Introduction

All general international human rights law treaties protect the right to freedom of religion or belief. It is widely regarded as one of the most important human rights, central not only to a range of civil and political rights, but also to key socio-economic rights, which recognise that access to religiously and culturally appropriate resources is integral to human flourishing. As the European Court of Human Rights (ECtHR) has famously affirmed, “freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention” (Kokkinakis v Greece: para. 31).

The right to freedom of religion or belief has two distinct but closely interrelated aspects. These are reflected in its legal structure. On the one hand, for individual believers, the freedom to hold or change one’s beliefs is central to personal integrity. Because of its intimate connection to one’s values and identity, this internal dimension merits the strongest possible legal protection and is often characterised as an absolute right. On the other hand, the right to manifest one’s beliefs, whether in public or in private, deserves distinct protection, not only because of its importance for individual believers, but also for its role for democracy. In this latter sense, the protection of belief manifestation acts as a safeguard against the dominance of any single worldview. It is a check on totalitarianism that applies equally to all protected beliefs, religious and non-religious (Kokkinakis: para. 31).

In practice, however, the neat distinction between freedom of belief and freedom of manifestation is more fragile than the description of the legal right suggests. Courts and treaty bodies have struggled with hard cases in which collective interests, including public order, are invoked to justify restrictions on protected symbols or religious expression. At the same time, the relationship between freedom of religion or belief and the prohibition of discrimination on grounds of religion or belief remains contested and under-theorised, particularly in contexts involving intersectional disadvantage.

This chapter explores these themes in more detail. It begins by examining which beliefs fall within the protective scope of the right and how courts have approached the manifestation of belief, especially through religious symbols. It then considers the main justifications advanced for restricting such manifestations, with a focus on public safety, “living together” and public morals, and on the role of the margin of appreciation. The chapter also analyses the collective dimension of the right through case law on religious associations and group autonomy. Finally, it turns to the relationship between freedom of religion or belief and the prohibition of discrimination on the grounds of religion or belief, highlighting their shared normative grounds but distinct doctrinal roles.

Protected Beliefs

The first point to note is that not all beliefs enjoy protection under human rights and discrimination law (Pretty v United Kingdom: para. 82). To determine which beliefs are protected, international human rights mechanisms have developed a broadly consistent set of criteria. As its name suggests, the right to freedom of religion or belief protects a wide range of beliefs. Any belief that attains a sufficient level of “cogency, seriousness, cohesion and importance” falls within the protective scope of the right (Campbell and Cosans v United Kingdom). On this basis, a wide range of beliefs, from non-religious beliefs like pacifism (Arrowsmith v United Kingdom) and veganism (W v United Kingdom) to all kinds of religious beliefs, traditional (Knudsen v Norway) and less so (Leela Förderkreis E.V. and Others v Germany) have been held to fall within the protective scope of the right to freedom of religion or belief. A protected belief must amount to more than a mere opinion or viewpoint, which would instead fall under the right to freedom of expression. With regard to the prohibition of discrimination on the grounds of religion or belief, which will be discussed later in this chapter, it is important to note that discrimination law derives the standards that determine which beliefs are protected, i.e. beliefs of sufficient cogency, seriousness, cohesion and importance, from the right to freedom of religion or belief (Bayatyan v Armenia: para. 110).

Three clarifications need to be added here. First of all, in addition to the standards above, a belief must be held sincerely (Kovalkovs v Latvia). Before the courts, applicants have an important role to play at this stage of a complaint: if required, they must substantiate the sincerity of their belief (Kosteski v The Former Yugoslav Republic of Macedonia). Complaints of belief discrimination must also demonstrate the links between holding or manifesting a particular belief and the disadvantageous treatment in question. This point will be explored further later in the chapter, in the context of indirect discrimination.

Second, a belief will be protected even if it is idiosyncratic, that is, not widely shared among a relevant group of believers. Human rights law protects non-traditional and minority beliefs. A belief does not have to be endorsed by any relevant authorities, e.g. by the synod of a Church, in order to qualify for protection. Indeed, state authorities are under a duty of neutrality requiring them to refrain from assessing the theological or dogmatic legitimacy of individual beliefs (İzzettin Doğan and Others v Turkey: paras. 68-69). Second, a belief will be protected even if it is idiosyncratic, that is, not widely shared among a relevant group of believers. Human rights law protects non-traditional and minority beliefs. A belief does not have to be endorsed by any relevant authorities, e.g. by the synod of a Church, in order to qualify for protection. Indeed, state authorities are under a duty of neutrality requiring them to refrain from assessing the theological or dogmatic legitimacy of individual beliefs (Eweida and Others v United Kingdom: para. 82). In Eweida, the ECtHR held that the applicant’s decision to wear a visible cross at work, driven by her Christian faith, was sufficient for it to constitute a protected form of religious manifestation under human rights and discrimination law (para. 89). The key principle here is that the right to freedom of religion or belief (and the same applies to the prohibition of discrimination on the grounds of religion or belief for that matter) covers all acts of manifestation within a “sufficiently close and direct nexus” with a protected belief – even those not mandated by the belief in question (Eweida: para. 82).

Third, according to the UK courts and the ECtHR, for a belief to be protected, it must be “worthy of respect in a democratic society,” must not be incompatible with human dignity, and must not conflict with the fundamental rights of others (Grainger Plc & Ors v Nicholson: para. 24). However, only the most extreme beliefs will be excluded on this basis – specifically, those that incite violence or seek to undermine human rights, such as totalitarianism or Nazism (Lilliendahl v Iceland: para. 26). Such beliefs violate Article 17 ECHR, which prohibits abuse of rights. Given the considerable complexity of this area of law, some additional illustrative examples would be helpful.

In Thomas v Surrey and Borders Partnership NHS Foundation Trust, the UK Employment Appeal Tribunal (EAT) ruled that while offensive anti-Islam beliefs could be protected (paras. 92 and 93), a belief that all Muslims should be forcibly removed from the UK was incompatible with human dignity and therefore was not protected, as any manifestation of such a belief would likely incite violence (paras 105 and 106). In Maya Forstater v CGD Europe and Others the EAT concluded that gender-critical beliefs about the immutability of sex were not incompatible with human dignity and were therefore protected. This was confirmed in Bailey v Stonewall and in Mackereth v The Department of Work and Pensions. However, the protection of gender-critical beliefs leaves open the possibility that actions arising from these beliefs could amount to unlawful harassment of transgender individuals, depending on the context (Forstater: para. 104). For example, in Mackereth, the EAT ruled that a healthcare employee’s refusal to use individuals’ preferred forms of address, such as their preferred pronouns, was not a protected form of manifestation of his (protected) gender-critical belief, due to the potential harm it could cause to the health of transgender individuals in the specific context of that case (Mackereth: para. 134). Consequently, the dismissal of the employee did not constitute unlawful indirect religious discrimination. Overall, beliefs that may be considered offensive or disturbing are protected under human rights and discrimination law (Redfearn v United Kingdom: para. 56), and the threshold for excluding a belief from protection is set extremely high. Which forms of manifestation are protected in law is another matter, however.

