In a judgement handed down on Tuesday, the European Court of Human Rights rejected a claim brought by a Muslim couple in Basel, Switzerland, who had refused to allow their daughters to attend compulsory mixed swimming lessons at school.
The ruling itself is unsurprising, and doesn’t come in a vacuum. The European court has been called upon to weigh in on issues of religious freedom before – and a pattern has emerged, which is difficult to ignore.
Two basic trends have materialised - the first is one where the court has adopted a more neutral kind of secularism, and where the judges have prioritised the individual consciences of the plaintiffs over that of the different authorities that, invariably, call to notions of ‘public order’ to justify certain restrictions.
But this trend has typically been associated with religious freedom cases lodged by members of Christian communities, including, for example, the British Airways employee who had been told by her employers that she couldn’t wear a crucifix. Indeed, even state authorities have, in order to protect a visible manifestation of Christian heritage, appealed to the court to allow for crosses to be openly displayed in state schools - and were successful in doing so.
There is, nevertheless, another trend at work - one which is far more aggressively secularist, and which has, invariably, affected Muslim communities. French and Turkish citizens have applied to the court to protect their right to use certain types of clothing - particularly the head-scarf or hijab and the face veil or niqab. In light of such cases, as a former employee of the European Court has pointed out: “… some consider that the Court has more frequently sustained a form of strict secularism, or even a sort of intolerant secularism or enlightenment fundamentalism. This is especially so in cases when individual religious manifestations do not display any signs of political intentions but are performed bona fide making these prohibitions difficult to reconcile with the necessity to protect a democratic society”.
In that trend, the court has prioritised the state’s rights over individual freedom of conscience - to the point where it seems that the court has taken the state’s arguments around what it considers as legitimate aims as a given.
It’s not quite clear cut, though. In this particular case, the girls were children – they hadn’t even met the age of puberty - and the school had said that a full length wetsuit, popularly known as a ‘burkini’, could be worn. One would have thought that a compromise might have been found. But the precedent has now been set – and the court is clear. Burkini, no burkini – below or above the age of puberty – it seems that Muslim parents who wish to withdraw their children from mixed swimming lessons will be unable to do so.
The ramifications of the case are more than just a swimming lesson issue. The reasoning mentioned by the court enshrines much more than that. It claimed, in a rather sweeping statement, that Switzerland’s right to facilitate “successful social integration according to local customs and mores” took precedence.
Further, “The Court observed that school played a special role in the process of social integration, and one that was all the more decisive where pupils of foreign origin were concerned,” the statement read.
It’s a very sensitive and delicate argument - and not one made very well by the court in this regard. How ‘social integration’ is served by forcing families to put their children into a very specific type of sporting activity — one that only a few years ago would have been segregated according to gender in many European countries — is unclear.
This article has been excerpted from, ‘On Muslims, swimming lessons, and European secularism’. Courtesy: aljazeera.com