Government of the Republic of South Africa and Others v Irene Grootboom and Others

The case "Government of the Republic of South Africa and Others v Irene Grootboom and Others" is
about the South African government's responsibility to provide housing and shelter to its people, as
required by the country's Constitution. This case focuses on two specific parts of the Constitution: section
26, which gives everyone the right to adequate housing, and section 28(1)(c), which states that children
have the right to shelter.
Irene Grootboom was part of a group of 510 children and 390 adults living in terrible conditions in a
place called the Wallacedene informal settlement. Because their living conditions were so bad, they
decided to move to nearby land that was planned for low-cost housing. However, this move was illegal,
and they were forcibly removed from the land. During this eviction, their homes were destroyed, and they
lost their possessions. Since they couldn't go back to Wallacedene because their places were taken by
others, they had to live on a sports field and in a community hall nearby.
The case was first heard by the Cape of Good Hope High Court, which decided that the government had
to provide immediate help. This help included tents, portable toilets, and a regular supply of water. The
court based its decision on the right of children to shelter and, through them, the right of their parents to
basic living conditions.
The case then went to the Constitutional Court, which is the highest court in South Africa. During the
appeal, the Human Rights Commission and the Community Law Centre of the University of the Western
Cape joined as friends of the court (amici curiae), providing additional support and information. At the
hearing on May 11, 2000, the Grootboom community accepted an offer from the government to help with
their crisis. However, by September 21, the government had not fulfilled its promise, so the community
made an urgent application to the Constitutional Court.
On September 21, the court communicated with both sides and made an order. This order required the
municipality to provide some basic services immediately. The case highlighted the importance of the
government's duty to meet the housing needs of its people, especially vulnerable groups like children, and
the enforceability of social and economic rights in South Africa.
In the case "Government of the Republic of South Africa and Others v Irene Grootboom and Others," the
Constitutional Court made a unanimous decision, meaning all the judges agreed. The decision was written
by Justice Yacoob. The court emphasized that the South African Constitution requires the government to
take positive actions to improve the living conditions of the many people who live in terrible situations
across the country. This includes providing access to housing, healthcare, enough food and water, and
social security for those who cannot support themselves and their families.
The court pointed out that all the rights in the Bill of Rights are connected and support each other. For
example, when people have their socio-economic rights (like housing and food) met, they are better able
to enjoy other rights, such as the right to equality and dignity. This helps to advance race and gender
equality and helps create a society where both men and women can reach their full potential. If people
lack basic needs like food, clothing, or shelter, they are denied their dignity, freedom, and equality.
The court explained that the right to adequate housing cannot be considered alone. The government must
also create conditions that allow people to access land fairly. However, the Constitution understands that
this is a very challenging task given the current conditions in the country. It does not require the
government to go beyond its available resources or to achieve these rights immediately. But the
government must still work towards fulfilling these rights, and in some cases, the courts must enforce
these obligations.
The court's key point is about reasonableness. The government must take reasonable steps to achieve the
rights provided by section 26 of the Constitution, which includes the right to adequate housing. To be
considered reasonable, the government's measures must take into account how severe and widespread the
problem is. The government must not ignore those whose needs are the most urgent and whose ability to
enjoy all their rights is most at risk.
Even if the government's actions are successful on paper or statistically, they may still not be reasonable
if they fail to address the needs of the most desperate people. In other words, if the measures taken do not
help those who need it the most, they might not be considered reasonable by the court.
The court ruled that the government must work to improve living conditions and provide basic necessities
like housing, healthcare, food, and social security. All rights are connected, and fulfilling socio-economic
rights helps people enjoy other rights too. The government must act within its resources, but it must also
take reasonable steps to help those in the most urgent need. If the government's measures do not address
the needs of the most vulnerable people, they might not meet the court's standard of reasonableness.
In the case "Government of the Republic of South Africa and Others v Irene Grootboom and Others," the
Constitutional Court emphasized some important points about the rights to housing and shelter in South
Africa.
First, the court made it clear that sections 26 and 28(1)(c) of the Constitution do not give people the right
to demand immediate shelter. Section 26 deals with the right to adequate housing, and section 28(1)(c)
concerns children's right to shelter. However, the court found that the housing program in place in the
Cape Metropolitan Council area at the time did not meet the state's obligations under section 26.
Even though the government had built many homes since 1994, their housing program did not provide
any temporary relief for people in desperate situations—those without any shelter or living in crisis
conditions. The court noted that immediate needs could be met with temporary relief, which doesn't have
to meet the full standards of a permanent house, such as durability, habitability, and stability.
After the case started in the High Court, the Cape Metropolitan Council introduced a new program called
the Accelerated Managed Land Settlement Programme to address this gap. This new program aimed to
provide temporary relief to people in desperate need. The court stressed that this program needed to be
implemented effectively.
The court also made an important point about land invasions. It stated that their judgment should not be
taken as approval of people illegally occupying land to force the government to give them housing. The
court did not support using land invasions as a way to get housing faster than others.
The court issued a declaratory order. This means they made a formal statement requiring the government
to create and carry out a program that includes measures to help those in desperate need who were not
previously covered by the state's housing program in the Cape Metropolitan area before the new
Accelerated Managed Land Settlement Programme was introduced.
In summary, the court ruled that while the Constitution does not give an immediate right to shelter, the
existing housing program in the Cape Metropolitan area was not meeting the state's obligations because it
did not provide temporary relief for those in desperate need. The new program introduced by the Cape
Metropolitan Council was meant to fill this gap, and the court emphasized the need for it to be
implemented properly. The court also clarified that their decision should not be seen as supporting illegal
land occupations to get housing. Finally, the court required the government to create and implement a
program that includes temporary relief measures for those in desperate situations.

Key Constitutional Sections:

1. Section 26: Grants everyone the right to access adequate housing.

2. Section 28(1)(c): Specifically ensures that children have the right to shelter.

Human Rights Committee, General Comment No. 23: Article 27 (Rights of Minorities),
CCPR/C/21/Rev.1/Add.5
1. What Article 27 Says: Article 27 of the Covenant ensures that people who belong to ethnic, religious,
or linguistic minorities have the right to enjoy their own culture, practice their religion, and use their own
language. This right is given to individuals who are part of minority groups and is in addition to other
rights everyone else enjoys under the Covenant.
2. Common Confusions: Some people mix up the right in Article 27 with the right to self-determination
in Article 1, which is about peoples' rights to decide their political status and pursue their economic,
social, and cultural development. Article 27, however, is about individual rights within minority groups.
Additionally, Article 27 rights are sometimes confused with non-discrimination rights in Article 2.1 and
equality before the law in Article 26.
3. Differences Between Article 27 and Self-Determination:
 Self-determination (Article 1) is a collective right belonging to peoples and is addressed in Part I
of the Covenant.
 Article 27 rights are individual rights for people in minority groups and are found in Part III of
the Covenant.
 Self-determination is not covered under the Optional Protocol, which allows individuals to bring
complaints. Article 27 rights are covered under this protocol.
4. Sovereignty and Territorial Integrity: Article 27 rights don't affect a country's sovereignty or
territorial integrity. However, the right to enjoy a particular culture might involve activities linked to a
specific territory and its resources. This is especially relevant for indigenous communities.
5. Non-Discrimination and Equality:
 Article 2.1 requires that everyone enjoys the Covenant rights without discrimination, whether
they belong to a minority or not.
 Article 26 provides for equality before the law and non-discrimination in all rights and
obligations imposed by the State.
 Some States wrongly claim they have no minorities just because they don’t discriminate based on
ethnicity, language, or religion.
5.1. Who is Protected by Article 27: Article 27 protects individuals who are part of a group sharing a
common culture, religion, or language. These individuals don’t have to be citizens of the State. Article 2.1
requires States to ensure Covenant rights are available to everyone within their territory, except for
certain rights reserved for citizens, like political rights under Article 25. States can’t restrict Article 27
rights to citizens only.
5.2. Who Gets the Rights in Article 27: Article 27 gives rights to people in minority groups that exist in
a country. It doesn’t matter how permanent these minorities are. These rights include enjoying their own
culture, practicing their religion, and speaking their language. People don’t need to be citizens or
permanent residents to have these rights. Migrant workers or visitors who are part of a minority group
also have these rights. These people also have general rights like freedom of association, assembly, and
expression. A minority's existence in a country is determined by objective facts, not by the country’s
decision.
5.3. Specific Language Rights: The right of minority individuals to use their language is different from
other language rights in the Covenant. For example, the right to freedom of expression in Article 19
applies to everyone, not just minorities. Also, Article 14.3(f) gives accused persons the right to
interpretation in court if they don’t understand the court’s language. This is different from the right in
Article 27 to use their own language in private or public.
6.1. Obligations of the State: Article 27 is written in negative terms, meaning it says what should not be
denied. However, it recognizes a right that must be protected. States must ensure this right isn’t denied or
violated. This means States must protect this right from their own actions and from the actions of others
within the State.
6.2. Supporting Minority Groups: While Article 27 rights are individual, they depend on the minority
group’s ability to maintain its culture, language, or religion. Therefore, States might need to take positive
steps to protect the identity of a minority and help its members enjoy and develop their culture, language,
and religion. These measures must respect non-discrimination and equality principles in Articles 2.1 and
26. If the measures aim to fix conditions that prevent or impair the rights in Article 27, they can be
legitimate as long as they are reasonable and objective.
7. Cultural Rights and Indigenous Peoples: Cultural rights in Article 27 can include traditional ways of
life, like using land resources, especially for indigenous peoples. This might include activities like fishing
or hunting and living in legally protected reserves. Protecting these rights may require legal measures and
ensuring minority communities can participate in decisions affecting them.
8. Limits of Article 27 Rights: None of the rights in Article 27 can be exercised in a way that conflicts
with other provisions of the Covenant.
9. Summary and Conclusion: Article 27 involves specific obligations for States to protect the cultural,
religious, and social identity of minorities. This enriches society as a whole. These rights should not be
confused with general rights given to everyone under the Covenant. States must fully protect these rights
and report the measures they’ve taken to do so.
 Kitok v sweden Case
Introduction
The Arctic region includes the ice-covered Arctic Ocean and surrounding lands. This area covers
Greenland, Spitsbergen, and the northern parts of Alaska, Canada, Finland, Norway, Russia, and Sweden.
The Arctic is significant due to its unique geophysical and climatic conditions, covering about 14.5
million square kilometers. Humans have lived here for nearly 20,000 years. The region is known for its
unique biodiversity, plants, animals, and natural resources.
The Arctic is home to diverse indigenous groups. In Alaska, these include the Inupiat, Yup’ik Eskimos,
Alutiiq, and Athabascans. In Greenland, they are the Kalaallit and Inughuit. In northern Fennoscandia,
they are the Sami, and in northern Russia, there are the Chukchi, Evens, Evenks, Nenets, Mivkhi, Sami,
Sakhas, and Khants. Each group has its own culture, language, history, and traditional ways of living.
Traditional activities include reindeer herding, hunting, fishing, and sheep farming.
While modern activities now include things like commercial salmon canning, timber production, and oil-
related businesses, many indigenous groups still rely on natural resources from their traditional lands.
Their connection to these traditional activities is crucial for their economic and cultural survival.
However, climate change, causing rapid melting of sea ice, and increasing industrial activities threaten the
survival of these indigenous communities. This paper examines the Human Rights Committee's (HRC)
views on the traditional cultural rights of Arctic indigenous peoples. The HRC is not a formal court but,
under the Optional Protocol to the Covenant (effective from 23 March 1976), it can receive and consider
communications from individuals in state parties to the Protocol. The HRC also provides concluding
observations based on reports from member states as per the Covenant's provisions.
Place of Indigenous Peoples in Human Rights Instruments
Many international documents address basic and specific human rights that also apply to indigenous
peoples. However, the term ‘indigenous peoples’ was not used in the 1948 Universal Declaration of
Human Rights or in the two United Nations Covenants of 1966.
ILO Convention and UN Declaration: The International Labour Organization (ILO) Convention No.
169 on Indigenous and Tribal Peoples, adopted in 1989, does use the term ‘indigenous peoples.’ Recently,
the United Nations’ Declaration on the Rights of Indigenous Peoples (referred to as the Declaration) has
directly addressed the human rights of indigenous peoples.
Ratification and Legal Force: Few countries have ratified the ILO Convention No. 169. Among Nordic
countries, only Norway has ratified it, so the land claims and land use rights of indigenous peoples in the
Arctic region are not fully recognized. The Declaration, on the other hand, emphasizes the rights of
indigenous peoples to their identity, culture, and traditional lands. Article 26(3) of the Declaration
highlights the right of indigenous peoples to own, use, develop, and control the lands and resources they
traditionally possess. However, the Declaration is not legally binding.
Other Instruments Supporting Indigenous Rights: Several other international instruments support the
rights of indigenous peoples:
1. International Covenant on Economic, Social, and Cultural Rights (CESCR):
o This covenant does not specifically mention ‘indigenous peoples,’ but it recognizes
everyone's right to participate in cultural life and benefit from scientific, literary, or
 artistic works (Article 15(1) CESCR). These rights include the protection of traditional
knowledge and intellectual property for indigenous peoples.
2. UN Convention on the Rights of the Child:
o Article 30 states that children belonging to minority groups, including indigenous
children, have the right to enjoy their culture.
3. Draft Nordic Sami Convention:
o Although still a draft, this convention directly addresses Sami livelihoods and their use of
natural resources. Protecting these aspects is crucial for maintaining Sami culture.
4. Other Relevant Conventions:
o Convention on the Elimination of Racial Discrimination (CERD): Focuses on
eliminating racial discrimination, which can support the rights of indigenous peoples.
o American Declaration of the Rights and Duties of Man: Under the Inter-American
Human Rights System, this declaration provides protections relevant to indigenous
peoples.
o Framework Convention for the Protection of National Minorities: Under the
European human rights system, this convention supports the rights of national minorities,
including indigenous groups.
International Covenant on Civil and Political Rights: The International Covenant on Civil and
Political Rights (the Covenant) is important for protecting minority rights, even though it doesn't
specifically mention 'indigenous peoples.' Article 27 of the Covenant states that in countries with ethnic,
religious, or linguistic minorities, these groups have the right to enjoy their culture, practice their religion,
and use their language. This is relevant because in many Arctic states, indigenous peoples are considered
minorities. Therefore, they have rights to practice their culture, language, and religion.
Development of Indigenous Rights: The rights of indigenous peoples, especially their cultural rights,
have developed through cases brought before the Human Rights Committee (HRC). The HRC uses
Article 27 to interpret these rights, ensuring that indigenous peoples, as minorities, can enjoy their distinct
culture. Additionally, indigenous peoples have a unique status in international law that sets them apart
from other minorities. They form strong communities because of their deep historical, traditional, and
cultural ties to the land they live on.
Self-Determination and Indigenous Peoples: There is a debate about whether indigenous peoples are
'peoples' under common Article 1 of the two Covenants (the Covenant and the International Covenant on
Economic, Social and Cultural Rights). Article 1 states that all peoples have the right to self-
determination. This idea has two main interpretations:
1. Stronger Interpretation: Some believe that indigenous peoples could secede from the nation-
state and form their own independent country.
2. Softer Interpretation: Others argue that self-determination means indigenous peoples have the
right to manage their own resources independently, without leaving the nation-state. This
interpretation is based on Article 1(2) of the Covenant.
Indigenous Cultural Rights: While the debate on self-determination is complex, it's clear that
indigenous peoples have the full right to enjoy their culture without any obstacles, as per Article 27. This
includes maintaining a harmonious relationship with their lands and engaging in traditional activities like
hunting, fishing, gathering, and herding. These cultural practices are essential for their survival and are
more extensive than ordinary minority rights, which typically include practicing one's religion and
speaking one's language.
Summary: The Covenant and related international instruments provide important protections for the
rights of indigenous peoples, particularly their cultural rights. Article 27 of the Covenant is a key
provision that ensures minorities, including indigenous peoples, can enjoy their culture, religion, and
language. The unique status of indigenous peoples in international law acknowledges their strong
community ties and deep connection to their lands. While there is ongoing debate about the extent of their
right to self-determination, it is agreed that they have the right to maintain their traditional ways of life
and cultural practices without hindrance.

