Rights not working? Grassroots-level impact of the European Court of Human Rights on religion

The ECtHR for non-legal dummies

I will start a little autobiographically, explaining my own path into the study of the ECtHR. I knew precious little about that Court before news started trickling into my consciousness of two particular cases that had arisen before it. The trajectory that news took in reaching me is noteworthy, as my radar was not in tune with the Court, or with legal developments more generally, or anything of the like. In the first case, that of Eweida and Others v. UK, ² what brought the case to my attention were reports of then Archbishop of Canterbury Rowan Williams declaring that if British Airways would not reconsider its policy of banning its staff from wearing visible religious symbols, the Church of England would consider selling its shares in the company. I found this rather curious and in fact tantalizing: a leader of a national church threatening to sell shares in a company over a legal battle in which it was not directly involved, at least not legally speaking.

The second case which piqued my interest in the Court is that of Lautsi v. Italy. In a 2009 decision, the Court ruled in favour of an atheist parent who claimed that the presence of the crucifix on Italian school walls was a violation of her right to educate her children in accordance with her own religious or philosophical beliefs (a right enshrined in the European Convention on Human Rights, which the ECtHR protects). In this case, while speaking at a conference in Greece on Religion in the Public Sphere, where another speaker on the panel addressed the Lautsi case, Lautsi suddenly became a topic of research for me when a bishop in the audience declared during the Q&A that ‘we must treat our religious symbols as national symbols in order to protect them from Europe’. This too I found incredibly intriguing: first, because of that bishop’s sense that religion needed ‘protection’ from Europe (conveying such a message was surely an unintended consequence of the Court’s decision, and one with profound sociological and political implications). It was also intriguing because of the bishop’s apparent certainty that the decision would be overturned: he felt sure that nationalizing religious symbols would save them from the limitations that courts can place on purely religious symbols. (Parenthetically, such rebranding of religion as culture, for the purposes of protecting religion from legal limitations, is explored in highly recommended work by Lori Beaman (2020).)

Third, and independently from the bishop’s perspective, the Lautsi case fascinated me because I imagined a world in which that decision would not be overturned, and then in theory all religious icons should be removed from Greek public schools, and that was certainly a world in which many at the grassroots level in Greece would mobilize against the decision, and against the Court’s influence on such a nationally sensitive matter and, ultimately, against such a perceived attack on national sovereignty by ‘Europe’ (with ‘Europe’ in quotation marks meaning the European Union (EU), even though the ECtHR is not an EU institution; that distinction is lost on the Greek grassroots actors in this imaginary scenario, as it tends to be lost on many grassroots actors in general in the real world).

In the end, we were ‘saved’ from this imaginary scenario by the grasstops mobilizations which took place in the wake of the Court’s decision in 2009: by grasstops mobilizations, I mean those that take place at the transnational level, seeking to influence how the Court handles certain issues (Fokas, 2016). In the case of Lautsi, after an unprecedented number of third-party interventions to the Court (33 Members of the European Parliament (MEPs), 10 nongovernmental organizations (NGOs), and – most importantly for the Court – 10 national governments), nearly all of which intervened in favour of the Italian state, the Court rather radically reversed its decision. ³

With Lautsi I was hooked, and wanted to study both grassroots and grasstops mobilizations in the wake of ECtHR judgements. And as I started reading a broad range of its judgements to do with religion, I found that, in fact, case law is rather accessible, and one does not need to be a lawyer, or have any experience studying law, in order to read and understand it. One also need not be a legal expert to appreciate how important the ECtHR is for religious pluralism in Europe. The Court provides a valuable resource in allowing any individual residing in any of the 47 member states within the Court’s jurisdiction to take that state to the ECtHR over a religion-related rights claim. Once a right has been established there, that right may be pursued by any of the over 800 million residents of those 47 states. The aim to reach a shared minimum level of protection of religion-related rights across this vast geographic scope is rather remarkable.

