In contemporary Europe, the protection of religious minorities continues to rest predominantly on the constitutional architecture of religious freedom and non-discrimination. Yet this framework, shaped by the secular orientation of the state and the presumed uniformity of its legal order, often proves insufficient to capture the specific vulnerabilities and identity-based claims of minority communities. Therefore, legal systems that proclaim neutrality and equal treatment may struggle to provide effective safeguards in practice.

Protecting minorities therefore requires more than balancing rights. It demands recognising the specific forms of vulnerability produced by their social and constitutional position. Bridging this gap requires a legal and theoretical shift, one that brings religious freedom into dialogue with minority-rights principles and develops tools capable of responding to the real needs of minority communities.

Identity and diversity

We live in a moment in which both the rights of religious minorities and religious freedom itself are threatened by the resurgence of nationalist or populist tendencies, often justified by appealing to the role that a specific religion is claimed to have played in shaping a people’s identity and culture (Ferrari 2021).

Today, the European debate on religious minorities and religious freedom focuses primarily on questions of identity and, more specifically, on the majority’s fear of losing its own identity in the face of the cultural and religious diversity accompanying migratory flows (Hopmans 2023). The concerns voiced by public opinion and by parts of the political spectrum have led several European legal systems to adopt restrictive legislative and judicial measures targeting religious practices typically associated with minority faiths. Although these measures may appear neutral, their practical application inevitably produces a discriminatory impact on the lives of minority-community members.

In an increasing number of cases, appeals to religious freedom have been overshadowed by a cultural conception of religion. It is indeed difficult to argue that measures such as bans on the construction of minarets, the growing restrictions on the display of religious symbols, or proposals to limit the Muslim call to prayer are grounded in a legitimate limitation of religious freedom. Rather, these measures appear to rest on cultural and ideological considerations.

Undoubtedly, the religious dimension is one of the oldest aspects of diversity, and it has recently re-emerged as a focal point within the evolving discourse on religious freedom. Religious diversity inevitably pushes the liberal democratic state to re-evaluate its inherent position of neutrality and challenges the ethnocentrism typically associated with Western societies in defending their essential religious and cultural traditions. Confronted with increasing religious diversity, the legal systems face the challenge of finding new, tailored mechanism for accommodating it, keeping in consideration the principles of non-discrimination, reasonableness and equality. This is particularly evident in the case of the European Islamic minority.

It is widely recognised, secular European states are not unfamiliar with the religious phenomenon and generally express a value system that is explicitly or implicitly aligned with the framework of values promoted by the dominant religion (Nieuwenhuis 2012). The separation between state and religion gradually took shape on the assumption of a broadly homogeneous religious landscape within the national community. A form of religious monism that time, demographic change, and migratory movements have since fractured. Consequently, the protection of religious minorities has become one of the most contentious issues in the evolution of the European Union’s law on religious freedom.

Religious minorities in EU law

Within the EU’s political and legal framework, religious minorities are addressed only implicitly. Unlike other minority groups, their protection has developed indirectly, as part of the broader transformation of the human-rights framework in which the right to freedom of religion is situated.

Although Article 10 of the EU Charter recognises freedom of thought, conscience, and religion as a fundamental right, the TFEU does not confer a specific EU competence in religious matters, except with regard to the prohibition of discrimination. In particular, the interpretation of the principle of neutrality set out in Article 17 TFEU – which largely leaves decisions in this field to the Member States – makes the asymmetries affecting religious minorities difficult to address in a uniform manner. As a result, the ability of Article 10 of the EU Charter to provide effective protection is significantly weakened. Article 17 TFEU should, in fact, be balanced with the obligation imposed upon Member States to respect religious rites and cultural traditions under Article 13 TFEU, and the recognition of minority rights as a value of the Union under Article 2 TEU.

The Court of Justice’s interpretation of Article 10 of the EU Charter is likewise marked by a restrictive approach, favouring a model of formal equality at the expense of the substantive equality of minority groups, whose position is structurally more vulnerable within contemporary European social and legal contexts. The Court has addressed the religious rights of minorities only indirectly, for example when assessing whether an employer’s ban on wearing religious symbols amounts to direct discrimination on grounds of religion. In this regard, the Court has held that a prohibition on wearing any visible form of political, philosophical, or religious expression in the workplace may be justified by the employer’s interest in presenting a neutral image to clients or in preventing social conflict. However, such justification must correspond to a genuine need on the part of the employer. In balancing the rights and interests at stake, national courts may take into account the specific context of their Member State and, in particular, any domestic provisions that offer stronger protection for religious freedom.