Manifestation of Religion or Belief

Article 9 of the European Convention on Human Rights states

Freedom to manifest religion in public through symbols

Two sets of principles underlie the case-law of international human rights law mechanisms on protected symbols of religion or belief. The first set of principles, introduced earlier in this chapter, derives from the structure of the legal right itself. In summary, international human rights law treaties offer absolute protection to the right to believe or change one’s beliefs (see, for example, Article 9(1) ECHR), whereas the freedom to manifest religion or belief “through worship, teaching, practice and observance” (see, for example, Article 9(2) ECHR) is subject to restrictions provided that they pursue a legitimate aim and are necessary in a democratic society. Although this binary model represents the established wisdom in this area, academic scholarship has expressed doubts about it for at least two reasons. These are points that cannot be explored fully here but are worth bearing in mind. One concern, as Danchin notes, is that the distinction between belief and practice can obscure the profound interconnections between the two, which in turn may lead human rights bodies to valorise autonomous and private forms of religiosity over more habitual and public ones. Another concern, observed by Ligthart, is that it is unclear whether the right to hold or change one’s beliefs can be truly absolute, given that certain permissible forms of psychiatric treatment or biometric identification would otherwise interfere with that right.

The second set of principles is that whether a particular practice is compulsory or central to a given belief system plays little role in determining whether it enjoys protection under human rights law. A helpful illustration is Leyla Şahin v Turkey, where the ECtHR examined whether disciplinary measures imposed a student for wearing a headscarf breached her right to freedom of religion. The ECtHR readily accepted that wearing a headscarf constituted a protected form of religious manifestation, without placing any emphasis on whether the practice was religiously mandated. Similarly, in Eweida, the ECtHR accepted that wearing a visible cross at work, motivated by the applicant’s Christian faith, was protected manifestation under Article 9 ECHR. As mentioned earlier, the majority in Eweida reiterated that the manifestation of religion or belief is not limited to acts that are “intimately linked” to religion or belief. Rather, the existence of:

Moreover, as Wolff notes, the ECtHR consistently favours a broad interpretation of the “close and direct nexus” requirement.

Restrictions on religious symbols due to public safety

It is arguable that, under certain circumstances, the ability to see someone’s face is necessary. Checking in for a flight or entering a court or other secure premises are common examples of the importance of facial recognition, and other activities, such as driving, may also be impeded by particular forms of full-face covering.

In cases such as Phull v France and X v United Kingdom, which concerned practising Sikhs required to remove their turbans for public safety reasons despite their faith obliging them to wear them at all times, the ECtHR has held that the security measures in question were prescribed by law and pursued the legitimate aim of guaranteeing public safety. In both cases, the interference was also found to be necessary in a democratic society, with the ECtHR emphasising that the design and implementation of specific public safety measures falls within the national margin of appreciation. In the similar case of El Morsli v France, the ECtHR examined a complaint from a Muslim applicant of Moroccan nationality who was married to a French citizen. Her application for an entry visa to France was declined because she refused to remove her headscarf for an identity check by male personnel at the French Consulate General in Marrakech. The ECtHR declared the application inadmissible, reiterating that identity checks are necessary in a democratic society for reasons of public safety and that, in any event, the interference with the applicant’s freedom of religion was too limited in duration to be disproportionate.

Similar considerations have informed the approach of the ECtHR in cases on religious symbols in various types of identity documents, including university certificates and driving licences. In Karaduman v Turkey, the applicant, having completed her university studies, applied for a provisional certificate confirming her bachelor’s degree, but the attached photograph showed her wearing a headscarf. She was subsequently informed that the certificate could not be issued because the photograph did not comply with the university’s regulations. The Europe Commission of Human Rights recalled that the right to freedom of religion does not invariably guarantee the right to behave in public in any manner dictated by one’s religious beliefs. It further noted that the applicant had chosen to study at a secular university whose rules limited the manifestation of religion in order to secure peaceful coexistence within a religiously diverse student body. These restrictions pursued the legitimate aim of protecting public order and the rights of others, and, in any event, a university degree photograph was not an appropriate forum for manifesting religious beliefs. Overall, the Commission held that regulating students’ dress and their access to administrative services did not constitute an interference with the applicant’s freedom of religion and therefore did not violate the Convention.

Taken together, these cases illustrate the consistent view of the ECtHR that limited and context-specific restrictions on religious symbols may be justified to protect public safety and public order, although, as will be discussed later, emerging divergences in international human rights practice suggest the possibility of an evolving approach.

Blanket bans on religious symbols

Blanket bans on the wearing of religious symbols in public have not been treated consistently across human rights mechanisms, a point that the next subsection will address more directly. This section will focus on case-law under the ECHR, while the following section compares it with the relevant jurisprudence of the UN Human Rights Committee.

In Ahmet Arslan v Turkey, 127 members of a religious group were criminally convicted for wandering around the streets of Ankara in religious attire including turbans, distinctive trousers and tunics on the occasion of a ceremony held at a mosque. The legal basis of their conviction lies on domestic legislation prohibiting religious attire in the public space, with the exception of places of worship and religious ceremonies. Contrary to previous cases justifying limitations on religious symbols for public safety reasons, the ECtHR found a violation of Article 9 ECHR as the interference with the right of the applicants to freedom of religious manifestation was not justified in the instant case. More specifically, the ECtHR accepted that, in the circumstances of the case and given the importance of secularism for the Turkish constitutional system, the interference may be taken to serve the legitimate aims of protection of public order and the rights of others (Leyla Sahin v Turkey: para. 99; Refah Partisi v Turkey: para. 67). However, the ECtHR stressed that the aim of the provisions under examination was to avert provocation and coercive proselytism in a secular democratic state. Since the applicants were not state representatives and were not exercising any public function, they were divested of any state authority (mutatis mutandis, Vogt v Germany: para. 53; Rekvényi v Hungary: para. 43). Furthermore, the majority was unconvinced by the argument that the applicants posed a threat to public order. Rather, according to the facts before the ECtHR, the applicants had just gathered outside a mosque with the sole aim of participating in a religious ceremony. Their purpose was not to inflict undue pressure on other people or cause trouble (mutatis mutandis, Kokkinakis v Greece: para. 48). As a result, the ECtHR held that in the instant case the restriction was disproportionate, in violation of Article 9 ECHR.

Ahmet Arslan v Turkey is a noteworthy case because, perhaps as a departure from earlier case-law, the ECtHR did not weigh the interests of the applicants to wear their religious symbols in public against the interests of the state to adhere to constitutional secularism through securing a religion-free public space. Rather, the judgment undertook an interpretation of the reasons behind the ban, which were found unsupported by public order considerations. By contrast, the state limitation in question was motivated by impermissible reasons that express dislike, if not contempt, for the applicants’ lifestyle. This strict level of scrutiny is a welcome development and reflects precisely the kind of judicial approach required to reveal and address illegitimate exclusion and discrimination on the grounds of religion or belief.