And the progress brought about by the ECtHR in the field of religion-related rights is also remarkable. Through a broad range of cases in which the Court has found states in violation of religion-related rights – whether these be related to manifestation of belief, establishment of places of worship, legal recognition of religious groups, conscientious objection, religious education, just to name a few – the Court has served as a prod for significant legal change in the form of better protection of religion-related freedoms across the 47 Council of Europe states. ⁴ Thus, in closing this discussion on ‘the ECtHR for non-legal dummies’, let me note that the reach of that court is all around us, with some imprint on nearly every sociology of religion phenomenon we might observe, including English Archbishop’s threats and Greek bishop’s strategic plans.

Given the strong evidence that in fact rights are often working in the aftermath of ECtHR religion-related case law, in terms of the direct effects of prompting legal change, what is happening in terms of case law’s indirect effects at the grassroots level? This is the guiding question for the Grassrootsmobilise research programme.

Grassrootsmobilise aims and methods

With Lautsi as the inspiration, a selection of North American socio-legal scholarship provided the basis for the theoretical framework underpinning the Grassrootsmobilise research programme. This scholarship includes the work of Michael McCann on Rights at Work, as well as that of Marc Galanter on the ‘radiating effects’ of courts. According to Galanter (1983), ‘the messages disseminated by courts do not . . . produce effects except as they are received, interpreted, and used by (potential) actors’ (p. 136). ⁵ This suggests that it is incredibly important to look at what’s going on outside of courts, after decisions are taken, and in fact before the next relevant decision is taken by a court, and to see the various ways social actors at the grassroots level are impacted: to what extent do court decisions influence social actors’ conceptions of their rights, their discourse about those rights, and their mobilizations in pursuit of those rights, whether through legal or political means?

Relevant North American socio-legal scholarship elaborates on such radiating effects of US Supreme Court case law. One need not read such scholarship though to have some general sense of the mobilizing potential of that court in the field of religion-related case law: the activation of religious groups against same-sex marriage and pro the overturning of Roe v. Wade on abortion are, I think, all too familiar to the generally informed European public. Less familiar but no less important is the mobilization of NGOs around such case law: in any given US Supreme Court case to do with religion, it is normal to have an excess of 50 interventions to the case (called Amicus Briefs in the American context) by NGOs with a vested interest in the case; as mentioned earlier, in the ECtHR context, in the record-breaking Lautsi case, there were only 10 NGO interventions.

Thus, our basic objective in Grassrootsmobilise was to understand the indirect or radiating effects of the ECtHR religion-related case law, and we set out to achieve this objective through in-depth, mainly qualitative but also quantitative, research in four different countries – Greece, Italy, Romania, and Turkey. All of these countries have strong relationships between religion and national identity, and between religion and state, render highly salient, in theory at least, the Court’s pronouncements that bear the potential to influence the public place of religion. Meanwhile the selection of cases represents a spectrum of levels of democratization and Europeanisation, with Italy and Greece being rather more consolidated democracies (and with membership in the European unification project established in 1958 and 1981, respectively), and Romania and Turkey less consolidated democracies (and with more recent membership in the EU for Romania in 2007 and a continued negotiation process with Turkey). Thus, Grassrootsmobilise was poised to bring to light the significance of each of these dimensions (relationships between religion, national identity and state, democratization, and Europeanisation) when it comes to the impact of the ECtHR on the ground.

We employed five main different research methods: (1) semi-structured interviews with representatives of religious minority and majority groups, of conscience-based groups (secularist, humanist, and atheist), representatives of NGOs, lawyers engaging with religion-related issues, and relevant government officials (approximately 200 in total); (2) a study of references to the Court’s case law by Mass media; (3) a study of references to the Court’s case law within National High Courts; (4) a focused study of the mobilizations prior to and in the aftermath of a single ECtHR religion-related case against each country under study; and (5) a study of grasstops mobilizations around religion-related case law. To narrow the scope, we focused on two issue areas highly salient in all cases (religion in the educational arena, and legal status of religious minorities); we also paid special attention to lesbian, gay, bisexual, transgender, and intersex (LGBTI)–related issues (in Greece, Italy, and Romania), and conscientious objection (in Turkey).

