Duties of reasonable accommodation on grounds of religion in the jurisprudence of the European Court of Human Rights: A tale of (baby) steps forward and missed opportunities

Abstract

Public authorities (in Europe) are faced with increasing demands to accommodate religious diversity. This article traces the development of duties of reasonable accommodation on the ground of religion in the jurisprudence of the European Court of Human Rights up to and including the much-discussed Eweida case. So far, international law has only explicitly identified duties of accommodation on the ground of disability, notwithstanding the broader validity of the underlying rationale of equal opportunities and full participation. The analysis of the Court's jurisprudence-regarding the place of religion in the educational sphere, in the employment sphere, and concerning conscientious objectors and religiously inspired dietary requirements-shows that the Court is not ready to explicitly identify duties of reasonable accommodation on grounds of religion. Furthermore, de facto duties are unlikely to emerge based on the prohibition of discrimination, since the Court has avoided (proper) discrimination analysis in this respect. The Court does seem willing to identify de facto duties of reasonable accommodation under the freedom of religion, but only when a particular matter is not controversial. This absence of controversy is related to the existence of a convincing European consensus on the matter, the absence of a significant impact on the rights of others, and moderate financial implications. Consequently, the future potential of (explicit) duties of reasonable accommodation on the ground of religion appears limited.