S.A.S. v France is another landmark case, marking the first time the ECtHR examined a challenge to a national ban on full-face veils in public. It warrants detailed discussion because it clarifies key interpretative trends in the Court’s jurisprudence in this area. The applicant was a practicing Muslim who, according to her submission, wears the burqa or the niqab in accordance with her religious and cultural convictions. She emphasised before the Court that neither her husband nor any other family members had pressured her to wear the face-veil (S.A.S. v France: para. 11). She also noted that she wears her niqab “non-systematically”: she removes it when visiting a doctor, meeting friends in public, socialising, or undergoing security checks in banks, airports or other places where such checks are required (S.A.S. v France: paras. 12-13). Despite accepting these limitations, she wishes to retain the choice to manifest her religion publicly by wearing the niqab when she deems appropriate, depending “on her spiritual feelings”, particularly during religious events such as Ramadan (S.A.S. v France: paras. 12-13). She further argued that her aim was not to divide but to ‘feel at inner peace with herself’ (S.A.S. v France: para. 12).

The applicant complained that Law no. 2010-1192, which prohibits individuals from wearing clothing designed to conceal the face in public places (Law no. 2010-1192, 2010: s. 1), violates, among other rights, her right to respect for private life, freedom of religion, and freedom of expression, taken both separately and together with freedom from religious discrimination (S.A.S. v France: paras. 69-74). Amnesty International, Article 19, the Human Rights Centre of Ghent University, Liberty, and the Open Society Justice Initiative all intervened in support of the applicant’s complaint (S.A.S. v France: paras. 102-105). The French government argued that the Law pursued two aims: public safety and the protection of the rights and freedoms of others, the latter through securing the ‘minimum set of values of an open and democratic society’ (S.A.S. v France: para. 116).

The ECtHR held that the public safety justification was disproportionate, but accepted the second aim advanced by the French argument, namely that protection of the rights and freedoms of others includes securing certain fundamental values in a democratic society. These were said to include respect for equality between men and women, respect for human dignity, and respect for the minimum requirements of life in society. The ECtHR swiftly dismissed the argument concerning gender equality, noting that states cannot “invoke gender equality in order to ban a practice that is defended by women, such as the applicant” (S.A.S. v France: para. 119). This aspect of the judgment is noteworthy because it marks a significant and welcome shift in the Court’s approach to gender equality (Chaib and Peroni, 2014), compared to earlier cases such as Dahlab v Switzerland and Leyla Sahin v Turkey, where the Islamic headscarf was portrayed as hard to square with tolerance, respect for others, and equality and non-discrimination.

Similarly to its treatment of the argument on gender equality, the ECtHR dismissed the French Government’s argument on respect for human dignity because it could not justify the general ban at issue. The full-face veil, the Court noted, expresses a cultural identity reflecting a different conception of bodily decency and, moreover, there was no evidence that women who wear it display contempt for others (S.A.S. v France: para. 120). As regards the minimum requirements of life in a democratic society, the Government argued that the ban responded to a practice deemed incompatible ‘with the ground rules of social communication and more broadly the requirements of “living together”’ (S.A.S. v France: para. 153). The ban aimed to protect social interaction, which is essential to pluralism, tolerance and broadmindedness.

The ECtHR acknowledged that the face plays an important role in interpersonal relations and noted that the explanatory memorandum to the Law stated that voluntary concealment of the face contravenes the ideal of fraternity and the minimum requirements of civility necessary for social interaction (S.A.S. v France: paras. 25 and 141). On that basis, the Court accepted that the full-face veil may raise a barrier to “the right of others to live in a space of socialisation which makes living together easier” (S.A.S. v France: paras. 121-122). Although the majority expressed concern about the “flexibility” and ‘the resulting risk of abuse’ of securing “living together”, it nevertheless accepted that, in principle, “it falls within the power of the State to secure the conditions whereby individuals can live together in their diversity” (S.A.S. v France: para. 141).

For reasons that cannot be fully examined in this chapter, the majority of the ECtHR concluded, by fifteen votes to two, that the ban was necessary in a democratic society and therefore compatible with the Convention (S.A.S. v France: para. 158). The ban was found proportionate to the legitimate aim of preserving the conditions of ‘living together’ as required by the rights and freedoms of others (S.A.S. v France: para. 157). The ECtHR was partly aided in reaching that conclusion by allowing France a wide margin of appreciation on the basis that ‘the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society’ (S.A.S. v France: para. 157).

There are, however, significant problems with the deferential stance of the ECtHR in S.A.S. The majority did not directly address whether the blanket criminalisation of wearing full-face veils in public was proportionate to the legitimate aim of protecting ‘living together’. Instead, despite expressing notable reservations (S.A.S. v France: para. 122), the ECtHR held that in matters of ‘general policy’ states enjoy a wide margin of appreciation that limits its ability to review Convention compliance. Crucially, here the ECtHR deploys margin of appreciation in a structural, rather than a substantive, sense. That is, the Court did not use the margin of appreciation to conclude that the state authorities had struck a ‘fair balance’ between the competing interests and that the restriction in question was proportionate and therefore within their discretion, as Letsas notes here. Rather, it relied on arguments from institutional competence and subsidiarity; namely, the idea that national authorities, being ‘better placed’ to assess local needs, should enjoy normative priority where there is no consensus among Council of Europe member states.

This approach was replicated in the subsequent cases of Belcacemi and Oussar v Belgium and Dakir v Belgium, where the ECtHR likewise found no violation of the Convention in response to individual complaints against the Belgian blanket bans on full-face veils adopted at state and municipal level.

Such a level of deference to national authorities is troubling, particularly given that the role of international human rights mechanisms is precisely to guard against arbitrariness, especially in politically or socially sensitive areas. Yet this approach is common in cases touching on questions of public morals, including those involving allegedly blasphemous art, which will be discussed later. Although a full analysis falls outside the scope of this chapter, extensive scholarship, and indeed the Court’s dissenting opinions in S.A.S., has highlighted the problems with according state authorities such wide latitude. The danger that majoritarian arguments may be shaped by impermissible reasons, such as prejudice against specific religious groups, is especially acute when states rely on concepts as fluid as ‘living together’ to justify limitations on human rights.

Comparison: The UN Human Rights Committee in cases on religious symbols

To conclude the discussion on religious symbols, it would be useful to juxtapose the jurisprudence of the ECtHR with that of the UN Human Rights Committee in analogous cases and consider the extent to which their approaches diverge.

Shortly after the ECtHR rejected as inadmissible the complaint in Mann Singh v France, the applicant submitted an application to the UN Human Rights Committee (HRCtee) under the individual communications mechanism. Based on slightly different facts, he claimed that the prohibition to wear a turban on his passport photograph (instead of his driving licence) was in violation of his right to freedom of religious manifestation under Article 18 ICCPR.

