Religious Human Rights and Religion in Schools

The right to freedom of religion or belief is found in nearly identical formulations in the two conventions. Everyone has “freedom of thought, conscience, and religion”, including the freedom to “have or to adopt a religion or belief of his choice”, and to “manifest” that religion or belief “in worship, observance, practice and teaching”, individually or collectively, and whether “in public or private” (ECHR Art. 9, CCPR Art. 18). The UN Human Rights Committee, in its important General Comment no. 22 (1993) on Art. 18 (hereafter: GC 22), has further clarified that this right “protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.”

Under the CCPR this right is non-derogable, that is, it cannot be set aside even in times of public emergency (Art. 4.2). The right to have or to adopt a belief – which includes the contested right to change one’s religion – is absolute, but states may limit the right to manifest a belief. Such limitations must however be “prescribed by law” and “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (CCPR Art. 18.3, cf. ECHR Art. 9.2). These and only these are the legitimate aims in pursuit of which states may limit freedom of religion or belief. In the post-9/11 environment, it is useful to note that freedom of religion – unlike e. g. freedom of expression – cannot be limited on grounds of “national security.”

A digression: The right to manifest one’s religion in public, “secular” space is strongly contested in some countries with a laïcist political tradition (francophone Europe, Turkey, some formerly Socialist countries), where a strong body of opinion sees this as endangering the secular nature of the state itself. The ban on Muslim girls wearing headscarves in Turkish universities, and recently in French schools, exemplify this ‘culture war’. As the HRC has observed, the right to manifest religion clearly extends to “the wearing of distinctive clothing or headcoverings” (GC 22, para 4). Workplace safety rules may nonetheless require e. g. a Sikh turban to be replaced by a crash helmet. The case of educational institutions is less obvious. The European system has consistently ruled in favour of Turkey’s headscarf ban in universities, particularly in the recent case of Şahin v. Turkey (2004). The European Court sees the headscarf ban as undertaken in pursuit of the legitimate aims of protecting public order and safety and the rights of others, hereunder safeguarding the secularism that is indispensable to democracy, and carrying out the educational mission of the University, which includes promoting women’s equal rights. The judgment relies heavily on an understanding of specific circumstances in Turkey, and does not necessarily apply to other countries. In another case, Dahlab v. Switzerland (2001), the Court dismissed the complaint of a Swiss Muslim school teacher who had not been allowed to wear her headscarf in the classroom. The Court suggested a risk of a “proselytising effect” on the young children. In both cases, the Court has expressed the view that the Islamic principles expressed by the headscarf are “hard to reconcile” with gender equality, tolerance/pluralism, and the respect for others that should be promoted in education. I believe both rulings are wrong and regrettable, but that is a subject for another paper.² There is no ruling as yet on school pupils wearing headscarves. At any rate, the issue bears only tangentially on religious education, and so I end the digression here.

Does the child have the right to freedom of religion or belief? Yes, it does, according to the most widely adopted of all human rights instruments, the Convention on the Rights of the Child (CRC, 1989). However, this was one of the most controversial points during the drafting process, and the final text only provides that states “shall respect the right of the child to freedom of thought, conscience, and religion” (CRC Art. 14). No mention is made of the right to “have or to adopt a religion of his choice”, i. e., of the right to change religion. The right to manifest religion is not explicitly asserted, but it is clearly implied by the listing of the usual legitimate limitations (Art. 14.3). Most importantly, the right of the child to religious freedom is qualified by a parental right to guide the child in the exercise of this right (see below).

Freedom of religion and freedom from discrimination based on religion are mutually dependent and reinforcing principles. The right to non-discrimination on is as fundamental as religious freedom, if not more so: The principle of non-discrimination pervades all other human rights. While some some human rights may legitimately be set aside in times of public emergency, such derogations may not involve discrimination “solely on the ground of race, colour, sex, language, religion or social origin” (CCPR Art. 4.1).

Non-discrimination is handled somewhat differently in the two conventions. A state must ensure the rights in the CCPR to all people under its jurisdiction “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (CCPR Art. 2.1). The ECHR adds “association with a national minority” to the list (ECHR Art. 14).

