed to the emergence of a new legal opportunity structure, the organisational judicialisation that took place within Evangelical and Jehovah’s Witnesses communities allowed them to perceive of these opportunities and expand litigation to Europe. These developments contributed to enacting the individualist and subjectivist template of religious freedom. The institutionalisation of the pluralism frame and the emancipation of the religious individual from the constraints of the national sovereign state pulled the domain of religious freedom towards the state-independent, cosmopolitan pole of the human rights field.

3 Constituting Identities: Sikhs between Symbolic Gains and Legal Marginalisation

T

he previous chapter examined the legal mobilisation and litigation by transatlantic religious movements in the early 1990s. As pioneers of religious freedom struggles in Strasbourg, they played a key role in allowing the religious freedom field to take shape and in establishing the liberal individualist paradigm of religious freedom contained therein. Yet, the liberal expansion reflected by these early episodes of contention is only one dynamic in the progressively emerging field, which remained characterised by a strong tension between liberalising and state-independent forces on the one hand, and the prerogative of national governments over defining secular norms and arrangements on the other. Whereas litigation by Jehovah’s Witnesses and Evangelicals against Greece and other newly emerging democracies in the 1990s encountered a favourable geopolitical opening in Strasbourg, the power balances looked different for certain minorities bringing Western European countries to the European Court of Human Rights (ECtHR) in the 2000s, among which are the Muslim and Sikh communities. This chapter examines how Sikh litigators navigated such tensions, demonstrating how asymmetries of power in the religious freedom field and global projects of community building can affect legal mobilisation, ie infuse the way minorities make use of transnational legal opportunities. This allows me to discuss both the constraining effects of the transnational field in question but also the strategic capacities of minorities to overcome such constraints (even if they are not necessarily successful in terms of legal outcome). Sikh litigants from France are an emblematic case to analyse strategic l­ itigation by actors in a precarious position. In 2007/2008, they brought three cases to the ECtHR. Two concerned the exclusion of Sikh boys from school for wearing the turban, a mark of their religious belonging. Another one concerned the non-renewal of a driver’s licence based on the refusal to provide a picture without the turban.1 The litigants were pessimistic about their chances of success: 1 Ranjit Singh v France App no 27561/08 (ECtHR, 30 June 2009); Jasvir Singh v France App no 25463/08 (ECtHR, 30 June 2009); Mann Singh v France App no 24479/07 (ECtHR, 13 November 2008).

Constituting Identities  85 ‘We knew we were going to lose’, one of their lawyers admitted retrospectively, alluding to the negative precedents set by Muslim peers in the preceding years.2 Indeed, there was little hope for them to win, given that the Court had already rejected Muslim applications opposing headscarf bans in Switzerland, Turkey and France.3 This negative prediction turned out to be right. The door was locked before the litigants could gain a foothold in Strasbourg, as the registrar, who filters incoming applications, declared their requests inadmissible. Although they saw their loss coming, the Sikh applicants and especially their advocacy support, the NGO UNITED SIKHS, did not leave the slightest doubt about their determination to sue the French state at the ECtHR.4 This poses the question of why and how they appealed even though their chances of success were close to zero. Addressing this question, the chapter argues that while transnational legal norms create opportunities for marginalised minorities to voice their grievances, it is not only the outcome of their cases, but the process of legal mobilisation as such which bears the imprint of asymmetrical relations of power. More specifically, the chapter makes two arguments: first, it demonstrates that legal mobilisation by Sikh activists was connected to a longer process of transformations in the organisational field of the Sikh diaspora. Progressively, rights discourses became a central frame of reference and meaning for engaged activists. In making this argument, I join authors who have emphasised the importance of organisational identity formation for the attribution and activation of legal opportunities (Edelman, Leachman and McAdam 2010; March and Olson 2008; Vanhala 2011). As in the case of Jehovah’s Witnesses, I argue that the transnational nature of Sikh community-building was central in Sikh activists litigating despite the absence of any discernible legal opportunity structures. Second, I examine how the Sikhs’ positioning in both the diasporic and the religious freedom field has translated into legal tactics. In so doing, I draw on the notion of ‘challengers’ as suggested by Fligstein and McAdam. Challengers have to accommodate an underprivileged situation, since they occupy ‘less privileged niches within the field and ordinarily wield little influence over its operation’ (Fligstein and McAdam 2012: 13). They therefore tend to embrace and adapt to the legal categories established by more powerful stakeholders. As I will show, Sikh advocates accommodated both their marginalised position and ambition of community building by attempting to frame the Sikh turban in line with the dominant secular view of religion, as an internalised holding of religion rather than an external expression. Their mobilisation did not aim primarily at contesting secular arrangements in France, but rather at targeting the construction of

2 Interview 16, lawyer involved in Sikh ECtHR cases, London, 24 November 2015. 3 In particular: Dahlab v Switzerland App no 42393/98 (ECtHR, 15 February 2001); Leyla Sahin v Turkey App no 44774/98 (ECtHR [GC], 10 November 2005); Dogru v France App no 27058/05 (ECtHR, 4 December 2008); Kervanci v France App no 31645/04 (ECtHR, 4 December 2008). 4 Interview 16, 2015 (n 2).

86  Constituting Identities a certain identity-image for Sikhs. Even though the Sikhs did not change the dominant order, they can be seen as ‘counterpublics’ who ‘invent and circulate counterdiscourses to formulate oppositional interpretations of their identities, interests, and needs’ (Fraser 1992: 123). These discourses might remain marginal yet participate in constructing a larger transnational judicial field.5 Some contextualisation is necessary before going into the analysis. Although religious litigants from migrant communities had already addressed the Court during the 1990s, they became much more active at the beginning of the 2000s. While the Sikh cases have gone almost unnoticed in this respect, Muslims have received substantially more attention. Cases involving Muslim individuals initially mostly reached the Court from Turkey.6 Since the 1990s, however, the number of claims by Muslims from Western Europe has substantially increased, surpassing the number of applications of other minorities (see chapter two). Claims directed against the headscarf prohibitions in the public sphere, which were debated and implemented in multiple European states were particularly frequent. These controversies were highly politicised and made the boundaries of the varying secular settlements across Europe particularly salient (eg Carol and Koopmans 2013). As such, they have been described as ‘challenges to the secular consensus’ (Amir-Moazami 2005), as windows into internal tensions of national state-religion regimes (Bowen 2010) and as ‘mirrors of identity’ (Joppke 2009). I will explore the litigation dynamics in conflicts pertaining to Muslim expressions in the public sphere in chapter five. What is important here is that Muslim losses in Strasbourg affected the Sikh communities’ margin of action when challenging the prohibition of wearing the turban in public institutions. Dahlab v Switzerland and Şahin v Turkey were the first prominent cases in which challenges to such prohibitions were to be rejected.7 The Court confirmed its position in Dogru v France and Kervanci v France.8 The cases followed the passing of the 2004 law prohibiting the wearing of ostentatious religious signs in public schools. In all headscarf cases reaching the Court before 2009, the latter decided to grant a broad margin of appreciation regarding state-religion relations 5 See Harms (2021) for a condensed version of this argument. Materials presented in this chapter have also been incorporated in this publication. 6 Some exceptions should be noted though: Serif v Greece App no 38178/97 (ECtHR, 14 December 1999); Supreme Holy Council of the Muslim Community v Bulgaria App no 39023/97 (ECtHR, 16 December 2004); Hasan and Chaush v Bulgaria App no 30985/96 (ECtHR, 26 October 2000); Haci Mehmet Karakuzey v Germany App no 26568/95 (ECtHR, 16 October 1996); Imam and Others v Greece App no 29764/96 (ECtHR, 20 October 1997); Ahmet Sadik v Greece App no 18877/91 (ECtHR, 15 November 1996); Islam v United Kingdom App no 26651/95 (ECtHR, 13 May 1996). 7 Dahlab v Switzerland (n 3); and Leyla Sahin v Turkey (n 3). Dahlab concerned an application by a primary school teacher against the prohibition of the wearing of a headscarf. It was declared inadmissible. Sahin concerned the prohibition of the wearing of the headscarf by a student in the Faculty of Medicine. The ban was considered legitimate for reasons of public order and for the sake of the protection of pluralism in a secularist state. 8 Dogru v France (n 3); and Kervanci v France (n 3).

Diaspora Politics and Legal Mobilisation   87 to national governments (Evans 2012; Nieuwenhuis 2005). As a result, critical legal scholars and social scientists have frequently pointed to the imbalance between the recognition of Christian and Muslim legal requests (Danchin 2011; Mancini 2010; Moyn 2015), arguing that Strasbourg’s freedom of religion jurisprudence is underpinned by states’ preference for an assertive secularist stance. This position, from where religion is imagined as a purely private matter, appears to square particularly well with the Protestant heritage of religious freedom norms (Danchin 2011; Dembour 2000; Gülalp 2010; Martínez-Torrón 2012; Peroni 2014). Danchin, for example, joining Mahmood’s critical approach to religious freedom politics, has argued that ‘there are deep unarticulated premises underlying the Court’s reasoning regarding Islam and the claims of Muslim communities that conceal an underlying historical and political reality consisting of relations of power, cultural hegemony, and subordination’ (2011: 741). It is clear, in other words, that Muslim minorities have in certain respects a ­relatively narrow margin of action. Acknowledging this narrow margin of action and the taken-for-granted templates encoded in the right to freedom of religion, this chapter is interested in how such religious actors accommodate their position in the legal field. So why do I focus on the Sikh cases rather than the politically more prominent and numerically more weighty Muslim cases? Even though Sikh litigation was a more minor judicial event, it epitomises many dynamics that are central to the religious freedom field. On the one hand, the Sikh protagonists faced a highly precarious legal situation, as their claims were equated with those of their previously unsuccessful Muslim peers. On the other hand, however, they were embedded in a transnational advocacy alliance that enabled them to actively challenge this marginalisation. Especially in the early 2000s, this embedding in a transnational alliance was less obvious for Muslim claims against headscarf prohibitions, even though some of them were supported by international human rights lawyers (chapter five). The Sikh cases provide a close-up view on how strategically equipped yet marginalised actors seek to find their place in the religious freedom field. It thereby allows us to shed light on the ambiguous dynamics constituting the religious freedom field. In the following, I will first explore the transnational religious dynamics, which helped Sikh advocates to pursue their cases despite the absence of any viable legal opportunity structure. I will then turn to the question of how these strategic litigants accommodated their precarious legal position vis-a-vis incumbent states, but also vis-a-vis their Muslim other. DIASPORA POLITICS AND LEGAL MOBILISATION

Sikhs litigated despite a particularly hostile legal situation at the Court. To explain this paradox, it is important to understand the Sikhs’ legal activism in the context of their diasporic experience. Legal awareness was the outcome of

88  Constituting Identities a progressive conversion from an ethnic project of nation building to the defence of civil rights within the dispersed community. This shift was closely related to transformations in the organisational field of the Sikh diaspora. Assessing the Sikhs’ legal activism in the ECtHR against their diasporic background adds into showing how actors’ transnational organisational trajectories inform the dynamics of legal mobilisation at the ECtHR and can even activate legal opportunities when there are none. From Ethno-Nationalism to Human Rights Sikh legal activists have to be situated against the broader historical background of the Sikhs as a ‘people on the move’ (Talbot and Thandi 2004). Expanding far beyond the north-western Indian region of Punjab – the b ­ irthplace of Sikhism – around 30 per cent of the Sikh community, comprising about 23 million followers, reside outside Punjab. Today, Sikhism is a ‘global religion’ (Juergensmeyer 2014) with large communities living, in particular, in Canada, the United States and the United Kingdom. Sikh migration to Europe started with a large number of Sikhs joining the armed forces of the British Empire between the mid-nineteenth century and the First World War. Large-scale migration, however, only began in the early 1980s, even though the Sikh diaspora in Europe has remained rather small to date. It is generally estimated that about 1.5 to two million Sikhs are living outside India with the largest community residing in the United Kingdom.9 One author estimates the Sikh population in France at around 10 to15,000 individuals (Thandi 2012: 16). The partition of Punjab in 1947, with the formation of India and Pakistan as part of the end of British colonialism, had a deep impact on the territorial identity of this close-knit religious community. Later, the experience of becoming a borderland and living in a territory divided into two rival nations triggered the Sikh undertaking known as the Khalistani movement for a separate territory. The movement was brutally suppressed by the government of India. This included an attack by the Indian army on the Golden Temple, the historic religious centre and major pilgrimage site of the Sikhs. The subsequent assassination of the then Prime Minister of India, Indira Gandhi, by her Sikh guards resulted in widespread attacks and massacres of Sikhs in Northern India, especially in Delhi in 1984. These were moments which had a deep influence on shaping migration patterns as well as Sikh sub-nationalism (Juergensmeyer 2008: 115–25). Giorgio Shani, who is interested in the contemporary transformations of the Sikh diaspora, has noted in this respect, that the ‘ethnic boundary created by violence in the Punjab helps explain the transformation in the consciousness of Sikhs living overseas. Indeed, it can be argued that a specifically Sikh identity in the diaspora only emerged as a result

9 For

a quantitative overview, see Tatla (2014: 499–500).

Diaspora Politics and Legal Mobilisation   89 of violence in the Punjab’ (2008: 94). As Dusenbery (1997: 741) has pointed out, being both ‘consumers and producers of Sikh nationalist ideologies that circulate transnationally’, the Sikh diaspora has been strongly involved in the ethnonationalist movement. For example, the major Sikh organisations outside Punjab, such as the World Sikh Organization and the International Youth Sikh Federation, promoted the Khalistani movement among the ­ diaspora. They simultaneously organised activities in particular around gurdwaras (Sikh places of worship) and the most important community institutions of the diaspora (Biswas 2004; Tatla 2014). The often-enthusiastic participation of Sikhs living outside Punjab in the ‘politics of the homeland’ evolved over time into a struggle for political recognition of their ethnic and religious specificity in their respective places of settlement (Shani 2008).10 Judicial fights for identity recognition – in particular, the right to publicly wear the five Sikh articles of faith – are not a new phenomenon in this context. For example, supported by the pro-Khalistan organisation World Sikh Council, Canadian Sikhs vigorously defended their right to wear the kirpan, commonly designed as the Sikh ‘turban’ in schools (Kislowicz 2013, 2015; Stoker 2007). When state politics became increasingly hostile to multiculturalism in the aftermath of 9/11, political activists from the Sikh diaspora redefined the nationalist project into claims for the recognition of Sikh distinctiveness (Shani 2008). As Shani has argued, it is in the context of this progressive transformation of the ‘politics of the homeland’ into the ‘politics of recognition’ that UNITED SIKHS appeared on the international stage as a new voice defending the global Sikh community. Importantly, this actor would later constitute a crucial driving force behind the litigation conducted in European courtrooms. Progressively, with the simultaneous slackening of the Khalistani movement and the intensifying feeling of being targeted as an ostracised minority in the aftermath of 9/11, the landscape of Sikh organisations was transformed. Groups such as the Sikh American Legal Defense and Education Fund, the Sikh Coalition or UNITED SIKHS grounded their organisations in legal networks that had previously been established as part of the defence of the ethnonationalist project of Khalistan. In this context, the NGO UNITED SIKHS was founded in 1999 in New York. Shani (2008: 115) has noted that it belonged to a ‘plethora of organizations which have sought, first, to protect Sikhs from racially

10 ‘Politics of the homeland’ might also be referred to as ‘long-distance nationalism’, alluding to the idea that one’s identification with a distant territory can be strengthened through migration and exile. The nation as a community of belonging can thus extend beyond its territorial borders (Anderson 1992). ‘Homeland politics’ figures prominently in diasporic communities and is constitutive of the current transnational condition. Vertovec (2009: 96–97), for example, has described the broad array of practices through which ‘overseas communities are increasingly engaging themselves in the economic, social and political life of their country of origin while sending states and other political actors are trying to channel this engagement to their own advantage’. Cohen (1995: 13), for example, has noted: ‘Awareness of their precarious situation may also propel members of ­diasporas to advance legal and civic causes and to be active in human rights and social justice issues’.

90  Constituting Identities motivated attacks or “hate crimes” and, second, to protect the civil rights of Sikhs from increased “securitization”’. Allegedly apolitical, UNITED SIKHS’ declared mission is to ‘recognize the human race as one’, with actions ranging from humanitarian aid to community education and civil rights litigation.11 Complementing a host of other activities, litigation was only progressively added onto UNITED SIKHS’ agenda.12 The international legal director of the organisation described this conversion of an initially community-serving entity into an advocacy organisation, prompted by the events of 9/11: ‘UNITED SIKHS started off in New York in 1999 as a non-profit organisation where the major concern was empowerment and community service. That was in 1999’, she underlined: But in the year 2001 when 9/11 happened, the whole focus of the organisation shifted to advocacy and the Sikh identity. Because the first person to be killed after 9/11 wore a turban and Bin Laden wore a turban. It became clear that he was killed because he wore a turban and that was the first collateral damage of 9/11.13

Legal developments in France added on to this perception. Conflicts over the legitimacy of Muslim women and girls wearing the hijab in public institutions started in 1989 when several Muslim schoolgirls were expelled from a public school in France after having refused to lift their veil that was considered contrary to French laïcité. Simmering in many local episodes of contention, the hijab conflict ultimately gave rise to a much-debated general prohibition of ostentatious religious signs in public schools in 2004.14 Considering the 2004 law as the direct consequence of 9/11 and perceiving an intensified risk of Sikh identity being the focus of considerable violence, the organisation which started as ‘community-based became an advocacy organisation soon after 9/11’.15 The litigious turn was seen as an instrument to counter and prevent damage caused by 9/11. However, it did not signify a break with the diasporic past that had been constructed around the concern of national belonging. Rather, law became a form of social remittance (Levitt and Lamba-Nieves 2011), or symbolic capital, destined to serve the diaspora project. The enduring struggle for identity formation and the experience of ostracism were deeply enmeshed in the judicial project.

11 ‘Recognize the Human Race as One’ is the heading of the official homepage of the organisation: www.unitedsikhs.org. 12 UNITED SIKHS supports humanitarian projects in different parts of the world. They also raise funds and offer support to a range of educational activities, as well as mobilise support for community members on social matters (health, professional careers, family life). See: www.unitedsikhs.org. 13 Interview 3.1, international legal director, UNITED SIKHS, 13 May 2015 interview conducted via skype. 14 French law on secularity and conspicuous religious symbols in schools: Article L141-5-1, créé par Loi no.2004-228 du 15 mars 2004. There is an abundance of literature on the headscarf controversy which eventually resulted in the passing of the 2004 law. See, eg (Bowen 2007a; Joppke 2009). 15 Interview 3.1, 2015 (n 13).

Diaspora Politics and Legal Mobilisation   91 UNITED SIKHS took the lead in the local and international fight the Sikhs were soon to be involved in. At the end of 2004 three schoolboys of Sikh confession were expelled from their school in the Parisian suburb of Bobigny after having refused to renounce the wearing of the turban (dastaar) to cover their hair, which remains uncut according to one of the five articles of the Sikh faith.16 Allegedly amounting to an ostentatious religious sign, the wearing of the turban at school had been considered – as much as the hijab – irreconcilable with the principle of laïcité.17 Furthermore, the French authorities refused to renew the driving licence and identity card of two Sikh men from the same community due to their refusal to provide an identity photograph without the turban. UNITED SIKHS contacted the local community and families immediately and made them their ‘clients’.18 Four years later, several concerned individuals, supported by UNITED SIKHS among others, found themselves knocking at the door of the ECtHR, but also the United Nations (UN). Thus, to my knowledge, five Sikh indviduals submitted cases to two different international human rights bodies. Ranjit Singh, Jasvir Singh and Shingara Mann Singh submitted applications to the ECtHR. As I said in the introduction to this chapter, the first two complained against the turban prohibition in schools while the latter challenged the refusal of French authorities to renew his driving licence featuring a photograph with the turban. This latter individual also submitted, with the help of UNITED SIKHS, a case to the UN Human Rights Committee (CCPR) where he complained about the non-renewal of his passport. Two more cases were filed with the CCPR by Bikramjit Singh and Ranjit Singh (2), which concerned respectively the school conflict and the non-renewal of a residence permit.19 As pointed out before, their determination to sue the French state appears intriguing. In fact, one of the lawyers involved recalled that they did not expect to win the cases: ‘Looking at the previous case law of the European Court of Human Rights, from religion in general and Sikhs in particular, it seemed likely that we would lose the case’.20 Adding to this pessimistic forecast, not everyone in the Sikh community supported the idea of challenging the law in court. By way of illustration, UNITED SIKHS’ international legal director vividly remembered the headwind coming from some quarters of the Sikh community: And also before I move on to talk about UNITED SIKHS and what we have been involved in, I would let you know that after the French turban issue, the biggest fear

16 Sikhs define five articles of faith (kakaar): (1) unshorn hair (kesh); (2) a small comb for the hair (kangha); (3) a steel bracelet (kara); (4) a sword (kirpan); (5) knee-length breeches (kachera). The tenth Sikh guru Gobind Singh had advised all Sikh followers to always wear these five items. 17 Conseil d’État No 285394, 5 December 2007. 18 Interview 3.1, 2015 (n 13). 19 Ranjit Singh v France, Jasvvir Singh v France, Mann Singh v France (n 1); Bikramjit Singh v France (1 November 2012) Communication No 1852/2008 CCPR/C/106/D/1852/2008 Ranjit Singh v France (22 July 2011) Communication No 1876/2009 CCPR/C/102/D/1876/2009; Shingara Mann Singh v France (29 July 2013) Communication No 1928/2010 CCPR/C/108/D/1928/2010. 20 Interview 16, 2015 (n 2).

92  Constituting Identities that people [from the Sikh community] tried to put in us, especially people that wanted us not to go to court, was that if it goes against you, you know, then there will be a domino effect in the whole of Europe. The rest of Europe will also ban the turban. But faith is a very curious thing. Faith is something that common sense would not make you do.21

However, despite the resistance and the anticipated legal obstacles, the advocacy group knew from the outset that they would legally challenge the French law of 2004. Why? First of all and reiterating the findings of the broader literature interested in legal mobilisation, the relative scarcity of resources that this ­minority had to face made litigation a tool that seemed more easily accessible than other means of political influence. In this sense, the international legal director – answering the question as to why the Sikh community was mobilising in courts – emphasised that they aimed to challenge the law through legal and not political channels. ‘[We] are such a minority that we would never get a vote in our favour. So, we challenged it in the courts’.22 Yet, second, beyond this material pragmatism as ‘have-nots’ (Galanter 1974), the Sikh advocates’ engagement with the ECtHR was also linked to the transnational diasporic condition of the community and its progressive judicialisation. While the legal ‘logic of appropriateness’ became dominant in the organisational field, defending the collective Sikh identity remained an equally important part (Shani 2008: 100–02) – even in the courtroom.23 Although UNITED SIKHS claimed an apolitical stand regarding the ethnonationalist question, the emerging ‘politics of recognition’ directly followed the aforementioned ‘politics of the homeland’. As I will show now, the ambition of transnational community construction and the anchoring of a legal consciousness within the community helped in opening a legal opportunity structure where objectively there was none. ‘Every Sikh is a Case’: Symbolic Capital for Transnational Community-Building The shifts in the Sikh organisational field prepared the ground for legal frames to emerge as new templates for meaning making. Anchoring this template within local communities became the mission of UNITED SIKHS. Therein, litigation served – among other things – to create a cohesive sense of common, border-transcending belonging among community members. Yuval-Davis (2006: 197) has noted à propos the politics of belonging that it ‘comprises

21 Interview 3.1, 2015 (n 13). 22 ibid. 23 Van der Veer (2015: 8) has referred to the Sikh example in order to illustrate that ‘transnationalism does not transcend nationalism but is intimately connected with it’.

Diaspora Politics and Legal Mobilisation   93 specific political projects aimed at constructing belonging in particular ways to particular collectivities that are, at the same time, themselves being constructed by these projects in very particular ways’. She has emphasised that the politics of belonging always involves the construction, reproduction and contestation of boundaries of collective identity (ibid: 205). The Sikhs’ litigation project at the ECtHR can be understood from this perspective not only as an attempt to gain in legal legitimacy, but also to accumulate symbolic capital valuable in the field of diaspora politics. The legal activism constituted a top-down project of belonging and did not, in the first place, arise within the local community of the Parisian suburb of Bobigny. ‘Chirac was going to pass a law. This was in 2003 and 9/11 was in 2001’, UNITED SIKHS’ international legal director recalled, explaining that, when the French conflict became virulent, they ‘were very, very alive to this issue of Sikh identity’. When hearing about the French Sikh schoolboys on BBC radio and television, UNITED SIKHS did not hesitate to leap to their aid. They ‘immediately contacted the local Sikh community and … found out who were the boys who were refusing to remove the turban’. The international Sikh advocacy group, ‘coached’ the local community of Bobigny: ‘We spoke to the family and made them our clients’.24 Moreover, by becoming involved in the local context UNITED SIKHS expanded their organisational ties. Its international legal director supervised the judicial conflicts and took charge of establishing local modes of cooperation, ensuring that the NGO took the lead in organising the judicial steps: I am the international legal director of UNITED SIKHS which means that whenever in any country there is a legal problem to do with the Sikh identity and if there is no local chapter, then I do the work from the UK if there is no chapter. If we can manage without setting up a chapter, we do it. But we usually try to set up a chapter.25

UNITED SIKHS’ ambition is to create a unified, transnational approach to Sikh identity and religious practice and to ensure that all Sikh community members define the legally defended identity on the same terms. Meanwhile, the organisations’ international legal director supervised the logistics of this ambition: ‘I would not do litigation. Because then I would not be able to be everywhere. I will guide them … as to what the law now provides for them’.26 Overseeing the entirety of litigation of local Sikh communities and ensuring a flow of information across country borders, the organisation tried to ensure cohesiveness across the legal fights. ‘So, when we do a project there, we like to do it with the local community’, the international legal director emphasised. ‘So, we set up a registered body in that country and we [make] sure that the mission statement of the organisation is followed in all the countries’. Being on the board of all missions



24 Interview

3.1, 2015 (n 13).

26 Interview

3.2, UNITED SIKHS, international legal director, London, 18 November 2015.

25 ibid.

94  Constituting Identities worldwide, she ‘make[s] sure that there is consistency in the approach’.27 To illustrate her role as a ‘watchdog’ of the litigation process, the legal director, during our interviews, referred to a recent case in the United Kingdom. It concerned a Sikh employee who had been dismissed from work because of ­wearing the kirpan. She remembered that, while travelling, she was revising the legal defence elaborated by the lawyers instructed to take on the case. Similar to the supervisory role of the Watchtower of the Jehovah’s Witnesses in New York (even though the overall structure of the community is very different), UNITED SIKHS’ international legal director sought to ensure that international case law linked all the cases coherently: So then I said, what else are you citing in the letter? You know, I just opened my mouth. That’s what I mean by ‘I have to be the watchdog’. He said ‘Oh, I am citing the case of the kara which went to the high court [not understandable] where it has been ruled that [the Sikh student] can wear the kara. So, this is the part where … I want you to show how we have to give due diligence to all our cases … I said, ok, this is a good case but it’s a kara case. It’s a strong case because it’s a high court [case] but you have to give some citations for kirpan. I had given him a letter I had written to another employer successfully to allow the kirpan to be worn where all the citations were there … which he either did not pick up or whatever. So, then, in my rush to the Eurostar, I had to give him all the citations which is a Canadian citation because the Canadian Supreme Court ruled a schoolboy had the right to wear the kirpan … So, God blessed me there and I sent him all the citations and he revised his letter. So, that’s the role.28

Insisting on UNITED SIKHS’ duty ‘that nothing must be written or said in court without our approval’, UNITED SIKHS aims to create a unified approach to the turban, thereby shaping a transnational frame of shared identity.29 Aware that local lawyers need to be involved, my interviewee maintained that UNITED SIKHS has the last word in the ultimate legal interpretation: We need local lawyers, but the way in which the religious rights are presented, we definitely have a say in it. For example, we do not want them to say, oh Sikh boys have to wear the turban and uncut hair. Actually it is boys and girls! So, mistakes like that can happen. So, we go and brief, we help and write it, we research for it and we give them all the material because they don’t know the Sikh religion. If they just google, they will find different answers. So, we make sure that they do not just google.30

UNITED SIKHS’ legal director insisted on the importance of ensuring a unified theological approach among the global community of Sikhs. However, this is not, she argued, to ‘create the religious theology around the articles of faith’. Rather, the federation of global support was to make sure that no client compromises in his ignorance with that … Because when a person is fighting a battle alone, he makes compromises. But when he knows that

27 Interview

3.1, 2015 (n 13). 3.2, 2015 (n 26). 29 Interview 3.1, 2015 (n 13). 30 ibid. 28 Interview

Diaspora Politics and Legal Mobilisation   95 there is an organisation behind him and we tell him that he does not have to compromise, then that makes sure that he is consistent in his belief.

Emblematically, the legal director resumed her explanation by underlining that, ‘by our universal approach, we give them the courage to stick to their guns’.31 What becomes clear is that mobilising in Strasbourg did not only serve to reach the French Sikh community. It was meant to unite the diaspora, quarters of communities in distant places, around a common understanding of faith and rights. Given this ambition to reach a transnational audience, litigation became purposeful beyond the question of judicial success and served as symbolic credit in community building. As we will see in chapter five, this contrasts with the perspective of local Muslim activists. The transnational perspective, I argue, allows relegating local concerns of political marginalisation to the background and rather conceiving of litigation as serving a broader – in fact global – aim. The ‘top-down’ strategy deployed to ensure a common legal approach came to fruition in the Bobigny community. A grassroots movement started taking shape at the local level, echoing the community priority on which UNITED SIKHS had placed a particular emphasis. For example, involved community members did not conceive their judicial fight as a matter of individual injustice, but as a fight on behalf of the global Sikh community. One of the involved individuals stated in a short video documentary about the turban controversy in France: ‘You must remember, this is not a case of six people fighting for their right to wear the turban. This is about 25 million Sikhs’ right to wear the turban’.32 Ten years after the events, one of my interviewees remembered the experiences in a very similar way: ‘It’s the future of the community that is at play. It is not just the future of three boys. This is why, from the outset, the entire community has joined a fight that concerns everybody’.33 Similarly, one local community member in Bobigny who was involved in the events also perceived the ECtHR cases as a fight for the community and emphasised the leading role of UNITED SIKHS.34 As much as litigation served the creation of a diaspora-wide understanding of the Sikh religion, the community itself was made an ally of the legal project. Not only did it serve as a resource for financial capital for the litigious project, but the creation of a collective legal mind would also ensure the wider impact of the legal strategy and be a potential source of repeat litigation. Relating to the first aspect, the community wide networking was essential to finance a specialised legal defence. In fact, as soon as the ECtHR appeared on the litigants’ horizon, UNITED SIKHS engaged a lawyer with significant experience and

31 ibid. 32 Taken from part of the Right to Turban Campaign film: www.unitedsikhs.org/rtt/. 33 Interview 28, Sikh community member involved in turban conflict, Bobigny, 28 January 2017 (original in French, translation by the author). 34 Interview 1, community member involved in turban conflict, Bobigny, 11 May 2015.

96  Constituting Identities connections in the professional community of human rights lawyers. Working as a lawyer for the London-based law firm Bindmans, he is a renowned expert in the defence of civil liberties and human rights.35 Importantly, Bindmans was behind a very early successfully defended Sikh case in the United Kingdom, Mandla v Dowell Lee, during the 1980s, which concerned the right to wear the turban, as protected under the Race Relations Act, voted upon by the British Parliament in 1965.36 Importantly, the capital, ie, the legal knowledge, status and reputation that the Sikhs’ lawyer had accumulated throughout his career, very much corresponded with the types of capital valued within the human rights field. As a lawyer with parallel careers in both the national and the international judicial sphere, he embodies the ideal type of cosmopolitan lawyer considered by various authors as a central figure in the formation of the human rights field (Dezalay and Garth 1996; Madsen 2017). He was a perfect fit for the NGO’s agenda of ensuring a transcending judicial approach, which resonated at the local as well as the international level. Getting in touch with a professional human rights lawyer required the availability of economic capital. Once again, UNITED SIKHS’ coordinating role proved important. In order to raise the funds necessary to finance the fees charged by the legal firm Bindmans, the organisation’s international legal director turned towards gurdwaras around the world. How did you raise the funds for Bindmans? Oh God, I had to go around the world to all Sikh Gurdwaras, talk about the case and ask them to donate. I had to raise funds. It was hard. Well, it was not hard then, it is harder now, because you cannot raise funds from the same person so many times [laughs]. In a way … it was necessary. Because I was then talking to my constituency. The community is my constituency as a lawyer. So, when I went to the Gurdwaras, I was informing them … social media wasn’t very up then … So, I was communicating. When I went up there, I was talking about the cases, told them what was happening. I was like an MP, I was informing them … The French turban cases costed something like 100,000 euros. But the real cost, my time, the pro bono lawyers, is at least half a million.

From this vantage point, community building and mobilisation had a very concrete material purpose for the legal enterprise. While UNITED SIKHS’ action served the legal awareness-building of the diaspora and hence the idea to address the courts, it also gathered the material means to do so. Besides providing financial resources for the litigation project, the Sikh community itself was meant to become ‘its own advocate’, ie, a source of repeat

35 Bindmans was founded in 1974 and specialises in the defence of civil law and human rights: www.bindmans.com/about-us/history [March 10, 2017]. 36 Mandla (Sew Singh) and another v Dowell Lee and others [1983] 2 AC 548. The act was the first legal document in the United Kingdom outlawing discrimination on the ‘grounds of colour, race, or ethnic or national origins’ (Race Relations Act 1965).

Diaspora Politics and Legal Mobilisation   97 litigation and broader legal advocacy.37 In this sense, UNITED SIKHS aimed at the empowerment and education of the entire community in order to facilitate its participation in the litigation project. Again, the envisioned scope was transnational. The organisation’s international legal director underlined that ‘Every walking Sikh is a case’, when stressing the importance of the community participation. ‘Everybody is facing it. Every Sikh wearing a kirpan is a case’.38 This strategy reflected the organisation’s broader mission statement which was also repeatedly pointed out by the legal director in our interviews: To transform underprivileged and minority communities and individuals into informed and vibrant members of society through civic, educational and personal development programs, by fostering active participation in social and economic activity.39

UNITED SIKHS’ advocacy strategy of creating ‘a global grassroots media, educational, legal and political forum for the upliftment and empowerment of the Sikh community and others’ has been materialised by the set-up of online tools for reporting Sikh rights violations, campaigns encouraging Sikhs to register problems they encounter, and the continuous work of awareness-building in the Sikh diaspora.40 In the wake of the international litigious efforts, UNITED SIKHS organised a transnational conference, imbricating their legal activism in a broader political campaign. The First Global Sikh Civil Rights Conference took place in New York in 2008. The conference – bringing together Sikh advocates and human rights experts – issued ‘recommendations and declarations on crucial civil rights issues facing the Sikh community’.41 UNITED SIKHS’ representatives stated, in the context of this conference, that ‘Sikh Civil Rights Organizations should work at the Gurdwara level to raise awareness among Sikh masses regarding their rights as Citizens/residents and or workers’.42 They further declared that it is ‘incumbent upon the Sikhs to familiarize themselves with the civil rights … in the country of their citizenship/residence/work’. Recommending the need to ‘educate and inform [themselves] and others at every level as to the inherent and inseparable centrality of the Kakaars and Dastaar to the Sikh faith’, emphasising the ‘duty of every Sikh to create awareness about Sikhi’, and encouraging the need to ‘educate others about [the] unique identity as Sikhs’, participants at the conference aimed at raising the level of legal consciousness among community members as a means to contribute to community building. In the context of

37 Interview 3.2, 2015 (n 26). 38 Interview 3.1, 2015 (n 13). 39 Mission statement of UNITED SIKHS. 40 UNITED SIKHS (2008) ‘Adoption of Recommendations and Declarations’. First Global Sikh Civil Rights Conference: www.unitedsikhs.org/rtt/sikhconf/AdoptionOfRecommendationsAnd Declarations.pdf. 41 unitedsikhs.org/sikhs-agree-on-a-global-civil-rights-agenda/. 42 Khalsa Press (2008) ‘Report on First Sikh Global Civil Rights Conference’ (19 December 2008), available at: www.panthic.org/news/123/ARTICLE/4618/2008-12-19.html.

98  Constituting Identities the fifth conference, taking place in 2013, UNITED SIKHS’ international legal director stated that ‘[t]he Sikh identity has to be defended like a nation defends its borders – with vigour and resources’,43 which aimed to provoke community members into contributing to the ‘International Sikh Advocacy and Awareness Fund’, which financed the ‘Right to Turban Campaign’. The statement crystallises how deeply past experiences of Sikh nationalism, current politics of belonging and legal activism are enmeshed. Further illustrating the project of legal consciousness building, the legal director of UNITED SIKHS reported on the idea of issuing a ‘rights card’ for each Sikh citizen which they could carry with them and show whenever faced with a conflict regarding the exercise of the articles of the Sikh faith. Using the law as a tool to raise legal consciousness (Ewick and Silbey 1992; Pélisse 2005) in the everyday life of the global Sikh community, UNITED SIKHS’ litigious agenda served not only the defence of civic rights as such, but also the consolidation of identity among the Sikh diaspora. It is important to recall, in this context, the conceptual observations made in chapter one. Legal awareness and a consciousness of legal entitlements constitute the condition of entrance into the legal field. As Bourdieu (1987: 833) has highlighted in ‘The Force of Law’: Clearly the feeling of injustice or the ability to perceive an experience as unjust is not distributed in a uniform way; it depends closely upon the position one occupies in the social space. The conversion of an unperceived harm into one that is perceived, named, and specifically attributed presupposes a labor of construction of social reality which falls largely to professionals. The discovery of injustice as such depends upon the feeling that one has rights (‘entitlement’). Hence the specific power of legal professionals consists in revealing rights – and revealing injustices by the same process – or, on the contrary, in vetoing feelings of injustice based on a sense of fairness alone and, thereby, in discouraging the legal defense of subjective rights.

UNITED SIKHS aimed to equip the community with this conscience, which was crucial in paving their path to court. Overall, the construction of a cohesive transnational community was both the object of the legal fight and its resource. This finding certainly echoes the claim advanced by scholars of legal mobilisation who have emphasised that litigation can empower and constitute social mobilisation even though it might not lead to immediate changes in public policy (Kay 2011; McCann 1994). At the same time, the Sikh case also illustrates the particular importance of the transnational nature of symbolic capital accumulation. Turning to the courts in general and to the ECtHR in particular was a means to transcend local communities and to create a pattern of identification beyond national borders. As with Jehovah’s Witnesses, this transcending approach relegated local concerns and

43 United Sikhs International (2013) ‘5th Global Sikh Civil Rights Conference in France’ (25 August 2013), available at: www.eifrf-articles.org/UNITED-SIKHS-5th-Global-Sikh-Civil-andHuman-Rights-Conference-in-France_a54.html.

‘Jurimetrics’ of the Challenger: Fitting the Legal Niche   99 individual reluctances to the background. As we will see later in this chapter, this transnational commitment not only helped in opening a legal opportunity where objectively there was none, but it also led the Sikh activists to strike a balance between legal power relations and organisational priorities that did not always meet the agreement of local activists and community members. ‘JURIMETRICS’ OF THE CHALLENGER: FITTING THE LEGAL NICHE

Ostracised by legal precedents and disposing – despite the community wide support – of relatively scarce material resources, Sikh litigators challenged the turban ban from a precarious position. I now turn to the question of how the Sikh advocates accommodated the narrow margin of action within the religious freedom field in Strasbourg while also attending to their diaspora commitments. Overall, their attempt to ‘fit into’ the relations and dominant logics of the religious freedom field appears striking. As such, the case demonstrates how the process of legal mobilisation can implicitly reproduce relations of power engraved in taken-for-granted ideas of identity and law. By focusing (primarily) on framing the religious community and the Sikh turban as an internalised identity rather than, for example, challenging notions of laïcité as such, activists aimed at dealing with both their marginalised position within the religious freedom field and their diasporic commitment. In so doing they also carefully distanced their claim from the most marginalised positions in the field while simultaneously approaching more influential ones. Freedom for the Secular Body? As much as community building constituted a driving force of the litigious project, the Sikhs’ legal position remained precarious. Applying the margin of appreciation doctrine to the headscarf cases, the Court had considered the French law of 2004 as falling into the margin of appreciation granted to national governments in questions where no European consensus exists. In allowing the French state to adopt an assertive understanding of laïcité, it assigned religion to a strictly private domain and enforced an activist stance of the state against religion in the public realm (Kuru 2009; Langlaude 2006). As mentioned before, the Sikh advocates anticipated their loss. This does not mean however that they did not seek to win against all odds. Two observations are particularly noteworthy. As rather marginal challengers, they sought to fit into the legal niche by adapting to the reigning vision of secular religiosity. They thus left the distribution of power as such unchallenged and focused on ‘fitting in’ rather than reshaping legal categories. At the same time, they also strategically sought for niches and cracks to increase the pressure on the Strasbourg judges. In particular, with the support of experienced lawyers and NGOs, they invested various

100  Constituting Identities international legal venues, thereby also putting these venues in competition with each other. While this so-called ‘venue shopping’ is a common phenomenon among l­itigants, transnational legal mobilisation scholars have so far paid little attention to this phenomenon. In fact, contrary to what scholars have emphasised regarding the hijab cases, namely that Muslims ‘invested themselves with the civic responsibility of scrutinizing the unfair implementation of republican laïcité, and in so doing ensuring that a “true” laïcité prevails’ (Barras 2009: 1244), I did not find that Sikh activists engaged with the national ideology of state-religion regulation as a matter of primary importance. Instead, it appears that they first and foremost challenged the 2004 law by assigning a meaning to the turban that corresponds to the requirements of the religious expression as assigned to the private sphere. The lawyer representing them emphasised in his written argument that the turban/keski was a religious, yet perfectly discrete piece of clothing. In the ­written arguments, it is emphasised that [t]he keski is a small discrete piece of cloth, which acts as an under-turban, covering the long hair that is considered sacred according to Sikh religion. It is frequently worn by young boys as a prelude, or as an alternative, to wearing a larger turban.44

The arguments also state that the ‘real’ religious sign was not the turban, but the hair covered by it: [A] Sikh’s uncut hair is a much more conspicuous sign of adherence to the Sikh religion than the keski which covers it. Accordingly, requiring a Sikh pupil to remove his keski, revealing his uncut hair tied in a tress knot, makes his religious affiliation more conspicuous rather than less.45

In the same sense, UNITED SIKHS’ international legal director presented the turban as ‘hiding’ the material religious expression rather than articulating it. This, she emphasised, was their strongest argument in court: Our strongest argument was not very legalistic … the France argument was not that the turban is bad for health or security … but that it affected the rights of others. Secularity was a right they argued. So, we said … you don’t want to allow his turban. But if he removes his turban, you see his top knot. You will know he is a Sikh. It’s more obvious. No one else walks around … So, you deflated your argument.46

By presenting the turban as a way of fitting a religious sign (the long hair) within a secular space, the applicants appeared ‘to render the turban as neutral and innocuous as possible. In other words, they attempted to shift the meaning of the turban so that it did not constitute an ostensible manifestation of religion’ (Beaman 2013: 100–01). 44 Written submission in one of the cases filed with the ECtHR (insight provided by one of my interview partners). 45 ibid. 46 Interview 3.2, 2015 (n 26).