Contrary to the ECtHR, the HRCtee found a violation of the applicant’s right to freedom of religion under Article 18 ICCPR. The HRCtee turned to the principles of General Comment 22 on Article 18 ICCPR, according to which freedom of religious manifestation includes the right to wear distinctive clothing or head coverings (General Comment 22, 1993: para. 4). The conditions for renewal of permanent residence in France therefore constituted interference with the exercise of the individual right to freedom of religion (Ranjit Singh v France: para. 8.3). The HRCtee then examined whether that interference was necessary and proportionate to the legitimate aim of public safety and public order (Ranjit Singh v France: para. 8.4). On that account, it held that

As a result, the HRCtee concluded that the French authorities had failed to demonstrate that the limitation was necessary within the meaning of Article 18 ICCPR. Moreover, it agreed with the applicant that the interference would also be of a continuing nature, as appearing without a turban in his identity photograph could compel him to remove it at every future identity check.

The diverging outcomes in Ranjit Singh and Mann Singh are traceable to the HRCtee’s application of a stricter scrutiny of the public safety justification. By contrast, at least until Ahmet Arslan, the ECtHR tended to accord a generous margin of appreciation to respondent states in cases involving limitations on the wearing of religious symbols for reasons of public order or public safety, leaving the relevant state justifications insufficiently scrutinised.

Similar discrepancies between the two human rights mechanisms arise in cases concerning the wearing of the Islamic headscarf in schools. In a series of cases against France, including Dogru and Kervanci v France, Jasvir Singh v France, and Aktas, Bayrak, Gamaleddyn, Ghazal and Singh v France, the ECtHR held that expulsions of students for wearing headscarves or turbans were proportionate to the legitimate aim of protecting the rights of others and public order by safeguarding laïcité in state schools. The approach of the ECtHR has been criticised for applying its familiar proportionality test without carefully examining the legitimacy of the underlying claim that the individual manifestation of religion interfered with the rights and freedoms of others. One explanation for this lack of scrutiny, offered by Hunter-Henin, is that measures taken pursuant to entrenched constitutional principles, such as laïcité, are regarded as falling within the respondent state’s margin of appreciation.

By contrast, in factually similar cases concerning prohibitions on religious symbols in state schools, the HRCtee has applied a strict scrutiny test to state arguments based on public order and, unlike the ECtHR, has found violations of the right to freedom of religion under the ICCPR. While the HRCtee accepts, much like the ECtHR, that secularism can be a valuable means of safeguarding equal enjoyment of freedom of religion in schools, it has held that secularism alone is insufficient to justify limitations on the individual freedom to manifest religion. More specifically, in Bikramjit Singh, France failed to provide “compelling evidence” that the applicant’s wearing of a small turban (keski) would jeopardise the rights and freedoms of other pupils or undermine school order. His expulsion was therefore found disproportionate. In short, the HRCtee focused closely on the legitimacy of the reasons behind the limitations on the wearing of symbols. Its more thorough interrogation of the state’s public safety claims enabled a more robust analysis of the justification for the interference than that undertaken by the ECtHR.

Blasphemous Speech

In May 1985, the Otto-Preminger Für audiovisuelle Mediengestaltung (OPI), an Innsbruck art-house cinema, announced a series of six showings of a film called Das Liebeskonzil, a 1982 reproduction of Oskar Panizza’s notorious late-19th-century film. The Austrian government described as depicting ‘”God the Father… as a senile, impotent idiot, Christ as a cretin and Mary Mother of God as a wanton lady with a corresponding manner of expression.” (Otto-Preminger v Austria: paras. 38-39) God is also portrayed as “swearing by the devil” (Otto-Preminger v Austria: para. 22) and eroticised interactions between Virgin Mary and the devil (Otto-Preminger v Austria: para. 22). In 1895, those features of the film led the German authorities to ban it and convict Panizza for crimes against religion. Anticipating controversy in 1985, OPI circulated a detailed information bulletin to its 2,700 members, displayed warnings in various display windows in Innsbruck and classified the film as suitable for viewers aged 17 years and over.

Despite these precautions, the Church Authorities of Innsbruck sought the film’s pre-emptive seizure and forfeiture under Section 188 of the Austrian Penal Code, which criminalises disparagement of religious doctrines (Otto-Preminger v Austria: paras. 11 and 25). The Austrian courts upheld the seizure, holding that OPI’s right to freedom of expression under Article 10 ECHR was limited by the rights of others not to be offended in their religious beliefs, as well as by the State duty to preserve a well-ordered and tolerant society. The Otto-Preminger Institute then applied to the ECtHR complaining of a violation of its right to freedom of expression.

The ECtHR held that the restriction pursued the legitimate aim of protecting public order and the rights of others. While believers must tolerate criticism or even offence, the Court found that the “the manner in which religious beliefs and doctrines are opposed or denied…may engage the responsibility of the state’ because certain forms of expression nullify freedom of belief and manifestation” (Otto-Preminger v Austria: para. 56). According to the majority, blasphemous speech violates the right of believers ‘not to be insulted in their religious feelings by the public expression of views of other persons’ (Otto-Preminger v Austria: para. 57). Although artistic expression enjoys protection under Article 10 ECHR (Handyside v United Kingdom: para. 49), “gratuitously” offensive expression may be restricted, and national authorities are better placed to decide on the necessity of restrictive measures on an ad hoc basis (Otto-Preminger v Austria: para. 50). In this case, the predominance of Roman Catholics in Tyrol heightened the risk of serious offence and disruption to religious peace and public order. The Court therefore found the pre-emptive seizure and forfeiture necessary and proportionate under Article 10 ECHR.

One key criticism of Otto-Preminger concerns the obscurity of the distinction between offensive and gratuitously offensive expression. Which forms of expression fall into this latter category, and why? If majority groups within a state may determine what is gratuitously offensive to their protected beliefs, the distinction becomes susceptible to the very arbitrariness that human rights laws are designed to prevent. Even assuming that criteria can reliably distinguish between speech consistent with the “decencies of controversy” and speech deemed unacceptably harmful to the public order, such criteria should, as Post observes, follow ‘social norms of dialogue that are endorsed by a democratic state, in part because they are deemed compatible with the function of democratic legitimation’. The distinction between gratuitous (unprotected) and non-gratuitous (protected) offensive expression should therefore reflect principles of equal respect for personal autonomy and must not give preferential treatment to more established beliefs over others, all else being equal. Human rights cannot be restricted merely because their free exercise offends the religious convictions of others, even where those convictions are widely shared.

Despite these problems, two years after Otto-Preminger the ECtHR reapplied the distinction in Wingrove v United Kingdom. Nigel Wingrove’s video Visions of Ecstasy depicted a Carmelite nun, representing St. Teresa of Avila, in sexually charged scenes with Christ on the crucifix (Wingrove v UK: para. 61). Both the British Board of Film Classification (BBFC) and the Video Appeals Committee (VAC) refused a classification certificate on the basis of blasphemy – a refusal that entirely prevented the film’s circulation. Wingrove complained to the ECtHR about a violation of his right under Article 10 ECHR. The UK Government relied on Otto-Preminger and argued that blasphemous art may be restricted to protect religious beliefs. The majority of the ECtHR agreed, but added a significant gloss: unlike political expression, states enjoy a wide margin of appreciation under Article 10(2) ECHR ‘when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion’ (Wingrove v UK: para. 58). The shift from a ‘certain’ (in Otto-Preminger) to a ‘wide’ (in Wingrove) margin of appreciation meant that the UK’s restrictive measures were comfortably compatible with the right to freedom of expression under the Convention.

