Reconciling Pluralistic Democracy and Religious Freedom in European Human Rights Law: A Jurisprudential Balance in Search of Principles

Abstract

Abstract This article examines some of the structural and systemic issues associated with the relationship between pluralistic democracy and religious freedom within the jurisprudence of the European Court of Human Rights. These include the problematic aspects of the doctrine of State neutrality, and the function of secularism in the understanding of “democratic society”. It assesses the principal jurisprudential mechanisms utilised in religious freedom cases—namely, the notion of “public order”, the association of secularism with gender equality, the principles of the “minimum requirements of life in society”, and the margin of appreciation in the context of democratic legitimation. As the article demonstrates, the Court’s approach to negotiating the appropriate balance between pluralistic democracy and religious rights is marred by a reluctance to clearly elucidate the principles involved in the implementation of democratic values under the Convention when considering the means of protecting and limiting the freedom of religion.