'LIVING TOGETHER' OR LIVING APART FROM RELIGIOUS FREEDOMS? THE EUROPEAN COURT OF HUMAN RIGHT'S CONCEPT OF 'LIVING TOGETHER' AND ITS IMPACT ON RELIGIOUS FREEDOM.

• Author: Wade, Shelby L.

In the 2OI4 monumental court decision S.A.S. v. France, the European Court of Human Rights ruled that the French law banning both burqas and niqabs in public spaces was justified. The Court based this justification on the concept of "living together, " stating this newly-created concept allowed limitations on certain rights, such as the freedom of religion. With this decision, the Court vacated precedent which used a balancing test to weigh exceptions, such as national security in very narrow situations, against the limitations on individual freedoms. The new "living together" test is extremely farfetched, vague, and controversial. This Note discusses the past precedential balancing test the Court followed prior to the decision in S.A.S., and why it is favored against the new "living together" justification. This Note also examines the potential disastrous impacts on personal freedoms the new test may cause, particularly in reference to new face-covering garment cases which may appear before the European Court of Human Rights.

1. INTRODUCTION II. CURRENT INSTITUTED AND PROPOSED EUROPEAN RELIGIOUS FACE-COVERING BANS III. QUINESSENTIAL HUMAN RIGHTS LAW AND LIMITATIONS IV. PRECEDENTIAL CASES REGARDING RELIGIOUS EXPRESSION AND THE VACATION OF PRECEDENT IN S.A.S. V. FRANCE V. WHAT EFFECT WILL "LIVING TOGETHER" HAVE ON POST--S.A.S. CASES? VI. THE POTENTIAL AFFECT A JUSTIFICATION OF "LIVING TOGETHER" COULD HAVE ON FUTURE FACE-COVERING CASES BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS VII. "LIVING TOGETHER"--A TROUBLESOME FUTURE FOR RELIGIOUS FREEDOM VIII. CONCLUSION I. INTRODUCTION

   In December 2016, to thunderous applause during her re-election campaign for Chancellor, Angela Merkel called for a ban on Muslim full-face veils in Germany. (1) Merkel declared that the veils are "contrary to integration," and "not acceptable in our country." (2) Merkel also described the importance of showing faces in communication between persons, which is "essential to our living together." (3)

   Merkel's claims and potential policies seem contrary to international human rights law, such as the European Convention on Human Rights' Article 9, which guarantees "the right to freedom of thought, conscience, and religion." (4) Merkel's words, however, reflect a recent trend in European countries of instituting bans on Muslim face-coverings, such as the niqab and the burqa. (5)

   Headscarves and face-coverings play a significant role in both religious identity and self-expression for many members of the Muslim community. The niqab covers the entire body, head, and face with an opening left for the eyes. (6) In contrast, the burqa is a full-body veil, which covers the wearer's entire face and body with a mesh screen over the eyes. (7) There are numerous styles of Islamic dress which reflect local traditions and different interpretations of Islamic law. (8) Some women do not wear anything that distinguishes them as Muslim, while others choose to wear the niqab and completely veil their bodies.

   The niqab and burqa are banned in numerous European countries, including France, Bulgaria, and Belgium. (9) Other European countries have introduced bans to their respective legislative bodies. (10) Critics of the bans argue these types of laws not only breed Islamophobia, but also violate many aspects of fundamental freedoms, such as the freedom of religion and freedom of expression, granted by the European Convention on Human Rights. (11) The classic justifications for the full-face veil bans often rely on security purposes, stating that the ban prevents anyone from being able to hide their identity in public. (12) Other classic justifications revolve around promoting freedom and rights for women, for instance, French politicians who claim the bans protect the "gender equality" and "dignity" of women. (13)

   However, one of the most controversial, and potentially most influential justifications for the Muslim full-face veil bans did not come from politicians or officials of a country instituting a ban, but rather the European Court of Human Rights (the "Court" or "ECtHR"). (14) In the 2014 European Court of Human Rights case S.A.S. v. France, the Court held that a France veil ban was justified based on "respect for the minimum requirements of life in society" or of "living together." (15) According to the Court, wearing a veil compromised the aspect of "living together" in a unified society as the face plays a role in social interaction. (16) The newly-introduced concept of "living together" has been the subject of much criticism and debate, with even the dissenting judges in S.A.S. stating the proposition was "far fetched" and "vague." (17)