Leading Cases Related to Traditional Cultural Rights

1. Lubicon Lake Band vs. Canada (Communication No. 167/1984):
o The Lubicon Lake Band, an Aboriginal nation near northern Alberta, Canada, relied on
traditional activities like hunting, fishing, and trapping for their subsistence and cultural
identity. These rights were recognized under Canada's Indian Act of 1899. However, the
construction of pipelines and commercial activities began to impact their traditional way
of life. The Band brought their case to the Human Rights Committee (HRC), questioning
whether they could be considered a ‘people’ under common Article 1 of the Covenant
and whether their subsistence rights fell under cultural rights protected by Article 27.
2. Ivan Kitok vs. Sweden (Communication No. 197/1985):
o Ivan Kitok, a Sami by ethnic origin, faced a challenge in Sweden due to legislation that
questioned his Sami status under the Reindeer Husbandry Act. Despite his heritage, he
was denied full Sami status because he had not lived continuously in a Sami village. This
affected his rights to engage in traditional Sami activities like hunting, fishing, and
reindeer herding, which were legally restricted to those recognized as Sami under
Swedish law. The case raised issues about whether Mr. Kitok's right to enjoy his culture
under Article 27 of the Covenant was violated by the denial of his Sami status.
3. Länsman et al. vs. Finland (Communication No. 511/1992):
o This case involved the Etelä Riutusvaara Mountain in Finnish Lapland, an area crucial for
local Sami reindeer herders. The Finnish government permitted quarrying activities in
this area, which endangered the natural habitat and disrupted reindeer herding practices.
Mr. Länsman and others argued that these activities violated their rights under Article 27
of the Covenant, which protects cultural rights including traditional practices like
reindeer herding.
4. Second Länsman case (Communication No. 671/1995):
 o In this follow-up case, Sami reindeer breeders challenged plans by the Finnish Central
Forestry Board to allow logging and road construction in an area vital for their herding
activities. They argued that these activities would disturb the quiet and undisturbed
environment essential for female reindeer to calve, thus jeopardizing their traditional
rights protected under Article 27 of the Covenant.
Summary: These cases illustrate the ongoing struggles of indigenous peoples, particularly the Sami and
the Lubicon Lake Band, to protect their traditional cultural rights against encroachments from commercial
and industrial activities. The Human Rights Committee has been instrumental in interpreting and applying
Article 27 of the Covenant to uphold these rights, recognizing the importance of traditional practices for
cultural identity and survival. The outcomes of these cases have helped clarify and strengthen protections
for indigenous peoples under international human rights law, emphasizing the need to balance economic
development with the preservation of cultural heritage and environmental sustainability.
nterpretation by the Human Rights Committee: Protecting Indigenous Cultural Rights
The Human Rights Committee (HRC) plays a crucial role in interpreting and applying Article 27 of the
International Covenant on Civil and Political Rights, particularly concerning indigenous peoples. Article
27 originally aimed at protecting minority groups' rights related to ethnicity, religion, and language.
However, its application expanded to include indigenous peoples, who often form minorities within their
respective countries due to their historical and cultural ties to specific lands.
Indigenous peoples' distinct legal position derives from their longstanding connection to their ancestral
lands. This connection strengthens their entitlement to cultural rights under Article 27, which safeguards
their ability to maintain and practice their traditional ways of life, such as hunting, fishing, herding, and
gathering. These activities are not merely economic pursuits but integral components of their cultural
identity and survival.
Development of Interpretation:
The HRC's interpretation evolved through cases brought before it, where indigenous individuals and
communities challenged governmental actions that threatened their cultural practices and land rights. For
instance, in the Lubicon Lake Band case against Canada, the Committee ruled that large-scale oil and gas
extraction on Lubicon Lake Band territory violated Article 27. The Committee emphasized the need for
governments to consult with and obtain consent from indigenous communities before undertaking
activities that could harm their cultural integrity and livelihoods.
Similarly, the Ivan Kitok case in Sweden highlighted issues faced by individuals who were denied
recognition as indigenous, thereby restricting their rights to engage in traditional activities. The HRC
underscored that denying such rights without sufficient justification could violate Article 27's protections.
Legal Tests and Principles:
During the 1990s, the HRC developed a framework to assess whether governmental actions affecting
indigenous lands and resources were justified. This framework emphasized the importance of consulting
indigenous communities and ensuring that any restrictions imposed were necessary and proportionate to
protect broader community welfare. This approach was evident in the Länsman cases in Finland, where
the Committee evaluated the impact of logging and quarrying on Sami reindeer herding, concluding that
while some activities were permissible, cumulative effects could threaten cultural rights.
Integration with Self-Determination:
Moreover, the HRC connected Article 27's protections with the right to self-determination under Article 1
of the Covenant. This linkage was exemplified in cases like Apirana Mahuika in New Zealand, where the
Committee acknowledged that indigenous communities' control over natural resources was vital to their
cultural survival. This intersection underscores that indigenous peoples not only have rights as minorities
but also as distinct peoples with a right to manage their own affairs, including their cultural and economic
practices.
Country Reporting and Recommendations:
In its review of state reports, the HRC consistently urged states like Finland, Norway, and Sweden to
respect the self-determination and cultural rights of their indigenous Sami populations. This included
recommendations for greater involvement of indigenous representatives in decision-making processes
affecting their lands and resources. The Committee stressed that informed consent and meaningful
participation are essential to upholding indigenous rights under Articles 1 and 27 of the Covenant.
Challenges and Future Directions:
Despite these advancements, challenges persist. Modern developments such as industrial activities,
mining, and infrastructure projects continue to threaten indigenous lands and traditional practices. The
HRC's role remains pivotal in ensuring that states adhere to their obligations under international law to
protect and respect indigenous cultural rights.
In conclusion, the interpretation of Article 27 by the Human Rights Committee reflects a dynamic process
of expanding protections for indigenous peoples' cultural rights. From landmark cases like Lubicon Lake
Band to ongoing challenges in Nordic countries, the Committee has reinforced the importance of
respecting indigenous autonomy and cultural integrity. Moving forward, it is crucial for states to
implement the Committee's recommendations, uphold indigenous rights, and engage in meaningful
dialogue with indigenous communities to ensure sustainable development that respects cultural diversity
and human rights.
Through its decisions and recommendations, the HRC continues to shape international norms on
indigenous rights, advocating for a balance between development and cultural preservation that respects
the unique identities and aspirations of indigenous peoples worldwide.
Conclusion:
The right to culture is central to the identity of Arctic indigenous peoples, whose traditional way of life is
deeply rooted in their natural environment. This cultural identity hinges on their intimate relationship with
the land and its resources, which sustain practices like hunting and fishing essential to their communities.
For these indigenous groups, maintaining this connection without interruption is crucial for safeguarding
their cultural rights.
The Human Rights Committee (HRC) interprets Article 27 of the Covenant not only to protect indigenous
peoples' cultural rights as minorities but also acknowledges them as distinct peoples with a right to
manage and benefit from their traditional resources under Article 1(2). This interpretation is pivotal
because it underscores that indigenous communities should have control over decisions affecting their
land and resources, ensuring sustainable development aligned with their cultural practices.
For instance, in the Kitok vs. Sweden case, the HRC ruled against Mr. Kitok's complaint under Article 27
because he had lost his recognized Sami identity due to his disconnection from Sami lands. This case
illustrates the HRC's stance that cultural rights are intimately tied to continuous association with
traditional territories.
Overall, the HRC's interpretations influence national governments by setting international standards for
respecting indigenous rights. By monitoring Covenant compliance, the HRC encourages states to uphold
these rights, ensuring that indigenous peoples can maintain and develop their cultural identities in
harmony with their traditional lands and resources.

Case of verein klimaseniorinnen schweiz and others v. switzerland

The European Court of Human Rights (ECtHR) recently ruled on a case brought by KlimaSeniorinnen, a
Swiss association representing elderly women concerned about climate change. The court found that
Switzerland violated Article 8 of the European Convention on Human Rights by not taking adequate and
timely steps to address climate change's impact on their health and living conditions. The majority of the
association's 2,000 members are over 70 years old.
The ECtHR's decision emphasized two main points: first, Switzerland's failure to implement effective
legislation and measures to mitigate climate change, and second, the lack of accessible legal avenues for
challenging these shortcomings. This means Switzerland didn't act swiftly enough to protect these women
from the effects of global warming, and it didn't provide them with fair opportunities to address these
concerns through the legal system.
This ruling could have significant implications, as it sets a precedent for other countries and underscores
the responsibility of states to safeguard citizens' rights in the face of environmental challenges. It
highlights the growing recognition that climate change impacts are not just environmental issues but also
human rights concerns that require proactive governmental responses.
The circumstances of the case
In 2016, the Swiss association KlimaSeniorinnen raised concerns to the Swiss authorities about climate
change. They argued that Switzerland's efforts to reduce CO2 emissions were insufficient to meet global
targets, like those set in the Paris Climate Agreement. They demanded more decisive action to protect the
environment and reduce greenhouse gases (GHGs) to limit global warming to 1.5°C, as agreed
internationally.
The Swiss Federal Department of the Environment, Transport, Energy and Communications (DETEC)
rejected their complaint, stating that their request involved policy changes beyond specific acts and would
require global, not just national, regulations. KlimaSeniorinnen appealed this decision to the Swiss
Federal Administrative Court (SFAC), but the SFAC also dismissed their claims. They argued that older
individuals wouldn't suffer uniquely from climate change impacts, so they lacked the right to challenge
national climate policies.
In 2019, KlimaSeniorinnen took their case to the Swiss Federal Supreme Court (SFSC), seeking to assert
their rights under the European Convention on Human Rights (ECHR), specifically Articles 2 (right to
life) and 8 (right to private and family life). The SFSC, however, ruled that KlimaSeniorinnen lacked
standing because their claimed rights, including the right to life, would only be at risk if global warming
exceeded 1.5°C.
Disappointed with the Swiss courts' decisions, KlimaSeniorinnen appealed to the European Court of
Human Rights (ECtHR) in late 2020. They argued that Switzerland violated its obligations under the
ECHR by failing to protect their rights in the face of climate change. They also contended that Swiss
courts denied them an effective remedy (under Article 6 ECHR) by not thoroughly examining their case
on its merits.
The ECtHR's ruling in favor of KlimaSeniorinnen highlighted several critical points. Firstly, it found
Switzerland in breach of Article 8 of the ECHR, which protects the right to private and family life, due to
insufficient action on climate change. The court criticized Switzerland for not implementing adequate
measures to mitigate climate change's effects, which disproportionately affect older individuals like those
in KlimaSeniorinnen.
Secondly, the ECtHR criticized the procedural aspect of the case. It noted that Swiss courts did not
provide effective access to justice for KlimaSeniorinnen to challenge the inadequate climate policies. This
lack of access violated their right to an effective remedy under Article 6 of the ECHR.
This landmark ruling could set a precedent for future climate-related cases across Europe. It underscores
that states have a duty under human rights law to take sufficient measures to protect citizens from
environmental harm, especially vulnerable groups like elderly populations. The decision also emphasizes
the importance of accessible legal avenues for individuals and associations to challenge governmental
actions that jeopardize their fundamental rights related to environmental protection.
The judgment of the ECtHR
The European Court of Human Rights (ECtHR) recently ruled on a case brought by the Swiss association
KlimaSeniorinnen and four of its members regarding Switzerland's response to climate change. The
association, representing elderly women concerned about climate impacts, claimed that Switzerland
violated their rights under the European Convention on Human Rights (ECHR).
Firstly, the ECtHR examined whether the individual members and the association qualified as "victims"
with standing to bring the complaint. It concluded that while the four individual applicants did not
demonstrate sufficient direct exposure to severe climate impacts to qualify as victims, the association
KlimaSeniorinnen did. The court recognized that climate change affects everyone and requires collective
efforts, making it appropriate for associations like KlimaSeniorinnen to bring cases on behalf of affected
communities.
The ECtHR focused on Article 8 of the ECHR, which protects the right to private and family life. It found
that Switzerland failed in its duty to protect citizens from serious climate change impacts, including
threats to life, health, well-being, and quality of life. Specifically, Switzerland lacked effective domestic
laws and measures to reduce greenhouse gas emissions and mitigate climate risks. The court criticized
Switzerland for not meeting its own emission reduction targets and failing to establish adequate
regulatory frameworks like carbon budgets.
Regarding Article 6 of the ECHR, which guarantees the right to access to court, the ECtHR ruled that
Swiss courts did not adequately consider KlimaSeniorinnen's arguments. Despite exhausting all domestic
legal avenues, the association's claims were dismissed without thorough examination. The ECtHR
emphasized that national courts must seriously engage with scientific evidence and climate-related
grievances presented in such cases.
Although the ECtHR did not prescribe specific actions for Switzerland, it stressed the importance of
national authorities taking prompt and effective measures to address climate change. It acknowledged that
governments have discretion in how they implement climate policies but criticized Switzerland for not
acting swiftly and adequately.
In conclusion, the ECtHR's judgment in the KlimaSeniorinnen case sets a significant precedent for
climate-related human rights litigation in Europe. It underscores the obligation of states to protect citizens
from climate change under the ECHR, emphasizing the need for robust legislative frameworks and
proactive measures. The ruling highlights the role of associations in advocating for climate justice and the
importance of accessible legal avenues for addressing environmental challenges. Moving forward, it calls
on states to prioritize climate action and ensure that their policies align with international human rights
standards, safeguarding the well-being of current and future generations.
Impact of the judgment and outlook
The case was initiated by KlimaSeniorinnen, representing elderly women concerned about climate
change's impacts on their health and quality of life. They argued that Switzerland's inadequate climate
policies violated their rights under the European Convention on Human Rights (ECHR), specifically
Article 8 (right to respect for private and family life) and Article 6 (right to a fair trial).
KlimaSeniorinnen contended that Switzerland failed to adopt sufficient measures to mitigate climate
change in line with its international commitments, such as those under the Paris Agreement. They sought
legal recourse after Swiss courts dismissed their claims, arguing that they lacked standing or that the risks
of climate change were not imminent enough to justify legal intervention.
ECtHR's Judgment
1. Standing and Impact on Individuals: The ECtHR found that the individual members of
KlimaSeniorinnen did not demonstrate sufficient direct exposure to severe climate impacts to
qualify as victims under the ECHR. However, it recognized the association KlimaSeniorinnen as
having standing to represent its members' interests collectively. This decision affirmed the role of
associations in advocating for climate justice on behalf of affected communities.
2. Violation of Article 8 (Right to Private Life): The ECtHR ruled that Switzerland violated
Article 8 of the ECHR by failing to implement adequate measures to protect its citizens from the
adverse effects of climate change. It criticized Switzerland for not meeting its own emission
reduction targets and lacking a robust regulatory framework to address climate risks effectively.
3. Violation of Article 6 (Right to a Fair Trial): Regarding access to justice, the ECtHR found that
Swiss courts did not sufficiently engage with KlimaSeniorinnen's arguments and evidence on
climate change impacts. It emphasized the importance of courts considering scientific evidence
seriously in cases concerning fundamental rights like those affected by climate change.
Implications of the Judgment
1. Precedent for Human Rights and Climate Litigation: This ruling establishes a precedent that
inadequate climate action by member states can constitute a violation of human rights protected
by the ECHR. It opens the door for citizens across Europe to challenge their governments' climate
policies in court, asserting that the failure to act on climate change threatens their rights to life,
health, and well-being.
2. Global Relevance and Urgency: Climate change is recognized as a global challenge with far-
reaching consequences that transcend national borders. The ECtHR acknowledged the urgent
need for states to reduce greenhouse gas emissions to limit global warming to 1.5°C above pre-
 industrial levels. It called for states to adopt ambitious targets and timelines to achieve net-zero
emissions within the next three decades.
3. Impact on National Policies: In response to the ECtHR's judgment, Switzerland is expected to
review and potentially strengthen its climate policies. This may include revising emission
reduction targets, enhancing regulatory frameworks, and considering more stringent measures to
mitigate climate risks. The judgment also highlighted shortcomings in Swiss procedural law
regarding the standing of associations in climate-related litigation, prompting ongoing legislative
reforms to improve access to justice.
4. Corporate Accountability: While human rights under the ECHR primarily apply to states, the
ECtHR's decision could influence climate change lawsuits against corporations with significant
greenhouse gas emissions. This may lead to increased scrutiny and legal challenges against
private entities contributing to climate change.
Future Outlook
Looking ahead, the ECtHR's decision sets a precedent that could catalyze further climate litigation across
Europe. It underscores the role of international human rights law in addressing environmental challenges
and holding states accountable for their climate commitments. National governments, including
Switzerland, are likely to face increased pressure to align their policies with the ECtHR's standards and
international climate goals.
Moreover, the case highlights the evolving landscape of human rights law in response to global
environmental crises. As climate change continues to pose existential threats to human rights, legal
frameworks will need to adapt to ensure effective protection for vulnerable communities and future
generations.
In conclusion, the ECtHR's judgment in the KlimaSeniorinnen case represents a significant step forward
in integrating climate change considerations into human rights law within Europe. It reinforces the
principle that states have a duty to protect human rights from the adverse impacts of climate change and
underscores the importance of robust legal mechanisms to ensure accountability and justice in climate-
related matters.

