Children’s Right to Freedom of Religion in a Multi-Religious Society

Children’s right to religious freedom is a complex human right. The right is that of the child, but two communities, the family and the state, claim an interest, or even a right, in the child’s religious upbringing. If the child belongs to a minority community within the state, this third community may also claim an interest in the child’s religious upbringing.

In this note, I examine the existing international law on the child’s right to freedom of religion, and argue that it is unsatisfactory. I then explain the inherent difficulty of justifying and implementing such a right, due to, drawing on arguments from three main political theories: liberal theory, communitarianism and a feminism [1].

I will upon these arguments to analyze an example of the complex relationship between child, parents and state, the case of Muslim students wishing to wear a headscarf to school, against objections of school or state. I will compare three factually similar cases in constitutionally different settings: In France, the case of a student who was a member of a religious minority in a public school of a secular state with a Christian majority, in Israel the student was a member of a religious minority in a private Christian minority school in a Jewish-majority state, and in Turkey a student in higher education in a secular state with a Muslim majority. [2]

The international legal framework

International human rights documents reflect general confusion regarding the child’s religious freedom. The Convention on the Rights of the Child [CRC] [3], in article 14 guarantees the child’s right to freedom of religion [4]. Like all the rights enumerated in this convention, it is to be implemented according to the evolving capacities of the child. However, the convention specifically mentions the obligation of the states to respect the rights and duties of parents to provide direction to the child [5]. The rights of parents are mentioned in regard to freedom of religion of the child. They are not mentioned in articles regarding other rights of the child, such as rights of expression, assembly and privacy [6] although parents may have an interest to provide direction to the child in those as well.

If the CRC is ambivalent, other international instruments are oblivious to the right of religious freedom of the child. The 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief [7] states, that the child has a right to access to education in the matter of religion or belief in accordance with the wishes of his parents or guardians, the best interests of the child being the guiding principle [8]. The only limitations on the practices of his religious upbringing are that they not be injurious to his health or development (in Art. 5(5)) [9].

The 1981 declaration unequivocally recognizes the family as an autonomous religious group(in art.5(1)). The parents are given the initial legal control over the child’s religion in the family.

The European Convention on Human Rights contains three relevant provisions, article 9, religious freedom, which we may assume refers to children, article 8, the right to family life, which has led to a furtherance of the rights of parents, not of children [10], and Article 2 of the first protocol of the Convention, which deals with the right to education. In similar manner to the Convention on the Rights of the Child, it provides that "the state shall respect the right of the parents to ensure such education and teaching in conformity with their own religious and philosophical convictions".

What is the justification for special consideration to be given to the parents’ wishes when dealing with religion, as distinct from other areas of children’s rights? I believe that the right that was accorded by international law to the parents in the religious education of their children does not reflect merely an interest of the parents themselves. The parents chose to belong to a religious community, and in choosing a religious education of that community, they are acting as its agents. This is the reason that parents’ rights were given such an importance regarding this right. Notice, for instance, that usually no community takes an interest in the child’s freedom of speech or assembly. (Of course, the child and the parents may be in conflict on the choice of religious education [11], as may be both parents between them).

Guaranteeing the parents such a right, conforms to a communitarian view of religion as a constitutive element of identity [12], which must be protected from the encroachment of the state. Thus, this right is recognized in international documents, to provide parents with a way to counter the state interest in providing what the state perceives as a good education to its citizen’s children. This is true, whatever education the state provides, whether religious or secular. This right is important where family and community do not accept the ideological position of the state. In the usual case, in which the family belongs to the religion or ideology of the majority, the family, although ostensibly an independent private body, was described [13] as an ideological agent working in the service of the state.

If freedom of religion in international law is seen not just as a form of expression, but as a right to maintain identity, this has important implications on the recognition of such a right in the general educational setting, for instance in the issue of students’ religious apparel, which I discuss below. However, we must bear in mind the problems associated with allowing parents to decide their children’s religious behaviour, especially when it reinforces discriminatory practices, which the state school is committed to eradicating. Are the parents or the state qualified agents to exercise a choice in such matters on behalf of the child? To analyze this question , I wish to examine three theoretical frameworks.

Assuming that the state is acting upon the best interest of its citizens children, what education should the state choose to provide to children? Should it provide a choice between religious and secular education, Or should it provide only secular education? International law, as we have seen, requires, as a minimum, that parents may choose private religious education for their children. However, in a liberal state, it might be argued, no religious education should be given to children, no matter what are their wishes or those of their parents. Even if children choose freely their religious education, they will be unduly influenced in their choice by their parents. Therefore, non-religious education is the only "clean slate" upon which they will grow up to become free-thinking citizens, who will make up their own minds as to their choice of religion in the future.