On a narrow reading, differential treatment of people is not explicitly declared to be illegal discrimination unless, in the stock phrase, it “nullifies or impairs” another human right. In a given case that might involve discrimination, the European Court is usually able to find a violation of some “substantive” right, and therefore rarely deems it necessary to consider whether there has also been discrimination with regard to that right. Anyway, the European Court has come to interpret the principle more broadly, so that there may be a violation of Art. 14 even where another Article, taken alone, is not violated (Ovey and White 2002: 349). The CCPR, furthermore, provides that “(a)ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law” (Art. 26).

None of this precludes “affirmative action” or positive discrimination measures to improve the lot of underprivileged groups, but such measures must be proportionate to an objective and reasonable aim. Furthermore, in the recent Thlimmenos v. Greece (2000), the European Court set out the novel doctrine that the right is also violated “when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.” This marks a possibly huge shift in the whole human rights approach to human equality.

In addition to the fundamental principles of religious freedom and non-discrimination for all, the conventions set out a right specifically for parents (or legal guardians) with regard to the education of their children: “the liberty (…) to ensure the religious and moral education of their children in conformity with their own convictions” (CCPR Art. 18.4). The ECHR similarly speaks of the parents’ “religious and philosophical convictions” and their right to have these respected in any and all State education (ECHR OP Art. 2). This right, then, in principle extends to all school subjects, not just religious education. An important corollary is parents’ right “to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State (…)” (CESCR Art. 13.3).

The CRC broadens the parental right into a right and duty “to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child” of all the rights in the convention (CRC Art. 5). This provision is reiterated specifically with regard to the child’s right to religious freedom (CRC Art. 14.2). Even so, some Muslim-majority states have made reservations against this article. The Holy See (the Vatican) has declared that it “interprets the articles of the Convention in a way which safeguards the primary and inalienable rights of parents”; in this context it refers specifically to Art. 14.³

Nearly all the international case-law concerning schools and religion has revolved primarily around the parental right. These cases have been raised in Nordic countries and the UK, that is, those parts of Europe with a strong tradition for established churches. Relevant cases before the European Court in Strasbourg have concerned somewhat peripheral issues: compulsory sex education, physical punishment, and compulsory attendance for Jehovahs’s witnesses at a national holiday parade.

In Kjeldsen, Busk Madsen and Pedersen v. Denmark (1976), parents protested against compulsory cross-curricular sex education. The Court found, however, that ECHR OP Art. 2 does not ban the teaching of knowledge that is, directly or in directly, of a religious or philosophical nature, as long as it is presented in an “objective, critical, and pluralistic manner.” What the school is not allowed to do is to indoctrinate or proselytise. This is a useful clarification.

In Campbell and Cosans v. United Kingdom (1982), parents objected that physical punishment of their children in school was against their philosophical convictions. In this case, the Court inter alia defined a “philosophical conviction” as more than just any belief: It had to be a belief with “a certain level of cogency, seriousness, cohesion and importance” about “a weighty and substantial aspect of human life and behaviour”. The parents’ objections met these standards and the UK was found to have violated OP Art. 2.

In Valsamis v. Greece (1996), however, parents belonging to Jehovah’s Witnesses complained that their daughter had been punished by the school for refusing to take part in a school parade on the National Day of 28 October. They cited their pacifist convictions and the military colouring of the celebration. The Court, however, found no violation of ECHR OP Art. 2, opining that the parade in question could not really “offend the applicants’ pacifist convictions”.

Two relevant cases before the UN Human Rights Committee have dealt with the more centrally interesting question of teaching a particular religion in public schools.

In Hartikainen v. Finland (1978) a Finnish teacher (and secretary-general of a free-thinkers’ association) complained of a violation of CCPR Art. 18.4 because children of atheist parents had compulsory religious instruction in school, with textbooks written by Christian believers. However, students could apply for exemption, and have alternative instruction in ethics and the history of religions. The HRC found that this arrangement did not violate Art. 18, as long as the alternative instruction was given neutrally and objectively and respected the conviction of parents who believed in no religion.

In Leirvåg et al v. Norway (2004), on the other hand, the HRC found a violation of the parental right in Art. 18.4. We shall return to this case in the last section.

A right to what we might call ‘religious privacy’ is not explicitly set out in the leading human rights instruments, but it can be derived from the right to freedom of religion in conjunction with the right to privacy (CCPR Art. 17). Thus the HRC finds that “no one can be compelled to reveal his thoughts or adherence to a religion or belief” (GC 22, para 3).

