Elephants in courtrooms-I – the Dutch ‘Council of State’ on religion

ECHR: office Strasbourg France

On 15 August 2018, the Council of State, administrative jurisdiction division, issued a remarkable ruling [1] in a case by a member of the Pastafarism church against the Mayor and Aldermen of Nijmegen.

In this article, I will address this ruling in depth, but as briefly as possible. In a subsequent article, I will devote a more extensive discussion to one of the two ‘European‘ statements on which this division claims to rely. I will also return to the quotation marks around ‘European’ and my emphasis on ‘claims’.

The Council of State apparently considered its ruling in this case to be of greater societal importance than other rulings. Not only was a press release issued about it – the division only does that for a small portion of its rulings– this time an English version of the press release was even published. In fact, of the many dozens of Council rulings I have looked at so far, this is the only one that has an English translation.
A good thing. It is important that this illustration of how ‘judges’ of all kinds act in these cases comes to the attention of many: surprisingly sloppy and brimming with judicial activism [2]. And it is also a kind of gallantry to the founder of Pastafarism, who lives in the US.

The colander and the muslim veil

The lady (the ‘appellant’ in the jargon) who had appealed, did so because on 25 July 2017 the Court of Overijssel had ruled in favour of the Mayor and Aldermen of the city Nijmegen in rejecting her application for an identity card.

Mayor and Aldermen (in Dutch: ‘Burgemeester en Wethouders’, B&W) had rejected the application because in the photo provided, the woman was wearing a colander on her head. A custom within Pastafarianism that -not entirely coincidentally- is somewhat reminiscent of the Muslim custom of imposing a form of ‘veiling’ on women.

Many of those “veils” are forced on women, but many of the female followers of Muhammad’s teachings also wear such a thing voluntarily. For very different reasons. Provocation is one of them. I am implicitly quite negative here in my use of words about that doctrine of the –voluntarily or not– veiling Muslim women.
I use this unfriendly term “such a thing” here to draw attention to the fact that over all centuries and across all Muslim subcultures and movements, there was and is NO agreement on the form of that ‘veil’ (hence my quotation marks), but there IS agreement on the why of that veil: distinguishing between women who are and women who are not followers of Mohammed [3]. The importance of this –especially in this context– cannot be emphasized enough.

Judges and sacred writings

In the ruling under scrutiny, the Overijssel Court stated that leaving the head uncovered does not belong to the eight doctrines of the Pastafarians that they refer to as ‘rather-nots’. Implicitly, the judges suggested that the vaguely indicated, and conditionally formulated, Muslim desirability of covering the female head is one of the cornerstones of that belief. Quite a stretch.
The Court had apparently not delved much into the teachings of Muhammad, in fact, they spoke in the following terms about the relationship between those teachings and the covering of female heads: “an explicit, unconditional prohibition contained in sacred writings against leaving the head uncovered.” (my emphasis).

So, according to these judges ‘sacred writings‘ exist. In catering businesses and at parties, this is not a problematic term. However, there is no definition of ‘sacred’ in law or jurisprudence! Therefore, the use of that term here is rather sloppy, to say the least.

The thrust of the most important Qur’anic verse about veiling is -not very explicitly, but thus all the more emphatically, properly considered- conditionally formulated: with the help of the veil, Muslim women can be distinguished from non-Muslim ones, so that Muslim women are safe. When the struggle against other faiths is complete, or as the Qur’an reports in verse 2:193: “(And fight them) until there is no more temptation and religion belongs to Allah” (repeated in 8:39) it is no longer necessary. The danger that Muslim women will then still be assaulted by infidels or people of other faiths is then averted.

This condition, in other words, is of enormous importance. The fact that in countries where hardly anyone dares to openly call themselves non-Muslims, covering the heads of women is just as much a matter of course, does not change that.

In turn, these judges now write that the Pastafarian rather-nots remind them of the Ten Commandments of Christianity. This is not very strange for people who have studied little about religions. However, because I have studied them, they remind me more strongly of the teachings of Muhammad. Within those, all behaviours are classified into five categories. One of those five is ‘rather not‘. This division into five categories does not resemble the dichotomy of mortal sins versus daily sins of the Catholics that the judges possibly thought of.