The ECtHR reaffirmed this generous margin of appreciation applying it in later cases of blasphemous speech. In Murphy v Ireland, the ECtHR unanimously upheld restrictions on religious advertising in light of the “religious sensitivities” of the predominantly Christian society (Murphy v Ireland: paras. 67 and 76). In I.A. v Turkey, the ECtHR upheld the criminal conviction of an author who criticised the Prophet, accepting the Turkish government’s claim that his book failed to meet the “level of responsibility to be expected of criticism in a country where the majority of the population were Muslims” (I.A. v Turkey: para. 35). By four votes to three, the majority characterized the book as an abusive attack on religion serving no legitimate public interest, and the modest fine and lack of seizure were deemed proportionate (I.A. v Turkey: paras. 44-47). The dissenting opinion of Judges Costa, Cabral-Barreto and Jungwiert sharply criticised this line of reasoning, arguing that it defies the essence of the right to freedom of expression, namely protection of speech that shocks, offends and disturbs (see Handyside v United Kingdom: para. 49); places “too much emphasis on conformism or uniformity of thought”, and reflects “an overcautious and timid conception of freedom of the press” (I.A. v Turkey, Joint dissenting opinion of Judges Costa, Cabral-Barreto and Jungwiert: paras. 6-8).

Although the ECtHR has not fully addressed these concerns, more recent case law shows greater protection for religiously offensive speech. In Giniewski v France, the ECtHR unanimously found a violation of Article 10 ECHR where a journalist was fined for an article linking a Papal encyclical’s theology to anti-Semitism and the Holocaust. The article contributed to a “wide-ranging and ongoing debate” and was neither “gratuitously offensive” nor incited “disrespect or hatred” (Giniewski v France: paras. 50-52).

A similar outcome was reached in Klein v Slovakia. There, as in Giniewski, the applicant was a journalist who criticised the Archbishop of the Slovak Roman Catholic Church for opposing the screening of a film. He was subsequently arrested and convicted for defaming the Archbishop and offending members of the Church. The ECtHR unanimously found a violation of Article 10 ECHR, holding that the article “neither unduly interfered with the right of believers to express and exercise their religion, nor did it denigrate the content of their religious faith” (Klein v Slovakia: para. 52). A similar conclusion was reached unanimously in Tagiyev and Huseynov v Azerbaijan, where the ECtHR held that the criminal conviction of an author and editor for remarks on Islam violated Article 10, since their article formed part of a public-interest debate on the role of religion in society rather than constituting incitement to hatred.

In Sekmadienis Ltd v Lithuania, a company was fined for running a series of clothing advertisements featuring figures resembling Jesus and Mary. The ECtHR found a violation of Article 10 because the authorities failed to give sufficient reasons why the adverts were offensive and, as a result, did not strike a fair balance between “on the one hand, the protection of public morals and the rights of religious people, and, on the other hand, the applicant company’s right to freedom of expression” (Sekmadienis Ltd v Lithuania: para. 83). Finally, an example of artistic expression that seems to diverge from the approach in Otto Preminger and Wingrove is Vereinigung Bildender Künstler v Austria, where the ECtHR held that the decision of the Austrian authorities to halt a public exhibition of a large collage depicting political and religious figures engaged in sexual acts violated the applicants’ right to freedom of artistic expression secured under Article 10 ECHR.

These results, alongside the powerful dissent in I.A. v Turkey, suggest a gradual shift towards stronger protection of religiously offensive expression. The Court has begun to adopt a narrower interpretation of the rights of others and has held that journal articles and artworks which do not incite to hatred remain protected under Article 10, even if they cause religious offence. Nevertheless, the ECtHR has not yet expressly abandoned the principle that offence to religious feelings may justify restrictions on expression. Elements of the Otto-Preminger and Wingrove doctrine therefore persist, though the Court’s evolving language hints at increasing alignment with the Council of Europe’s repeated calls for the decriminalisation of blasphemy and more robust protection for religiously offensive speech.

Freedom of Association and Freedom of Religion or Belief

Under Article 9 ECHR, freedom of religion has both individual and collective dimensions, which the ECtHR consistently links with the right to freedom of association under Article 11 ECHR. In group registration cases, the main underlying principle is that belief communities must be free to associate without undue state interference. Free association is indispensable to pluralism in a democratic society, and states are bound by a duty of neutrality understood as impartiality; this duty of impartiality is incompatible with any assessment of the legitimacy of protected beliefs. Because the formation of a legal entity is often essential for collective religious life, refusing legal status to a religious group constitutes interference both with freedom of association and with the collective aspect of freedom of religion or belief.

The case law reflects these principles with considerable consistency. In Hasan and Chaush v Bulgaria, the Grand Chamber of the ECtHR held unanimously that participation in the organised life of religious communities is a protected form of religious manifestation. Given that religious communities “traditionally and universally” operate through organised structures, their institutional autonomy and legal personality are vital to their followers (Hasan and Chaush v Bulgaria: para. 62). The case arose in the early post-communist period, when the Bulgarian authorities, acting through the Directorate of Religious Denominations, removed the elected leadership of the Muslim community and installed a new leader in his place. The ECtHR held that this intervention in the internal organisation of the Muslim community violated Article 9 ECHR. Where the organisation of belief groups is at stake, Article 9 must be read in light of Article 11, which protects associations from arbitrary state action. Belief communities have an expectation, which is protected by the Convention, that they will be allowed to function peacefully and autonomously. Such autonomy is “indispensable for pluralism in a democratic society” and is therefore central to the protection of freedom of religion or belief (Hasan and Chaush v Bulgaria: para. 62). As an aspect of state neutrality, and save in exceptional circumstances, states lack discretion to determine the legitimacy of protected beliefs or the means by which they are manifested (Hasan and Chaush v Bulgaria: para. 78).

In two later cases with similar factual backgrounds, a unanimous Chamber of the ECtHR elaborated on the implications of the duty of state neutrality in religious leadership cases. In Supreme Holy Council of the Muslim Community v Bulgaria and in Holy Synod of the Bulgarian Orthodox Church v Bulgaria, the Court found violations of Article 9 where the authorities attempted to impose a single leadership on a religious community divided between rival groups. Although “neutral mediation” between factions of believers does not, in principle, amount to state interference, the authorities must exercise particular caution in this sensitive area (Supreme Holy Council of the Muslim Community v Bulgaria: para. 80). They may not, for example, seek to unify competing religious groups under a single leadership, even where internal tensions risk producing wider social frictions (Serif v Greece: para. 52). What is at stake, the Court stressed, is the preservation of pluralism and the functioning of democracy, whose core characteristic is the ability to resolve even “irksome” conflicts through dialogue rather than coercion (see, mutatis mutandis, Christian Democratic People’s Party v Moldova (No. 2): para. 24). The role of the state in such circumstances is not to remove the ‘cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other’ (Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v Bulgaria: para. 53).

