Twelfth International Conference on Religion & Spirituality in Society

Abstract

The freedom of religion, which encompasses the freedom to practice one’s religion without fear or hinderance is one of the most fundamental rights that people enjoy today across all the western world. While this right is enshrined in documents, the actual manifestation of one’s religion has been the basis for litigation for decades, with courts from a variety of jurisdictions being the final arbiter of the interpretation of this right. Courts have long wrestled with this right and how to ensure that the adherent’s manifestation is not hindered or that each adherent is able to manifest that right equally. While noble, the best possible outcome has fallen short. Recent events has brought to the surface again tensions between a secular state and freedom of religion. The European Court of Human Rights (ECtHR) uses a proportionality test and the doctrine of margin of appreciation to determine whether there has been a violation of the ECHR Art. 9 and 10. This approach has led to the proportionality and margin of appreciation being used to favor certain religions and certain religious adherents not able to practice their religion as freely as other religions. In this study, I argue that the manifestation under the ECHR of certain non-Christian religions is extremely inconsistent and this is a direct result of the Courts ruling and reasoning.