This strong a view of religious privacy obviously poses some problems for public policy, such as the reasonable wish to get reliable statistics on religious adherence. Most importantly in our context, the introduction of religious school subjects – especially compulsory ones from which parents may wish to claim exemptions – would seem to compel parents and children to reveal their religious adherence or non-adherence. European case-law, as we have seen, require parental convictions to have “cogency, seriousness, cohesion and importance”, which is rather hard to prove without stating to the authorities what those convictions are. This is one example of an inherent conflict of norms pertaining to religious freedom.

Human rights documents set out certain positive obligations on states regarding the content and purpose of education: Education “shall be directed to the full development of the human personality (…) and shall strengthen the respect for human rights and fundamental freedoms”; it shall also “promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups” and “further the activities of the United Nations for the maintenance of peace” (CESCR Art. 13.1). This repeats almost word for word the 1960 UNESCO Convention (Art. 5.1(a)), but the CESCR adds that education should also “enable all persons to participate effectively in a free society”. The same principles, with somewhat different wording, recur in the CRC (Art. 29), which adds “equality of sexes” and “persons of indigenous origin” to the mix.

In the 1981 Declaration (Art. 5.3), the UN added the almost scarily idealistic aims that the child shall be brought up inter alia “(…) in a spirit of (…) peace and universal brotherhood, respect for freedom of religion or belief of others, and in full consciousness that his energy and talents should be devoted to the service of his fellow men.”

Education, then, shall clearly promote human rights, tolerance, understanding, and respect for religious others. At the same time, however, education shall be directed to “(t)he development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own” (CRC 29 (b)).

Without a doubt, these nice wishes imply the removal of negative stereotypes and religious prejudices from textbooks. Furthermore, since it is hard to teach understanding and respect for religions without imparting some factual knowledge about them, it seems that public curricula should include at least some minimal content on various religions, not least the religion that forms part of the child’s “own cultural identity”.

Parents’ right to an education for their child in accordance with their own philosophical convictions may clash with the child’s freedom of religion or belief. In that case, what is the state to do?

As set out in the opening articles of the Convention on the Rights of the Child, in all state actions concerning children “(…) the best interests of the child shall be a primary consideration” (Art. 3.1). However, the rights and duties of parents or legal guardians shall be taken into account (Art. 3.2). Indeed, as we have seen, states shall “respect the responsibilities, rights and duties of parents (…) to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention” (CRC Art. 5).

The child, then, is not fully trusted to be able to determine its own best interests, nor is the state trusted to determine those interests for the child on its own. The best interests of the child are assumed to be closest to the heart of the child’s parents. Indeed, leaving the immature child to exercise e. g. its freedom of religion on its own not only entails the risk that the child will make “irresponsible” choices, it also involves the very real possibility that the state might get the child’s consent to ideological indoctrination contrary to the parents’ religion.

Parents cannot be fully trusted either. The state may intervene to protect children from the equally real danger of parents’ abuse and neglect (for which parents sometimes claim religious legitimation). But even with the best of parental intentions, parents will inevitably determine the child’s best interest from their own quite different adult perspectives.

The notion of the “evolving capacities of the child” (CRC Artt. 5, 14.2) is therefore crucial. It introduces an element of developmental psychology: Parental guidance will be decreasingly needed as the child grows older and more mature and becomes increasingly able to make his or her own decisions. This is recognised inter alia with regard to the child’s right to a voice in matters that concern the child:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(CRC Art. 12.1)

This principle is also recognised as a qualification on the rights and duties of parents to provide direction to the child in the exercise of his or her right to freedom of thought, conscience and religion (CRC Art. 14.2). Some countries have implemented this in their legislation. In Norwegian law, for instance, 15-year-olds may legally abandon their parents’ religious affiliation.

Since the major religions perpetuate themselves primarily through transmission from parents to children, and tend to oblige their adherents to bring up their children in the faith, religious spokesmen are prone to overstating the role of this right. The Holy See, which has declared that it will interpret the CRC with stress on the “primary and inalienable rights of parents,” appears to understand the parental right as a first-order human right, as important as freedom of religion and religious non-discrimination.