However, making a neutral choice is making a choice. There may be a difference, but not a great one, between non-religious education (education which is neither religious nor secular) and not-religious education (secular education). Children who study in a secular school, even one which is not anti-religious, are more likely to accept a secular outlook in the future.

Liberals wish to provide children with a neutral education, but encounter a problem of defining neutrality in education. Can we choose neutrality in education as a meta-value, without choosing neutrality as a value in itself [14]? Can neutrality be imparted as a negative capability — do not be prejudiced against any religious viewpoint, rather than a positive capability - be neutral in your religious and philosophical convictions [15]?

It can be argued that such a meta-value, or negative capability, can be taught, but not at a very young age. In order to grow up as full individuals, according to this argument, children should first be given an affiliation, whether national or religious. It is not advisable or even possible to raise a child with no sense of identity. Similarly, we can teach children not to accept stereotypical gender roles and to accept different sexual orientations, which they may pursue in later life, but it would seem impossible not to instill in a child some gender role, rather than a completely neutral gender identity.

The view that religion is constitutive of the person is central to a strong version of the communitarian critique of liberalism. An softer version of the communitarian argument against liberal neutral education can be summarized by Nagel’s [16] claim, that liberal theory is non-neutral, because it discounts conceptions that depend on inter-personal relations. These conceptions, it can be added, are ever present in the children’s environment.

The liberal neutrality approach may counter another obstacle. Students do not come to school as tabula rasa. Even when the school sets out to provide a neutral educational setting, the students may change it by exercising religious behaviour or expression. If the school tries to restore the neutral setting by limiting students’ expression, it risks infringing the student’s religious freedom, as happened in the case to be discussed below.

As we have seen, international law recognizes a right of the parents to choose religious education for their children. This may be criticized from a feminist perspective. Religious education, or even recognition of religious practices in secular schools may, whether in a private or public school, create an infringement of human rights of the children. Typically, these involve disparate treatment of girls and boys (among these, teaching disparate gender roles , and demanding restrictive dressing for girls, a case which will be discussed below). If international law gives a right to parents and to religious communities to educate children in a discriminative educational environment, isn’t it fact legitimizing a breach of international human rights law (as prescribed, among other places, in the Convention on the Elimination of all forms of Discrimination Against Women)? [17]

To counter this problem, Shelton and Kiss suggested a model law of freedom of religion [18], that schools maintained by religious organizations shall not be allowed to discriminate on the basis of, among others, race and gender. If the prohibition on gender non-discrimination prohibits sex-separate education or education that teaches different social roles to each gender (assuming that separate is inherently unequal, an assumption that has been disputed), this rule will have devastating implications on most organized religious education systems. In fact, one of the main reasons religions want to maintain their own schools, is in order to ensure sex-separate education. (However, having mixed-sex education or education which is not sensitive to cultural gender roles may result in girls’ education being further impaired because parents will not send them to the school [19]).

I wish to turn now to a specific and difficult conflict between liberal values and religious educational choices in a multi-religious society. I will examine how three liberal states, all having legal protection of religious freedom, dealt with the same form of student’s religious expression in the school.

The Case of the Headscarf

The difficulties raised by liberal, communitarian and feminist analyses of children’s freedom of religion are exemplified by the case I wish to analyze, of female Moslem students who were banned from wearing a headscarf (Hijab) to school. I turn to three such cases:

In France, in 1989, citing the principle of laicity, a school had prohibited the wearing of headscarves by girl-students and expelled them for refusing to abide this rule. The Minister for National Education requested an advisory opinion on the legality of the school’s conduct from the Council of State [20]. The Council of State advised, that "the wearing, by students, of tokens expressing their religious affiliation is not, by itself incompatible with the principle of laicity. However, this liberty would not permit pupils to flaunt, in a conspicuous fashion, symbols of religious affiliation which, by their very nature, by the conditions under which they are worn… would constitute an act of pressure proselytism or propaganda.." The decision then enumerates cases in which this would be forbidden, including circumstances in which such expression would infringe upon the dignity or the liberty of the pupils or others.

Later rulings by the Council of State, which struck down complete bans by schools on wearing of headscarves, narrowed, by way of interpretation, the broad language of the decision, and clarified that a ban would be justified only in extreme cases [21]. However, the Council of State’s decision and it reasoning are still important.

In Israel, Mona Jabarin, A Muslim girl, was refused admittance to a Christian school when she insisted on wearing a headscarf. She petitioned the supreme court against the school’s decision [22] .