‘Jurimetrics’ of the Challenger: Fitting the Legal Niche   101 Decentring the focus from the religious signification of the turban to the technicality of its presence in the public space became an important legal strategy pursued beyond the cases that reached the ECtHR in 2008. Thus, years after the incident a community member engaged – among others – in the defence of Sikh rights, anticipated a future judicial conflict regarding the display of the turban on European passports. My interview partner saw possibilities for new framing strategies to counter France’s turban prohibition on identity cards. A technical reasoning could further decentre the focus from religion to nonreligious considerations: For us, when we speak about the turban on identity cards, we say that it is a technical problem. Are machines capable of identifying a person who is wearing a turban? Apparently, machines in France are not capable of doing this. Apparently. However, if they have a German passport of a Sikh or an American Sikh, they are able to identify him … When we file a case, we will have experts who will explain that it is feasible. It doesn’t concern religious liberty. Religious liberty is only indirectly concerned.47

I am not aware whether this case has ultimately been filed, but the reasoning is revealing. By presenting the turban as a discreet, non-religious sign, the Sikh advocates were willing to adapt to the assertive secular discourse that implied a very low tolerance towards the public display of religious signs. They thus presented a version of the turban that had a chance of appearing acceptable from the vantage point of restrictive secularists. Valerie Stoker (2007), examining the Canadian Multani case, which concerned the prohibition of the kirpan in Quebec schools, has made a similar observation.48 The litigants in this case attempted to frame the small Sikh dagger in terms that corresponded to the dominant view on secularism. They presented the kirpan as symbolising Sikhs’ specific trajectory as a community in terms of resisting oppression and fighting for equality. They consequently discarded any martial connotations of the kirpan and adjusted its meaning to ideas of multiculturalism. As the same author has argued, this strategy ‘demonstrates that Sikh communities must work within the existing legal and conceptual frameworks of the dominant community. This rhetorical exercise reinforces their status as minorities with limited opportunities for self-determination’ (Stoker 2007: 836). Fitting into the secular niche was one important way in which to adjust to the unfavourable balance of power in the religious freedom field. Yet, while not competing over the principle of power distribution as such, Sikh advocates had sufficient legal resources and strategic capacity to exploit different transnational legal venues, thereby drawing on the ECtHR’s embeddedness in a web of transnational legal fields. With the ECtHR manifesting itself as an increasingly impermeable opportunity structure, the latter turned their

47 Interview 2, community member involved in turban conflict, Paris, 18 May 2015 (original in French, translation by the author). 48 Multani v Commission scolaire Marguerite-Bourgeoys 1 SCR 256, 2006 SCC 6.

102  Constituting Identities attention to alternative human rights platforms (Barras 2009, 2012). This aspect ­demonstrates well that challengers – while not necessarily obtaining immediate success and change – are able to strategically open new opportunity structures to continue their struggle. Pursuing parallel activism in different international human rights bodies, the Sikh litigants aimed at putting the ECtHR under pressure and thereby opened new margins of action. In fact, while the Sikh advocates expected to lose in the European Court, the Human Rights Committee seemed more favourably disposed towards minority claims. Although it renders decisions that are not legally enforceable per se but only request the Member States to consider the decisions ‘in good faith’, it was used as an additional means of challenging judicial marginalisation.49 UNITED SIKHS helped Shingara Singh Mann, the taxi driver deprived of renewing his driving licence because of refusing to lift his turban, to bring another case to the CCPR. As mentioned above two further cases were filed with the CCPR (of which the applicants did not appear at the ECtHR) The idea to ‘twin-track’ the different legal cases was described by the Sikhs’ lawyer: Looking at the previous case law of the European Court of Human Rights, from religion in general and Sikhs in particular, it seemed likely that we would lose the case … the case law of the Human Rights Committee seemed more likely that we will win the case. Which is why we split the group into two. And indeed, it turned out that we lost one spectacularly and we won the other also spectacularly.50

The margin of appreciation doctrine constitutes the jurisprudential tool that has allowed Member States so far to maintain a powerful influence over religious freedom jurisprudence issued by the ECtHR. This doctrine has no equivalent in the practice of the Committee (Taylor 2005). Therefore, twin-tracking the turban cases by petitioning, in addition to the ECtHR, the CCPR was meant to challenge the anticipated negative outcome of the Strasbourg decision. ‘We knew that the European Court … is very biased against religious freedom. We knew that’, UNITED SIKHS’ international legal director underlined. Against this background, the equation seemed easily solvable: ‘This is called jurimetrics. You must know your judges’, she exclaimed, recalling Leyla Şahin’s case in particular.51 The very same day that the ECtHR had communicated its decision, the Sikh advocates made up their mind: ‘because we knew that the European Court is not a sympathetic court, we definitely knew from day one that we were going to the UN’.52 While it is technically not allowed to submit the same cases to different human rights bodies, the Sikh advocates decided to file cases

49 Sitaropoulos (2015) ‘States are Bound to Consider the UN Human Rights Committee’s Views in Good Faith’ (11 March 2015), available at: ohrh.law.ox.ac.uk/states-are-bound-to-considerthe-un-human-rights-committees-views-in-good-faith/. 50 Interview 16, 2015 (n 2). 51 Interview 3.1, 2015 (n 13). 52 ibid.

‘Jurimetrics’ of the Challenger: Fitting the Legal Niche   103 with similar facts to the two legal bodies. The British minority defence NGO Minority Rights Group (MRG) acted as a third-party intervener. Although the cases at the Committee were decided in favour of the Sikh­ applicants, their domestic enforcement is still awaiting as of today due to a lack of an effective enforcement mechanism. However, the Sikh advocates set a precedent for other minority claimants who subsequently echoed their strategy of ‘venue shopping’. Moreover, even though the French authorities did not implement the CCPR decisions, this constituted a potential channel of normative and cognitive circulation between the latter and the ECtHR. In this sense, some actors engaged in taking actions against the turban prohibition thought about the possibility to enforce the CCPR decision by strategically integrating it into a new judicial argument at the ECtHR by bringing one of the cases back to Strasbourg: He [applicant] will return to court because one of the arguments made by the French authorities … [in the context of the headscarf conflict] … was that the Muslim litigants and their lawyers did not claim that the French state had violated the Convention of the UN. Therefore, he will litigate again to say that the prohibition of the turban [context of the prohibition] is contrary to the European Convention and the Convention of the United Nations. The judge will be obliged to check whether the European Convention and the Convention of the United Nations have to be applied or not.53

Again I am not aware whether such a case has ultimately been filed, but the reflection illustrates well the potential competition between the ECtHR and the CCPR through strategic litigation. In fact, the CCPR decision has not remained unnoticed by the judges of the ECtHR. For example, two judges, who have issued a dissenting opinion in the cases of Ebrahimian v France, referred to one Sikh CCPR case, recalling that, in this case, the ‘State Party had not furnished compelling evidence that, by wearing his keski, the applicant would have posed a threat to the rights and freedoms of other pupils or to order at the school’.54 These shifts in the legal perspective remain minimal of course. Unlike in the cases of Kokkinakis (chapter two) or Lautsi (chapter four), the Sikh cases did not trigger any notable jurisprudential changes in the religious freedom field. Yet, the dynamics they induced can be read as small-scale shifts, which possibly fuel incremental change and open up cracks for further challenges to the established jurisprudential pattern. Community Priorities and Local–Transnational Tensions Socio-legal scholars have emphasised the tendency of social movements using legal strategies to incline towards the institutional boundaries set by judges 53 Interview 2, 2015 (n 47). 54 Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015). Partly concurring and partly dissenting with the Opinion of Judge O’Leary.

104  Constituting Identities (Leachman 2013: 28; Pedriana 2006). Even when constituencies tend to favour alternative framings, the prerogatives of success can outweigh accountability to the movement audience (Ferree 2003). However, movement activists also need to account for their commitments in their broader organisational fields (McCann and Silverstein 1998; Vanhala 2011). These can include grassroots communities’ preferences, community-building goals, but also their ambition to be perceived as a stakeholder among other professional organisations. Leachman (2013) for instance has argued that grassroots communities might be more likely to refer to collectivist frames since they more frequently follow the ambitions of community construction. As I have explained in chapter one, the ways in which activists seek to invest capital gained from litigation – professional careers, community building, or political fights – can be expected to influence how relations of power are perceived and addressed. In this last section, I will consider how the Sikh coalition wove its organisational commitments into its legal strategy. Two observations are important: first, the influence of the community-building project on the legal framing; and second, the balance struck between organisational commitments and legal power imbalances. The Sikhs’ collaboration with secular human rights organisations and their distanciation from Muslim actors are particularly noteworthy in this context. So far, I have insisted on the Sikh advocates’ attempt to fit the turban into the secular niche. However, this first line of argumentation was enmeshed with a second one presenting the turban as a non-negotiable part of the inner ethnic being of a Sikh. Partially at least, I argue, this was also a means of using legal templates as a symbolic resource to foster the collective group identity. For instance, the argumentation submitted to the Court emphasised that ‘[i]t is also now a long established part of the religious tradition of the Sikh community, which has been recognised as one of the characteristics of the Sikh ethnic group’.55 It was also argued that ‘[t]here was an interference with the applicant’s right to respect for his private life, by failing to recognise and accommodate important aspects of the Sikh ethnic identity and traditions’. With this argument, the Sikh advocates framed the turban as intimately linked to the internal, private being of a Sikh. However, this identity is neither subjective nor individual, but collective, ie, ethnically ascribed. Referring to Sikh ‘tradition’ and ‘ethnicity’, the applicants presented the religious marker as external to the individual and linked to the very belonging to the group. In choosing this framing, they moved the cursor away from religious expression to religious identity and ethnicity thus marking the group-distinctiveness rather than the applicants’ ­individual choices. The applicants presented the uncut hair, hidden by the turban, as more than the mere manifestation of their belief. Rather than an external expression (that would not have been considered as sufficient grounds for protection), the Sikh



55 Written

submission in one of the cases, insights provided by one of my interview partners.

‘Jurimetrics’ of the Challenger: Fitting the Legal Niche   105 advocates presented it as an intrinsically held belief. To illustrate, UNITED SIKHS’ international legal director compared the International Covenant on Civil and Political Rights (ICCPR) applied by the Human Rights Committee with the European Convention on Human Rights: [I]f you scrutinise the ICCPR article 18 and the article 9 you will see that under article 9 there is an absolute right to practice your faith but there is a qualified right to manifest your faith. So, that’s a very interesting point.56

Distinguishing between practice as the holding of a belief and manifestation as its outer demonstration, the legal director of UNITED SIKHS underlined that turbans ‘are not symbols. They are not worn to show [one] is a Sikh. They are worn to be a Sikh. So, this is not a jurisprudential point alone, this is a theological point’.57 During our interview, the lawyer of the cases has underlined, in a similar vein, that UNITED SIKHS very explicitly attempted to sweep aside the dimension of individual choice and to move the focus onto the core essence of Sikh identity. He mentioned that their argument was that the wearing of the turban is not a fashion choice and that it is not so much a religious choice – as an integral part of the Sikh identity – an essential part of being a Sikh. So, it is very much part of the personality. He furthermore explained: They, UNITED SIKHS, were very – the argument [that this is] more than just a religious occurrence but a very essential part of a Sikh’s being was an argument that they really wanted to express. So, it was moving beyond religion to personality, to [the right to] respect for the private life, of autonomy as much as simply for the religion.58

Linking the turban to the inner dimension of faith as opposed to a mere external religious manifestation, UNITED SIKHS blurred the boundary between the two sides of the right to freedom of religion that are frequently kept seperate in legal reasonings. As laid out in chapter two, the Article upholds an unqualified

56 Interview 3.1, 2015 (n 13). The ICCPR is a human rights treaty, which protects under its Article 18 the right to freedom of conscience and religion. Article 18 of the ICCPR reads as follows: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’. Interview 3.1, 2015 (n 13). The context of this quote suggests that the interviewee’s use of the term ‘practice’ referred to the holding of a belief as opposed to its expression. 57 Interview 3.1, 2015 (n 13). 58 Interview 16, 2015 (n 2).

106  Constituting Identities protection for free choice and (passive) holding of a religious or philosophical conviction (forum internum). It qualifies, however, the protection of the latter’s manifestation. It holds that, only insofar as it respects the requirements of the democratic order, is it acceptable. From this legal vantage point, the advocacy group attempted to seek refuge under the forum internum and to differenciate the wearing of the turban from the mere manifestation of religion, which would allow for restrictions on religious manifestations. Deconstructing the ‘binary opposition between belief and practice’ (Peroni 2014), the Sikh activists feed into a critique that has gained in currency among activist lawyers and scholars. This framing of the turban also diverges from an individualist vision of religious freedom which imagines religion as ‘free choice’. Instead, the non-negotiable dimension of collective identity to which this framing alludes translates the previously described community-building priority into a religious freedom norm. That this at least partially reflects the enmeshment of the diasporic politics of belonging and the legal activism becomes especially clear when looking beyond the legal briefs and taking into consideration that advocating the turban as an ‘integral part of Sikh being’, became an important aspect for the community-building strategy. An incident reported at the Global Sikh Civil Rights Conference seems emblematic in this respect: The prominent issue of the turban for the European Sikhs continues as yet another incident was reported. Manjit Singh GK, President, Delhi Sikh Gurdwara Management Committee (DSGMC), was requested to remove his ‘hat’ by security officers at Rome’s airport just a week ago. ‘I stated it is not a “hat”, it is an integral part of being a Sikh’, Singh proclaimed as he summarized the details on this deplorable incident.59

The twin-tracking of the Sikh cases in Strasbourg and Geneva allowed them to give further emphasis to the intrinsic identity dimension already strikingly present in the ECtHR cases. In Geneva, the applicants put less emphasis on the turban being a moderate and discrete religious sign fitting the French secular prerogatives. Instead, the identity-focus became even more prominent. The introduction of the notion of ‘humiliation’ constituted the pivotal difference between the legal stances adopted in each court: The author explains that wearing a turban is a religious obligation and an integral part of Sikhism, his religion. It is the outward manifestation of Sikhism and is closely intertwined with faith and personal identity. The removal of his turban could be viewed as a rejection of his faith, and its improper use by third parties is deeply insulting. Appearing bareheaded in public is deeply humiliating for Sikhs, and an identity photograph showing him bareheaded would produce feelings of shame and degradation every time it was viewed. It is not just that the author would have to appear bareheaded for the photograph to be taken; the State party is, in essence, asking Mr. Singh to repeatedly humiliate himself whenever proof of his identity is requested.



59 United

Sikhs International (2013) (n 43).

‘Jurimetrics’ of the Challenger: Fitting the Legal Niche   107 This is why the author has refused to comply with the requirement to remove his turban for his residence card photograph.60

Certainly, the specific institutional context of the CCPR encouraged this shift. As George Thomas has stated: ‘Because the UN has addressed religious rights in terms of intolerance and discrimination, groups tend to couch their views of religious rights in those terms’ (2004: 243). Equally important, not only did this framing further support the ambition of community construction, the focus on non-discrimination also linked the Sikhs’ cause with concerns of actors from the secular human rights spectrum. In particular, the above-mentioned MRG formed part of UNITED SIKHS network. The MRG, founded in 1969, organises education and legal advocacy campaigns for minority and indigenous rights worldwide.61 The organisation took an advisory role in order to help to develop the legal argument. One legal advisor formerly working for MRG and later for Human Rights Watch also participated in the First Global Sikh Civil Rights Conference, which took place in the immediate aftermath of the dismissal of the turban cases by the ECtHR. Further alluding to UNITED SIKHS’ ambition to position themselves as part of the cosmopolitan civil rights movement, the MRG concluded a partnership with the American Civil Liberties Union (ACLU) at about the same time as the Civil Rights Conference took place. The ACLU had already raised its voice in defence of Sikh rights in North American court cases in the 1990s (Lal 1996). However, the connection with the MRG and human rights lawyers was more directly relevant to the continental context. Besides intervening as a third-party in the ECtHR and UN cases, the MRG acted as a legal adviser. ‘They definitely played an advisory role because [they guided] me about all the cases’, UNITED SIKHS’ international legal director underlined. ‘How do I know what I know, I don’t run all the cases. It’s because I talk to everybody’.62 Importantly, the MRG’s litigious agenda focused more on the fight against discrimination than on religious freedom. For example, they claimed the Roma cases as important successes in their anti-discrimination engagement at the European level. Rather than developing a religion-specific agenda, defending the Sikhs as a religious minority was part of the broader ambition of fighting against intolerance and discrimination. In this context, the above-mentioned legal ­advisor explained at the First Global Sikh Civil Rights Conference that educating judges on the question of discrimination had worked out in this specific contentious episode: But it is more how do you influence the judges. And I think at this point … it’s education and embarrassment. … Education because the judges have shown themselves time and time again not to understand other religions. Not to understand the



60 Ranjit

Singh v France (2011) (n 19) § 3.1.

61 www.minorityrights.org. 62 Interview

3.2, 2015 (n 26).

108  Constituting Identities importance of certain issues like clothing … and what that does for people mean not to go to education … and it’s embarrassment, it’s bringing home to the judges just how poor they are in their arguments, just how weak. I say that because it has worked on another very much related site where the European Court was also disastrous for many years and that was dealing with discrimination issues. The Convention of Human Rights bans discrimination. But over the years, courts of many countries and people dealing with discrimination have realised that discrimination comes in many forms.63

Closely related to the anti-discrimination argument, the turban conflict was also presented as a case in point for minority rights in France. ‘Minority rights’ as such have not yet figured among the rights protected by the ECtHR framework. The protection of religious, ethnic or linguistic minorities, considered as collective groups, remains without any legal basis on the European Council. At the UN, in contrast, this concept is commonly upheld. In this sense, the parties urged the Committee to take the Sikh cases ‘as an opportunity … to express its concerns regarding respect for the rights of minorities in France and to recognize the Sikh community as an ethnic and religious minority’.64 Likewise, referring to the European Race Directive and international human rights decisions, the MRG together with UNITED SIKHS argued that, since ‘the restrictions imposed a strike at the very core of Mr Singh’s ethnic and religious identity, it is important to underscore that international law calls for “particularly weighty reasons” for discrimination, particularly racial discrimination’.65 They further emphasised that the case of Mandla and another v Dowell Lee and another has long established the ‘[r]ecognition of the Sikhs as an ethnic group and the turban as “a sign of [the Sikh] communal identity”’.66 The brief filed with the CCPR also included a reference to the Mandla case, as represented by Bindmans in 1983. With this case, the applicants had sought to obtain recognition for the Sikh community as a racial group protected under the UK Race Relations Act 1976. Such a use of the human rights framing to legitimise collective identities has been analysed by Koenig (2008) as one of the larger inner-institutional developments of the post-war human rights framework. The Sikh case shows how this larger dynamic is articulated in the micro-politics of litigation. The strong emphasis on the collective identity, which the turban allegedly represented, demonstrates that the Sikhs’ framing fitted well with their ambition to conform with the legal niche, to align their global community members on a

63 Clive Baldwin, ‘Intervention at the First Global Sikh Civil Rights Conference, 2008’ (13 December 2008), available at: www.youtube.com/watch?v=KQlSQPAaQiA. 64 Ranjit Singh v France (2011) (n 19), §3.8. 65 UNITED SIKHS and MRG (2008) Shingara Mann Singh v France, expert opinion (December 2008), 14. 66 ibid, 14.

‘Jurimetrics’ of the Challenger: Fitting the Legal Niche   109 collective identity narrative and with the nondiscrimination agenda of secular human rights advocates. At the same time, movement activists often need to walk a tightrope between grassroots communities’ preferences, their organisational ambitions and legal margins of action (van der Vet 2012). Given that ‘[s]killed challengers will do whatever they can to continue to exist in a field where they have few resources and few powerful linkages’ (Fligstein and McAdam 2012: 98), actors also need to be able to attend to different, and sometimes conflicting, expectations. Thus, while attending to legal power relations as well as to organisational preferences was interwoven into the legal strategy, tensions between these priorities could not be avoided either. One challenge UNITED SIKHS faced was to position itself vis-a-vis the negative headscarf precedents without compromising on their commitment to a broader human rights network and the related ambition to speak the voice of all minorities. In fact, UNITED SIKHS’ integration into a transnational network of minority rights defenders signified the alignment between an epistemic community with a shared set of values, world-views and policy goals (Haas 1992; Keck and Sikkink 1998). By providing the Sikh litigators with additional symbolic capital, the network of professional human rights defenders, in turn, also influenced the organisation’s normative stance. In this context, the alliance with the MRG proved particularly important in terms of UNITED SIKHS’ attitude towards the Muslim community and the headscarf precedents at the ECtHR. UNITED SIKHS avoided explicitly dissociating their legal cases from the Muslim precedents. Despite reluctant voices within the community, the organisation conceived the fight in the courts as a fight for all marginalised religious groups: Did you try to distinguish the hijab and the turban cases? We didn’t do that. We didn’t want to and we didn’t have to. It’s not our case first of all. Some of our lawyers wanted to do it. And we said no. MRG was very clear. I am glad of the guidance of MRG. They reminded us: make sure that you don’t say anything against the hijab. … Of course, there were … people in our community who said we must distinguish from the Muslim case. I said, you can do what you like, it’s so obvious. And I said, the only reason I am not referring to the Muslim hijab cases is that they are not our clients. I don’t have to. I don’t have to say anything for them or against them. And if they’re clever, they realise why I am not talking about them. Because why lose the case when they can benefit from the victory, right? I went for hijab marches because they organise a lot of campaigns.67

Although marking a line of difference with the Muslim headscarf cases was not considered as an option, creating an alliance with Muslim peers



67 Interview

3.2, 2015 (n 26).

110  Constituting Identities also encountered scepticism. A possible joint legal action was perceived as a particularly sensitive topic. Approached by Muslim actors who sought to foster a collective force, the Sikh advocates carefully marked out their fight as a ‘separate case’: Our Belgian lawyers were saying, you should just fight your own case. I said, no, we don’t have to be like that. We’re Sikhs. First of all we have to fight for all … We didn’t fight with them, that’s a decision we did take. That is a strategic decision. So, I said, no, we don’t have to. We don’t have the money. But we will fight a separate case. We will win, they will win on their merits, we will win on our merits. And our victory is their victory but together we might both lose. You must strategically not fight together … Cause the victory will be a victory for religious freedom.68

These dynamics are revealing of the relational dynamics within the religious freedom field. While the cooperation with cosmopolitan human rights actors mirrors the emergence of a new coalition and related framing preferences within the religious freedom field, the non-collaboration with Muslim actors points to the emergence of a boundary of insiders/outsiders, separating those with material and symbolic means to challenge the Court from those who do not. One individual from the Sikh community in Bobigny mirrored this discourse when explaining that it was important for the Sikh community to litigate their cases without associating with Muslim representatives.69 Yet, local community members occasionally placed a stronger emphasis on the distinctiveness of Sikhs and Muslims while also underlining the need to fight a separate case. The community member engaged in the Sikh cause in France underlined that the active cooperation with Muslim activists did not seem self-evident: The idea is that first of all, I don’t know the problem. Because I don’t know the problem of the veil and I am not an expert on this question. For me, it is different from the turban. It will always be in my interest to say it is different. If I say it’s the same, there will never be any margin for discussion to say the turban is different. For example, a typical example in our lobby was that you can always see Sikhs in nightclubs …, but you will never see a veiled woman in a nightclub …70

The difference in how UNITED SIKHS and local community members approached the Muslim case should certainly be interpreted with caution since my interviews did not allow to judge on the scope and intensity of the dissensus. It indicates however the importance of the relational perspective of the case construction as the Sikhs carefully waged their position vis-à-vis other marginalised religious actors. There is further evidence that the specific transnational positioning of UNITED SIKHS had a decisive impact on how to weigh organisational and



68 ibid.

69 Interview 70 Interview

1, 2015 (n 34). 2, 2015 (n 47).

‘Jurimetrics’ of the Challenger: Fitting the Legal Niche   111 legal interests against each other. Thus, actors embedded in a local context were sometimes more critical of UNITED SIKHS’ legal approach. The local activist engaged in the Sikh cause, for example, was not convinced by the ‘Anglophone’ approach pursued by UNITED SIKHS and expressed a certain preference for adopting a culture-specific approach to the turban-problem. He underlined that an Anglophone view of religious freedom would not resonate well in the specific laicist context in France. He underlined that one should refer to the culture of diversity and multiculturalism in general when defending the turban rather than insisting on individualist notions of religious freedom.71 UNITED SIKHS, by contrast, defended a different view. The international legal director recalled: I said, if you say this is cultural in France … then if you go to Germany, where the religious rights say this is religious, when you come to the UK it is religious, so your turban is a turban or a magic hat?72

These diverging views on how to advocate the right to wear the turban elucidate the potential tension between local and transnational stakes in the religious freedom field. On the one hand, this demonstrates the potential of transnational advocacy groups involved in litigation to challenge established national ways of thinking. Despite the local criticism, UNITED SIKHS ultimately imposed their view on the legal approach. On the other hand, it also shows that the priority of the politics of belonging and the necessity to accommodate the position of a marginalised minority had the potential to trigger conflicting results. The pragmatism of the above-mentioned activist community member contradicted UNITED SIKHS’ insistence of shared conceptions within the diaspora. Transnational accounts of legal mobilisation have generally paid little attention to this articulation between the national and transnational dynamics of accountability and symbolic capital accumulation. The Sikh case exemplifies how the transnational positioning of the leading actor, UNITED SIKHS, influenced the framing of religious freedom and how local differences might alter the perspective on the margins of action within the legal field. 

Sikh litigation in Strasbourg is not a success story. Yet, this chapter has attempted to show that their case is revealing of dynamics that are easily overlooked in research on the transnationalisation of the governance of religious diversity on the one hand, and research on socio-legal mobilisation on the other. As to the latter, UNITED SIKHS has brought to the fore a type of actor seldomly considered by research interested in strategic litigation. This specific actor did not



71 ibid.

72 Interview

3.2, 2015 (n 26).

112  Constituting Identities primarily seek to compete with other human rights professionals, but oriented its action more immediately towards the construction of a global diasporic community. Although consciousness raising and community construction is a long-standing concern in socio-legal research (McCann and Silverstein 1998), human rights litigation is often approached from the viewpoint of human rights professionals. The chapter has demonstrated that embeddedness in a religious community is relevant in how Strasbourg is approached as a ‘bank for symbolic capital’. Ambitions of transnational community construction have relegated to the background concerns over legal marginalisation, led actors to privilege community-transcending over nation-specific frames, and helped in gathering community support for the litigious project. Future research might ask whether we find similar dynamics not only among other ethno-religious groups, but among communities claiming linguistic, ethnic and cultural recognition. The former research, ie, on the transnationalisation of the regulation of religious diversity, has often considered the supranationally institutionalised right to freedom of religion as a source of pressure of state–religion relations. Yet, the Sikh case suggests that marginalised actors might not easily seek to challenge such arrangements, but primarily seek to ‘fit into’ the dominant secular  imaginary. By framing the turban as an expression of an intrinsic collective identity, the litigants presented their religious practices to complement the dominant views on the public–private division assigning religious practice with the private sphere. The case thus illustrates how inequalities in power are further inscribed into the transnational use of the religious freedom framework. At the same time, despite the subordination to the power imbalances inscribed in the legal framework, small-scale shifts have been achieved. The vocal mobilisation by UNITED SIKHS and other actors of the Sikh diaspora have strategically attempted to litigate in the interstices of the legal framework, thereby creating a space for endogenous change. To start with, Sikh activists introduced a discursive innovation, which, even if not successful, can inspire further mobilisation. By challenging the conventional boundary between practice and identity, they fed into the already existing critical stance towards the taken-for-granted differentiation of the inner holding and external manifestation of religious beliefs. Moreover, focusing on community empowerment and consciousness-building, UNITED SIKHS paved the way for further litigation and advocacy for religious freedom, thus ‘radiating’ beyond the individual judicial decision. Finally, their strategic twin-tracking affected subsequent legal mobilisation and dissenting opinions by judges as will become clear in chapter five. Though certainly not unsettling the dominant assertive approach to religious freedom, systematic consciousness-building and strategic venue shopping bear the potential of incremental shifts within the field.

4 The Orthodoxy of the Powerful: Christians Fighting against Change

U

ntil the late 2000s, the European Court of Human Rights (ECtHR) mainly had to deal with claims to free religious exercise. Since then, however, claims against religion, such as the freedom to act against, criticise and be exempt from religion have multiplied. Hitherto sheltered by the Court’s judicial self-restraint in politically sensitive matters, established majority religions have faced a growing challenge to their institutionalised privileges as a result of these developments. In Greece, for example, a humanist lobby repetitively challenged the obligation to religious oath in courts, and atheist litigants from Scandinavia have pushed for exemptions from religious classes and church taxes.1 In several cases, the ECtHR judges yielded to these pressures (Koenig 2015: 66–67). Likewise, though with mixed results, assertions to the freedom to criticise, ridicule and offend the most sacred symbols in films, theatre plays or musical performances continue to keep Strasbourg busy until now.2 Among all of these cases challenging the privileges of majority religions, Lautsi v Italy was certainly the most exemplary. In 2006, Soile Lautsi appealed to the ECtHR. She claimed that the crucifix publicly displayed in Italian classrooms contravened her right to educate her children according to her humanist beliefs. At the time, the religious establishment did not pay much attention to the case. The shock was that much greater when, three years later, the judges unanimously found that Soile Lautsi was right: the state, it argued, should ‘uphold confessional neutrality in public education’.3 Awakening the hope for a counter-majoritarian turn of the Court for some (Mancini 2010), the decision fuelled the anger of others (Evans 2010; Weiler 2010). Soon, Strasbourg became the centre stage of an unprecedented 1 Dimitras and Others v Greece App nos 42837/06, 3237/07, 3269/07, 35793/07 and 6099/08 (ECtHR, 3 June 2010). In this case, the Court found the obligation of a biblical oath in Greek courts to contradict the religious freedom of non-Orthodox individuals. Folgerø and Others v Norway App no 15472/02 (ECtHR [GC], 29 June 2007). In this case, the Court pushed Norway to grant exemptions from compulsory religious education. Another case concerned the exemption of a student of Alevi faith from mandatory religious lessons in Turkey Hasan and Eylem Zengin v Turkey App no 1448/04 (ECtHR, 9 October 2007). 2 Examples: Otto-Preminger-Institut v Austria App no 13470/87 (ECtHR, 20 September 1994); Wingrove v United Kingdom App no 17419/90 (ECtHR, 25 November 1996). More recently: Mariya Alekhina and Others v Russia App no 38004/12 (ECtHR, 17 July 2018). 3 Lautsi v Italy App no 30814/06 (ECtHR, 3 November 2009) § 56.

114  The Orthodoxy of the Powerful counter-mobilisation. The Chamber’s decision in Soile Lautsi’s favour galvanised many actors who realised the Court’s potential power to disrupt historically institutionalised privileges of religious majorities. If Lautsi I was to be the new state of affairs, established churches would have to give up long held privileges and advantages.4 A transnational advocacy network spanning from Rome to Moscow was set up to lobby against Strasbourg’s decision.5 Declaring itself as the ‘alliance against secularism’,6 it comprised the Vatican, the Russian Orthodox Church (ROC), faith-based conservative NGOs, 21 European governments, renowned academics and eminent lawyers.7 In a historic move, the Grand Chamber reversed the first decision with a 15:2 vote.8 Contrary to socio-legal scholars’ emphasis on civil society’s role in pushing international courts toward greater judicial activism (Cichowski 2016), the Lautsi episode powerfully illustrates a field-dynamic that Fligstein and McAdam (2012) have so vehemently highlighted, namely the faculty of political and incumbent stakeholders to hold on to their influential position and mobilise whatever resources are needed to restore the status quo. This moment of unprecedented mobilisation thus forces us to revisit the somewhat one-sided perspective on human rights as exclusively ‘succoring the needy and uplifting the downtrodden’ (Bob 2012: 3). Adding to the growing scholarly attention to this phenomenon, this chapter shifts the focus onto the other side of the power balance.9 At a general level, it shows that far from being solely a resource of vulnerable minorities, religious freedom litigation has also become the terrain of religious majorities

4 It provoked an emotional outcry among many legal scholars, politicians and interest groups (Mancini 2010; Piret 2012). To quote but a few of the critical voices, the then Italian Minister of Education Maria Stella Gelmini heatedly stated: ‘No one, not even some ideologically motivated European court, will succeed in rubbing out our identity’. Criticising that the approach underlying the first Lautsi decision suggested an educational system which would be ‘neutral in context’ rather than ‘neutral in content’, legal scholar Malcolm Evans has considered that it ‘speaks of a paranoia about religion and its influence, rather than a celebration of religion as “one of the foundations of a ‘democratic society’ within the meaning of the Convention”’ (Evans 2010: 360). Likewise, Joseph Weiler (2010: 3–4) pointed out that the Court condensed, ‘[o]racle like, in 11 impatient and apodictic paragraphs’, one of the most important topics on the ‘European agenda’. The ‘naked wall’, he argued, is anything but neutral: ‘In a society where one of the principal cleavages is not among the religious but between the religious and the secular, absence of religion is not a neutral option’. 5 Both sides of the conflict were helped by an extensive support structure. In this chapter, however, I will only focus on the anti-Lautsi mobilisation, because it illustrates the emergence of a deep fracture line within the religious freedom debate. In particular, the applicant Soile Lautsi received support from the Greek Helsinki Monitor who had successfully litigated the cases of Dimitras v Greece (n 1). Clifford Bob (2019) has analysed extensively the strategy of humanist applicants in the Lautsi case. 6 The term ‘alliance against secularism’ goes back to an article published by Grégor Puppinck the director of the ECLJ: ‘Lautsi v Italy. An Alliance against Secularism’ L’Osservatore Romano (28 July 2010). 7 Eight countries were given leave to intervene in the oral proceedings. 8 Lautsi and Others v Italy App no 30814/06 (ECtHR [GC], 18 March 2011). 9 A research team led by Kristina Stoeckl, for instance, has set up a first systematic research agenda (‘Postsecular Conflicts’) investigating the development of a transatlantic conservative r­eligious alliance (Stoeckl 2020; Mourão Permoser and Stoeckl 2021).

The Orthodoxy of the Powerful  115 and conservative advocacy groups. This confirms the ambivalence of legal Europeanisation for the governance of religious diversity (Koenig 2007). The Court not only provides an opportunity for minorities to assert their rights, but for majorities to maintain their position, turning religious freedom into an inherently ambivalent space. Lautsi triggered a clash among secular liberal and conservative advocacy organisations with both sides submitting third-party interventions.10 It is one of the few religion-related ECtHR cases that has not only triggered extensive legal interest, but also galvanised the attention of the social scientific community.11 Scholars have considered the mobilisation of the ‘alliance against secularism’ as epitomising the transnationalisation of the American ‘culture wars’ (Annicchino 2011, 2018; Annicchino and Roy 2013; Mancini 2017; McCrudden 2015b; Fokas 2016), in which established churches and newly rising NGOs vigorously oppose secularism, gay marriage, abortion and other issues of public morality (McCrudden 2014; Stoeckl 2016; Bob 2012; Kalb 2017). They have rightly pointed to the fact that Evangelical and Christian conservative NGOs utilise courts on both sides of the Atlantic to push for cultural and political change. In so doing these actors have even allied with actors from the Russian Orthodox milieu, which for a long time seemed an unlikely event (Stoeckl 2020). In this context, existing scholarship has given much emphasis to the norm entrepreneurship of this rising global advocacy network, highlighting alternatively their strategic ‘weapon like’ use of human rights against the expansion of moral liberalism (Bob 2012, 2019) and their traditionalist, religiously inspired conceptualisation of human rights (Stoeckl 2016; Annicchino 2018; McCrudden 2014). However, while this value-commitment of conservative litigants is of central importance, their mobilisation is not only an expression of these values, but 10 Interveners supporting Soile Lautsi: Greek Helsinki Monitor; Eurojuris; (Together) International Committee of Jurists; International Centre for the Legal Protection of Human Rights (INTERIGHTS) and Human Rights Watch; and Associazione nazionale del libero Pensiero. Interveners supporting the Italian government: 33 Members of the European Parliament (mobilised by Alliance Defending Freedom); European Centre for Law & Justice; (Together) Zentralkomitee der deutschen Katholiken; Semaines sociales de France; Associazioni cristiane lavoratori italiano; and the governments of Armenia, Bulgaria, Cyprus, Russia, Greece, Lithuania, Malta, Monaco, Romania and San Marino. 11 Clifford Bob (2019) has provided the most detailed assessment from a political scientist perspective, considering not only conservative opponents, but also the humanist lobby that had brought Lautsi to Strasbourg. The legal debate is extensive: an edited volume has been specifically dedicated to the Lautsi controversy. Authors have debated extensively whether religious symbols should be admissible in schools or not, see: Temperman (2012). A special issue edited in the immediate aftermath of the Lautsi II judgment has gathered views from the whole spectrum of opinions regarding the case. To quote but a few, Malcolm Evans (2011) has cautiously argued that the fact that the Grand Chamber did not see the public space as religiously neutral should lead to a revision of preceding jurisprudence in Muslim headscarf cases. Wouter de Been (2011: 235) has argued that the Court’s use of the margin of appreciation might also be seen as a way of staying close to social reality and not to ‘get lost in abstractions’. Other authors have been particularly critical as to the reasoning of the Court (Zucca 2013). Some authors have argued that the Lautsi case constituted a convergence between American and European approaches to the right to freedom of religion (Witte Jr and Arold 2011).

116  The Orthodoxy of the Powerful needs to be understood as embedded in broader power relations within the religious freedom field. In this chapter, I therefore want to move the focus from the subjective values animating the conservative movement to the power relational dynamics underlying its legal mobilisation. The opponents of Lautsi asserted and defended their position as the incumbents of the religious freedom field through a twofold strategy: first, they sought to use their extensive political capital as an authoritative source for defining the boundaries of religious freedom. As incumbent stakeholders, they opposed a strictly secularist interpretation of religious freedom by presenting their Christian identity as not just a religious identity but as part of the national cultural identity (see also: Bob 2019). In so doing, they tried to capitalise on their political power to define core criteria of the right of religious freedom. This strategy not only is mostly unavailable for minority groups with fewer political resources (Beaman 2013; for an exception see Astor et al 2017) but also created a symbolic boundary towards other groups, especially liberals and Muslim minorities. This ambition to shape core legal principles and the distribution of power in the field clearly contrasts with the priority of ‘fitting into the hierarchy’ that we observed in the case of litigation by Sikh activists. Second, I argue that some of the Christian activists ‘invisibilised’ their religious commitment while seeking credits as ‘rational’ legal players. They did so by staging themselves as the guardians of an orthodox and ‘original’ understanding of human rights and by connecting to secular j­udicial elites. In so doing they attempted to play at the core of the field rather than occupying the marginal place of ‘religious heretics’.12 Importantly, shifting the focus to the power dynamics underlying this specific episode of legal mobilisation allows us to distinguish it from other cases of Christian mobilisation. These cases are often conflated in the existing literature. In reality, however, a difference exists between activism geared towards inscribing conservative values into the rights framework by relying on outwardly secular principles and two other kinds of conservative activism, namely that which instrumentalises liberal and minoritarian arguments for conservative goals (see chapter five) and that which challenges secular rights from an explicitly religious perspective. To understand the powerful position from where the ‘alliance against secularism’ challenged the first Lautsi decision, I will start by describing the transactional relationship between political incumbents, church officials and Christian conservative NGOs. While unprecedented in terms of symbolic capital accumulation, the alliance remains politically fragile and therefore should not be prematurely declared as the new ‘normal’. I will then turn to the main

12 See Harms (2021) for a slightly different and condensed version of this argument. Several materials used in this chapter have also been incorporated in this article. Regarding the terminology of ‘heresy’: Bourdieu uses the terminology of ‘heresy’ to refer to the strategy of actors who challenge the ‘orthodox’ or institutionalised view of the field established by more powerful stakeholders (1996: 193–208).

Federating Symbolic Capital  117 argument and show how the ‘alliance against secularism’ attempted to institutionalise political power as a source of legal legitimacy and to stage themselves as the guardians of judicial orthodoxy. Lastly, I show that this strategy as well as ensuing dynamics of capital accumulation among religious freedom activists also fostered the symbolic and material boundaries between Christian majorities and religious minorities, and Islam in particular. FEDERATING SYMBOLIC CAPITAL

In this first section, I examine the accumulation of political, judicial and religious capital on which the ‘alliance against secularism’ built its activism. While the ROC was pivotal in federating political capital, the European Centre for Law and Justice (ECLJ) – the Strasbourg-based partner organisation of the Christian conservative American Center for Law and Justice (ACLJ) (chapter two) – brought judicial expertise to the joint enterprise and thereby helped national religious and political powerholders to reassert their legitimacy at the transnational level, ie, to maintain their incumbency (see also: Annicchino 2011). This transactional relationship illustrates that the trend toward an ‘NGOization’ of the international sphere (Berger 2003) can be instrumental for established churches which seek to gain a renewed transnational audience and relevance (Mancini 2017). At the same time, however, this relationship – sometimes referred to as a new form of ecumenism (Annicchino 2011; Shishkov 2017) – rests on fragile grounds and should therefore not prematurely be declared the new state of affairs. Towards a New Transnational Conservative Alliance On 28 July 2010, the official newspaper of the Vatican, L’Osservatore Romano, published an article entitled ‘Lautsi v Italy. An alliance against secularism’, written by the director of the ECLJ. Besides exposing the NGO’s legal views on the case, it also emphasised the historic coalition this case had federated between religious groups and governments: This joint and mass action before the Court is truly an historic event. One question that arises for the immediate future is whether the Court will be able to maintain its ideological paradigm regarding religious matters in the face of such strong opposition. The coalition of 21 countries out of 47 of the Council of Europe specifically invites the Court to attempt to do so. Peremptorily refusing this request will directly threaten the legitimacy of the Court.13



13 Puppinck,

‘An Alliance against Secularism’ (n 6).