This, I think, is a misrepresentation. In my view, the parental right is properly understood to be subsidiary and instrumental to the securing of the child’s religious freedom. It is intended as a safety for the child’s freedom of religion against the power of the state to indoctrinate, until the child is deemed capable of increasingly making its own decisions. I believe this would be borne out by a study of the drafting history and interpretation of the right, which I will not undertake here.

The normative content of all the relevant religions in their premodern formulations, as well as in many modern revivalist formulations, differs from fundamental principles of gender equality and religious tolerance underlying international human rights. Human rights quite simply represent a revolution in attitudes to gender and to religious others, relative to all religious traditions. With children from some religious backgrounds, teaching a human rights-based curriculum unavoidably means instilling in children norms and values that conflict with those of their home and immediate community.

As we have seen, such teaching, promoting respect for human rights and fundamental freedoms – including equality of the sexes – is mandated by several human rights instruments, including the CRC (Art. 29).

However, and at the same time, education shall be directed to “(t)he development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own” (CRC 29 (b)). Respect for one’s own culture may be a precondition for respecting others, but that observation hardly solves the conflicts between traditional cultural norms and human rights norms.

A strong argument tipping that conflict in favour of rights, not tradition, is the Women’s Convention’s somewhat eerily phrased requirement that states “take all appropriate measures (…t)o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women” (CEDAW Art. 5(a)). This should not be seen as a trump card, though. An aggressively modernising state might consider “appropriate measures” what others would consider unacceptable indoctrination. Some kind of balance still needs to be struck between women’s right to equality and believers’ freedom to hold patriarchal beliefs, and it is by no means obvious where.

If parents do not have the right to opt their children out of a neutral knowledge-oriented subject, as the case of Kjeldsen et al v. Denmark suggests, what about a value-oriented subject that stresses human rights? One the one hand, the potential for conflict with religious convictions becomes, if anything, deeper. On the other, the human rights treaties actively require such teaching. One must assume, therefore, that this requirement further limits parental rights.

Yet another alignment is when the state seeks, as nation-states almost inevitably do, to promote the cultural identity of the dominant or majority group (or, in some cases, of a nation-building cultural project that seeks to include more than one group). Backed by cultural legitimacy and operating in tandem with social pressures, the state can put formidable pressure on parents and children to conform.

Norway’s decision to educate all children about Christianity, the historically dominant religion of the majority, as a tool for the integration of people from various cultural and social backgrounds, may be seen as one instance of state backing for the majority community’s culture that runs the risk of conflicting with parents’ and children’s religious rights (see further below). The recently introduced confessionally-segregated religious education models in countries such as Croatia, Serbia (not Montenegro) and Bosnia avoid the trap of seeming to impose one community’s religion on all. The overt favouring of only those monotheistic religions considered “historical” in a given country, however, may raise issues about the rights of others, a question I will not pursue here.

The freedom of religion or belief surely includes the right to give and to receive religious education or instruction, including the right of religious communities to choose their religious teachers, “to establish seminaries or religious schools”,⁴ and “to teach a religion or belief in places suitable for these purposes.”⁵ Opinions may presumably differ on what places are suitable for teaching religion. In some countries, a strong body of opinion would consider public schools unsuitable. State authorities, though, should clearly not restrict people’s access to the religious teaching provided by religious communities or other private institutions.

Furthermore, the positive obligations on states to educate for tolerance and understanding of other religions presumably imply that the public school curriculum should contain some content about various religions, not least those that inform the pupils’ own cultural identity.

However, human rights clearly do not oblige the state to provide something called “religious education” in the public school system. The positive obligations just mentioned do not mandate the introduction of a school subject specifically about religion. Nor, according to the European Court’s ruling in the Belgian Linguistic case (1968), does the parental right in ECHR OP Art. 2 involve any “right to obtain from the public authorities the creation of a particular kind of educational establishment”.

On the other hand, human rights also do not ban the teaching of religion – whether as confessional religious instruction or as a non-confessional knowledge-oriented subject – in public schools. They do, however, place certain restrictions either on how such a subject is taught, or on the degree to which it can be compulsory for all, which somewhat limits what models of religious education states may implement.

International principles clearly do not prescribe any specific model for education about religion. Just as different countries have widely different historically rooted models for state-church relations, that are all considered to be compatible with the basic requirements of international human rights, it seems safe to assume that they may also teach children about religion in a range of different ways – e. g. confessionally and non-confessionally, in integrated or segregated classes – and yet remain within the limits of international norms. This is not to say, however, that the models of all states are within those limits or that the international system does not express certain preferences.