Soobramoney v Minister of Health Kwazulu-Natal

The case revolves around a 41-year-old man who is unemployed and suffers from several serious health
conditions. He has diabetes, ischaemic heart disease, cerebro-vascular disease, and had a stroke in 1996.
Additionally, his kidneys failed irreversibly in 1996, leading to chronic renal failure. This condition
means his kidneys can't filter waste products from his blood as they should.
To manage chronic renal failure, patients often need regular renal dialysis. Dialysis is a process that helps
perform the kidney's job of filtering blood when the kidneys are no longer able to do so effectively. In this
case, the appellant sought dialysis treatment from Addington Hospital in Durban, but the hospital faces
limitations in providing this treatment.
Addington Hospital has a renal unit with 20 dialysis machines, but these machines are insufficient to meet
the demand for dialysis treatment among patients with chronic renal failure. Moreover, some of the
machines are in poor condition, and each machine requires extensive cleaning after each four-hour
treatment session, further limiting their availability.
Dr. Saraladevi Naicker, a specialist physician and nephrologist at Addington Hospital, explained in her
affidavit that the hospital lacks the resources to expand its dialysis services. She noted the need for
additional dialysis machines and more trained nursing staff, but the hospital's budget does not allow for
such expansions. Despite efforts to increase their budget, the provincial health department has not
allocated funds for these improvements.
Due to these resource constraints, Addington Hospital follows a strict policy for allocating dialysis
treatment. Patients with acute renal failure, a condition that can be treated and potentially reversed with
dialysis, receive priority access. In contrast, patients with chronic renal failure, like the appellant, who
have irreversible kidney damage, do not automatically qualify for the dialysis program. Instead, the
hospital uses guidelines to determine eligibility.
According to these guidelines, priority is given to patients who are eligible for a kidney transplant.
Eligibility for a transplant requires meeting specific medical criteria, including being free from certain
serious diseases like ischaemic heart disease and cerebro-vascular disease. Since the appellant suffers
from these conditions, he does not qualify for a kidney transplant, which impacts his eligibility for
ongoing dialysis treatment under the hospital's guidelines.
Faced with the hospital's inability to provide the needed dialysis treatment, the appellant turned to private
hospitals and doctors for dialysis, but he could no longer afford the costs involved. In July 1997, he filed
a court application seeking an order for Addington Hospital to provide him with ongoing dialysis
treatment, arguing that the hospital's refusal violated his rights under the 1996 Constitution of South
Africa, which guarantees the right to health care.
The case was brought before Justice Combrinck of the Durban and Coast Local Division of the High
Court. However, the court dismissed the appellant's application, citing the hospital's resource constraints
and its adherence to established guidelines for prioritizing dialysis treatment.
The case highlights the challenges faced by public hospitals like Addington in providing essential health
services such as dialysis treatment to all patients in need, especially those with chronic conditions
requiring ongoing care. It underscores the difficult decisions hospitals must make when allocating limited
resources and the legal and ethical implications of these decisions on patients' rights to health care.
After being denied dialysis treatment at Addington Hospital, Thiagraj Soobramoney sought legal recourse
by applying to the High Court for a certificate under Rule 18(e) of the Constitutional Court Rules. This
certificate granted him the right to appeal the High Court's decision to the Constitutional Court of South
Africa. His appeal was based on constitutional rights outlined in Section 27(3) and Section 11 of the 1996
Constitution.
Section 27(3) of the Constitution states that no one may be refused emergency medical treatment,
emphasizing the right to access healthcare services. Section 11 affirms everyone's right to life,
underscoring the importance of healthcare in preserving life and well-being.
Chief Justice Chaskalson highlighted the stark socioeconomic disparities in South Africa, where millions
live in poverty with inadequate access to essential services like healthcare, clean water, and social
security. These conditions, present at the Constitution's adoption, underscore the constitutional
commitment to address historical injustices and transform society towards one based on democratic
values, social justice, and fundamental human rights.
The preamble of the Constitution reflects this commitment, aiming to heal past divisions and improve the
quality of life for all citizens. Sections 26 and 27 specifically address rights to housing, healthcare, food,
water, and social security. Section 26 guarantees the right to adequate housing, while Section 27 ensures
access to healthcare services, sufficient food and water, and social security measures, including assistance
for those unable to support themselves.
The state is obligated to take reasonable legislative and other measures, within its available resources, to
progressively realize these rights. This progressive realization acknowledges the challenges of resource
allocation in providing universal access to essential services while striving towards equitable distribution.
In Soobramoney's case, Addington Hospital's policy prioritized dialysis treatment for acute renal failure
patients, leaving those with irreversible chronic renal failure, like Soobramoney, without automatic access
to dialysis. The hospital cited resource constraints, including limited dialysis machines and insufficient
funding, as reasons for its policy.
Soobramoney's appeal argued that denying him dialysis treatment violated his constitutional rights to life
and healthcare access under Sections 27(3) and 11. His case raised significant constitutional issues
regarding the interpretation and application of these rights in the context of healthcare provision and
resource allocation.
The Constitutional Court, upon hearing Soobramoney's appeal, considered the broader implications for
healthcare rights in South Africa. It affirmed the constitutional imperative to provide emergency medical
treatment and uphold the right to life, even in the face of resource limitations. The Court recognized the
complexity of balancing constitutional rights with practical challenges faced by public institutions like
Addington Hospital.
Ultimately, the Court's decision underscored the state's duty to prioritize and allocate resources effectively
to ensure equitable access to healthcare services for all citizens. It emphasized that decisions denying
essential medical treatment must be justified within the framework of available resources and
constitutional obligations.
Chief Justice Chaskalson, in addressing the Constitutional Court, emphasized the critical balance between
constitutional rights to essential services like healthcare and the practical limitations posed by resource
constraints. Sections 26 and 27 of the 1996 Constitution of South Africa establish fundamental rights to
housing, healthcare, food, water, and social security. These rights are integral to the state's commitment to
improving the quality of life for all citizens and promoting social justice.
However, the realization of these rights is contingent upon the availability of resources. The Constitution
mandates that the state must take reasonable measures, within its means, to progressively achieve these
rights. This means that while the rights themselves are guaranteed, their implementation is subject to the
practical realities of resource allocation and availability.
Thiagraj Soobramoney's case centered on whether the state's obligation under Section 27(3) of the
Constitution, which guarantees access to emergency medical treatment, extends to ongoing treatments
like renal dialysis for terminal illnesses. Soobramoney argued that the state should provide funding and
resources necessary for such life-prolonging treatments, asserting that this obligation falls under the
broader right to life enshrined in Section 11 of the Constitution.
The Constitutional Court deliberated on the interpretation of "emergency medical treatment" within
Section 27(3). While this provision guarantees access to immediate medical care in emergencies, such as
trauma or acute conditions, its scope does not explicitly encompass ongoing treatments aimed at
prolonging life for chronic illnesses. The Court noted that if such a broad interpretation were intended, it
would likely have been expressly stated in the Constitution.
Soobramoney's counsel contended that Section 27(3) should align with Section 11, which affirms the
right to life and implies a duty on the state to provide life-saving treatments at no cost to those unable to
afford them. The Court acknowledged the relevance of the right to life in interpreting healthcare rights but
noted that the Constitution of South Africa differs from other jurisdictions, like India, which have
developed extensive jurisprudence imposing positive obligations on the state regarding basic needs.
The Court applied a purposive approach to interpreting constitutional rights, considering not only the text
but also the historical context and other provisions of the Constitution. This approach aims to ensure that
constitutional rights are interpreted generously to protect individuals fully, while also respecting the
specific language and intent of the Constitution itself.
In conclusion, while the Constitution guarantees rights to healthcare and other essential services, these
rights are tempered by the practicalities of resource availability. The state's obligation to provide these
services must be understood within the framework of its capacity to do so. The Soobramoney case
highlights the ongoing challenges in balancing constitutional rights with resource constraints,
underscoring the need for nuanced legal interpretations and policy considerations to ensure equitable
access to healthcare for all South Africans.
This case continues to influence healthcare policies and legal interpretations in South Africa, guiding the
state in its efforts to progressively realize constitutional rights while addressing the complex realities of
public service delivery and resource management.
In the ongoing Soobramoney v Minister of Health (Kwazulu-Natal) case, the Constitutional Court of
South Africa grapples with the interpretation of constitutional rights to healthcare amidst resource
constraints. Thiagraj Soobramoney, suffering from chronic renal failure, sought ongoing renal dialysis
treatment at Addington Hospital in Durban. However, due to limited resources, the hospital could not
accommodate all patients needing dialysis, and guidelines prioritized treatment for acute cases and
potential transplant recipients.
Soobramoney's legal challenge invoked Section 27(3) of the South African Constitution, which
guarantees the right to emergency medical treatment. His argument extended this right to include ongoing
treatments necessary to prolong life, citing Section 11's broader guarantee of the right to life itself.
The Constitutional Court examined these arguments against the backdrop of Sections 26 and 27 of the
Constitution, which affirm rights to healthcare, housing, food, water, and social security. These rights are
tempered by the state's obligation to progressively realize them within its available resources. This means
the state must prioritize and allocate resources efficiently to meet the healthcare needs of its citizens.
Chief Justice Chaskalson highlighted a distinction between emergency medical treatment, as stipulated in
Section 27(3), and ongoing treatments like dialysis. Emergency treatment under Section 27(3) refers to
immediate interventions needed to stabilize a sudden medical crisis, such as trauma or acute illness. The
court reasoned that ongoing treatments for chronic conditions, while critical, fall under the broader
provisions of Sections 27(1) and (2), which require the state to provide healthcare services within its
means.
To support his case, Soobramoney's counsel referenced a Supreme Court of India decision, Paschim
Banga Khet Mazdoor Samity v State of West Bengal, which emphasized a duty on the government to
provide medical facilities as part of its obligation to safeguard the right to life under Article 21 of the
Indian Constitution. However, the South African context, as interpreted by the Constitutional Court,
focuses on the explicit rights and limitations outlined in its own Constitution, rather than drawing
parallels to other jurisdictions.
The Court acknowledged the financial constraints faced by the KwaZulu-Natal Department of Health,
noting significant budgetary overspending and the nationwide scarcity of dialysis machines compared to
the demand. Guidelines were in place to prioritize treatment allocation based on medical criteria and the
potential for patient recovery through treatment.
In interpreting Section 27(3), the Court emphasized that its language—ensuring no one is refused
emergency treatment—was specific and aimed at preventing bureaucratic delays in critical medical care.
It did not extend to guaranteeing ongoing treatments for chronic conditions like Soobramoney's renal
failure. Such interpretations, the Court reasoned, align with the Constitution's intent to balance rights with
practical resource realities.
Ultimately, the Court upheld the lower court's decision that while Soobramoney's need for dialysis was
urgent and critical, it did not qualify as emergency treatment under Section 27(3). His case fell under the
broader provisions of Sections 27(1) and (2), requiring healthcare provision within available resources.
The Court affirmed the rational application of guidelines by Addington Hospital in prioritizing treatment
allocation.
This case underscores ongoing challenges in ensuring equitable access to healthcare in South Africa,
where constitutional rights must be balanced with financial constraints. It guides state policy on
healthcare delivery, emphasizing the need for prioritization and efficient resource allocation to meet the
diverse healthcare needs of the population.
In the ongoing Soobramoney v Minister of Health (Kwazulu-Natal) case, the Constitutional Court of
South Africa grapples with the complexities of healthcare resource allocation amidst constitutional rights
and limited state funds. Thiagraj Soobramoney, suffering from chronic renal failure, sought ongoing
dialysis treatment at Addington Hospital in Durban. However, the hospital faced capacity issues, with
dialysis machines already stretched beyond recommended limits and a shortfall in nursing staff.
Soobramoney's legal challenge invoked Section 27(3) of the South African Constitution, which
guarantees the right to emergency medical treatment. His argument extended this right to include ongoing
treatments necessary to sustain life, citing broader constitutional protections like the right to life under
Section 11. However, the Constitutional Court emphasized that Section 27(3) pertains specifically to
immediate, urgent medical interventions needed to stabilize acute health crises, not to ongoing treatments
like dialysis.
The Court acknowledged the financial strain on the KwaZulu-Natal Department of Health, which
overspent its budget significantly, leading to operational challenges such as understaffing and inadequate
equipment. Guidelines were in place to prioritize treatment based on medical criteria, aiming to maximize
the benefit to the most patients with available resources.
Chief Justice Chaskalson underscored that while the Constitution guarantees rights to healthcare, housing,
food, water, and social security under Sections 26 and 27, these rights must be progressively realized
within the state's available resources. This means the government must prioritize and allocate funds
efficiently to meet the healthcare needs of its citizens, balancing competing demands and priorities.
The Court highlighted the practical challenges faced by healthcare providers worldwide in managing
limited resources. It referenced international jurisprudence, including decisions from English courts,
which caution against judicial interference in healthcare resource allocation decisions. Such decisions, the
Court noted, are better left to healthcare authorities and policymakers who can make informed, practical
judgments based on budgetary constraints and the broader needs of society.
Dr. Naicker, representing Addington Hospital, testified that expanding dialysis services beyond current
capacity would strain resources further, potentially compromising care quality and patient safety. The cost
of treating one patient with chronic renal failure through dialysis was estimated at R60,000 annually,
illustrating the financial burden on state healthcare budgets if all eligible patients were to receive
treatment.
Justice Combrinck emphasized that decisions on healthcare funding and resource allocation are inherently
political and require balancing the needs of individual patients with broader societal needs. He noted the
dilemma faced by the appellant and others in similar situations, where the state's limited resources cannot
meet all demands for specialized medical treatments.
The Court ultimately upheld the lower court's decision that Soobramoney's need for ongoing dialysis did
not qualify as emergency treatment under Section 27(3). Instead, his case fell under Sections 27(1) and
(2), which require the state to provide healthcare services within its means and progressively expand
access over time.
Thiagraj Soobramoney, suffering from chronic renal failure, sought ongoing dialysis treatment at
Addington Hospital under the provisions of Section 27 of the South African Constitution, which
guarantees access to healthcare services, including emergency medical treatment. Soobramoney argued
that his need for dialysis should be considered emergency treatment under Section 27(3), which mandates
that no one may be refused emergency medical treatment.
The case highlighted the strain on Addington Hospital's resources, including understaffing, a shortage of
dialysis machines, and financial constraints within the KwaZulu-Natal Department of Health. The
hospital's capacity to provide dialysis was already stretched beyond recommended limits, with guidelines
in place to prioritize patients based on medical criteria.
In response to Soobramoney's claim, Dr. Naicker, representing Addington Hospital, pointed out that while
dialysis was necessary for Soobramoney's condition, it did not qualify as emergency treatment under
Section 27(3). The hospital also explored alternative treatments like Continuing Ambulatory Peritoneal
Dialysis (CAPD), which posed its own challenges, including high costs, infection risks, and limited
availability based on strict medical criteria. Soobramoney, not being a candidate for a transplant, did not
meet the criteria for CAPD treatment either.
The Constitutional Court, led by Chief Justice Chaskalson, emphasized the constitutional principle of
progressive realization of rights within available resources. This means that while the Constitution
guarantees the right to healthcare, including dialysis for those in need, the state must balance these rights
against its financial and logistical limitations. The Court acknowledged the difficult decisions faced by
healthcare providers in allocating resources effectively to maximize public health benefits.
Justice Madala, in his concurring judgment, discussed the feasibility and limitations of CAPD as an
alternative treatment for Soobramoney. He noted that neither dialysis nor CAPD qualified as emergency
treatments under Section 27(3), emphasizing that both forms of treatment were subject to stringent criteria
and resource constraints.
The Court declined to interfere with the decisions made by healthcare administrators and policymakers,
stating that such decisions were best left to those with expertise in healthcare management and budget
allocation. It referenced international jurisprudence, including decisions from English courts, which
cautioned against judicial intervention in healthcare resource allocation.
Ultimately, the Constitutional Court dismissed Soobramoney's appeal against the lower court's decision. It
ruled that the state's failure to provide dialysis facilities for all patients suffering from chronic renal
failure did not constitute a breach of constitutional obligations under Section 27. Therefore, Soobramoney
was not entitled to the relief he sought in the proceedings.
Justice Sachs begins by expressing his agreement with Chief Justice Chaskalson's comprehensive
judgment but adds his own perspectives on the matter. He highlights the significance of Section 27(3) of
the South African Constitution, which specifically addresses emergency medical treatment. This
provision ensures that people in urgent medical need, such as those facing sudden accidents or collapses,
cannot be turned away from hospitals. It underscores the societal value of having emergency departments
ready to handle unforeseen crises that could affect anyone, anywhere, anytime.
In the context of Soobramoney's case, Justice Sachs emphasizes the distinction between emergency and
non-emergency medical treatments. He argues against conflating these categories, noting that emergency
care provisions are crucial for upholding societal values of solidarity and compassion. However, he
cautions that extending emergency treatment principles to non-emergency situations, as argued by
Soobramoney, could undermine the intended protections of Section 27(3).
Reflecting on the broader implications, Justice Sachs discusses the necessity of rationing scarce medical
resources within a rights-based framework. He acknowledges that in democratic societies founded on
principles of dignity, freedom, and equality, prioritizing access to life-prolonging treatments like dialysis
is integral but must be balanced against practical realities. He cites international examples where national
health systems must ration expensive technologies like renal dialysis to ensure sustainability and equity
across different healthcare needs.
Moreover, Justice Sachs explores the concept of health care rights within the framework of human
interdependence. He argues that ensuring access to healthcare involves not just legal autonomy but also
societal interconnectedness. Factors such as environmental quality, supportive relationships, and
healthcare infrastructure all contribute to overall health and well-being. He quotes scholars who discuss
the necessity of balancing competing healthcare rights fairly, rather than viewing these balances as
limitations on individual rights.
Addressing Section 11 of the Constitution, which guarantees the right to life, Justice Sachs reflects on the
complexities of defining this right in the context of medical decision-making. He acknowledges that
decisions about life-prolonging treatments, including the decision to forego such treatments, are deeply
personal and should be guided by individual values within a legal framework. He cites jurisprudence from
other jurisdictions, highlighting the role of courts in defining legal frameworks that govern such decisions
without imposing personal values on medical choices.
Furthermore, Justice Sachs cautions against judicial overreach in medical matters, emphasizing the
limitations of courts in resolving deeply personal and ethical dilemmas inherent in healthcare decisions.
He stresses the importance of institutional humility and the role of healthcare professionals and
policymakers in making these difficult choices based on expertise and resource constraints.
In conclusion, Justice Sachs declines to interfere with the decisions made by healthcare administrators
regarding Soobramoney's treatment. He acknowledges Soobramoney's dignified plea and empathy for
others in similar situations but asserts that judicial intervention would not be appropriate given the
complex resource allocation challenges faced by healthcare systems. He underscores the need for a
balanced approach that respects both individual healthcare rights and the broader societal responsibilities
of equitable resource allocation.
In essence, Justice Sachs' remarks in the Soobramoney case highlight the nuanced balance between
individual rights to healthcare and the practical realities of resource scarcity, advocating for a
compassionate but pragmatic approach to healthcare policy and decision-making in South Africa.
LAW AND RELIGION

