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Damned If It Doesn't and Damned If It Does: The European Court's Margin of Appreciation and the Mobilizations Around Religious Symbols

This Article argues that the European Court of Human Rights’s use of the margin of appreciation in cases involving religious symbols can be seen as the Court’s status-seeking mechanism, whose application varies with the status of states, and the social status and distance of religious symbols from mainstream social norms. Notwithstanding the Court’s self-restraint through the margin of appreciation, due to the informational function of law and status concerns, its procedures and decision have mobilizing effects upon third party interveners, states, groups, and “loyalists”, with, at times, adverse effects. The mobilization of the states as third-party interveners in front of the Court creates a structural misbalance unfavorable to the individual applicants, while intervention of non-state third parties in the Court’s procedures defers the alignment of socially controversial religious symbols, such as the wearing of the burqa with mainstream norms. Mobilization of states, groups and loyalists in the wake of the Court’s deliberations decreases overall social pluralism, since states and various groups benefit from using litigation in front of the Court for purposes of the preemptive defense of the status quo and the creation of an emerging consensus, norm-entrepreneurship and strategic cause-legitimization (in the case of groups), and “mobilization of loyalties” (in the case of “loyalists”). 
As democracy implicitly rests on the social norms of past generations, disputes over the presence of headscarves, turbans, crucifixes, and burqas in various spaces are but minor symptoms of the growing anxieties over the institutional and social willingness and capabilities of democracies to manage pluralism caused by social and demographic change. This article suggests that the European Court of Human Rights is even less willing and well-equipped to deal with the phenomenon of increased religious diversity. The Court is “damned if it doesn’t and damned if it does”: both its self-restraint via the margin of appreciation and more activist decisions can do more harm than good, inflame what are controllable low-intensity social tensions, and create troubles where there are initially none.