Freedom of Religion, the ECtHR and Grassroots Mobilization on Religious Education in Turkey

Abstract

This paper examines grassroots mobilizations in Turkey against the government's policies on religion and education (RE), and the potential effects of the European Court of Human Rights (ECtHR or the Court) on their mobilization. Specifically, it follows the ways in which grassroots actors frame their discourses of secularism and freedom of religion in education during a period when the Turkish government is aiming to increase the role of Sunni-Islam in national education, while at the same time refusing to implement ECtHR decisions regarding RE. Drawing on empirical research, it analyzes the role the ECtHR and its case law play in the diverse rights claims and discourses of three different types of mobilizations that is going on in the field of RE: (i) legal mobilization, and right to exemption and freedom from religion, (ii) political mobilization, and new discourses of pluralism and secularism, (iii) monitoring and policy-based mobilization and national and international advocacy for pluralism and equality in education.

INTRODUCTION

This paper examines grassroots mobilizations in Turkey against the government's policies on religion and education (RE), and the potential effects of the European Court of Human Rights (ECtHR or the Court) on their mobilization. Specifically, it follows the ways in which grassroots actors frame their discourses of secularism and freedom of religion in education during a period when the Turkish government is aiming to increase the role of Sunni-Islam in national education, while at the same time refusing to implement ECtHR decisions regarding RE.

The issue of RE in Turkey has primarily appeared as an issue of the place of compulsory “Religious Culture and Moral Knowledge” classes (Din Kültürü ve Ahlak Bilgisi, hereafter religion and ethics classes or DKAB) since their inclusion in the primary and secondary school curriculum as compulsory classes after the 1980 coup d’état. The classes have been criticized for imposing Sunni-Muslim faith in national education, and especially for discriminating against the Alevis of Turkey, the largest non-Sunni denomination in the country.¹ As it will be detailed later, the ongoing predicament of the Sunni-Islamic bias of religious instruction in Turkish schools, and lack of a non-discriminatory exemption mechanism for Alevi students provided by Turkish law took the center stage in legal mobilization both in national courts and in the ECtHR. Compulsory religion class has been the subject of two ECtHR cases, Hasan and Eylem Zengin v. Turkey in 2007 and a second case, Mansur Yalçın and Others v. Turkey in 2011, and in both cases the Court ruled in favor of the applicant parents.

Since the early 2010s, however, a series of policy changes characterized a sharp turn in the Justice and Development Party's (AKP) policies regarding the management of religion, raising crucial questions about religious pluralism in the country. The AKP government did not implement the ECtHR's Turkey-related rulings, which was seen as a sign of the government's diminishing willingness to conform to international treaties and court decisions. In this political context, issues regarding the role of religion in education extended well beyond the discrimination against minority faiths in DKAB classes. The growing role of Sunni Islam in national education (Kaya 2015) was taken as a sign of diminishing commitment to pluralism and freedom of belief in education that effected different segments of the Turkish society.

This paper draws on an empirically grounded analysis of the extent and limits of the ECtHR's effects on recent mobilizations in the field of education within this wider context of diminishing commitment for religious pluralism. It does so by reconsidering two literatures. The literature on the ECtHR's Turkey-related judgments is mainly limited to their “direct” effects on democratization and the policy-making processes in the country (Özbudun 2007; Ulusoy 2011; Grigoriadis and Gürcel 2012), especially the government's implementation of its decisions and how implementation should be advanced (İçduygu 2011; Özbudun and Türkmen 2013). Unquestionably, this literature provides useful insights into the period of political, in Turkey's accession process to the European Union (EU). Yet, in the current political context where the momentum of political reforms, particularly in the field of human rights, has turned into an opposite force of oppression and authoritarianism in Turkey, we need to reconsider the effects of the ECtHR on freedom of religion in the country. Limiting our attention to the direct effects of the Court and the government's implementation of its decisions misses the grassroots actors’ efforts for advancing religious pluralism.

As part of a special issue, this paper also builds on the socio-legal scholarship that tries to understand the “radiating effects” (Galanter 1983) of the Court's decisions beyond the courtroom, where these decisions serve as messages beyond the limited circle of litigants (Levitsky 2015; Fokas 2017).² By focusing on the grassroots actors’ strategies and discourses, this literature analyzes the different messages that courts’ decisions emanate for the mobilizations on the ground. Accordingly, legal decisions do not necessarily just affect grassroots actors by directing their rights claims towards formal court settings; they also change how social actors perceive their rights and articulate their claims in a given subject area. Through this process of “rights consciousness raising” (McCann 2004) social actors capitalize on the success of particular legal developments to nurture political mobilization and initiate social change.

This paper shifts the analysis from this literature's emphasis on the effects of court decisions on actual social change, to the ways actors perceive and utilize the ECtHR's judgments to sustain and expand grassroots mobilization during a period of reversal of pluralistic policies and refusal to implement ECtHR decisions. It argues that an analysis of indirect effects of the Court is significant, as it demonstrates both the opportunities and constraints the ECtHR's case law provides to the actors in their struggle over framing rights and redefining religious liberty against the government's anti-pluralistic education policies in Turkey today. To analyze the radiating effects of the ECtHR on grassroots mobilizations in RE, this paper asks two related questions: To what extent do the Court and its jurisprudence on RE play a role in grassroots actors’ definitions of pluralism and secularism in a changing climate for state and religion relations in the country? What is the impact of the Court, if any, on the grassroots actors in their efforts to utilize political and legal opportunity structures and build an incentive to mobilize in favor of religious pluralism?