We set out with the reasonable assumption that mobilizations around ECtHR religion-related case law presuppose social actors’ awareness of the Court and that case law. Therefore, our first step in Grassrootsmobilise was to establish how well aware grassroots social actors are of both the latter. For this, we administered, in the course of the interviews, what we called an ‘awareness non-test test’ (Fokas, 2017). We were very concerned that our interviewees did not feel like they were being tested on their personal knowledge, but at the same time we needed to develop some sense of how familiar they were with the Court and its case law relevant to religion. Thus, we built into the interview guide six particular ECtHR religion-related cases: Kokkinakis v. Greece (1993), Lautsi v. Italy (2009, 2011), Folgero v. Norway (2007), SAS v. France (2014), Sindicatul Păstorul cel bun v. Romania (2013), and Leyla Şahin v. Turkey (2004). The list of cases includes one from each case study country included in the broader research programme, as well as older (Kokkinakis) and more recent (SAS) cases, and a key case for one of the issue areas selected for in-depth study across all case studies in Grassrootsmobilise (for the study of religious education, Folgero). The ‘awareness non-test test’ was to be administered with great care to not give the impression to the interviewee that his or her personal knowledge of the case law was being tested as an end in and of itself rather than a means to understanding something broader about grassroots-level awareness of the Court and its case law.

In practice, however, administering the ‘awareness test’ in a non-intimidating manner was rather difficult in the context of several interviews; thus, the data are not systematic within or across all country case studies, and we cannot quantify precisely based on this aspect of our research. But reading between the lines in the interviews where the non-test test was fully administered and in those in which the plan was aborted because the interviewee was either uncomfortable or quite obviously unaware of particular cases, we can safely say that our research suggests fairly low levels of awareness of religion-related case law among the social actors consulted, with the exception of lawyers we interviewed. As one might imagine then, we also found that there was relatively little mobilization of groups triggered specifically by ECtHR cases to do with religion, again except among our interviewees with legal expertise.

This low level of mobilization and awareness is striking when compared to the situation in the United States, where a great deal of scholarship focuses on mobilizations in the wake of US Supreme Court and other state or circuit court decisions: for example, on the broader impact on civil rights in the wake of the US Supreme Court decision Brown v. Board of Education, where the radiating effects of law on cultural discourse and political perceptions have been found, according to Anne Bloom (2013: 229-230), to be more significant than the direct effects of the litigation on deterring or correcting discriminatory practices (see also Minnow, 2010), or regarding ways in which court losses help mobilize relevant groups into the formation of a common issue-specific identity (NeJaime, 2011). Other relevant research from the North American context has focused on the radiating effects of the infamous ‘McDonald’s coffee case’, in which McDonald’s was successfully sued for serving coffee which was too hot ⁶ ; on the radiating effects of tort law (Bloom, 2013); on the ‘everyday life effects’ of case law (Ewick and Silbey, 1998); and on case law impact in developing legal consciousness among working-class Americans (Merry, 1990).

It is also surprising when considering that the ECtHR is a ‘big-hitter’ in the field of religion in Europe (and beyond), and increasingly so: the Court handles questions often central to national and European-level debates around religion, and takes decisions sometimes calling for radical legal change at the national level. Other times, it is seemingly radical in not calling for legal change. Its import is certainly acknowledged at the grasstops level, as we see intense transnational and European-level mobilizations taking place around the Court and its religion-related case law (as in the Lautsi case described above, but not only; see Fokas, 2016). Yet through in-depth interview research conducted with grassroots social actors, it was established that in the country cases under examination, relatively few social actors without some legal expertise know of specific ECtHR cases related to religion, with the exception of the Lautsi case, and sometimes of a handful (at best) of cases against social actors’ own states (Fokas, 2017).

Thus, we have what seems to be a significant gap between, on one hand, the weight and importance of the Court’s judgements relevant to religion in terms of its direct effects (its handling of socially and politically salient issues and its calling for major national-level reforms), together with the active grasstops-level engagements with the Court’s religion-related case law, and on the other, the relatively little awareness of such case law at the grassroots level, and the even less active engagement with that case law in terms of social actors taking inspiration from it for the pursuit of their own rights.