   The Court recognized the idea of "living together" as a legitimate justification for limitations on rights guaranteed by the European Court of Human Rights. (18) In some situations, "living together" should take precedence, including situations where national security could potentially be at stake, such as at a security check point. (19) The national security justification is widely accepted, but applies only in narrow circumstances. More controversial and problematic is the extended reach of the "living together" justification sanctioned by the Court in S.A.S. With this ruling, the Court has expanded the breadth of full-face veil bans to any public place. This Note suggests that by broadening the scope of where religious garment bans can be implemented, the Court is setting a dangerous precedent where "living together" and assimilation are valued more than one's freedom. This would be an unpredictable move that would have detrimental, long-lasting consequences in the realm of religious freedom. An unexplained, vague justification allows for countries to more frequently limit its citizens' individual rights with underwhelming reasons. As a result, instead of offering a strong, recognized justification such as national security, countries can institute bans for much simpler reasons--such as simply having a small barrier like a cloth over one's face--to take precedence over one's freedom of religion.

   In Part II, this Note will provide a background of current instituted and proposed European religious face-covering bans. Part III will discuss current human rights law, the specific Convention articles which grant the right of religious expression, and how these articles may be overlooked in a "living together" justification. Part IV of this note will discuss the precedential cases regarding religious expression, specifically religious clothing, as well as the quintessential case which introduced the concept of "living together", S.A.S. v. France. Part V will discuss cases regarding full-face veils which are currently before the European Court of Human Rights. Part VI addresses the potential future effect the concept of "living together" may have on the cases before the Court. Finally, Part VII addresses the disastrous and troublesome future "living together" has introduced for the Court, unless changes, such as a re-introduction of a balancing test, are implemented.

2. CURRENT INSTITUTED AND PROPOSED EUROPEAN RELIGIOUS FACE-COVERING BANS.

   Religious face-covering bans are not a new concept in Europe with Bulgaria, Belgium, and France all having country-wide bans. (20) Other countries have either proposed bans that will be instituted in the near future, or have instituted bans that were struck down by their domestic courts. (21)

   In April 2011, a French law, No. 2010-1192, was instituted, banning the burqa and the niqab from being worn in public. (22) The law passed by a vote of 246 to 1 with about 100 abstentions. (23) The goal of the law was to "prohibit the act of aiming to conceal the face in public." (24) The French law inflicts a fine of 150 euros, in addition to or instead of a citizenship course. (25) If one forces a woman to wear a niqab or a burqa, the resulting punishment is a year in prison or a 15,000 euro fine. (26) Per data collected in 2015, 1,546 fines have been imposed under the French law. (27)

   Following France, in July 2011, Belgium instituted its own ban of the full Islamic veil in public. (28) Offenders of Belgium's law are punished with a 15 to 25 euro fine and a possibility of up to seven days in jail. (29) In December 2012, the Belgian Constitutional Court upheld the ban. (30) The court stated the ban did not violate fundamental rights because the ban did not cover places of worship. (31) Also, the court, while acknowledging that the ban interfered with the rights of the applicants who challenged the ban, accepted that the aims of the Belgium government were legitimate. (32) These aims included public security and "living together" in society. (33)

   Bulgaria also enacted a veil ban in 2016. However, under Bulgaria's ban, women not only face fines of up to 770 euros, but also a suspension of social security benefits. (34)

   In November 2016, the Dutch parliament approved plans for a partial burqa ban in places such as government buildings, schools, hospitals, and on public transportation. (35) The ban would not apply to those wearing face-coverings on the street, but only for security reasons, or "in specific situations where it is essential for people to be seen." (36) The ban would also outlaw all face-coverings, which would include both ski-masks and helmets. (37)

   Spain attempted to institute a nationwide ban on burqas in public places in 2010, but Spain's Parliament rejected the proposal. (38) In 2013, the Spanish Supreme Court overturned a municipal ordinance banning the wearing of burqas as unconstitutional as it violated "the fundamental right to the exercise of the freedom of religion, which is guaranteed by the Spanish Constitution." (39)

   In January 2017, Austria became the latest country to make a move toward a full-face veil ban. (40) Austria's Social Democratic and Austrian People's parties outlined their view of Austria as an "open society that requires open communication." In...