In Israel the problem is even more complex than it is in France. A member of one religious minority (Muslim) wishes to attend a school of another religious minority (Christian) in a state with a Jewish majority. The school agrees to accept a student from outside its religious community, but asks that it abide by its dress rules. Should the state interfere? In this case it didn’t. The court rejected the petition.

The third case I discuss arose before the European Commission of Human Rights in the case of Karaduman v. Turkey [23]. The applicant was refused a degree certificate for the university course she had completed, until she would submit a photograph of herself in which she was not wearing a headscarf, in conformity with the university’s disciplinary regulations. Her claim of breach of religious freedom (in contravention of Turkish and international law), was dismissed by the domestic court, and she applied to the European commission, claiming a violation of her right to religious freedom, in contravention of article 9 of the European Convention. The Commission declared the complaint inadmissible.

In all three cases, the various courts did not find the religious freedom of the student the as determining factor. I proceed to question why it was so, and whether the decisions can be justified.

Liberal view

Looking at the various courts’ decisions from a liberal point of view, three criticisms can be waged at the courts’ reasoning.

Religion as expression - Under liberal theory, the freedom to express religious belief, as any freedom of expression, must include the freedom to express such belief in a conspicuous manner, even in a manner, which may be seen as flaunting such religious symbols. The application of the international norm of freedom of religion and belief in the French Council of State decision, which states that students may wear religious symbols but not flaunt them, falls short of this requirement. In the context of a school, it seems reasonable that more restrictive interpretation may be given to freedom of speech than in the general public forum. The right to proselytize, for instance, although included in the right to freedom of religion, may be legitimately subject to some restriction in the school context. A school is a compulsory educational institution. Children are sent to school by their parents on the understanding that they are there to study, not to be preached to and converted to a different religion or a different form or orthodoxy of their own religion. However, the wearing of religious costume, as such, cannot be considered an act of proselytism or pressure which justifies its banning.

In the Turkish case the ban on headscarves is even less justified in this respect. The Turkish student was not a child. She was a young, educated, adult making her own decisions, and studying among other young adult students. A prohibition on religious expression in a university, which relies on the effect or pressure it may have on other students, is less justified than a similar decision would be in a school setting.

Voluntary participation in a public activity does not amount to a waiver of rights - The second justification for dismissing the student’s claim which is to be questioned under a liberal analysis, is the reliance by the European commission in the Karaduman case on the voluntary choice of the student to attend the university. The commission decided, that by choosing to study at a secular university, the student submits to the university’s rules. The reliance on the "voluntariness" of enrollment begs two questions [24]. The first is factual, could the student have obtained her science degree at a non-secular institution of comparable level. The student may have had no comparable choice. The second question is normative: must a student submit to secular rules just because she chose to study at a higher educational institution, and especially public institution [25]. The student chose to take part in a public educational activity, training to be a scientist, a contributing creative member of society. the commission did not examine whether the student’s freedom of religion was breached, before proceeding to inquire whether this was legitimate under one of permissible exceptions of article. 9 (2). In a balance between the student’s religious freedom and school code, it would appear that the code should changed so that she is given equal access to education, rather then her human right be impaired in order to uphold the university’s code.

A similar argument of the school in the Israeli case was, that the school’s dress code, to which the student must conform, was necessary to maintaining an educational atmosphere needed to achieve the school’s goals. While maintaining order that will be conducive to learning must be a permissible school goal, the argument that this order must include a prohibition of religious dress is not convincing [26]. The practice of wearing a headscarf was not harmful or injurious in any way to the students.

In both cases it might be, that succumbing to students’ demand to dress religiously will create a religious atmosphere in the university, which the other students may find pressurizing and may impair the open liberal atmosphere which the university seeks to provide to its students. However, preventing students from expressing religious beliefs may impair not only their religious belief, but their equal access to education.

A state principle of secularism and religious freedom - The final justification which must be questioned under liberal theory, is the implied acceptance of the European commission of the Turkish principle of secularity, upon which the Turkish court decision was based. The commission did not inquire whether this principle is compatible with the right to religious freedom. The secular constitutional principle of Turkey is very different from the constitutional principles of other secular states, such as France. This principle has led the state to interference in religious expression which would not be acceptable in other secular states. The Turkish Constitutional Court had declared unconstitutional a legal provision, which authorized wearing headscarves in higher education institutions, as a contravention of the principle of secularity. In cases before the European Court and commission Turkey has re-iterated its need to uphold a principle of secularity in order to maintain democracy [27]. The principle of secularity, and its interpretation, was not questioned in any of the decisions, including Karaduman. The commission noted that secular universities may ensure that fundamentalist religious movements do not disturb public order in universities or pressure students who do not practice religion. That is, of course, a legitimate government concern. However, the decision does not note what evidence was brought to support the public order claims, or how they should be balanced against the student’s ability to exercise her right to religious freedom.

