Limitations on the Right to Manifestation of Religion Under the European Convention on Human Rights: Constructions of the Public Sphere

While Article 9 of the European Convention on Human Rights ensures freedom of thought, conscience and religion, Article 9(2) provides that the right to manifest religion or beliefs may be subject to limitations. This dissertation examines three such cases, Sahin v Turkey (2001), Dahlab v Switzerland (2005) and Metropolitan Church of Bessarabia v Moldova (2001). I argue that a close reading of these cases discloses that notions of the public sphere and its relationship to both rights and to the common good are implicit in the Court's decision in each case Bringing this reading into conversation with two influential accounts of the public sphere, that of Jacques Maritain and that of Jurgen Habermas, demonstrates that the Court operates with multiple, mutually incompatible accounts of the public sphere. Which vision of the public sphere underlies and motivates the Court has significant implications for how the Court interprets limitations on religious freedom.;The first chapter sets out the history of the European Court of Human Rights and introduces three framing concepts: first, the structure and function of limitations clauses and the margin of appreciation doctrine in the Court's jurisprudence, second, the history of secularism and its variants laicite and laik, and finally the idea of the public sphere. Chapter two presents an analysis of Dahlab, in which the state restricts a public school teacher wearing an Islamic headscarf while performing her duties and Sahin, in which the state restricts a public university student wearing an Islamic headscarf while attending classes. In chapter three, I will examine Metropolitan Church, in which the state refuses to grant official recognition to a breakaway group of the Orthodox Church. Chapter four considers two account of neutrality, positive and negative, and applies them to the cases. Chapters five and six develop Maritain's and Habermas' accounts of the public sphere and its relationship to the common good and human rights. Chapter seven brings these competing visions of the public sphere to bear on the three cases, considering the implications for religious freedom of both approaches.