Reasons why rights are ‘not working’ at the grassroots level

Turning then to reasons why rights seem not to be working in quite the same way McCann finds them working in the aftermath of US Supreme Court decisions, I should perhaps start by noting that it is unwise to have the same expectations of a European-level court as of the US Supreme Court in terms of grassroots-level awareness of and engagements with their religion-related case law. There are two clichéd comparisons between the United States and Europe, which carry at least some measure of truth: that the United States is religious and Europe secular (Berger et al., 2008), and that the United States is comparatively litigious as a culture. In Alexis de Tocqueville’s (1956 [1840]) words, ‘scarcely any political question arises in the United States that is not resolved sooner or later, into a judicial question’ (p. 126). Both these generalizations suggest that Americans, including those concerned about religion (who are many in number), would pay more attention to what is being decided at the Supreme Court than Europeans would regarding the ECtHR.

The ECtHR is also a far younger court (established in 1959, as compared with the US Supreme Court’s 230-year reign), and its engagements with religion are even much more recent: it was not until 1993 that the ECtHR began engaging actively with religious freedom cases, ⁷ whereas as early as 1879, the Supreme Court was banning polygamy as religious practice. Third, the workings of the US Supreme Court are much closer to the popular consciousness, not least through relatively more robust media coverage of court decisions. ⁸ Through our media study in Grassrootsmobilise, we found that coverage of the ECtHR in the countries we studied was scant, and it was also rather limited to cases against the state in question. Fourth, and perhaps most importantly when comparing the two contexts, obviously the US Supreme Court covers one country, and the ECtHR covers 47 different countries: the ECtHR is comparatively perceived as distant from the citizens of individual countries.

Thus, our expectations of the grassroots-level impact of the ECtHR religion-related case law, as compared with that of the US Supreme Court, ought perhaps be tempered.

Beyond low levels of awareness of ECtHR case law relevant to social actors’ interests, there are other reasons for rights not working so well in the aftermath of ECtHR decisions that we discovered through research on the ground. For one, and somehow related to the last-mentioned point, there is a sense in which going to the ECtHR is a fundamentally anti-national act, that pursuing one’s grievances nationally is one thing but at the ECtHR is quite another, because it is a betrayal of one’s nation. This perspective is most conspicuous among Muslim representatives who, particularly where they are newer minorities in a given country, express a fear of being perceived as antagonistic. As one Italian Muslim group representative put it, ‘You can file a case to the court, of course but [that] it is already the “hard way,” it’s confrontational, whilst we want to be moderate and responsible citizens’. ⁹ Muslim respondents emphasize the importance of the public image of Islam especially in the context of the high politicization of Islam and the political polarization around Islam-related issues.

But the perspective of the Court as an ‘adversary of the nation’ goes well beyond Muslim communities. As one Turkish Protestant faith respondent put it, ‘We are sons of this country, we don’t want to complain about our country [to international institutions such as the ECtHR]’. One representative of a Buddhist group in Greece explains that group’s reticence to think much about the ECtHR by indicating that

we do not want to create any kind of friction . . . Not just with the government, with the authorities in general. We would rather leave some things behind or postpone them than create any kind of tension or confrontation . . .

Or, as expressed by one Romanian Seventh Day Adventist respondent,

Most [of our] problems were settled here nationally – not that I’m a passionate nationalist, but I think the nation needs to be protected. If you can settle it here, there’s no point going to wash our dirty laundry in public there, all over Europe.

The perspective on litigation as particularly confrontational is also found among some atheist, humanist, and secularist groups, for whom however it is not a deterrent, given that often these groups are themselves seen as ‘adversaries of the nation’ in the particular countries under study in Grassrootsmobilise (Ringelheim and Fokas, in press).

Underlying this perspective is an assumption that ECtHR case law, and case law in general, is only of interest to and ‘penetrable’ by people with legal expertise or, at least, to people interested in litigating themselves. This is, by far, the most prevalent reason presented to us (by non-legal actors), for low levels of engagements with decisions of the ECtHR in the realm of religion. Thus, the notion of indirect or radiating effects of court decisions seems rather foreign to many grassroots actors.