The so-called preliminary question

The rejection of the appeal by the Council of State has two main elements:

a) Within Pastafarianism, the colander does not occupy a central place.
They have, as it were, scrutinized the regulations within Pastafarianism. The Council of State, however, refrains from ruling on whether covering women’s heads would be central within Islam (or men’s turbans in Sikhism).

b)  Pastafarianism is (simply) not a “religion or philosophy of life within the meaning of Article 9 of the ECHR and Article 6 of the Constitution”.

The Council  made that observation based on the answer to what they themselves refer to as “the preliminary question (voor-vraag).” They put it this way:

In view of the function that the Division has as the highest general administrative court for the purpose of legal unity and in line with the parties’ wishes, it will focus in this case -unlike the Courton the preliminary-question of whether Pastafarianism can be considered a religion or philosophy of life in the sense of Article 6 of the Constitution and Article 9 of the ECHR according to the current state of affairs.

This term with hyphen is a brand new piece of legal jargon!

To my surprise, when I searched for the occurrence of the term, its use itself appeared to bear witness to some sloppiness on the part of the lawyers Altena, Polak and Vermeulen: the term preliminary-question without hyphen already existed in the jargon, but it was hitherto used in contexts quite different from this one.

More careless and more important is the handling of the difference between the two concepts of ‘belief‘ and ‘philosophy of life‘. In other words, the fact that these judges pretend that these two concepts are identical. However, it is precisely in the context of this ruling [4] that the difference is more substantial than it appears at first sight.

The term ‘belief’ is taken directly from Article 6 of the Constitution [5]. The term ‘philosophy of life’ here has a twofold origin. The so-called Passport Implementation Regulations (‘Paspoortuitvoeringsregeling’) for the Netherlands 2001 uses this term [and so: they do not use the term from the constitution] and it is the translation used by these judges themselves for the term ‘belief’ in Article 9 of the European Court of Human Rights (ECHR). It always speaks of “religion or belief”.

The greater challenge

By far the most striking phrase from the whole ruling can be found in paragraph 8: ‘Assessment of grounds‘. Referring to an earlier ruling of itself, the Administrative Jurisdiction Division of the Council writes that the exception rule for passport photos of Muslim women and Sikh men has been added:

apparently because of the required respect for such movements.”

In this context I don’t care that the term ‘respect’ is being associated in ever wider circles with the mafia. I do mind the combination of ‘apparently’ and ‘such movements’.

This testifies to the fact that these judges do not so much want to take into account an original body of thought, which has been labeled as a religion, no, they are considering offending the contemporary interpreters of it. Behind all this there is a greater challenge; answering the -much more important- ‘preliminary-question’:  is religion something of individual people or something of ‘people of religious knowledge’ who present themselves as the group of people who ‘own’ a specific faith?

In this context, it doesn’t hurt to also soberly establish that the Qur’an, Hadith or other authoritative Mohammedan sources do not mention identity documents, let alone passport photos …

The special twist in the ruling is almost equally striking:

Viewed in the light of this jurisprudence, the question is whether the line previously followed by the Division and now by the Court in the present case can be maintained in full.

So in effect these judges are saying: now that we have given it some more thought as a result of this case and looking at what ‘European’ judges have to say about it, we now come to a different conclusion.

The first thing that is striking is that the Council’s division does not itself come up with considerations about the so-called preliminary-question “what makes a philosophy of thought a religion, belief or philosophy of life?”, but bases itself on rulings that ‘European’ judges would have made about this!

Borrowing as it suits

Other issues do not stand out in the ruling. Only when you study the most important ‘European’ ruling to which one refers, they stand out.

I identify two major pain points.

The first of these concerns part a) of the Council’s ruling. The ‘European’ ruling is different from that of the Council. The idea that judges judge how central an issue is within a ‘religion, belief or philosophy of life’ is rejected (although in the various cases dealt with therein, not always as clear).

The second is even more remarkable: the “Europeans” did not ask themselves this so-called preliminary-question of part (b) in the ruling to which the Council of State refers. In this ‘European’ ruling [actually four rulings raked together!] only, -almost casual-, reference is made to yet other rulings. In those, the key word is ‘cogency‘, translated by the Council as ‘persuasiveness’.