Lynch v. Donnelly (1984)

One important debate under the First Amendment’s Establishment Clause is whether religious displays on
government property are constitutional. Examples include Ten Commandments displays in public
schools, courthouses, and public parks; crosses on public land; and nativity scenes in shopping areas. The
Supreme Court has both upheld and blocked such displays, depending on the specific details of each case.
This particular case involves a nativity scene in a city’s shopping district. In Pawtucket, Rhode Island, the
city and a local business association set up a Christmas display. The display included a Santa Claus
house, reindeer, and a nativity scene (also called a creche). Some residents and other people argued that
including the nativity scene violated the First Amendment’s Establishment Clause, which prohibits the
government from favoring one religion over others.
In a close 5-4 decision, the Supreme Court ruled against the challenge. They decided that the religious
display on public property did not violate the Constitution. The reason was that the display also had a
secular (non-religious) purpose. This means that while the nativity scene is a religious symbol, it was part
of a larger holiday display that included secular elements like Santa Claus and reindeer. The Court
concluded that the overall purpose of the display was to celebrate the holiday season, not to promote a
particular religion.
The Supreme Court’s decisions on such matters often depend on the specific facts of each case. In this
instance, the inclusion of both religious and secular symbols led the Court to determine that the display
did not favor one religion over others, which is why it was deemed constitutional.
Excerpt: Majority Opinion, Chief Justice Warren Burger
Each year, the city of Pawtucket, Rhode Island, in partnership with the downtown retail merchants'
association, sets up a Christmas display to celebrate the holiday season. This display, located in a park
owned by a nonprofit organization in the center of the shopping district, is typical of those found in many
towns and cities across the country. It includes traditional Christmas figures and decorations such as a
Santa Claus house, reindeer, candy-striped poles, a Christmas tree, carolers, cutout figures of a clown, an
elephant, and a teddy bear, numerous colored lights, a large "SEASONS GREETINGS" banner, and a
nativity scene (creche). All these items are owned by the city.
The nativity scene, part of the display for over 40 years, features traditional figures like the Infant Jesus,
Mary, Joseph, angels, shepherds, kings, and animals, with heights ranging from 5 inches to 5 feet.
Pawtucket residents and members of the Rhode Island affiliate of the American Civil Liberties Union
(ACLU) challenged the city's inclusion of the nativity scene in the display, arguing that it violated the
Establishment Clause of the First Amendment, which aims to prevent the government from establishing
or favoring a religion. However, the court recognizes that absolute separation of church and state is not
possible. Instead, there is a necessary interaction between government and religious organizations, as
complete isolation is neither practical nor desirable.
The court has often referred to the Establishment Clause as creating a "wall" between church and state, a
metaphor derived from Thomas Jefferson. However, this metaphor is not entirely accurate, as some
relationship between government and religion is inevitable. The Constitution requires accommodation of
all religions and forbids hostility toward any.
Historically, the interpretation of the Establishment Clause has allowed for some interaction between
government and religion. For example, in the first session of Congress in 1789, when the Establishment
Clause was approved, Congress also provided for paid chaplains for the House and Senate, a practice that
continues to this day. This shows that the Framers of the Constitution did not see a problem with some
government support for religion.
The court has avoided a rigid interpretation of the Establishment Clause, recognizing that in a diverse and
pluralistic society, an absolutist approach is overly simplistic. Instead, the court examines whether
government actions actually establish a religion or favor one faith over others.
In this case, the district court focused too much on the religious nature of the nativity scene and ignored
the broader context of the Christmas display. The display as a whole, including the nativity scene, is
intended to celebrate the holiday and depict its historical origins, which are legitimate secular purposes.
The district court was wrong to conclude that the city's inclusion of the nativity scene lacked a secular
purpose.
Furthermore, the district court's finding that the nativity scene primarily benefits religion, particularly
Christianity, is not supported by the evidence. Comparing this to other forms of government support for
religion, such as public funding for textbooks in church-sponsored schools, transportation for students to
these schools, federal grants for buildings at religious colleges, and tax exemptions for church properties,
the inclusion of the nativity scene in the display does not amount to an endorsement of religion. It is part
of a broader celebration of a national holiday and does not violate the Establishment Clause.
The court found that including the nativity scene (creche) in Pawtucket’s Christmas display does not
violate the Establishment Clause of the First Amendment. The display does not provide more religious
aid than other government actions previously upheld by the court, such as public funding for religious
school textbooks or the display of religious art in government-supported museums.
The dissenting opinion argues that some people might see the city’s inclusion of a Christian symbol as
aligning with Christianity and advancing religion. The court acknowledges that the display might advance
religion in some way, but past rulings have shown that not every law or action that indirectly benefits
religion is unconstitutional. Any benefit from the creche is indirect, remote, and incidental, similar to
Congress and the President recognizing Christmas as “Christ’s Mass” or displaying religious art in public
museums.
The District Court found no administrative entanglement between the city and religion due to the creche’s
inclusion. Although the court noted some political divisiveness caused by the lawsuit, it was not enough
to prove excessive entanglement. The city did not consult with church authorities about the creche’s
design or content, and no significant maintenance costs were involved. The display involves less day-to-
day interaction between church and state than the exhibition of religious paintings in public galleries.
The Court of Appeals noted that political divisiveness alone is not sufficient to invalidate otherwise
permissible conduct, and the Supreme Court agreed. There was no evidence of political friction or
divisiveness over the creche outside of the lawsuit, and a lawsuit cannot create and then use divisiveness
as proof of entanglement.
The court concluded that the city had a secular purpose for including the creche, did not improperly
advance religion, and did not create excessive entanglement between religion and government. The
display promotes community goodwill and has a secular purpose of celebrating the holiday season,
attracting people to the central city, and benefiting merchants and their employees. The creche has special
meaning for those who celebrate religious Masses, but everyone recognizes its religious significance.
Although the creche is a symbol of a specific religion, it is not more so than other examples the court has
previously found to be constitutional. Excluding this one symbol from the display, while public schools
sing Christmas carols and Congress opens sessions with prayers, would be an overreaction against the
historical recognition of Christmas and religious heritage in the United States. If the creche’s presence
violates the Establishment Clause, many other official acknowledgments of Christmas and religion would
also be unconstitutional.
The court ruled that despite the creche’s religious significance, Pawtucket’s display does not violate the
Establishment Clause. The display has a valid secular purpose and does not excessively entangle
government and religion. It brings the community together and celebrates a historical event long
recognized by the government and the public. The inclusion of the creche in this context is constitutional
and does not signify an endorsement of a particular religion by the city.
Excerpt: Concurrence, Justice Sandra Day O’Connor
I agree with the Court's opinion but want to clarify our Establishment Clause doctrine. My approach
aligns with the Court’s result in this case and is consistent with their analysis.
The Establishment Clause prevents the government from making religious adherence relevant to a
person’s political standing. The government can violate this in two main ways. First, excessive
entanglement with religious institutions can interfere with their independence, give them government
powers not shared by non-religious people, and create political groups based on religion. Second,
government endorsement or disapproval of religion sends a message that non-adherents are outsiders in
the political community, while adherents are insiders.
Our past cases have used the three-part Lemon test to detect these unconstitutional actions, but it’s not
always clear how the test relates to the principles of the Establishment Clause. Focusing on institutional
entanglement and endorsement or disapproval of religion clarifies the Lemon test as an analytical tool.
In this case, there is no institutional entanglement. However, the respondents argue that the political
divisiveness caused by Pawtucket’s creche display violates the excessive entanglement prong of the
Lemon test. The Court’s opinion concludes that no inquiry into political divisiveness is needed here. I
believe political divisiveness along religious lines should not be an independent test of constitutionality.
Although several cases have discussed political divisiveness under the entanglement prong of Lemon, we
have never relied on it as an independent reason to declare a government practice unconstitutional.
Predicting political divisiveness is speculative, partly because the existence of litigation itself can
influence the political response. Political divisiveness is an issue addressed by the Establishment Clause,
and its existence may indicate excessive institutional entanglement or that a government practice is seen
as an endorsement of religion. However, the constitutional inquiry should focus on the government
activity causing the divisiveness, not the divisiveness itself. The entanglement prong of the Lemon test
should be limited to institutional entanglement.
The central issue in this case is whether Pawtucket endorsed Christianity by displaying the creche. To
answer this, we need to examine both what Pawtucket intended to communicate and what message the
display actually conveyed. The purpose and effect prongs of the Lemon test represent these two aspects.
The meaning of a statement depends on the speaker's intention and the community's understanding. Some
listeners can judge intent by context or asking questions, while others rely on the words themselves. With
a large audience, as with government statements, some will receive the intended message, and others will
get a different message. Therefore, we must examine both subjective and objective components of the
message to determine if it carries a forbidden meaning.
The purpose prong of the Lemon test asks if the government’s actual purpose is to endorse or disapprove
of religion. The effect prong asks if, regardless of the government’s actual purpose, the practice conveys a
message of endorsement or disapproval. If either prong is affirmed, the practice should be invalid.
The purpose prong requires a government activity to have a secular purpose. This isn’t satisfied by merely
having some secular purpose if it is dominated by religious purposes. The proper inquiry is whether the
government intends to convey a message of endorsement or disapproval of religion.
In this case, I would find that Pawtucket did not intend to endorse Christianity or disapprove of other
religions. The purpose of including the creche was to celebrate the public holiday using traditional
symbols. Public holidays have cultural significance even if they have religious aspects, and celebrating
them is a legitimate secular purpose.
The effect prong should not require invalidation of a government practice merely because it advances or
inhibits religion as a primary effect. What is crucial is that the practice does not communicate a message
of government endorsement or disapproval of religion. Only practices that have that effect, intentionally
or unintentionally, make religion relevant to political status.
Pawtucket’s creche display does not communicate a message that the government endorses Christian
beliefs. Although the creche has religious significance, the holiday setting changes what viewers may
understand to be the display’s purpose. The display celebrates a public holiday, and the declaration of the
holiday itself is not seen as an endorsement of religion. The holiday has strong secular components and
traditions, and government celebration of it is not understood to endorse its religious content, just as
government celebration of Thanksgiving does not endorse religion. The creche is a traditional holiday
symbol commonly displayed with secular symbols, as it was in Pawtucket.
These features make the government’s creche display no more an endorsement of religion than other
government acknowledgments of religion, such as legislative prayers, Thanksgiving declarations, printing
“In God We Trust” on coins, and opening court sessions with “God save the United States and this
honorable court.” These practices serve secular purposes of solemnizing public occasions, expressing
confidence in the future, and recognizing worthy aspects of society. They are not understood as
conveying government approval of particular religious beliefs. The creche display similarly serves a
secular purpose of celebrating a public holiday with traditional symbols and is not seen as government
endorsement of religion. Notably, the creche display caused no political divisiveness before this lawsuit,
even though Pawtucket had included it in their annual Christmas display for years.
Each government practice must be judged in its unique circumstances to determine if it endorses or
disapproves of religion. Courts must consider the fundamental role of the Establishment Clause and the
subtle ways its values can be eroded. Practices that celebrate or acknowledge events with religious
significance must be scrutinized carefully.
Pawtucket is alleged to have endorsed Christianity with its creche display. After careful scrutiny, I
conclude that the display was not intended to endorse or have the effect of endorsing Christianity.
Moreover, any government practice that intentionally discriminates among religions must be closely fitted
to a compelling state purpose to survive constitutional challenge. This case does not involve such
discrimination, and the challenged government conduct does not constitute endorsement or disapproval of
any religion.