The discussion draws on empirical research conducted in Turkey between 2015 and 2017, coupled with a discourse analysis of the key documentation by grassroots actors relevant to education and religion. The empirical research consists of in-depth interviews with grassroots activists, trade union members and representatives, religious minority and belief group representatives, NGO experts, and human rights lawyers. The interview questions examined the degree of national actors’ awareness of ECtHR religious freedoms jurisprudence and the extent to which they incorporate the Court's case law into their rights struggle.

The paper starts with a discussion of the historical and legal background of compulsory religion classes in Turkey and the AKP government's policies on religious pluralism and democratization in the EU accession negotiations. The next sections discuss the two Turkey-related ECtHR judgments, Eylem Zengin and Mansur Yalcin, in the wider context of the consolidation of AKP's conservative and nationalist religious identity.

Following these contextual sections, the findings of the empirical research are discussed in order to introduce important institutional actors and explore the role the ECtHR and its case law play in their diverse rights claims and discourses in three different types of mobilizations that are going on in the field of RE: (i) legal mobilization and the right to exemption and freedom from religion, (ii) political mobilization and the new discourses of pluralism and secularism, (iii) monitoring and policy-based mobilization and national and international advocacy for pluralism and equality in education.

The section on legal mobilization discusses the importance of the ECtHR and its jurisprudence on legal mobilization for the right of exemption in two related ways: First, as providing legal opportunity structures for atheist parents and, second, together with the Convention, offering the parents and their lawyers a “European standard” of pluralism. The next section analyzes political mobilization against the government's policies on RE in particular and its diminishing commitment to secularism in general. First, it explores reformulations of pluralism and secularism in the field of political mobilization. Second, it analyzes how the grassroots actors utilize non-implementation and strategic interpretations of the Court's rulings as a political opportunity structure to build an incentive to mobilize in favor of religious pluralism. The monitoring and policy-based mobilization section focuses on how these organizations reporting on and monitoring of ECtHR judgments has also served as a further political opportunity structure to create a rather vibrant field of NGO activity that is based on expert knowledge and practice, and has facilitated grassroots intervention on the decision-making processes of parental rights and equality in education.

RELIGIOUS EDUCATION AND TURKISH LAW

Notwithstanding different religious traditions and historical contexts, religious education occupies a contentious space within the national education system of the modern nation-state and is under state supervision (Hunter-Henin 2012). Turkey is no exception to this norm. Since the founding of the Republic of Turkey in 1923, the project of creating a homogeneous nation-state with one language, one religion, and one ethnicity meant state efforts to control several aspects of cultural, ethnic and religious identities and beliefs. The Kemalist version of secularism (laiklik) aimed to enforce unity specifically through state regulation over many aspects of religion. Turkish secularism focused particularly on transferring religious authority from multiple religious institutions and groups to the state's regulation (Gözaydın and Öztürk 2014; Özgül 2014). As Davison and Parla (2008) argue, Turkish state secularism “used and manipulated religion in the correct Kemalist Sunni Orthodox version of Islam for their purposes.”

Immediately after the foundation of the Republic, all educational establishments in Turkey came under the regulation of the Ministry of National Education as part of the Kemalist secular reforms.³ In 1924 the Turkish Parliament passed a law on the “Unification of Education” (Tevhid-i Tedrisat), which banned all religious schooling and teaching of religion outside of the state's formal education system. With this law medreses (religious schools) were closed and mekteps (secular schools) were declared the only institutions of education (Bayar 2009).⁴

The only exception to this law, which is still in force, is the right of Jewish, Armenian (Apostolic, Catholic and Protestant denominations) and Greek Orthodox (Rum) communities to establish their own “private” community schools; this right is safeguarded by the Treaty of Lausanne of 1923.⁵ Children enrolled in the community schools managed by Lausanne minorities have their own religion classes, which are regulated by the highest religious authority of the respective community.

The status of the religious education course in public education has been altered many times since the foundation of the Republic. After the 1980 military coup the policies regarding absolute state control over religion and religious education, dating back to the establishment of the Republic, entered a new phase when the military regime put a strong emphasis on Sunni Islam in order to impose social cohesion through religion. This policy of the military with respect to religion came to be known as the Turkish-Islamic synthesis (Türk-İslam sentezi).⁶ The initiatives carried out by the military government in the early 1980s aimed to re-integrate religion into the Turkish education system.⁷ The Constitution of 1982, prepared by the military regime and still in force, introduced religion classes into the curricula of primary and secondary schools with content determined by the Ministry of National Education's Department of Religious Instruction. The relevant constitutional article (Article 24) forms the basis of the debates about the constitutional obligation for and the legal basis of the Religious Culture and Ethics Knowledge (DKAB) courses today.⁸ In Paragraph 4, the article states:

Education and instruction in religion and ethics shall be conducted under state supervision and control. Instruction in religious culture and moral education shall be compulsory in the curriculum of primary and secondary schools. Other religious education and instruction shall be subject to the individual's own desire, and in the case of minors, at the request of their legal representatives.

