Abstract
This paper argues that Article 8 of the ECHR, as applied to the protection of a person’s right to wear a headscarf, is an inappropriate locus for thrashing out arguments about the right to protection of religious freedom, and that Article 9 allows for a broader legal and political analysis of the multiple meanings and impacts of religion in our lives. However, the law should not prohibit women from wearing the headscarf. Legal regulation of the headscarf should be replaced with robust political debate about the many diverse and intersecting ways in which it is possible to experience womanhood, sexuality, culture, religion, race, nationality and economic security in the twenty-first century.
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Notes
Diana Tietjens Meyers (2000) explores the relationship between culture, autonomy and agency in relation to female genital cutting. One possible worry here is the legal privileging of religious claims over cultural claims, which may lead to ‘cultural’ practices being represented by applicants as ‘religious’ practices in order to gain legal protection. FGC cannot be reduced to one or other category and is not always (indeed rarely) simply a religious practice but is also linked to cultural traditions, nationality, and sex/gender politics. Thus the ‘corrective’ surgery performed on intersex infants in Western society is also brought into question by this debate. See Tietjens Meyers (2000); Grabham (2007); Fausto Sterling (2000).
I hope of course that such political discussion would be fair, open and deliberative, and that the potential ‘tyranny of the majority’ would not prevent proper protection of the rights of the minority. In this sense, legal debates about the proper scope of religious freedom are always also political questions.
See Deckha (2004), arguing that this ‘essentialising’move is not necessarily problematic.
See n. 1, above.
I have chosen Canada for my example because it is one of the few jurisdictions in the world where same-sex marriage (as opposed to civil partnership) is legal.
Duggan suggests that sexuality is paradoxically both ‘malleable… and yet highly resistant to coercive change … This is a paradox that neither notions of identity nor fluidity can quite capture’ (1995b, p. 192). Arguably sexuality and religious faith/practice are analogous.
References
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Acknowledgments
Many people generously discussed these difficult issues with me, to whom thanks are due: Mike Adler, Gillian Calder, Maneesha Deckha, Simon Halliday, Lynn Jamieson, Colin MacLeod, David Sibbering, James Tully, and Prue Vines. For comments and feedback on earlier drafts, particular thanks go to Gillian Calder, Simon Halliday and Vanessa Munro. Thanks also to the editorial staff of Res Publica and to Jill Marshall for her thoughtful contribution which enabled this reply. Responsibility for the results of all of these interventions is, as ever, my own.