Santa Fe Independent School District v. Doe (2000)

In the Supreme Court case Santa Fe Independent School District v. Doe (2000), the Court decided that
a policy allowing student-led prayers before football games in a public school violated the First
Amendment's establishment clause. This clause prevents the government from endorsing or promoting
religion. The Court ruled that even though the prayers were led by students, the school's policy of
facilitating these prayers meant that the school was effectively endorsing a religious practice, which is not
allowed in public schools.
This decision built on an earlier case, Lee v. Weisman (1992), where the Court ruled against a middle
school that had organized a prayer at its graduation ceremony. In both cases, the Court emphasized that
public schools must remain neutral on religious matters and cannot appear to support or endorse religious
activities.
The Santa Fe v. Doe ruling underscored that any school policy or practice that appears to endorse
religion, even indirectly, is unconstitutional. This means that while students can pray individually or in
groups on their own, schools cannot create policies that facilitate or encourage public prayers at school
events. The decision aimed to protect the religious freedom of all students by ensuring that public school
events are inclusive and free from religious endorsement.
The impact of these decisions is significant for public schools across the United States. They clarify that
school-sponsored or facilitated religious activities are not permitted, thus helping to maintain a separation
between church and state. Schools must be careful to avoid any actions that could be seen as promoting
religious beliefs, ensuring that all students, regardless of their faith or lack thereof, feel included and
respected in the school environment.
Overall, the Supreme Court has made it clear that public schools cannot endorse religious practices,
helping to protect the diverse religious views of all students and uphold the constitutional principle of
separation of church and state.
Background of the Case
In 1995, the Santa Fe Independent School District, located in a predominantly Baptist community near
Houston, Texas, implemented a policy allowing students to vote on whether they wanted a prayer, or
"invocation," before school sports events to "solemnize" the occasion. If the students voted in favor, a
second vote would determine which student would lead the prayer. The prayer was intended to be
nonsectarian (not specific to any religion) and nonproselytizing (not aimed at converting others). It would
be broadcast over the school's loudspeaker before each football game.
Two families, one Catholic and one Mormon, using the pseudonym "Doe," filed a lawsuit to stop this
practice, arguing that it violated the First Amendment's establishment clause, which prohibits government
endorsement of religion.
School's Argument
The Santa Fe school officials argued that the prayer did not represent official state action because it was
the result of a student vote and was delivered by a nominated student, not a school-appointed official.
They claimed this made the prayer private speech, protected under the First Amendment, rather than
government-endorsed religious activity.
Supreme Court's Decision
The key issue for the Supreme Court was whether the student-led prayer was private speech or amounted
to government endorsement of religion. Justice John Paul Stevens wrote the opinion for the 6-3 majority,
ruling that the prayer was, in fact, government speech and therefore unconstitutional.
Stevens highlighted several factors in this decision:
1. Location and Event: The prayer occurred on school property, during a school-sponsored event.
2. Broadcast Medium: It was broadcast over a school-owned loudspeaker, controlled by school
officials.
3. School Insignias: The event took place in a stadium filled with school insignias, reinforcing the
connection to the school.
4. Mandatory Attendance: For many students, such as players, cheerleaders, and band members,
attendance was mandatory, making the prayer unavoidable.
Stevens also noted that the election process did not mitigate the issue because the school had orchestrated
the entire process. The election essentially allowed a majority of students to impose their religious views
on the minority, which is not permissible under the Constitution.
Coercion Test
Stevens applied the coercion test established in the earlier case, Lee v. Weisman (1992). According to
this test, students should not have to choose between attending a school event and avoiding a religious
practice they find personally offensive. The prayer, therefore, placed an unconstitutional burden on
students who might not share the majority's religious views.
Implications of the Ruling
The Court's decision in Santa Fe v. Doe emphasized that public schools must not endorse or promote
religious activities. The ruling clarified that even if a religious activity, like a prayer, is initiated by
students, it can still be seen as government endorsement if it occurs under the auspices of the school.
This decision reaffirmed the principle of separating church and state in public education. Schools must
remain neutral in matters of religion, ensuring that all students, regardless of their religious beliefs or non-
beliefs, are respected and included.
Conclusion
The Santa Fe v. Doe case set a significant precedent in maintaining the constitutional separation of
church and state in public schools. It highlighted that school policies facilitating religious practices, even
through student votes, are unconstitutional. This ruling protects the religious freedom of all students by
ensuring that public schools do not endorse or promote religious activities, thereby fostering an inclusive
and respectful educational environment.
Dissenting Opinion
In the dissenting opinion, Chief Justice William H. Rehnquist criticized the Supreme Court's decision,
saying it showed hostility towards religion in public life. He believed the Court should have waited to see
how the new policy in Santa Fe was implemented before deciding on its constitutionality. Rehnquist
argued that students might choose not to have a prayer, which would avoid any constitutional issues.
Rehnquist also felt that the Court didn't respect Santa Fe's claim that the prayer's purpose was secular,
aimed at solemnizing the football game. He and the other dissenting justices saw the student-led prayer as
private speech protected by the First Amendment, not as an unconstitutional action by the government.
They believed that the students' choice to pray did not amount to the school endorsing religion, as it was
initiated and led by the students themselves.

McCreary County v. American Civil Liberties Union (2005)

In the case of McCreary County v. American Civil Liberties Union (2005), the U.S. Supreme Court made
a decision about whether displaying the Ten Commandments in public buildings was allowed under the
First Amendment, which prohibits the government from establishing a religion. This case involved two
courthouses in Kentucky that had put up displays of the Ten Commandments.
The Court closely examined the history and context behind these displays and concluded, in a narrow 5-4
decision, that they were not allowed. The reasoning was that these displays were seen as promoting a
particular religious viewpoint, which goes against the First Amendment's establishment clause. This
clause is meant to ensure that the government does not favor or endorse any religion.
Interestingly, the Supreme Court decided another similar case on the very same day, called Van Orden v.
Perry. This case involved a monument of the Ten Commandments that was placed in a public park in
Texas. In this case, the Court also ruled 5-4 but reached the opposite conclusion. The Court found that the
Texas monument did not violate the establishment clause. The difference was mainly due to the context
and history surrounding the monument. The Texas display was considered to have a more historical and
educational purpose rather than a purely religious one.
These two cases show how the Supreme Court carefully looks at the specific details and history of each
situation when deciding if a government display of religious symbols violates the Constitution. The
decisions highlight the fine line the Court often has to walk in interpreting the First Amendment's
establishment clause, balancing the prohibition of government endorsement of religion with the
recognition of historical and cultural contexts.
ACLU Sues Over Ten Commandments Displays in Kentucky
The American Civil Liberties Union (ACLU) of Kentucky took legal action against two Kentucky
counties because they had put up framed copies of the Ten Commandments in their courthouses. These
displays, taken from the King James version of the Bible, were easily visible to anyone using the
courthouse. When a lower court ruled that these displays violated the establishment clause of the First
Amendment, which prevents the government from promoting any religion, the counties tried to fix the
issue by changing the displays.
Changing the Displays
In response to the court's decision, the counties added various other documents to the displays, all of
which mentioned God. Some of these documents were even edited to include only religious references.
Despite these changes, the Sixth Circuit Court of Appeals agreed with the lower court's ruling that the
displays were still unconstitutional.
The counties then created a third version of the displays. This time, they included fuller versions of some
documents from the second display and added new documents that did not reference God. They also
included a "prefatory document" that claimed the displays showed "documents that played a significant
role in the foundation of our system of law and government."
Supreme Court Decision
The case eventually reached the Supreme Court. The Court affirmed the lower courts' rulings, stating that
the purpose of the displays was to promote religion, which violates the First Amendment. The Supreme
Court's review focused specifically on the displays in McCreary County and Pulaski County.
The Lemon Test and Secular Purpose
Justice David Souter wrote the majority opinion for the Supreme Court. He focused on the history of the
displays and concluded that they lacked a secular (non-religious) purpose. The Court used the Lemon test
from a previous case, Lemon v. Kurtzman (1971), to assess whether the displays had a secular purpose.
The Lemon test is designed to ensure that the government remains neutral regarding religion. The test
considers whether a government action has a clear secular purpose, does not advance or inhibit religion,
and does not result in excessive government entanglement with religion.
Endorsement Analysis
The Court also used an endorsement analysis. This analysis examines whether the government action
appears to favor religion, sending a message to non-adherents (people who do not follow that religion)
that they are outsiders, and to adherents (people who follow that religion) that they are insiders and
favored members of the political community.
Objective Observer
The Court further explained that the secular purpose test looks through the eyes of an "objective
observer." This observer is assumed to be aware of the traditional external signs, such as the text,
legislative history, and implementation of the official act. If an objective observer perceives the main
purpose behind a government action as religious, then the government is effectively taking sides in
religious matters. In this case, the history and context of the displays were important, as they showed that
the predominant purpose was religious.
Conclusion
The Supreme Court concluded that the displays in McCreary County and Pulaski County were intended to
advance religion, violating the First Amendment. The decision emphasized the importance of government
neutrality in religious matters and reinforced the use of the Lemon test and endorsement analysis to
evaluate such cases.
Court's Decision on Displaying the Ten Commandments
The Court held that there is no per se rule against displaying the Ten Commandments. The Supreme
Court clarified that there isn't an automatic rule against displaying the Ten Commandments in public
places. However, when the actual text of the commandments is shown, it strongly conveys a religious
message unless there's additional context to suggest otherwise. Simply surrounding the commandments
with other historical documents that also mention God would likely reinforce the perception of a religious
purpose to a reasonable observer.
Counties' Attempted Changes
The counties attempted a third version of their displays, claiming to showcase the foundations of
American law. However, given the history of previous displays and the unusual selection of historical
documents included, the Court found that this display did not serve a secular (non-religious) purpose.
Specifically, linking the divine origin of the Ten Commandments with the principles of the Declaration of
Independence, which emphasizes government derived from the people, seemed contradictory and did not
enhance its secular credibility.
Justice Opinions
Justice Sandra Day O'Connor agreed with the Court's decision in a separate opinion. On the other hand,
Justice Antonin Scalia disagreed and wrote a dissenting opinion.
The Supreme Court's decision highlighted the importance of context in determining whether displays of
religious texts, like the Ten Commandments, comply with the First Amendment. It emphasized that such
displays must not appear to endorse or promote any specific religion. The case underscored the ongoing
challenge of balancing religious expression with constitutional principles of government neutrality in
matters of religion.

Board of Education of Kiryas Joel Village School District v. Grumet (1994)