Meanwhile, Article 12 of the Basic Law of National Education also provides:

Secularism shall be the basis of Turkish national education. Religious culture and ethics shall be among the compulsory subjects taught in primary and upper secondary schools, and in schools of these levels.”⁹

Here then the Turkish state went from not including religion courses in the curriculum at all, to making them mandatory. As expressed in the above-cited article, the Turkish Constitution of 1982 perceived compulsory religion classes as an important part of Kemalist secular control over religion (Kaplan 2006). This constitutional regulation of religious education brought changes to the organization of the course; after the above-mentioned change, all school children were required to take religion classes from the fourth to the twelfth grade (Kaymakcan 1997).¹⁰ The name of the compulsory religion class, Religious Culture and Ethics Knowledge (DKAB), is also the product of this era.¹¹

Thus we can argue that state's policies to include religion in the national curriculum do not operate with a pluralist concern on education that is based on the religious and ethnic diversity of the Turkish society. On the contrary, the military government made religious education compulsory for all students to teach them the state-sponsored interpretation of the majority religion, Sunni-Islam. Information on other religions and sects, most importantly on Alevism, was included in the textbooks (or excluded from them) based on this perspective.

One related issue to this state-sponsored “Turkish-Islam” interpretation regarding DKAB class is the lack of an exemption mechanism provided by Turkish law; accordingly, all students are de jure required to attend these courses. The only exception is for Lausanne minority children, i.e. Armenian, Greek Orthodox, and Jewish students; the Ministry of Education set out in several circulars to the schools that, should the pupils belonging to these communities decide to attend Turkish primary and secondary schools instead of their community schools, they are exempt from religious instruction upon declaration by the parents that they are adherents of the minorities in question.¹² In 1990, the Supreme Council for Education introduced a regulation establishing the right to exemption for all Christian students, with the effect of extending the exemption from RE to groups outside of Lausanne religious minorities, such as Turkish Protestants and Jehovah's Witnesses.¹³ Nevertheless, children from the non-recognized religious and ethnic groups, such as Alevis, Bahais, Yezidis, or atheists and agnostics, do not have the right to ask for an exemption.

EU ACCESSION REFORMS AND AKP'S EARLY POLICIES ON RE

The Justice and Development Party (AKP) was elected as the government in 2002 and the beginning of the Party's power led to wide-scale changes in the national legal system. In the wider context of the EU accession, the AKP government initiated many reforms that aimed to change the political and legal system in the country. Here a brief overview of Turkey's now failed EU accession process is in order, to place AKP's legal reforms in the wider European context. Turkey has been a member of the Council of Europe since its establishment in 1949¹⁴ and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Protocol No. 1 in 1954. In 1987, the Turkish government made a formal application for membership to the EU. In 1999, Turkey officially gained EU candidate status. As maybe the most important legal development for our purposes here, the Turkish government accepted the right of individuals to petition the ECtHR in 1987, and Article 90 of the Turkish Constitution on the force of international agreements was amended in 2004 so as to give the ECHR and the case law of the ECtHR direct effect and supremacy over national law. As such, compliance with the ECtHR rulings was an essential condition for Turkey's eventual membership in the EU (Smith 2007). In this process, the Court has also “provided a blueprint for normative change” (Özbudun and Türkmen 2013, 986), and most of its rulings were followed by reforms undertaken by the government.

The EU's minority protection conditionality for accession has obliged Turkey to undertake a series of legal reforms with the purpose of fulfilling the Copenhagen political criteria.¹⁵ All EU reports from the Commission of the European Communities since 2005 have addressed Turkey's compliance and the problems based on the criteria, including issues around the DKAB classes. During its first term (2002–2007), AKP initiated consecutive reform packages, mainly aimed at making Turkish legislation compatible with the EU norms and accession reports (Çarkoğlu and Bilgili 2011; Özbudun 2007). In its first term, AKP framed its policy aims as the democratization of the country's legal system and the support for religious pluralism by a re-interpreting secularism as “separation of religion and state” as opposed to “state domination of religion” (Kuru 2009).

HASAN AND EYLEM ZENGIN V. TURKEY: THE ECTHR'S PERSPECTIVE ON COMPULSORY RELIGIOUS EDUCATION

The ECtHR's Zengin v. Turkey (2007) ruling coincided with the start of AKP's second term in office (2007–2011). RE became an especially contentious issue during this period when the ECtHR emerged as one of the most important drivers of legal reform (Keyman and Önis 2007). The discrimination Alevis face as a non-Sunni minority in the country, which was also pointed out in the Commission's reports, was at the center of the RE-related litigation in the ECtHR.

Zengin focused mainly on the Turkish national courts’ denial of exemption from the compulsory religion class for a secondary school student of Alevi faith. Before the Court, Eylem Zengin, the student in the case, and Hasan Zengin, her father, claimed that the classes in religious culture and ethics were not conducted in an objective, critical or pluralist manner. The parent asked for an exemption for his daughter based on the discrimination of Alevis and the Sunni-Muslim character of the classes.

