The full opinion is
here: http://www.bailii.org/ew/cases/EWCA/Civ/2005/199.html
The strange thing about the
British court's opinion is that it is based on Article 9 of the European
Convention. The court held that the school had not adequately justified
its uniform policy under Article 9. The reason this is strange is that it
seems to fly in the face of several decisions on Article 9 by the European Court
for Human Rights. In particular, the British court's decision is hard to
reconcile with Sahin v. Turkey, in which the European Court upheld Turkey's ban
on headscarves as applied to a student in the Istanbul University medical
school. To my mind the Turkish case is a much more problematic policy,
especially insofar as it applies to adults attending university, as opposed to
children in a comprehensive school. So if the Turkish ban does not violate
Article 9, then why should the British ban?
This is how the British
court distinguished Sahin:
Basically, the British
court seems to make religious rights under Article 9 turn on whether a
particular country has declared itself secular or theocratic. Thus, if a
country declares itself secular, then that policy declaration itself will serve
as a sufficient interest to justify regulation of religious behavior under
Article 9. The British court's view of the religious nature of British
society probably means that Britain more or less stands alone in Europe.
Virtually every other European country has now adopted a domestic constitution
that explicitly separates church and state. It is also a little odd that
the British court uses the religious nature of its law to protect a Muslim,
since other aspects of British law (common law blasphemy law, for example)
protect only Christianity.
In the end, the opinion may
not mean much. The court did not hold that the school must abandon its
uniform policy: "Nothing in this judgment should be taken
as meaning that it would be impossible for the School to justify its stance if
it were to reconsider its uniform policy in the light of this judgment and were
to determine not to alter it in any significant respect." The court
only held that the policy had to be reconsidered and justified in light of
several factors that essentially entail balancing the school's decorum claims
against the student's Article 9 rights. I suspect the school will do just
that and nothing will change.
Steven G. Gey
Fonvielle & Hinkle Professor of Law
Florida State University College of Law
Tallahassee, FL 32306
TEL 850-644-5467
FAX
850-644-5487
SSRN Author page:
<http://ssrn.com/author=220952>
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