The Court has therefore adopted a deferential stance towards national neutrality policies, relying on a notion of neutrality as “equal treatment for all”. Yet this approach, although it duly acknowledges the notion of indirect discrimination, overlooks the disproportionate effects such measures may have when the display of a religious symbol is unavoidable, as in the case of Muslim women, and, more broadly, on members of non-majority faiths. This reveals an understanding of religious freedom that fails to account for the real social impact of such restrictions. It appears also insufficient to capture the specific nature of minority religious identities, which require not only freedom from interference but also the structural conditions necessary for substantive equality.

The jurisprudence of the Court of Justice mirrors, in principle, the case law of the European Court of Human Rights under Article 9 ECHR. Given this approach and considering that most European constitutional systems contain no specific provisions on religious minorities, it is legitimate to ask why European states have created dedicated protections for ethnic, national, and linguistic minorities but not for religious groups, who remain confined to the general framework of religious freedom (Henrard 2011). An even more pressing question is whether the current configuration and interpretation of religious freedom is truly capable of ensuring effective protection for religious minorities.

From a strictly legal perspective, the absence of a specific system for protecting religious minorities can be explained, at least in part, by the convergence between the secular character of the state, the uniformity of state law, and a protection framework centred on religious freedom and non-discrimination. Yet this system appears ill-equipped to address the actual needs of religious minorities, thereby creating a potentially fertile ground for intercultural conflict. It must also be noted that the notion of minority takes the form of a variable-geometry category, shaped by the different forms of affiliation that an individual may hold. This requires a conception of the individual not as an isolated subject, but as a member of multiple social groups, each characterised by its own history, culture, language, and religion. The universal value to be protected is therefore not merely religious freedom in the abstract, but the very existence of this plurality of communities and minority identities, which risk assimilation, if not disappearance, without adequate safeguards (Cavalcanti 2024).

In this context, the application of religious freedom protections can prove particularly complex in practice. While confessional practices are undoubtedly protected by the recognition of religious freedom, it can become challenging for a judge in a secular state, where the principle of separation prevails, to consider an institution or a confessional practice within the context of a dispute. This issue becomes even more complex when the practices that contribute to defining the identity of the group to which the parties belong lie midway between the cultural and religious spheres. This makes it difficult to determine the extent to which a given behaviour derives from religious sources or traditional ones, or how much the cultural aspect influences the interpretation of a religious norm and vice versa (Cavalcanti 2024).

In cases where culture and religion tend to overlap, as in the case of Muslim minorities, the different legal treatment of religious and cultural practices risks creating situations of disparity and different outcomes depending on whether the judge, faced with practices difficult to classify, chooses to categorise the behaviour in one category or the other. This has inevitable negative consequences on the principle of substantive equality. The issue of the relationship between religious identity and cultural identity gains further significance when considered in the context of a multicultural society where different value systems coexist. Societies, although at the peak of the secularization process, are permeated by religious claims.

The system of protections offered by fundamental rights in general, and by religious freedom in particular, as currently interpreted, does not appear sufficient on its own to safeguard religious minorities. The special vulnerability of these groups, especially with regard to identity rights and substantive equality, is not met with appropriate protection. A protection that need not be absolute, but reasonable and proportionate within the limits of the constitutional principles of the legal order (Schnabel 2019).

One of the central challenges in protecting religious minorities is therefore the identification of their real and specific needs and balance them with the fundamental principles of the legal order. This requires creating a synergy between religious freedom and religious identity, fostering a dialogue between the paradigm of fundamental rights and the more specific framework of minority rights.

Conclusion

What distinguishes minority rights from universally recognised human rights is the emphasis placed on the development of communities and the cultural identities tied to them. Whereas religious freedom presupposes the existence of religious communities within which individuals may practise their faith; minority rights identify the very existence of those communities as the object of legal protection. The key to enabling a synergy between the two frameworks lies in their shared collective and institutional dimension.

Minority rights could enrich religious freedom by incorporating the right of minority religious groups to participate in decision-making processes that affect them. At the same time, the core elements of religious freedom, such as the individual’s freedom to choose, change, or abandon their faith, become essential to a proper understanding of the rights of these minorities. The protection and development of the identity of religious minorities represents a means of strengthening religious freedom for all, for the latter is indivisible, and a society in which only religious majorities are free is not one that truly respects freedom of religion. It is therefore necessary to seek legal solutions capable of providing common ground for dialogue between minority groups and the state. The adoption of specific measures aimed at ensuring adequate conditions for the development and protection of religious minorities, measures that go beyond what follows from religious freedom alone, transcends the interests of minority groups and ultimately concerns the interests of each one of us.