Cisnormativity and Christiannormativity at the Strasbourg Court: Reflections on Gender and Religion

Eugenia Relaño Pastor is Assistant Professor in the School of Law, Complutense University, Madrid (Spain), and Cooperation Partner in the Department of Law and Anthropology at the Max Planck Institute for Social Anthropology, Halle (Germany). [1]

Europe is suffused with Christianity, or at least memories of its past influence.

—Andrew Higgins[2]

Those searching to have their gender legally recognized by the European Court of Human Rights (ECtHR or Strasbourg Court) and members of religious minorities who pursue equal rights and privileges enjoyed by dominant religious groups may not apparently share much in common. However, the following post sheds light on the similarities in the demands coming from gender and religious minorities. An initial examination unveils three common features shared by gender and religious minorities in searching for effective freedom: (1) the bias embedded in heteronormative laws and traditional church-state relations, (2) the experience of intersectional forms of discrimination, and (3) a self-determination approach to gender and religion.

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Interview: András Sajó on Religious Freedom, Constitutionalism, and Democracy in the Jurisprudence of the Strasbourg Court

András Sajó is a former judge at the European Court of Human Rights. He is currently a University Professor at Central European University. He previously was a visiting professor and guest lecturer at University of Toronto, Columbia University, University of Chicago Law School, NYU School of Law, Cardozo School of Law (New York), Harvard Law School, Bocconi University (Milano), and other institutions. Professor Sajó received the Hungarian Academy of Sciences Book Award (1989) and The Blackstone Lecture at Oxford University (1993). He holds Honorary Doctorates from the European University Institute (Florence) and Ilia State University (Tbilisi). Professor Sajó has been involved in legal drafting throughout Eastern Europe. In addition, he participated and/or advised in drafting the Ukrainian, Georgian, and South African constitutions.

Professor Sajó has published extensively on constitutionalism, the rule of law, theory of democracy, the secular state, human rights, and media regulation. His recent publications include Routledge Handbook of Illiberalism (2022, co-edited with Renáta Uitz and Stephen Holmes), Ruling by Cheating: Governance in Illiberal Democracy (2021), Constitution of Freedom: An Introduction to Legal Constitutionalism (2017, co-authored with Renáta Uitz), and The Oxford Handbook on Comparative Constitutional Law (2012, co-edited with Michel Rosenfeld). In 2020, professor Sajó was appointed to the Meta Oversight Board, an independent body to which people can appeal if they disagree with corporate decisions about Facebook or Instagram content.

András Sajó was interviewed by Dmytro Vovk.

Do you see any comprehensive doctrine of freedom of religion or belief (FoRB) in European Court of Human Rights jurisprudence? Or does the Court use a more case-by-case approach and, as you said in one of your works with respect to national constitutional systems, has the Court “avoided arriving at unequivocal answers to the question of church-state or religion-state relations?”

If you try to make an analysis of ECtHR jurisprudence, you will see that it is significantly circumstantial. The Court got into the FoRB area relatively late, in Kokkinakis v. Greece (1993). It has a rather strong and relatively coherent approach when it comes to individual exercise of religion. However, when it comes to areas where FoRB conflicts with other rights like freedom of speech or non-discrimination, the Court’s jurisprudence becomes somewhat less clear. Think about employment and labor rights. Although the Court has decided on the matter, I’m not so sure that this is the final word, particularly because of the latest developments in the European Court of Justice, which seems to go in a different direction. The same is true regarding church-state relations. Public secondary education is an obvious example here. Compare Folgerø and Others v. Norway (2007) with Lautsi v. Italy (2011), and you will see the same principles resulted in very different conclusions. So there are some guiding principles, but the way they apply is to a very great extent determined by national differences. That makes it much more akin to a case-by-case approach.

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Christianity, Human Rights, and Dignity: Squaring the Triangle

Brett G. Scharffs
Brett G. Scharffs

Brett G. Scharffs is Rex E. Lee Chair, Professor of Law, and Director of the International Center for Law and Religion Studies, J. Reuben Clark Law School, Brigham Young University

Andrea Pin is Associate Professor of Comparative Public Law, University of Padua, and Senior Fellow at the Center for the Study of Law & Religion Emory University

Andrea Pin

Dmytro Vovk is Director of the Centre for the Rule of Law and Religion Studies, Yaroslav Mudryi National Law University (Ukraine) and co-editor of Talk About: Law and Religion

This blogpost is modified from Scharffs, Pin, and Vovk’s Introduction to “Human Dignity and Human Rights—Christian Perspectives and Practices: A Focus on Constitutional and International Law,” in a special issue of the BYU Law Review.

Dmytro Vovk

Introduction

The relationship between Christianity and human rights is a matter of deep controversy, drawing the attention of theologians, historians, lawyers, and philosophers alike. The historical connections between various denominations of Christianity and human rights and the dialectics between Christianity and human rights are matters of endless academic debates. How much contemporary narratives of rights are owed to Christianity, what Christianity has borrowed from nonreligious modern and post-modern thinkers, the extent to which the contemporary language of rights clash with Christian values, and the theoretical foundations of such clashes keep scholars busy.

The topic, however, is all but confined to theoreticians. How Christianity understands or ought to understand rights is often discussed within legal and political circles. The public role of Christianity and Christians in contemporary societies surfaces whenever a policy that touches upon Christian values is discussed. Parliaments and courts, especially in countries born out of Christianity, are often busy trying to reconcile religious freedom claims put forward by Christians with rights that contradict Christian morality.

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