Establishment Clause Violation in Creating a Special School District
In the case of Board of Education of Kiryas Joel Village School District v. Grumet (1994), the U.S.
Supreme Court ruled 6-3 that a New York law creating a separate public school district for disabled
children from a specific religious community violated the establishment clause of the First Amendment.
This clause prohibits the government from favoring one religion over others or promoting religion in any
way.
Background of the Case
The case centered around the Satmar Hasidic sect, a group of Jewish practitioners known for their strict
adherence to religious traditions. They lived in the village of Kiryas Joel in New York. Previously,
Satmar Hasidic children attended private religious schools funded by their community. However, children
with disabilities—those with mental, physical, or emotional needs requiring special education—faced
challenges in accessing appropriate schooling due to the high costs involved for private institutions.
To address this issue, New York passed a law establishing a public school district specifically for disabled
children from the Satmar Hasidic community. The intention was to provide these children with necessary
special education services within a public school setting, funded by taxpayer money.
The Supreme Court reviewed the case and concluded that the creation of a separate public school district
solely for children of one religious sect violated the establishment clause. The Court's decision was based
on the principle of government neutrality towards religion. By creating a district exclusively for the
Satmar Hasidic community, the government effectively endorsed and supported one religious group over
others.
The Court applied a neutrality test, which assesses whether government actions treat all religions equally
and avoid favoring any particular religion. In this case, the creation of the Kiryas Joel Village School
District failed this test because it specifically catered to the educational needs of a single religious
community. This was seen as government entanglement with religion, contrary to the constitutional
principle of separation of church and state.
The Supreme Court’s ruling clarified that while governments can provide public services, including
education, they must do so in a manner that does not favor or endorse any religious group. This case
highlighted the challenges in balancing the needs of religious communities with constitutional principles
of religious freedom and equality under the law.
Justice Antonin Scalia wrote a dissenting opinion, arguing that the creation of the school district was a
permissible accommodation of the Satmar Hasidic community's educational needs, rather than an
endorsement of religion. However, the majority of the Court held that such accommodations must be
made without establishing separate public entities that serve only one religious group.
In summary, Board of Education of Kiryas Joel Village School District v. Grumet (1994) underscored the
importance of government neutrality in matters of religion. It reinforced the principle that public
institutions, including schools, must serve all citizens equally regardless of religious affiliation, ensuring
that the establishment clause of the First Amendment is upheld in practice.
Legal Challenges and Precedents
In the past, there were arrangements where public school districts provided special education services in
religious schools. However, in two previous Supreme Court cases—Aguilar v. Felton and Grand Rapids
School District v. Ball (both in 1985)—such arrangements were ruled unconstitutional. These cases
established that using public funds to provide educational services inside religious schools violated the
establishment clause of the First Amendment, which separates church and state.
Discontinuation of Satmar Hasidic Program
Following these Supreme Court decisions, similar arrangements in the Satmar Hasidic community were
discontinued. The Satmar Hasidic sect, known for its strict religious practices, had children attending
private religious schools in Kiryas Joel, New York. When some of these children required special
education, the Monroe-Woodbury Central School District initially provided publicly funded instruction in
an annex of one of the religious schools.
Creation of a Separate School District
In response to objections and legal challenges, in 1989, the state of New York passed a special statute.
This statute created a separate public school district specifically for disabled children from the Satmar
Hasidic community. The new district boundaries followed the lines of the village of Kiryas Joel, where
the Satmar Hasidic community resided.
Legal Challenges and Court Rulings
Taxpayers and the association of state school boards opposed this special statute. They argued that it
created a school district restricted to residents of Kiryas Joel, essentially segregating educational services
based on religious lines. They filed a lawsuit, claiming that the statute violated the establishment clause of
the First Amendment by advancing religion.
Court Proceedings
The case progressed through the state courts, including the state trial court, the intermediate appellate
court, and finally the New York Court of Appeals. Each of these courts agreed that the creation of a
separate school district limited to the residents of Kiryas Joel primarily served to advance religion. They
ruled that such governmental actions were unconstitutional under the establishment clause.
U.S. Supreme Court Decision
The case eventually reached the U.S. Supreme Court as Board of Education of Kiryas Joel Village School
District v. Grumet (1994). The Supreme Court reviewed the lower court decisions and affirmed their
rulings. The Court held, by a 6-3 vote, that the creation of a separate public school district exclusively for
one religious community violated the establishment clause. The decision emphasized that government
actions must be neutral and cannot endorse or prefer one religion over others.
Impact and Conclusion
Board of Education of Kiryas Joel Village School District v. Grumet (1994) underscored the principle of
government neutrality in matters of religion, especially in public education. It clarified that while public
funds can be used to provide services like special education, they must be administered in a way that does
not favor or disadvantage any particular religious group. This case remains significant in shaping the
boundaries between religious freedom and governmental obligations under the First Amendment.
Establishment Clause Violation
In Board of Education of Kiryas Joel Village School District v. Grumet (1994), the U.S. Supreme Court
ruled that the creation of a separate public school district exclusively for disabled children from the
Satmar Hasidic sect violated the establishment clause of the First Amendment. This clause prohibits
government actions that endorse or favor one religion over others.
Background: Kiryas Joel Village School District
The case arose from a special statute passed by New York in 1989. This statute created a public school
district specifically tailored to meet the educational needs of disabled children from the Satmar Hasidic
community in Kiryas Joel, New York. The Satmar Hasidic sect practices a strict form of Judaism and had
previously faced challenges in accessing special education services through private religious schools.
Majority Opinion by Justice David H. Souter
Justice David H. Souter, writing for the majority, emphasized that states cannot delegate governmental
powers based solely on religious identity. He argued that creating a separate school district exclusively
for one religious community demonstrated clear favoritism towards that religion. This violated the
principle of neutrality required by the establishment clause, especially when alternative methods of
providing educational services were available.
Souter highlighted concerns about unequal treatment, questioning whether such legislative benefits would
be equally extended to other religious or non-religious groups. While Souter did not directly apply the
Lemon test—a framework used in previous establishment clause cases—he affirmed its underlying
principles. The Lemon test typically evaluates whether a government action has a secular purpose, does
not advance or inhibit religion excessively, and avoids excessive entanglement with religion.
Dissenting Opinion by Justice Antonin Scalia
Justice Antonin Scalia dissented from the majority opinion. He argued that accommodating the
educational needs of the Satmar Hasidic community through a separate school district was a reasonable
and constitutionally permissible accommodation of religious practices. Scalia criticized the majority's
reliance on the neutrality principle, suggesting that it could lead to excessive restrictions on religious
freedom.
Scalia expressed skepticism towards the Lemon test, believing it to be a flawed approach in evaluating
establishment clause cases. He believed that historical context and the intentions of the Founding Fathers
should guide interpretations of religious freedom, rather than a strict adherence to neutrality principles
that could undermine religious accommodations.
Impact and Significance
Board of Education of Kiryas Joel Village School District v. Grumet (1994) underscored the Supreme
Court's commitment to maintaining government neutrality in religious matters. It reaffirmed that while
accommodations for religious practices can be permissible, they must be carefully balanced to avoid
endorsing or favoring any particular religion. The case also sparked ongoing debate about the appropriate
standards for evaluating establishment clause claims, reflecting differing interpretations among the
justices regarding the Lemon test and the neutrality principle.
In conclusion, the case highlighted the complexities involved in balancing religious freedoms with
constitutional principles of government neutrality, shaping future interpretations of the establishment
clause in American law.

CASE OF SERIF v. GREECE

The case began when a Greek citizen, Mr. Ibraim Serif, filed a complaint against Greece with the
European Commission of Human Rights in 1997. He argued that his conviction for impersonating a
minister of a recognized religion and wearing religious attire violated his rights under the European
Convention on Human Rights (specifically Articles 9 and 10).
Initially, the European Commission of Human Rights notified the Greek government about the complaint
and asked for their written response. After some back-and-forth submissions between the government and
Mr. Serif, the case was transferred to the European Court of Human Rights following a change in the
Convention's protocols.
The Court assigned the case to its Second Section. A panel of judges was appointed to review the case,
and a hearing was scheduled where both the government and Mr. Serif presented their arguments.
Mr. Serif, born in 1951 and a graduate of a theological school, resides in Komotini. The case stemmed
from a dispute over the appointment of a religious leader in Thrace. In 1990, after the death of one
Muslim religious leader, the government appointed interim leaders. Mr. Serif, along with others,
contested the legality of these appointments, arguing they should have been elected according to existing
law. Despite their objections, a legislative decree was issued changing the selection process for these
leaders.
On December 28, 1990, Mr. Serif was elected as a religious leader by worshippers at local mosques,
challenging the government's appointed leader. This led to ongoing legal battles in Greek courts.
In response, Parliament passed a law in February 1991, retroactively validating the earlier legislative
decree that changed how these leaders were appointed.
The European Court of Human Rights decided that Mr. Serif's complaints under Articles 9 (freedom of
thought, conscience, and religion) and 10 (freedom of expression) of the Convention were admissible,
meaning they could be considered as part of the case. Other aspects of Mr. Serif's application were
deemed inadmissible.
B. The criminal proceedings against the applicant
Mr. Ibraim Serif, a Greek citizen and graduate of a theological school, was involved in legal trouble
stemming from his election as a religious leader, or Mufti, in the region of Rodopi, Thrace. This began
after a dispute over how religious leaders should be appointed in the Muslim community.
The legal issues started when Mr. Serif was accused of pretending to be a Mufti and wearing Mufti attire
without proper authority. The Rodopi public prosecutor brought charges against him under Greek
criminal laws that prohibit impersonating religious ministers and wearing their distinctive clothing
without authorization.
The case was moved from Rodopi to Salonika due to concerns about potential disturbances. In March
1993, Mr. Serif was summoned to appear before the Salonika Criminal Court, where he faced charges
under Articles 175 and 176 of the Greek Criminal Code.
During his trial in December 1994, witnesses testified for both the prosecution and defense. The court
found Mr. Serif guilty of pretending to be the Mufti of Rodopi between January and February 1991. They
said he had performed various religious duties like officiating weddings and delivering religious
speeches, all while wearing attire traditionally associated with Muftis.
Mr. Serif appealed the verdict. The appeal process was delayed multiple times, in part because key
witnesses did not appear. Despite his arguments that he had not actually performed the duties of a Mufti
as defined by Greek law, the appeal court upheld his conviction in October 1996 but reduced his sentence
to a fine.
Mr. Serif continued to contest his conviction, arguing that the Greek courts had misinterpreted the law
and violated his rights under the European Convention on Human Rights, specifically Articles 9 (freedom
of religion), 10 (freedom of expression), and 14 (prohibition of discrimination).
In April 1997, the Court of Cassation, Greece's highest court for criminal matters, dismissed Mr. Serif's
final appeal. They upheld the lower courts' decisions, stating that Mr. Serif had indeed portrayed himself
as a Mufti in public and had worn clothing that people associated with Muftis.
However, the Court of Cassation did not directly address Mr. Serif's human rights arguments related to
freedom of religion, expression, and discrimination.
In conclusion, the case of Mr. Ibraim Serif highlighted tensions over the appointment of religious leaders
in Greece's Muslim community. It also raised important legal questions about freedom of religion and
expression under both Greek law and international human rights standards.
International Treaties
In 1913, Greece and the Ottoman Empire signed the Treaty of Peace of Athens. This treaty guaranteed
various rights to the inhabitants of ceded districts under Greek administration, including Muslims. It
ensured their rights to practice their religion freely and manage their religious affairs autonomously.
Specifically, each mufti, a religious leader, would be elected by Muslim voters and had authority over
certain legal matters within the Muslim community, like marriage and inheritance disputes, based on
Islamic law.
Later, in 1920, Greece signed treaties with Allied Powers in Sèvres, transferring rights over Thrace and
agreeing to protect minorities. Article 14 of the Sèvres Treaty mandated that Greece allow Muslims to
regulate family and personal matters according to Islamic customs.
In 1923, Greece and Turkey signed the Treaty of Lausanne, further securing rights for the Muslim
minority in Greece, similar to those in the Sèvres Treaty. These treaties emphasized the autonomy of
Muslim communities and the role of muftis in legal and religious matters.
Legislation on Muftis
Law no. 2345/1920 in Greece empowered muftis to adjudicate on family and inheritance disputes among
Muslims based on Islamic law. It mandated that muftis be elected by Muslim voters in their district, with
candidates required to be graduates of theological schools. However, a detailed decree for organizing
these elections was never issued.
Despite this law, the Greek government appointed muftis directly in various instances throughout history,
including during periods of occupation and interim governance.
In 1990, a legislative decree changed the appointment process for muftis, giving the government authority
to appoint them by presidential decree. This decree replaced Law no. 2345/1920 and required ratification
by the Greek Parliament.
Legislative Decrees under the Constitution
Article 44 § 1 of the Greek Constitution allows the President to adopt legislative acts in exceptional and
urgent circumstances. These acts must be approved by Parliament within forty days.
Criminal Code Provisions
Article 175 of the Greek Criminal Code addresses the intentional assumption of official functions without
authority. This includes usurping the functions of state officials, municipal officials, lawyers, and
ministers of recognized religions. Previous court judgments have applied this article to cases involving
individuals who have unlawfully exercised administrative or religious functions of Orthodox priests.
Article 176 of the Criminal Code prohibits the public wearing of official attire or insignia of state
officials or ministers of recognized religions without proper authority. Violations can result in
imprisonment or fines.
Legislation on Ministers of "Known Religions"
Ministers of recognized religions in Greece, such as the Greek Orthodox Church, enjoy specific legal
privileges. For instance, weddings conducted by these ministers hold the same legal weight as civil
weddings, and they are exempt from military service obligations.
Summary
The legal issues surrounding Mr. Ibraim Serif's case are deeply intertwined with historical treaties,
domestic legislation, and criminal law provisions in Greece. These include international treaties
guaranteeing rights to religious minorities, laws governing the appointment and authority of muftis,
constitutional provisions allowing for legislative decrees in exceptional circumstances, and criminal laws
addressing the usurpation of official functions and misuse of religious attire. These legal frameworks
highlight ongoing debates over religious freedom, minority rights, and the regulation of religious affairs
in Greece.
Alleged Violation of Article 9 of the Convention
Mr. Ibraim Serif argued that his conviction violated Article 9 of the European Convention on Human
Rights. This article guarantees everyone the freedom of thought, conscience, and religion, including the
freedom to practice one's religion publicly and to teach and observe religious beliefs.
The Greek government disagreed, stating that there was no interference with Mr. Serif's religious
freedom. They argued that even if there was interference, it was justified under Article 9, which allows
limitations for public safety, order, health, morals, or the rights of others.
Existence of an Interference
Mr. Serif claimed that his conviction interfered with his right to freely practice his religion, especially in
his role as a spiritual leader to those who sought his guidance.
The government countered that Article 9 does not give Mr. Serif the right to impose his interpretation of
Greece's legal obligations under the Treaty of Peace of Athens on others.
The European Court of Human Rights clarified that while religious freedom is primarily about individual
beliefs, it also includes the freedom to practice religion publicly and in community with others. They
noted that Mr. Serif was convicted for acting as a religious leader without the legal right to do so, which
included issuing religious messages, delivering speeches, and wearing religious attire in public.
Therefore, the Court concluded that Mr. Serif's conviction did interfere with his right under Article 9 to
manifest his religion publicly.
"Prescribed by Law"
The government argued that Mr. Serif's conviction was based on Articles 175 and 176 of the Greek
Criminal Code, making it lawful. They emphasized that the courts' interpretation of these laws made the
outcome of Mr. Serif's case predictable. They dismissed the relevance of Law no. 2345, which governed
the election of muftis, stating it had fallen out of use. They also argued that the Treaty of Peace of Athens,
although once relevant, became obsolete after a population exchange in 1923. They claimed that
subsequent treaties like the Treaty of Sèvres and the Treaty of Lausanne, which protected minorities in
Greece, did not mandate the election of muftis.
Mr. Serif disagreed, asserting that the Treaty of Peace of Athens remained valid. He cited historical and
legal arguments, including the Greek Prime Minister's acceptance during the 1923 Lausanne Conference
and support from legal scholars and the Court of Cassation. He argued that Muslims never accepted the
abolition of Law no. 2345.
The European Court of Human Rights decided not to rule on whether Mr. Serif's conviction was
"prescribed by law." Instead, they focused on other grounds incompatible with Article 9.
Legitimate Aim
The government contended that Mr. Serif's conviction served a legitimate purpose: to maintain order
within the local Muslim community and society at large by upholding the authority of the legally
appointed mufti. They also argued it aimed to protect the country's international relations, a matter within
a state's discretion.
Mr. Serif disagreed with these assertions.
The European Court of Human Rights agreed that the interference in Mr. Serif's case pursued a legitimate
aim under Article 9 § 2 of the Convention, specifically to protect public order. They noted that Mr. Serif
was not the only claimant to the role of religious leader; another person had been appointed by authorities
earlier, which had led to legal challenges.
Conclusion
In summary, Mr. Ibraim Serif's complaint centered on the violation of his religious freedom under Article
9 of the European Convention on Human Rights. The Court recognized that his conviction did interfere
with his right to publicly manifest his religion. However, they did not delve into whether this interference
was "prescribed by law," focusing instead on other grounds. They acknowledged the legitimate aim of the
interference was to protect public order and noted the complexities of leadership disputes within the
Muslim community in Rodopi, Greece.
Necessary in a Democratic Society
Government's Argument:
The Greek government argued that Mr. Ibraim Serif's conviction was necessary in a democratic society.
They pointed out that in many countries, including Greece, muftis (religious leaders) are appointed by the
state. They emphasized that muftis play important roles, including judicial functions, similar to judges,
who are not elected but appointed. Therefore, the government believed that the state's appointment of a
mufti does not violate Article 9 of the Convention.
The government also argued that Mr. Serif was not convicted simply for appearing as a mufti in public.
Instead, the courts found him guilty under Article 175 of the Criminal Code for performing the actual
duties of a religious minister. They justified this by stating that having two muftis in Rodopi at the same
time could create tension among Muslims, between Muslims and Christians, and between Greece and
Turkey. They claimed Mr. Serif questioned the legality of the lawful mufti's actions. Even if there wasn't
a legally appointed mufti, they asserted Mr. Serif would still deserve punishment because his "election"
lacked a proper democratic procedure and was influenced by local political motives.
Applicant's Argument:
Mr. Serif disagreed, arguing that his conviction was unjustified in a democratic society. He highlighted
that Christians and Jews in Greece have the right to elect their religious leaders, but Muslims do not. He
claimed that the majority of Muslims in Thrace supported him as their mufti. Mr. Serif believed that the
state's interference was discriminatory and violated individual choices in matters of personal conscience.
He saw his conviction as part of a broader policy of repression by the Greek state against the Turkish-
Muslim minority in western Thrace.
Court's Consideration:
The European Court of Human Rights stressed that freedom of thought, conscience, and religion is
fundamental in a democratic society as per Article 9 of the Convention. They noted that pluralism, which
allows for diversity within society, is crucially tied to democratic principles that have evolved over
centuries. While limitations on religious freedom can sometimes be necessary in a democratic society to
balance the interests of different religious groups, such restrictions must serve a pressing social need and
be proportionate to the aim pursued.
The Court observed that Mr. Serif was convicted under Articles 175 and 176 of the Criminal Code, which
criminalize certain actions against ministers of recognized religions. They acknowledged that Greek law
treats weddings conducted by these ministers as legally equivalent to civil weddings and grants muftis
authority in family and inheritance disputes among Muslims. This legal framework aims to protect people
whose legal rights are affected by religious leaders' actions.
However, the Court found that the domestic courts did not specify any specific acts by Mr. Serif that had
legal consequences, such as officiating weddings or performing administrative duties. Instead, he was
convicted for issuing religious messages, delivering speeches at religious events, and appearing in
religious attire in public. The Court recognized that Mr. Serif had the support of a portion of the Muslim
community in Rodopi. Punishing someone for leading a religious group that willingly followed him
seemed incompatible with religious pluralism in a democratic society.
Court's Decision:
The European Court of Human Rights concluded that Mr. Serif's conviction under Articles 175 and 176
of the Criminal Code was not justified by a pressing social need. Therefore, the interference with Mr.
Serif's right to publicly manifest his religion, in community with others and in public, was not necessary
to protect public order under Article 9 § 2 of the Convention. Consequently, the Court found a violation
of Article 9 of the Convention.
Alleged Violation of Article 10 of the Convention
Mr. Serif's Complaint:
Mr. Serif also claimed a violation of Article 10 of the Convention, which protects freedom of expression.
He argued that his conviction stemmed from statements he made and clothes he wore in public.
Government's Defense:
The Greek government countered that there was no violation because Mr. Serif was not punished for
expressing his views but for unlawfully assuming the role of a mufti.
Court's Decision:
Given its finding of a violation of Article 9, the European Court of Human Rights did not examine
whether Article 10 was violated separately, as there were no additional issues under Article 10.
Application of Article 41 of the Convention
Compensation:
Under Article 41, the Court decided on compensation for Mr. Serif. He requested reimbursement of a fine
he paid, approximately 700,000 drachmas, and 10,000,000 drachmas for non-pecuniary damages. The
government disputed these claims.
The Court, having found a violation of Article 9, awarded Mr. Serif compensation of 700,000 drachmas
for pecuniary damages and 2,000,000 drachmas for non-pecuniary damages, considering the impact of the
violation on him.
Costs and Expenses:
Mr. Serif did not request compensation for costs and expenses.
The Court noted that Mr. Serif had legal aid during the proceedings and decided not to award him
additional costs and expenses.
Default Interest:
The Court applied a statutory interest rate of 6% per annum for any delayed payments, based on Greek
law at the time of the judgment.
In conclusion, the European Court of Human Rights upheld Mr. Serif's complaint of a violation of Article
9 of the Convention, finding that his conviction for acting as a mufti without legal authorization was not
justified in a democratic society. They awarded him compensation for both pecuniary and non-pecuniary
damages as a result of this violation.

