When is it permissible for a government to infringe on the religious rights of its citizenry? When is such infringement necessary for a democracy? This is the central concept underlying the margin of appreciation—a standard utilized by the European Court of Human Rights (ECHR) to determine whether certain human rights violations may be excused as “necessary in a democratic society.” While such an approach certainly has its benefits—particularly considering that the ECHR is an international body seeking to intervene in national politics—it also leaves unresolved the question of the outer limits of such a standard. How far may a nation violate religious rights, and who should determine those limits?
In S.A.S. v. France, the ECHR confronted this very issue and concluded that the French prohibition on the public wearing of full-face veils—popularly described as a “Burqa Ban”—was necessary in a democratic society. The basis for the decision relied upon France’s argument that Muslim women who wear the veil are incapable of socializing with their fellow citizens, which thereby inhibits their ability to fully engage with civic society. In accepting France’s justification, the ECHR had to overlook the wealth of evidence to the contrary in favor of accepting an unsubstantiated and stereotypical belief that veil-wearing Muslim women are not functioning members of a democratic society. At its core, the decision in S.A.S. permitted France to firmly establish majoritarian cultural norms, rooted heavily in Christianity, to the detriment of its Muslim minority population. This was a margin of appreciation gone too far.
This Note aims to highlight numerous critiques of the ECHR’s decision in S.A.S. and examine its aftermath in European politics. As will be seen, the standard set forth by S.A.S. is counter to the very principles upon which the ECHR was established. The court has permitted France to selectively favor the rights of some citizens, rather than the rights of all its citizens. Worse still, S.A.S. has encouraged other European nations to follow in France’s stead, and there is a growing trend in favor of abrogating the religious rights of the Muslim population. If this trend is to stop, the margin of appreciation must change.
Fleming, Nathaniel, "S.A.S. v. France: A Margin of Appreciation Gone Too Far" (2020). Connecticut Law Review. 431.