1. See Nieuwenhuis, Aernout, The Concept of Pluralism in the Case-Law of the European Court of Human Rights, 3 Eur. Constit. L. Rev. 368 (2007)Google Scholar. Nieuwenhuis notes that

The concept of pluralism plays a prominent part in the case-law of the European Court of Human Rights (ECtHR). The Court considers “pluralism” as one of the main characteristics of a democratic society. That is to say that pluralism is an important factor determining the scope and impact of a number of fundamental rights such as the right to freedom of speech and the right to freedom of association. Id. at 368.

2. Tulkens, Françoise, The European Convention on Human Rights and Church-State Relations: Pluralism vs. Pluralism, 30:6Cardozo L. Rev. 2579 (2009)Google Scholar.

3. Article 9 provides that:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others. The European Convention on Human Rights and its Five Protocols, Council of Eur., Nov. 4, 1950.

4. Kokkinakis v. Greece, App. No. 14307/88, 260 Eur. Ct. H.R., § 31 (1993).

5. See concurring opinion of Judge Pettiti, Wingrove v. U.K., App. No. 19/1995/525/611, 24 Eur. Ct. H.R. 1 (1997).

6. Bessarabia v. Mold, App. No. 45701/99, 35 Eur. H.R. Rep. 13, § 116 (2001).

7. Holy Synod of the Bulg. Orthodox Church & Others v. Bulg., App. No. 35677/04, Eur. Ct. H.R., § 103 (2009); Religionsgemeinschaft der Zeugen Jehovas & Others v. Austria, App. No. 40825/98, § 61 (2008). See also Lang v. Austria, App. No. 28648/03, Eur. Ct. H.R., § 24 (2009) (“Observing that religious communities traditionally exist in the form of organised structures, the Court has repeatedly found that the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is, thus, an issue at the very heart of the protection which Article 9 affords”); Church of Scientology Moscow v. Russ., App. No. 18147/02, Eur. Ct. H.R., § 72 (2007) (“the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords.”).

^8. Bessarabia v. Mold., App. No. 45701/99, 35 Eur. H.R. Rep. 13, § 119 (2001).

9. Ouranio Toxo v. Greece, App. No. 74989/01, 45 Eur. H.R. Rep. 277, § 35 (2005).

10. United Communist Party of Turk. v. Turk., App. No. 133/1996/752/951, 26 Eur. H.R. Rep. 121, § 43 (1998).

11. See, e.g., Ouranio Toxo v. Greece, App. No. 74989/01, 45 Eur. H.R. Rep. 277, § 35 (2005) (pluralism described as involving “genuine recognition of, and respect for, diversity and the dynamics of traditions and of ethnic and cultural identities”); 97 Members of the Gldani Congregation of Jehovah's Witnesses & 4 Others v. Ga., App. No. 71156/01, 46 Eur. H.R. Rep. 613, § 132 (2007) (pluralism ensures that competing groups “tolerate each other”).

12. Lovin, Robin W., Religion and Political Pluralism, 27 Miss. C. L. Rev. 91, 91 (2007)Google Scholar.

13. See, e.g., Religionsgemeinschaft der Zeugen Jehovas & Others v. Austria, App. No. 40825/98 (2008); 97 Members of Gldani Congregation of Jehovah's Witnesses & 4 Others v. Ga., App. No. 71156/01, 46 Eur. H.R. Rep. 613 (2007); Holy Synod of the Bulg. Orthodox Church & Others v. Bulg., App. No. 35677/04, Eur. Ct. H.R., § 103 (2009); Church of Scientology Moscow v. Russ., App. No. 18147/02 (2007).

14. Dahlab v. Switz., App. No. 42393/98, Eur. Ct. H.R. (2001).

15. Id. at § 1.

16. Id. at § 4.

17. Id. at §4.

18. Leyla Şahin v. Turk., App. No. 44774/98, Eur. Ct. H.R. (2004).

19. Id. at § 106.

20. Id. at § 108.

21. Dogru v. Fr., App. No. 27058/05,49 Eur. H.R. Rep. 8 (2009).

22. Id. at §64.

23. It has been widely noted that the Court's approach to religious freedom favors established majority religions. See, e.g., Danchin, Peter G., Of Prophets and Proselytes: Freedom of Religion and the Conflict of Rights in International Law, 49 Harv. Int'l L.J. 249 (2008)Google Scholar. See also, Renucci, Jean-François, Article 9 of the European Convention on Human Rights: Freedom of Thought, Conscience and Religion 15–16 (Council of Europe Publ'g 2005)Google Scholar.

24. Lautsi v. Italy, App. No. 30814/06, Eur. Ct. H.R. (2009).

25. Id. at § 47.

26. Id. at § 55-56.

27. A theme that emerges in the Article 9 cases is the Court's understanding of religious freedom as involving a balancing of the individual rights of the minority against the perceived group interests of the majority. Danchin, supra note 23, at 286-87. Yet the inequitable manner in which this principle is applied ought to be troubling. It is particularly notable that the majority's interest in Lautsi (to preserve and express an aspect of religious culture and ethical significance) was not deemed sufficiently important in Lautsi to outweigh the right of students from minority religions to be free of religious symbols, yet the interest of the majority in the headscarf cases (to uphold a secular culture) was deemed sufficient to restrict the conduct of religious minorities.

28. Bayatyan v. Arm., App. No. 23459/03, Eur. Ct. H.R. (2009).

29. Id. at § 49.

30. Evans, Carolyn, Freedom of Religion Under the European Convention on Human Rights 200 (Oxford Univ. Press 2001)CrossRefGoogle Scholar.