118  The Orthodoxy of the Powerful The ECLJ chiefly coordinated the joint mobilisation of the Vatican, the ROC, various European governments and high-profile international lawyers, but it was the ROC which appeared as the key political driving force behind the alliance (Annicchino 2011). As the ECLJ’s director wrote in the same newspaper article, the coalition followed the request of Patriarch Kirill of Moscow to ‘unite Christian churches against the progress of secularism’. He also emphasised that the chairman of the Department for External Church Relations, Metropolite Hilarion, ‘has proposed the establishment of a “strategic alliance between Catholics and Orthodox” to defend together the Christian tradition “against secularism, liberalism and relativism prevailing in modern Europe”’.14 Affirming its presence as a moral entrepreneur at the transnational level (Stoeckl 2016) and fearing the possible repercussions of ECtHR judgments in Orthodox countries, it was in fact the ROC which first vigorously reacted to the Lautsi I decision. Church officials addressed both the Vatican and Italy’s Prime Minister Silvio Berlusconi as soon as the Lautsi I verdict had fallen. In a letter sent to the Vatican, Metropolite Hilarion stated that the judgment constituted ‘an attempt to impose radical secularism everywhere despite the national experience of church-state relations’.15 He also encouraged European inter-church cooperation to counter this tendency and suggested that through common efforts a seminar be organized on the platform of the Council of Europe with the participation of religious communities and experts for discussing those aspects of the work of the European Court of Human Rights which matter for religious communities (see also: Stoeckl 2016: 136).16

Patriarch Kirill expressed his ‘full and unconditional support for the intention of the Italian Government to appeal this decision in the European Court’s Grand Chamber’.17 He further underlined that [t]he Russian Orthodox Church in cooperation with the Roman Catholic Church intends to notify the world and European public of its flat rejection of such decisions and to encourage a discussion on the practice of the European Court of Human Rights on various platforms.18

A year after the second Lautsi verdict had fallen, the ECLJ reported similar statements made by the Moscow Patriarch at a joint conference on religious freedom. Kirill had underscored:

14 ibid. 15 ROC, Department for External Church Relations (2009) ‘Archbishop Hilarion’s Letter to Vatican Secretary of State concerning the European Court’s Decision to Ban Christian Symbols in Italian Schools’, available at: mospat.ru/en/2009/11/27/news9297/. See also, Stoeckl (2016). 16 ibid. 17 ROC, Department for External Church Relations (2009) ‘Patriarch Kirill Supports Italian Government over European Court’s Decision to Ban Christian Symbols in School’, available at: mospat.ru/en/2009/11/26/news9194/. 18 ibid.

Federating Symbolic Capital  119 In the European context, what threatens them is: secularism and intolerance to all that has to do with the Christians (like in Soviet times), absolutisation of personal freedom to the detriment of moral responsibility, political correctness which equates sin with virtue.19

After the final verdict in 2011, the Ambassador of the Republic of Italy, Antonio Landi, thanked the ROC for its support for the Italian government in the Lautsi case.20 It is clear from the foregoing that the ROC assumed a key role in pushing for a broader political movement backing up the Lautsi opponents. Three important developments regarding the positioning of the ROC in the larger religious and the human rights field make intelligible why this is so. First, Lautsi I was a threat to the strategy, which the ROC had developed in the years following the dismantling of the Soviet Union aiming at preserving its primus inter pares status in the Orthodox religious field. This strategy consisted in promoting the idea of a collective religious tradition and civilisation shared by the various national Orthodox churches and to thereby inscribe religious territoriality in a unifying civilisational heritage (Rousselet 2007). As Rousselet has demonstrated, the Russian state has provided political and legal legitimacy for the ROC’s attempt to uphold its influence in the name of tradition, for instance by granting full legal recognition only to so-called ‘traditional’ religions. In exchange, the ROC has credited the Russian state with greater political legitimacy both within and outside its territory (see also: Rousselet 2020). This promotion of a religiously grounded civilisational and traditionalist discourse went hand-in-hand with the rejection of Western liberalism and secularism, of which Lautsi was perceived as the ultimate expression. Second, the case also provided an opportunity for the Church to manifest its soft power and norm entrepreneurship at the transnational level. Kristina Stoeckl has written extensively on the progressive shift that the ROC has undergone from an uncompromisable rejection of the human rights doctrine to the embrace of an alternative, civilisational human rights discourse in the 2000s (Stoeckl 2014, 2016). As she explained, this development was linked to the gain in power of the traditionalist faction of the ROC within the Orthodox field. Traditionalist Orthodox stakeholders eventually took the lead over nationalist and liberal forces and pushed for an Orthodox human rights agenda. In 2008, the Department for External Relations published the ROC’s single most important reference document regarding its official position within

19 ECLJ (undated) ‘ECLJ participates to the International Conference on “Freedom of Faith: The Problem of Discrimination and Persecution of Christians” organized by Moscow Patriarchate’: eclj.org/eclj-participates-to-the-international-conference-on-freedom-of-faith-the-problem-ofdiscrimination-and-persecution-of-christians-organized-by-moscow-patriarchate. 20 ROC, Department for External Church Relations (2011) ‘Italy’s Ambassador to Moscow thanks Moscow Patriarchate for Support in Getting the Case of Lautsi Reviewed’: mospat.ru/en/2011/06/23/ news43653/.

120  The Orthodoxy of the Powerful the human rights debate. It makes clear that its human rights understanding strongly opposes liberal individualism and derives rights instead from religious notions of dignity, moral traditions and collective identities (Stoeckl 2014; see also Agadjanian 2010). Lautsi happened a year later and served as a stage to promote this agenda. Third, the very vocal mobilisation by the ROC was helped by a window of opportunity that had appeared at the time in the historically tense relationship between the ROC and the Vatican. As the director of the ECLJ explained during one of our interviews, Lautsi constituted the opportunity for a concurrent rapprochement between the Roman Catholic Church and the Orthodox Church. In fact, the international press had noted a significant warming of relations between the two Churches following a meeting of Pope Benedict XVI and Moscow’s Patriarch.21 The coordinated interaction between the ROC and the Vatican was perceived as a positive sign for a possible collaboration and for a strategic alliance between the Catholic Church and the Orthodox Church. The unison of the two main faith traditions of Europe was seconded by their alliance with state power. In addition to Russia, another 20 governments, according to the director of the ECLJ, supported the ‘alliance against secularism’. Of these, 10 intervened in the Grand Chamber proceedings. This involvement of many European governments grew on the fertile grounds of a flourishing nationalism in the post-Soviet area. As a growing body of research has demonstrated, religion does not just peripherally figure in the emergence and articulation of nationalism (Spohn, Koenig and Knöbl 2015), but is deeply intermingled with the latter, especially in Eastern Europe (Barker 2009; Fokas 2012; Jakelic 2010; Richardson 2006). While the contextual conditions were thus favourable, Russia’s joining of the alliance was crucial in order to convince other states to join. The director of the ECLJ emphasised that at the time of these events, the Vatican’s relations with Russia were rather good and the strategy was to federate the forces in the crucifix conflict. The ROC, closely cooperating with the Russian Foreign Ministry, figured as an important diplomatic bridge in establishing this connection. In fact, as several authors have extensively documented, the ROC and the Russian state converge on their civilisational approach to human rights and the ROC has assumed an important function in the ‘religious diplomacy’ elaborated by the Russian state at a regional and a global level (Payne 2010; Rousselet 2007; Curanović 2015). Overall, the substantial political capital, which the ECLJ channelled into a joined legal mobilisation, testifies to the fact that ‘[s]killed strategic actors in incumbent groups have an impressive array of tools to maintain their position. They have more resources and better social connections to actors in other strategic action fields, including the state’ 21 Sophia Kishkovsky, ‘Relations Warms between Russian Orthodox Church and Vatican’ New York Times (22 May 2009), available at: www.nytimes.com/2009/05/22/world/europe/22ihtorthodox.html?module=ArrowsNav&contentCollection=Europe&action=keypress®ion= FixedLeft&pgtype=article.

Federating Symbolic Capital  121 (Fligstein and McAdam 2012: 97). Thus, over time, ‘savvy incumbents seek to ally themselves with leading state actors and vice versa’ (ibid: 106). Given the number of European Member States joining the alliance, the counter-mobilisation touched a raw nerve at the Strasbourg Court. Although the latter had consolidated its institutional autonomy since the end of the 1990s, the political dependence of the ECtHR remained important. One might report in this context a quote by a former judge interviewed by Effie Fokas: ‘The Court has always on its mind that the state is present, that of course the state funds it, the state supports it, and the Court cannot ignore the state’ (2016:  564). In this light, as Koenig has noted with reference to Mancini (2010), the Lautsi case ‘dramatically signals the counter-majoritarian impasse that an activist international court ultimately faces’ (2015: 67). Besides the soft power leveraged especially with the help of the ROC, further political capital was provided by European parliamentarians. They collaborated in particular with the Evangelical Alliance Defending Freedom (ADF), which also intervened as a third party in the Lautsi case, but the ECLJ also maintained connections to parliamentarian circles. The Vienna headquarters of the ADF mobilised 33 parliamentarians in support of the Italian government. A lawyer working for the ADF emphasised that the organisation’s ‘biggest allies were attorneys, members of the European Parliament (MEPs) and allied o ­ rganisations’.22 Likewise, as Bob (2019) has demonstrated, conservative members of the Parliamentary Assembly for the Council of Europe have started paying close attention to the activities of the Council of Europe and to the appointment of judges to the ECtHR. He has provided evidence for the ambition of certain parliamentarians to vigorously display the joint political front that conservatives have built against ‘attacks’ by their liberal foes (2019: 115). While governments and the religious establishment provided political and diplomatic back-up, the legally highly strategic ECLJ took a key role in channelling this political capital to the legal field. This relationship demonstrates, as I have mentioned above, that the expansion of Christian NGOs from the United States to Europe has also equipped national powerholders with judicial capital. As the director of the ECLJ underlined: Regarding the Lautsi affair, the Italian government contacted us, and we really chiefly presided over the strategy. What do you mean? The strategic defence. I mean, the Italian government contacted us when they had lost in the Section23 – after the first loss. And then, we suggested making governments

22 Interview 11, legal counsel, Alliance Defending Freedom International, Vienna, 23 October 2015. 23 A Section designates an administrative entity composed by a president, a vice-president and a certain number of judges. These form into chambers in order to take a judicial decision.

122  The Orthodoxy of the Powerful intervene. I told them, see, we could ask them, we could aim at making other governments intervene.

The director of the ECLJ added that he had been in contact with the Italian Ministry of Foreign Affairs and suggested that the Ministry could convince other governments to intervene. Subsequently, a substantial set of legal capital was leveraged: Following this, we organised a conference here in Strasbourg … we invited judicial experts and we organised a conference here at the Council of Europe … and there were about 20 ambassadors here in the room. And, in the end, we told them that it would be good – and I think the Italian government and the Holy See asked at the same time – I wrote a big article on this issue.24

Besides orchestrating the interventions of the governments in the legal proceedings, the ECLJ was also able to collaborate with highly regarded judicial stakeholders and thereby to further increase the judicial capital of the ‘alliance against secularism’. Notably, among them was Joseph Weiler, former president of the European University Institute (EUI) in Florence and eminent human rights lawyer, who joined the alliance on a pro bono basis and represented the intervening governments. Following a widely noted editorial comment on the first Lautsi judgment, he was invited to the seminar organised by the ECLJ in preparation for the Grand Chamber hearing. Moreover, this seminar also involved highly regarded judicial voices such as a former judge of the ECtHR, who became a research fellow at the ECLJ (mandate suspended during his exercise as a national judge). Adding to this external judicial capital, the ECLJ positioned itself as a legal expert in the debate, reaching far beyond its religious audience. For example, its director published an extensive legal analysis in preparation for the case and engaged, in addition, in the academic judicial debate after the second Lautsi verdict had fallen.25 As I will show below, his work focused extensively on asserting the political and majoritarian position of Christianity in Italy as a source of judicial legitimacy. The conservative front line manifest in Lautsi clearly reflects the emergence of a broader movement seeking to push against liberal developments on the terrain of human rights. What started before Lausti also went beyond this particular case. By now, an Orthodox representation in Strasbourg protrudes the stately buildings of the embassies’ neighbourhood. Meant to engage in the debates at the Council of Europe and to ensure the ROC’s political participation in European affairs, it is led by a representative of the Department for External Relations who had participated in the elaboration of the Orthodox human rights doctrine.26 Stoeckl has noted that while the Protestant churches 24 Interview 7.1, ECLJ, director, Strasbourg, 13 October 2015 (original in French, translation by the author). 25 Grégor Puppinck, ‘The Case of Lautsi v Italy: A Synthesis’ (2012) 3 Brigham Young University Law Review 873. 26 Interview 29, Russian Orthodox Church, Strasbourg, 13 September 2017.

Federating Symbolic Capital  123 in Europe took an increasingly critical attitude towards the ROC’s activism, publishing in particular a critical statement regarding its human rights doctrine, the relation with the conservative wing of the Catholic Church intensified (Stoeckl 2014: 107). In the context of several religious freedom cases, the ECLJ created a forum where legal scholars close to the ROC as well as (former) judicial experts of the Court and other high-level legal stakeholders would bring their expertise together (Harms forthcoming). In this conservative religious collaboration, religious freedom might not even be the most prominent common stake. One should give special emphasis, for instance, to the collaboration of American Evangelical, Catholics and Russian Orthodox actors in the forum of the World Congress of Families (WCF) that developed as a ‘nodal center’ (Casanova 2020: 41) of conservatives promoting a religious agenda on family, sexuality and reproduction (Stoeckl 2020). Yet, while the mobilisation against Lautsi is to be considered as the expression of a larger development, it also occupies a unique position, because the amount of political and judicial capital brought together in this single legal episode has not found an equivalent in subsequent years. Towards a New Ecumenism? Remaining Cracks and Tensions27 Annicchino has noted that the alliance between the ROC, the Vatican and Christian conservative NGOs confirmed Hunter’s formula of a ‘new ecumenism’, allegedly uniting religious groups across denominations against a common enemy.28 Similarly, Shishkov (2017), an expert of the ROC, has pointed to the emergence of such a novel form of ecumenism, which involves Orthodox and American Christian conservatives, and henceforth coexists with more classical expressions of ecumenism, which focus more extensively on interreligious dialogue and less on conservative political activism. Such conservative and political activist ecumenism has frequently been analysed as an expression of the ‘transnational culture wars’, in which liberals and conservatives seek to defeat each other’s value-based agenda in questions pertaining to religion, the family and sexuality (McCrudden 2015b; Mancini 2017; Annicchino 2018; Bob 2014). However, one risk of such analytical perspectives is that they might uncritically reproduce the subjective views of conservative activists themselves, who aim at painting a binary and culturalist vision of social conflicts (see also 27 I analyse the limits of the collaboration more extensively elsewhere (Harms forthcoming). 28 Hunter has observed for the US context that, during the second half of the 20th century, alliances among progressives and of orthodox believers of different faith traditions led to new conflict lines that, instead of separating competing denominations, run across the denominations. This, he has underlined, led to a ‘new form of cooperative mobilization, in which distinct and separate religious and moral traditions share resources and work together toward common objectives’ (Hunter 1991: 97). Ecumenism, he has argued, previously a Protestant phenomenon, ‘can now be understood as a much more encompassing social process’ (ibid, 98).

124  The Orthodoxy of the Powerful c­ hapter five). This might easily lead us to overlook the cracks and tensions that also run through this new religious right-wing alliance. In fact, the cooperation of Evangelicals, Christian conservatives, the Vatican and the ROC does not constitute a self-evident alliance. First, it remains questionable to which degree there will be a durable and encompassing cooperation between the Vatican, Christian conservative NGOs and the ROC. Their collaboration in several legal campaigns notwithstanding, the actors of the ‘alliance against secularism’ occupy conflictual and competing positions in the transnational religious field, which can potentially hamper more extensive joint mobilisation. The Vatican, in particular, has at times explicitly distanced itself from Evangelical conservative actors. Noteworthy in this respect, Antonio Spadaro, the editor of a Catholic periodical journal, published in 2017 – together with a close friend of the Pope – an article sharply condemning the ‘strange form of surprising ecumenism [that] is developing between Evangelical fundamentalists and Catholic Integralists brought together by the same desire for religious influence in the political sphere’ (see also: Casanova 2020: 44).29 Condemning the rhetoric of ‘spiritual war’, they stressed that Francis wants to break the organic link between culture, politics, institution and Church. Spirituality cannot tie itself to governments or military pacts for it is at the service of all men and women. Religions cannot consider some people as sworn enemies nor others as eternal friends.

The authors make clear that there is no consistent alliance between the Holy Sea and conservative governments and NGOs: And this is why the diplomacy of the Holy See wants to establish direct and fluid relations with the superpowers, without entering into pre-constituted networks of alliances and influence. In this sphere, the pope does not want to say who is right or who is wrong for he knows that at the root of conflicts there is always a fight for power. So, there is no need to imagine a taking of sides for moral reasons, much worse for spiritual ones.30

Interrogated later about his article by a Jesuit review, Spadaro stated: Today, unfortunately, a warlike and militant approach seems most attractive and evocative to certain sectors in society. We see the risk of a convergence of approach between fringe groups of Catholic integralists and some groups of evangelical fundamentalists in a strange form of ecumenism that tends to impose itself even through their way of communicating in the public square.31

29 Antonio Spadaro and Marcelo Figueroa, ‘Evangelical Fundamentalism and Catholic Integralism: A Surprising Ecumenism’ La Civilità Catholica (13 July 2017), available at: www.laciviltacattolica.it/ articolo/evangelical-fundamentalism-and-catholic-integralism-in-the-usa-a-surprising-ecumenism/. 30 ibid. 31 Gerard O’Connell, ‘Exclusive Interview: Antonio Spadaro on his Article about “The Ecumenism of Hate” in the US’ America. The Jesuit Review (14 July 2017), available at: www.americamagazine. org/faith/2017/07/14/exclusive-interview-antonio-spadaro-his-article-about-ecumenism-hate-us.

Federating Symbolic Capital  125 These statements suggest that the basis for cooperation between the Vatican and American conservatives might not be all that solid and should – at the very least – not be taken for granted. Second, political dynamics can easily interfere with the collaboration of religious conservatives. As much as Lautsi constituted an opportunity for a diplomatic rapprochement between the Vatican and the ROC, as much a cooling down of diplomatic relations can hamper this ‘holy alliance’. This became apparent only a few years after Lautsi when Russia’s invasion of the Crimea made the headlines. Although joint efforts to find a basis for cooperation were further pursued and the relationships between Orthodox and Catholic activists in Strasbourg remained friendly, the frictions made the enterprise more difficult. Despite the rapprochement, the possibilities of cooperation between the churches hung on the silken thread of diplomatic relationships with Russia. While the topic is a sensitive one and was only marginally touched upon by my interviewees, other studies further substantiate the claims.32 Stoeckl, for instance, has demonstrated that the American–Russian cooperation in the WCF diminished when a number of American activists dropped out while one of the main sponsors was put on the US sanctions list for his implication in the Ukrainian conflict (Stoeckl 2020: 230). Moreover, there are only very few collaborative instances traceable between the ECLJ and the ROC since the outbreak of the Ukrainian crisis. Further pertaining to potential political conflicts within this ‘new ecumenism’, it should be noted that the convergence of religious conservatives on certain issues does not prevent their divergence on others. For instance, as demonstrated in chapter three, the ECLJ had planted its roots in Europe by defending cases of Evangelical minorities, who contested the religious monopoly of the Orthodox Church in Greece and in Moldova. Legal-religious entrepreneurs who had bridged the transition of the ACLJ to the continent had vigorously pleaded for an open religious marketplace in order to level the playing field for all religious groups. This notion is at odds with the ROC’s and Russia’s attempt to affirm the ROC’s privileged position and their political suspicion toward pluralism. As the ECLJ’s director emphasised, the NGO had often been opposed to Russian politics supported by the Moscow Patriarchate. An important example is the Religious Freedom Law passed by the Russian state in 1997 that restricted the recognition of religious organisations other than Orthodox ones and granted a privileged status to so-called ‘traditional religions’ (Rousselet 2007; Stoeckl 2014). Reflecting the ROC’s preoccupation that religious pluralisation would threaten its religious monopoly, the law stipulated that non-traditional religious organisations could legitimately be hindered in various ways to freely express their religion (Papkova 2011; Stoeckl 2014). This legal disposition also supported 32 Both the director of the ECLJ and a representative of the ROC whom I interviewed mentioned this aspect in our respective interviews. Yet they remained rather vague in pointing to a more difficult atmosphere of cooperation and did not spell out a concrete example.

126  The Orthodoxy of the Powerful the imagined unity of the Russian people, the Church and the canonical territory coinciding with the frontiers of the former Soviet Union (Rousselet 2007). It not only constituted a major stumbling block in the relations between the ROC and the Vatican, but also a major discordance with Christian conservative NGOs, especially as Evangelical groups have seen their activities being restricted on the grounds of this particular law.33 Although the Lautsi affair led the ECLJ to shift its litigation efforts from the Eastern and Central European context to Western Europe, it did not entirely abandon its earlier line of activism for Christian minorities in post-Soviet Europe. For instance, in 2017 the ECLJ and its Russian partner organisation, the Slavic Centre for Law and Justice announced their support for the American Evangelical missionary Donald Jay Ossewaarde, who complained against his conviction by the Russian judiciary for illegal missionary activity.34 As of 2022, his case is pending at the ECtHR.35 Independent of its outcome, such tensions between the ROC and Christian conservative NGOs in the transnational religious field should be taken into account when addressing the new ‘ecumenical’ condition. The transaction of legal and political capital, which characterises the collaboration of Christian conservative NGOs and established religions in the legal field, is limited by their conflictual relations in the religious field. DEFENDING INCUMBENCY

Given their substantial political and legal capital, how did the ‘alliance against secularism’ respond to the first Lautsi judgment? My argument is twofold. Seeking to affirm the incumbency of governments and religious majorities, ie, their authoritative position in the religious freedom field, the alliance attempted, first, to affirm the symbolic value of their special resource, namely political capital. More specifically, they aimed at converting political into legal authority. This also implies that they were not interested in merely instrumentalising liberal rights for their goals, as we observe in other instances of conservative

33 The problematic relationship in the post-Soviet period pertained in particular to questions of property, but also very much to the question of religious pluralism. The suspicion of the ROC towards Catholic (and other religions’) proselytism in Orthodox countries hindered an ecumenical dialogue. Borowik (2006: 272) has quoted, in this sense, a statement by Patriarch Aleksey II in 2005 with respect to the question of a meeting with the Pope: ‘It is too early to talk about visits. [There is no point in] visits for the sake of visiting or for TV pictures, as took place with the previous Pope. The meeting of the representatives of the Russian Orthodox Church and the Roman Catholic Church can take place only on condition of a real improvement in our relations. This means addressing the important issues that seriously annoy the Russian Orthodox Church, including proselytism, the expansion to the Eastern Greek Catholic Church, and lack of the equal rights for the Orthodox faithful in comparison with Greek and Roman Catholics in the western parts of Ukraine’. 34 ECLJ (2017) ‘US Missionary Appeals to European Court of Human Rights over Russian Law’: eclj.org/ religious-freedom/echr/us-missionary-appeals-to-european-court-of-human-rights-over-russian-law. 35 Ossewaarde v Russia App no 27227/17 (ECtHR, communicated on 6 July 2017).

Defending Incumbency  127 mobilisation (Bob 2014; Mourão Permoser and Stoeckl 2021; McIvor 2019). Instead, their mobilisation efforts were aimed at limiting the liberal potential of the legal principle of religious freedom as such. In other words, rather than ‘fitting into’ the liberal rights discourse, they sought to shape a competing interpretation of religious freedom and thereby the distribution of power in the field. Second, I argue that certain of the Christian activists, the ECLJ in particular, also attempted to foster their identity as rational legal experts, allowing them to compete among the judicial elite in Strasbourg. Arguably, a more explicit display of the religious commitments of the organisation would make such access to elite circles in the field more difficult. In the following I will discuss these two aspects in turn. Political Capital as Legal Authority: Conflating National Identity and Religion Let me first show how the Lautsi opponents attempted to legitimise their political power as a source of legal authority. They did so in particular by arguing that the political push for a strictly secularist understanding of the public sphere finds its limit in the protection of Christianity as a national heritage. By focusing on the representation of Christianity as an inherent element of a collective culture, they did, however, not simply ‘dilute’ their religious identity, as is sometimes argued by legal scholars and sociologists. They also consolidated their authority to define the boundaries of religious freedom and the distribution of power in the religious freedom field. The conflation of culture, national identity and religion constituted the most prominent and unanimous core of the counter-Lautsi framing. When Joseph Weiler closed his oral intervention as the representative of eight intervening governments in the Grand Chamber hearing, he subsumed the essence of his argument by emphasising: ‘Italy without a crucifix on the wall is not an Italy. Let’s not change that’.36 He furthermore contended that the Court’s interpretation of state neutrality was based on erroneous assumptions. It had ignored the states’ ‘considerable liberty when it comes to the place of religion or religious heritage in the collective identity of the nation and the symbology of the State’. To see in the crucifix a merely national symbol, he argued, was wrong. But equally wrong was to deny the nexus existing between national identity and religion. Likewise, the ECLJ’s director criticised the Chamber’s judgment for making ‘complete secularization’ a new obligation undermining original Italian

36 Joseph Weiler (2010) ‘Oral Submission on Behalf of Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, the Russian Federation and San Marino – Third Party Intervening States in the Lautsi Case’ (30 June 2010), available at: www.youtube.com/watch?v=ioyIyxM-gnM. I use here the transcript of the video.

128  The Orthodoxy of the Powerful identity: ‘While it is true that we are living in times in which national identities are challenged’, he argued in the L’Osservatore Romano, ‘the need for an identity is only that much stronger’.37 In a legal memorandum elaborated together with other legal and diplomatic actors, he confirmed this line of reasoning, underscoring that ‘Italy Must Be Permitted to Regulate Education According to Its Own Historical and Cultural Traditions’.38 He further highlighted this argument by pointing to a legal agreement concluded between Italy and the Vatican, which laid down that the principles of the Catholic Church are part of the historical heritage and the Italian people, shall continue to assure, within the framework of the scope of the schools, the teaching of Catholic religion in the public schools of every order and grade except Universities.39

In a similar fashion, the ADF together with the European parliamentarians contended in their third-party brief: In Italy, crosses are a commonplace symbol expressing sentiments as diverse as religious faith, cultural identity and unity (p.4)... In no way, as evidenced by the travaux préparatoires, did Italy forsee or agree to the terms of the education article with an understanding that expressions of its religious heritage would be forbidden from display in public schools.40

The list of statements promoting the crucifix as the embodiment of Italy’s national identity could be extended at length. One might add, for instance, the Italian government’s argument that the crucifix ‘now corresponded to a tradition which they considered it important to perpetuate’. Furthermore, they emphasised that ‘beyond its religious meaning, the crucifix symbolised the principles and values which formed the foundation of democracy and western civilisation’.41 Overall, this shows how the majoritarian status as such was used as a legitimation of legal authority. As a strategy of power preservation, the use of the ‘culturalization of religion’ (Joppke 2018: 236) frame is not unique to the Lautsi case, but participates in a broader global pattern among Christian majorities. Sociologists of religion have multiplied the examples of controversies that focused on the question of whether religious symbols should be classified as ‘cultural’ or ‘religious’ (Astor and Mayrl 2020; Astor et al 2017; Beaman 2013; Joppke 2018; Sullivan 2005). As Beyer, for instance, has noted: ‘religion shifts to other categories. One of

37 Puppinck, ‘An Alliance against Secularism’ (n 6). 38 Grégor Puppinck and Kris J Wenberg (2010) ‘Legal Memorandum. ECHR – Lautsi v Italy’. 39 Agreement between the Italian Republic and the Holy See, Article  13(1), Vatican–Italy, 18 February 1984: www.religlaw.org/content/religlaw/documents/agritlhs1984.htm. Quoted by Puppinck and Wenberg (n 38) 7. 40 ADF, Lautsi v Italy, third-party brief on behalf of 33 Members of European Parliament (7 June 2010) 4 and 7. 41 Lautsi and Others v Italy (n 8) §67.

Defending Incumbency  129 these is culture, especially in the form of state-centered national culture, in attempts to reassert its erstwhile role in this regard’ (2020: 16). This culturalisation, as Joppke in particular has pointed out, is a precondition for the secular state to ally with religion (2018: 236). In the specific instance of Lautsi, the Court legitimised this reasoning when portraying the presence of the crucifix in Italian schools as ‘traditional’ rather than religious. In its second judgment it emphasised that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State. The Court must moreover take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development.42

Some commentators have seen in the attempt of religious actors to preserve their power through ‘culturalisation’ a ‘pyrrhic victory’ (Annicchino 2011). By dissolving in the undifferentiated sphere of culture, ie, by secularising itself, religion also risks losing its distinctive markers and influence (Beyer 2020).43 Yet, the framing advanced in the crucifix episode was not only about transforming, repositioning, or reframing religious identity. Note first that the director of the ECLJ, ie, the strategising mind of the ‘alliance against secularism’, did not dispute the religious meaning of the crucifix (and neither did the Grand Chamber, § 66). More importantly, I argue that for the ECLJ, promoting Christianity’s cultural importance was rather meant to strengthen a collectivist interpretation of the right to freedom of religion as opposed to its individualist understanding. Encapsulating the majoritarian position of Christianity in the legal architecture might culturalise religion, but it strengthens rather than weakens its position of power. We find evidence to support this argument most explicitly in the director’s publication in L’Osservatore Romano, where he argued: ‘The main flaw that appears in Lautsi is the inability of the modern concept of religious freedom to consider and respect the religious dimension of social life and the social dimension of religion’.44 The ECLJ’s director thereby criticised that the individual had become the main source of legitimacy in modern rights. He deplored the fact that the theory behind the [first] Lautsi decision is based on the exclusive recognition of the individual’s rights. The individual is said to possess a conscience, a conscience that is supposedly flawless by nature; and the individual is supposed to live in a society seen as axiogically (morally) neutral.45

42 ibid. §68. 43 This is specifically valid regarding the first argumentation strategy adopted by the Italian ­government when it argued, for example, that ‘[t]he message of the cross was … a humanist message which could be read independently of its religious dimension and was composed of a set of principles and values forming the foundations of our democracies’. Lautsi v Italy (n 3) § 35. 44 Puppinck, ‘An Alliance against Secularism’ (n 6). 45 ibid.

130  The Orthodoxy of the Powerful According to him, society as a collective would lose its value as a moral standard for political and legal action. Consequently, ‘since public society is regarded as a mere artificial entity serving the individual, the former is supposed to give way to the only legitimate authority, liberty, deriving from individual dignity’.46 In a nutshell, underlining the close enmeshment of national culture and religion, the supporters of the crucifix suggested that the collective rather than the individual constitutes the source of the right to freedom of religion. We can go a step further and argue that the shift to collectivist interpretations of religious freedom also served to credit religious readings of human rights with legitimacy. Such religious human rights understanding can indeed be traced back to the aggiornamento of the Catholic Church’s theological doctrine in the context of the Second Vatican Council (1962–65) (Carozza and Philpott 2012; McCrudden 2018: 31–34; Calo 2011; Bokenkotter 1998).47 Among the key documents of the Second Vatican Council that initiated the aggiornamento, the Dignitatis Humanae states in cold print the Church’s conversion to human rights.48 Promulgating the unconditional right to religious freedom, the document overturned the long-held position that Church and State could not be separated. Yet, it was not a full-hearted conversion to secular modernity and liberal individualism. Dignitatis Humanae states that the quest for freedom must be balanced by ‘a moral obligation to seek the truth’.49 The obligation of ‘persons’ (who are ‘endowed with reason and free will’) is to seek the truth and to realise the common good. Human rights are thus to serve the community and its moral accomplishment; in fact, human dignity rests on the achievement of such moral accomplishments. This interpretation also resonates with the ROC’s understanding of human rights, since – as Rousselet has argued – the perception of tradition and the inscription of the religion in a given territory place the community above the individual (2007: 67). Overall, emphasising the collective dimension of religious freedom can be linked to the differentiation that Catholic and Orthodox understandings of human rights make between the subjective individual and the objective social good. The latter is, according to these doctrines, the standard against which the interpretation of religious freedom must be assessed. The idea of social good, in turn, is linked to a religious notion of human dignity deriving from the realisation of transcendental moral values. Paradoxically then, the apparent ‘dissolution’ of religion into culture also helped Christian conservatives to create a legal space for a religious interpretation of human rights. Similar observations hold for the stark emphasis all Lautsi-opponents have put on the margin of appreciation doctrine. This doctrine gives a broad scope 46 ibid. 47 For an overview of the development of the relationship between the Roman Catholic Church and the human rights discourse, see Carozza and Philpott (2012). 48 Vatican (1965) ‘Dignitatis Humanae. On the Right of the Person and Communities to Social and Civil Freedom in Matters Religious Promulgated by His Holiness Pope Paul VI’. 49 ibid, § 2.

Defending Incumbency  131 of legal authority to the courts’ Member States and their governments in defining the limits of religious freedom in issue areas where no European consensus exists. As such, this doctrine serves the distribution of power in the religious freedom field. Describing the pro bono intervention of Professor Weiler as the ‘poetical climax in the tension between universalism and particularism in comparative constitutional jurisprudence’, Hirschl (2014: 202) has perfectly pinpointed the efforts of the Lautsi opponents to make a case for national constitutional sovereignty. In a union of 47 countries, Weiler argued, no standardised state-church relation could be defined. The interveners unanimously emphasised the importance of national sovereignty. Moreover, Weiler upheld that the Section judgment would undermine the European specificity, which recognises diverse national arrangements, and would instead lead to the ‘Americanization of Europe’ by institutionalising a clear-cut separation between the religious and the public sphere. Echoing Weiler, the director of the ECLJ pleaded for a ‘Wide Margin of Appreciation Given Under the European Convention on Human Rights, Particularly Where There Is No Consensus Among the Member States as to Questions of State and Religion’.50 The former Judge Javier Borrego Borrego, who also formed part of the group of actors collaborating with the ECLJ, even pointed to the Catholic foundations of the subsidiary principle. ‘This principle’, he argued, ‘until the year 1990, was better known among theologians than among politicians’.51 By seeking to legitimise political capital as the source of legal authority, the Lautsi opponents embraced ‘a frame of reference that encapsulates their self-serving view of the field’ (Fligstein and McAdam 2012: 89). Unlike the strategy adopted by Sikh advocates, for instance, this framing did not primarily aim at transforming religious identities to make them fit into liberal categories of the law. Instead, approaching the battle over religious freedom from the viewpoint of the incumbent, the crucifix coalition sought to frame the legal boundaries of secularism as such and to increase the symbolic value of their special capital. Claiming Judicial Orthodoxy: Avoiding the Heretical Position The value commitment of conservative religious human rights activists is doubtlessly of key importance to their mobilisation. This has become apparent not only in Lautsi, but in other human rights campaigns, conducted especially at the United Nations (UN), such as the attempts of the ROC to push for a traditionalist human rights agenda (Stoeckl 2016; McCrudden 2014) and the campaign

50 Puppinck and Wenberg (n 38). 51 Javier Borrego Borrego, ‘La Subsidiarité et la prise en compte du contexte culturel national au titre de la marge d’appréciation’ Presentation at the seminar titled ‘Les Symboles religieux dans l’espace public’ (Strasbourg, 29 April 2010) (original in French, translation by the author).

132  The Orthodoxy of the Powerful by the Organisation of Islamic Cooperation to institutionalise the protection of blasphemous speech (Haynes 2014). However, while committed to a cultural agenda, conservative activists also face the realities of power relations in the legal field. I have already mentioned above and (will further demonstrate in chapter five) that strategies available when actors find themselves in an incumbent position might be abandoned in more marginalised positions. Moreover, however, I will argue here that to gain in authority in the religious freedom field, legally skilled conservatives might also try to discard the ‘religion-talk’, instead privileging framings and organisational strategies that allow them to compete at the core of the (secular) legal elite. This capacity to frame legal interventions in rational, secular and legalistic terms might ultimately credit them with legal and symbolic capital to push their agenda further. Two aspects, which are best illustrated with the example of the ECLJ, are important in this context. First, I find that in the Lautsi context, the ECLJ’s director aimed at positioning the organisation as the ‘guardian of judicial orthodoxy’ and authenticity rather than as a religious-legal innovator or entrepreneur. This self-positioning of the ECLJ as the ‘guardian of judicial orthodoxy’ is visible in its framing strategy. Characterising its argumentation as upholding the ‘original meaning’ of the Convention, the director of the ECLJ has underlined that what was at stake in Lautsi was whether the Convention would be considered as a political instrument or whether it would be submitted to the ‘judicial orthodoxy’ of international law. Emphasising the danger of losing sight of the legal rationality of the Convention and of using it as a political tool, he upheld that ‘human rights would get detached … from the justice that follows the understanding of the human nature’.52 In the interview, he emphasised that such politicisation means that the interpretation of human rights as originally intended by the writers of the Convention disappears progressively. So, our aim here is as well to uphold the knowledge and understanding of the original sense of the after-war human rights.53

In a later published analysis of the case, the director of the ECLJ further described its own position as the most judicially orthodox and apolitical while condemning the Court for having shifted its focus from law to politics: By creating a new obligation of religious neutrality within State-school education, the Second Section forsook legal rigor and judicial reserve. It raised uncertainty about the nature and limits of the Court’s competence and deepened its crisis. Moreover, the Second Section focused on the political theme of secularism instead of analyzing the provisions of the Convention. In doing so, the Second Section caused a meta-political crisis concerning the place of Christianity in Europe and the political



52 Interview 53 Ibid.

7.1, 2015 (n 24).

Defending Incumbency  133 legitimacy of the European Court. This crisis will have long-term consequences, as it has seriously impaired the prestige and authority of the Court.54

Claiming to defend ‘judicial rigour’, an unpolitical interpretation of human rights and an orthodox interpretation of international law, this framing arguably secondly ‘invisibilised’ the religious undertones and motivations of the ECLJ’s mobilisation. In many ways, this framing strategy is unsurprising given that success in the secular legal field is precisely predicated on advocating one’s position in the rationalised language of law. It is however an aspect that is overshadowed by the primary attention that scholars have paid to the value-commitment and the value-driven agenda of faith-based activists. Yet, it is precisely their capacity to draw on symbolically highly valued legalistic framings (and not only on religious motives) that allows certain conservative stakeholders to compete at the heart of the religious freedom field. Staging oneself as truthful to the past rather than an innovator of tomorrow reflects a very common and internalised habitus of legal professionals. Vauchez for instance has observed that the ‘most successful legal entrepreneurs are often the ones who manage to prove that their interpretative take is the least innovative and the most faithful to the “legal tradition”’ (2013: 3). It is important to note in this context that the historic power distribution in the religious freedom field enabled this assertion of ‘judicial orthodoxy’. In fact, referring to the ‘original intent’ of the Convention, the ECLJ was able to link the Lautsi episode back to the early disputes surrounding the drafting of Article 9 and the early abstinence of the Court from interfering with established State–Church relations (see chapter two). It should not be overlooked that the ‘original intent’ itself was the outcome of struggles over power between the European movement and governments reluctant to see their power sliding into a yet abstract idea of a pan-European court. The frame of the ‘true’ understanding of the Convention was coupled with the de-legitimisation of liberal opponents as political rather than ‘pure’ judicial professionals. The director of the ECLJ wrote in the aftermath of Lautsi: Those who want the European Court to overstep its jurisdiction … in fact – in a very medieval way – long to see it set up as a new spiritual authority above the States: a theocracy of the atheistic religion of human rights.55

It is clear that this argumentation was also meant to oppose liberal foes, especially those with significant resources and reputation, such as the Open Society Foundations (OSF), which the director of the ECLJ repeatedly mentioned as an unduly influential actor in Strasbourg (see also chapter five). He mentioned in our interview that one of Strasbourg’s challenges is the interpretation of the Convention, of course. Either it [the Court] does it in one sense or in the other. And it has done it increasingly



54 Puppinck, 55 ibid,

‘The Case of Lautsi v Italy’ (n 25) 876. 894. See also Bob (2019: 113).

134  The Orthodoxy of the Powerful in an evolutionary way, by conceptualising the society as the ‘open society’. Open Society. Société ouverte.56

He went on by linking the trend for liberalisation to other rights areas: ‘Everything must be liberalised. GPA and the prohibition of euthanasia in Germany – you know the case – so Open Society. The other side has become a bit absent’.57 As these elements show, the ECLJ relies on a competing moral discourse to oppose liberal actors in the field, in addition to portraying the latter as deviant from the orthodox understanding of human rights. The second aspect that illustrates conservatives’ attempt to increase their symbolic capital, ie, to gain in legitimacy as players in the legal expert community, concerns their broader organisational positioning. More specifically, religious conservatives might seek to ‘downplay’ their religious identity in favour of a symbolically more valued ‘secularised’ profile. Certainly, the ECLJ does not deny or ‘hide’ its proximity to Christian values; it states this proximity openly on its website. However, it also distanced itself from its public image as a primarily religious actor. In this sense, the director of the organisation stressed in our interview that its Christian affiliation would hardly be visible if it was not mentioned on the NGOs’ homepage: ‘[The ECLJ] is not a religious organisation. I mean – many people would like to describe us as solely religious and would say that we have a religious ideology. This is not my case. No, this is not at all my case’.58 He also underlined that ‘[n]othing in what we are doing allows anyone to conclude about our religious affiliation’.59 Considering himself as firstly a lawyer and only then a theologian, he portrayed his work as commanded by rationality first: I am a lawyer and I have an ideal of law and justice, which I try to defend. The motivation is indeed partially – but only partially – religious, but this is rather my personal motivation. This does not completely command the rationality. And I would argue that one of the main missions of the ECLJ is to show this kind of reasoning. To understand the rational limits which must be just, and which have to be shown to the institutions, which very often do not know what religion is anymore.60

It is not the goal of this book to take a normative view on these propositions. My interest here is to dissect the agenda and self-portrayal that these statements reveal, because they are relevant for the rationales underlying the struggle over religious freedom. When compared with the ADF, which more explicitly

56 Interview 7.1, 2015 (n 24) (original quote in French, translation by the author). 57 ibid. It is necessary to contextualise this statement in the overall interview: before talking about the culture argument, we talked about the ECLJ’s perception of the NGO Open Society. 58 Interview 7.1, 2015 (n 24). 59 ibid. 60 ibid.

