Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law

Abstract

Consider the following statutory provision: In public schools, students are prohibited from wearing symbols or attire through which they conspicuously exhibit a religious affiliation. Such a law, now familiar in the wake of the recent affaire du foulard in France, appears prima facie to violate the most basic tenets of the right to freedom of religion and belief in international law. Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone has the right to freedom of thought, conscience, and religion, including the freedom "either individually or in community with others and in public or private, to manifest ... religion or belief in worship, observance, practice and teaching." In most religious traditions, the wearing of religious symbols or attire-for example, the Jewish yarmulke, the Sikh turban, or the Islamic hijab-is not a simple matter of choice but a matter of religious duty, ritual, and observance. Within different traditions, there are a variety of ways in which religious symbols work. In Christianity, for example, the crucifix is worn as an ornament of conviction whereas, in Judaism, the yarmulke is worn as a matter of religious obligation. For certain ethnic, religious, and cultural groups (whether they comprise the majority or a minority), wearing religious or traditional dress is closely bound up with spiritual practices and is a defining element of group identity. For Muslim girls and women the wearing of the hijab may be a form of social obligation that is religiously motivated rather than a matter of religious duty per se. This, in turn, has an intergenerational dimension with the continuity of religious tradition being seen as a critical factor in the survival of specific cultural, religious, and linguistic groups.