Metropolitan Church of Bessarabia and Others v. Moldova, No. 45701/99,

ECtHR (First Section), 13 December 2001
The case of Metropolitan Church of Bessarabia and Others v. Moldova, decided by the European Court of
Human Rights (ECtHR) on 13 December 2001, is a pivotal moment in understanding the principles of
religious freedom and state neutrality in Europe.
Background of the Case:
In Moldova, the Metropolitan Church of Bessarabia, affiliated with the patriarchate of Bucharest, sought
official recognition from the government. This recognition was crucial for the church to operate legally
and freely practice its faith. However, the Moldovan government denied this recognition, citing concerns
about national law, constitutional principles, and even national security issues. They argued that
recognizing this church could threaten Moldova's territorial integrity, given the complex historical and
political context of the region.
Legal Issues at Stake:
The case primarily revolved around two key articles of the European Convention on Human Rights
(ECHR): Article 9 and Article 13.
1. Violation of Article 9 ECHR: Freedom of Religion
Article 9 of the ECHR guarantees the right to freedom of thought, conscience, and religion. It protects
individuals and religious communities from interference by public authorities in the practice of their
beliefs. The ECtHR found that Moldova's refusal to recognize the Metropolitan Church of Bessarabia
violated this fundamental right. The state's duty of neutrality and impartiality in religious matters requires
it to treat all religious communities equally and not favor one over another. By denying recognition based
on vague concerns about national security, Moldova overstepped its role and infringed upon the church's
right to freely manifest its religious beliefs.
 2. Violation of Article 13 ECHR: Right to an Effective Remedy
Article 13 of the ECHR ensures that individuals and groups have access to effective legal remedies in
national courts when their rights under the Convention are violated. In this case, the ECtHR also ruled
that Moldova's denial of recognition breached Article 13. The Metropolitan Church of Bessarabia and its
members were unable to seek redress within Moldova's legal system for the violation of their religious
freedom. This lack of a legal remedy further compounded the injustice faced by the church.
Key Legal Principles Established:
The ECtHR's judgment in this case established several critical principles regarding religious freedom and
state neutrality:
 State Neutrality: States must remain neutral and impartial in religious matters. They should not
use vague or unsubstantiated reasons, such as national security concerns, to deny recognition to
religious communities. The state's role should be to facilitate religious pluralism and ensure that
all groups can practice their faith freely without discrimination.
 Freedom to Manifest Religion: Article 9 protects not only the individual's right to hold beliefs
but also their right to manifest those beliefs in worship, observance, and practice. This includes
the collective dimension of religious expression, such as the recognition of religious communities
like the Metropolitan Church of Bessarabia.
 Effective Legal Remedies: Article 13 ensures that individuals and groups have access to
effective legal remedies at the national level when their rights under the Convention are violated.
This ensures accountability and fairness in how states uphold human rights, including religious
freedoms.
Impact and Significance:
The ECtHR's ruling in the Metropolitan Church of Bessarabia case marked a significant milestone in the
protection of religious freedom across Europe. It reinforced the importance of state neutrality and
impartiality in religious affairs, setting a precedent that governments cannot arbitrarily restrict or deny the
rights of religious communities based on vague justifications. The case highlighted the duty of states to
uphold religious pluralism and protect the rights of all religious groups within their jurisdictions.
Conclusion:
In conclusion, the Metropolitan Church of Bessarabia and Others v. Moldova case exemplifies the
ECtHR's commitment to safeguarding religious freedom under the European Convention on Human
Rights. It underscores the principles of state neutrality, the right to religious freedom, and the necessity of
effective legal remedies for violations. By holding Moldova accountable for its denial of recognition to
the Metropolitan Church of Bessarabia, the ECtHR affirmed that religious rights are fundamental and
must be respected by all member states of the Council of Europe.
This case remains relevant as a guiding precedent for future decisions concerning religious freedom and
state obligations under international human rights law.

SERBIAN ORTHODOX DIOCESE v. MILIVOJEVICH, 426 U.S. 696 (1976)

The Serbian Eastern Orthodox Diocese of the United States and Canada faced a significant controversy
centered around Bishop Dionisije (Milivojevich). He was defrocked by the Mother Church in Belgrade,
Yugoslavia, due to misconduct allegations. This decision led to a division within the American-Canadian
contingent into three separate dioceses.
Bishop Dionisije disputed his defrocking and sued the Mother Church, claiming to be the rightful bishop
of the undivided diocese. The case escalated to the Illinois Supreme Court, which ruled against the
Mother Church, citing violations of its own procedures and internal regulations. The court also
determined that the diocese could not be divided, declaring the Mother Church's decision invalid.
However, the United States Supreme Court later overturned the Illinois Supreme Court's decision. The
higher court argued that the lower courts had improperly interfered with church matters, violating the
First Amendment which separates church and state. This reversal reinforced the autonomy of religious
organizations in managing their internal affairs without judicial interference.
At the heart of the controversy was the hierarchical structure of the Serbian Eastern Orthodox Church.
The church's highest executive body is the Holy Synod, which includes the Patriarch and four diocesan
bishops elected by the Holy Assembly. The Holy Assembly, composed of all Diocesan Bishops, holds
legislative, judicial, and ecclesiastical authority within the church. This structure grants the church the
right to manage properties, finances, and clergy appointments.
Historically, the Serbian Eastern Orthodox Church had a small independent diocese in the United States,
headquartered in Illinois since the early 1900s. Father Mardary established this diocese, known as the
American-Canadian Diocese, allowing it relative autonomy by creating its own constitution. Despite this
autonomy, the diocese operated within the overarching hierarchy of the Mother Church.
Over time, the diocese expanded its influence, establishing not-for-profit organizations and acquiring
properties in several U.S. states. These assets became crucial in the legal disputes over property rights
within the church, reflecting the complex interplay between autonomy and hierarchical authority within
religious institutions.
Bishop Dionisije Milivojevich led the American-Canadian Diocese and asked for more support from the
Mother Church as the diocese grew. But complaints were made against him. When a delegation came to
investigate, they not only looked into the diocese's needs but also the claims against Dionisije. The
Mother Church then decided to split the diocese into three and appointed the investigators as new bishops.
They also suspended and later removed Dionisije due to misconduct findings.
Dionisije disagreed with his suspension and appealed to the Patriarch, arguing that the Mother Church
didn't follow its own rules or the American-Canadian Serbian Orthodox constitution. He refused to accept
his suspension or the Mother Church's decisions and kept acting as bishop. While he didn't join church
legal battles, he rallied the Diocesan National Assembly to declare independence from the Mother
Church.
Dionisije also went to an Illinois court, claiming his position and control over the diocese's assets. The
Illinois Supreme Court agreed that the Holy Synod had violated its own rules and the diocese's
constitution in reorganizing, so they said Dionisije should be reinstated as bishop.
Opinion of the Court
Majority
In the legal proceedings regarding Bishop Dionisije's defrockment and the division of the American-
Canadian Diocese, the U.S. Supreme Court, through Justice Brennan's majority opinion, overturned the
Illinois Supreme Court's decision. The Illinois court had ruled in favor of Bishop Dionisije, but the U.S.
Supreme Court disagreed, arguing that the Illinois court had wrongly interfered in religious matters that
should be left to ecclesiastical authorities.
Justice Brennan emphasized that under the First and Fourteenth Amendments of the U.S. Constitution,
civil courts have no authority to meddle in decisions made by religious organizations regarding their
internal affairs. This principle is rooted in the Establishment Clause, which prohibits government
involvement in religious activities and decisions.
The dispute over Bishop Dionisije's defrockment was closely tied to control over church properties. The
majority opinion saw this as a religious issue rather than a civil one. Justice Brennan referred to previous
case law, such as Presbyterian Church v. Hull Church, to support the idea that civil courts should only
handle property disputes without delving into religious doctrines or practices. This approach aims to
prevent the entanglement of secular courts in religious affairs.
According to Brennan, the Illinois Supreme Court had improperly interpreted and applied canon law (the
internal laws of the church) to resolve disputes that were fundamentally religious in nature. This violated
the principle of religious freedom and due process. The U.S. Supreme Court held that civil courts must
defer to hierarchical church tribunals in matters concerning religious doctrine and practice to avoid
infringing on the church's autonomy.
Although civil courts can review doctrinal documents as evidence, they cannot use these documents to
settle religious controversies or interfere in the internal governance of religious organizations. The court's
role is strictly limited to resolving secular disputes over property rights without making judgments on
religious matters.
In essence, the U.S. Supreme Court's decision reinforced the separation of church and state, ensuring that
civil courts respect the autonomy of religious institutions in managing their internal affairs. It underscored
the importance of religious freedom by prohibiting secular courts from intervening in ecclesiastical
matters, thereby upholding the constitutional rights of religious organizations to govern themselves
independently.
Dissent
Justice Rehnquist disagreed with the majority opinion of the U.S. Supreme Court regarding the Illinois
Supreme Court's handling of the case. He argued that the Illinois court did not violate the First
Amendment as claimed by the majority. Instead, Rehnquist believed the Illinois court was simply
applying its own interpretation of the law to resolve the canonical dispute involving Bishop Dionisije.
Rehnquist agreed that the higher church authorities had indeed violated their own standards, but he felt
that civil courts should sometimes interpret church law using neutral principles. Neutral principles mean
applying legal principles without delving into religious doctrines or beliefs. Rehnquist referred to the case
Watson v. Jones to support this idea, suggesting that courts can decide matters involving religious
organizations similar to how they handle disputes in non-religious organizations.
He argued that applying common sense is crucial, especially when a majority within a religious
organization disagrees with the actions of a minority trying to change established policies and procedures.
Rehnquist emphasized that the First Amendment prohibits government bias towards any specific religious
group, but it doesn't prevent courts from neutrally applying legal principles, even in matters involving
religious organizations.
Rehnquist acknowledged the difficulty civil courts face in religious disputes, particularly how deeply they
should analyze church doctrines and laws. He admitted that courts should refrain from interpreting
religious documents extensively in property disputes, as this could unfairly interfere with religious
autonomy. However, he also noted that if there are clear and secular rules that can be applied without
religious interpretation, courts can use them to make fair decisions.
In his dissent, Rehnquist concluded that the Illinois Supreme Court had acted within its constitutional
bounds by applying neutral principles and showing deference to the hierarchical structure of the church.
He believed the U.S. Supreme Court should not have overturned the Illinois court's decision, as it did not
violate the rights guaranteed by the First and Fourteenth Amendments.
Overall, Rehnquist's dissenting opinion stressed the importance of allowing civil courts to use neutral
principles in resolving disputes involving religious organizations, while respecting the boundaries
between secular and religious authority as mandated by the U.S. Constitution.