Inequalities and Symbolic Boundaries  135 emphasises its identity as a faith-based organisation, the ECLJ’s effort to be first seen as a legal (and not religious-legal) professional organisation appears striking. Although evidently neither excludes the other, the ECLJ’s prioritising of its legal expert status over its religious commitment might also facilitate its networking with secular judicial stakeholders and thereby broaden the organisation’s scope of influence. Likewise, the director’s publications in law journals and the ECLJ’s cooperation with former judges of the Court increases its symbolic capital as a judicial professional player. PhD students of human rights law and researchers cooperate with the ECLJ, thus crediting it with further legitimacy within the legal community. While one former ECtHR judge had already collaborated occasionally with the organisation at the time of the Lautsi case, another one joined the organisation as a research associate more recently in 2020. Furthermore, a summer academy offered to law students interested in a Christian perspective on human rights, which the organisation hosted in Lautsi’s aftermath, also involved high-profile actors working at the Court. These different collaborations, while occasional, show that the ECLJ is in fact perceived among members of the judicial elite of Strasbourg as an eye-level interlocutor with important judicial expertise. Rather than confining itself to the ‘niche’ of religious challengers, it is thereby enabled to compete at the core of the field over power and authority. INEQUALITIES AND SYMBOLIC BOUNDARIES

So far, I have demonstrated how the actors mobilising against Soile Lautsi have attempted to maintain the incumbent position of governments and religious majorities in the religious freedom field. Importantly, in so doing, they not only employed framing strategies that are mostly inaccessible to religious minorities, but also explicitly sought to foster a symbolic boundary towards other religious actors, and Islam more specifically. Moreover, besides such discursive efforts of distinction, new material inequalities between religious groups crystallised in Lautsi’s aftermath in the religious freedom field. Drawing Symbolic Boundaries between Religious Groups Soile Lautsi had requested the Italian state to keep equal distance from all religious beliefs in the sector of public education. The Court, in its initial answer, had received this claim positively. The judges could not ‘see how the display in state-school classrooms of a symbol that it is reasonable to associate with Catholicism (the majority religion in Italy) could serve the educational pluralism which is essential for the preservation of “democratic society” within the Convention meaning of that term’.61 In particular, they

61 Lautsi

v Italy, 2009 (n 3) § 56.

136  The Orthodoxy of the Powerful referred to the decision of Dahlab v Switzerland, where a Muslim teacher had been forbidden to wear the headscarf in school.62 From a legal vantage point, it therefore seems unsurprising that the crucifix defenders engaged with the headscarf cases in their legal argumentation. The interesting question concerns not the if, but the how of this engagement. Within the ‘alliance against secularism’, two lines of argumentation unfolded vis-a-vis the question of how to compare the crucifix and the headscarf claims: an inclusive line of reasoning, on the one hand, and a more exclusive posture, on the other. The inclusive stance was represented by Professor Weiler. His performance at the Court was remarkable not only in terms of its verbal eloquence. Wearing a kippah in front of the audience, he sent a strong symbolic signal to the jury. He argued that ‘the social cleavage of our society is not among Jews and Christians. It is not among Protestants and Catholics. It’s among religious and non-religious’.63 Religious symbols, he emphasised, are even accepted by large parts of the secular population as being part of Europe’s heritage.64 Professor Weiler conceived of the crucifix as compatible with other forms of expression by other religious groups. More than that, he even saw in the Catholic cross a chance for education about tolerance and respect. One might dispute, of course, the pertinence of this argumentation. However, taking a stance in this debate is not the purpose of this work. Rather, what is of interest to the argument in this chapter is that Weiler’s viewpoint contrasts with a second framing choice that other actors in the alliance upheld. The ECLJ and its allies have sought more explicitly to foster a symbolic boundary towards Muslim rights claims and embraced a more exclusive framing to distinguish the display of the crucifix from the display of the headscarf in the public sphere. In so doing, the organisation also adopted a different strategy from Sikh activists (considered in the previous chapter), who avoided an explicit distancing from the marginalised Muslim claims in order to prevent the latter’s further marginalisation. The ECLJ dissociated Muslim and Christian claims at two levels. First, to contest the applicant’s view that the Christian symbol in question was similar to the headscarf and should be considered as an act of proselytism, the ECLJ portrayed the cross as primarily a passive manifestation of religion that could not be considered as an act of ­proselytism. As the organisation highlighted in its third-party brief: ‘in the affair of Lautsi, nobody is forced to act’.65 The ECLJ made clear that it subscribed to the Dahlab decision and underlined the Court’s findings that assimilated the headscarf to an act of proselytism incompatible with a message of tolerance, respect, equality and non-discrimination. Second, the

62 Dahlab v Switzerland App no 42393/98 (ECtHR, 15 February 2001). 63 Weiler, ‘Oral Submission’ (n 36). I use here the transcript of the video. 64 ibid. 65 ECLJ (2010a) Lautsi v Italy, third-party brief, 1 June 2010 (original quote in French, translation by the author).

Inequalities and Symbolic Boundaries  137 ECLJ also invoked its historically privileged status and the sovereignty of states to ­legitimise the difference in treatment: Once again, it must be emphasised that this case law cannot be applied directly to the Lautsi case, as one cannot derive from the option to prohibit an obligation to prohibit. Nevertheless, it is important to note that the presence of the crucifix does not fall within the scope of untimely or inappropriate proselytism. This is very clear from the case law of the Court regarding the privileges of majority religions. It is clear that the presence of the crucifix in schools falls within this framework of reference rather than within that of proselytism.66

With this argumentation, the ECLJ suggests that the difference of treatment of the two religious symbols should not simply be grounded in their different meaning, but foremost in the sovereign status of governments in matters pertaining to the governance of religious diversity. In the aftermath of the case, the ECLJ’s director continued elaborating this viewpoint: Finally, symbols differ with regard to their meaning and their cultural context … The crucifix is in its own cultural context in Italy, which is not the same as an Islamic headscarf’s cultural context in Switzerland … The Dahlab Court was explicit on this point, stating that it was difficult ‘to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and on discrimination …’. … This compatibility issue did not arise in the Lautsi case, but not because the crucifix is per se compatible with European and civilized values. The Court found no compatibility issue because Italy does not have to justify the crucifix’s presence, which is a matter within the scope of its margin of appreciation.67

By drawing on the Christian majorities cultural position, the ECLJ thus not only sought to maintain the incumbency of this group, but also to strengthen a symbolic distance vis-a-vis the Muslim minority. Before and after the Lautsi case, the director of the ECLJ emphasised that the presence of Islam and the political wish to regulate it constituted a threat to all religious groups. He emphasised that, in the immediate post-war period, [r]eligious freedom … was merely a legal doctrine; in reality, the value was that of tolerance. This is explained by the fact that religious minorities were at that time far less visible and had no intention of modifying the religious identity of their countries of adoption.

This has changed, he contended, since Islam brought about a new challenge to the public sphere. He underlined in this sense: ‘The large presence of Islam in Europe now demands that a position be taken concerning religious freedom’. The first Lautsi case, in the ECLJ director’s view, epitomised the fact that European states responded to the new challenge posed by the presence of Islam by favouring radical secularisation. Considering the political controversies

66 ibid.

67 Puppinck,

‘The Case of Lautsi v Italy’ (n 25) 908.

138  The Orthodoxy of the Powerful surrounding Islam as a source for a general backlash against religion, he stressed that ‘they reduce the religious freedom of everybody’.68 Therefore, he considered the differential treatment of religious faiths as legitimate: ‘The generic concept of Religion with a capital ‘R’ does not seem appropriate today anymore given the manifest differences between different religions’.69 The boundary drawn between majority religions and Islam indicates that competition over the authority of interpretation in the religious freedom field is not only predicated on the cultural opposition between liberals and conservatives, but also on the relation to the (marginalised) religious other, in particular Islam. That Islam had become a fault line between conservative Christians and liberal human rights activists became clear in yet another case. On 29 November 2009, Switzerland had voted in favour of a general prohibition of minarets through a popular referendum. Soon after, two independent complaints against the new law reached Strasbourg: one made by the Ligue des Musulmans de Suisse and another by a locally engaged Muslim, Hafid Ouardiri.70 The Muslim actors themselves were neither aware nor particularly interested in the ideological fight carried out in their name. Strasbourg had not become for them a venue of human rights activism or of any organised attempt to challenge the restrictions imposed on Muslims in Europe. Ouardiri’s legal action against the ban started almost accidentally. Ouardiri was invested in local community work, but not a legal activist. Former porte-parole of the Mosque of Geneva, he is the director of the Fondation de l’Entre-connaissance, an association invested in intercultural and interreligious dialogue. When the ban was passed, he became a local porte-parole for the Muslim community, yet without specifically envisioning judicial action.71 A lawyer, who specialised in penal and commercial law, helped Ouardiri to go to court out of friendship. When I asked him about his motivation to defend the case in Strasbourg, he explained: Ah, because I had known him [Ouardiri] for a long time already. We are friends and this law, I found it shocking, he found it shocking, and so we tried to do it … To keep the story short, you can make out of it what you like, I am atheist and I defend the right to freedom of religion because I think it’s worth it. I do not have more sympathy for the minarets than for the clock tower of the Catholic cathedral of my childhood. I simply found the prohibition inadmissible. … I don’t remember what I have done for him, but I have just known him for always. And so, I think I called him to say that I was shocked by what happened and so we must have thought about going to Strasbourg.72

68 Interview 7.2, ECLJ, director, Strasbourg, 28 July 2016 (original in French, translation by the author). 69 ibid. 70 Ligue des Musulmans de Suisse v Switzerland App no 66274/09 (ECtHR, 28 June 2011); Ouardiri v Switzerland App no 65840/09 (ECtHR, 28 June 2011). 71 Interview 5, Ouardiri, litigant, Geneva, 28 July 2015. Ouardiri emphasised that he did not pursue a broader political cause with the case. Rather he felt, because of his previous engagement for the local Muslim community, responsible for speaking in the name of the latter. 72 Interview 6, lawyer, Geneva, 28 July 2015 (original in French, translation by the author).

Inequalities and Symbolic Boundaries  139 In 2011, the ECtHR declared both Ouardiri’s application and the case filed by the Ligue des Musulmans de Suisse inadmissible because they did not qualify as direct victims of the law since no request to construct a minaret had been made. However, although the inadmissibility decision was a very likely outcome from the start, this did not prevent transnationally mobilised NGOs to articulate their views on religious freedom. While the minaret cases were not the fruit of coordinated and strategised legal mobilisation, they became part of the agenda of conservative and liberal cause lawyers’ agenda in Strasbourg. For the ECLJ, the minaret cases constituted a further opportunity to advocate for the religious freedom approach it developed in Lautsi. In its third-party intervention, it reasserted ‘the religious dimension of society and the social dimension of religion’ as a source of legitimacy for majority privileges and to thereby distinguish between the cultural and majoritarian status of majority religions on the one hand, and Islam on the other.73 The ECLJ emphasised the tension between the aspiration for a collective identity manifest in all cultural regions (Muslim, Orthodox, Christian) and a ‘modern’ conception of the right to freedom of religion, which essentially relied on a notion of the individual being endowed with an autonomous conscience. It argued that this aspiration for collective identification proved the need to replace the concepts of ‘neutrality’ and ‘laïcité’ with an alternative conceptualisation of religious freedom. According to the organisation, the recognition of the religious nature of national identities and cultures constituted a ‘third way’ of approaching religious freedom. This third way would be able to remedy the limitations that a mere evaluation of religious pluralism allegedly encountered today. Although the ECLJ did not explicitly suggest that the Court should decide against the Muslim applicants, its propositions marked a boundary between Islam and Christianity in European societies in terms already outlined above. Yet, the ECLJ was not the only organisation intervening in the minaret cases. The Open Society Justice Initiative (a programme run by the philanthropist OSF) also petitioned the Strasbourg judges, albeit from a very different point of view than the ECLJ. Until this point, the globally engaged philanthropic organisation had not specifically engaged in questions of religion (an aspect, which will be discussed in detail in chapter five). A lawyer working for the OSF has noted in this context: So, the OSF is a big foundation, George Soros’s foundation … They give out a lot of money to a lot of different issues, religious freedom is one issue. Is it? Well, it comes up. It is not an explicit funding line, it never has been.74

73 ECLJ (2010b) Ligue des Musulmans de Suisse v Switzerland and Ouardiri v Switzerland, ­third-party brief, 22 October 2010 (original quote in French, translation by the author). 74 Interview 17, lawyer, Open Society Foundations, London, 24 November 2015.

140  The Orthodoxy of the Powerful This is hardly surprising when one takes into account that religious freedom is generally considered a ‘luxury’ right among human rights activists who perceive the question of religious freedom as outside their mission (Petersen and Marshall 2019). For the OSF, intervening as a third party in religious conflicts was interesting however for the organisation’s agenda on racial discrimination. Although my interlocutor at the OSF could not recall precisely which objective the organisation pursued in Ouardiri, he ‘suspect[ed] it was partly to encourage the Court to look at this from a race discrimination perspective and to adopt some of that language [such as] concepts of race discrimination’.75 In its intervention, the organisation placed a specific emphasis on the fact that the minaret ban amounted to a collective discrimination against the Muslim community. Without speaking explicitly of Islamophobia, it referred to a pattern consisting of a general stigmatisation of the collective community of Muslims. Thus, the authors of the third-party brief underscored that ‘(s)urveys conducted across Europe demonstrate that the antagonism shown towards minarets as outlined above is often based on irrational views of Islam, rather than for any legitimate purpose’.76 This position contrasts in particular with the efforts by Christian conservatives, among which the ACLJ and the ECLJ at the UN, to push against the recognition of the notion of Islamophobia (Haynes 2014). Although the ECLJ and the Open Society Justice Initiative did not directly refer to each other in their third-party propositions, their interventions illustrate their competing agendas. It should be noted, however, that while the ECLJ integrated Ouardiri into its struggle over the authoritative interpretation of religious freedom, the Open Society Justice Initiative did not take a strong stance in this debate. For the latter, lending support to the minaret defenders was a means to gain credit in the neighbouring field of racial discrimination. Thus, while Christian advocacy organisations have started developing a strong presence in the religious freedom field, other well-equipped human rights defenders are only occasionally interested in this issue area, and as a means to gain in authority in relation to connected legal questions. Finally, it should be emphasised that while the culturalisation of the crucifix allowed Christian activists to draw symbolic boundaries towards both secularists and Muslims, it is unlikely that minority religious actors can take advantage of similar framing strategies. For instance, Lori Beaman critically questioned whether the shift towards the culture argument could potentially become a discursive opportunity for minority religions as well. She argued that although ‘the idea that religious minorities can deploy the discourse of culture as a mechanism for displacing or shifting power relations is an appealing one, the fact that majorities may be better placed to control the construction of the boundaries and meaning of symbols may well dilute the potential for resistance’ (2013: 101).



75 ibid.

76 Open Society Justice Initiative (2010) Ouardiri v Switzerland, third-party brief, October 2010, 3.

Inequalities and Symbolic Boundaries  141 Beaman’s argument that the symbolic world constructed by religious litigants very much depends on the power resources at their disposal is not least reflected in the contrasting strategies adopted by the Sikh and Christian activists vis-a-vis Muslim claims in the religious freedom field. A (One-Sided) Rise in Judicial Capital? There is a consensus among practitioners and scholars about attributing the Grand Chamber reversal in Lautsi to the powerful mobilisation of the ‘alliance against secularism’. For example, a high-profile lawyer formerly working at the Court, who had closely followed the Lautsi affair, emphasised: The other important aspect were the third-party interventions that showed well – and you saw, there were atheists, agnostics, Orthodox, Catholics – the Court did realise thanks to this – I think it was very important for the Court to realise that it touched on a fundamental matter and that it could not go easily about it, just saying ‘this is proselytism’. I am caricaturing, of course.77

In a similar vein, a judge from the Court underlined: ‘Did it have an impact? I am prepared to bet money on this or a bottle of whiskey that definitely they [the third-party interveners] influenced the Court’.78 Given that the success of the pro-crucifix coalition was overwhelmingly attributed to the outstanding moment of political pressure, it hardly seems surprising that it had a tangible impact on the mobilisation of human rights NGOs. For example, an expert working at the Court emphasised that, while the Lautsi case did not constitute a jurisprudential turning point of the Court, it clearly marked a major turn in terms of NGO mobilisation: You mentioned Lautsi. Do you think it constituted a central turning point? No. It was extremely mediatised. But, in jurisprudential terms, it only confirmed what was already there. There are interesting dissenting and concurring opinions. But it did not constitute a jurisprudential turning point. And what about the interventions of NGOs? Lautsi served as a galvanising force. It is true that, afterwards, NGOs have started intervening more actively … In the past, there have been third-party interventions, but after Lautsi this has almost become a routine.79

Even more than the NGOs’ expertise, it was their capacity in accumulating political capital that was perceived as crucial for judicial success. A lawyer

77 Interview 4, lawyer formerly working at the ECtHR, Paris, 18 May 2015 (original in French, translation by the author). 78 Interview 18, ECtHR judge, Strasbourg, 28 July 2016. 79 Interview 21, legal expert ECtHR, Strasbourg, 28 July 2016 (original in French, translation by the author).

142  The Orthodoxy of the Powerful working for the Evangelical ADF described the noticeable shift in mobilisation tactics: ‘The reality is that Lautsi changed a lot of things’, since the successful intervention of the Member States and parliamentarians ‘showed that public pressure does have an incredible amount of value as far as winning these cases’.80 The same representative thought of the intervention strategy in terms of catching up with their opponents who had long petitioned the courts through direct intervention. The lawyer emphasised that the intervention of political power was something that ‘the other side has been using obviously for if not years decades and so on’. The conflict had a lasting impact on organisations’ strategic repertoire. ‘Lautsi was important mostly because that’s where strategy changed for a lot of organisations, and they realised the importance of third-party intervening’. Table 1  Third-party interventions in religious freedom cases at the ECtHR

Year of (in-) admissibility decision until 2008

2009–19

Total of cases with one or several third-party interventions

Number of cases with faith-based third-party interventions

Number of cases with non-religious third-party interventions

Christians

9

3

6

Muslims

1

0

1

Jehovah’s Witnesses

2

2

2

Other religious minorities

2

0

2

Nons or no information

4

1

4

Christians

20

19

8

Muslims

6

2

6

Jehovah’s Witnesses

4

3

1

Other religious minorities

2

0

2

Nons or no information

9

4

7

Total

59

34

39

Cases filed by

Source: HUREL. Note: One case may involve more than one third-party intervention. “Faith-based interventions” include both religious institutions (eg churches) and faith-based NGOs.

80 Interview 11, legal counsel Alliance Defending Freedom International, Vienna, 23 October 2015.

Inequalities and Symbolic Boundaries  143 While third-party interventions can be found at the Court since the 1980s, they were granted a formal place in the Court’s rules with its reform in 1998.81 According to van den Eynde’s count, about 294 briefs were filed by human rights NGOs in about 237 cases between 1986 and 2013 (2013: 279). As van Eynde explains, for NGOs, this practice compensates for the fact that they are not allowed locus standi at the Court as long as they are not applying as direct victims. Although the ECtHR and other international courts have increasingly experienced third-party interventions since the 1990s, this form of legal participation is not closely as developed as in the United States (Bartholomeusz 2005). Yet, Lautsi marked a visible milestone. As van den Eynde has noted in her study, in 2010, there were more interventions than in the period between 1985 and 1996 (2013: 279). Regarding the issue of religious freedom, the HUREL dataset counts 18 cases (decided until 2009) that figured third-party interventions. Between 2009 and 2019 this number more than doubled (41).82 Among the interveners in the cases decided before 2009, only a few were faith-based actors. The 41 cases decided as (in)admissible after 2009, by contrast, involved direct interventions by religious participants on 28 occasions. It is also noteworthy that human rights NGOs, states and other experts increased their activity in religious freedom case law. Of interest in this context is that the vast majority of interventions by faith-based actors came from NGOs that are part of the Christian conservative and Evangelical spectrum. To my knowledge, no Muslim advocacy group has been among the interveners. What does this intensification of NGO activism in religious freedom struggles in Strasbourg imply for the religious freedom field? First, it further contributes to connecting legal spaces at a transnational level. Indeed, faithbased NGOs do not only petition the ECtHR, but use numerous national and transnational venues for their goals. We have seen this in the Sikh litigation episode (chapter two) and will encounter more in the next chapter. Following upon their success in Lautsi, Christian conservatives connected their European and US legal agenda via three cases (see also: McCrudden 2015b; Fokas 2016): Fernández Martínez v Spain, Sindicat Păstorul cel Bun v Romania and Hosanna Tabor.83 The first concerned the non-renewal of a teaching contract for Mr Fernández Martínez, a secularised priest working as a teacher

81 The right to third-party interventions is inscribed in Article  36 of the Convention and in Article 44 of the Rules of the Court. 82 Numbers based on Matthias Koenig and Lisa Harms (2022) European Court of Human Rights Religious Litigation Database (1959–2019) (HUREL) Version 1.0. In my own research, I have identified one additional third-party intervention that is not registered in HUREL v1.0. The ECLJ intervened in the case of Ligue des Musulmans de Suisse v Switzerland (n 70). 83 Fernández Martínez v Spain App no 56030/07 (ECtHR, 15 May 2012); Fernández Martínez v Spain App No 56030/07 (ECtHR [GC], 12 June 2014); Sindicatul ‘Păstorul cel Bun’ v Romania App no 2330/09 (ECtHR, 31 January 2012); Sindicatul ‘Păstorul cel Bun’ v Romania App no 2330/09 (ECtHR [GC], 9 July 2013); Hosanna-Tabor Evangelical Lutheran Church & School v Equal Employment Opportunity Commission 565 US 171, 11 January 2012.

144  The Orthodoxy of the Powerful of religion and who publicly supported the idea of optional celibacy, which the Spanish courts had considered as a matter of internal church autonomy. Referring to the margin of appreciation doctrine, neither the Court’s Chamber nor its Grand Chamber found a violation of the applicant’s rights. The case of Sindicat Păstorul cel Bun v Romania concerned the non-recognition of a trade union formed by clerics and lay members of the Romanian Orthodox Church after the archdiocese had objected to its registration. While the Court found a violation of the freedom of association in its Chamber decision of 2012, it reversed its judgment in the Grand Chamber decision of 2013, referring again to the margin of appreciation enjoyed by the state. The ECLJ organised a large litigation campaign, connecting these two cases to a third, Hosanna Tabor, which was litigated around the same time in the US Supreme Court and equally concerned the question of internal church autonomy. Not only did the ECLJ intervene on both sides of the Atlantic, it also brought experts on all three cases together in a seminar in order to exchange views on the referral of the two European cases to the Grand Chamber. Notably, the Becket Fund for Religious Liberty, devoted to the free expression of all religions, also participated in the seminar and intervened in the case of Sindicatul. The case of Hosanna Tabor was explicitly referred to by the ECLJ’s intervention in the Grand Chamber case of Fernández Martínez and by the Becket Fund in the Grand Chamber case of Sindicatul. As these examples illustrate, third-party interventions had become a tool to connect legal spaces in distant places and to gather symbolic and legal capital. I converge with Fokas (2016) in arguing that by connecting stakes and actors globally, Christian conservative NGOs have not only equipped the religious establishment with judicial capital, but have fuelled the circulation of repertoires of action and legal framings between legal fields. There is a second side to this increased ‘NGOization’ of the religious freedom field: it has also made visible the unequal distribution of support networks across religious groups. In fact, while the Court has turned into a platform for Christian actors who aim at defending the position of the church and the public role of Christianity more generally, the same cannot be said about many other religious groups, and more specifically Muslim communities. Third-party interventions in support of Muslim applicants have only appeared in more recent years and have not, to my knowledge, included any Muslim advocacy group. That is, although all of the heavily politicised conflicts regarding the accommodation of Muslim rights claims have at some point been negotiated in Strasbourg, only very few could build on a larger support network visible in third-party interventions. Thus, while Strasbourg has in fact become a platform of intense civil society presence, which provides support for many groups to assert their claims, these support structures remain unequally distributed across religious groups and issue areas. It is important to note that while Lautsi had a very encouraging effect on Christian conservative activists, minority activists perceived an important imbalance in the Court’s judgments when comparing Muslim and Christian cases.

Inequalities and Symbolic Boundaries  145 For example, UNITED SIKHS’ international legal director started our second interview by immediately asking about my thoughts on the Lautsi case. Similarly, all other minority advocates interviewed for this study have referred in some way to the decision. Their feelings about it were mixed at best. Thus, the Sikh community activist, returning from an inter-faith meeting to discuss legal strategy, noted during our interview: ‘At the meeting yesterday, I was discussing with the lawyers about when is the right time to take another case. Because … maybe the Italian case shows us a sign, maybe the crucifix case shows us a sign’.84 At the same time, she also hesitated to see Lautsi as an encouragement for religious minorities: I would not say Lautsi is a sign that the European Court is becoming more proreligious freedom rights because, in the first instance, the European Court has been pro-Judeo-Christian traditions in its findings. But, more importantly, it is not dealing with the new move in Europe to be secular which is France, Belgium. I don’t know where Germany stands in this. But Italy is as religious as you can get, you know. So, I’m not looking at this as a signal of … the European Court is becoming pro-religious freedom, I would not rush to that conclusion. Because there are particularities in the Italian case that make it very different from the French case and the Belgian cases.85

Likewise, other religious rights activists have perceived the Lautsi case as further strengthening the imbalance between the chances of success in cases brought by Muslim and Christian applicants. As I will show in the next chapter, the French Collectif contre l’Islamophobie en France (CCIF), which was actively engaged in national and international debates over Muslim discrimination and protection, perceived the case as proving the political bias of the Court. A lawyer working for the CCIF at the time reflected on the question whether there are possible plans to mobilise at the ECtHR as follows: Regarding the European Court of Human Rights, we were somehow divided. I am sorry, but, until today, when it comes to cases regarding Islam, the Court has always been negative. You have the Lautsi case: it accepts the crucifix at schools and, yes, this is incredible.86

Whether or not this ultimately leads to discouraging Muslim supporters from petitioning the ECtHR remains open, although a trend in this direction has become apparent in recent years, to which I will turn in the next chapter.87 

84 Interview 3.2, UNITED SIKHS, international legal director, London, 18 November 2015. 85 ibid. 86 Interview 19, lawyer, Collectif contre l’Islamophobie en France, 3 May 2016 (original in French, translation by the author). 87 Giorgi and Annicchino (2019), for example, have described the indirectly discouraging effect the Lautsi II decision had on religious minorities at the grassroots level in Italy.

146  The Orthodoxy of the Powerful Lautsi constituted an unequalled climax of legal mobilisation in the European religious freedom field. The amount of ink spilled to analyse, problematise and criticise the case illustrates its political explosiveness. Despite the many publications that have discussed legal and political dynamics of the case (Annicchino 2011; Bob 2019), revisiting the episode was important to complete the picture of relational dynamics structuring the religious freedom field. In chapter two, I have demonstrated the emergence of an autonomous and liberal ‘pole’ in a yet hardly existing field, ie, judges, lawyers and religious litigants pushing jointly for more expansive religious freedom rights in countries with an Orthodox majority. In chapter three, I have shown how actors with little power and few means seek to circumvent the still powerful position of governments by squaring their identity in the best way possible with liberal and secularised legal imaginaries of religion. In this chapter, we have revisited the pushback against the growing liberal pressure in the field. This pushback confirms the diagnostic that transnational institutionalisation may have paradoxical implications for the regulation of religious diversity. While minorities use transnational opportunity structures to advance their claims and thereby potentially weaken historically shaped State–Church relations, religious majorities and political powerholders seek to reassert their national power and legitimacy at the transnational level. I am of course not the first to observe this ambivalence of legal transnationalisation (Koenig 2007; Joppke 2013). Yet, examining the phenomenon from a field-theoretical, ie, relational, perspective allows us to specify several nuances. First, it is striking to note the difference in strategies employed by actors in a marginalised position, such as Sikh litigators (chapter three). Rather than adjusting identity narratives to liberal and secular ideas, conservatives aimed at reaffirming the incumbency of states and Christian majorities by seeking to influence power distribution as such in the field. They did so not only by using political capital as a source for legal legitimacy, but by erecting symbolic boundaries towards Islam, which was perceived as a politically controversial minority in the field. Second, it is important to note that this strategy was at least in part enabled by the advantageous position of Christian activists in the Lautsi conflict. Extensive symbolic capital accumulation and the capacity to fashion their intervention as the preservation of ‘judicial orthodoxy’ helped them to convert political resources into legal authority. Importantly however, this strategy is also not always available to conservatives. In many instances – we will see some of them in the following chapter – conservatives do not have the leverage that comes with the incumbent position and sometimes seek to instrumentalise liberal discourses to gain in power in the field. The mobilisation in Lautsi is particularly important not only because it turns the religious freedom field into a battlefield of opposing world views and cultural values, but because conservatives were able to fashion their strategy as the orthodox, ie, ‘natural’, view of the law and thus to compete for authority at the core of the field rather than at its fringes.

Inequalities and Symbolic Boundaries  147 The mobilisation of Christian conservatives has generally been labelled as an expression of the ‘culture wars’ unfolding at the transnational level (McCrudden 2015b; Mancini 2017; Annicchino 2018). Many of the elements presented in this chapter demonstrate that the conservative alliance has indeed attempted to shape a view of international law infused by cultural and religious values and concurring with a liberal cosmopolitan interpretation. However, from a fieldtheoretical point of view, it is important to acknowledge that painting a bipolar vision of the world is part of the conservative strategy itself. As an analytical category it therefore captures first and foremost the subjectivist intention of the actors themselves. In a reflexive endeavour so central to Bourdieu’s sociology (Bourdieu and Wacquant 1992; Madsen 2011), this subjectivist intention should be considered as embedded in broader relations in the field. Not only are there persistent tensions in the apparent ‘conservative unison’ that stem from dissensus in the religious field, it is also important to differentiate whether actors compete over the foundational values in the field (as in Lautsi) or retreat to niche strategies that do not aim at defining the overall functioning of the field (chapter five). These nuances are important when seeking to assess the power of the conservative pushback unfolding on the terrain of human rights.

5 Endogenous Change in the Transnational Field: Jehovah’s Witnesses, Muslims and Christians’ Recursive Mobilisation

I

t is beyond question that the European Court of Human Rights (ECtHR) has become an important opportunity structure for religious minorities to assert their claims for recognition vis-a-vis national governments. While some have been able to seize this opportunity with great success, others – Muslim minorities from Western Europe in particular – have encountered significant obstacles in this endeavour (Koenig 2015; Harms 2022). Meanwhile, it is not only minorities, but also majorities which have made use of the Court. Yet again, the picture is complex. While Christian litigants have scored legal victories that helped them consolidate some of their long-standing privileges on the terrain of religious freedom (chapter four) they have, simultaneously, seen their public influence diminish through judicial battles over other rights, especially those pertaining to gender, sexuality and reproduction (Helfer and Ryan 2022). How has the legal mobilisation by these various religious groups evolved in the face of success and failure? In this chapter, I am interested in how strategic litigants and their supporters have adapted their case selection, framing strategies and venue choices to their respective margin of action in a consolidating legal field. In so doing, I shed light on how conflict lines and actor constellations in the religious freedom field have evolved. This allows us to better understand the incremental and ambivalent effects of transnational legal institutionalisation on the governance of religious diversity. On the one hand, the chapter corroborates the findings of legal mobilisation scholars who have emphasised the capacity of litigants to push for legal and social change through recursive cycles of legal mobilisation (Alter and Vargas 2000; Cichowski 2011, 2013; Conant 2006; Helfer and Ryan 2022). In these scenarios, litigants make use of legal opportunities and push judges towards greater activism. The resulting legal changes can incentivise new rounds of litigation which might allow activists to further expand their judicial achievements. On the other hand, however, I contend that this (more or less) straightforward rightsexpansion coexists with more ambivalent dynamics of mobilisation and change

Endogenous Change in the Transnational Field  149 that remain under-studied in the existing scholarship on legal mobilisation in European courts. In particular, responses to sustained legal failure as well as pushback against mobilisation by those who find themselves at the losing end of the ‘European rights revolution’ (chapter one) make the picture more complex. These actors might introduce new frames and legal agendas, disengage from Strasbourg, choose different avenues for activism to raise indirect pressure on the Court, and build new alliances to introduce change. Such shifts might not defy the order of the field, but they reflect how lines of contention incrementally evolve in disputes over religious freedom. More specifically, I distinguish three trajectories of legal mobilisation. First, Jehovah’s Witnesses’ litigation provides an ideal and typical illustration of a case of recursive rights expansion. Global repeat litigation and favourable political constellations have been instrumental for this dynamic. By contrast, second, Muslim legal mobilisation in disputes over the Islamic headscarf and the burqa reflects an ambivalent simultaneity of precarisation and (attempts of re-) empowerment. Thus, on the one hand sustained legal failure has fostered Muslims’ marginal position in Strasbourg. Even though support networks have grown, support for Muslim litigants remains not only sporadic (for now), but predicated on the ‘fit’ of Muslim claims with the liberal-secular agendas of these networks. On the other hand, however, Muslim grassroots movements have accumulated legal capital enabling them to invest in alternative international courts and thereby keep legal opportunities open. Third, Christian conservatives have increasingly used religious freedom litigation to push back against anti-discrimination policies on gender and reproduction. In so doing, they have fostered new debates over conflicting rights, advanced natural law conceptions into the religious freedom domain and opened new venues for political and legal opposition to liberal legal developments. Although this pushback is targeted primarily at actors outside the religious freedom field, it also adds to the erection of symbolic boundaries towards the religious other. Bringing together these different trajectories of legal mobilisation, the chapter highlights the subtle and incremental dynamics of change within the religious freedom field and beyond. First, the case of Jehovah’s Witnesses illustrates how legally mobilised actors have contributed to the alignment and standardisation of human rights interpretations across different human rights bodies (such as the ECtHR and the UN Human Rights Committee (CCPR)). Second, by following the path of newly constituted human rights capital among Muslim activists that is not invested in Strasbourg, it shows how discouragement in one international human rights court has led to intensified activism in another international venue. This raises questions about a possible simultaneous multipolarisation of the global human rights field and shows the ambivalent effects of Strasbourg on struggles for religious recognition. Finally, the mobilisation of Christian conservatives shows how rising cultural oppositions on questions of sexuality and reproduction affect adjacent struggles over religious freedom.

150  Endogenous Change in the Transnational Field JEHOVAH’S WITNESSES AND THE EXPANSION OF RELIGIOUS FREEDOMS

I will start by examining the rights expansion achieved by Jehovah’s Witnesses. As became clear in chapter two, this religious community is unique in its globally coordinated use of litigation. Members of the community systematically appeal to national and international courts whenever they encounter obstacles in practising their faith. Building on a close-knit religious network, their repeat litigation has led to an array of successful precedents at the ECtHR. Such precedents, in turn, have served the community’s legal ambitions in constitutional courts across the globe. A case in point is their litigation for conscientious objection against military service. Such claims have multiplied over the years and became one of the most important points on the Jehovah’s Witnesses’ agenda in Strasbourg. While initially unsuccessful, successive litigation at both the ECtHR and the CCPR has helped to implement legal reforms and increase pressure on states still reluctant to recognise conscientious objectors.1 Consolidating Success through Repeat Litigation The first ever religious freedom case forwarded by the Committee of Ministers to the European Court was a case of conscientious objection filed by a member of the Jehovah’s Witness community.2 Mr Grandrath lodged his case in 1964 against Germany and lost it in 1966 – three decades before Kokkinakis marked the first finding of a religious freedom violation (chapter three). The prospects for success had been small from the start. The Cold War was at its peak and Grandrath refused to perform not only military service, but also alternative civilian service. In this context, the Court considered his claim under Article 9 in the light of Article 4 which prohibits forced labour but which excludes military service from the notion of forced labour.3 By considering Grandrath’s claim under this Article, conscientious objection was not seen as protected by Article 9. This interpretation of conscientious objection was upheld over a period of 30 years.4 Thus, corroborating the findings of chapter two, the political dependence of the

1 For a useful overview of successful litigation by Jehovah’s Witnesses concerning conscientious objection around the world, see Schroeder (2011). 2 Grandrath v Germany App no 2299/64 (ECtHR, 12 December 1966). 3 Article 4 of the Convention reads as follows: ‘1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include: a. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; b. any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service; c. any service exacted in case of an emergency or calamity threatening the life or well-being of the community; d. any work or service which forms part of normal civic obligations’. 4 On this aspect, see Muzny (2012).

Jehovah’s Witnesses and the Expansion of Religious Freedoms   151 Court in its early years led to great restraint on the terrain of religious freedom. Given the limited leeway to challenge violations of conscientious objection at the ECtHR, it is therefore not surprising that Jehovah’s Witnesses brought only a few further claims in the decades following Grandrath.5 But what was a no-go in the Cold War era later became a story of rights expansion. By the mid-2000s, community members began to take up the issue of conscientious objection again. Cases submitted were especially directed against Armenia, where arrests for refusing military service remained frequent. Armenia had joined the Council of Europe in 2001 and committed itself to adopting legislation to allow for conscientious objection. While the law necessary to comply with this commitment had been adopted in 2004, conscientious objectors continued to be imprisoned. According to Jehovah’s Witnesses’ own numbers, between 2001 and 2011 more than 370 Jehovah’s Witnesses were imprisoned for refusing to carry out military service in Armenia.6 In this context, the case of the Armenian conscientious objector Vahan Bayatyan, which was filed in 2003, was used by the Witnesses to bring the issue back before the ECtHR. Initially, in 2009, no violation of Bayatyan’s right to freedom of religion was found. Yet, as the case was passed on to the Grand Chamber and supported by a broad range of secular human rights NGOs, 16 out of 17 judges overturned the initial Chamber decision and found a violation of Article 9.7 This marked a turning point in the Court’s jurisprudence on the matter. Importantly, Bayatyan did not make its way to Strasbourg coincidentally, but was pushed forward at a time when Jehovah’s Witnesses community lawyers observed a new window of opportunity to revive their previously abandoned agenda. As representatives of the Watchtower Society underlined during our interview: [I]n 2001, we had Mister Bayatyan being sent to prison in Armenia and his case was a simple case. And so, we thought, let us try again at the European Court. So, this case came, I think we filed it somewhere in 2004 or 2005 [the correct date is 2003, corrective note by the interviewees after the interview] and we just felt, well, we will try it, because if we lose, we haven’t lost anything because we face this anyway. So, if we go back to the European Court again and knock at the door again – we may do – well, it’s just another loss going back all the way to Grandrath. But, if we win, we turn the table around. So, we thought, let’s focus on it and let’s try to turn the table. If we can’t, we’ll wait again another five years and try again in five years. But that’s why we don’t have many conscientious objector cases. We realised the position of

5 This was argued during one of my interviews: Interview 23, one representative of the Watchtower Society and one lawyer Jehovah’s Witnesses, 4 November 2016, interview conducted via skype. 6 European Association of Jehovah’s Witnesses (2011) ‘Religious Freedom Concerns in Armenia’. Statement for the OSCE Human Dimension Implementation Meeting, Warsaw, 26 September–7 October 2011 (27 September 2011): www.osce.org/odihr/82969?download=true. 7 Bayatyan v Armenia App no 23459/03 (ECtHR, 27 October 2009); Bayatyan v Armenia [GC] App no 23459/03 (ECtHR, 7 July 2011).

152  Endogenous Change in the Transnational Field the Court. So, there was no purpose in bringing many cases and reaffirming that too many times.8

As implied in this statement, the case of Bayatyan mirrored the new legal situation that had developed in European states.9 After the end of the Cold War, governments and international organisations had enacted legislation to allow for conscientious objection against military service. While the Court had initially shied away from interfering with this politically sensitive matter, it could now assess the claim from within a new comfort zone. Various community lawyers have corroborated this claim. One of Jehovah’s Witnesses’ lawyers noted that the Court had already created a margin of opportunity for conscientious objectors in 2000, in Thlimmenos v Greece.10 Iakovos Thlimmenos had claimed that the refusal by a board of examiners to appoint him as a chartered accountant because of his previous conviction for refusing to wear a military uniform amounted to a violation of his right to religious freedom (and non-discrimination). The Court agreed for the first time to consider a conscientious objection claim under Article 9 without referring to Article 4. One of the interviewed lawyers stated that the Court ‘had made the comment that freedom of conscience with regard to conscientious objectors fell in the ambit of Article 9, so it was just a matter of bringing a clear case to them. But they were ready to consider it and one could see it from earlier decisions’.11 Similarly, a legal scholar emphasised in a publication on the case that the Court had ‘actually come to incidentally recognise such a right as falling under Article 9(1) of the ECHR’ (Muzny 2012: 138). Yet another lawyer defending Jehovah’s Witnesses also underlined the changed conditions within which they were litigating in the 2000s, compared with the Cold War period and its immediate aftermath. He explained: ‘[T]he time was right. Other jurisdictions in the world were recognising the right of conscientious objection. The European Court was far behind. Even the UN Human Rights Committee had already several cases where they have recognised it’. He further underlined that the case of Thlimmenos had signalled that it was only a matter of bringing a clear case to the judges’ attention.12 However, despite the success in Bayatyan, its domestic implementation proved more difficult. In 2011, 68 Jehovah’s Witnesses were reportedly still imprisoned in Armenia for having refused to serve in the army.13 One of the lawyers stressed that they ‘needed more cases to drive home the point to the 8 Interview 23, 2016 (n 5). 9 Before Bayatyan, Jehovah’s Witnesses filed, for example, the case of Löffelmann v Austria which also concerned punishment for conscientious objection: Löffelmann v Austria App no 42967/98 (ECtHR, 12 March 2009). The Court found a violation of Article 14 in the light of Article 9 given that individuals belonging to other legally recognised religious groups had been granted exemption from military service. 10 Thlimmenos v Greece App no 34369/97 (ECtHR [GC], 6 April 2000). 11 Interview 23, 2016 (n 5). 12 ibid. 13 European Association of Jehovah’s Witnesses (2011) (n 6).