The ECtHR has also built its understanding of religious autonomy through cases concerning the legal recognition of minority religious groups. These cases, though factually diverse, typically involve complaints that the authorities failed to extend legal status on equal terms. In Metropolitan Church of Bessarabia v Moldova, the applicants claimed that the refusal of the Moldovan authorities to register their Church infringed their right to freedom of religion, as only recognised denominations could legally operate. Similar claims later arose in Biserica Adevărat Ortodoxă Din Moldova (True Orthodox Church) v Moldova. In both cases, the Court acknowledged the historical complexities underlying the domestic decisions but held that the refusals constituted unjustified interference with the collective right to freedom of religion or belief, given that Article 9 must be read in light of Article 11 (Biserica Adevărat Ortodoxă Din Moldova v Moldova: para. 34). State impartiality requires that religious autonomy be secured and that competing groups tolerate each other without state efforts to eliminate pluralism (Metropolitan Church of Bessarabia v Moldova: para. 116). Importantly, both cases involved minority groups whose religious identities conflicted with majority beliefs. Yet, however, fraught local history may be, majoritarian interests cannot justify denying legal registration to disfavoured groups – and, tellingly, such interests played no role in the ECtHR’s assessment.

The Court explained this logic in 97 Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia, holding that state neutrality includes certain positive obligations. Ninety-seven members of a Jehovah’s Witnesses congregation were violently assaulted by Orthodox extremists, who beat them with crosses, belts and sticks and burned their religious literature, while the police reportedly failed to intervene despite being present. The Court found that the Georgian authorities failed to take necessary measures to protect the applicants’ right to freedom of religion (97 Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia: para. 134). However, it clarified that positive obligations to safeguard religious harmony cannot be interpreted as requiring the state ‘to diminish the role of a faith or a church with which the population of a specific country has historically and culturally been associated’ (97 Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia: para. 132). Rather, neutrality means that the state must not draw distinctions or treat belief groups differentially for impermissible reasons, such as prejudice.

Further, in a series of unanimous judgments, the ECtHR has made clear that when a state establishes a framework conferring legal personality on belief groups, all groups must have a fair opportunity to obtain that status and the relevant criteria must be applied without discrimination. In Moscow Branch of the Salvation Army v Russia and in Church of Scientology Moscow v Russia, the Russian authorities refused registration – on the basis that the Salvation Army constituted a “paramilitary” organisation and that Scientology had not submitted all required documents. In Jehovah’s Witnesses of Moscow v Russia, authorities refused registration on the asserted grounds that the group posed risks to the health and rights of members and children. In each case, the ECtHR found a violation of Article 9, emphasising that state power to protect citizens from dangerous associations must be used sparingly, as ‘exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom’ (Moscow Branch of the Salvation Army v Russia: para. 62). Any interference must correspond to a ‘pressing social need’ and the notion of necessity does not have the flexibility of expressions such as “useful’ or ‘desirable.” (Church of Scientology Moscow v Russia: para. 75). Furthermore, in a series of cases, such as Religionsgemeinschaft der Zeugen Jehovas v Austria, the ECtHR held that an unreasonably long waiting period for legal recognition (twenty years for Jehovah’s witnesses in Religionsgemeinschaft) is unjustifiable, particularly for groups with long-standing international presence and established domestic communities (Religionsgemeinschaft der Zeugen Jehovas v Austria: para. 98). Such excessive delays violate Article 14 read in conjunction with Article 9 ECHR, because they place the group’s members at a disadvantage compared with other religious communities.

It might be argued that the jurisprudence of the ECtHR on religious-registration cases appears consistent because these cases are less normatively challenging compared to cases touching on public morals: the applicants in these cases are typically minority groups seeking equal treatment rather than licence to offend. But this is not the only explanation. A government may not distribute the benefits of legal recognition unequally just because a majority considers certain groups to be less worthy of concern; such discrimination is incompatible with the right to equal respect for personal autonomy. Human rights prohibit reliance on certain types of reasons, such as majoritarian preferences, to justify state coercion.  This helps to explain why, in registration cases, the ECtHR engages in virtually no balancing of interests: the Court refrains not out of conceptual confusion but because allowing impermissible, majoritarian reasons into the balancing exercise would itself undermine the very right at stake.

Freedom of Religion or Belief and Freedom from Discrimination on the Grounds of Religion or Belief

Understanding the scope and function of the right to freedom of religion or belief also requires examining its relationship with a distinct but closely related right: the prohibition of discrimination on the grounds of religion or belief. Although these two rights sound similar and in practice may protect overlapping interests, they perform different functions. How they interact, and how far each can go in protecting individuals and groups, is a question that continues to challenge courts and international human rights mechanisms, and remains a rapidly developing area of academic scholarship. This inquiry is especially valuable for understanding intersectional discrimination, where disadvantage arises from the combination of two or more protected characteristics. The following section can only sketch the contours of this evolving field and offer some introductory guidance to this complex but fascinating set of questions.

Direct and indirect discrimination on the grounds of religion or belief

The legal definition of direct and indirect discrimination on the grounds of religion or belief is similar under EU law, the ECHR and the UK Equality Act 2010 (but it is similar in many other jurisdictions too). Direct discrimination occurs where one person is, has been or would be treated less favourably than another on the grounds of religion or belief. Indirect discrimination occurs where people having a particular religion or belief are, or would be, at a particular disadvantage compared with other persons (Directive 2000/78: Arts. 2(2)(a) and 2(2)(b)) Unlawful discrimination, either direct or indirect, can take place even when both the discriminator and the discriminatee hold the same protected belief.

At least four qualifications must be included in this general definition of the legal prohibition on religious discrimination. First of all, direct discrimination requires treating people differently. A rule or policy cannot amount to direct discrimination if it treats everyone in precisely the same way (Lee v Ashers Baking: para. 23). By contrast, indirect discrimination can arise from rules or policies that are facially neutral, that is, rules or policies that seem to treat everyone in the same way, but in practice they impose a particular disadvantage on people with protected characteristics, such as protected beliefs. Complainants of indirect discrimination must prove prima facie indirect discrimination before the courts; in other words, they have to convince the courts that the rule or policy in question imposes a particular disadvantage on the protected group to which they belong. It is important to note that in most European jurisdictions (including the UK) claimants do not have to rely on statistical evidence to prove that a rule or policy has disadvantaged them. Julie Ringelheim notes that is not a requirement anymore due to the significant burden it posed to claimants.

Second, the prohibition of direct discrimination on the grounds of religion or belief is compatible with positive measures that aim to provide support to specific under-represented or disadvantaged belief groups. That is in line with other protected forms of affirmative action across discrimination law (Case C-83/14 CHEZ v Komisia za zashtita ot diskriminatsia).

