In the case of Osmanoğlu et Kocabaş v. Switzerland the ECtHR has found that a Swiss law that obliges the parents of a Muslim girl to accept, even if this violates their religious and moral convictions, that she must participate in swimming classes together with boys, does not violate Art. 9 of the European Convention of Human Rights.
It is easy nowadays to agree with all and everything that claims to uphold so-called “Western values” against “Muslim fundamentalism”, or that might be conducive the integration of Muslims into European societies. In truth, however, the ECtHR judgment is deeply flawed: it endorses the most narrow-minded intolerance where tolerance would cost nothing.
As a matter of principle, the State should not coerce people to act positively against their convictions, unless there is a real and pressing need, such as, for example in the context of parental rights, preserving the child’s health (e.g., in the case of an urgently needed blood transfer).
Forcing someone to act positively against his conviction is much more “violent” than not allowing someone to take a specific action according to his convictions. Therefore it is much more acceptable to forbid Muslim teachers in public schools to wear a headscarf while discharging their duties than to force a child to take part in an activity against his parent’s convictions.
In the present case, one fails to see any pressing need for the Swiss legislator to interfere with the parent’s rights: it is not a big deal to dispense a child from swimming lessons. The positive interest of the Swiss state in this is not quite clear, and the potential damage to the child, if it can be called such, is rather limited: the girl will not learn how to swim – or if it has a change of mind, it can learn swimming elsewhere or at a later time. Indeed, as one can read in the judgment itself, not all Swiss schools have swimming lessons in their curriculum; in addition, the parents pointed out that their daughter was following swimming lessons in her leisure time, so that there was no need for her to follow the swimming course at school. Furthermore, the parents have not asked the Government to organize “girls only” swimming lessons especially for their girl, nor have they requested that no one else can learn swimming only because they want no swimming lessons for their girl. They just asked for an exemption.
This is also the main difference to the ominous decision in the case of Lautsi v. Italy – one of the most boorish judgments the ECtHR has ever made, but which fortunately was reversed through a subsequent Grand Chamber judgment. In Lautsi, the Court ordered that crucifixes had to be removed from all classrooms in public schools only because some parents might want their children to grow up without religion – in other words, it allowed one mother to impose her own set of “values” on an entire country: because Mrs. Lautsi wanted her daughter to sit in a classroom without a crucifix, the competing interest of other parents had to be ignored. In the present case, however, there is no such competing interest of others.
The point that the Swiss government has made, and that the Court in its lamentable ignorance has allowed it to make, is precisely that of forcing someone to act against his moral conviction – on an issue in which there is not even the faintest trace of a public interest!
The idea that a government’s “cultural policy” should prevail on personal religious and moral convictions that do not impinge on any third person’s rights is aberrant. The ruling sets a very dangerous precedent that could be used against many other minorities and in particular against families that seek to uphold moral convictions that are evaporating in mainstream society. For example, it could be used as a pretext to force parents to send their children to compulsory sex-ed lessons, including curricula that seek to “normalize” perverse sexual behaviours or to promote the unscientific “Gender” ideology.
However, the situation could be different in other countries. Astonishingly, Switzerland is one of the two CoE Member States that never have ratified Protocol No. 1 to the Convention; therefore it was not possible for the parents rely on Article 2 of that Protocol, which guarantees the parents’ right to have their children educated according to their religious and philosophical convictions. One might also ask whether the parents would not have been better advised to file the complaint on behalf of their daughter, and to invoke Article 8 (Right to respect for Private Life) rather than Article 9 (Freedom of Religion).