The chamber of the ECtHR ruled that Turkey's insistence that the claimant attend compulsory religious classes violated Article 2 of Protocol 1 to the Convention, holding that the content of these classes failed to meet the criteria of objectivity and pluralism necessary for education in a democratic society and for pupils to develop a critical mind towards religion (Yıldırım 2016).¹⁶ Notably, the Court chose not to review the applicant's claim under Article 9.

The Zengin judgment of the ECtHR, together with Folgero and Others (2007), has been counted among the “major developments in the human rights jurisprudence concerning religious education in state schools in Europe” (Leigh 2012), addressing key controversies about the rationale of religious education such as the status of minority religions, the rights of parents, and opt-out mechanisms. Both these cases have been important in the development of the ECtHR's case law on the parental right to religious education or exemption form religious instruction in majority religion. In Folgero and others v. Norway the Court found that the system of partial exemption in the Norwegian case (wherein the parent could be required to reveal sensitive information about their personal beliefs) was insufficient and the information and knowledge in RE was not conveyed in an objective, critical and pluralistic manner (Article 2 of Protocol 1) (Özenç 2008). Similarly, in its 2007 Hasan and Eylem Zengin judgment, the Court held that the mandatory religion courses violated the right to education on the ground that their content-matter failed to meet the criteria of objectivity and pluralism necessary for education in a democratic society and for pupils to develop a critical mind towards religion.

After the Zengin judgment, the AKP government made a change to the curriculum to include information about Alevism, effective from the 2007 to 2008 school year (Türkmen 2009).¹⁷ Later, in 2011, the Turkish Ministry of Education revised the textbooks for the class again, removing derogatory statements about non-Sunni Muslim religions and including new sections on Alevi traditions.¹⁸ The new textbooks were circulated during the 2012–2013 school term (Meral 2015).

Despite the changes to the curriculum, the course remained compulsory and proper mechanisms for opting out were not employed. As we will see below, the effects of the ECtHR case law's message were heavily circumscribed by this national context of the government's changing approach to freedom of religion and religious pluralism. The next section discusses this recent phase of AKP's policies on RE in general, and responses to the ECtHR in particular, in relation to the Court's second judgment, Mansur Yalcin (2014).

RELIGION IN THE NEW NATIONAL EDUCATION SYSTEM

During its second and third terms in power (2007–2015), AKP consolidated its conservative nationalist religious identity and switched from its previous liberal policies on religious pluralism to “state domination of religion” and Sunni-Muslim dominance (Kaya 2015; Somer and Glüpker-Kesebir 2015; Yıldırım 2014). The most relevant of these, for the context of the analysis of the governing party's changing position on secularism and religion, was the amendment of the national education system through the promulgation of the new Education Law in April 2012.¹⁹ The new system stirred heated debates among educational policy experts, scholars, and the government authorities about the future of public education in the country. The education reform, popularly known as the “4  +  4 + 4 system”, divided national education into 4-year chunks for elementary school, middle school and high school, and made education mandatory through the 12th grade. In particular, the opening of many additional secondary schools for training Sunni clergy (İmam Hatip schools) under the new system initiated strong criticism, especially since the government increased the number of these religious schools to make them the main option for students of lower-middle-class families instead of regular public schools (Özgür 2015). In the meantime, in regular middle schools, under this new system students receive 1–2 h of religious education every week in 9 of their 12 years of schooling. Also, in 2012 two elective courses for grades six to eight, Civic Education and Agriculture, were removed from the curriculum, while three religion-based elective courses were introduced: Quran, Prophet Muhammad's Life, and Fundamentals of Religion (Kaya 2015).

In February 2014, the 19th Educational Committee (Eğitim Şurası) under the Education Ministry approved the compulsory religion classes starting from the first grade in elementary schools (Bianet 2014). Moreover, in 2015, a memorandum by the Education Ministry instructed all schools that only children whose national identity cards state that they are Jews or Christians are exempt from the compulsory religion classes. This memorandum closed the way for atheists, Alevis and other non-Sunni Muslims, Bahais, Yezidis, or those who left the religion section on their national identity card blank to demand exemption from school administrations, and left litigation as the only way to acquire an exemption from compulsory religion classes.²⁰

The government's moves regarding religion in education also included relaxing the headscarf ban in public schools. In 2008, the government lifted a ban on headscarves for state university students and female civil servants. This ban on headscarves was previously the topic of the seminal ECtHR case Sahin v. Turkey in 2004.²¹ In 2014, the Turkish government amended the law that regulated the dress code in the country's middle and high schools –– grades five through twelve. The amended regulation previously stated: “Inside school premises, students must be bareheaded, hair should be clean and un-dyed, students can not wear makeup nor grow a moustache or beard.” The amendment removed the expression ‘bareheaded’, thus allowing girls from the fifth grade, as young as 10-years-old, to cover their hair in the public schools.²²

MANSUR YALCIN V. TURKEY

The ECtHR's second judgment on DKAB class, Mansur Yalcin and Others v. Turkey ²³ (2014) came during this period of the slowdown of the reform process (Yılmaz 2016). In Mansur Yalcin litigant parents were members of CEM Vakfi (CEM Foundation), an Alevi umbrella organization that had two other successful cases before the Court.²⁴ The litigants based their complaints about the mandatory religious courses on the grounds that they entail a breach of their parental right to choose the education their children receive in accordance with their beliefs. The parents stated that their children were forced to attend “Sunni Islamic classes”, an act in violation of Article 2 of Protocol 1 of the Convention (ECHR). They also framed the issue of exemption as beyond the predicament of individual students and based it on the first protocol of the Convention: the right to education.