Jehovah’s Witnesses and the Expansion of Religious Freedoms   153 Armenian government’.14 Therefore, following Bayatyan, many more cases from Armenia regarding the right to conscientious objection reached the ECtHR. According to the numbers communicated by the Jehovah’s Witnesses, out of the roughly 100 cases that were awaiting a decision in 2017 (not all of which had been registered by the Court), a large part concerned individual convictions for the refusal to perform military service in Armenia and Azerbaijan.15 As a typical case of repeat litigation, pressure on the Armenian government was strategically increased to further the implementation of ECtHR case law. This proved successful. Since 2018, official reports from the Jehovah’s Witnesses community consider the issue largely resolved, for which they credit their litigation at the ECtHR.16 Looking beyond conscientious objection, Jehovah’s Witnesses have secured significantly more success than any other religious group. As Figure 1 based on the HUREL dataset shows, overall, almost 60 per cent of their lawsuits (36 cases) were successful, while other groups, both minorities and majorities, barely have a 30 per cent success rate. When differentiating between Member States that had joined the ECtHR before 1990, and those that joined the Court after that year, we see that this difference is mostly one that applies to early Member States, but not to post Cold War-members (especially Eastern European countries) where religious minorities have been considerably more successful than they had been in Western Europe (Table 2 Appendix). However, moving to the details, when we consider claims under only those Articles pertaining to religious freedom and non-discrimination, Jehovah’s Witnesses appear comparatively more successful in both contexts (Table 3 Appendix). Part of their success can be explained by the types of cases pursued. These mostly concerned the private exercise of religion, which is politically much less controversial than religious expressions within state institutions. Moreover, for the case of conscientious objection, the political and legal changes at the domestic level that preceded the litigation clearly enhanced their chances of success. However, whatever the explanation for the judges’ willingness to decide in favour of Jehovah’s Witnesses, repeat litigation was at a minimum key to the activation and implementation of legal change. Their case thus well illustrates how, under an increasing inflow of lawsuits, the ECtHR can contribute to the expansion of individual rights and, together with other international courts, increase pressure on national governments to accommodate the demands of religious minorities.

14 ibid. 15 Jehovah’s Witnesses (no date) Internal documents on applications to the ECtHR. 16 Jehovah’s Witnesses (2018) ‘How Armenia Came to Recognize the Right to Conscientious Objection’ (15 February 2018): www.jw.org/en/news/legal/by-region/armenia/recognize-right-toconscientious-objection/.

154  Endogenous Change in the Transnational Field Figure 1  Number of successful cases per religious group 1959–2019 Muslims

N=222

Christians

N=262 N=56

Jehovah's Witnesses Other minorities

N=104

Non-religion

N=54

Missing info

N=124

0.0%

20.0% No violation

40.0%

60.0%

80.0%

100.0%

Violation of at least one article

Source: HUREL. Note: N=822. “No violation” includes inadmissible decisions and judgments finding no violation. A case has been considered ‘successful’ if at least one Article has been found violated. This can be an Article other than Article 9. Not included are cases that are pending or have been struck out of the list. See Figure 2 chapter 2 for case selection and group coding.

Exporting Success to Jurisdictions across the Globe As we have seen in chapter two, every lawsuit by individual members of the Jehovah’s Witnesses is backed by a dense network of community lawyers and serves the global litigation agenda. The legal department of the Watchtower Society coordinates cases across the globe, ensures judicial consistency and makes sure that no individual compromises on its religious duties. Importantly, through repeat litigation in different jurisdictions around the world, Jehovah’s Witnesses have not only increased the pressure on the ECtHR and national constitutional courts, but have enhanced the dialogue between different international courts. As such, they have contributed to the consolidation of a global judicial field, in which different international courts are aware of and influence each other’s decisions. The case of conscientious objection is again revealing in this respect. Developments at the ECtHR intersected with CCPR proceedings. Before the first Bayatyan decision as well as between the initial Chamber decision against Bayatyan and the Grand Chamber’s reversal, the Committee had released decisions in several South Korean cases which provided that conscientious objectors had to be protected under the right to freedom of thought, conscience and religion (Schroeder 2011). Noteworthy is that whereas the Chamber decision in 2009 contained only a few references to international law and recommendations, the Grand Chamber extensively re-examined the developments that had taken place

Jehovah’s Witnesses and the Expansion of Religious Freedoms   155 since the end of the 1960s.17 The Grand Chamber judgment highlighted the need to align ECtHR jurisprudence with international developments, in particular those that had occurred at the UN: Furthermore, the Chamber had failed to take into account the important developments concerning the issue before the United Nations organs, including the interpretation given by the UNHRC to the counterpart provisions of the ICCPR. There was a need to clarify the Court’s position on this issue because it had always been the Commission, and not the Court, which had refused to apply Article 9 to conscientious objectors.18

Likewise, the third-party interveners drew heavily on the earlier decisions of the Human Rights Committee. Thus, by repeat litigating at different international courts, Jehovah’s Witnesses succeeded in aligning the jurisprudential developments in a global legal field. Communications submitted to the Committee against South Korea were in fact recurrent. Jehovah’s Witnesses faced tremendous difficulties when refusing military service in South Korea until the late 2010s. It maintained an obligation for all men to serve up to 24 months in the army and did not allow for alternative civilian service. According to Jehovah’s Witnsesses, South Korea did not sign the armistice after the 1950–53 Korean War and therefore technically remains in a permanent state of war with North Korea. South Korea has imprisoned more than 19,300 objectors since the Korean War.19 As one of the lawyers familiar with the Korean cases at the UN Human Rights Committee, underlined in 2016: ‘We have about 500 men in prison who [filed] an application. We prepared simple cases and filed all of them under the [International Covenant on Civil and Political Rights]. And, since then, we have filed quite a few more’.20 For instance, the case of Jong-nam Kim et al v The Republic of Korea comprised a total of 388 applicants claiming that the Korean courts had failed to protect the right to conscientious objection.21 Building on earlier successes before the UN, the applicants claimed that Article 18 of the International Covenant on Civil and Political Rights on the right to freedom of thought, conscience and religion had been violated. South Korea justified its strict attitude by referring

17 In particular, the Court referenced documents issued by the UN Human Rights Committee and the OSCE (§§ 50–70). In its initial decision, it briefly mentioned relevant guidelines issues by the Parliamentary Assembly of the Council of Europe and the EU (§§ 43–45). 18 Bayatyan v Armenia [GC] (n 7) §74. 19 Sang-Hun, Choe (2018) ‘In landmark ruling, South Korea’s top court acquits conscientious objector’ New York Times (1 November 2018), available at: www.nytimes.com/2018/11/01/world/ asia/south-korea-conscientious-objectors.html. 20 Interview 23, 2016 (n 5). 21 Jong-nam Kim et al v The Republic of Korea (2 November 2012) Communication No 1786/2008 CCPR/C/106/D/1786/2008. Other decisions had been issued by the Human Rights Committee before and after. For instance: Min-Kyu Jeong et al v The Republic of Korea (24 March 2011) Communication Nos 1642–1741/2007, CCPR/C/101/D/ 1642 1741/2007; Yoon and Choi v Republic of Korea (3 November 2006) Communication No 1322/2004 CCPR/C/88/D/1321–1322/2004/2006.

156  Endogenous Change in the Transnational Field to the specific geopolitical circumstances, arguing that the ceasefire agreement which had terminated the War was still in place and reflected the specific security situation. In our interviews in 2016, the lawyers of the Watchtower Society were confident as to their future success in pending cases: ‘We know we win them and so the pressure is building on Korea’, they said. Their prediction proved right (cases were successful). Three years after these interviews were conducted, the perseverance of Jehovah’s Witnesses paid off. The Supreme Court finally implemented the CCPR decisions and acquitted a Jehovah’s Witness who had objected to miliary service. The final release of hundreds of imprisoned Jehovah’s Witnesses in February 2019 concluded years of repeat litigation.22 Repeat litigation at the ECtHR and the UN was also meant to increase the pressure on European states where conscientious objectors still faced difficulties. Following the same pattern as in the cases against Armenia, Jehovah’s Witnesses have continued filing cases against Turkey, but by turning to both the ECtHR and the CCPR. One of the interviewees stated: ‘While, in Armenia, the issue is really well resolved … in Turkey it isn’t’. He continued: ‘In Turkey, we haven’t implemented anything. They don’t send them to prison, but they still prosecute them. So, we will keep on bringing cases to the European Court against Turkey until they fully implement the decisions of the European Court’. Twin-tracking transnational judicial efforts was a strategy to increase the pressure on Turkey. As one of the Watchtower representatives said ‘Actually, we filed about 500 [cases] against Korea. We won them all. We fought some against Turkey. Won. So, this is kind of a network to bring Turkey around to adopting alternative civilian service or doing something concrete’.23 The lawyer was well aware that CCPR decisions remain difficult to enforce, emphasising: ‘That doesn’t have the same force as the European Court, but it is quite helpful’.24 By multiplying their efforts before various international bodies, the lawyers hope to increase the international pressure. As my interviewees observed ‘countries like Armenia will react to pressure from the European Court. Countries like Turkey, you need more international pressure. So, we will bring both and that might move it forward’.25 Litigation by Jehovah’s Witnesses exemplifies an ideal case of how litigation can enhance the implementation and expansion of individual rights in Europe and beyond. Among religious groups active before the ECtHR, Jehovah’s Witnesses are unparalleled in terms of their cohesiveness and coordination of legal claims. Over the years, Jehovah’s lawyers have not changed their position or legal argumentation in any significant way, maintaining an exclusive focus

22 Jehovah’s Witnesses (2009) ‘All Witnesses Imprisoned for Conscientious Objection in South Korea Now Free’ (7 March 2019): www.jw.org/en/news/jw/region/south-korea/All-Witnesse s-Imprisoned-for-Conscientious-Objection-in-South-Korea-Now-Free/. 23 Atasoy and Sarkut v Turkey (29 March 2012) CCPR/C/104/D/1853-1854/2008; Interview 23, 2016 (n 5). 24 Interview 23, 2016 (n 5). 25 ibid.

Muslims between Repeat Failure and Growing Activism   157 on the community’s free exercise of religion and invariably emphasising the individual right to religious manifestation. MUSLIMS BETWEEN REPEAT FAILURE AND GROWING ACTIVISM

That religious freedom litigation has not always been as successful as in the case of Jehovah’s Witnesses is demonstrated by the legal battle over Muslim practices of veiling in public institutions and more generally in the public sphere. This section examines a trajectory of legal mobilisation in which legal marginalisation and (attempts at re-) empowerment are entangled in complex ways. On the one hand, the judges in Strasbourg have consistently ruled against Muslim claims that challenged restrictions on wearing Islamic veils (both headscarves and full-face veils). Although secular advocacy groups have sporadically supported cases brought by Muslim minorities, I argue that their support remains ‘conditioned’ on the compatibility of these cases with their secular-liberal agenda. On the other hand, however, Muslim grassroots movements have accumulated legal capital and – while increasingly reluctant to engage with Strasbourg – have turned to other international venues, including the CCPR and the Court of Justice of the European Union (CJEU), to keep legal opportunities open. In the following, I will first describe the increasing legal precarity of Muslim litigation in Western Europe and then turn to the dynamics of legal mobilisation that have unfolded in response.26 Growing Legal Precarity From the inception of the Court until 2019, more than 250 cases have involved applicants with an Islamic background (numbers based on HUREL). While most of these claims were directed against a Muslim-majority country, namely Turkey, a total of almost 80 cases were submitted against the early member states which had joined the Court before its enlargement to the post-Soviet area, most of them after 1998, ie, the year in which the Court underwent substantial institutional reform (see Figure 2).27 Interestingly, the number of cases submitted by Muslim minorities hardly surpassed the number of cases submitted by Jehovah’s Witnesses in the early years of the Court. For the period between 2010 and 2019 there were more cases involving Muslim individuals than cases involving Christian individuals. These cases have included a wide array of claims, ranging from free religious speech, internal autonomy, anti-discrimination, the recognition of Islamic law, 26 The arguments discussed in this part of the chapter have been published in a condensed way in Harms (2021). Parts of the material used in that article figure here, too. 27 I do not consider the Turkish case in detail here as I am primarily interested in contexts, in which Muslim communities occupy a minoritarian position.

158  Endogenous Change in the Transnational Field and religious dress in the public spaces. The latter type of cases, which include both headscarves and full-face veiling, reached the ECtHR 30 times up until 2019. I could identify fifteen cases that were filed against Western European countries, including France, Switzerland, Belgium, Spain and, most recently, Germany. The other half of the cases was filed against Bosnia and Herzegovina (1), Azerbaijan (1) and Turkey (13). Figure 2  Cases filed per religious group in Member States joining the Court before 1990 (except Turkey)

2010–2019

1998–2009

1990–1997

1953–1989

0 Muslims

10 Christians

20

30

Jehovah's Witnesses

40 Other minorities

50

60

Non-religious

Source: HUREL. Note: N=463 Numbers are absolute. The graph represents case numbers based on the year of application. For information on case selection and group coding see Figure 2 in chapter 2. Note that there are many cases where no religious or non-religious identity could be identified. These cases are not included here.

The cases challenging the prohibitive measures taken by various European countries against religious veiling in public institutions and the wider public sphere were not only particularly frequent, but also particularly unsuccessful. As mentioned in chapter three, until 2009, the year in which the Sikh cases were declared inadmissible, only a few cases involving a claim to wear the Muslim headscarf in public institutions had been admissible and not one had been successful under Article 9.28 The conflict did not remain confined to public schools and 28 Matthias Koenig and Lisa Harms (2022) European Court of Human Rights Religious Litigation Dataset 1959–2019) (HUREL) Version 1.0. Shortly after the Sikh cases, the Court found a violation of Article 9 regarding the criminal conviction of the applicant for wearing ‘religious attire’ in public: Ahmet Arslan and Others v Turkey App no 41135/98 (ECtHR, 23 February 2010).

Muslims between Repeat Failure and Growing Activism   159 universities, but subsequently unfolded in other settings as well. In Ebrahimian v France, for instance, the Court declared inadmissible the complaint against the non-renewal of the contract of a social worker employed by a public hospital for refusing to take off her hijab.29 Amidst the cumulating judicial failures of Muslim applicants in Western Europe, only one relatively recent headscarf case filed with the ECtHR against Belgium has been successful.30 In Lachiri v Belgium, the Court found that the decision to exclude a headscarf wearing witness from a hearing in Brussel’s Palais de Justice could be justified neither as preserving the neutrality of the Court nor as maintaining public order, and therefore disproportionately restricted the right to freedom of religion.31 While the headscarf controversy continued to simmer in national and international courts, another religious attire began to heat up tempers: the full-face veil. Disputes that arose before the ECtHR concerned the ban of the burqa from the public sphere.32 Despite significant public controversy, such bans had been enacted in various European countries by the early 2010s, trapping Muslims in a seemingly never-ending public controversy about religious veiling.33 Soon, several individuals turned towards Strasbourg to challenge the bans. An application filed by S.A.S. against France was the first to be admissible.34 The complaint was admissible although it had not previously gone through the domestic courts. The Court made clear that previous decisions rendered by the Constitutional Council and the Cour de cassation had already made clear that they considered the ban compatible with Article 9 and that therefore there was no need to exhaust domestic remedies. Although the ECtHR admitted her application, the Court sparked outrage among many legal commentators when in 2014 it ruled in favour of the government, which had justified the ban by arguing that wearing the burqa would violate the societal value of ‘living together’. Despite the negative outcome in S.A.S., the Court

29 Ebrahimian v France App no 64846/11 (ECtHR, 26 November 2015). 30 Lachiri v Belgium App no 3413/09 (ECtHR, 18 September 2018). Two further cases have been filed in the matter: Barik Edidi v Spain App no 21780/13 (ECtHR, 26 April 2016) (inadmissible) and Hamidović v Bosnia and Herzegovina App no 57792/15 (ECtHR, 5 December 2017) (violation of Article 9). I do not consider the latter here because Muslims are one of the dominant religious groups. 31 Lachiri v Belgium (n 30) §§ 46–48. 32 Like Burchardt et al (2019), I use the terminology of ‘burqa’ despite the differences between practices of full-face veiling, which is commonly used in political debates (instead of ‘niqab’). 33 France: LOI n° 2010-1192, 11 October 2010; Belgium: Act of 1 June to institute a prohibition on wearing clothing that covers the face, or a large part of it, published in the Belgian Official Journal, 13 July 2011. Many authors have given precise insights into the dynamics structuring the political and legal processes. See, eg: Burchardt, Griera and García-Romeral (2015); de Galembert (2014); and Grillo and Shah (2013). A collective volume edited by Koussens and Roy (2014) retraces, in detail, the various dimensions of the public debate inherent to the burqa conflict. An edited volume published by the research collective Religare has assembled detailed information about the burqa debates and legal prohibitions in different European countries, including Italy, France, the United Kingdom, the Netherlands, Spain, Belgium, Denmark, and Germany (Ferrari and Pastorelli 2013). 34 S.A.S. v France App no 43835/11 (ECtHR, 1 July 2014).

160  Endogenous Change in the Transnational Field declared admissible two other applications against the burqa ban in Belgium.35 Belcacemi and Oussar v Belgium and Dakir v Belgium had been brought by individuals who had been fined for wearing the full-face veil, and who, unlike S.A.S., had fought their case in Belgian courts before turning to the ECtHR. However, no violation of the Convention was found in these cases either. With the exception of Lachiri, no claim pertaining to the wearing of religious garment in the public sphere against Western European Member States of the Council of Europe has been successful under Article 9.36 More generally, and expanding the lens beyond controversies over religious clothing, cases brought by Muslim minorities against states that joined the Court before 1990 have been highly unsuccessful (Tables 2 and 3, Appendix).37 In total, the Court has found only five violations of Article 9 in cases filed by Muslims against the early members of the Court (excluding Turkey). Importantly, four of these violations concerned an intra-religious conflict of the Muslim community in Greece.38 Note, however, that Muslim claims against post-1990 members were significantly more successful, thus confirming the trend identified in chapter two of the Court’s greater activism towards younger democracies. It is not my ambition here to explain or normatively evaluate the repeated failure of Muslim minorities in Strasbourg. What is important to emphasise, however, are the ambivalent effects of transnational legal norms that the case of Muslim litigation reflects. Paradoxically, the institutionalisation of a transnational human rights regime has, in this case, led to a consolidation of national sovereignty in the governance of religious diversity (see also: Koenig 2007). This consolidation has resulted both from the Court’s application of the margin of appreciation doctrine and from governments’ strategic use and circumvention of human rights instruments. The margin of appreciation doctrine has been developed by the Court in political areas in which there is no consensus among its Member States. Given the diversity of state–religion arrangements across Europe, the Court has frequently considered that Member States have a large margin of appreciation in which it should not interfere. For example, in the headscarf cases against France and Turkey, the Court has ruled that restrictions on the right to wear the headscarf which they considered ‘necessary’ in the name of secularism fell within their margin of appreciation. Likewise, in the burqa case of S.A.S., the Court accepted the French government’s argument that public full-face veiling violated principles of ‘living together’ stating:

35 Belcacemi and Oussar v Belgium App no 37798/13 (ECtHR, 11 July 2017); Dakir v Belgium App no 4619/12 (ECtHR, 11 July 2017). 36 Beyond Western Europe, Ahmet Arslan v Turkey (n 28) and Hamidović v Bosnia Herzegovina (n 30) were successful under Article 9. 37 Note that, excluding Jehovah’s Witnesses, Christian litigants have, quantitatively speaking, not been significantly more successful. 38 Koenig and Harms (n 28).

Muslims between Repeat Failure and Growing Activism   161 Consequently, having regard in particular to the breadth of the margin of appreciation afforded to the respondent State in the present case, the Court finds that the ban imposed by the Law of 11 October 2010 can be regarded as proportionate to the aim pursued, namely the preservation of the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others’.39

Disputes over religious veiling are of course not the only ones relegated to the domain of national sovereignty. For example, the ECtHR decided in 2017 that the compulsory participation of two Muslim girls in swimming lessons fell within Switzerland’s margin of appreciation in the matter.40 Overall these cases illustrate the Court’s reluctance to interfere in highly politicised conflicts involving Muslim minorities, as well as the powerful stance that governments hold in the religious freedom field (Harms 2022). Not only has the ECtHR consolidated the sovereign margin of the Member States, but states have also made strategic use of human rights to justify restrictive politics. Indeed, the lawyers and experts who drafted the laws that restricted the right to wear the Islamic headscarf and the burqa had anticipated challenges in Strasbourg and justified the laws by drawing on human rights repertoires (Burchardt, Yanasmayan and Koenig 2019; de Galembert 2009b). In France and Belgium alike, stakeholders involved in drafting the legislative acts repeated arguments of gender equality, for example, to render prohibitive acts legitimate in the eyes of human rights defenders (Burchardt, Yanasmayan and Koenig 2019; de Galembert 2014; Grillo and Shah 2013; Hennette-Vauchez and Valentin 2014). Such strategies remind us, as Koenig (2008: 100–01) stated with reference to neo-institutionalist and social movement scholarships, that ‘human rights may even strengthen state authority as they provide governments with new repertoires of legitimization’. When such strategies did not suffice to legitimise the laws, lawmakers moved to justifications like public order and shared societal values (de Galembert 2014; Grillo and Shah 2013; Joppke 2017; Joppke and Torpey 2013). In this respect, Claire de Galembert (2014) has shown that the legal experts consulted in the context of the burqa bans were, while weighing the pros and cons of different arguments to justify the ban, wary of the risk of being reprimanded in the name of Article 9. They therefore ultimately decided to justify bans on full facial covers by underlining that they constituted a threat to shared societal values and relied – in so doing – on Article 5 of the ECHR: the right to liberty and security. As stated above, the resulting ‘living together’ doctrine was ultimately recognised by the Court as falling within the margin of appreciation of the government. Before turning to the question of how trajectories of legal mobilisation have evolved in this precarious situation, it should be noted that the Court has set a limit on the governmental margin of appreciation in the case of Lachiri. In this



39 S.A.S.

v France (n 34) § 157. and Kocabaş v Switzerland App no 29086/12 (ECtHR, 10 January 2017).

40 Osmanoğlu

162  Endogenous Change in the Transnational Field case, the Court marked a limit to its willingness to grant national governments a broad discretion in restricting religious expressions in public institutions. Fitting the Secular-Liberal Doxa Muslim disputes over religious veiling illustrate an arguably paradoxical consolidation of state power in the religious freedom field through legal transnationalisation. The Muslim case is revealing, however, not only for the lack of success, but for two other developments that are overlooked if we stay at the level of case outcomes. First, secular advocacy groups, mostly absent from Muslim religious freedom disputes in Strasbourg (in terms of third-party interventions), have – at least sporadically – started supporting Muslim claims. Second, national Muslim organisations which have accumulated substantial legal capital have started turning towards other international courts – yet avoiding Strasbourg. In different ways, I argue, both developments reflect the ambivalent simultaneity of legal precarisation and (attempts of re-) empowerment of Muslim minorities in the field of religious freedom. I will first examine the appearance of secular advocacy groups in disputes over burqa bans and, in the following section, analyse the reaction of Muslim advocacy groups towards the negative precedents in Strasbourg. Compared with other religious groups, such as Christians and Jehovah’s Witnesses, Muslim claimants have received relatively little strategic advocacy support in Strasbourg. Until the end of the 2000s, hardly any NGO had intervened as a third party to support Muslim litigants and I could not identify strategic support networks comparable to those traceable for the case of Jehovah’s Witnesses, but also humanist and Christian applicants. This might be surprising especially in the case of the headscarf dispute, since it not only reached Strasbourg repeatedly, but was also highly politicised. In one of the headscarf cases, for instance, the representing lawyer did not only lack any experience in human rights litigation, but also only incidentally got involved because the previous representing lawyer was searching for a replacement. Moreover, the applicant’s financial means being very limited, few resources were mobilised to defend the case.41 While this individual case alone can of course not claim to be representative, it does not seem to be an exception. As far as I could trace from the information available in the case documents published by the ECtHR, many headscarf litigants were defended by lawyers with no substantial human rights expertise, although it must be said that some, such as in Sahin v Turkey for example, did in fact rely on such expertise.42 In addition, I have observed a similar lack of human rights capital in the minaret case filed against Switzerland in 2009 (chapter four). Ouardiri’s defence was essentially carried out by a friend

41 Interview 42 Leyla

20, lawyer involved in a headscarf case at the ECtHR Paris, 26 May 2016. Şahin v Turkey App no 44774/98 (ECtHR, 29 June 2004).

Muslims between Repeat Failure and Growing Activism   163 who specialised in commercial law without any human rights specialisation and no broader support network. Given this scarcity of human rights capital, the distinct support network that emerged in the S.A.S. case is remarkable. Ouardiri had already been supported by the Open Society Justice Initiative (OSJI – programme of the philanthropic; Open Society Foundations, OSF), but S.A.S. far surpassed this first episode of third-party mobilisation. This concerned both the advocates in the cases as well as the broader advocacy coalition supporting them. The S.A.S. lawyers were experienced barristers who had previously defended cases concerning religious minorities in the United Kingdom and one of them had appeared in at least one landmark case concerning non-discrimination and sexual equality before the CJEU.43 Third-party interventions came from two different types of advocacy organisations. The first included experienced secular international human rights advocacy groups, such as Amnesty International, Liberty, Article 19 and the OSJI. The second group included actors from the academic field, most notably the Human Rights Centre from the University of Ghent. Moreover, the S.A.S. lawyers received advice from various academics who had previously worked on the question of religious clothing in the public sphere. While the different activists did not coordinate their interventions in the burqa case, some of the lawyers and representatives of advocacy groups had met, before and after the S.A.S. judgment, in discussion forums involving academics and activists alike.44 How can we explain this (sudden) rise in support? And what does it reveal about developments in the religious freedom field? As to the first question, I contend that the support was at least in part predicated on the intersection of burqa cases with the liberal agenda in rights areas other than religious freedom. Consequently, while increasing the capital of Muslim struggles over recognition, advocacy support remains an uneven good in the religious freedom field. As to the second question, I find that while opening new margins for legal negotiation, the interventions by secular advocacy groups also mirror how identity-narratives of the ‘good religion’ (Hurd 2015: 22–36) are encroached into the religious

43 Case C-13/94 P v S and Cornwall County Council [1996] IRLR 347. Moreover, testifying to their experience in religious freedom litigation, the two lawyers had been involved in the case of Ghai v Newcastle City Council. In this case, a Hindu applicant sought permission for an open-air cremation and especially asserted his rights of religious manifestation as laid down in the Convention on Human Rights Ghai v Newcastle City Council [2009] EWHC 978 (Admin), 8 May 2009. It should be noted that the case had not been argued under the provision of religious freedom, but under the Cremation Act. 44 ‘La loi du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public face au juge Européen des droits de l’homme: L’affaire S.A.S. c. France en questions’. Discussion among others with Maxim Ferschtman (OSF) and Eva Brems (Human Rights Centre, Ghent), hosted by the Sciences Po Law School, Paris, 29 November 2013. Another example is a conference at the Centre Maurice Halbwachs in May 2016 where a representative of the CCIF and the lawyer involved in the Belgian burqa cases were invited to discuss judicial strategies regarding Islamophobia.

164  Endogenous Change in the Transnational Field freedom debate.45 They thus reflect, as Amir-Moazami has underlined in her analysis of debates over male circumcision in Germany, the ‘broader epistemological and normative assumptions about “proper” religious practices and freedom in liberal-democratic orders’ (2016: 149). The interventions by secular advocacy groups were not, in the first place, motivated by a primary interest in questions of religious freedom. The example of the OSJI makes this very clear. Its support for the Muslim cause rather was predicated on the latter’s ‘fit’ with the organisation’s interest in racial discrimination. Well connected to the Roma Rights Centre and to French organisations campaigning against racial profiling, the organisation was actively looking for court cases that could be used for its agenda in this specific area. S.A.S., like the Swiss minaret case (chapter four), served the purpose of this agenda well. As a lawyer working for the Open Society Foundations (OSF) stated, religion did not constitute an interest as such, but was ‘tangential’ and ‘not the main issue’.46 The same interviewee emphasised: ‘We don’t have a strategy to address religious discrimination’. Adding to this, the lawyer said: We have a strategy to address ethnic discrimination. So, what we are interested in is when the two are joined together. Because they always do or very often do. So, our remit is not explicitly the rights of religious groups to express themselves, it’s to avoid, to clarify racial or ethnic discrimination.47

Later on, my interlocutor added in a similar vein: I mean, our broader strategy is to address race discrimination and we don’t have strategies to deal with religious cases. But, you know, we take on religion in Europe if all is about race – and so the general point is that we will work with religion where it coincides with race. We are not there to argue the rights of people to express their religion … or to control the rights of people to express their religion. That’s not what we are interested in; our point is the racism that comes with it.48

While lacking case law on racial discrimination at the European Court to carry out its political agenda, the OSJI intervened in the S.A.S. case by focusing on the cross-cutting dimension of racial discrimination inherent in it. Other organisations also approached the burqa case through their specific organisational lens. For instance, considering that banning the burqa from the public square constitutes a considerable obstacle for fully veiled Muslim women to engage in social life, Liberty’s priority was to defend the case from a gender equality perspective.49

45 Hurd critically discusses the discursive binary of ‘good’ versus ‘bad’ religion in international politics. She argues that such binary has become an important tool in US foreign politics in particular, justifying, among others, the invasion of Afghanistan in 2001 (Hurd 2015:25). 46 Interview 17, lawyer, Open Society Foundations, 24 November 2015. 47 ibid. 48 ibid. 49 Interview 12, lawyer close to Liberty (no formal affiliation), London, 13 November 2015.

Muslims between Repeat Failure and Growing Activism   165 That the support by secular advocacy groups for Muslim legal concerns cannot be considered as a given is further supported by the fact that some organisations remained divided as to whether they should actively support specific Muslim claims or not. Thus, whereas some actors within secular human rights NGOs have considered the burqa as an infringement of gender equality, others have criticised its banning as a denial of women’s agency.50 One interviewee shared that their department was deeply conflicted over the question of whether to support the burqa case or not. In addition, another NGO told me that it had considered an intervention, but ultimately abstained from getting involved because of the political sensitivity and in the unlikely event that the ECtHR would depart from a margin of appreciation approach. That liberal organisations face division about the question of whether to support actions against bans on full-face veiling also surfaced in the intervention of Liberty. The Court’s summary is revealing in this respect: In conclusion, the third-party intervener observed that, while many feminists, in particular, regarded the full-face veil as demeaning to women, undermining of their dignity, and the result of patriarchy, others saw it as a symbol of their faith. In its view, these controversies were not resolved by imprisoning at home those women who felt compelled to wear it, on pain of sanctions. This was not liberating for women and in all likelihood would encourage Islamophobia.51

This statement does not just read as an argument in support of the Muslim applicants, but as a justification directed at those among the liberal faction reluctant to join this support. Finally, only a few third-party interventions have been registered in Muslim cases following S.A.S. While the reasons for this can be manifold, it indicates that Muslim claims have – so far – not become a prominent line of activism of these groups. As a result, while it cannot be denied that the extensive support structure substantially increased the legal capital in this specific case, there remains ambivalence as to the sustainability of this support network for Muslim cases that do not fall within the broader interest of secular human rights organisations. The Human Rights Centre from the University of Ghent is a noteworthy exception. After its intervention in S.A.S., it submitted observations in one of the Belgian burqa cases (as did Liberty) and intervened in the Lachiri case. The blog run by this organisation frequently publishes legal comments on Muslim disputes in Strasbourg. This highlights that the Muslim cases have led academics to become more frequently involved in religious freedom disputes in Strasbourg. This is not least a means to gather symbolic credits for the academic market. In fact, their blog serves as a channel to reach a wider public when debating human

50 Several of my interviewees reported this observation to me, yet also being cautious as to revealing precise information on these contentious topics. 51 S.A.S. v France (n 34) § 101.

166  Endogenous Change in the Transnational Field rights principles and also as a platform for young scholars to become visible and academically outspoken; and third-party interventions allowed for a first-hand experience in human rights litigation.52 As a result, the burqa cases also intersected with academic debates. As I will show below, the Centre’s strong emphasis on the necessity to assess the burqa practices through empirical research reflects this intersection well. Even though the impact of this organisation should not be overstated, it is noteworthy that its involvement opens channels of dialogue between legal practitioners and academics. Turning our attention to the framing strategies deployed by the various stakeholders involved in the burqa cases further shows the ambivalence of (attempts of re-) empowerment and precarity that characterise the mobilisation in support of Muslim claims in the religious freedom field. On the one hand, the involved stakeholders were able to enlarge – at least marginally – the perimeter of negotiation vis-a-vis governments by pushing for arguments pertaining to gender equality and non-discrimination. Thus, certain of their arguments received attention and acknowledgment from the judges. For instance, the emphasis put by all the interveners on the risk of intersectional discrimination was echoed by the Court which stated: In addition, there is no doubt that the ban has a significant negative impact on the situation of women who, like the applicant, have chosen to wear the full-face veil for reasons related to their beliefs. As stated previously, they are thus confronted with a complex dilemma, and the ban may have the effect of isolating them and restricting their autonomy, as well as impairing the exercise of their freedom to manifest their beliefs and their right to respect for their private life. It is also understandable that the women concerned may perceive the ban as a threat to their identity.53

Likewise, their denunciation of anti-Muslim sentiments and Islamophobia underlying the burqa prohibitions was acknowledged by the Court: [T]he Court is very concerned by the indications of some of the third-party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010 (see the observations of the Human Rights Centre of Ghent University and of the non-governmental organisations Liberty and Open Society Justice Initiative, paragraphs 98, 100 and 104 above). It is admittedly not for the Court to rule on whether legislation is desirable in such matters. It would, however, emphasise that a State which enters into a legislative process of this kind takes the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, when it has a duty, on the contrary, to promote tolerance.54

That the Court embraced these different arguments testifies to the capacity of the intervening NGOs to narrow the justificatory repertoire with which

52 Interview 24, legal scholar, Human Rights Centre, University of 53 S.A.S.

v France (n 34) § 146. 54 Ibid. §149.

Ghent, Ghent, 8 November 2016.

Muslims between Repeat Failure and Growing Activism   167 governments could support their bans on the full-face veil, even though the judges ultimately decided in favour of the French government. On the other hand, some of the interveners’ framing strategies also mirrored the precarious position of Muslim minorities. Seeking to provide empirical evidence of the authenticity and emancipation with which the burqa wearers made their religious choice, third-party interventions implicitly entrenched taken-for-granted ideas of legitimate forms of religious identity and practice. They emphasised the enlightened, free and subjective religious choices of burqa wearers to prove the unfoundedness of the burqa bans, thereby fostering identity-narratives considered legitimate from a secular-liberal viewpoint. That this reflects – and arguably reproduces – the marginal position of Muslim minorities becomes clear when we compare this framing strategy with those which we observed in contentious episodes involving other groups having a more comfortable political and legal position (such as Christian majorities in Italy or Jehovah’s Witnesses in Greece). These groups primarily challenged governmental interpretations of secularism as such rather than focusing on ‘proving’ their liberal religious identities. Although the burqa debate differs in many ways from other controversies over claims of Muslim minorities, all of these cases involved a ‘quest for reasonable justification of religious practices’ (Amir-Moazami 2016: 149). Particularly prominent in the interventions of the OSJI and the Ghent Human Rights Centre was the emphasis on the practice of the full veil as being a ‘free choice’ and the expression of an ‘individual lifestyle’. They sought to corroborate this argument with empirical evidence gathered in empirical studies which they had conducted prior to the cases. The representative from the OSF underlined that a big chunk was to put this report before the judges to make clear that the women in France at least were generally wearing this veil out of their own free will and over the objections of their family – whereas the popular thing is that they’re forced to do it by their brothers and fathers.55

The interveners aimed to give a voice to the unheard Muslim women, specifically by bringing empirical research in the form of testimonies to the attention of the Court.56 In its comments, the organisation emphasised that its study Unveiling the Truth ‘indicates that Muslim women in France wear the full-face veil as part of their personal search for identity and an expression of their Muslim faith, rather than because of coercion’.57 The arguments of the Ghent Human Rights Centre went in a very similar direction. Its research aimed at getting ‘more insight in the daily lives of these women, their motivation to wear the face

55 Interview 17, 2015 (n 46). 56 Open Society Foundations (2011) ‘Unveiling the Truth: Why 32 Muslim Women Wear the Full-face Veil in France’ (New York, 2011). 57 Open Society Justice Initiative. (2012) S.A.S. v France, third-party brief (10 July 2012) 1.

168  Endogenous Change in the Transnational Field veil and the possible consequences a ban on face coverings could have on their lives and more specifically on their fundamental rights’.58 Paralleling the report of the OSJI, the Centre has argued that ‘[w]ithout exception, all interviewees describe the decision to start wearing the face veil as a well-considered and free decision’.59 Women wearing the niqab consider ‘it a crucial matter that the wearing of a face veil should be an autonomous personal choice, amongst others because Islam explicitly prohibits pressure in religious matters’.60 Excelling in piety and the perfection of faith were emphasised as a ‘voluntary commitment to a higher level of Islamic practice’ for the majority of the concerned women.61 The practice of the full veil, according to the authors, represents an encompassing lifestyle, where agency and autonomous decisions play a decisive role. In the same vein, they strongly rejected the image of a ‘submissive woman’. The applicant advanced similar arguments. For instance, the lawyers stated that S.A.S.’s ‘genuine feeling about her faith’ was particularly important to her.62 Attesting further to this framing, the applicant argued that ‘according to a well-established feminist position, the wearing of the veil often denoted women’s emancipation, self-assertion and participation in society’.63 Situating the face veil among a ‘wide variety of beliefs, tastes, pursuits, customs and codes of conduct’, she underlined that ‘it was not for the State to determine the validity of religious beliefs’.64 In explaining their arguments relating to Article 8 – the right to privacy – the lawyers added: I think we dealt with Article 9 in writing. But, in Article 8, we were keen, you know, to make sure that [the applicant was not] attempting to be a radicalised Muslim person. There is a wider context which should not be isolated in a particular compartmentalised way saying that this person is seeking not to integrate.

They further said: Don’t forget that the justification of the government was that other people wanted to interact and engage with our client. And so she felt strongly that, in some respects, wearing the veil would give her a sense of privacy which she may not necessarily have. She didn’t want to feel obliged to interact.65

While these efforts to highlight the emancipated nature of the applicant’s religiosity served to unveil the discriminatory nature of the bans and the stereotyping of Muslim women, they contributed – willingly or not – to reproducing the taken-for-granted nature of a liberal form of religiosity as a precondition for advancing legitimate claims. This is not to judge normatively on this frame,

58 Ghent

Human Rights Centre (undated) S.A.S. v France, third-party brief, 1. 2. 60 ibid, 2. 61 ibid, 3. 62 Interview 13, lawyers involved in S.A.S. v France, London, 17 November 2015. 63 S.A.S. v France (n 34) § 77. 64 ibid, § 78. 65 Interview 13, 2015 (n 62). 59 ibid,

Muslims between Repeat Failure and Growing Activism   169 but it is important to note, as Amir-Moazami has aptly done in the context of controversies over male circumcision, that ‘[m]ediated by a particular understanding of free choice, this standpoint requires particular kinds of dispositions, ways of education and upbringing’ (2016: 156). Turning the Back on Strasbourg While secular advocacy groups have started – if only hesitantly – supporting Muslim claims in Strasbourg, Muslim advocacy groups have remained strikingly absent. This is surprising not only when compared with other religious groups who have been supported by community networks, but also in the light of scholarly findings emphasising that transnational Muslim networks and movements have expanded over the past decades (Cesari 2004; Saunders 2008; Soysal 1997; Türkmen 2021).66 Their absence is even more noteworthy given the fact that the emergence of a transnational human rights regime has incentivised Muslim organisations to accumulate legal capital and to direct their attention towards transnational venues of activism. In this section, however, I show that while Muslim organisations have desisted from becoming active in Strasbourg, they have started to direct their attention to alternative international legal venues to keep legal opportunities open despite their increasingly precarious position in Strasbourg. These developments further attest to the simultaneity of (attempts at re-) empowerment and precarisation. The formation of Muslim rights organisations at the domestic level in various European countries reflects the constitutive and activating effect that transnational legal norms can have on organisations advocating on behalf of minorities (Tsutsui 2017). To illustrate this claim, I include evidence from France, England and Germany in my analysis. In France, the fragmentation of the Muslim organisational field has long prevented collective Muslim mobilisation (Pfaff and Gill 2006; Godard and Taussig 2007: 177–87). However, this void started to be filled at the beginning of the 2000s when public mobilisation for the Muslim cause became louder (Bowen 2007b: 128 f; de Galembert 2009a). The organisation L’Association de Defense des Droits de l’Homme – Collectif contre l’Islamophobie en France (CCIF) became an active voice in the legal debates in this context. Founded in 2003, the CCIF inscribed its activism not only in the broader horizon of human rights and anti-discrimination politics, but also focused its attention on supranational political and legal institutions as a venue of activism. A lawyer from the CCIF noted in this respect that it could seem paradoxical that the organisation started its activities by ‘developing partnerships at the European level, where certain topics were less taboo than 66 At the UN, also, Islamic NGOs appear comparatively underrepresented. In a survey among ‘religious’ NGOs at the UN, Carrette and Miall (2013) found that only 4.76 per cent out of 58 religious NGOs identified themselves as Islamic, compared to 70 per cent self-identifying as ‘Christian’.

170  Endogenous Change in the Transnational Field they were at the national level’.67 The lawyer explained that it was often more difficult to address national institutions rather than the OECD, or than meeting rapporteurs of the UN and European human rights commissions. Making the fight against Islamophobia its declared credo, the organisation set up substantial legal capital and fostered collaborations with larger international advocacy organisations, such as the OSF. Politically, the CCIF has been a controversial organisation and, after being accused of defending Muslim fundamentalism, was dissolved in 2021. That it immediately reconstituted itself with a decidedly European focus and a seat in Belgium as the Collectif contre l’Islamophobie en Europe (CCIE) further highlights the constitutive effect of transnational legal norms.68 In a similar sense, the transnational level constituted an opportunity structure for the formation of the UK-based Islamic Human Rights Commission (IHRC). Underlining the international orientation of the group, an advocacy officer from the IHRC emphasised in an interview: When we were first set up, we were campaigning-research-advocacy organisation and we still are, but initially we actually focused on the international level only … so from say 1997/1998 we did very little UK based staff. We were very much in international advocacy.69

The same interviewee added that ‘the idea was to replicate to some degree Amnesty but from a Muslim perspective. To get that Muslim voice out’.70 To this can be added, finally, an example from Germany, where a network of organisations fighting against anti-Muslim discrimination has emerged over the past decade. One of the organisations, the Aktionsbündnis Muslimischer Frauen, has been mentioned by a Muslim lawyer from Germany as particularly important in controversies over the wearing of the headscarf by public officials.71 Founded in 2009, this advocacy organisation represents the voice of Muslim women against discrimination in the German UN-network for women’s rights. Although an exhaustive investigation of the organisational transformations in the Islamic organisational landscape is yet to be conducted, these examples illustrate that the global rise of human rights has been an important impetus for the emergence of Muslim rights organisations. However, despite these developments, Muslim advocacy groups have remained absent from Strasbourg until now. One reason for this is certainly the issue of timing and resource accumulation. The above-mentioned organisations only started their activities when the major headscarf controversies were already

67 Interview 19, lawyer, Collectif contre l’Islamophobie en France, 3 May 2016 (original in French, translation by the author). 68 See: ccieurope.org/. 69 Interview 14, advocacy officer, Islamic Human Rights Commission, London, 9 November 2015. 70 ibid. 71 Interview 31, lawyer and applicant, zoom, 7 September 2020.

