Meet the New Boss of Religious Freedom: The New Cases of the Court of Justice of the European Union

This Article analyzes how and why the Court of Justice of the European Union is rapidly becoming an important new forum for European religious freedom and threatening to eclipse the better-known European Court of Human Rights. Before 2017, the Court of Justice was largely silent on religious freedom, and it did little to implement the new religious freedom guarantees of the 2010 EU Charter of Fundamental Rights. Since 2017, however, this Court has issued landmark rulings on the rights and limits on Muslim employees to wear religious headscarves in the workplace and the rights of employers to make religious affiliation and conformity a prerequisite for employment or a basis for differential treatment of employees. The Court has balanced the rights of religious groups to continue ritual slaughtering with the growing concerns for animal wellbeing and organic food preparation. The Court has addressed hard questions of tax exemption and other state aid for religious schools; the rights and limits of refugees alleging religious persecution at home; the limits on state recognition of religious divorces; and the limits that privacy laws impose on Jehovah’s Witnesses. And the Court has begun to question longstanding religion-state arrangements in selected countries, including those establishing or favoring traditional forms of Christianity. Unlike the European Court of Human Rights in Strasbourg, which mostly relies on voluntary compliance by the individual State found in violation on the European Convention on Human Rights, the European Court of Justice produces cases that immediately bind all EU Member States and automatically preempt conflicting local laws. Moreover, local state courts regularly seek advisory opinions from this European Court on prevailing EU law before resolving local cases before them. This makes appeal to binding EU law more attractive for local litigants, religious freedom advocates ever more prominently amongst them. If present case trends continue, the world might well be watching the birth of an integrated European law of religious freedom; however, that birth could unsettle longstanding local traditions of church-state relationships and leave insular religious minorities, particularly Muslims, with little religious freedom protection.