In its judgment (2014), the Court acknowledged the changes to the class content made by the Turkish authorities following the Zengin judgment, yet found that the Turkish education system was still not in conformity with the obligation to respect parents’ religious and philosophical convictions.²⁵ The Court concurred that it was a breach of Article 2 of Protocol 1 and asked Turkey “to remedy the situation without delay, in particular by introducing a system whereby pupils could be exempted from religion and ethics classes without their parents having to disclose their own religious or philosophical convictions.”

Turkey appealed to the ECtHR's Grand Chamber, the Court's office of appeal, requesting that the Mansur Yalcin judgment be reviewed. The Grand Chamber, however, rejected the appeal on February 17, 2015, rendering the judgment final.²⁶

The reaction of the Turkish government to the Strasbourg Court's Mansur Yalcin judgment highlighted the fact that in this new era of state-religion relations, AKP's attitude towards international legal instruments had also showed a significant difference from cooperation during the EU accession process. Contrary to the previous reform period, after the Mansur Yalcin ruling, the government authorities made statements indicating clearly that the government will not be making any efforts to implement the judgment. These statements on the Court's Mansur Yalcin judgment reflected AKP's position on two specific issues that characterized the new era of its rule; the first issue was AKP's changing attitude towards ECtHR rulings, and the second one pointed to the growing importance of Sunni Islam in the national curriculum.

In a speech that came one day after the Court's Mansur Yalcin judgment, Turkey's then Prime Minister Ahmet Davutoğlu summarized the government's perspective on the issue. He stated that religious education is a domestic matter of the country and criticized the Court for being against religion in education. Davutoğlu added that compulsory religious courses in Turkish schools are not a form of religious pressure but a way to provide essential background in religion to every student: “It is a requirement for every citizen of this country, even for an atheist, to have knowledge about religious culture.”²⁷

These comments pointed to the significant change towards a more central role for religious education for the young generations, in terms of strengthening the morality and character of the pupils and social cohesion in the country.²⁸ President Erdoğan's statements further supported this perspective. Commenting on the conversion of several regular public schools into Imam schools, Erdoğan stated that the government's main aim is to raise “pious generations” for the country. His claims such as “Drugs to spread if religious courses abolished”, further point to the links the government established between the morality of the students and the government's educational policies which aim to establish religion (Sunni Islam) as a necessary and important part of students’ lives.²⁹ The AKP government's declarations on the necessity of compulsory religion classes for the ethical upbringing of new generations points to the fact that the issues regarding religion extended considerably in national education, and compulsory religion classes became one issue among many in this period. Also, as mentioned above, in 2015 the Education Ministry instructed in a memorandum that only children whose national identity cards state that they are Jews or Christians are exempt from the compulsory religion classes, thus enforcing the discrimination against Alevis and atheists.

In the context of this complex and shifting relationship between state-religion relations in Turkey, the government's reaction to the Mansur Yalcin ruling foregrounds a web of tensions that address religion, education, and pluralism in Turkey. In a national environment where there are serious doubts as to the ability of the domestic legal system to provide an effective remedy for human rights violations in general, grassroots mobilization emerges as a counterpoint to the government's RE policies and the non-implementation of Turkey-related ECtHR rulings on RE. The following three sections discuss the aims and discourses of the actors in three different fields of mobilization and the ways in which they interpret and use the ECtHR in their framing of rights discourses in this new era of state-religion relations.

LEGAL MOBILIZATION: THE RIGHT TO EXEMPTION FOR ATHEISTS AND FREEDOM FROM RELIGION

In Turkey, legal mobilization on RE has been a common strategy for parents to demand exemption from DKAB classes when school administrations deny their applications. As explained in the relevant sections, only students from Christian and Jewish faiths are allowed exemption from these classes, while it is not extended to Alevis or atheists. As a result, legal mobilization emerged as a field for Alevi and atheist families to challenge the state's policies favoring the majority religion, i.e. Sunni Islam, and the discriminatory treatment of minority faiths. Alevi actors were the most visible litigants in this field, with cases in national courts and with two ECtHR rulings regarding Turkey, Zengin and Mansur Yalcin, which both reflected the struggle of Alevi parents against DKAB classes.

The ECtHR has direct and indirect effects on grassroots legal mobilization. Directly, the ECtHR and its case law play an important role in Alevi and atheist families’ mobilization for exemption from DKAB classes due to the Court's supremacy in the national law. Indirectly, its supremacy has further effects on groups beyond Alevis, most importantly the atheists, both in their discourses regarding freedom of religion and human rights, and their incentives for mobilization regarding RE. Mobilization in the legal field expanded considerably when atheist families started to litigate for the right of exemption with the help of the Association of Atheism. In these relatively new legal mobilization efforts of the atheist families that followed Alevi legal mobilization in RE, the ECtHR and the Convention are integrated into the rights claims regarding pluralism in education, expanding the discourses for exemption from respecting minority faiths to freedom from religion.

