Global Extremes: Opinion

Secularism defined: a tale of two courts

It is the responsibility of the secular state to guarantee both the freedom of belief and the limits that might rightfully be placed on this freedom

Haldun Gülalp
9 November 2021, 12.00am
View from Suleymaniye Mosque in istanbul, Turkey
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Pavel Muravev / Alamy Stock Photo . All rights reserved
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In May 2021, Saudi Arabia’s Ministry of Islamic Affairs issued an order to lower the volume of mosque loudspeakers and use them only for calls to prayer, rather than to broadcast full sermons. Faced with a conservative backlash, the minister explained that the decision was in response to complaints from citizens.

In Turkey, the coverage of this news caused some excitement. Many Turkish citizens also complain, albeit timidly and unsuccessfully, about the high volume of the ezan (call to prayer) issuing from numerous mosques in each neighbourhood. It seems highly unlikely, however, that formal complaints through bureaucratic channels would achieve anything, given the political and ideological sensitivity of the matter.

National unity was achieved through religious homogenisation in Turkey. A popular nationalist slogan that long predates the Islamist rule of the Justice and Development Party (AKP) declares: “The flag will never be lowered and the ezan will never be silenced.”

Indeed, a recent decision of the Turkish Constitutional Court (TCC) has ruled out the possibility of any successful litigation against the administration on this matter. This case, in ostensibly secular Turkey, contrasts with a parallel case judged by the European Court of Human Rights (ECtHR). A brief comparison between these cases will reveal the substance of secularism in relation to freedom of religion.

But first a few words on the meaning of this concept, heatedly debated since the 1980s. As a firm supporter, I take secularism to be a normative principle for free and equal citizenship and propose the following definition:

“Secularism is a political principle that aims to guarantee citizens the right to freedom of ‘conscience and religion’, as spelled out in international human rights documents… [and as such] entails the existence of a political space separate from and independent of religions for the purpose of negotiating common issues and areas of concern, so that the social and political needs of all religious and irreligious members of society may be met.”

I take my cue from the rulings of the ECtHR. This may seem ironic to those familiar with the court’s jurisprudence, because a clear position on secularism is never spelled out, if secularism is defined as the way in which state-religion relations are structured.

In all relevant rulings, the ECtHR repeats the same statement:

“Where questions concerning the relationship between State and religions are at stake… opinion in a democratic society may reasonably differ widely... Rules in this sphere will consequently vary from one country to another according to national traditions… The Court’s task is to ascertain whether the measures taken at the national level are justified in principle and proportionate.”

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Empowering religious groups to become political actors does not constitute freedom of religion for all and violates the norms of secularism, whether exercised at home or abroad

This position creates an ambiguity, occasionally producing inconsistent or problematic outcomes. Nevertheless, the court’s approach relies on a solid basic principle that offers a way to cut through the myriad and confusing conceptualisations for a normative mode of state regulation of religion. While the court may reject an explicit position on state-religion relations, its jurisprudence reveals an implicit position on what is essential in a coherent and meaningful concept of secularism.

The conventional definition of secularism is “the separation between state and religion”. This inevitably leads to a slew of questions, because such a separation is in fact impossible, both in secular and non-secular states. All states must have a policy of regulating religion(s) and either serve or suppress the needs of their (variously) religious or nonreligious citizens. What the ECtHR chooses to ignore is usually the starting point of most academic treatments, generating a multiplicity of issues and ideas.

Is the state “assertive” or “passive” in its dealings with religious affairs? Is state interference, presumably in order to establish secularism, not a violation of secularism’s promise of “neutrality”, rendering it internally contradictory? Or should religious organisation(s) and the state be placed on an equal footing of mutual autonomy via a model of “twin tolerations”? Perhaps a paradigm of “multiculturalism” would better guarantee state tolerance towards religion than the logically impossible claim to neutrality. And so on.

But from the ECtHR’s perspective, whatever the institutional structure may be, the crux of the matter is the observance of the right granted in Article 9 of the European Convention on Human Rights, which protects the “freedom of thought, conscience and religion”. Significantly, the court notes in its first-ever finding of a violation of Article 9, in the case of Kokkinakis v. Greece (1993), that the article is not only vital for the religious, “it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.”

It is the responsibility of the secular state to guarantee both the freedom of belief and the limits that might rightfully be placed on this freedom

Comparing one of the ECtHR’s recent decisions with a parallel case judged by the TCC will show the essence of the freedom-oriented concept of secularism endorsed by the ECtHR as opposed to the oppressive majoritarianism of the Turkish government.

In the case judged by the TCC in 2016, the applicant, D.Ö., prudently concealing his full name, complained that the early morning ezan, sounded through the speakers of the mosques in his neighbourhood, was loud enough to disturb his sleep. Having failed his case in the administrative court system, he claimed to the TCC that several constitutional rights had been violated, including the state’s responsibility to protect secularism, freedom of belief, equality before the law, and the health of the environment.

After a convoluted reasoning, albeit justifiably noting the lack of substantial evidence in the applicant’s case, the critical paragraph 51 in the TCC’s judgement states that the principles of “democratic toleration” and “pluralism” compel individuals to accept the requirements of the faith of the “vast majority” of society. In an oxymoronic juxtaposition of pluralism with majoritarianism, the TCC thus places the burden of tolerance on the individual rather than on the majority and the state.

It is not clear whether this case has been taken to the ECtHR, but the outcome there would likely have been different.

In the case of Schilder v. the Netherlands (2012), the applicant was the parish priest of a Catholic church and eager to sound the church bell too loudly for the comfort of the neighbours. They complained to the local authority, which issued a notice to the priest to lower the bell’s volume. After going through the local court system without success, the priest applied to the ECtHR, complaining of a violation of his right to freedom of religion (Article 9).

The court found the application “inadmissible”. Explaining its decision in the critical paragraph 18, the court notes that Article 9 protects “acts of worship or devotion which are aspects of the practice of a religion or belief” but it “does not always guarantee the right to behave in the public sphere in a way which is dictated… motivated or influenced by a religion or belief.”

In other words, religion and belief are protected, but always within limits. It is the responsibility of the secular state to guarantee both the freedom of belief and the limits that might rightfully be placed on this freedom. A difficult task, no doubt, which shows that secularism and democracy are only symbiotically effective.

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