Muslims between Repeat Failure and Growing Activism   171 under way. It is unlikely that legal knowledge and resources were sufficient in their early days. Unfamiliarity with European legal procedures might also have made such engagement difficult. Moreover, litigation was far from being the only focus of these organisations, which are also invested in political advocacy and research activities. However, if structural and material resources might have made an intervention in transnational legal struggles more difficult, this does not explain their absence entirely. In addition to the above-mentioned factors, the manifold negative precedents increased their reluctance to invest money, time and energy in ECtHR litigation. The CCIF provides the most salient illustration in this respect. While it missed the deadline for an envisioned third-party intervention in S.A.S., the organisation still took the case as a measure of the chances of success in future litigation at the ECtHR. The negative outcome thus marked a turning point. The interviewed lawyer underlined: ‘Until now, as you may see, they relied on what I would call quite classic concepts. But this “living together” – this is a notion as you say, that has no real juridical existence’.72 The CCIF perceived the path to Strasbourg as irremediably blocked. The negative decision taken in the French burqa case added to the perception of a Judeo-Christian bias observed by numerous legal scholars with respect to the ECtHR’s jurisprudence on religious freedom (chapter two). Negative precedents and striking asymmetries between judgments in cases of religious majorities and Muslim minorities created ambivalent feelings among Muslim activists. The opportunity structure at the Court therefore appeared closed, resulting in Strasbourg’s disappearance from the strategic horizon of the CCIF.73 Before exploring the discouraging effects of Strasbourg’s jurisprudence further, it is important to briefly consider the following: the absence of the CCIF is not only indicative of the negative-precedent induced reluctance of Muslim organisations to engage in European litigation, it also reflects an important difference in the perception of Strasbourg as a potential ‘bank of symbolic capital’ between Muslims and other activists. For instance, the CCIF’s decision contrasts with the attitudes of Sikh litigators, who decided to litigate despite the lack of a promising window of opportunity (chapter three). Explaining this difference, I theorise that the Muslim grassroots advocates – unlike Sikh or Christian advocacy groups – did not conceive of litigation as a source of symbolic capital for a transnational community building project or as a matter of cultural ethos or principle. Litigation was ‘mostly’ intended to advance the domestic accommodation of Muslim claims. This implied that European litigation was valuable when successful and not because it might provide credits for other symbolic or cultural fights such as the construction of a cohesive diaspora. Arguably, this explains why a hostile opportunity structure was still an 72 Interview 19 (n 67). 73 Anagnostou (2014a: 17) in particular has argued that precedents ‘decisively shape the LOS [legal opportunity structure]: they influence the kinds of claims that can be raised and their persuasiveness’.

172  Endogenous Change in the Transnational Field opportunity for Sikh litigants but not (or less so) for Muslim advocacy groups. In other words, whether advocacy organisations are oriented towards domestic or transnational causes can have an impact of their predisposition to engage at the international level when the chances of winning are low. The example of the IHRC further supports this argument. While the IHRC has developed the potential capacities to support litigation, the ECtHR has not become a venue of interest. The reasons for this are certainly varied and until the time of our interview, the organisation had not found the European Court to be an opportunity to carry out their specific advocacy work. Many other venues and platforms were more important. Importantly as well, my interlocutor also explained that there was a ‘continuous worry’ that such activism might set negative precedents for the entire European Muslim community. In this context, the advocacy officer referred specifically to Schedule 7 of the Terrorism Act 2000, which allows extensive police searches at airports and railway stations. Although very much involved in litigation against this provision, the IHRC did not consider bringing the issue to the supranational level. In our interview, my interlocutor reflected mostly on this absence in relation to the CJEU (of which the UK was then still a member) and, implicitly referring to the preliminary reference procedure (ie national courts referring cases to the CJEU that is not directly accessible for individual applicants), mentioned that you still need the permission of the UK courts to go there. And nobody of our lawyers thought it was worth asking for that permission because the damage done was so severe that we didn’t see how we could improve it. Basically, what is happening is you end up setting such a bad precedent that there isn’t anything further to be done. Because once you go to the European courts, they are going to argue pretty much the same thing as far as we can tell.74

Although mainly referring to the CJEU, the advocacy officer mentioned that the same holds true for the ECtHR. Here again, rather than transnational community building and the fostering of a global rights consciousness, the organisation reasoned from the viewpoint of Muslims’ political marginalisation and thus tended to be more critical towards transnational litigation. We might complement the picture with one more example drawn from an interview which I conducted with an individual German Muslim lawyer. She has litigated at the German courts for having been excluded from certain parts of her educational training as a lawyer because of wearing the headscarf. A lawyer whom she asked for support initially found the issue too sensitive to take her as a client. She therefore pursued her case initially without external support and it was only later, when her case went to the highest German instances, that several legal experts offered advice. Shortly after our interview in 2020, the German Federal Administrative Court overruled the previous inadmissible decision of a lower court and considered that the applicant could file a complaint even after

74 Interview

14, 2015 (n 69).

Muslims between Repeat Failure and Growing Activism   173 completing her judicial training.75 Asked whether the ECtHR would be an option for pursuing her judicial battle, she explained – referring to the Lautsi case in particular – that Strasbourg was barely on her mind when elaborating her judicial argumentation. She underlined that the German Constitution ultimately offered better resorts to protect religious freedoms than the ECtHR jurisprudence. Again, it was the risk of losing more than an alleged commitment to a global cultural agenda or the ambition of global community construction which constituted the rationale regarding the attitude towards European courts.76 Importantly, these same actors, while turning their backs on Strasbourg, sought to invest in legal activities before another international human rights body and an alternative European court. This highlights that minority actors – even if in marginal positions – are capable of creating new opportunities for change. For instance, the negative precedent set by the S.A.S. case motivated the CCIF to focus on becoming active at the UN Human Rights Committee ‘maybe to the point where the ECtHR will question its own position’.77 The CCIF thereby aimed at ‘[p]rovoking a reflection within the Court and making it embrace a more flexible appreciation of the case of Islam’. When awaiting the verdict in S.A.S., the CCIF strategically held back another case. The affaire Baby Loup concerned the dismissal of Mrs Afif who refused to take off the headscarf she was wearing during her work at a French private nursery school.78 The CCIF considered the option of appealing to an international legal instance after the case was lost in the French Cour de cassation. The S.A.S. case constituted the barometer to measure the chances of winning the case in Strasbourg; its outcome would serve as an indicator as to whether the CCIF would opt for submitting an application to the UN or the ECtHR. The lawyer emphasised in this respect: It was out of question that we stay with this decision. We told ourselves that we would examine the possibility to appeal to the European Court of Human Rights or to the UN. Regarding the European Court of Human Rights, we were kind of divided. Until today, I am sorry, but when it comes to Islam, the Court of Human Rights has always rendered negative decisions. You have the decision of Lautsi that accepts the crucifix in the public school. Well, this was incredible. Saying that it is a French specificity signifies to badly understand laïcité. So, we decided to wait for the decision in the S.A.S. case. This was our barometer. We decided not to rush because we have six months to appeal to the ECtHR or to the UN, we would see with the S.A.S. decision.79

In addition, previous decisions in the Sikh cases encouraged the CCIF to turn to the CCPR: However, before doing this we still asked for a consultation with [our lawyer] who concluded that there is a 50 percent chance. So, we thought that after S.A.S., no, 75 BVerwG 2 C 5.19 – Urteil vom 12. November 2020. 76 Interview 31, 2020 (n 71). 77 Interview 19, 2016 (n 67). 78 Cass soc 19 mars 2013, No 11-28845 (affaire ‘Baby Loup’). The following appeals were rejected. For a precise analysis of the Baby Loup case, see Hennette-Vauchez and Valentin (2014). 79 Interview 19, 2016 (n 67).

174  Endogenous Change in the Transnational Field we go to the UN Committee, because there was the Singh decision as well regarding the 2004 law. I am sorry but the UN is really much more pragmatic.80

It is noteworthy that – like the Sikhs application at the Committee – the Baby Loup case was successful.81 Moreover, by 2018 the Committee had rendered decisions in two cases concerning the burqa prohibition in France – both in favour of the applicant.82 I have no information as to whether these cases were supported by an advocacy group or activist lawyer. Interestingly, however, these cases contribute to the growing corpus of decisions in which the Committee took a different stance from the ECtHR and thus increased the competition between international legal bodies. It should be recalled, however, that Member States of the CCPR are only meant to give due attention to the decisions but are not per se legally bound by them.83 Also noteworthy is that the CCIF’s strategy is indicative of an increasingly common legal mobilisation pattern among religious litigants, that of venueshopping. The disappearance of the ECtHR as a promising legal venue has gone hand-in-hand with a growing interest not just in the CCPR, but in the CJEU as an alternative judicial body. Importantly, this court does not generally allow for direct applications by individuals, but – except in few situations – needs to be solicited by a national court or by an EU institution via the ‘preliminary reference’ procedure. Even though the CJEU is therefore less open to legal mobilisation, scholars have demonstrated that advocacy groups have been decisive in bringing cases to its attention (Cichowski 2007; Passalacqua 2021). Several headscarf cases have been brought to the judicial arm of the European Union, involving rights activists such as the CCIF and the Centrum voor gelijkheid van kansen en voor racismebestrijding.84 The cases of Achbita and Bougnaoui concerned the dismissal of two Muslim women in, respectively, a Belgian and a French private company.85 The reason for the dismissal was their refusal to remove the Islamic headscarf. The cases were deferred by the national judges to the CJEU. The CCIF, considering the dismissal of the employee as ‘contrary to the whole arsenal of the antiracist fight’, had moved into the area of

80 ibid. 81 F.A. v France (16 July 2018) Communication No 2662/2015 CCPRD/C/123/D/2662/2015. 82 Hebbadj v France (17 July 2018) Communication No 2807/2016 CCPR/C/123/D/2807/2016; Yaker v France (17 July 2018) Communication No 2747/2016 CCPR/C/123/D/2747/2016. 83 We might recall that France has not implemented the decisions rendered by the CCPR in the Sikh cases: ohrh.law.ox.ac.uk/states-are-bound-to-consider-the-un-human-rights-committees-viewsin-good-faith/. 84 Valérie Amiraux (2014: 19), for example, noted that the CJEU had not yet become a site of negotiation of religion, although the enactment of the 2000 Directive against discrimination allowed for this. 85 Case C-157/15 Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV [2017]; Case C-188/15 Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA [2017].

Pushback against Anti-Discrimination Norms  175 non-discrimination subject to EU law.86 In this sense, the CCIF lawyer stated: ‘Only recently have we – how to say – perfected, further optimised our strategy with the cases pending at the CJEU … With greater experience, we now succeed better in anticipating’.87 Likewise, according to Fokas, a representative of the OSF has stated that it is considering the EU Court as a more promising venue of mobilisation (Fokas 2016: 572; see also Fokas 2020). Moreover, the above-mentioned German litigant, while excluding Strasbourg as an option, considered the EU as an important venue and suggested that the judges might refer her case to the CJEU. By bringing the headscarf controversies to other supranational jurisdictions, the litigants also contribute to fostering a broader transnational field, in which different courts compete over the authority to define content of scope on antidiscrimination provisions (Christians 2018; Haddad 2012; Howard 2014). This also highlights that despite continued failure at the ECtHR, Muslim advocates and litigants have contributed to incremental dynamics of change by broadening the debate to include other transnational venues and by furthering legal dialogue (Anagnostou 2014a; Vanhala 2009). Importantly, this can lead not only to change but also to the consolidation of legal patterns. Thus, the CJEU in a decision from 2021 concerning two disputes over suspensions from work in a daycare institution and a private company because the applicants were wearing the headscarf, followed a reasoning like that of the ECtHR. It granted ‘a margin of discretion to the Member States, taking into account the diversity of their approaches as regards the place accorded to religion and beliefs within their respective systems’.88 As a result, Member States were granted leverage as to how to reconcile different rights and interests – religious freedom and equality with business interests. The trend thus remains towards strengthening national sovereignty in questions pertaining to Muslim attire in the public sphere. CONSERVATIVE CHRISTIANS’ PUSHBACK AGAINST ANTI-DISCRIMINATION NORMS

The liberal expansion of rights has not only been an unevenly achieved process, but has also encountered significant backlash. Completing the picture of how legal mobilisation for religious freedom has evolved over time, I now turn to the pushback by Christian conservatives against the expansion of antidiscrimination norms that has unfolded on this terrain. Admittedly, this third dynamic of mobilisation is very different in orientation from the previous two. Religious freedom is, in this case, not the original subject of dispute but is ‘weaponised’ (Bob 2019) against liberal agendas in other areas such as gender

86 Interview 87 ibid.

88 Case

19, 2016 (n 67).

C-804/18 IX v Wabe eV and MH Müller Handels GmbH v MJ [2021], § 86.

176  Endogenous Change in the Transnational Field equality and reproduction. However, as I will show, in making use of the right to freedom of religion, Christian conservatives have not only tied it to a logic of cultural conflict, but have also sought to re-draw symbolic boundaries between different religious groups. There is a thriving literature examining the Christian conservative backlash against LGBT and reproductive rights. I join these studies in finding that actors from the Evangelical spectrum have, paradoxically, themselves embraced liberal tools to push for their conservative agenda (Mancini and Rosenfeld 2018b; McIvor 2019; Mourão Permoser and Stoeckl 2021). There is, however, a second distinct trend that has generally been overlooked by scholars. This trend is illustrated by the strategy of the European Centre for Law and Justice (ECLJ), which has remained reluctant to ‘bow’ to the liberal doxa of non-discrimination. Instead, it has sought to walk a tightrope between, on the one hand, adhering to its Catholic human rights view and, on the other, adjusting to a narrowed margin of influence. Trying to challenge the distribution of power and authority in the human rights field at a more fundamental level, this NGO has developed strategies to erect new legal niches specifically for Christian concerns and to claim that judges increasingly compromise their neutrality. Overall, both dynamics show how cultural ‘clash’ affects dynamics in the religious freedom field and leads to the emergence of new conflict lines and legal frames. A Clash of Rights The expansion of anti-discrimination norms, discourses of gender equality, and reproduction rights taking place in recent years, has come at the expense of Christian conservatives’ influence in the public sphere. National and international lawmakers and courts have jointly operated to push for the expansion of equality for LGBT individuals and women. Developments at the ECtHR, for instance, illustrate how gay rights activists have moved from the decriminalisation of their sexual practices to extensive protection under non-discrimination norms (Helfer and Ryan 2022; Hodson 2014; Johnson 2013; Kollman and Waites 2009). Such developments are corroborated by the expansion of equality rights in successive EU Treaties which, together with litigation at the CJEU, has led to the expansion of equality norms in the area of employment and the recognition of same-sex spouses (Belavusau 2020). UN norms have developed in similar directions (Swiebel 2009). Yet, this expansion has not remained uncontested. On the contrary, there has been a surge in backlashes against this success (Bob 2012; Cupać and Ebetürk 2020). In what has come to be known as the global culture wars (chapter four), powerful coalitions have formed to oppose such developments. At the international level, these include a range of like-minded governments (Cupać and Ebetürk 2020), but also actors such as the Vatican, the Russian Orthodox Church (ROC), the Organisation of Islamic Cooperation (OIC), and

Pushback against Anti-Discrimination Norms  177 a range of NGOs that lobby national and international courts, parliaments and other political bodies. Christian conservative NGOs are participating vociferously in this global backlash against LGBT and reproductive rights. They have pursued various lines of activism, but a new strategy emerged in the 2010s to adjust to their loss of legal terrain. As NeJaime and Siegel (2015: 2543) have noted: ‘As the conditions of conflict change and arguments rooted in traditional morality lose their ability to persuade, movement leaders have advocated shifting to religious liberty arguments for exemption as part of a long-term effort to shape community-wide norms’. Increasingly, the global culture wars have turned into ‘conscience wars’ (Mancini and Rosenfeld 2018a, 2018b; Nejaime and Siegel 2018 Annicchino 2018), pitting religious freedom against non-discrimination policies.89 Although cases before the ECtHR that received their support have frequently failed, they have successfully contributed to setting a new agenda, introducing new legal debates and fostering a cultural line of opposition.90 Before the ECtHR, Ladele v United Kingdom and McFarlane v United Kingdom were probably the two most important cases litigated as part of this strategy.91 They were among the four cases joined by the Court in Eweida and Others v United Kingdom.92 Although both cases were unsuccessful in their overall outcome, they are revealing of the new fault lines that have emerged in the religious freedom debate. The four individual applications consisted of two different sets of claims: two concerned the right to wear religious symbols in the workplace and two concerned objections to carrying out public services for homosexual couples. Only the latter cases are of interest here. Working as a civil registrar for the Borough of Islington, Lilian Ladele felt she was ‘unable to directly facilitate the formation of a union that [she sincerely believes] is contrary to God’s law’.93 Her employer refused to accommodate her refusal to register same-sex marriages, upon which Ladele turned to the courts. McFarlane, a Christian believing that homosexual activity was sinful, was dismissed by his employer Relate, a counselling charity, for refusing to provide sex therapy to gay couples on grounds that such counselling would conflict with his religious convictions.

89 The emergence of a debate on conscientious objection – originating not only in the case of minority views (such as pacifism or minority religions), but also directed against minority communities – has started to be examined by a growing number of legal scholars and political theorists. See, eg Koppelman (2014); Boucher and Laborde (2016); NeJaime and Siegel (2015, 2018); Smet and Brems (2017). 90 Scholars have documented successful instances of their mobilisation in particular at the UN (Bob 2012: 36–71), even though a comprehensive analysis of their overall achievements still remains to be conducted, as far as I can see. 91 Ladele v United Kingdom App no 51671/10 (ECtHR, 15 January 2013); McFarlane v United Kingdom App no 36516/10 (ECtHR, 15 January 2013). 92 Eweida and Others v United Kingdom App nos 48420/10, 59842/10, 51671/10, 36516/10 (ECtHR, 15 January 2013). 93 Ladele and McFarlane, communicated cases, 12 April 2011.

178  Endogenous Change in the Transnational Field At the national level, the two cases had become part of the Christian conservatives’ agenda against the advance of equality norms. As Ladele and McFarlane were making their way through the courts, the UK Equality Act was being negotiated to implement the EU Equal Treatment Directives. In response, Christian conservatives embarked upon concerted counteractions and severe criticism by referring to cases such as those of Ladele.94 National-level NGOs such as Christian Action Research and Education, Christian Concern, Lawyers Christian Fellowship, the Christian Institute, and the Evangelical Alliance, initiated a campaign against the Act (Hunt 2013, 697). That the cases were even debated in parliament testifies to their political importance.95 As the cases in the UK courts were unsuccessful, the applicants pursued their struggle at the ECtHR, where national and international Evangelical networks assisted them. McFarlane was defended by lawyers affiliated with the UK-based Christian Concern and Alliance Defending Freedom (ADF) International. Several Evangelical and other Christian conservative NGOs (such as the ECLJ) intervened in support of Ladele. Interestingly, one of her counsels was Christopher McCrudden, a lawyer who has been among the first to publish on the ‘transnational culture wars’ in relation to the ECtHR (eg McCrudden 2015). At the transnational level, a vocal campaign was waged in the name of Ladele and McFarlane. I will shed light on the Evangelical activism first, and in the next section discuss the engagement of the (Catholic leaning) ECLJ. In contrast to the latter, Evangelical actors have adopted part of the liberal non-discrimination discourse for their own purposes. On 15 September 2012 – a couple of months before Ladele and McFarlane were to be decided – ADF International’s Chief Counsel and Executive Director published an article condemning a ‘new political orthodoxy and a new “tyranny of the majority”’, which has resulted from the ‘never-ending journey toward “equality”’. He argued that in the ‘new era of “equality”’, religious freedom ‘is being eroded at an alarming rate’.96 Similarly, a legal counsel from ADF International considered non-discrimination laws among the chief threats facing religious liberty in Europe.97 Likewise, Christian Concern for Our Nation (CCFON) and the Christian Legal Centre (CLC) had argued during the domestic fight against the Equality Act, that ‘[t]here is a tendency to ignore

94 CCFON and CLC (2010) ‘Response to the Equality and Human Rights Commission’s Consultation on the Equality Act 2010 Draft Non-Statutory Guidance’: www.christianconcern.com/sites/default/ files/docs/ResponsetotheEHRCConsultationonDraftNon-StatutoryGuidanceDocuments.pdf. 95 Parliamentary debate on 11 May 2009: publications.parliament.uk/pa/cm200809/cmhansrd/ cm090511/debtext/90511-0017.htm. Parliamentary debate on 19 June 2009: publications.parliament. uk/pa/cm200809/cmpublic/equality/090616/pm/90616s07.htm. 96 Benjamin Bull, ‘Loopholes for Christians or a Bit of Common Sense? Townhall (5 September 2012), available at: townhall.com/columnists/benjaminbull/2012/09/15/loopholes-for-christians-or-abit-of-common-sense-n897400. 97 Roger Kiska (2011) ‘The Threat to Religious Liberties and the European Institutions’, available at: www.culturavietii.ro/2013/12/19/threat-religious-liberties-european-institutions/.

Pushback against Anti-Discrimination Norms  179 and marginalise Christianity by portraying only minority religions as victims of discrimination’. Instead, they ‘would like to see Christians portrayed in an equally positive and sympathetic light’ as homosexuals and lesbians ‘who are consistently portrayed as the victims of discrimination, and are treated in a positive and sympathetic light’.98 In its third-party intervention at the ECtHR, the ADF (then still named Alliance Defense Fund) stated that ‘[p]luralism and tolerance dictate that the law cannot only protect the toleration of the sexual attractions of others: true pluralism must also protect the religious and moral views towards those differences in sexual attraction’. The NGO criticised that the non-discrimination principle was applied hierarchically first to sexual and then only to religious minorities: ‘The laws themselves indirectly discriminate against Christian moral beliefs’, the organisation argued. ‘By protecting “sexual orientation”, Christians are discriminated against in that they are forbidden to treat homosexual behavior or even the issue of sexual activity outside of marriage as a moral issue’. Their brief further highlighted: The cases clearly establish a pattern whereby Christians are marginalized and discriminated against when their genuinely held religious convictions clash with progressively enacted privileges for those who practice homosexual behavior – under the false guise of laws supporting ‘tolerance’. The cases further highlight that fundamental rights are being trumped by newly formulated privileges despite the black letter of international treaty law.99

While opposing the allegedly inconsistent application of equality laws, Evangelical actors have also, implicitly and explicitly, couched their own arguments in these terms. As NeJaime and Siegel (2018: 195) have observed: ‘The mobilized faithful – and those who court their votes – now argue for limiting equality protections for gays and lesbians in the language of antidiscrimination. They appeal to antidiscrimination values to oppose the spread of antidiscrimination laws’. In a similar vein, McIvor (2019) has provided a detailed analysis of national-level mobilisation by Evangelicals who portray themselves as a downtrodden minority. Framing religious claims as an inherent part of equality requirements, rather than opposed to equality, shows, as McCrudden (2018) has observed, that the tension now increasingly lies within the norm of equality, and not between different norms. A similar instrumentalisation of liberal arguments for the conservative cause has also been observed in relation to other issue areas, such as the struggle for home schooling (Mourão Permoser and Stoeckl 2021). Claiming to be a minority in need of protection, Evangelical advocates sought to couch their legal reasoning in terms of reasonable accommodation. In its thirdparty intervention in Ladele and McFarlane, ADF has argued that it ‘may be informative for the Court to consider the existing anti-discrimination legislation in

98 CCFON and CLC (n 94) 8. 99 Jan Carnogursky and the Alliance Defense Fund (2011) Ladele and McFarlane v the United Kingdom, third-party brief.

180  Endogenous Change in the Transnational Field the United States to examine how other jurisdictions have addressed these issues’.100 One of my interviewees has reported that the Eweida and Others cases constituted an opportunity to make the ECtHR officially embrace the concept of reasonable accommodation by bringing in comparative jurisprudence: Well, comparative jurisprudence was obviously one of the ways [to argue the case], because …. we talked about reasonable accommodation. You can find it within the existing jurisprudence of the Court even though they never explicitly fleshed it out. There were two cases involving prisoners who wanted, I don’t know, kosher food or something like that, and those rights were accommodated under religious liberty. But it wasn’t explicit. So, we wanted it to become explicit through these cases and we saw it as a prime opportunity for the Court to rule on those matters. If you look at the jurisprudence, I mean, one of the ways to look at it is through previous jurisprudence and to test … So, we had to argue along those lines. So that’s how you chose your arguments: you go through this test and when it comes to determine necessity, how to determine necessity, the proportionality question, and reasonable accommodation is clearly the best means to accommodate the competing interests, that of the religious person and that of the client who is seeking to have a mere partnership therapy or whatever the case might be.101

With the promotion of the concept of reasonable accommodation, the ADF echoed North American liberal legal discourses. Seeking to import the concept of reasonable accommodation into ECtHR jurisprudence, the ADF embraced a stance that can be compared to what Hacker has called in his study of Evangelical advocacy mobilisation in the United States ‘principled pragmatism’ (2005: 151). Placing the protection of religion under the ‘fluid and liberal term’ of reasonable accommodation, the ADF framed a traditionalist vision of sexual morality as equivalent with rather than as an exception to the (liberal) norm.102 As one of my interviewees at the ADF stated: ‘We don’t want to call that [Ladele’s claim] exception to the law. We want to be part of the law, you know, being an exception to the law marginalises you’. The same lawyer underlined that freedom of religion ‘is not an exception, but it is a rule’.103 The pragmatic attitude adopted by the ADF somewhat diverges from observations of social movement scholars, such as those made by Miceli (2005), who has argued that Christian groups and LGBT activists have perpetuated their positions in polarised camps and locked themselves into a situation of ‘morality politics vs identity politics’. To the contrary, in the area of human rights, Evangelicals have frequently proved pragmatic in fitting in with the established parameters of the legal field. While taking a critical stance on anti-discrimination norms, they themselves claimed to be discriminated against, thereby adopting liberal tools for their own purposes.



100 ibid.

101 Interview 11, legal counsel, Alliance Defending Freedom International, Vienna, 23 October 2015. 102 Carnogursky 103 Interview

and Alliance Defense Fund (n 99). 11, 2015 (n 101).

Pushback against Anti-Discrimination Norms  181 In both Ladele and McFarlane, the United Kingdom was found not to have violated the rights of the applicants. However, despite these negative outcomes, legal scholars and Christian activists did not consider the judgments a complete failure. Legal scholars have pointed out that the Court had not previously examined refusals to provide services conflicting with religious convictions within the ambit of Article 9. In this respect, Ladele constituted an important change, since the Court insisted on conducting a proportionality test (Hill 2013; McCrea 2014).104 A legal expert working at the Court described this development as an increasingly precise circumscription of religion in law.105 However marginal, activists considered this as an important achievement. In this vein, one of the Evangelical lawyers representing McFarlane and Chaplin, insisted on the new opportunities that the judgment offered him for domestic litigation. For him, one objective was to make the ECtHR recognise that heterosexual marriage could be considered as a religious manifestation.106 He emphasised that our courts had not recognised that the marriage between a man and a woman was a manifestation of religious faith. They [the European judges] said it clearly was a manifestation. Our courts said, it wasn’t within Article 9, [but] it was within Article 9. That meant [UK] courts applied the wrong proportionality test. Because they say it isn’t a religious manifestation. They didn’t consider the relevant factors.107

He acknowledged that the ECtHR left a broad margin of appreciation to the British government, but in his view this doesn’t ‘say the British courts did it right’. To the contrary, in the lawyer’s view the application of the margin of appreciation doctrine ‘doesn’t mean we lost it. That means we won it’. To advance reasonable accommodation as a principle to protect Christian claims, he has sought to use parts of the Court’s reasoning at the domestic level: ‘So let’s do it according to European law’, he emphasised. ‘Our courts said it isn’t religious manifestation. It is a religious manifestation. Now, let’s see if we can introduce reasonable accommodation. Or whatever’.108 However marginal these judicial gains are, they illustrate that pushback strategies are incrementally woven into the non-discrimination debate and that religious freedom debates are increasingly marked by new cultural fault lines. This also became clear in a recent case, which the ADF in particular heralded as a success amid its continuous efforts in both national and international legal venues to carve out an exception on grounds of religion and belief from the 104 Pichon and Sajous v France App no 49853/99 (ECtHR, 2 October 2001). As mentioned in the Introduction, in this case, pharmacists objected to issuing contraceptives. The conviction of the applicant was considered as not interfering with Article 9 and the case was therefore decided inadmissible. 105 Interview 21, legal expert, ECtHR, Strasbourg, 28 July 2016 (original in French, translation by the author). 106 The case was, unlike Ladele, argued under Article 9 alone and in combination with Article 14. Ladele, by contrast, was argued under Article 14 read in the light of Article 9. See: Eweida and Others v United Kingdom (n 91). 107 Interview 15, lawyer, connected to Christian Concern, Cambridge, 23 November 2015. 108 ibid.

182  Endogenous Change in the Transnational Field obligation to provide professional services. In 2021, the case of Lee v United Kingdom, filed with the ECtHR in 2019, was declared inadmissible.109 The applicant in the case, Gareth Lee, complained about the refusal of a bakery to create a cake which was supposed to be decorated with a slogan supporting gay marriage. The baker justified its refusal by referring to the Christian values on which his business was based. Sparking widespread debate, Christian conservatives and liberal NGOs intervened as third parties in the Strasbourg proceedings. The Court considered the case inadmissible, because the applicant had omitted to claim his Convention rights in national proceedings, and thus had not given the national courts an opportunity to consider the issues brought before the ECtHR. In addition, the judges emphasised: It is clear from the impassioned third-party interventions in this case … that this balancing exercise is a matter of great import and sensitivity to both LGBTIQ communities and to faith communities. As the Supreme Court of the United States pointed out in Masterpiece Cakeshop Ltd, these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market (see paragraph 40 above). This is particularly so in Northern Ireland, where there is a large and strong faith community, where the LGBTIQ community has endured a history of considerable discrimination and intimidation, and where conflict between the rights of these two communities has long been a feature of public debate (see paragraph 21 above). Given the heightened sensitivity of the balancing exercise in the particular national context, the domestic courts were better placed than this Court to strike the balance between the competing Convention rights of the applicant, on the one hand, and the McArthurs, on the other …110

Thus, even though the judges did not directly engage with the Christian line of argumentation, they emphasised the necessity of careful balancing and stressed that the principle of tolerance must apply to both sides. This underlines, at the very least, that Christian conservative actors, through their use of religious freedom litigation, have successfully opened a new window of opportunity for opposition to non-discrimination norms. Introducing New Legal Boundaries Faced with the advance of LGBT and reproductive rights, the ECLJ, like the ADF, has condemned non-discrimination policies as ‘the new dogmas of conformism’.111 Like its Evangelical peers, the organisation has criticised 109 Lee v United Kingdom App no 18860/19 (ECtHR, 7 December 2021). 110 ibid, §§ 75–76. 111 Grégor Puppinck, ‘La CEDH contre la liberté de conscience des maires’ FigaroVox (18 October 2018), available at: www.lefigaro.fr/vox/societe/2018/10/18/31003-20181018ARTFIG001 85-la-cedh-contre-la-liberte-de-conscience-des-maires.php.

Pushback against Anti-Discrimination Norms  183 non-discrimination jurisprudence as inconsistent if it did not respect Christians’ objections to such ‘conformism’. Yet, it has gone to greater lengths to challenge the authority of liberal rights frames at a more fundamental level.112 In fact, the ECLJ has remained sceptical of the idea of pragmatically adopting liberal frames. As the director of the NGO has stated: As a result, a person who complains of being discriminated against due to his beliefs or convictions places himself within the relativistic liberal paradigm. Such an approach is certainly doomed to failure. In our subjectivist culture, populated with supposed irrational subjects, individual conscience has lost its authority, so much that the positive law would be the only admissible and workable objective social norm: the ‘single thought’.113

In the following, I explore the ECLJ’s tightrope walk between adjusting to a narrowing legal margin and adhering to its principled conservative commitments. In Lautsi, the ECLJ could litigate on behalf of the incumbent stakeholders in the religious freedom field (chapter four), but in the cases of Ladele and McFarlane it had to embrace the position of challenger. Responding ‘to the onset of a crisis by hewing to the status quo rather than engaging in innovative forms of action’ (Fligstein and McAdam 2012: 111) did not appear as a viable option in this situation. Instead, acknowledging that it was difficult to tip the balance of power in favour of Christian conservatives, the ECLJ sought to develop the right to conscientious objection against anti-discrimination policies as a means of at least securing a legal niche. Even so, the ECLJ’s director was hesitant at first, fearing that the embrace of the concept of conscientious objection carried the risk of succumbing to value relativism and subjectivism. He highlighted that he had ‘doubted for long about the appropriateness of the enterprise [to defend conscientious objection], given that conscientious objection was too much imbued with subjectivism and relativism to be a just and trustworthy concept’.114 Therefore, he argued, using the right to conscientious objection appeared fundamentally fragile, but it also constituted a political opportunity.115 The ECLJ did not try to convince the judges of the Christian minority status, nor did it insist on the inconsistencies in the application of non-discrimination frameworks. Instead, the organisation aimed at elaborating systematic and what it considered ‘rational’ criteria for conscientious objection as a sub-area of the religious freedom principle. The ECLJ’s director underlined in this respect: And so, the difficulty for us is, and this is our work … to rationalise the freedom of religion and to make sure at the same time that the limitations of the freedom of religion are just. And this, again, is for example the case of conscientious 112 Also see Harms (2021) for a brief discussion of this argument. Some of the material exploited in the following sub-sections also figure in this article. 113 Grégor Puppinck, ‘Discrimination Against Christians?’ First Things (5 December 2013). 114 Grégor Puppinck (2016) ‘Comprendre l’objection de conscience’ La Nef n° 286, available at: lanef.net/2017/11/05/comprendre-lobjection-de-conscience/ (original quote in French, translation by the author). 115 ibid.

184  Endogenous Change in the Transnational Field objection … If we succeed in distinguishing those motivations of objection that are serious from those that are not, those which are acceptable and those which are not, then I think we can save partially the right to freedom of religion.116

I argue from a field-theoretical perspective that in pursuing this strategy, the ECLJ was not only able to strike a balance between embracing the position of the challenger and maintaining its principled agenda against liberal human rights, but to also further its expert position in the religious freedom field and draw symbolic boundaries to the religious other. To develop this argument, it is necessary to briefly outline the legal reasoning that the ECLJ – and essentially its director – have developed to promote the right to conscientious objection. Its third-party intervention in the cases of Ladele and McFarlane provides clear insights in this respect. It declared the necessity to distinguish ‘rational’ from ‘subjectivist’ reasons for conscientious objection. It explained: ‘Conscientious objection stricto sensu is motivated by a conscientious prescription, ie, by a “dictamen rationis”, and not by a religious or subjectivist prescription’. The ECLJ stated that to prove the intimate link between reason and conscience, it suffices to realise that ‘it is impossible to deduce the religion of the objector from the object of the conscientious objection (abortion, euthanasia, military service)’. There is therefore ‘no sufficient link between the religion and the objection. The objection is grounded in reason’.117 It is noteworthy in this respect that the ECLJ has also sought to conceive of the right to conscientious objection in the legal grammar of the holding versus the manifestation of religious beliefs. For the organisation, conscientious objection was equally tied to both ends. While being a manifestation of a belief, it was also protected by the unqualified right to hold a conviction. Following this reasoning, the NGO stressed: ‘This is why it is more serious to force someone to act against their conscience than to prevent them from acting according to their conscience’.118 Appealing to rationality and objectivity, the ECLJ has blurred the boundary between reason and faith in its argumentation. In so doing, it also drew on a distinctly Catholic approach to human rights into its legal arguments, taking significant inspiration from the Thomist tradition of natural law.119 In an interview with the journal La Nef, the director of the ECLJ stated, for example: Three key elements helped me to understand conscientious objection. The first, emphasised by Thomas Aquinas is the difference – and you find it in the Ten Commandments – between affirmative prescriptions (or positive prescriptions) and negative prescriptions, ie between the positive obligation to do good which obliges

116 Interview 7.3, director ECLJ, Strasbourg, 12 September 2017 (original quote in French, translation by the author). 117 ECLJ (2011) Ladele and McFarlane v the United Kingdom, third-party brief, 15 September 2011 (original quote in French, translation by the author). 118 ibid. 119 Grégor Puppinck (2017) ‘Conscientious Objection & Human Rights: A Systematic Analysis’ Brill Research Perspectives in Law and Religion 1(1).

Pushback against Anti-Discrimination Norms  185 semper sed ad semper, and the negative obligation not to do wrong which obliges semper et ad semper. This difference highlights the dissymmetry between the good and the bad, because doing the good is a question of proportion while avoiding doing wrong is a question of principle. What follows is that it is worse to force a person to do something bad than to hinder her to accomplish something good, because obliging someone to do something bad does not affect the realisation of her conviction, but the conviction as such.120

Hardly coincidentally, he also found Catholicism to embody the ‘complementarity of belief and reason’. Catholicism, he has emphasised, is particularly compatible with a rationalist approach since it does not impose any obligation on the believer except the duty of charity.121 Overall, then, while the promotion of the right to freedom of religion was a way of accepting the position of challenger, the ECLJ still attempted to reshape legal norms rather than adapt to them. Moreover, focusing on formulating a systematic and rational legal grid for conscientious objection, the ECLJ has also sought to articulate its agenda via non-religious cases, thereby aiming at moving away from the emotional and ideologically heated debate of religion towards ‘consensual topics … without big ideological debate’.122 In so doing, it sought to strengthen its position as an expert allegedly invested in legal rationality rather than religious ideology. The NGO intervened, for example, in the case of Herrmann v Germany.123 Günter Herrmann had objected to his membership of a hunting association that was imposed on him because of his land and property which required him to tolerate hunting on his property. In Strasbourg, he invoked Article 9 among others, because he considered the practice of hunting contrary to his convictions. The ECLJ argued that, while a principled objection against hunting might seem irrational, being forced to join a hunting association clearly violated the negative right to freedom of conscience, ie, not to engage in certain activities.124 The case served as a ‘neutral ground’ for testing the analytical framework of distinction between illegitimate and legitimate forms of conscientious objection. In a similar vein, the ECLJ has also intervened in the case of Vavřička and Others v Czech Republic.125 Pavel Vavřička was a father refusing permission for his two children to be vaccinated against various diseases for conscientious reasons. Given that the applicant’s religious affiliation was not known, the ECLJ’s director considered that the case ‘was not specifically religious. The case concerned

120 Puppinck, 2016 (n 114). 121 Interview 7.2, director, ECLJ, Strasbourg, 28 July 2016 (original in French, translation by the author). 122 ibid. 123 Herrmann v Germany App no 9300/07 (ECtHR [GC], 26 June 2012). 124 ibid, §§ 117–18. 125 Vavřička and Others v Czech Republic App no 47621/13 and 5 others (ECtHR [GC], 8 April 2021).

186  Endogenous Change in the Transnational Field people who were opposed to vaccination as a conscientious objection. It was precisely this point that was interesting. They referred to Article 9 without any religious motivation’.126 As he continued: ‘it is the same question for us, abortion, hunting, military service etc. It has to be the same criteria of analysis’.127 Despite the losses in cases such as Ladele and McFarlane, the ECLJ has sustained its conscientious objection agenda over the past years. For instance, it has multiplied its support for conscientious objection cases, including those by midwives against practising abortions and by mayors refusing to comply with the obligation to marry gay couples. These matters have simultaneously been brought to the UN Human Rights Committee.128 Moreover, in various ECtHR cases in which applicants complained about insufficient access to abortion rights, the ECLJ sought to oppose the applicants by referring, among other arguments, to conscientious objection frames.129 Although these interventions did not typically have the level of abstraction and theorisation found in the interventions in Ladele and McFarlane or in the publications by the director of the ECLJ, they frequently invoked elements of the said analysis. That high-profile cases at the ECtHR such as Ladele and McFarlane were unsuccessful does not mean that conservatives’ efforts have gone unheard. I mentioned above that the proportionality argument secured in Ladele was considered a partial success by Christian NGOs. Moreover, the more specific reasoning advanced by the ECLJ has found an audience with several members of the legal elite in Strasbourg and at the UN. For instance, one of the ECtHR judges interested in the ECLJ’s work took a similar position as the ECLJ when emphasising that the Court needed to further elaborate the distinction between conscience and religion. In an interview, this judge highlighted that the concept of freedom of religion and freedom of conscience had very much been entangled with Kokkinakis and subsequent cases, and that it was only with Eweida and Others that the question had begun to be disentangled. Familiar with the writings and interventions of the ECLJ, this judge stated that the reputation of the ECLJ was particularly due to its constant effort of presenting a general and objective reasoning in its briefs.130 Several high-level legal experts from the Court and the other European human rights institutions took part in events organised by the ECLJ, also at the time when Eweida and Others were

126 Interview 7.2, 2016 (n 121). 127 Interview 7.1, director, ECLJ, Strasbourg, 13 October 2015 (original in French, translation by the author). 128 Interview 7.3, 2015 (n 116). See also, Puppinck, 2018 (n 111). See moreover: ECLJ (2016) ‘Mayor’s Freedom of Conscience on Same-Sex Marriage: Complaint at the Human Rights Committee’, available at: eclj.org/conscientious-objection/un/libert-de-conscience-des-maires-face-au--mariagehomosexuel---recours-au-comit-des-droits-de-lhomme. 129 eg, it intervened in the following case (pending as of 2022): BB v Poland App no 67171/17 (ECtHR, communicated on 29 January 2020). 130 Interview 18, ECtHR judge, Strasbourg, 28 July 2016.