Yet grassroots social actors exhibit a strong interest in learning about the Court and its case law relevant to their concerns. One noteworthy development in the course of our research is the fact that the interviews often became sites of learning about the Court for our respondents, because of the multiple probing questions they asked during the interviews. ‘What happened next?’ asked one Romanian interviewee, after having been told the basics of the S.A.S. case on the French burqa ban; ‘How much can the ECtHR get involved in a country’s legislation?’ he asked later in the course of the interview. One Greek respondent went from asking questions such as ‘where do we find information about the Court’s cases?’ and ‘is it very expensive to reach the Court?’ in 2015, to having two pending cases before the Court in 2019. This is of course an exceptional case, but it is indicative of the power of information, when it is appropriately pitched to the interests and concerns of grassroots actors. (It also raises questions regarding the line between observation and intervention in the research process.)

Nuancing the account – differences across cases

In order to nuance the account, let me point out a number of often inter-related factors at play, influencing differences across country cases in levels of awareness of and engagement with ECtHR case law. First, variation in national political and legal ‘opportunity structures’ is key to degrees of awareness of the Court and its case law – that is, how comparatively receptive are political structures and national legal structures to religion-related claims? For example, activists for LGBTI claims in Greece with little hope of achieving their aims through political lobbying are more likely to litigate in the first place and, with low expectations of the national courts regarding LGBTI rights, are more likely to become informed of the opportunities offered by the ECtHR.

Closely linked to the former is where the ECtHR stands within the national legal order (both de jure and de facto): that is, does ECtHR jurisprudence take precedence over national law in cases of conflict between the two? If not, social actors may be less likely to invest resources – financial or otherwise – in the ECtHR. Third, where the majority faith stands within the ‘national religious order’ in that particular country context: in all the country cases under study in Grassrootsmobilise (and I daresay, in all countries in general), there is a system in place distinguishing between rights and privileges afforded by the state to different religious groups, arranged in a different hierarchy in each case. Thus, the likelihood for religion-related grievances to arise, and grievances unlikely to get very far in the national context because of the majority faith’s positioning in relation to the state, will influence whether and the extent to which the ECtHR is worth paying much attention to. Fourth, the national track record of the state in question in relation to the ECtHR: how much case law against the state in question is there before the Court, and with what percentage of violations found, and to what extent are the Court’s decisions implemented? All of the above may impact levels of grassroots awareness of and interest in the Court.

These are all general points that arise from a cross-country comparison. Looking through a more focused lens, one can see evidence of what Michael McCann points out, that legal knowledge ‘does not simply trickle down on citizens and state officials in a unidirectional, determinate fashion’. Rather, it goes through some kind of diffusion process, or filtering process, and this process varies not only from one country to another but also between different groups within each country, and often within individual groups. Grassrootsmobilise gave us insight into different filters at play, and the important role played by ‘translators’ of the Court’s case law, whether these are mass media, activists, or in-house lawyers employed by a given organization or religious group. For example, in the Greek case, much of grassroots actors’ understanding of the Court and its case law was filtered through the Jehovah’s Witnesses’ many successes against the state of Greece at the ECtHR. As a result, to many of our interviewees, the ECtHR means little more than a venue where ‘fringe’ minority groups such as the Jehovah’s Witnesses get their way vis-à-vis the Greek state.

Related to the above, our research demonstrates that group membership matters, from several perspectives. First, some groups are more litigious than others (e.g. Jehovah’s Witnesses as compared with migrant Muslim groups), and thus more or less likely to follow ECtHR case law relevant to their interests. A group’s employment of or special relationship with a lawyer also tends to correlate with higher levels of awareness of ECtHR case law. Group membership also matters because of the way that group may filter or translate information about the Court. It also makes a difference whether the group is a majority or minority in a given society, as well as whether it is a new or old minority, and large or small. All of these factors tend to make a difference to how much or little attention is paid to the Court.

