Religiös pluralism eller sekularism i skolan? - Om den rättsliga avvägningen mellan positiv och negativ religionsfrihet

Sammanfattning: In Sweden, there has been a tolerant attitude towards religious manifestations for a long time. However, the topic of prohibition of the Muslim headscarf arises in the public debate now and then. I the county of Skurup, a ban on the Muslim headscarf was recently voted through. The county board referred to the European Court of Human rights who have allowed bans on Muslims headscarf in multiple cases. The politician Johan Bolinder said that the practice of the Court shows that the right to practice one’s religion is subordinate the right to not have religion forced upon you. The essay aims to examine what the European Court of Human rights have said regarding the balancing between the right to practice ones’ religion and the right to live without it, also known as the positive and the negative freedom of religion. It also examines what kind of circumstances that allows restrictions of the freedom of religion. Simultaneously, a presentation of the negative freedom of religion in Sweden is made to illustrate potential differences. The essays also aim to examine if the balancing practice in Swedish courts potentially could be influenced by the practice of the European court. When it comes to the legal status of the European convention of human rights in Sweden, the opinions among experts seem to differ. It is also unclear which importance the cases from the European court should have in Swedish legal life. As the thesis shows, the negative freedom of religion in Sweden can only be invoked towards the state. There is also a strong national legislation when it comes to discrimination, which is sometimes hard to reconcile with some of the statements made by the Court on the topic. At what extent the Courts practice should affect Sweden is mainly up to Swedish judges to decide.