Swiss swim case gives plenty of cause for concern

‘ This is not a legal declaration, but a political one

This month, the European Court of Human Rights issued a ruling on swimming. Yes, it was about swimming – a Swiss Muslim couple wanted to take their two girls out of mixed swimming lessons, but the school rejected their request and after a lengthy legal battle, the case landed in the ECHR. The ruling is interesting in itself, but the responses from both Muslim and non-Muslim quarters were particularly instructive. A number of Muslims in Europe and elsewhere expressed disappointment that the case had gone to the ECHR in the first place. They believed that there was no need to escalate it to this level. However, not all had the same reasons for this stance.

Some argued that the European court had an unenviable track record on dealing with cases related to Muslims' religious freedom. Considering cases such as the decades-long headscarf ban in Turkey that ended in 2013, such an objection was not without basis. Others said that the school had already made a relaxation as it allowed for a burqini to be worn by the children in question. That is compounded by the fact that the children in question were only 8 and 11 years old. Therefore, even by the standards of conservative Islamic law, they wouldn’t have been obliged to cover. Outside the Muslim community, many took the oft-repeated line of argument insisting that this was yet more evidence that Muslims in Europe could not be integrated into society and their conservative lifestyle was essentially a threat to Europe. Indeed, many indicated on social media that if the Swiss couple didn’t like the ruling, they should “go back to their country” – wherever that is supposed to be.

It is an extraordinary episode. On the one hand, it was clearly unwise to take the case to the ECHR. The couple had been offered a compromise and it was a compromise that, in itself, was fair, considering the ages of the girls.

But even if the couple were unwise in taking the case to the ECHR, that ought not have resulted in much of the content in a ruling of this nature. The verdict stipulated that “school played a special role in the pro- cess of social integration, particularly where children of foreign origin were concerned”. It also noted the school was “facilitating their successful social integration according to local customs and mores”.

That is not a legal declaration, but a political one. The definitions of “social integration” or “local customs and mores” were not specified in the ruling, nor could they be as they are not defined anywhere. The court should have remained committed to upholding purely the law instead of delivering such a deep political statement that has wide-ranging consequences. That's because it basically stipulates that if a school, a state or a court decides that “social mores” are being contradicted, then there can be legal intervention to uphold those “social mores”. That’s a highly invasive way for a state to govern society, and it isn’t one that we ought to view passively.

The irony of this case is that while the couple might have been unwise to take the case to court, they did show their Europeanness by taking it to the highest court on the European continent, recognising its authority and probity – that too at a time when other European countries, such as the UK, have high-ranking politicians arguing for an exit from the European court’s authority. Didn’t that very act of the Swiss couple prove their commitment to European institutions? Perhaps the most uncomfortable part of this case is the reaction from a section of society raising questions about the couple’s right to be considered European.

If the couple were orthodox Jews or conservative Catholics or followers of any other conservative faith, they would have perhaps raised a similar objection to mixed swimming classes. In that case, would they have been urged to leave Europe? Of course not. Surely, this issue wouldn’t have even been raised.

Is that the European value we are supposed to read from this case? That one can be somehow expelled from the European family just on the grounds of being a Muslim and conservative, even if that conservatism is similar to others belonging to other faith communities? Is this what a liberal political order in Europe in 2017 is supposed to uphold, when “social mores” are defined by the actions of a section of society, while others are permitted to stray from the majority without having their citizenship called into question?

Those are far more pertinent questions for Europe than those regarding mixed swimming lessons for children. It hits at the root of what it means to be European in 2017, against the backdrop of a growing anti-Muslim populism across the continent. We ought to be concerned about that.