Here, taking a few steps back and giving an account of how the ECtHR case law's direct effects and supremacy works in national courts, and how it has changed since 2010, is important to understand the Court's radiating effects on legal mobilization. Until the 2000s, the Council of State rejected demands for exemption from the compulsory lessons, on the grounds that the curriculum was in accordance with the Constitution and the relevant legislation.³⁰ The decisions of the first instance courts followed the Council of State's rulings almost without exception and denied an exemption from these classes. This situation changed in 2004 when Article 90 of the Turkish Constitution on the force of international agreements was amended to give the ECHR and its case law direct effect and supremacy over national law. This status of ECtHR jurisprudence changed the judgments of the national courts on exemption cases drastically. Following the ECtHR's Zengin judgment, the Council of State set important precedence in a 2007 judgment in which it repeated the ECtHR reasoning in Zengin, concluding that: “Since lessons of such characteristics cannot be compulsory, respect must be paid to families” faiths” (Altıparmak 2013).³¹ In the same decision, the Council reaffirmed the centrality of the EU human rights system for national education, and stated: “the curriculum should be in line with the Convention and the case law of the ECtHR” (Altıparmak 2013).

After the 2007 precedence that favored families’ demands for exemption, legal mobilization for the right of exemption turned once again into a field where families and grassroots organizations encounter the AKP's policies endorsing a larger space for religion in education. According to the 2008 International Religious Freedom Report by the U.S. Department of State, there were more than 4,000 court cases against the Ministry of Education regarding exemption from compulsory religious education (U.S. Department of State 2008, qtd in Meral 2015). As explained by atheist parents in the interviews, they started to litigate after the Eylem Zengin judgment, and acquired favorable results for their demands of exemption. An atheist parent with such a case for exemption in a administrative court of first instance explained the importance of legal mobilization in these words: “You do not want the state to indoctrinate your kid. And since it is the state that is your opposing party, dealing with the issue in the courts look like the most direct way to challenge the state.”

However, in 2010, the Council of State overturned its 2007 precedent. In the first of a series of decisions that reversed its previous stance on the exemption, the Council stated that the changes made in the course are sufficient to meet ECHR standards and the content of the lessons was now taught as “religious culture and ethics” lessons that are an equal distance from all religions. Its decision deliberated: “(A)s a result of the changes made in the curriculum, instruction on religious culture and ethics in our country is delivered in an objective and rational way,” and thus is “In line with Article 24 of the Constitution that stipulates religious instruction is compulsory.”³² Following this reversal of precedence, previous decisions by the first instance courts have started to be reversed by the Council of State in favor of the school administrations that denied the exemption.

This controversial second precedence of the Council of State³³ paved the way for several contradictory decisions in the first instance courts since 2010. Local courts have had to deal with overturned and new exemption cases and were stuck between the Council's precedence and the ECtHR jurisprudence's supremacy over national courts (Sirin 2016). Some local courts granted exemption citing the ECtHR's supremacy and some denied it based on the Council's 2010 precedence.

Our interviews indicate that Atheist families join Alevis in the national courts to ask for exemption with the help of the Association of Atheism. Established in 2014 and with a few hundred official members, the Association defines itself a “legal institution” that “struggles institutionally against religious, philosophical or ideological constraints imposed over the society; encouraging the free expression of thoughts of Turkish atheists on legal grounds”.³⁴ Further, the Association's website states that it is an active participant in the “Freedom of Religion in Turkey” meetings organized by the EU's Turkey delegation (ibid).

This legal conundrum, together with the government's policies aiming to expand the role of religion in education, increased the anxiety of atheist parents about discrimination in education. During the interviews, many parents expressed distress and explained that they even fear discrimination against their kids in school or losing their jobs, if they go to the court for exemption. According to the representatives of the Association, although hundreds of families consult them about the exemption, the government's attitude results in a general unwillingness to litigate among atheist families.

This environment of a heightened sense of discrimination and mistrust towards national courts provides a legal opportunity structure in which the Association of Atheism finds a voice in the debate on freedom of religion to include demands regarding freedom from religion in the rights struggles around RE. Legal mobilization serves as a platform for the Association to voice their perspective on freedom of religion in this new political era that the Associations representatives described as “hostile” to atheism. They perceive the changes in the government's policies in RE, especially the claim regarding strengthening the morality and character of the pupils with additional religious education, as a direct assault against atheism and non-religion. Therefore, through legal mobilization, they aim to protect the rights of citizens who do not adhere to any religious faith in RE and thus expand the field of rights claims beyond the rights of religious minorities. As one representative stated, their struggle goes beyond asking for recognition of minority faiths in textbooks for the course: “This is not only a problem of the content of textbooks, but the general philosophy of teaching religion in public education.”

