UK House of Lords Upholds Ban on Student’s Muslim Dress

The House of Lords has upheld the decision of a British high school to prohibit one of its students from wearing a head-to-toe jilbab dress to school. The full text of the House of Lords decision in R v. Headteacher and Governors of Denbigh High School is here. The House of Lords was interpreting Protocol 1 to the European Convention on Human Rights Article 2 (the right to education) and Article 9 (the right to religious freedom)

Here is the relevant text of Article 9:

“Freedom of thought, conscience and religion

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society . . . for the protection of the rights and freedoms of others.”

The House of Lords found no violation of these provisions here (while by the way disregarding an opinion from a Canadian court):

On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. . . .It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision. After the conclusion of argument the House was referred to the recent decision of the Supreme Court of Canada in Multani v Commission scolaire Marguerite-Bourgeoys [2006] SCC 6. That was a case decided, on quite different facts, under the Canadian Charter of Rights and Freedoms. It does not cause me to alter the conclusion I have expressed.

This decision is a good candidate for future interpretations of the U.S. Constitution’s establishment and free exercise clauses. The issues are no doubt ones that will come up in U.S. courts soon. I’m not a big fan of using foreign law, but I suppose the Court can’t do much worse with the establishment/free exercise cases than it is already doing.