Covernance: Feminist Theory, the Islamic Veil, and the Strasbourg Court's Jurisprudence on Religious Dress-Appearance Restrictions
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AbstractThis paper explores how the human right of religious freedom has been conceptually and pragmatically developed under international law within the European Court of Human Rights as applied to veiled Muslim women. This paper analyzes the application of human rights guarantees as established in the European Convention on Human Rights and case law established by the European Court that has interpreted international documents to determine the religious freedoms of veiled Muslim women in the public sphere. The analytical framework identifies the divergence between liberal and third wave feminist approaches to the Islamic veil, and identifies the feminist approaches to international human rights. The European Court has staunchly upheld governmental restrictions on Islamic veiling across Europe under Article 9 of the European Convention. This has disparately impacted religious freedom of Muslim women and their ability to manifest religion through their dress- appearance. Challenging the Court’s normative application, and discriminatory outcomes, of Article 9 jurisprudence through postmodern and postcolonial feminist interpretations of religious freedom may provide an opportunity to strengthen and elevate diverse female voices, like those of veiled Muslim women, in the review of dress appearance restrictions. Challenging Article 9 jurisprudence will help break the institutionalization of a harmful stereotype of the Islamic veil that relegates religious women to the darkest corners of European society. Women who have made a conscious choice to wear the Islamic veil need governmental and judicial protection of their religious freedom and of the ability to embrace the dynamic aspects of their gender, religion, identity, and autonomy in a secular Western society. Without this protection, veiled women will continue to live under a restrictive form of covernance - a discriminatory system of governance that restricts the way they manifest their religious belief by covering their bodies in the public sphere.