Council of State

The fact that the term has not been translated very well is obviously not what I want to address here. I am concerned with what is inevitably the result of the approach that underlies it. In the ‘European’ ruling as well as the Dutch one, the implicit, but very clear, message is that when the rules and regulations from religions are imposed more forcefully on the world, and in particular on one’s own believers, society, i.c. the government, must take this more into account. And this is not about the power of conviction but about the power of more or less explicit threats in life here on earth or in a life after death.

To ease comparison here is the definition of the term cogent by the translation site Almaany.

An important element of the philosophy of life -here the difference with belief becomes more apparent- of the Pastafarians is precisely the opposite of this bullying. The ruling quotes:

  [we] are very serious and promote a life attitude of kindness, non-violence, tolerance, sobriety, modesty and relativism.” (my emphasis, FG)

Undeniably, this philosophy of life is partly inspired by what the Pastafarians find worrying about a number of movements that are generally regarded as religion. To claim –implicitly, but still – in one stroke that all religions have great power of persuasion as a whole is a travesty. Better said: it is certainly not strange to put forward such an argument at the drinks table, but very embarrassing when legal experts use it in a ruling.

The Division further states that a philosophy of life should not contain too many elements of criticism of other faiths.

However, in effect this means that new faiths are not allowed to do so. After all, anyone who seriously examines the relationship between the content of the three Abrahamic religions cannot ignore the fact that in Christianity Judaism is ‘corrected’, and even less so the fact that Islam presents itself as a ‘correction’ on Judaism and Christianity.

Most clearly the character of Islam as a mockery of Christianity is expressed in the so-called blasphemy verse of Qur’an: 5:116.

In many places in the Qur’an, the doctrine of the holy trinity is under attack. Directly or –even more viciously– in a casual way. Verse 5:116 I consider to be the most anti-Christian for two reasons.

First, because here Jesus is actually being made a bit of a fool here. Contradicting Christianity is put in the mouth of Jesus himself with the suggestion embedded in it that perhaps he himself might have been busy cheating. He apologizes to Allah…

In addition, because it is presented as if not the Holy Spirit but Mary is designated as the third deity alongside God the Father and Jesus …

Characteristics, not a definition

The preliminary question raised by the Council is not answered with a definition of ‘religions, beliefs or philosophies of life’ but lists a few characteristics:

According to settled case law of the ECtHR, the condition for designating a set of beliefs as a religion or belief within the meaning of Article 9 of the ECHR is that these beliefs

 … attain a certain level of cogency, seriousness, cohesion and importance

In that sense, it is a reminder of the way in which many people deal with the battle cry ‘Islamophobia’.

Page 288 of my 2010 book ‘Islamophobia?’ (in Dutch only). I guess you guessed correctly that the Dutch word ‘leeg’ means ’empty’.

NOTES:

1. Here is the link to the ruling at the Council of State itself. Its Code reads: ECLI:NL:RVS:2018:2715

2. More articles here at ODP on the subject of judicial activism / judicial internationalism can be found in the category ‘Judicial Activism’ (Judact). Categories and tags can be found in the footer of this website.

3. This is particularly the case with Qu’ranic verse 33:59, but verse 24:60 also has veiling as its subject. Especially when these two verses are viewed in conjunction, there can be no misunderstanding about the purpose of veiling according to the Qu’ran. There are various authoritative texts within Islam, but there is not a single Muslim or expert on Islam who would deny that the Qur’an is the most important among them.

4. The fact that the defence did not zoom in on the difference between those two concepts, does not exonerate the state councils. Especially not in a ruling in which one explicitly states that one is in the process of answering a preliminary-question on the subject.

7.  Here is the link to the text of Article 6 of the Constitution including its history.
It is very striking that the further into the past, the more sensible the formulation is. 1798: “No civil advantages, or disadvantages, are attached to the practice of any Ecclesiastical Doctrine.”
In particular, the fact that practicing any kind of religion should not lead to favouritism by the state nowadays is painfully missing.

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