The European human rights system plays an important role in the Association's discourse of freedom from religion against the government's RE policies. Together with the Convention, the Court's case law offers the parents and their lawyers a “European standard” in pluralism against which to assess the Turkish government's policies of state-sponsored compulsory education of majority religion. The European Convention is especially central in the petitions the Association's legal counselors submit to the local courts in the name of the atheist parents. As a lawyer from the Association stated, their arguments against compulsory religious education are grounded on the Convention's freedom of religion framework: “In our petitions to the courts, we base our argument for exemption on philosophical grounds, stating that being free from religious education is a basic human right that is protected under the European Convention. (…) We want to show that this is not only a religious minority problem, but also a problem for people who do not believe in any religion.” ECtHR rulings also play an important role in this formulation. Another lawyer taking atheist families’ cases explained how ECtHR case law regarding Turkey is seen to benefit their claims against compulsory religious education as atheists in these words: “I think ECtHR's both judgments (on compulsory religious education in Turkey) are about respecting different beliefs, and also the right to not to believe in any religion. So, these cases were about every faith, but also about atheists’ rights; Sunnis, Alevis, Jehovah's Witnesses, Buddhists… but also atheist, people who do not believe in any religion. (…) The bottom line (of the ECtHR's argument in these rulings) is that the state cannot force any one to take religion classes, cannot subject any student to religious education. So, the Court argued that exemption should be granted to any student who asks for it.”

In the cases where they have been denied exemption in the local courts, litigants and lawyers alike expressed the intention to apply to the ECtHR after exhausting national legal means. On this point, the lawyers of the Association stated that they strategize to reach the ECtHR from the beginning in their petitions, paying attention to ECtHR case law on Turkey and making sure to frame the rights of atheists in the European freedom of religion framework. As exemplified in the words of one lawyer, they interpret the ECtHR's message in a way that emphasizes their point that respect of parent's confessions is important: “No student should be subjected to compulsory religious education outside of the confession of the family, as the European Court of Human Rights stated in the Zengin ruling; this is our argument in the local courts. If they reject it, we know the ECtHR will finds us right eventually.” Thus, actors in the legal field consider both the ECtHR's Turkey-related case law and litigation before the Court as important opportunities for mobilization for the discriminated groups to challenge the government's policies favoring majority religion in education, and to extend the struggle for the exemption beyond religious belief groups to freedom from religion.

POLITICAL MOBILIZATION: COUNTERING “ISLAMIZATION” WITH PLURALISM AND CIVIC ACTION

Expanding legal mobilization's focus on exemption and minority rights, political mobilization emerged as a strategy for grassroots actors to address the growing role of religion in education under the AKP government. The government's diminishing commitment to pluralism in education introduced a window of opportunity for grassroots actors to build alliances between the critics of the government's RE policies: Alevis, who oppose compulsory religious education classes as discriminatory against their non-Sunni faith, Egitim-Sen, a left-leaning educators’ and science workers’ union, and leftist political groups who oppose the government's RE policies as part of a perennial problem with the Turkish policy of absolute control over education, as well as secular actors (such as the main secular opposition party, CHP and secular families) that see it as a problem particular to AKP and Islamization.

This mobilization entailed a series of protests and boycotts organized by Egitim-Sen and by prominent Alevi organizations,³⁵ with the participation of various activist groups throughout the country (Kural 2015). One mass rally took place on October 2014 when a number of civil society organizations marched in Ankara to protest against compulsory religion courses and the problems in the educational system. A second one took place in Istanbul in February 2015; the protesters marched to the Istanbul Directorate of the Ministry of Education with the demand “modern, equal, science-based, secular education.”³⁶ A local trade-union representative explained that these demands reflect their criticism against the government's ongoing policies that designate a greater role for religion in national education: “We say, the government does not defend religion as they claim to be doing. AKP exploits religion. With these educational policies they aim to create a generation indoctrinated with their version of religion. We are against these policies, that serve the AKP's political interests.”

Political mobilization's demands emphasized a pluralist understanding of secularism. For example, as another participating activist explained, the demand “democratic struggle against sectarian education,” indicated that civic secular action includes a democratic struggle against discrimination. Similarly, a representative of a participating leftist activist group argued that secularism not only promotes the inclusion of minority faiths but also freedom from state-imposed majority religion for all citizens. To counter the government's wide-ranging policies around RE, the mobilization's demands embrace a pluralist variety of secularism that draw its basis from the ongoing struggles of national actors: “We argue for a new meaning [of secularism] that will include the sensibilities of all, including believers, non-believers, minorities, and other religious groups.”

The ECtHR comes up in two ways in the discourses of political mobilization that emphasize the urgency and prominence of bottom-up activism in an adverse political environment. The first way the ECtHR gains a certain prominence in these discourses is indirectly by the government's non-implementation of its Turkey-related rulings. As such, non-implementation is part of political mobilization's criticism of the government‘s attitude towards international and national legal protection of human rights. Insights gathered from the interviews suggests that actors” awareness of ECtHR case law regarding RE in Turkey went hand in hand with an awareness of the government's non-implementation. The ECtHR judgments’ non-implementation emerged as one prominent topic in their criticism of the government, drawing attention to the fact that national and international legal protection systems are not respected by the government anymore. A former MP for the Republican People's Party (CHP), for example, argued that the government's statements against the ECtHR after the Mansur Yalcin case have implications that go beyond non-implementation of the Court's ruling: “The prime minister said right after the Mansur Yalcin decision “This government does not need to take a lesson from the European Court of Human Rights, we are not going to implement this decision!” This statement is very troubling. (…) What does [he] mean to say then? It means, I do not recognize the law, I am not going to adhere to the rules of law!”