Pushback against Anti-Discrimination Norms  187 pending.131 Interestingly a dissenting opinion issued in the case of Ladele echoed the arguments put forward by the ECLJ: As one of the third-party intervenors in this case – the European Centre for Law and Justice (ECLJ) – quite pointedly put it: ‘[J]ust as there is a difference in nature between conscience and religion, there is also a difference between the prescriptions of conscience and religious prescriptions.’ … We are of the view that once that a genuine and serious case of conscientious objection is established, the State is obliged to respect the individual’s freedom of conscience both positively (by taking reasonable and appropriate measures to protect the rights of the conscientious objector) and negatively (by refraining from actions which punish the objector or discriminate against him or her). Freedom of conscience has in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad. As the ECLJ observes, ‘It is in order to avoid that obeying one’s conscience must still require payment in heroism that the law now guarantees freedom of conscience.’132

This dissenting opinion left traces in the broader legal debate, both positively for its emphasis given to freedom of conscience (Hill 2013; Leigh and Hambler 2014) and negatively for an allegedly harsh and simplistic treatment of sexual rights (Smet 2013). Other judicial stakeholders have also been receptive to the ECLJ’s ideas. For instance, in an interview, a legal expert working at the Court shared reflections that are strikingly coherent with the ECLJ’s views. This expert argued that the concept of freedom of conscience had yet to be fully explored by the Court. What makes conscience specific in his sense is that the person ‘wants to act according to certain rules that are objectively exterior to him’.133 Distinguishing between ‘malo quia prohibido’ and ‘prohibido quoa malo’, the interviewee drew a line between objections that are religious and objections where the religious origin is not immediately evident. Without exaggerating the influence of this lawyer, the statements illustrate the sensitivity to the ECLJ’s approach that exists among experts at the Court.134 It is perhaps more than anecdotal that this very same lawyer noted in a side remark that he considered himself a theologian first and only then a philosopher and a lawyer.135 Another example of a high-profile legal stakeholder that has joined, in a broader sense, the ECLJ’s efforts to push for an agenda on the right to freedom of religion is a former Special Rapporteur

131 ECLJ (2012) ‘ECLJ Hosts American Law Students and Distinguished Speakers’: eclj.org/ eclj-hosts-american-law-students-and-distinguished-speakers. 132 Eweida and Others v United Kingdom (n 92) joint partly Dissenting Opinion from Judges Vučinić and De Gaetano, § 3. 133 Interview 21, 2016 (n 105). 134 The expert in question demonstrated a great openness and curiosity towards all religiosities (he has published on Islamic law, was well informed about Sikhism and repeatedly referred to the Catholic origins of legal principles such as the principle of subsidiarity). Moreover, he had not only built ties with the ECLJ, but to a broader spectrum of religious freedom advocates. 135 Interview 21, 2016 (n 105).

188  Endogenous Change in the Transnational Field on Freedom and Belief to the United Nations. He attended events organised by the ECLJ and repeatedly expressed his support for defending the right to conscientious objection.136 Overall then – like the ADF – the ECLJ contributed to the creation of new lines of legal debate in the religious freedom field. Finally, in pushing its conscientious objection agenda, the ECLJ also sought to delineate symbolic boundaries between Christianity and Islam. In the amicus brief filed in the Ladele and McFarlane cases, the organisation argued for example: ‘Article 9 does not necessarily grant the positive liberty to wear the veil, but it always grants the negative liberty not to wear it’.137 It does not seem a coincidence that the ECLJ chose this specific example. Considering that the political sensitivity of Islam led judges to be more restrictive towards religious claims, the director of the ECLJ sought to elaborate tools allowing the judges to justify protection of the one, while upholding restrictions towards the other (chapter four). The director of the ECLJ emphasised in our interview that partially at least ‘the answer [he] tri[es] to formulate [with his conscientious objection agenda] is … a response to Islam. It is to invite the lawyers to think about the difference between conscience and religion’.138 He argued that the broader ‘problems of modernity is the same as the problem of Islam’, upholding that occidental modernity shares with Islam the same confusion between the orders, one might say a subjectivist confusion – a subjectivism that mixes belief and reason. Islam does not believe in reason because it has complete revelation. And the contemporary Occident does not any more believe in reason because it is sceptical, subjectivist and relativist.139

To this should be added that the organisation has repeatedly taken a stance against the notion of Islamophobia (chapter four) and has consistently been critical of the notion of ‘Christianophobia’. As this rejection is ultimately tied to the reluctance of deploying anti-discrimination frameworks, it indirectly connects to the conscientious objection considerations as well. Consider in this context the following statement, which is taken from an article in which the director of the ECLJ has considered debates over both Islamophobia and conscientious objection: Christians should not intend to join the orchestra of oppressed minorities. Islamophobia, homophobia, Christianophobia, are they the same battle? Definitely not. The individual injustice that some Christians suffer is the result of a greater injustice relating to the very definition of man. The duty of Christians is not to make a life free of trouble, but

136 eg: eclj.org/conscientious-objection/the-right-to-conscientious-objection; and: eclj.org/conscientiousobjection/the-un-special-rapporteur-on-freedom-of-religion-or-belief-in-favor-of-a-right-toconscientious-objection-in-the-context-of-abortion-and-euthanasia. 137 ECLJ, 2011 (n 117). 138 Interview 7.2, 2016 (n 121). 139 ibid.

Pushback against Anti-Discrimination Norms  189 to testify for all. The battle today relates to the determination of the source of morality, which the world tries to strip from the conscience and the Church.140

Certainly, it is difficult to appreciate the direct legal or social consequences of such symbolic and discursive boundary drawing towards Islam. It is important to note, however, that the ECLJ’s strategy was elaborated not only against the liberal other in the wider human rights field, but also to mark lines of difference toward other religious groups. Thus, the cultural line of opposition for which conscientious objection was used ultimately also contributes to erect new boundaries in the religious freedom field. Co-Opting the Liberal Script and Contesting Judges’ Neutrality: Novel Lines of Activism In response to the successes of its liberal foes, the ECLJ has further reoriented its activism in recent years. On the one hand, it has, similar to the ADF, insisted on inconsistencies in the liberal anti-discrimination agenda. On the other hand, the ECLJ has branded its investigation of judges’ connections to large human rights and philanthropist organisations as a new flagship project. This latter strategy expands beyond mere religious freedom activism by focusing on challenging the distribution of power in the human rights field at large. I claim that this recent shift has again fostered new fault lines and allowed the ECLJ to increase its symbolic credits beyond the legal field and to connect to allies in the broader political and conservative sphere. Let me briefly explore both aspects in turn. As I finished writing this book, there were several perceptible signs of the ECLJ expanding its framing strategy by more explicitly co-opting liberal frames. For instance, in 2021, Puppinck published an article in the conservative French journal Valeurs Actuelles titled ‘To Supress Conscientious Objection is Anti Liberal’. He concluded the piece by underlining: ‘The recognition of conscientious objection … contributes to the fair functioning of liberal societies. Its suppression, on the other hand, marks a desire to impose a single common moral standard on all, at the expense of freedom of conscience and tolerance’.141 A similar emphasis can be found in a recent letter, sent by the ECLJ to the World Medical Association when the latter envisioned changes to its ethical policy.142 Moreover, jurisprudential developments at the Court in matters of freedom of speech further narrow the ECLJ’s

140 Puppinck, 2013 (n 113). 141 Grégor Puppinck, ‘Supprimer la clause de conscience à l’avortement est illiberal’ Valeurs Actuelles (15 February 2021), available at: www.valeursactuelles.com/clubvaleurs/societe/supprimerla-clause-de-conscience-a-lavortement-est-illiberal/. I used the translation published on the ECLJ’s website. 142 ECLJ (2021b) Letter to the World Medical Association, available at: media.aclj.org/pdf/ ECLJ-Letter-to-the-WMA-on-the-2021-Revision-of-its-Code.pdf.

190  Endogenous Change in the Transnational Field margin of action. This shift concerned the case of Mariya Alekhina and Others v Russia, in which the Court decided, despite counter-action by the ROC and other conservative actors, that the performance of the punk band Pussy Riot in Moscow’s main Orthodox Church had been unlawfully punished.143 In another case, the condemnation of an Austrian applicant for Islamophobic speech at a seminar of the extreme right-wing party was maintained.144 In the light of these developments, the ECLJ showed signs of pragmatically embracing notions linked to non-discrimination discourses: The European Centre for Law and Justice (ECLJ) does not consider that the notion of ‘phobia’ is appropriate to describe the hostility against a religion or against a human behavior. Indeed, while this hostility can be rational or may result from a conversion, the notion of ‘phobia’ assumes that this hostility is never justified or even would have medical reasons. However, since this notion is used for some religions by the ECHR, it would legitimate to use it also for Christianity. The protection of Christianity should not be weaker than the one of other religions.145

This shift, which reflects the loss of ground vis-a-vis competing actors in the rights field, does not signify a complete reversal of the ECLJ’s position. However, it makes its strategic positioning more ambivalent and testifies to the fact that resisting the liberal doxa of the field has become increasingly complicated. The second novel line of activism concerns a campaign through which the ECLJ has challenged the judges’ authority at a more fundamental level. In February 2020, the ECLJ released a report titled ‘NGOs and judges at the ECHR, 2009–2019’.146 In this report, the ECLJ accused the judges to be at least partly under undue political influence, violating the principle of judicial neutrality. The organisation summarised its research as follows: This study revealed that some of the judges sitting at the European Court of Human Rights (ECHR) are former officials or collaborators of NGOs from the ‘Soros galaxy’ that are very active before this Court. … When their NGO was officially involved in the proceedings, the judges sometimes withdrew from the case (withdrawal) but more often than not chose to sit in a conflict of interest situation, to the detriment of their independence and impartiality.147

The ECLJ mentioned various large NGOs to which judges allegedly maintained connections and which, according to its research, exercised disproportionate 143 Mariya Alekhina and Others v Russia App no 38004/12 (ECtHR, 26 July 2018). 144 ES v Austria App no 38450/12 (ECtHR, 25 October 2018). 145 ECLJ (2020c) ‘The label Christianophobia in Human Rights Law’: eclj.org/religious-freedom/ un/the-label-christianophobia-in-human-rights-law. 146 ECLJ (2020a) ‘NGOs and judges at the ECHR, 2019–2019’: eclj.org/ngos-and-the-judges-ofthe-echr?lng=en. 147 Grégor Puppinck and Nicolas Bauer (2021) ‘Links & Conflicts of Interest at the ECHR in 2020’: https://eclj.org/geopolitics/echr/liens-et-conflits-dinterets-a-la-cedh-en-2020.

Pushback against Anti-Discrimination Norms  191 influence in the judicial process: the Open Society Foundations, the Helsinki Committees, the International Commission of Jurists, Amnesty International, Human Rights Watch, Interrights, and the AIRE Centre. It is interesting to note that in this report, the ECLJ, once more, presented itself as the guardian of legal orthodoxy and neutrality (chapter four), which constitutes the primary source of symbolic authority for legal professionals (Bourdieu 1987). Thus, in engaging in this strategy, the ECLJ challenged the very core of power distribution in the field. This new line of activism has not remained without resonance. According to the ECLJ, within a year of its publication, the report had been covered in the media hundreds of times.148 A former judge at the ECtHR, Boštjan Zupančič, who is also connected to the ECLJ as a research associate (alongside the former judge Jorge Borrego Borrego), shared his appraisal in a statement published by Valeurs Actuelles. Although he underlined that he could recall at most a few cases where undue influence by NGOs might have happened while he was in office, he said that he was not surprised by the ECLJ’s findings given that ‘Soros gets his hands in practically everything’.149 He thought that the judges themselves might be ‘stupefied’ by the ECLJ’s revelations. The report’s resonance is also illustrated by the list of over a hundred lawyers from various European countries, including (former) judges, barristers and academics, who signed an appeal published by Valeurs Actuelles. The petition asked the Court – among others – to install a procedure of withdrawal and adopt a declaration of conflict of interests for judges and to official request declarations by applicants about their support by NGOs.150 The report has also attracted the attention of politicians.151 A member of the Parliamentary Assembly of the Council of Europe, which elects the judges, has addressed written questions concerning the ECLJ’s allegations to the Committee of Ministers.152 The ECLJ itself has also petitioned the Parliamentary Assembly.153 Moreover, debate has arisen at the national level. The academic service of the German Bundestag published a brief note on the report and parliamentarians from various European countries reacted

148 ECLJ (2021a) ‘ECLJ Report on Judges & NGO: Press Review’: eclj.org/geopolitics/echr/ rapport-eclj-sur-les-juges--ong--revue-de-presse. 149 Boštjan Zupančič, ‘[Le scandale Soros] Un ancien juge de la CEDH réagit après les révélations de Valeurs actuelles’ Valeurs Actuelles (4 March 2020), available at: www.valeursactuelles.com/politique/ le-scandale-soros-un-ancien-juge-de-la-cedh-reagit-apres-les-revelations-de-valeurs-actuelles/. 150 Valeurs Actuelles (2020) ‘Une centaine de juristes lance un appel pour l’indépendance et l’impartialité de la CEDH’ (7 May 2020), available at: www.valeursactuelles.com/monde/ une-centaine-de-juristes-lance-un-appel-pour-lindependance-et-limpartialite-de-la-cedh/. 151 Many of which have been listed by the ECLJ itself: eclj.org/geopolitics/echr/un-an-apresle-rapport-sur-les-ong-et-les-juges-de-la-cedh--etat-des-lieux. 152 Parliamentary Assembly of the Council of Europe, Written question No 747 to the Committee of Ministers, Doc 15095, 23 April 2020. 153 ECLJ (2020b) ‘Putting an End to Conflicts of Interest at the ECHR’: eclj.org/geopolitics/echr/ mettre-fin-aux-conflits-dinterets-a-la-cedh?lng=en.

192  Endogenous Change in the Transnational Field to the report.154 The Russian Foreign Ministry issued a statement noting that ‘This report caught our attention, not least because Russia has repeatedly pointed out to its CoE colleagues instances of major Western human rights NGOs exerting implicit and explicit influence on the ECHR, which is being analysed in this paper’.155 Meanwhile, the ECLJ has expanded this line of activism by issuing another report targeting the alleged conflicts of interests of UN experts and the financial involvement of private foundations, which sparked further debate.156 It must certainly be acknowledged that the ECLJ does not compare to organisations like the OSF in terms of size and influence and its action are unlikely to substantially alter the order of the field in the immediate future. What should be noted, however, is that while the other actors considered here tended to conform to the liberal doxa in the religious freedom field, and in other rights areas, the ECLJ remains more explicitly committed to challenging the distribution of power and the valuation of specific sets of capital as such. As such, this activism has introduced an important dynamic of contention that goes beyond, but also includes, religious freedom, and is at least indirectly relevant for religious minorities resorting to non-discrimination frames.157 In fact, by pushing against non-discrimination frames and against liberal advocacy groups, conservatives (indirectly) also target those networks and frames, within which claims by religious minorities are increasingly embedded 

The question posed in this chapter was how legal mobilisation trajectories of different religious groups have evolved in an increasingly settled judicial field. I have distinguished three trajectories of mobilisation. First, a trajectory of recursive rights expansion, illustrated by the case of Jehovah’s Witnesses. Second, a more ambivalent trajectory of legal marginalisation and adjustment, embodied by the case of Muslim minorities’ claims to religious veiling. A third trajectory concerned a dynamic of ‘backlash from within’, in which Christian conservative stakeholders have used liberal human rights resources for conservative purposes

154 Deutscher Bundestag (2020) ‘Kurzinformation: Mögliche Zusammenhänge zwischen privaten und staatlichen Akteuren und dem Europäischen Gerichtshof für Menschenrechte (EGMR)’, WD 2- 300 – 079/20, 29 September 2020. 155 Ministry of Foreign Affairs of the Russian Federation (2020) ‘Press release on the newly released report, NGOs and the Judges of the ECHR 2009–2019’ (15 April 2020), available at: archive.mid.ru/ en/web/guest/foreign_policy/rso/coe/-/asset_publisher/uUbe64ZnDJso/content/id/4099232. 156 ECLJ (2022) Hectic debates at the UN on the opaque financing of ‘UN experts’ revealed by the ECLJ reports. eclj.org/geopolitics/un. 157 Note in this respect that the ECLJ has also promoted its report in its interventions in the conscientious objection debate: Grégor Puppinck (2020b) Avortement: trois judges de la CEDH sapent le droit à l’objection de conscience: eclj.org/conscientious-objection/echr/avortement-troisjuges-de-la-cedhsapent-le-droit-a-lobjection-de-conscience?lng=en.

Pushback against Anti-Discrimination Norms  193 or attempted to push for legal concepts challenging the liberal doxa of human rights as such. While the first of these three trajectories corroborated the expectation that human rights litigation can recursively open new opportunities for change, the second and third scenarios made the picture more complex. They illustrate how mobilisation evolves in more precarious situations of legal marginalisation and ideological conflict, and how these conditions thereby infuse the legal strategies and frames circumscribing religious freedom disputes. What do these different trajectories of mobilisation imply for dynamics of change within the religious freedom field, and for the governance of religious diversity more generally? The case of Jehovah’s Witnesses is relatively straightforward. It illustrates well the expansion of more inclusive religious freedom standards through repeat litigation. Importantly, it has also shown how international human rights bodies, such as the ECtHR and the UN Human Rights Committee evolve in a shared field and might, in certain instances, align their position, thereby contributing to the global standardisation of individual rights interpretations. By contrast, the case of Muslim litigation reflects, in many ways, the consolidation of the limits to legal accommodation rather than a dynamic of legal change. This consolidation became visible in the repeatedly unsuccessful cases, but also in the resulting avoidance of the Strasbourg Court by capital-endowed Muslim advocacy organisations. On an even more subtle level, it has also become manifest in the identity narratives espoused by various actors involved in their cases. These narratives – paradoxically – indirectly ‘condition’ Muslims’ legitimacy in the field on their embrace of secular-liberal identities. Neither Jehovah’s Witnesses nor Christians had to ‘prove’ their legitimacy in comparable ways. Yet, it is important to emphasise that this consolidation of marginality does not preclude the possibility of change. To the contrary, the rising rights awareness and legal capital among Muslim grassroots communities is in and of itself a sign of change. This accumulation of legal capital has furthermore resulted in Muslims’ capacity to make strategic use of the global human rights system by bringing an increasing number of cases to the UN and to the CJEU. This, in turn, has contributed to another trend that contrasts with the case of Jehovah’s Witnesses: rather than leading to a normative alignment between different international human rights bodies, it has led to their divergence and, as a result, enhances normative competition in a global and multi-polar legal field. Finally, the mobilisation by Christian conservatives has not led to a ‘conservative’ reversal in the human rights field, especially since many of their cases have remained unsuccessful. In some ways, their strategies even reflect the reproduction of the doxa of a liberal human rights field, even if their legal actions aim at unsettling precisely this doxa. At the same time however, by fostering debates over conflicting rights, by seeking to align individual rights conceptions with Catholic notions of natural law, and by sparking controversy over judges’ legitimacy, these actors have introduced new normative agendas and political fault lines into the religious freedom debate in Strasbourg.

Conclusion: Faith in Rights or Right Faith?

T

his book examined the contentious dynamics over the right to freedom of religion at the transnational level. By following a variety of religious and secular actors on their path to and through the world’s most influential international court – the European Court of Human Rights (ECtHR) – I shed light on the ‘demand-side’ of religious freedom struggles, which has remained under-researched in the court and state-centric scholarship on religious freedom. In so doing, I argued that legal mobilisation for religious freedom is fraught with ambivalences. On the one hand, human rights institutions have become important venues for religious minorities to voice their grievances, which has led the ECtHR to broaden the protection afforded to certain claims. On the other hand, legal mobilisation and litigation are not the exclusive affair of like-minded liberals, nor do all minorities have equal leverage when they address the Court. Political power dynamics and clashing ideologies resonate in various ways in the legal debates. Religious freedom, from this perspective, is not exclusively a legalistic concept or an institutional variable explaining national-level change, but a polyphonic space – or field – in which advocacy groups, movement actors, legal professionals and individual claimants vie for recognition and authority of interpretation. In the following, I will discuss the contributions this book has made to the two literatures in which this research was situated, namely the literature on the governance of religious freedom and the literature on human rights advocacy and legal mobilisation. I will end with an outlook on new developments in the field of religious freedom and on future research perspectives opened by this book. RELIGIOUS FREEDOM MOBILISATION AND THE GOVERNANCE OF RELIGIOUS DIVERSITY

Under the banner of religious freedom, both religious minorities and majorities have demanded that European states tolerate their religious practices in the public sphere and actively protect their sensibilities. Although the turn to rights discourses has made European institutions important venues for expressing such claims, the transnational level has largely remained the preserve of legal scholars. By contrast, we still know relatively little about the workings of religious and secular religious freedom advocacy in international institutions and the

Conclusion  195 social forces that underlie their mobilisation. Taking up this challenge, the book made a twofold contribution. First, it shed light on the various mobilisation strategies unfolding at the transnational level, their underlying social dynamics, and the frames and fault lines they have involved. In so doing, I added to an emerging corpus of scholarship which has pointed to the tension between national power elites and new transnational authorities in questions of religious accommodation (Koenig 2007, 2015; Joppke and Torpey 2013) but that has yet said little about how religious groups and their support networks inhabit and navigate this tension. Second, I have helped unearth dynamics of change set in motion through human rights norms, including the endogenous transformation of religious organisational landscapes, the reconfiguration of transnational opportunity structures, and the production of new legal agendas in the field of religious freedom. I will briefly address each of these two aspects in turn. Turning to the first contribution, the detection of varying legal mobilisation strategies, it needs to be emphasised that religious actors and their supporters have contributed to the activation of the universalist and individualist assumptions built into transnational human rights norms and – as a result – to the emergence of transnational standards of pluralism and tolerance. Yet, this ‘activation’ of the core cultural values and understandings underlying the human rights script is only one – obvious – way in which religious freedom claims have been asserted. A closer look at the mobilisation trajectories of differently positioned actors has revealed a range of legal strategies that at once reflect asymmetries in power in the religious freedom field and the plurality of national and transnational communities to which religious freedom advocates are committed. These strategies fall in three different categories: attempts to ‘fit into’ liberal ideals of religious identity; to (re-)shape the distribution of power in the religious freedom field; and to erect symbolic boundaries towards Islam. While these strategies cannot alone account for legal outcomes, I have argued that they reflect how power relations and extra-legal religious and organisational interests are built into the dynamics of (legal) contention. The first strategy of ‘fitting’ liberal ideals of religious identity has most prominently surfaced in the legal mobilisation of Sikhs and Muslims. By ‘proving’ that they are liberal, enlightened, autonomous religious subjects, ie, by convincing legal stakeholders that they have the ‘right’ type of faith, these groups and their supporters tried to accommodate a legally and politically marginalised position. Rather than challenge the normative precepts of specific national secular arrangements, they sought to fit into such arrangements by conforming to what Hurd has termed the ‘good religion’ (2015). This contrasts with attempts by Christian conservatives, as in the case of Lautsi, to frame religion as the ‘culture of the majority’ and ‘national heritage’ – frames inaccessible to marginalised minorities (Beaman 2013). This strategy also reflected the liberal premises of secular advocacy groups and the ambition of the transnationally close-knit Sikh community to construct a collectively shared religious ethos. That this frame is prominently pursued by minority actors in a marginalised position

196  Conclusion does not mean that it is the only frame they rely on. However, as became clear in interviews and third-party interventions, this rationale dominated much of their legal strategies. Likewise, while Christian activists have not sought to present their own faith as liberal, they have attempted to fit liberal norms when in a disadvantaged position. One example is Evangelicals fashioning their own views as minoritarian and in need of protection in their opposition to non-discrimination norms. The second strategy of (re-)shaping the core values and authority of interpretation in the religious freedom field was most visible in the Christian conservative mobilisation in Lautsi (chapter four), but also in their more recent attempts to discredit liberal ideologies and actors in area of human rights. In a much more explicit way than Sikh and Muslim activists, these conservative cause lawyers are invested in competing over the distribution of authority in the religious freedom and human rights field rather than ‘simply’ fitting established hierarchies. They did so, for example, by supporting the incumbent authority of national governments, by pushing for religious interpretations of religious freedom, and by claiming to be the ‘guardians’ of judicial orthodoxy. From a theoretical vantage point, I have argued that such framing strategies may be more within the reach of powerfully positioned actors and those who seek not only to remedy the perceived grievances of grassroots community members, but who seek broader cultural and political change or authority as human rights professionals. While this is true of conservatives and liberals alike, Christian cause lawyers are most prominent in claiming special expertise on religious freedom. Liberal advocacy groups, while among the key activists in the area of human rights, have often viewed religious freedom as a ‘luxury’ right and not as an urgent priority (Petersen and Marshall 2019). This could change as religion becomes entangled with struggles over gender and non-discrimination rights, which has, for example, alerted a new set of actors to the cause of Muslim women. The third strategy, symbolic boundary-drawing towards Islam, has appeared in legal mobilisation by Sikh and Christian activists, though in very different ways. Fully aware of the politically and legally sensitive question of Islam, both groups have attempted to carefully distinguish their struggle from that of Muslim minorities. In this respect, Sikhs have adopted a mostly pragmatic attitude. While they explicitly chose not to openly advocate for the cause of Muslim minorities, they made sure not to take an explicit stance against their cause either. Certain Christian activists, by contrast, have explicitly sought to erect symbolic boundaries towards Islam by seeking to push for conceptual reasoning that allow favouring Christian rights while maintaining limitations on Muslim claims. Certainly, it is not clear to what extent such symbolic boundaries contribute to the construction of social boundaries, ie, materialise in the social lives of individuals (Lamont and Molnár 2002). Yet, it is important to note that the marginal position of Muslim minorities influenced the strategies of other actors in the religious freedom field and thus had a structuring impact on how religious freedom claims are articulated.

Conclusion  197 The book’s second contribution to the literature on the governance of religious diversity concerns the dynamics of change resulting from transnationalisation. Explaining and describing legal change was not the primary concern of this book. I made it clear from the beginning that my research design did not allow for such explanatory accounts. In fact, I argued that the preoccupation with (successful) legal change may distract from more ambivalent and complex dynamics of (endogenous) change triggered by legal mobilisation. Such dynamics may not lead to (immediate) legal results, but nonetheless affect the resources and structural and discursive opportunities which enable or limit rights advocacy. In this context, it is important to emphasise three dynamics of endogenous transformation which are consequential for the governance of religious diversity: the transformation of religious communities; the consolidation of a multi-polar European legal field; and the agenda-setting capacities of cause lawyers. Legal mobilisation did not begin at the doorstep of the courtroom but was predicated in part on longer-term transformations in religious and organisational fields. In fact, it reflects the constitutive impact of law and (human) rights on religious identities and organisational dynamics within religious communities: the rise in rights awareness and the accumulation of legal capital by religious communities might – over time – increase the pressure for social change (McCann 1994). Across the chapters of this book, I shed light on two broader developments in this respect. First, cause lawyers – much debated in the socio-legal literature (Sarat and Scheingold 2006; den Dulk 2008) – have come to play a prominent role in the religious freedom field. With their legal capital, they facilitate the access of religious communities to the transnational arena. For example, conservative Christian NGOs have collaborated with the Russian Orthodox Church on several occasions, fostering an alliance between legal and (majoritarian) political capital, which has helped the Christian establishment to reassert its authority at the transnational level. Second, another type of religious freedom advocacy was primarily oriented towards community causes. In these cases, the grassroots religious community was associated with the legal struggle and part of community lawyering efforts went to raising the rights awareness of religious individuals. The community orientation of this rights activism also enabled globally coordinated repeat litigation. Unlike cause lawyering, their litigation remained more narrowly focused on the immediate grievances of community members and was not, primarily, part of a broader legal or cultural agenda. It is however this alertness for rights and capacity to leverage resources for judicial fights that might allow religious groups to actively open new legal opportunity structures. Despite their increasing legal capital and growing community support for their litigious efforts, some actors have remained strikingly unsuccessful in Strasbourg. In these instances, one is tempted to raise the somewhat provocative question of whether religious minorities can have faith in rights. Although this book does not answer this question in the negative, it also does not prematurely rush to an affirmative answer. Instead, I highlighted a second dynamic

198  Conclusion of endogenous change. Strategic actors that were unsuccessful in Strasbourg have shifted their attention to alternative legal venues at the transnational level, thus demonstrating their capacity to actively open new legal opportunity structures. This has led to competing interpretations of religious freedom by different human rights bodies. For instance, the UN Human Rights Committee has taken a strikingly different approach from the ECtHR in disputes over religious clothing in the public sphere. However, this emergence of a multi-polar European legal field can also have the opposite effect and consolidate legal marginalisation. This is illustrated by recent decisions of the Court of Justice of the European Union (CJEU) in headscarf controversies, in which it echoed Strasbourg’s margin of appreciation doctrine. Finally, the capacity of strategic cause lawyers to set new agendas and introduce new lines of debate in the judicial field has proven to be a third source of endogenous change. Even if skilled Christian cause lawyers could not overturn the expansion of the right to anti-discrimination, they have succeeded in introducing new fault lines in the debate and in pushing the debate, both among academics and practitioners, in new directions. Likewise, the insistence of liberal cause lawyers on Islamophobia as a specific form of anti-Muslim discrimination and racism might not have led to clear legal turning points at the ECtHR, but still resonates in judicial debates and frames as has been demonstrated in the case of S.A.S. v France for example. The various findings summarised here are not without their limitations. Since I have focused on relatively few controversies from the more than 1,000 religious claims that have reached Strasbourg over the past decades, these findings should not be taken as describing dynamics in the field exhaustively.1 Instead, further research should be conducted to corroborate the generalisability of the findings and supplement them with other observations. This is all the more important since my study did not cover all groups that invested in Strasbourg as a strategic arena. For instance, humanists and atheists were regrettably not part of my study. While such limitations are hard to avoid, the question of how other religious actors mobilise human rights and the right to freedom of religion to gain recognition remains important to further test the theoretical framework and results obtained here. For instance, many of the humanist cases in Strasbourg were pursued not simply to remedy individually perceived injustices but as a matter of cause lawyering. One question of endogenous change that would be interesting to explore is which strategy humanists adopted after the case of Lautsi was overturned by the ECtHR. Moreover, the question of what effects legal mobilisation has on judges’ decision-making and, more generally, for the protection of religious freedom ‘on the ground’ remains an open question (defining this, as I said, was not the ambition of this book). 1 Reminder: The HUREL dataset used in this book contains over 1,500 cases. Of these, more than 400 have been excluded from the quantitative assessments because they did not make their claim under Article 9 explicit.

Conclusion  199 TOWARDS A FIELD-THEORETICAL UNDERSTANDING OF LEGAL MOBILISATION?

The second literature in which this book is firmly rooted is socio-legal and sociological research on legal mobilisation and human rights advocacy. Here my contribution is both empirical and conceptual. Regarding the first, this book joins the growing set of social scientific studies interested in studying legal mobilisation at the ECtHR from a qualitative angle (Fokas 2016; Kahraman 2018; Kurban 2020; Sundstrom 2014). With few exceptions, however, religion has been overlooked in this scholarship (see however: Fokas 2016). This neglect is not a small matter given the public role religious actors continue to vie for. Moreover, this object of enquiry is important in the context of the thriving scholarly interest in the dynamics of backlash against international courts (Madsen, Cebulak and Wiebusch 2018; Voeten 2020). These scholars have rightly distinguished between the pushback by actors who seek to orient developments in international courts in different ways, and backlash that challenges their authority at a more fundamental level. Their interest, however, remains focused primarily on state elites who trigger such dynamics. The legal mobilisation by Christian conservatives, by contrast, highlights how pushback and backlash happen from ‘within’ international courts as well. These actors do not target the very existence of these courts but challenge liberal interpretations of human rights and compete for authoritative legal capital within the area of human rights. I have, however, only explored part of their activism and could not give an overall assessment of their legal success. That remains the task of future research. In terms of the conceptual contribution of this book, the field-theoretical approach adopted has enabled us to bring to the fore several dimensions of legal mobilisation that cannot be accurately captured by social movement scholarship. Certainly, the theoretical perspective of this book is in some ways aligned with social movement concepts such as framing, opportunity structures, challengers and incumbents (Fligstein and McAdam 2012: 30–31). However, by embedding these concepts in a field-theoretical perspective, we were able to discover at least two dimensions of legal mobilisation often overlooked: first, the variation of actors and their mobilisation trajectories; and, second, the power relations that helped shape these trajectories, and, as a result, feed through into how actors (can) use the law. Including these dimensions in our consideration is important, since actors’ use of law can vary greatly depending on their position of power, their commitments and the broader political context. Future research can further test the viability of the threefold typology of differently positioned legal actors that has emerged in this book. First, the distinction that social movement scholars have drawn between challengers and incumbents (Fligstein and McAdam 2012) captures well the different positions of power from which legally mobilised actors engage with the law. Second, the distinction between community and cause lawyers (Sarat and Scheingold 2006) describes whether their goal is primarily to remedy the grievances of a specific community or to advance culturally oriented agendas of change. Third, the distinction

200  Conclusion between nationally and transnationally situated actors helps us understand whether the stakes that actors pursue are situated primarily in domestic or transnational political and legal fields. These differences may lead not only to different legal framing strategies, but also to different appreciations of access to courts. That challengers and incumbents have different means to assert their rights and are acutely aware of their position of political and legal power was reflected, for example, in the comparison of Sikh and Christian disputes over the display of religious signs in the public sphere. While the former explicitly sought to prove compatibility with the French laicist understanding of religious freedom, the latter – allied with powerful governments and religious establishments – sought to convert political power into law by pushing for legal concepts that make state sovereignty and the protection of national cultural heritage core elements of the legal framework. At the same time, this difference in framing strategies also reflected diverging organisational commitments. While Sikh actors were primarily engaged in building their transnational religious community and remedying very specific religion-related grievances, Christian advocacy groups pursued broader agendas of cultural change. Finally, I theorised that actors whose primary focus is the grievances of domestic religious communities might be less inclined to litigate when the odds are against them than actors who litigate to build a transnational community or pursue broader cultural change. This became clear in the case of Muslim minorities, for whom the symbolic credits drawn from litigation did not – unlike other groups – serve transnational community building or global cultural change but were meant to help remedy the grievances of domestic communities. In these cases, the risk of losing outweighed the potential benefits of publicity, community construction and political visibility. Again, these various contributions are not without limitations. In fact, the qualitative design of this study and the in-depth investigation of specific cases did not allow to exhaustively study all dynamics. Future research might nuance and expand the mentioned threefold typology. Furthermore, it would for instance be interesting to conduct in-depth ethnographic research within specific organisational fields (such as the Christian conservative or the Islamic field) to systematically assess the effects of transnational judicialisation. It will therefore be up to future scholarship to expand and nuance this typology. Another limitation lies in the fact that the boundaries of the religious freedom field have – methodologically speaking – been set rather narrowly. There is a wider field to explore that clusters not only around the ECtHR as a ‘governance unit’, but comprises other international institutions. Widening the lens in such a way would also allow us to study another aspect: the habitus and the doxa of a professional field of religious freedom advocates. Such a field can be expected to be rather US-leaning as most NGOs and experts in this respect are situated there (Petersen and Marshall 2019). Such a widening of the analytical lens would also allow us to better understand how dynamics at the ECtHR influence broader debates and advocacy dynamics regarding religious freedom, for instance at the United Nations, the European Union and other international organisations.

Conclusion  201 RELIGIOUS FREEDOM QUO VADIS? CURRENT DEVELOPMENTS AND FUTURE RESEARCH PERSPECTIVES

As this project draws to a close, new developments concerning the legal regulation of religion are unfolding at the Council of Europe and in the European legal field more generally speaking. In this last section, I would like to briefly outline three of these developments and thereby open up perspectives for future research that include but also expand beyond the ECtHR. First, while legal scholars critical of the ECtHR’s jurisprudence vis-a-vis Islam have frequently underlined the imbalance between the protection of Muslim and Christian sensibilities, recent case law points, if not in a different direction, at least to a reduction in this imbalance. This concerns, for example, the issue of freedom of speech. The Court’s early judgments in this area sparked controversy. While the judges were favourably disposed towards upholding limitations on speech deemed blasphemous against Christians, they ruled against a Muslim applicant with similar claims (chapter two). Yet, by the end of the 2010s, the outlook seemed slightly different. On the one hand, the Court defended in ES v Austria the necessity to limit speech acts that could enhance religious intolerance. In this case, the applicant complained against her criminal conviction for, among others, describing the Prophet Muhammed as paedophilic in a seminar organised by the right-wing Freedom Party Education Institute. In 2018, the ECtHR found that the domestic courts had justly balanced between the right to freedom of expression and the right to freedom of religion.2 In the same year, the Court overturned, in Mariya Alekhina v Russia, the conviction of the members of a Russian feminist punk band who had performed a ‘punk prayer’ in the Christ the Saviour Cathedral in Moscow. Besides finding that the domestic courts had not sufficiently motivated the criminal conviction of the band members, the ECtHR also noted ‘that the applicants’ actions did not disrupt any religious services, nor did they cause any injures to people inside the cathedral or any damage to church property’.3 Here there is not the space to disentangle the legal and political determinants at play in the Court’s balancing of freedom of speech and religious freedom then and now. But one might ask how the Court’s jurisprudence evolves in the face of rising right-wing populism in Western Europe and the growing levels of authoritarianism in Russia (which, as discussed below, has left the Council of Europe). Which new opportunities emerge in this context for minority groups to claim their rights? And how do Christian advocacy groups react to new developments? The approach of Evangelical groups that intervened in the case of Mariya Alekhina is interesting. They have traditionally relied on a very liberal understanding of freedom of speech but were in a more difficult position to do so in this case. They sought to justify the restrictions by referring the question of

2 ES

v Austria App no 38450/12 (ECtHR, 25 October 2018). Alekhina and Others v Russia App no 38004/12 (ECtHR, 26 July 2018) § 215.

3 Mariya

202  Conclusion place and time in which such speech acts are expressed. Moreover, conservatives who have so far rejected to pragmatically use liberal legal discourses for their own purposes showed the first signs of revising their position. This has become clear, for example, with the European Centre for Law and Justice considering defending the concept of ‘Christianophobia’ which it previously criticised as imbued with liberal subjectivism. Besides, the development also points to another question that could not be answered in this book. How do religious freedom advocacy groups negotiate internally about what cases to defend, which positions to take and what alliances to embrace? Delving deeper into intra-organisational developments would be a useful addition to the research presented in the foregoing chapters. A second development leads us to shift focus from the ECtHR to other international courts and human rights bodies. Until the late 2010s, no disputes over religious discrimination came before the CJEU. Since then, conflicts about religious discrimination in private sector employment have started to emerge. In addition to the question of the right to wear the headscarf at work (chapter five), another type of dispute that reached the CJEU concerned internal church autonomy. In 2018, the CJEU found the German Protestant Church in violation of EU non-discrimination law because it refused to hire Vera Egenberger as a policy adviser in charge of drafting a report on the UN antiracism convention because she was not a church member. The Court found that discrimination against persons who are not church members is not automatically justified but only in respect of employment that relates to the core religious functions of the organisation.4 In so doing, it went against established jurisprudence by German courts and could eventually even undermine one of the pillars on which the influence of the churches in Germany rests. Upholding mandatory church membership for employees is not only important at a symbolic level, but because it comes with the obligation to pay church tax, thus being an important source of income. That this is far from trivial becomes clear when we consider that the churches are the second largest employer in Germany after the state (van den Brink 2022). Thus, while we have seen in this book that transnational legal institutions may at times reproduce the privileged position of religious majorities, at other times they impose limits on these privileges. That the Egenberger case was strategically orchestrated to achieve this further highlights the judicialisation of political struggles in the area of religion. As mentioned above, legal mobilisation in European and other international legal venues is not only a driver of top-down change that flows from the transnational to the national level. It also affects the dialogue and competition between these various international venues. In this regard, it would be of interest to take a closer look at the interaction of the ECtHR and the CJEU in matters of religious freedom (Christians 2018; Howard 2014). Moreover, going beyond religious 4 Case C-414/16 Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV [2018] 257.

Conclusion  203 freedom, it is worth highlighting that the question of dialogue and competition between international courts is still an under-researched topic in socio-legal scholarship. In addition to communication in terms of jurisprudence, one might ask whether judicial elites circulate between different international legal bodies and how this shapes the judicial expertise on the basis of which different courts operate. Instead of considering one specific court as the epicentre of a legal field, we might broaden our view to a multi-polar European and even global legal field, including the ECtHR, the CJEU and the UN Human Rights Committee. Let me conclude by drawing attention to a third development and the larger research questions with which it is associated. As I write the last pages of this book, a human, moral and political tragedy is unfolding on the European continent. The invasion of Ukraine on the instigation of Russian president Vladimir Putin in late February 2022 is entering its second month. One of the responses to the brutality unleashed by the Russian government was the exclusion of Russia from the Council of Europe. This exclusion is unprecedented. While Russia had previously been suspended after its invasion of Crimea, it has now lost its membership, definitely cutting Russian citizens off from the ECtHR. This is also relevant to religious freedom claims before the Court, as there are many claims pending against Russia. But the war is likely to affect the fields of human rights and religious freedom in another way. Most of all, how will these developments affect the alliance between Christian conservatives, Russia and actors from the Russian Orthodox milieu, as observed in chapter four? The Russian Orthodox Church has come out in support of the war, which has led to widespread outrange, including from the Vatican. Whether Evangelical-Orthodox networks and the ‘New Ecumenism’ (Shishkov 2017) will crack in the face of Russia’s war crimes in Ukraine is an open question. One possibility is that the war will weaken the global right-wing alliance; another that it will deepen the global culture wars, namely if Christian conservatives continue to align with the Russian Orthodox Church or support the Russian position. As these concluding remarks show, the struggles for recognition and authority in the field of religious freedoms are likely to continue for the foreseeable future. The dynamics at the ECtHR continue to be closely linked to broader political developments. Increasing authoritarianism and populism challenge the authority of the Court, but at the same time remind us of its paramount importance in defending pluralistic democracies in Europe. Moreover, the growing rights consciousness of grassroots communities and the expansion of transnational advocacy networks will continue to make the Court a central arena for political disputes over religious accommodation. Although the Court has made clear where the limits of its willingness to intervene in domestic affairs concerning this accommodation lie, such limits will continue to be challenged and questioned by political developments, other international institutions and legal capital-endowed activists.