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historically ingrained cultural assumptions about not only the division between Christianity and Islam but also between Western and Eastern Christianity have played a part in the reasoning of the judges of the ECtHR. One could never prove this definitively, although it goes without saying that people normally behave according to received and dominant cultural knowledge. What appears as incoherence to Carolyn Evans … can be made sensible if this knowledge is taken into account.

33. Ingvill Plesner argues that the Dalab and Şahin decisions support “the impression that the Court at least accepts fundamentalist secularism as one legitimate state approach to religion.” See Plesner, , “The European Court on Human Rights between fundamentalist and liberal secularism,” Paper for the seminar on The Islamic head scarf Controversy and the Future of Freedom of Religion or Belief, Strasbourg, France 28-30 07 2005, available at http://www.strasbourgconference.org/papers/index.phpGoogle Scholar.

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35. Islam represents a particular difficulty for Europe, given the extent to which it challenges “some deeply held European assumptions” about the private nature of faith. Davie, Grace, Is Europe an Exceptional Case, The Hedgehog Rev. 32 (2006)Google Scholar.

36. Parliamentary Assembly of the Council of Europe, Recommendation 1804 (2007), § 6, available at http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta07/erecl804.htm.

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44. Id. at 128.

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46. “Address of His Holiness Benedict XVI to the Participants in the 56th National Study Congress Organized by the Union of Italian Catholic Jurists,” Dec. 9, 2006, available at http://www.vatican.va/holy_father/benedict_xvi/speeches/2006/december/documents/hf_ben_xvi_spe_20061209_giuristi-cattolici_en.html.

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60. Pierre Manent remarks that “one has the impression today that the greatest ambition of the Europeans is to become the inspectors of American prisons.” Manent, Pierre, Current Problems of European Democracy, Modern Age 15 (Winter 2003)Google Scholar.

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68. Id. at 212-13.

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if the reality of society is plural—as many political theorists have pointed out—this is a damagingly inadequate account of common life, in which certain kinds of affiliation are marginalized or privatized to the extent that what is produced is a ghettoized pattern of social life, in which certain kinds of affiliation are marginalized or privatized …

74. Mathewes, supra note 70, at 112.

75. This encounter is not one way but rather creates an occasion for religion to stand under the critical judgment of a tradition outside itself. Charles Taylor has written, for instance, of the ways in which “the secularist affirmation … of universal and unconditional rights” led to a prolongation of the gospel. In other words, it took the modern idea of human rights, born of “the break with Christendom,” for Christianity to discover new understandings about the authentic meaning of the Gospel. See Taylor, Charles & James Heft, A Catholic Modernity? 25–26 (Oxford Univ. Press 1999)Google Scholar.

76. Tanner, Kathryn, The Politics of God: Christian Theologies and Social Justice 223 (Fortress Press 1992)Google Scholar.

77. In discussing the idea of “humbly confessed particularism,” Mathewes writes:

[O]ur understanding of the epistemological implications of those beliefs should make us always eager to engage other positions in dialogue. We are confident of the tradition's basic story: humanity is in self-dividing revolt from God, and God has become incarnate in Christ, and continues to act in the world in the Holy Spirit, in order to restore us to our proper end.

That we know the story only in a mirror darkly “gives us a fundamentally Christian motive for engagement—caritas—a practice that synthesizes confession and dogmatism into a unitary yet triune action charged with faith, hope, and love.” Mathewes, supra note 70, at 135-36.

78. Johnson, supra note 52, at 224.

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80. Ouranio Toxo v. Greece, App. No. 74989/01, 45 Eur. H.R. Rep. 277, § 35 (2005).

81. As one commentator writes in discussing the Court's jurisprudence, “religious disagreement can be a sign that people are taking that pursuit seriously; but, more importantly, it can be a sign that individuals and religious communities are being accorded those political liberties necessary to foster the good of religion.” Tollefsen, Christopher O., Is there Value in Religious Pluralism?, Public Discourse (06 12, 2009), available at http://www.thepublicdiscourse.com/2009/06/270Google Scholar.

82. Bessarabia v. Mold., App. No. 45701/99, 35 Eur. H.R. Rep. 13, § 116 (2001).

83. Stackhouse, Max, Why Human Rights Needs God: A Christian Perspective, in Does Human Rights Need God 31–32 (Mrs.Bucar, Elizabeth M. & Mrs.Barnett, Barbra eds., Eerdmans Pub. 2005)Google Scholar.

84. Johnson, supra note 52, at 222-26. The Court, moreover, has not only worked within a secular paradigm but “been instrumental in shaping the meaning and normative content of secularism.” Gülalp, supra note 32, at 24.

85. Modak-Truran, Mark C., Beyond Theocracy and Secularism (Part I): Toward a New Paradigm for Law and Religion, 27 Miss. C. L. Rev. 201 (2007)Google Scholar.

86. See, e.g., Smith, Steven D., Law's Quandary (Harv. Univ. Press 2004)Google Scholar.

87. See generally, O'Donovan, Oliver, The Ways of Judgment (Eerdmans Pub. 2005)Google Scholar.

88. Brague, Remi, Are Non-Theocratic Regimes Possible?, Intercollegiate Rev. 10–11 (2006)Google Scholar. Javier Martinez similarly questions whether human rights can “found a real sociality or a true humanity.” Martinez, supra note 62, at 6. Along similar lines, John Milbank argues that “the Church needs boldly to teach that the only justification for democracy is theological. Since ‘the people’ is potentially the ecclesia, and since nature always anticipates grace, truth ultimately lies dispersed among the people … because the Holy Spirit speaks through the voice of all.” Milbank, , Liberalism Versus Liberalism, in The Future of Love 245 (Cascade 2009)Google Scholar.

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