Third, belief organisations, such as churches, can set occupational requirements that favour employees with specific beliefs or entail a heightened degree of doctrinal loyalty for employment in certain posts (see e.g. EU Employment Equality Directive, Article 4). According to the Court of Justice of the EU (CJEU), the ECtHR and the UK courts, the autonomy rights of belief organisations can justify only limited exemptions from discrimination law (Schüth v Germany). More specifically, an organisation whose ethos is based on religion or belief may lay down an occupational requirement only when there is a “direct link” between the requirement and the activity concerned (C-414/16 Egenberger: para. 63). This direct link aims to strike a “fair balance” between the autonomy interests of belief organisations, on the one hand, and the right of workers to anti-discrimination on the other. The direct link can be established either by reference to the nature of the activity (e.g. roles core to the mission of the organisation) or by reference to the context in which the activities are carried out (e.g. roles representing the organisation externally) (Egenberger: para. 62). Apart from the requirement for a direct link, the occupational requirement in question must also be justified, which means that the belief organisation in question must show this was a necessary step to avoid probable and substantial harm to its ethos or autonomy (Egenberger: para. 67). In practice, the case-law in this area shows that belief organisations can set occupational requirements only in limited cases involving liturgical, ritual, or otherwise core-to-their-mission posts (Case C-68/17, IR v JQ).

It is important to note here that the role of the courts in cases involving occupational requirements is not to rule on the ethos of the belief organisation in question. As noted earlier, courts lack competence to inquire into theological disputes or other belief-related standards. However, courts have competence to decide whether theological reasons (for instance) were used only as a pretext for wrongful discrimination. For whether a belief organisation believed that a certain occupational characteristic was ethically required in a particular case is a question of sincerity, not a question of validity of the religious or ethical belief in question. It is therefore a question capable of being decided by secular courts (Kosteski: para. 39).

Finally, demonstrating that a rule or policy amounts to prima facie indirect discrimination on the grounds of religion or belief is only the beginning of the argument. That is because, as both the ECHR and Article 2(2)(b)(i) of Directive 2000/78 set out, an indirectly discriminatory rule may be permitted if it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Once again, there are similarities between how the legitimacy and proportionality tests work under the right to freedom of religion or belief and under the prohibition of discrimination on the grounds of religion or belief. The last section of this chapter will return to this point.

Group membership

As mentioned earlier, the right to freedom of religion or belief and the prohibition of discrimination on the grounds of religion or belief use the same test to determine which beliefs are protected. However, the two provisions operate differently when it comes to group membership. The underlying reasons for this difference stem from the distinct emphasis of each right, which, while sharing a common normative foundation, are not synonymous – a point I will revisit in the next section of this chapter.

On the one hand, in the context of religious freedom, the right to manifest a belief is protected, at least in principle, regardless of whether others share that belief. Solitary beliefs and their manifestation are protected. On the other hand, indirect discrimination requires that a facially neutral rule has disadvantageous impact on a protected group. Defining protected groups for the purposes of discrimination law is complex and falls outside the scope of this chapter. However, it is important to note that religion and culture are better understood, both socially and ethically, as operating on a continuum of foundational interests rather than as separate categories. That is why similar liberal principles of fairness and equality are used to justify cultural and religious accommodation (Patten, 2021).

An account of religious or belief discrimination that includes only cohesive, “socially salient” groups within its protective scope is unsatisfactory. That is because such an account would not be able to explain cases where the ECtHR has recognised that convictions like opposition to abortion (Van Schindel and Others v the Netherlands) or belief in alternative medicine (Nyyssönen v Finland) are protected. A requirement for a cohesive group would also have trouble capturing many protected political or philosophical beliefs under discrimination law.

To avoid those problems, the prohibition of discrimination on the grounds of religion or belief is informed by a looser conception of what constitutes a “group”. However, a looser definition of a group is not – and should not be – solely subjective: it still requires a sociological connection between the members of a group, identifiable from an external point of view. That sociological connection might at times not tally with the subjective point of view of the members of the group or of the group itself as a whole, i.e. it would cover individuals who consider themselves members of a group when the group does not, and vice versa.

In a claim for unlawful indirect discrimination, this looser understanding of group membership works as follows. An Orthodox Christian individual, for instance, could prove prima facie indirect discrimination by showing that a rule or policy has disadvantaged a disproportionate number of Orthodox Christians; or Christians; or religious people. Proving prima facie indirect discrimination requires that at least one of those three groups that she belongs to will have to be shown to be disadvantaged by the legislation in question (Trispiotis, 2022). That is how claimants could satisfy discrimination law’s requirement for group membership in the looser interpretation of the term identified earlier.

Relationship Between the Two Rights

So far, this chapter has highlighted some key similarities and differences between religious freedom and religious discrimination. It is crucial for both the courts and legal scholars to grasp the normative relationship between these two rights, making a more detailed discussion necessary. The academic scholarship on the relationship between religious freedom and religious anti-discrimination meanders between two paths. Some argue that the two rights serve the common purpose of protecting religion or belief as an individual and collective form of identity. On that account, the prohibition of discrimination on the grounds of religion or belief is “auxiliary” to the right to freedom of religion or belief. That interpretation of the two rights suggests that they are largely synonymous. It is unclear whether there is anything they add to each other.

Others maintain that religious freedom and religious antidiscrimination serve distinct purposes that must not be conflated. They argue that their main difference is that religious freedom aims to protect individuals from disadvantage on grounds of religion or belief, whereas the prohibition of wrongful religious discrimination is concerned with disadvantage to groups. Those different purposes, it is argued, are incompatible and create tensions between the two rights. For instance, the focus of discrimination law on group disadvantage can undermine the protection of individual conscience under religious freedom and promote an approach offering greater protection to established forms of belief.

However, both of these opposing positions—interpreting religious freedom and religious anti-discrimination either as distinct and in competition or as synonymous—are unsatisfactory. Neither fully captures the strong normative and doctrinal connections between the two rights or explains the reasons behind their close relationship.

Rights in Conflict

An interpretation of the right to freedom of religion or belief and the prohibition of discrimination on the grounds of religion or belief as conflicting overlooks the deep normative links between the two rights. Religious freedom (and freedom of conscience in a broader sense) cannot truly exist if wrongful discrimination on the grounds of religion or belief persists in areas like education or the workplace. In fact, the legal function of the two rights clearly reflects the deep normative links between them.

Even if the two rights are not considered to be in conflict, some argue that they serve distinct purposes; for instance, that the aim of the prohibition of discrimination on the grounds of religion or belief is to protect members of groups from being saddled by unfair burdens on their membership, whereas the aim of the right to freedom of religion or belief is to protect individual autonomy interests in relation to religious adherence. However, a problem with this description is that both rights protect against wrongful disadvantage faced by individuals and groups, so dividing them based on this criterion would not fully capture their scope. Two specific sets of examples can illustrate this point.