Appendix TABLES Table 1  Initial ECtHR freedom of religion cases involving the ECLJ and its network Case

Conflict

Year of application

Links to Christian conservative actors

Larissis and Others v Greece

Proselytism

1994

Lawyers collaborating with ECLJ

Metropolitan Church of Bessarabia and Others v Moldova

Legal recognition

1998

ibid

The Moscow Branch of the Salvation Army v Russia

Legal recognition

2001

SCLJ and ECLJ filed the application (according to ECLJ’s homepage)

Zekai Tanyar & Others v Turkey

Property

2001

Lawyer formerly employed by the ECLJ and subsequently worked for ADF

Necati Aydin & Ercan Sengul v Turkey

Property

2002

Listed on ECLJ’s homepage as an early supported case. No further information

Özbek and Others v Turkey

Property

2002

ibid

Erkin Altinkaynak and Others v Turkey

Property

2006

ibid

Schmidt v France

Custody

2002

Lawyer formerly employed by the ECLJ and subsequently worked for ADF

2003/04

Listed on ECLJ’s homepage as an early supported case. No further information

2007

According to its homepage, the ECLJ represented the church before the ECtHR

Holy Synod of the Bulgarian Internal Orthodox Church and autonomy of Others v Bulgaria church Eglise Evangélique de Besançon v France

Recognition of legal status

Note: These cases have been identified via a research on the ECLJ’s homepage in particular. It may not be exhaustive.

Appendix  205 Table 2  Success rates per religious group and Member States (overall case outcome) Other religious NonMissing Muslims Christians JW minorities religious information % % % % % % Member unsuccessful states successful joining N before 1990

78.6

78.1

41.4

88.5

69.6

78.4

21.4

21.9

58.6

11.5

30.4

21.6

70

137

29

61

46

74

Member unsuccessful states successful joining after N 1990

21.4

42.4

36.4

42.4

50.0

54.2

78.6

57.6

63.6

57.6

50.0

45.8

28

99

22

33

4

24

Turkey, unsuccessful Azerbaijan, successful Bosnia and N Herzegovina

70.2

34.6

0.0

20.0

0.0

57.7

29.8

65.4

100.0

80.0

100.0

42.3

124

26

5

10

4

26

Source: HUREL. Table previously published in (Harms 2022). Note: N=822. A case has been considered ‘unsuccessful’ if the decision has been inadmissible or no violation has been found in the judgment. A case has been considered ‘successful’ if at least one Article has been found violated. This can be another Article than Article 9. Not included are cases that are pending or have been struck out of the list. Note that cases involving more than one religious denomination have been counted for each of the involved. The following cases have been excluded from the dataset for the analysis: those that invoke Article 9 but do not give any further information about the precise religious freedom dimension of their claims. Moreover, asylum-related claims invoking Article 9 have also been excluded from the analysis because they pertain to religious conflicts in countries of origin rather than in countries covered by the ECtHR. Turkey, Azerbaijan and Bosnia are kept seperate to distinguish those countries with particularly important/majoritarian Muslim populations. The coding of religious groups has been achieved as follows: The group ‘Christians’ comprises a range of Christian denominations, including, among others, Orthodox, Catholics, Protestants, Anglicans. The group ‘other minorities’ comprises Alevis, Buddhists, Hindus, Sikhs, as well as diverse new religious movements. The group ‘non-religious’ comprises declared atheists and humanists, as well as non-religious organisations, and applicants with other beliefs, such as pacifism and veganism.

206  Appendix Table 3  Success rates per religious group and Member States (regarding Articles directly pertaining to religion) Other religious NonMissing Muslims Christians JW minorities religious information % % % % % % Member states joining before 1990

unsuccessful

91.8

94.6

57.1

94.5

82.5

96.9

successful N

8.2

5.4

42.9

5.5

17.5

3.1

61

111

28

55

40

64

Member unsuccessful states successful joining after N 1990

82.1

73.3

45.5

64.3

66.7

100.0

17.9

26.7

54.5

35.7

33.3

0.0

28

86

22

28

3

16

Turkey, unsuccessful Azerbaijan, successful Bosnia and N Herzegovina

96.3

100.0

0.0

44.4

33.3

94.4

3.7

0.0

100.0

55.6

66.7

5.6

108

19

5

9

3

18

Source: HUREL. Table previously published in (Harms 2022). Note: N=704. A case has been considered ‘successful’ if one of the Articles dealing specifically with religion has found to be violated (Article 9, Article 14, Article 2 of Protocol 1 or a combination of Article 14 with 9 or 2 of Protocol 1). For case selection and other codings see Table 1 in this appendix.

Appendix  207 LIST OF PRIMARY SOURCES

List of Interviews Year

Date

Type

Country

City

1

2015 11 May Community member involved in turban conflict

France

Bobigny

2

2015 18 May Community member involved in turban conflict

France

Paris

3.1 2015 13 May International legal director, UNITED 3.2 2015 18 Nov SIKHS

skype

skype

UK

London

4

2015 18 May Lawyer formerly working at the ECtHR

France

Paris

5

2015 28 July Litigant

Switzerland Geneva

6

2015 28 July Lawyer in Ouardiri v Switzerland

Switzerland Geneva

7.1 2015 13 Oct

France

Strasbourg

7.2 2016 28 July Director, ECLJ 7.3 2017 12 Sep 8

2015 15 Oct

Lawyer and assistant, Jehovah’s Witnesses

France

Paris

9

2015 16 Oct

Lawyer, European Association of Jehovah’s Witnesses

Belgium

Brussels

10

2015 21 Oct

Legal counsel, ADF International

Austria

Vienna

11

2015 23 Oct

Legal counsel, ADF International

Austria

Vienna

12

2015 13 Nov Lawyer, close to Liberty (no formal affiliation)

UK

London

13

2015 17 Nov Lawyers involved in S.A.S. v France

UK

London

14

2015 9 Nov

UK

London

15

2015 23 Nov Lawyer, connected to Christian Concern

UK

Cambridge

16

2015 24 Nov Lawyer involved in Sikh cases at the ECtHR

UK

London

17

2015 24 Nov Lawyer, Open Society Foundations

UK

London

18

2016 28 July ECtHR judge

France

Strasbourg

19

2016 3 May

France

Paris

20

2016 26 May Lawyer involved in a headscarf case at the ECtHR

France

Paris

Advocacy officer, Islamic Human Rights Commission

Lawyer, Collectif contre l’Islamophobie en France

(continued)

208  Appendix (Continued) Year

Date

Type

Country

City

21

2016 28 July Legal expert, ECtHR

France

Strasbourg

22

2016 29 Sept Lawyer representing cases for Jehovah’s Witnesses at the ECtHR

France

Paris

23

2016 4 Nov

One representative of the Watchtower Society and one lawyer representing Jehovah’s Witnesses

United States

New York, skype

24

2016 8 Nov

Legal scholar, Human Rights Centre, University of Ghent

Belgium

Ghent

25

2016 9 Nov

Lawyer representing claims against a burqa prohibition at the ECtHR

Belgium

Brussels

26

2016 7 Dec

Lawyer, involved in religious freedom cases at the ECtHR

UK

London

27

2016 7 Dec

Lawyer, Minority Rights Group

UK

London

28

2017 28 Jan

Community member involved in turban conflict

France

Paris

29

2017 13 Sep

Representative of the Russian Orthodox Church

France

Strasbourg

30

2018 4 May

Lawyer involved in Kokkinakis v Greece

Greece

Athens

31

2020 7 Sep

Lawyer and applicant

Germany

Zoom

ADDITIONAL BACKGROUND INTERVIEWS 32

2014 May 11 Lawyer

Scientology France

Paris

33

2015 Oct 14

Jehovah’s Witnesses

Paris

34

2015 Nov 13 Barrister, co-founder of Christian Concern

Evangelical UK

London

35

2015 Nov 19 Representative of a progressive Jewish organisation

Jewish

London

36

2015 Nov 23 Legal counsel, ADF International

Evangelical skype

skype

37

2016 Dec 8

Legal scholar

Anglican

UK

London

38

2018 May 3

Humanist activist

Atheist

Greece

Athens

Lawyer

France

UK

Appendix  209 DATASET Koenig, M and Harms, L (2022) European Court of Human Rights Religious Litigation Dataset (1959–2019) (HUREL) Version 1.0. https://doi.org/10.7910/DVN/VAWUM6.

DOCUMENTATION ADF, Lautsi v Italy, third-party brief on behalf of 33 Members of European Parliament (7 June 2010) Baldwin, Clive (2008) ‘Intervention at the First Global Sikh Civil Rights Conference, 2008’ (13 December 2008): www.youtube.com/watch?v=KQlSQPAaQiA Borrego Borrego, Javier, ‘La Subsidiarité et la prise en compte du contexte culturel national au titre de la marge d’appréciation’ Presentation at the seminar titled ‘Les Symboles religieux dans l’espace public’ (Strasbourg, 29 April 2010) Bull, Benjamin, ‘Loopholes for Christians or a Bit of Common Sense?’ Townhall (5 September 2012): townhall.com/columnists/benjaminbull/2012/09/15/loopholes-forchristians-or-a-bit-of-common-sense-n897400. Carnogursky, Jan and the Alliance Defense Fund. (2011) Ladele and McFarlane v the United Kingdom, third-party brief CCFON and CLC (2010) ‘Response to the Equality and Human Rights Commission’s Consultation on the Equality Act 2010 Draft Non-Statutory Guidance’: www. christianconcern.com/sites/default/files/docs/ResponsetotheEHRCConsultationon DraftNon-StatutoryGuidanceDocuments.pdf Congress of Europe, ‘Message to Europeans’ (The Hague, 10 May 1948) Corley, F (unknown date) ‘Moldovan Authorities Continue to Refuse Recognition to Bessarabian Church’ Keston News Service Council of Europe (1956), Travaux Préparatoires, TP DH56(14) 16 August 1956 —— (2012) Brighton Declaration (20 April 2012): www.echr.coe.int/Documents/2012_ Brighton_FinalDeclaration_ENG.pdf Deutscher Bundestag (2020) ‘Kurzinformation: Mögliche Zusammenhänge zwischen privaten und staatlichen Akteuren und dem Europäischen Gerichtshof für Menschenrechte (EGMR)’ WD 2- 300 – 079/20, 29 September 2020 ECLJ (undated) ‘ECLJ participates in the International Conference on “Freedom of Faith: The Problem of Discrimination and Persecution of Christians” organized by Moscow Patriarchate’: eclj.org/eclj-participates-to-the-international-conferenceon-freedom-of-faith-the-problem-of-discrimination-and-persecution-of-christiansorganized-by-moscow-patriarchate —— (undated) ‘1998–2018. Quelques actions de l’ECLJ’: http://media.aclj.org/pdf/ Article-pour-les-20-ans-de-l’ECLJ,-décembre-2018.pdf —— (2010a) Lautsi v Italy, third-party brief, 1 June 2010 —— (2010b) Ligue des Musulmans de Suisse v Switzerland and Ouardiri v Switzerland, third-party brief, 22 October 2010 —— (2011) Ladele and McFarlane v the United Kingdom, third-party brief, 15 September 2011 —— (2012) ‘ECLJ Hosts American Law Students and Distinguished Speakers’: eclj.org/ eclj-hosts-american-law-students-and-distinguished-speakers

210  Appendix —— (2016) ‘Mayor’s Freedom of Conscience on Same-Sex Marriage: Complaint at the Human Rights Committee’: eclj.org/conscientious-objection/un/libert-de-consciencedes-maires-face-au--mariage-homosexuel---recours-au-comit-des-droits-de-lhomme —— (2017) ‘US Missionary Appeals to European Court of Human Rights over Russian Law’: eclj.org/religious-freedom/echr/us-missionary-appeals-to-european-court-ofhuman-rights-over-russian-law —— (2020a) ‘NGOs and judges at the ECHR, 2009–2019’: eclj.org/ngos-and-the-judgesof-the-echr?lng=en —— (2020b) ‘Putting an End to Conflicts of Interest at the ECHR’: eclj.org/geopolitics/ echr/mettre-fin-aux-conflits-dinterets-a-la-cedh?lng=en —— (2020c) ‘The label Christianophobia in Human Rights Law’: eclj.org/religiousfreedom/un/the-label-christianophobia-in-human-rights-law —— (2021a) ‘ECLJ Report on Judges & NGO: Press Review’: eclj.org/geopolitics/echr/ rapport-eclj-sur-les-juges--ong--revue-de-presse —— (2021b) Letter to the World Medical Association. media.aclj.org/pdf/ECLJ-Letterto-the-WMA-on-the-2021-Revision-of-its-Code.pdf ECLJ (2022) Hectic debates at the UN on the opaque financing of ‘UN experts’ revealed by the ECLJ reports: eclj.org/geopolitics.un. European Association of Jehovah’s Witnesses (2011) ‘Religious Freedom Concerns in Armenia’, Statement for the OSCE Human Dimension Implementation Meeting, Warsaw, 26 September–7 October 2011 (27 September 2011): www.osce.org/ odihr/82969?download=true European Court of Human Rights. (2022) Overview 1959–2021: www.echr.coe.int/ Documents/Overview_19592021_ENG.pdf Ghent Human Rights Centre (undated) SAS v France, third-party brief Jehovah’s Witnesses (2009) ‘All Witnesses Imprisoned for Conscientious Objection in South Korea Now Free’ (7 March 2019): www.jw.org/en/news/jw/region/south-korea/ All-Witnesses-Imprisoned-for-Conscientious-Objection-in-South-Korea-Now-Free/ —— (2018) ‘How Armenia Came to Recognize the Right to Conscientious Objection’ (15 February 2018): www.jw.org/en/news/legal/by-region/armenia/recognize-right-toconscientious-objection/ Khalsa Press (2008) ‘Report on First Sikh Global Civil Rights Conference’ (19 December 2008): www.panthic.org/news/123/ARTICLE/4618/2008-12-19.html Kishkovsky, Sophia, ‘Relations Warms between Russian Orthodox Church and Vatican’ New York Times (22 May 2009): www.nytimes.com/2009/05/22/world/europe/22ihtorthodox.html?module=ArrowsNav&contentCollection=Europe&action=keypress ®ion=FixedLeft&pgtype=article Kiska, Roger (2011) ‘The Threat to Religious Liberties and the European Institutions’: www.culturavietii.ro/2013/12/19/threat-religious-liberties-european-institutions/ Ministry of Foreign Affairs of the Russian Federation (2020) ‘Press release on the newly released report, NGOs and the Judges of the ECHR 2009–2019’ (15 April 2020): archive. mid.ru/en/web/guest/foreign_policy/rso/coe/-/asset_publisher/uUbe64ZnDJso/ content/id/4099232 Montgomery, John W (2001) The Repression of Evangelism in Greece. European Litigation vis-à-vis a Closed Religious Establishment (Lanham, MD, University Press of America) Montgomery, John and dos Santos, Alexander (2001) Oral submission on behalf of the applicants in Metropolitan Church of Bessarabia v Moldova (13 December 2001)

Appendix  211 O’Connell, Gerard, ‘Exclusive Interview: Antonio Spadaro on his Article about “The Ecumenism of Hate” in the US’ America. The Jesuit Review (14 July 2017): www. americamagazine.org/faith/2017/07/14/exclusive-interview-antonio-spadaro-hisarticle-about-ecumenism-hate-us Open Society Foundations (2011) ‘Unveiling the Truth: Why 32 Muslim Women Wear the Full-face Veil in France’ (New York, 2011) Open Society Justice Initiative (2010) Ouardiri v Switzerland, third-party brief, October 2010 —— (2012) SAS v France, third-party brief, 10 July 2012 Parliamentary Assembly of the Council of Europe, Written question No 747 to the Committee of Ministers, Doc 15095, 23 April 2020 Parliamentary debate on 11 May 2009: publications.parliament.uk/pa/cm200809/ cmhansrd/cm090511/debtext/90511-0017.htm; Parliamentary debate on 19 June 2009: publications.parliament.uk/pa/cm200809/ cmpublic/equality/090616/pm/90616s07.htm Puppinck, Grégor (2010) ‘Lautsi v Italy. An Alliance against Secularism’ L’Osservatore Romano, 28 July 2010 —— (2012) ‘The Case of Lautsi v Italy: A Synthesis’ 3 Brigham Young University Law 873 —— (2013) ‘Discrimination Against Christians?’ First Things (5 December 2013) —— (2016) ‘Comprendre l’objection de conscience’ La Nef n° 286 lanef.net/2017/11/05/ comprendre-lobjection-de-conscience/. —— (2017) ‘Conscientious Objection & Human Rights: A Systematic Analysis’ Brill Research Perspectives in Law and Religion 1(1) —— (2018) ‘La CEDH contre la liberté de conscience des maires.’ FigaroVox (18 October 2018): www.lefigaro.fr/vox/societe/2018/10/18/31003-20181018ARTFIG00185-la-cedhcontre-la-liberte-de-conscience-des-maires.php. —— (2021a) ‘Supprimer la clause de conscience à l’avortement est illiberal’ Valeurs Actuelles (15 February 2021): www.valeursactuelles.com/clubvaleurs/societe/supprimerla-clause-de-conscience-a-lavortement-est-illiberal/ —— (2020b) Avortement: trois judges de la CEDH sapent le droit à l’objection de conscience: eclj.org/conscientious-objection/echr/avortement-trois-juges-de-lacedhsapentle-droit-a-lobjection-de-conscience ? lng=en. Puppinck, Grégor and Nicolas Bauer (2021) ‘Links & Conflicts of Interest at the ECHR in 2020’: https://eclj.org/geopolitics/echr/liens-et-conflits-dinterets-a-la-cedh-en-2020. Puppinck, Grégor and Wenberg, Kris J (2010) ‘Legal Memorandum. ECHR – Lautsi v Italy’ ROC, Department for External Church Relations. (2009) ‘Archbishop Hilarion’s Letter to Vatican Secretary of State concerning the European Court’s Decision to Ban Christian Symbols in Italian Schools’: mospat.ru/en/2009/11/27/news9297/ —— (2009) ‘Patriarch Kirill Supports Italian Government over European Court’s Decision to Ban Christian Symbols in School’: mospat.ru/en/2009/11/26/news9194/ —— (2011) ‘Italy’s Ambassador to Moscow thanks Moscow Patriarchate for Support in Getting the Case of Lautsi Reviewed’: mospat.ru/en/2011/06/23/news43653/ Sang-Hun, Choe (2018) ‘In landmark ruling, South Korea’s top court acquits conscientious objector’ New York Times (1 November 2018): www.nytimes.com/2018/11/01/world/ asia/south-korea-conscientious-objectors.html

212  Appendix Spadaro, Antonio and Figueroa, Marcelo, ‘Evangelical Fundamentalism and Catholic Integralism: A Surprising Ecumenism’ La Civilità Catholica (13 July 2017): www. laciviltacattolica.it/articolo/evangelical-fundamentalism-and-catholic-integralism-inthe-usa-a-surprising-ecumenism/ UNITED SIKHS ‘Right to Turban Campaign’: film: www.unitedsikhs.org/rtt/ UNITED SIKHS (2008) ‘Adoption of Recommendations and Declarations’. First Global Sikh Civil Rights Conference: www.unitedsikhs.org/rtt/sikhconf/ AdoptionOfRecommendationsAndDeclarations.pdf —— ‘5th Global Sikh Civil Rights Conference in France.’ (25 August 2013): www. eifrf-articles.org/UNITED-SIKHS-5th-Global-Sikh-Civil-and-Human-RightsConference-in-France_a54.html UNITED SIKHS and MRG (2008) Shingara Mann Singh v France, expert opinion (December 2008) Valeurs Actuelles (2020) ‘Une centaine de juristes lance un appel pour l’indépendance et l’impartialité de la CEDH’ (7 May 2020): www.valeursactuelles.com/monde/une-centainede-juristes-lance-un-appel-pour-lindependance-et-limpartialite-de-la-cedh/ Vatican (1965) ‘Dignitatis Humanae. On the Right of the Person and Communities to Social and Civil Freedom in Matters Religious Promulgated by His Holiness Pope Paul VI’ Watchtower Bible and Tract Society (1950) ‘Defending and Legally Establishing the Good News’ (New York, 32) Weiler, Joseph (2010) ‘Oral Submission on Behalf of Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, the Russian Federation and San Marino – Third Party Intervening States in the Lautsi Case’ (30 June 2010): www.youtube.com/watch?v=ioyIyxM-gnM Zupančič, Boštjan (2020) ‘[Le scandale Soros] Un ancien juge de la CEDH réagit après les révélations de Valeurs actuelles.’ Valeurs Actuelles (4 March 2020): www. valeursactuelles.com/politique/le-scandale-soros-un-ancien-juge-de-la-cedh-reagitapres-les-revelations-de-valeurs-actuelles/

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Index abortion, 15, 115, 184, 186 advocacy groups see NGOs AIRE Centre, 191 Aktionsbündnis Muslimischer Frauen, 170 Alliance Defending Freedom (ADF), 44, 73, 74, 121, 128, 142, 178, 179–80 Alter, K, 50–1 American Center for Law and Justice (ACLJ), 1, 72–3, 75–6, 117, 125, 140 American Civil Liberties Union (ACLU), 71, 74, 107 Amir-Moazami, S, 86, 164, 167, 169 Amnesty International, 2, 35, 67, 191 Anagnostou, D, 9, 20, 24 Annicchino, P, 123 Aquinas, Thomas, 184–5 Armenia: Jehovah’s Witnesses, 151–3 atheists, 15, 113, 138, 141, 198 Austria, 56, 190, 201 Azerbaijan, 153, 158 Baldwin, Clive, 107–8 Baptist-Burqa-Network, 11 Bates, E, 51 Beaman, Lori, 100, 140–1 Becket Fund for Religious Liberty, 144 Belgium: burqa cases, 160 ECHR and, 51 ECtHR cases, 158, 160 headscarves, 159, 161 Benedict XVI, Pope, 120 Benford, RD, 25, 26 Berlusconi, Silvio, 118 Beyer, P, 128–9 Bindmans, 96 blasphemy, 11, 56, 132, 201 Bob, Clifford, 11, 74–5, 114–5, 121, 175 Borrego Borrego, Javier, 131, 191 Bosnia Herzegovina: ECtHR cases, 158 Bourdieu, Pierre, 13, 18, 30–4, 35, 37, 98, 147 Bull, Benjamin, 73, 178

Capital: judicial, 141–5 political, 127–31 symbolic, 69–77, 92–99, 117–26 Canada: Jehovah’s Witnesses, 63 Sikhs, 88, 89, 94, 101 Casanova, J, 10, 123, 124 Catholicism see also Italy 2nd Vatican Council, 130 alliances, 15 case selection, 42 conservative alliances, 117–26, 123 discriminatory policies, 176–7 human rights and, 130, 184–5 social doctrine, 80 subsidiarity principle and, 131 challengers, 85–6, 99–111 China, 11 Chirac, Jacques, 93 Christian Action Research and Education, 178 Christian Broadcasting Network, 72 Christian Concern for Our Nation (CCFON), 178–9 Christian conservatives see also Evangelicals; specific advocacy groups; specific churches anti-discrimination policies and, 149, 175–92 clash of rights, 176–82 framing strategies, 179–80 neutrality issue, 189–92 new legal boundaries, 182–9 Christian Right, 70–72 counter-majoritarianism, 113–17, 113–47, 121 culture wars, 115, 147 defending incumbency, 126–35 claiming judicial orthodoxy, 131–5 national identity and religion, 127–31 federating symbolic capital, 117–26 Muslims and, 136, 137–9 power, 113–47

230  Index privileges, 114 rationales, 19 recursive mobilisation, 19, 148–9 rise in judicial capital, 140–5 strategy, 116 symbolic boundaries between religious groups, 135–41 third-party interventions in ECtHR, 142–7 transnational alliances, 117–26 cracks and tensions, 123–6 Christian Institute, 178 Christian Legal Centre (CLC), 178–9 Christianity: cases, 41 Christian legal habitus, 71 conservatives see Christian conservatives ECHR Art 9 and, 54–5 European identity and, 10 Evangelicals see Evangelicals human rights bias, 10 Churchill, Winston, 50 Cichowski, RA, 59, 62 Collectif contre l’Islamophobie en France (CCIF), 44, 145, 169–70, 171, 173–5 conscientious objections, 1, 14, 15, 19, 42, 66, 150–7, 183–9 contraceptives, 1, 2 Côté, P, 65 Council of Europe: Armenian membership, 151 Brighton Declaration (2012), 59 Parliamentary Assembly, 121, 191 role, 8 Russian exclusion, 201, 203 Court of Justice of the European Union (CJEU): access to, 172 ECtHR and, 202–3 equality litigation, 176, 202 headscarves, 174–5, 198 mobilisation strategies and, 43 Covington, Hayden Cooper, 64–5 Czech Republic: vaccination, 185–6 de-privatisation of religion, 10–12 Dehousse, Fernand, 50 Denmark: ECHR and, 51 Dezalay, Y, 34, 37, 43, 44–5 discrimination: Christian conservative pushback, 149, 175–92 clash of rights, 176–82 framing strategies, 179–80

neutrality issue, 189–92 new legal boundaries, 182–9 gender see gender equality LGBT rights, 176–89 diversity: ECtHR and, 194–8 judicialisation, 3 sovereignty and, 160 doxa, 31, 162–69, 193 Duranti, M, 54 Dusenbery, VA, 89 Elliott, MA, 80 European Centre for Law and Justice (ECLJ): ACLJ and, 76–7 agenda, 73, 75, 76, 125–6 anti-discrimination and, 176, 176–89, 178 Central and Eastern Europe, 76, 77 Christian conservative advocacy group, 1 ‘Christianophobia’ and, 188–9, 202 defending incumbency, 126–35 ECtHR cases, 204–5 guardian of judicial orthodoxy, 132–5 interviews with, 44 judicial capital, 144 origins, 72, 73, 76 symbolic boundaries, 136–40 transnational conservative alliance, 117–23 European Convention on Human Rights (ECHR) see also European Court of Human Rights living instrument, 58 origins, 50–1 post-Soviet members, 56, 58 privacy rights, 168 religious freedom and, 47–8 Christian influence, 54–5 ICCPR and, 105 liberal framing, 77–83, 195–6 negotiations, 52–5 right to liberty and security, 161 transformation, 49–62 European Court of Human Rights (ECtHR) see also specific litigation subjects access to court, 24, 172, 182 backlash from within, 192 bias, 102, 145, 171, 189–92 Christian conservatives and, 141–7 discriminatory policies, 176–89 neutrality issue, 189–92 CJEU and, 202–3 claims against religion, 113–17

Index  231 counter-majoritarianism, 113–17, 121 direct access, 57 direct victim status, 139 early strategies, 48–56 framing religious freedom, 77–83 functioning, 57 gender, sexuality and reproduction areas, 148–9 Human Rights Committee and, 103, 155, 198, 203 judges, 38, 58, 121, 135, 189–92 Kokkinakis v Greece, 47–8 margin of appreciation see margin of appreciation mobilisation strategies and, 36, 43 NGOs and, 12 post-1990s changes, 56–62 proportionality, 159, 180, 181, 186 reasonable accommodation concept, 179–80, 181 religious diversity and, 194–8 religious freedom cases, 14, 41–2, 44 see also specific religious groups 1953–95, 55 ECLJ involvement, 204–5 increase, 59 pre-1990, 158 religious group breakdown, 60 success rates, 206 rights revolution, 20 role, 3–4, 9, 34 secularism and, 87 successful cases 1959–2019: religious group breakdown, 154 symbolic capital, 48, 69–77 third-party interventions, 142–7 European Union: CJEU see Court of Justice of the European Union Race Directive, 108 role, 8 euthanasia, 134, 184 Evangelical Alliance, 178 Evangelicals: alliances, 11, 15, 124, 125, 126 case selection, 42 definitions, 69 discriminatory policies, 178–82 ECtHR cases, 44 judicial activism, 69–77, 115 pioneering cases, 15 proselytism, 80

scholarship, 27–8 symbolic capital, 69–77 Evans, M, 52 Eynde, L van den, 143 feminism, 23, 165, 168, 201 Ferrari, Silvio, 8 field theory: case selection, 41–2 capital, 30–1, 34–5 challenger, 13, 33, 38 doxa, 31, 32, 33, 34, 35 dynamics, 43–5 governance unit, 16, 33–4 habitus see habitus incumbent, 13, 33, 38 legal mobilisation and, 199–200 methodology, 40–5 nested fields, 36–9 power relations, 34–6 relative autonomy, 30, 40 religious freedom field, 39–40 social and strategic action fields, 30–4 Fligstein, N, 32–3, 36, 38, 39, 85, 109, 114, 131 Fokas, Effie, 10, 60–1, 121, 144, 175 framing strategies, 25–7, 28, 32, 35, 77–83, 166–9, 179–80, 195–7 France: burqa cases, 90, 159, 160–1, 165–6, 168, 171, 173–4, 198 case selection, 42 ECHR and, 51 ECtHR cases, 158 headscarves, 2, 85, 160, 161, 173–4 Muslim advocacy groups, 169–70 pharmacists, 1, 2 secularism, 91, 99–103, 106–7 Sikhs, 18, 42, 84–5, 86–7, 91–5, 103, 110–11 Francis, Pope, 124 freedom of speech, 16, 41, 63, 65, 71, 72, 82–3, 201 Galembert, Claire de, 3, 161 Gandhi, Indira, 88 Garth, BG, 34 Gasperi, Alcide de, 50 gay marriage, 15, 42, 73, 115, 176, 177, 182, 186 gender equality: burqa and, 164, 165 Christian conservatives and, 175–6 clash of rights, 176–82

232  Index ECtHR cases, 23, 148–9 intersectional discrimination, 166 Germany: CJEU equality litigation, 202 ECHR and, 51, 191–2 ECtHR cases, 158 headscarves, 172–3 hunting, 185 Jehovah’s Witnesses, 55–6, 150–1 male circumcision, 164 Muslim advocacy groups, 170 global movements, 2, 77 globalisation, 10–11 Goffman, Erving, 25 Goldhaber, Michael, 47, 83 Governance of religious diversity ambivalence of, 114–5, 148, 160, 194–8 definition, 3 judicialisation of, 3 literature on, 7–12 state-church relations, 8 transnationalisation of, 3 Greece: case selection, 42 Christian conservatives, 75 ECHR and, 51 Evangelicals, 69, 75, 78, 79, 125 Jehovah’s Witnesses, 9, 47–8, 60–2, 66–8, 152 framing religious freedom, 78, 79, 81, 82, 83 Muslim ECtHR cases, 157, 160 religious oaths in courts, 113 habitus, 18, 31–3, 35, 49, 62–9, 71, 133, 200 Hacker, HJ, 72, 73, 180 hate speech, 74–5 Haynes, J, 11 headscarves: Belgium, 159, 161 cases, 1–2 CJEU and, 174–5, 198 ECtHR cases, 109–10, 158, 159, 160 advocacy groups, 162 France, 2, 85, 160, 161, 173–4 Germany, 172–3 Muslim advocacy groups and, 170–1 Muslim strategies, 149 Switzerland, 85, 136 Turkey, 85, 160 Helsinki Committees, 191 Hirschl, Ran, 3, 131

homosexuality see gay marriage; LGBT rights human dignity, 50, 120, 130, 165 Human Rights Centre (University of Ghent), 2, 44, 163, 165–6, 167–8 Human Rights Committee (CCPR): Christian conservatives and, 186 ECtHR and, 103, 155, 198, 203 framing strategies, 107 Jehovah’s Witnesses and, 149, 150, 152, 154–6 Muslims and, 157, 173–4, 193 Sikhs and, 91, 102–3, 105, 108, 174 strategic use of, 36 Human Rights Watch, 107, 191 humanists, 15, 42, 113, 162, 198 Hunter, JD, 123 Iceland, 51 identity: European identity and Christianity, 10 national identity and religion, 127–31 Sikhs, 85–6, 88–94, 97–9, 104–6, 108–9 India, 88 individualism, 8, 47, 49, 77, 80, 81, 83, 84, 106, 120, 129, 130, 195 International Commission of Jurists, 191 international courts see also specific courts increased power, 38 legitimacy, 37 International Covenant on Civil and Political Rights (ICCPR), 105, 107, 155–6 see also Human Rights Committee (CCPR) International Youth Sikh Federation, 89 Interrights, 191 Islam see Muslims Islamic Human Rights Commission (IHRC), 44, 170, 172 Islamophobia, 140, 165, 166, 170, 188, 198 Italy: case selection, 42 conservative alliance, 118–22 crucifixes in schools, 19, 113–17, 129, 137, 141–2 ECHR and, 51 Evangelicals, 70 national identity and religion, 128 Sikhs, 106 Jehovah’s Witnesses: case selection, 42 conscientious objection, 150–7

Index  233 development, 63–5 ECtHR cases, 44, 150–4 litigiousness, 60, 65–9 repeat litigation, 150–4, 156 expansion of religious freedom and, 150–7 ECtHR litigation, 150–4 worldwide, 154–7 Germany, 55–6 Greece, 9, 47–8, 60–2, 66–8 framing religious freedom, 79, 81, 82, 83 litigation collective legal habitus, 62–9 Europe, 65–9 litigiousness, 60, 65–9, 193 pioneering cases, 15 Russia, 68 strategic shift, 19, 149 Joppke, C, 10, 86, 128, 129 Judicialisation of politics, 3, 12 of religious communities/movements see specific religious groups of state-church relations, 3, 9 see also governance of religious diversity Khalistani movement, 88, 89 Kirill, Patriarch, 118–19, 120, 125 Knorr, Nathan Homer, 65 Koenig, Matthias, 8, 10, 108, 121, 161 Landi, Antonio, 119 Lawyers Christian Fellowship, 178 Leachman, G, 104 legal mobilisation see also specific religious groups access to courts, 23–4, 28 conceptual blind spots, 27–9 field theory, 25, 30–40, 199–200 legal opportunity structure (LOS), 23–4, 28 meaning, 22 perspective changes, 29–40 resources, 23 social movements, 20–46 socio-legal concepts, 23–7 trajectories, 14–16 transnationalisation, 7–12 legal opportunity structure (LOS), 23–4, 28, 48, 62 Lehoucq, E, 22 Leo XIII, Pope, 80

LGBT rights: Christian conservatives and, 176–89 ECtHR and, 148 Evangelicals and, 74–5 Liberty, 165 Ligue hellénique pour la defense des droits de l’homme, 66–7 Lindkvist, L, 80 living together doctrine, 159, 160–1, 171 logic of appropriateness, 25 Luxembourg: ECHR and, 51 McAdam, D, 24–5, 32–3, 36, 38, 39, 85, 109, 114, 131 McCrudden, Christopher, 178 Madsen, MR, 37, 43, 44–5 Malik, Charles, 80 Mancini, S, 121 March, JG, 25 margin of appreciation, 56, 102, 130–1, 137, 144, 160–2, 181 Marx, Karl, 31 Maxwell-Fyfe, David, 50 methodology, 40–6, 207–8 expert interviews, 43–4 HUREL-dataset, 41, 43 Minority Rights Group (MRG), 44, 103, 107, 108 Moldova: Evangelicals, 69, 75, 82, 125 Montgomery, John Warwick, 75–6, 81–2 Muslims: advocacy groups, 157, 162–9 Muslim groups, 169–75 blasphemy, 56, 132, 201 burqa/niqab, 2, 42, 149, 159–61, 160–1, 163–9, 171, 173–4, 198 Christian conservatives and, 136, 137–9 dress codes, 21 ECtHR and, 16, 87 advocacy groups, 162–9 marginal position, 149 repeat failure, 157–62 secular-liberal doxa and, 162–9 third party interventions, 143, 144, 162–9 turning back on, 169–75 framing strategies, 166–9 headscarves see headscarves hijab, 90, 91, 100, 109, 159 Islamophobia, 140, 165, 166, 170, 188, 198 marginalised minorities, 167–9 race discrimination perspective, 140, 164, 198

234  Index Sikhs and, 86, 109–10 strategic shift, 19 symbolic capital and, 171 nationalism, 88, 89, 98, 120 NeJaime, D, 177, 179 Netherlands: ECHR and, 51, 53 NGOs see also individual NGOs; specific religious groups access to ECtHR, 57 alliances, 6, 11 court cases, 44 dynamics, 6 framing strategies, 35 judicial activism, 115 legitimacy, 37 objectives, 35, 40 role, 5 social change and, 27 support structures, 23 surge in faith-based NGOs, 11 third-party interventions in ECtHR, 142–7 transnationlisation of religious freedom, 12–14 North Korea, 155 Norway: ECHR and, 51, 53–4 Olson, JP, 25 open society, 61, 74, 134 Open Society Foundations (OSF), 2, 35, 44, 133–4, 139–40, 164, 175, 191 Open Society Justice Initiative, 139, 140, 163, 164, 166, 167–8 Organisation of Islamic Cooperation (OIC), 11, 132, 176–7 Ouardiri, Hafid, 138–9 Pakistan, 88 Pedriana, N, 25 Pius XI, Pope, 80 Popper, Karl, 61 privacy rights: ECHR, 168 proselytism, 15, 42, 47, 48, 61, 64, 69, 75, 79, 80, 81, 136–7, 141 public order, 52, 54, 159, 161 Puppinck, Grégor see European Centre for Law and Justice Putin, Vladimir, 203 Reformation, 7 Regent University, 72

religious freedom: defining field, 39–40 diversity and, 194–8 framing strategies, 195–7 future research, 201–3 liberal frame, 77–83, 195–6 transnationlisation, 3–4, 7–14 reproduction issues, 1, 123, 148–9, 176 Richardson, JT, 65 right to liberty and security: ECHR, 161 rights revolution, 20 Robertson, Pat, 72 Roma, 107 Romania, 144 Rousselet, Kathy, 119, 130 Russell, Charles Taze, 63 Russia: conservative Christian alliances, 119–21 Council of Europe and, 201, 203 ECHR and, 192 Evangelicals, 126, 201–2 gender discrimination, 23 invasion of Ukraine, 125, 203 Jehovah’s Witnesses, 68 Pussy Riot, 190, 201 Religious Freedom Law (1997), 125 religious privileges, 125 US relations, 125 Russian Orthodox Church (ROC): conservative alliances, 11, 114, 115, 117–26, 197 discriminatory policies, 176–7 human rights and, 130 Pussy Riot and, 190 Ukraine policy, 203 Rutherford, Joseph Franklin, 64 Sadurski, W, 58 same-sex marriage, 15, 42, 73, 115, 176, 177, 182, 186 schemata of interpretation, 25 secularism: alliance against, 114, 116–17, 136 concepts, 139 culture, 8 ECtHR bias, 87 France, 99–103 secular-liberal doxa, 195–6 Muslims and, 162–9 Sikhs and, 18, 86, 99–103 Sekulow, Jay, 72 sexuality see LGBT rights

Index  235 Shani, Giorgio, 88, 89–90 Shishkov, A, 123 Siegel, R, 177, 179 Sikh American Legal Defense and Education Fund, 89 Sikh Coalition, 89 Sikhs: alliances, 87, 107 case selection, 42 challengers, 85–6, 99–111 community priorities, 103–11 diaspora politics, 85, 87–99 ECtHR and, 16, 86–7, 91–5, 98–9, 101–3 ethno-nationalism to human rights, 88–92 France, 18, 84–5, 86–7, 91–2, 103, 110–11 identity, 85–6, 88–94, 97–9, 104–6, 108–9 kirpan, 89, 94, 97, 101 legal tactics, 85–6, 171–2 local-transnational tensions, 103–11 Muslims and, 86, 109–10 Punjab violence, 88–9 secularism and, 18, 86, 99–103, 106–7 support structure, 18 symbolic capital, 90, 92–9 turban, 84–5, 86, 89, 91, 95, 98, 106, 111 United Nations and, 102–3, 108 Singh, Manjit, 106 Slavic Centre for Law and Justice (SCLJ), 72, 126 Snow, DA, 25, 26 social movements see also NGOs empowerment cycle, 20–1 legal mobilisation, 22–9 blind spots, 27–9 field theory, 20–30 socio-legal concepts, 23–7 rights revolution, 20 sociological concept, 17, 20–46 South Korea: Jehovah’s Witnesses, 155–6 sovereignty: Christian conservatives and, 131, 137 culture and, 200 ECHR and, 47, 49–62 ECtHR and, 3–4 margin of appreciation and, 161 Muslims and, 161, 175 religious diversity and, 160 Spaak, Paul-Henri, 49–50 Spadaro, Antonio, 124

Spain, 143–4, 158 Stoeckl, Kristina, 119, 122–3 Stoker, Valerie, 101 subsidiarity principle, 59, 131 Sundstrom, LM, 23 Sweden: church taxation, 56, 113 ECHR and, 51, 52, 53 Evangelicals, 74–5 Switzerland: ECtHR cases, 158, 161 headscarves, 85, 136 minarets, 138–9, 162–3 Muslim dress codes, 161 symbolic capital, 18, 48, 69–77, 90, 92–9, 112, 117–26, 134, 135, 171 Talbot, I, 88 Tarrow, S, 24–5 taxation: church taxation, 56, 113 Taylor, WK, 22 Teitgen, Pierre-Henri, 50 Thandi, S, 88 Thomas, George, 80, 107 Thornton, Joel, 73 Tilly, C, 24–5 Torpey, J, 10 transnationlisation of religious freedom: development, 7–12 ECtHR, 3–4 global de-privatisation of religion, 10–12 institutions, 8–10 NGOs, 12–14 Trump, Donald, 72 Turkey: ECHR and, 51, 52, 53 gender discrimination, 23 headscarves, 85, 160 Jehovah’s Witnesses, 156 Muslim country, 157 Ukraine: Russian invasion, 125, 203 United Kingdom: case selection, 42 Christian conservatives bakery case, 182 discriminatory policies, 177–89 counter-terrorism, 172 ECHR and, 51, 53 Muslim advocacy groups, 170 Race Relations Act (1976), 108 Sikhs, 88, 94, 96

236  Index United Nations: alliances, 11 Christian conservatives and, 131–2, 140 Human Rights Committee see Human Rights Committee religious freedom and, 107 role, 8, 16 Sikhs and, 102–3, 108 UNITED SIKHS, 44, 85, 89–100, 102, 105, 107–11, 112, 145 United States: 9/11, 89–90 Christian conservatives, 125 culture wars, 15, 69–77, 115 Evangelicals, 69–77, 115, 180, 182 freedom of speech, 82–3 International Religious Freedom Act 1998, 77 Jehovah’s witnesses, 67 Russian relations, 125 Sikhs, 88, 89–90, 91, 107 Universal Declaration of Human Rights (UDHR): religious freedom, 52 universalism, 8, 9, 10, 49, 77–8, 131, 195

vaccination, 185–6 Vanhala, L, 25 Vatican, 117–18 Vauchez, A, 43, 133 Vegleris, Phédon, 66–7 venue shopping, 100, 103, 112 Wacquant, L, 13, 31–2, 147 Watchtower Society, 63–8, 78, 94, 151–2, 154, 156 Weiler, Joseph, 122, 127, 131, 136 World Congress of Families (WCF), 123, 125 World Medical Association, 189 World Sikh Council, 89 World Sikh Organization, 89 World Vision, 77 Wuthnow, R, 70 Yuval-Davis, N, 92–3 Zemans, Frances, 22 Zupančič, Boštjan, 191