In particular, the UN Human Rights Committee, in its General Comment on Article 18, has clarified the implications of religious freedom for public school instruction. “(S)ubjects such as the general history of religions and ethics” may be taught “in a neutral and objective way”. “(I)nstruction in a particular religion or belief”, on the other hand, “is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.” These are the main guidelines, and they appear to have been fairly consistently applied by the HRC in the cases of Hartikainen and Leirvåg. They countenance essentially two models, a segregated confessional model with exemptions or alternatives, and a neutral and objective knowledge-oriented model.

However, “exemptions or alternatives” that would take some children out of the classroom when religion is discussed are in some tension with the aims for education stated in human rights treaties. As the UN Special Rapporteur on Freedom of Religion or Belief, Mr Abdelfattah Amor inveighed in favour of integrated education, against what he dismissed as the “ghetto approach”, stressing that “(w)ith religious education in school there is always a danger of focusing too much on the particular identities of the pupils and hence on what separates instead of what unites us as human beings.”⁶ This points to a need for joint education in order to meet the state’s positive obligations to educate children for tolerance, understanding, and respect for other religions and for human rights.

On the other hand, one might note that Norway’s obligatory primary-school religion subject has recently been censured by the UN Human Rights Committee as a violation of parental religious rights. The Norwegian subject, touted by its supporters as an example of the integration approach par excellence, blurs the lines between the two basic models countenanced by the HRC.

Buergenthal, Thomas, Dinah Shelton and David Stewart. (2002). International Human Rights in a Nutshell. 3rd ed. St. Paul, Minnesota: West Group.

Lindholm, Tore, W. Cole Durham, Jr., and Bahia G. Tahzib-Lie. (2004). Facilitating Freedom of Religion or Belief: A Deskbook. Leiden: Martinus Njihoff.

Ovey, Care and Robin C. A. White. (2002). Jacobs and White, European Convention on Human Rights. 3rd ed. Oxford: Oxford University Press.

Where two years are given, they are the years of adoption and entry into force.

CCPR: International Covenant on Civil and Political Rights (UN, 1966/1976)

CDE: Convention against Discrimination in Education (UNESCO, 1960/1962)

CEDAW: International Convention on the Elimination of All Forms of Discrimination Against Women (UN, 1979/1981)

CERD: International Convention on the Elimination of All Forms of Racial Discrimination (UN, 1965/1969)

CESCR: International Covenant on Economic, Social and Cultural Rights (UN, 1966/1976)

CRC: Convention on the Rights of the Child (UN, 1989/1990)

ECHR: European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe, 1950)

ECHR OP: (First) (Optional) Protocol to the ECHR (Council of Europe, 1952)

GC 22: General Comment No. 22 on Article 18 (UN Human Rights Committee, 1993)

1981 Declaration: Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (UN, 1981)

(Hyperlinks to the relevant documents in the on-line HUDOC database and other repositories are provided in the HTML version of this document.)

Belgian Linguistic Case, Judgment of 23 July 1968, Series A, No. 6; (1979-80) 1 EHRR 252, Section I B, para 9.

Campbell and Cosans v. United Kingdom, Judgment of 25 February 1982, Series A No. 48; (1982) 4 EHRR 293.

Dahlab v. Switzerland, App. 42393/98, Admissibility ruling of 15 February 2001.

Hartikainen et al. v. Finland, Comm. No. 40/1978, UN Doc. A/36/40 (UN Human Rights Committee, 9 April 1981).

Kjeldsen, Busk Madsen and Pedersen v. Denmark, Judgment of 7 December 1976, Series A No 23; (1979-80) 1 EHRR 711.

Leirvåg et al v. Norway, Comm. No. 1155/2003, UN Doc. CCPR/C/82/D/1155/2003 (UN Human Rights Committee, 3 November 2004).

Leyla Şahin v. Turkey, App. 44774/98, Judgment of 29 June 2004.

Thlimmenos v. Greece, App. 34369/97, Judgment of 6 April 2000; (2001) 31 EHRR 411.

Valsamis v. Greece, App. 21787/93, Judgment of 18 December 1996; (1977) 24 EHRR 294.