Communitarian View

The Israeli case sho Color ws both the benefits and the possible harm of applying the communitarian approach to conflicts involving children’s religious freedom. The Israeli court based its decision to dismiss the petition on the fact that the school in question was a private denominational school, and not a state school. The court preferred the autonomy of the religious (Christian) community, to the religious freedom of the individual (Moslem) child. (Although one of the three judges on the panel commented, that he would have reached the same conclusion in a case of a state school).

Should there be a difference between a state school and a private denominational school in the need to respect individual religious freedom? One is a public institution and the other a private institution. Should not basic human rights apply to private institutions operating in the public sphere? The public/private divide may not be so clear-cut. For instance, in Israel, as in some other states, the denominational school was publicly funded. As an institution, which is open to general public enrolment, it may be argued that it should be seen as a semi-public institution, which must treat the participants in its activities with equal respect for their rights, unless this directly contradict the religious principles of the institution (as, for example, a religious hospital should treat its patients). However, the justification of having denominational schools is precisely to allow them to depart from the general liberal norms. The communitarian approach would recognize the right of the religious community to set its own rules. However, it is questionable whether we should not insist that all religious communities respect basic human rights (including freedom of religion), at least in all their public institutions which are not of inherently religious character.

Feminist Critique

The justification of defending the custom of wearing a headscarf, especially by reliance on human rights, is questionable on grounds of women’s rights. This issue was not discussed in any of the three cases. The practice of wearing a headscarf for women, in both Jewish and Moslem society is repressive to women. It instills unequal values of modesty in behaviour and dress for men and women, (the concept of Purdah in Islam). It educates to inequality between the sexes from a young age [28]. Wearing a scarf for religious reasons is, therefore, different from other signs of religious affiliation, as a Sikh turban or Jewish kippah. Upholding a student’s right to wear a headscarf is really promoting the right of her family and society to instill values of inequality from childhood. This is an example of the problem discussed above, whereby acknowledging rights to religious behaviour in the education system legitimizes practices which reinforce discriminatory views, in contravention of human rights norms. International law mandates that states counter such customs, even when practiced in the private sphere (Convention on the Elimination of all forms of Discrimination Against Women art. 5), and of course in state schools, which are public institutions.

However there is a strong counter-argument. It has been argued by cultural-feminists and others, that, in her society, a headscarf may help a woman preserve her freedom [29]. The actual outcome in the Israeli case was, that after her case was dismissed and she was not allowed to wear a headscarf, Mona had no choice but to attend an inferior school. Wearing a headscarf would have, in reality, permitted Mona to attend a top school and get a top education.. In this case, a discriminative practice can lead to better educational choices, which will ultimately advance equality for the girl. Of course, acknowledging such a practice as a protection for women serves to reinforce the discriminatory attitude which made it necessary in the first place. As Hassan [30] argues, The purpose of the veil was to make it safe for women to go about theirs work without sexual molestation, but Muslim societies have used the pretext of protecting the chastity of Muslim women to put them behind veils and shrouds and locked door. The goal should be to eradicate discriminatory social attitudes , but in the short run, ignoring the lack of other options will only harm women.

Social Context

The social context, although not mentioned by the courts, cannot be ignored. In Turkey, a state that has opted for a secular regime, Islam is not a minority religion. In the case of a student from a minority religion (such as the cases in France) other considerations arise. Possibly, the actions of a government curtailing manifestations of a minority religion should be seen as more suspect than the actions of a government curtailing the manifestation of a majority religion.

Conclusions

Courts in very different legal systems have refrained form according full validity to students’ religious rights. This is hardly surprising, as international law gives no answers to the complex problems of freedom of religion and education. Use of theoretical analysis is important to understanding the nature of the rights involved, although it provides no clear satisfactory solution to the problem, as each of the theoretical frameworks we have examined encounters difficulties in establishing what is the correct interpretation of children’s religious freedom. However, this article has tried to show that in their decisions, on balance, the various courts should have accorded more weight than they have done to the internationally recognized right of the individual child to freedom of religion.

NOTES

[1] For a discussion of the relationships between Liberal, Communitarian and Feminist theories see; E. Frazer and N. Lacey, The Politics of Community — A Feminist Critique of the Liberal-Communitarian Debate, (Harvester, Hemel Hampstead, 1993)

[6] Although Flekkoy and Kaufman (in: Rights and Responsibility in Family and Society (Kingsley, London 1997) p. 34) point out that the parents’ right is only "to provide direction" to the child, and not to determine the child’s religion.