First, in a consistent line of cases the ECtHR has held that the right to freedom of religion under Article 9 ECHR does indeed protect belief groups and associations from unjustified state interference with their autonomy. These cases demonstrate that the right to freedom of religion should not be interpreted as being solely individualistic as it in fact protects members of belief groups from facing particular obstacles because of their membership. As discussed earlier, examples are cases where states unjustifiably denied legal registration to religious groups (Jehovah’s Witnesses of Moscow and Others v Russia), as well as in cases where the administrative procedures for granting legal status to particular groups were unreasonably delayed (Religionsgemeinschaft Der Zeugen Jehovas v Austria: para. 98). In addition, the ECtHR has also found violations of Article 9 ECHR in cases where state intervention (or lack thereof – see e.g. 97 Members v Georgia) aimed to diminish the role of historically unpopular religious groups (Metropolitan Church of Bessarabia and Others v Moldova) or denoted indifference towards religious violence targeting members of particular groups (Begheluri and Others v Georgia: paras. 160-165).

In all these cases, the ECtHR incorporates an analysis of group disadvantage in relation to access to important resources, such as legal recognition of a belief organization, into its interpretation of the right to freedom of religion or belief. This suggests that the right to freedom of religion or belief offers some protection against wrongful disadvantage based on one’s membership in a belief group, indicating that its purpose is not solely individualistic. Therefore, it is unlikely that the right to freedom of religion or belief and the prohibition of discrimination on the grounds of religion or belief can be distinguished on the basis that the former aims to eliminate individual disadvantage while the latter targets a specific form of disadvantage experienced only by members of identifiable groups.

Secondly, any theoretical account of the relationship between religious freedom and religious discrimination must be able to explain the significant overlaps between the two rights in the relevant case-law. Cases under the ECHR can serve as helpful examples once again. In a wide range of cases on limitations on the manifestation of protected beliefs, complaints before the ECtHR typically invoke dual legal bases involving both the right to freedom of religion or belief and the prohibition of discrimination on those same grounds. Typically, the ECtHR suggests that the two rights play similar roles. More specifically, after examining whether the interference that the applicant(s) complained of amounts to a violation of their right to freedom of religion, the ECtHR usually eschews a separate examination of the separate complaint of religious discrimination under Article 14 ECHR (Church of Jesus Christ of Latter-Day Saints v UK: paras. 37-39). As the ECtHR held in S.A.S., this is because the reasons for not finding a violation of the right to freedom of religion – i.e. that the interference in question was prescribed by law, pursued a legitimate aim and was necessary in a democratic society (Article 9(2) ECHR) – are equivalent to the reasons that could justify indirect religious discrimination had the complaint been based only on that right, i.e. on Article 14 taken in conjunction with Article 9 ECHR (S.A.S.: paras. 160-162). More precisely, according to the ECtHR, the ‘legitimate aim’ requirement under Article 9 is equivalent to the requirement for an “objective and reasonable justification”, which discriminatory rules or policies must fulfil in order to be compatible with Article 14 ECHR. Furthermore, both Article 9 and Article 14 ECHR also require a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”, which once again the ECtHR considers equivalent between the two provisions (S.A.S.). This doctrinal overlap suggests that, regardless of whether the disadvantage in question emerges as an individual wrong or as a pervasive advantage gap between belief groups, complaints under the two rights invite similar questions of justification and proportionality. Both rights require that the courts carefully scrutinise the reasons behind the complained interference with liberty in order to ensure that its foundation is not the assumption that some religious or philosophical beliefs are superior to others.

The significance of this doctrinal trend could be questioned though. It could be counter-argued that the anti-discrimination guarantee of Article 14 is an insipid right under the ECHR and that, other things being equal, finding a violation of the substantive right to freedom of religion or belief extinguishes the necessity to pursue an examination of the separate complaint of religious discrimination (Eweida: para. 95). However, this point would be begging the question because the ECtHR eschews a separate examination of complaints of religious discrimination also in cases where no violation of Article 9 ECHR has been found (S.A.S.: paras. 161-162). This counter-argument would also struggle to explain other important instances of doctrinal overlap between religious freedom and religious antidiscrimination, such as those emerging in cases where the ECtHR has read a duty of reasonable accommodation, which is a distinct duty of anti-discrimination, into the right to freedom of religion (Francesco Sessa v Italy).

These doctrinal overlaps confirm that both rights aim to address wrongful disadvantage based on religion or belief, whether it manifests as an individual wrong, a disparity between groups, or both. Interpreting the two rights as conflicting or serving entirely separate purposes fails to capture this.

Synonymous rights

The doctrinal links between the two legal rights reveal that they share their main (but not necessarily only) aim: to secure fair background conditions for people to pursue their religious or ethical commitments. Even so, the two rights should not be understood as being synonymous.

The right to freedom of religion or belief places its emphasis vertically, on individual identity and on our personal responsibility to define value and live in accordance with our commitments. However, that does not make the right individualistic: as discussed earlier, freedom of religion does protect individuals from forms of group disadvantage that arise from their membership of a belief group. The vertical emphasis of the right is clear in its legal framing, which offers absolute protection to the right to believe and change one’s beliefs (see e.g. Article 9(1) ECHR) and prohibits state authorities from evaluating the doctrinal legitimacy of individual beliefs (Moscow Branch of the Salvation Army v Russia: para. 58). An important difference to the prohibition of discrimination is that the injustice that individuals suffer when their right to freedom of religion is violated is non-comparative. A disproportionate interference with the right to freedom of religion would amount to a violation regardless of whether members of other belief groups, or indeed anybody else, was treated in the same way. For instance, in the case of Eweida, which was mentioned earlier, the courts are called to outline the scope of the right to manifest religion or belief, not whether an individual has the same right to manifest their belief as others. Of course, the ECtHR will draw on its previous judgments in similar cases. However, those are used to guide the court’s judgment in relation to relevant non-comparative principles, such as toleration and impartiality (Eweida: paras. 81-94). The decision does not depend on a comparison between the claim of the applicant and the claims for accommodation that others have put forward in similar cases. The injustice arising from a violation of the right to freedom of religion or belief remains non-comparative.

By contrast, the emphasis of the prohibition of discrimination on the grounds of religion or belief is horizontal. The different emphasis of religious anti-discrimination reflects that the legal duty not to discriminate is a duty of distributive justice. The prohibition of discrimination on the grounds of religion or belief aims to ensure that important resources and opportunities are distributed in ways that do not unfairly disadvantage individuals on the grounds of their protected beliefs. Those resources and opportunities (such as jobs, housing or education) often have little to do with the manifestation of religion or belief. The emphasis of anti-discrimination is horizontal in an additional way, too: it links religion or belief with other protected grounds of discrimination. An intersectional approach is particularly relevant to discrimination on the grounds of religion or belief, which typically involves forms of injustice that occur through the interaction of religion, gender and racial and ethnic origin. An interpretation of this area of discrimination law that focuses only on religion or belief as individual identity could overlook the effects that the interaction between gender and religion, for instance, can have on socio-economic disadvantage.

Suggested Citation – Ilias Trispiotis, ‘Freedom of Religion or Belief’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)