published Jan 13th 2017, 9:28 am, by Noah Feldman

(Bloomberg View) —
Muslim girls can be required to participate in swimming classes alongside boys despite their parents’ religious objections, according to the European Court of Human Rights. The outcome would have been the opposite in most U.S. jurisdictions, which have emphasized students’ rights ever since Jehovah’s Witnesses were exempted from the Pledge of Allegiance during World War II. The decision made this week marks the very different situation in contemporary Europe, where children’s interests are contrasted with their parents’ rights, and the schools’ goal of “integration” is getting special weight amid a wave of Muslim immigration.

The case, Osmanoǧlu and Kocabaş v. Switzerland, involved a couple, Swiss citizens of Turkish origin, who did not want their pre-teen daughters to participate in mandatory swim classes with boys. The parents acknowledged that as a strict matter of Islamic law, the prepubescent girls weren’t bound by modesty rules. But they said that as a matter of religious practice, they wanted the girls exempted.

The school offered for the girls to dress modestly and wear burkinis. But the parents said no. As a result, the parents were fined 1,300 euros for “breach of their parental duty.”

The human-rights court had to decide whether the punishment violated the freedom of thought, conscience and religion, guaranteed by Article 9 of the European Declaration of Human Rights, which Switzerland has adopted. The court acknowledged that the parents’ religious freedom was being infringed. But that wasn’t the end of its analysis.

It held, according to the official English summary of the French language decision, that schools play “a special role in the process of social integration, and one that was all the more decisive where pupils of foreign origin were concerned.” Given that the girls in question were Swiss born to parents who were Swiss citizens, this language could only mean that the students were of other ethnic origin — and that they were Muslims.

The other noteworthy feature of the court’s opinion was how it distinguished the girls’ interests from those of their parents. It said that the reason they should participate in mandatory coeducational sports education “was not just to learn to swim and to take physical exercise, but above all to take part in that activity with all the other pupils, with no exception on account of the child’s origin or the parents’ religious or philosophical convictions.”

All this would have been very different in the contemporary U.S. In a pair of World War II-era cases, the Supreme Court first in 1941 denied religiously dissenting children the right to opt out of saluting the flag and pledging allegiance, then reversed itself in 1943 and held that the children had a free-speech right not to participate.

Technically, participating in swimming lessons isn’t speech. And since a 1988 decision by Justice Antonin Scalia, there’s no automatic constitutional right to opt out from neutral, generally applicable laws on the basis of religion.

But the federal government and many states have Religious Freedom Restoration Acts in place that would have exempted the girls from the coed swimming unless the state had a compelling interest to require them to participate and narrowly tailored its rules to fit that interest. That’s assuming the issue even made it to court, because most public school systems in the U.S. have guidelines for accommodating religious objections.

No U.S. court would be likely to say openly, as the European court did, that “the children’s interest in a full education, thus facilitating their successful social integration according to local customs and mores, prevailed over the parents’” religious liberty rights.

For one thing, the value of social integration of immigrants, arguably in the background of the repudiated 1941 decision, doesn’t outweigh First Amendment freedoms in the American pantheon of values. Religious liberty is a fundamental right. Social integration is a public purpose that’s useful, but not an ultimate value.

For another, U.S. courts deciding First Amendment cases don’t typically pit kids’ interests against their parents. The religious values espoused by the parents are taken to be those of the whole family. The European court, in contrast, depicted the girls as having an interest in being ordinary Swiss — an interest the court considered to be at odds with their parents’ religious beliefs.

Looming over these philosophical and cultural differences is the current immigration situation in Europe, including large refugee flows from Syria and Afghanistan, and the rise of xenophobic, populist, nationalist right-wing parties across the continent. By its decision, the human-rights court was signaling that it won’t be too quick to interfere with policies adopted by European governments to compel the integration of Muslims, especially children.

That’s perhaps understandable. The court, like other European institutions, is supposed to accord member states what the law calls a “margin of appreciation,” meaning deference to their democratic decisions.

And those democratic decisions are taking a decided turn toward non-accommodation of Muslims. Even German Chancellor Angela Merkel, the most pro-refugee head of government in Europe (and maybe in the world), recently called for a ban on niqab, the veil that covers the full face.

Nevertheless, the European court decision should rankle those classical liberals who believe that religious freedom is an inalienable right on par with life, liberty and property — and given by the same creator referred to in the Declaration of Independence. If you believe that, then you should also believe that the court is making a serious, potentially disastrous mistake by weakening support for religious liberty.

Certainly the religious values of some Muslim immigrants mark them as different by European cultural standards. But the body charged with human rights in Europe should give more thought to Europe’s troubling history with respect to religious difference. Respecting religious liberty as a universal right is a good first step to remembering that all humans are equal before the law, as before nature and nature’s God.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem — and What We Should Do About It.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

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