Jones v. Wolf(1979)
Background and Dispute
The case centers around the Vineville Presbyterian Church in Macon, Georgia, which was part of the
Presbyterian Church in the United States (PCUS), an organization with a hierarchical structure. In 1973, a
significant division occurred within the Vineville Presbyterian Church congregation. At a congregational
meeting, 164 members voted to leave the PCUS and affiliate with another denomination, while 94
members opposed this decision.
Following the division, the Augusta-Macon Presbytery (a regional governing body of the PCUS)
appointed a commission to investigate the dispute. The commission ruled that the minority faction (those
who remained affiliated with the PCUS) constituted the "true congregation" of the Vineville Presbyterian
Church. However, the majority faction (those who voted to leave and affiliate with another denomination)
retained possession of the church property.
The minority faction then brought a lawsuit in state court seeking declaratory and injunctive relief,
arguing that they were the rightful owners of the church property as members of the PCUS. The trial
court, applying Georgia's "neutral principles of law" approach to church property disputes, ruled in favor
of the majority faction. The Georgia Supreme Court affirmed this decision, stating that Georgia law
allowed for the use of neutral principles and rejecting the minority's challenge based on the First and
Fourteenth Amendments.
Schism and Dispute:
In 1973, a congregational meeting was held at Vineville where 164 members, including the pastor, voted
to separate from the PCUS and join the Presbyterian Church in America (PCA). Ninety-four members
opposed this decision. The majority faction immediately notified the PCUS of their decision and began
affiliating with the PCA. Meanwhile, the minority faction remained on the church rolls for a few years but
eventually ceased participating in Vineville's affairs, choosing to worship elsewhere.
The Augusta-Macon Presbytery responded to the division by appointing a commission to investigate and
resolve the dispute. The commission concluded that the minority faction represented the true
congregation of Vineville Presbyterian Church and withdrew all authority from the majority faction
related to the PCUS.
Legal Proceedings:
The minority faction initially sought federal court intervention, but their case was dismissed for lack of
jurisdiction. They then pursued a class action in state court, seeking a legal declaration that they, as the
PCUS-affiliated minority, had rightful ownership and control of the Vineville church property.
The trial court applied Georgia's "neutral principles of law" approach to church property disputes, which
involves examining legal documents like deeds and corporate charters rather than religious doctrines. It
ruled in favor of the majority faction, a decision upheld by the Georgia Supreme Court. The state court
rejected the minority's argument that their rights under the First and Fourteenth Amendments were
violated.
Supreme Court Decision:
The case eventually reached the U.S. Supreme Court, which agreed to review it. In its decision, the
Supreme Court affirmed Georgia's use of neutral principles of law. It ruled that states are not required to
defer automatically to hierarchical church decisions in property disputes. Instead, civil courts can apply
neutral legal principles to determine property ownership without delving into religious matters.
The Court's decision clarified that states could use a secular approach to resolve church property disputes,
ensuring that civil courts respect both the autonomy of religious organizations and the legal rights of
individuals. This landmark case established guidelines for handling similar disputes across the country,
maintaining the separation of church and state while upholding constitutional principles.
In essence, Jones v. Wolf underscored the balance between religious freedom and legal governance in
church property disputes, setting a precedent that continues to influence legal interpretations in similar
cases today.
Key Points:
1. Unique Case Complexity: Unlike previous cases (Presbyterian Church II and Carnes), where
disputes were between the general church and a whole local congregation, here the local
congregation itself was divided into a majority (164 members) and a minority (94 members).
2. Legal Approach Questioned: The petitioners argued that determining which faction represented
the true congregation was an ecclesiastical matter beyond the scope of civil courts. They believed
that only a church commission appointed by the Presbytery could decide this.
3. Majority Rule: Respondents argued that Georgia courts applied a rule where a majority of a
church determines its identity, unless there's evidence of a different method in the church's
documents. Majority rule is common in religious organizations and doesn't usually involve
doctrinal disputes.
4. Legal Requirements in Georgia: Georgia law suggests that church property should be governed
according to the church's rules and regulations. This could mean that a civil court might need to
interpret religious doctrines, which goes against the First Amendment's separation of church and
state.
 5. First Amendment Constraints: The U.S. Supreme Court clarified that while states can use
neutral principles to decide church property disputes, they must avoid interpreting religious
beliefs or practices. They must also defer to the highest church authority on ecclesiastical matters.
Court Decision:
 The Supreme Court vacated Georgia's decision because it didn't clearly explain how it applied
neutral principles in this case.
 If Georgia law requires using church laws and regulations to determine a church's identity, civil
courts must defer to decisions made by church authorities, like the Presbytery's commission.
Conclusion:
The case highlights the delicate balance between property rights and religious freedom under the First
Amendment. Civil courts can use neutral principles to decide property disputes but must avoid
interpreting religious matters. They should defer to church decisions on issues of church identity and
governance.
The Supreme Court's decision underscores the delicate balance between protecting religious freedom
under the First Amendment and resolving property disputes through secular legal principles. It affirms
that while states can use neutral principles to decide ownership issues, they must respect the internal
decisions of hierarchical church structures on matters of membership and governance to avoid
constitutional conflicts.

Refah Partisi (The Welfare Party) and Others v. Turkey

In 1998, Turkey's Constitutional Court dissolved the Refah Party, citing activities against secularism, and
barred six leaders from politics for five years. Two judges disagreed, citing conflicts with the European
Convention on Human Rights (ECHR). The party and leaders then appealed to the European Court of
Human Rights (ECHR).
The ECHR handles complaints from individuals and organizations like political parties. Previously, a
separate body, the Commission, managed applications and sought settlements until it was abolished in
1998. Now, a seven-judge Chamber decides on applications, with a larger Grand Chamber for significant
cases. Judgments are binding and can require states to compensate applicants.
Initially, a Chamber of the Court ruled no violation of association freedom in the Refah case in July 2001,
finding measures legal and necessary in a democratic society. Three judges disagreed, considering the
measures excessive. At the applicants' request, the case went to a Grand Chamber, which upheld the
judgment in February 2003, with additional opinions.
The Refah case is crucial for understanding 'militant democracy,' testing the limits of political parties
under Article 11 of the ECHR on association freedom. It also touches on religious freedom and
expression, with the Court interpreting Islamic concepts like sharia and jihad, supporting Turkey's
secularism, and opposing multiple legal systems advocated by Refah. Legal actions by Turkey's
Constitutional Court also raise due process concerns.
A. Factual Background
The European Court of Human Rights' decision regarding the Refah Party is significant because it was the
fifteenth political party dissolved by Turkish authorities at that time. Prior to Refah, the Court had already
ruled violations of Article 11 (freedom of assembly) in three similar cases. Refah, led by Necmettin
Erbakan, had been active for fifteen years, with Erbakan himself a prominent figure in Turkish politics for
much longer. The party, often described as "Islamist," advocated for national and traditional religious
values and represented provincial small businesses. Despite its rhetoric, Refah pragmatically engaged in
coalition politics with both center-left and center-right parties.
At its peak, Refah became the largest party in parliament after winning 21.4% of the popular vote and
securing 158 out of 450 parliamentary seats in the 1995 elections. It formed a coalition government with
the center-right True Path party, with Erbakan serving as prime minister for nearly a year. During its time
in power, Refah didn't implement a radical Islamist agenda and even cooperated with Israel on military
projects while scaling back religious education. Its downfall came peacefully when it lost parliamentary
support, possibly influenced by pressures from Turkey's military leadership.
The Turkish military, a powerful force historically influencing civilian politics through coups and
interventions, sees itself as safeguarding the secular principles of Turkey's founder, Mustafa Kemal
Ataturk. Turkish secularism allows state oversight of mosques, and since 1980, the military has supported
using conservative Sunni groups to counter leftist movements.
B. The Refah Case
Unlike earlier cases, the European Court's judgment on Refah didn't focus on the party's official platform
but on statements and actions by its members over six years. These included controversial public
statements and symbolic acts by party leaders like mayors and MPs. The Court concluded that these
actions collectively suggested a theocratic vision incompatible with democracy, which Refah might
pursue through its political influence, similar to fundamentalist movements in other countries.
The Court's decision followed a standard procedure: first, determining if there was interference with the
party's rights; second, assessing whether this interference was legally justified; third, evaluating if it
pursued legitimate aims such as national security or public order; and fourth, deciding if the measures
were necessary in a democratic society. I'll discuss the limitations on a political party's freedom of
assembly first, then briefly address whether Refah's dissolution was legally justified.
II. Necessary in a Democratic Society?
The Court found that dissolving Refah served legitimate aims outlined in Article 11 of the European
Convention on Human Rights, such as national security, public safety, and protecting the rights of others.
These reasons justified restricting Refah's freedom of association, despite the party's electoral success and
coalition governance experience.
A. Statements of Law
The European Court of Human Rights reaffirmed several key principles in its judgment on the Refah
Party case. It emphasized that democracy, as understood by the European Convention on Human Rights,
is the only political model compatible with the Convention's principles. Political parties play a crucial role
in democracy, and therefore, they enjoy significant freedom of expression, even when their ideas may
offend or disturb others. The Court also stressed that freedom of thought, conscience, and religion is
fundamental in a democratic society, but it can be limited when necessary to protect public order or the
rights of others.
Regarding Turkey specifically, the Court acknowledged secularism as a fundamental principle of the state
that aligns with the rule of law and human rights. Actions that undermine secularism may not be protected
under the freedom to manifest one's religion. The Court referenced previous decisions allowing Turkey to
restrict civil servants' involvement in Islamic movements and to regulate the use of headscarves in
universities.
However, there's a debate about whether these precedents should carry significant weight, especially since
they were decisions of the now-defunct Commission rather than full judgments by the Court's chambers.
The Court missed an opportunity in the Refah case to reevaluate whether Turkey's secularism fully
respects human rights.
In terms of limits on political parties, the Court established a dual test: parties can advocate for legal and
democratic change, but their proposed changes must be compatible with fundamental democratic
principles. If a party incites violence or proposes policies that undermine democracy itself, it cannot claim
protection under the Convention against penalties.
A dissenting minority in the initial chamber argued that democracy should allow for diverse political
programs, even those challenging the existing state structure, as long as they do not threaten democracy
itself. This view wasn't reflected in the Refah judgments. The Grand Chamber upheld the earlier
decision's criteria, although some judges noted that advocating for changes in democratic rights and
freedoms shouldn't automatically strip a party of legal protection.
Compared to previous cases, the Refah decision seemed to narrow the scope of permissible policies that
political parties can promote under ECHR protection. Some judges expressed discomfort with this
restriction.
Nevertheless, the Court emphasized that exceptions to freedom of association for political parties should
be interpreted narrowly, giving states only limited discretion. Extreme measures like dissolving a party
should be reserved for the most serious cases, and totalitarian parties posing a threat to democracy could
justify such actions.
The Court concluded that a state has a duty to prevent such interventions if there is an imminent risk to
democracy, based on the collective actions and statements of a party's leaders. The state's intervention
must demonstrate a clear and pressing social need to protect democratic values, considering historical
context and the importance of secularism in the country concerned.
B. Application of the Law to the Facts in Refah
In its judgment on the Refah Party, the European Court of Human Rights made several key findings:
1. Imminent Risk to Democracy: The Court found that Refah posed a significant threat to
democracy due to its growing political influence and its potential to govern alone. This
assessment was consistent with previous cases involving Turkish political parties, although those
parties had not had much opportunity to act before being dissolved.
2. Imputability of Statements and Acts: The Court held that statements and actions by Refah's
leaders, including the chairman and vice-chairman, were attributable to the party as a whole.
Additionally, actions by other party members in government positions were also imputed to
Refah because the party did not distance itself from them.
3. Three Main Concerns: The Court grouped its evidence into three main concerns about Refah:
 o Plurality of Legal Systems: Refah aimed to establish legal systems based on religion,
which the Court found incompatible with the European Convention on Human Rights.
This approach would undermine state guarantees of individual rights and lead to
discrimination among citizens.
o Introduction of Sharia Law: The Court firmly stated that Sharia law contradicts
fundamental democratic principles. It noted that Sharia is rigid and does not allow for the
evolving freedoms typical of democratic societies, particularly concerning criminal
justice, women's rights, and public and private life.
o References to Jihad and Violence: Some Refah members mentioned "jihad" in
speeches, which the Court interpreted as a call to holy war or violent struggle to impose
Islamic dominance in society. The Court criticized Refah for not clarifying these
statements, leaving ambiguity about their stance on violence.
4. Conclusion on Refah's Policies: Based on these findings, the Court concluded that Refah's long-
term agenda involved implementing a Sharia-based regime alongside multiple legal systems and
potentially resorting to force to maintain this system. Given the incompatibility of these plans
with democracy and Refah's realistic chances of implementing them, the Court agreed that the
Turkish Constitutional Court's decision to dissolve Refah met a pressing social need.
5. Proportionality of Measures: The Court also determined that dissolving Refah was not
disproportionate to the aims pursued. In other words, the dissolution was necessary to protect
democracy and did not violate Article 11 of the European Convention on Human Rights, which
guarantees freedom of association.
Criticism of the Court's Decision:
Some critics argue that the Court's conclusions were based on problematic assumptions about Islamic law
and Muslim history. They believe the Court unfairly generalized Muslim beliefs and overlooked the
diversity of Islamic thought, focusing too heavily on views held by a fundamentalist minority.
Additionally, concerns were raised about the Court's handling of sensitive religious issues and its missed
opportunity to analyze the concept of legal pluralism in greater detail. Judge Kovler's concurring opinion
expressed worries about the Court's straightforward approach to complex religious matters and its
potential impact on the rights of Muslims under the European Convention.
In summary, while Refah's dissolution could arguably have been justified based solely on provocative
statements by its members and Turkey's history of political violence, the Court's decision was based on
broader concerns about the party's agenda and its potential impact on democracy. This approach has
significant implications for the protection of religious freedoms and the interpretation of democratic
principles under European human rights law.
III. Prescribed by Law?
Before considering whether the Turkish Constitutional Court's actions were necessary in a democratic
society, the European Court of Human Rights examined whether these actions were legally justified under
Turkish law.
Background on Turkish Law:
Under Article 69 §4 of the Turkish Constitution, the Constitutional Court can dissolve a political party if
it acts as a "center" against the fundamental principles of the Republic, such as secularism (Article 69 §6).
However, a loophole in Turkish law complicated this process. The law required the State Counsel to
permanently exclude party members convicted of anti-secular activities. But since the relevant criminal
law was repealed in 1991, no members could be convicted under this charge. Therefore, the State Counsel
couldn't initiate dissolution proceedings against Refah based on anti-secular activities.
Closure of the Loophole:
Just a week before the European Court's judgment on Refah, the Turkish Constitutional Court declared
this part of the law unconstitutional. This move closed the loophole, allowing the Constitutional Court to
dissolve Refah as a center of anti-secular activities.
Legal Issues Raised:
This raised concerns about legality and due process. It appeared that Refah couldn't foresee the legal
consequences of their actions because the law changed during their case. This retroactive application of
law could be seen as violating the principle of legality, especially given the military's apparent influence
in removing Refah from politics.
Court's Analysis:
During the initial hearings, Refah's applicants reluctantly agreed that their party's dissolution was
"prescribed by law." However, the Grand Chamber of the European Court revisited this issue. It
acknowledged the legal changes and the resulting inconsistency between statutory law and the
Constitution. Despite this, the Grand Chamber concluded that Refah's leaders, being experienced
politicians and lawyers, could reasonably foresee this outcome.
Constitutional Authority vs. Practice:
There's a debate whether a constitutional provision mandating party dissolution requires actual
implementation. In some cases, such provisions may remain dormant without parties being dissolved. The
legal changes in Turkey aimed to strengthen democracy and human rights by decriminalizing anti-secular
acts and limiting state interference in party affairs.
While some argue that parties with anti-democratic aims should only be dissolved if members commit
criminal acts, others see this as too stringent. Preventing party dissolution based solely on acts against
secularism could be a positive step toward protecting freedom of belief and expression.
IV. Conclusion
Over the years, the European Court of Human Rights has tried to find a balance between respecting
national sovereignty and enforcing European human rights standards. It has developed the idea that states
should have some leeway, known as a "margin of appreciation," in how they apply these standards. This
means that national authorities, being closer to the issues, are often better suited to decide on specific
rights restrictions in their countries. Critics, however, argue that expanding this doctrine has sometimes
led to too much deference to states, potentially undermining individual rights when they are most
vulnerable.
In the Refah case, the Court reaffirmed that while states have limited leeway in dissolving political
parties, it also acknowledged that national authorities may have a broader margin of appreciation. This
was evident in how the Court respected Turkey's view on secularism, its interpretation of Refah as a
threat to democracy due to its religious leanings, and its handling of due process issues. The Court's
approach might stem from a lack of familiarity with political Islam and a belief that Turkish judges were
better equipped to understand concepts like sharia and jihad. However, many argue that such sensitive
issues require closer scrutiny independent of national biases.
The Court's rulings on Islamic matters, as seen in the Refah case, are now part of European human rights
law. This raises concerns about whether European Muslims can fully enjoy their political freedoms
equally. Compared to earlier cases, the Court has set a stricter standard on what policies political parties
can endorse, regardless of their ideological leanings. Whether this signals a broader trend toward stricter
oversight of political parties remains to be seen.
In summary, the Refah case underscores the challenges in balancing state sovereignty with human rights
protection under the European Convention. The Court's decisions reflect ongoing debates about how
much discretion states should have in limiting rights and the implications for individual freedoms across
Europe.