Also with a more finely tuned perspective, we see that among those who do exhibit some awareness of the Court and its case law, instead of a general, even if vague, sense of the breadth of the Court’s case law on religion, grassroots actors tend to know about only cases against their own states, and about few of those, so that there’s a disproportionate influence of a small number of the cases over their thinking about the Court. For example, in Italy, the Lautsi case cast a large shadow over grassroots actors’ understandings of the Court; through it, many interpreted the Court as fundamentally unwilling or unable to challenge the status quo in church–state relations. Lautsi was exceptional in the extent to which attention to it crossed national boundaries, and it served to demobilize secularist actors in Greece and in Romania. In Turkey, the many victories of Alevi-related cases, and the Turkish state’s lack of implementation of many of those decisions, has led some social actors to mobilize in order to put pressure on the Turkish state to implement ECtHR decisions, but more so it has resulted in a sense that the Court cannot always resolve religious minorities’ problems, though it can and does draw more attention to them.

A temporal perspective is also important, taking into consideration such factors as the specific political climate (e.g. pro- or anti-Europeanism championed by the governments in place) in a given time, as well as changes over time in grassroots actors’ attention to the Court because of other external factors. For example, during the life of Grassrootsmobilise, the Court of Justice of the European Union became a ‘new kid on the block’ in the field of religion-related case law. The fact that this court has often decided religion-related matters differently to the precedence set by the ECtHR has led some grassroots actors to ‘venue shop’ (Fokas, 2016).

In short, the indirect effects of the Court and its case law are not directly correlated to in-depth knowledge of the case law; rather, the concept of the Court’s ‘impact’ must be nuanced to take into account the various ways ‘messages’ about the Court and its case law are transmitted to grassroots actors, and the varied effects of the latter, whether towards mobilization in favour of one’s rights or demobilization. Therefore, grassroots impact of the Court is highly contextual. Thus, of course it must also be recognized that results would vary with a different selection of case study countries. For example, in the United Kingdom, coverage of the ECtHR in mass media is far more developed than in the four cases under examination in Grassrootsmobilise: it is both more voluminous and qualitatively different in terms of offering greater depth to case law coverage. This fact would most likely lead to findings of stronger indirect effects of ECtHR case law. The United Kingdom is also home to several religion-related NGOs which are active at the European level and globally in mobilizing legally around such issues, and thus one could also expect a more robust ‘trickle down’ effect of information about the ECtHR and its case law to general members of such groups.

Who cares? Why it is important to study law as a non-lawyer

As promised, I close with some reflections on why it is important for sociologists of religion to study law. A rapidly increasing judicialization of religion is a fact established by several scholars (including that of Jim Richardson, 2015; see also Mayrl, 2018). Whether a welcome fact or not, it means that more matters of concern to religious, secularist, atheist, and humanist publics are being decided by courts. The increasing judicialization takes on a new significance in the current context of a rise in new, or renewed, nationalisms and an increasingly mainstreamed embrace of particularism: what is happening to universal rights (including religious freedom) in this environment? This is an important question to be addressed from a sociology of religion perspective, beyond the work we can anticipate in the fields of law and human rights.

Grassrootsmobilise has shone light on a striking gap between the importance of the ECtHR in terms of the issues it addresses which are of close concern to religious and secularist publics, on one hand, and the low levels of public awareness of that role played by the Court, on the other, whereas when these issues are in the political realm, the same publics are highly aware and often mobilize around them. The ECtHR is indisputably one of the most influential institutions in terms of human rights protections globally. Given how the daily lives of religious minorities are influenced by such issues as how their public schools manage religious education, or their rights to build and run places of worship (both of which issues have been addressed repeatedly by the ECtHR), as well as how religious majority privilege is felt by many secularists, atheists, and humanists to infringe upon their own rights and freedoms (related claims also addressed extensively by the ECtHR), it is rather critical that sociologists of religion pay attention to this gap between potential and real impact of the Court at the grassroots level. It would also be useful to have more insight, from a sociology of religion perspective, into the various ways social actors’ general conceptions of the Court and its religion-related case law are skewed and how these differ from one country context to the other, depending on the particular experience of that given state with the Court.

Finally, someone needs to make sense of the broader significance of an Anglican Archbishop’s stock market threats or a Greek bishop’s search for legal loopholes, and your average lawyer might not be too interested to do so. In fact, based on my own experience at least, I would say it is necessary for sociologists of religion to work together with lawyers and social anthropologists and political scientists, among others, in order to ‘crack such nuts’ at the intersections between law and religion . . . which nuts are, arguably, constitutive aspects of the politics of religion.