This perception of non-implementation as the most prominent sign of the diminishing respect for international legal instruments of human rights provides a window of opportunity for the actors to urge for bottom-up political mobilization. Actors recognize the importance of these rulings yet, at the same time, emphasize that the ECtHR's rulings will not bring change if the government is not forced to comply. Implementation of ECtHR rulings is included in their demands to indicate that, in this political environment, bottom-up political activism is required to force the government towards implementation. As a teacher from the educators’ union stated: “With the successful cases in the ECtHR the struggle reached a certain stage but also an impasse (because of non-implementation), now we need to forward it (in political mobilization) by making sure these judgments are applied.”

The second way the ECtHR comes up is the actors’ emphasis on the shortcomings of litigation before the Court, previously the most effective grassroots strategy for the rights claims pertaining to RE. The actors perceive legal mobilization in general, and the ECtHR's rulings on RE in particular, as limited to Alevi mobilization against DKAB classes. They argue that, because of this narrow popular scope, the effects of litigation before the ECtHR are limited in terms of offering a solution to the mounting problem of religious education in Turkish schools. As a representative of Egitim-Sen stated:

“Right now, every parent suffers from RE-related policies of the government. The issue is beyond exemption and discrimination against Alevis. Both domestic higher courts’ decisions and ECtHR judgments on the issue were the results of Alevi legal mobilization. This is a very understandable fact [due to the extensive discrimination Alevis face]; however, court rulings cannot help us to fight with this wide-scale Islamization in education.”

As indicated in this quote, political mobilization emerged also as an alternative to legal mobilization in order to address the growing issues in RE that go beyond the exemption and the rights of Alevis, such as the elective religion courses and the growing number of Imam Hatip schools.

Thus, both the focus on the ECtHR's non-implementation by the government and the perceptions of limitations of legal mobilization before the Court play a key role in the national actors’ claims and structure of political mobilizations. In both ways mentioned by the actors, the ECtHR gained a new relevance, beyond its direct impact on government policies. Through the ECtHR decisions’ non-implementation and limitations, as the most prominent act of legal mobilization, it indirectly became part of the grassroots mobilization's demands and activities against the consolidation of AKP's conservative and nationalist religious identity. The government's declarations against the ECtHR and the non-implementation of the Turkey-related RE rulings, provided political opportunities for the actors to include broader sectors of the society, formulate pluralist definitions of secularism and address growing issues in RE.

MONITORING AND POLICY-ORIENTED MOBILIZATION: NATIONAL AND INTERNATIONAL ADVOCACY FOR PLURALISM AND EQUALITY IN EDUCATION

A third prominent strategy for grassroots mobilization in the field of RE is monitoring the implementation of the ECtHR's Turkey-related rulings and proposing required policy changes to the government and to the Council of the EU. In this field too, the government's non-implementation has served as a political opportunity structure to create a rather vibrant field of NGO activity that is based on expert knowledge and activism. The institutions active in this field utilize non-implementation for further grassroots mobilization and to intervene in the discussions and decision-making processes regarding RE in Turkey. ECtHR case law has been part of these organizations’ discourses and activism regarding achieving pluralism and equality in education.

There are three main organizations whose activities range from monitoring the progress of implementation of ECtHR rulings around RE to preparing reports on equality and pluralism in education. These organizations employ experts in the field who are young professionals, usually with graduate degrees in human rights, law, or education. Experts from these NGOs and platforms manage various projects, organize grassroots outreach activities, or prepare monitoring reports. The first one, Freedom of Belief Initiative (IÖG), mainly focuses on a wide spectrum of freedom of religion or belief issues ranging from conscientious objection to the legal status problems of religious groups in the country. It also follows cases in the ECtHR regarding Turkey and the implementation of the Court's decisions closely. The second one, the Education Reform Initiative (ERI), specializes in the advancement of pluralism and equality in education. Their main areas of activity of range from inclusiveness and equality, to gender, and to religion in education (Şaşmaz et al. 2011).³⁷

A third organization, the Human Rights Joint Platform (IHOP), is an umbrella organization for smaller legal platforms. It was established by legal experts in international human rights law for human rights advocacy, legal support for human rights NGOs and legal aid for litigation in the Strasbourg Court.³⁸ One of their member organizations, Monitoring of the Implementation of the ECtHR Judgments (AIHMIZ), submits monitoring reports to the Committee of Ministers in order to establish a dialogue with the government on the issue of human rights in general.³⁹

The government's non-implementation of Turkey-related ECtHR rulings provided a political opportunity structure for these organizations where the ECtHR's case law assumes importance in two related ways. First, in their activities that aim to enable the grassroots actors to interfere in the national debates and decision-making processes in RE, and secondly, in creating momentum for their organizations’ agendas in the field of education in Turkey through monitoring and involvement in the implementation of the cases in national and European level activities.

The first area where ECtHR case law is incorporated in the discussions on education in this field is in the efforts of these organizations to influence the government's educational policies via grassroots participation in the decision-making processes surrounding RE. To this end, the efforts for the implementation of the ECtHR rulings opens an important space for activism, where the actors formulate their principles––based on European norms, especially the international conventions that Turkey ratified––and recommend policies. In the words of IÖG's manager, non-implementation is not a drawback in grassroots activism but an opportunity for involvement in the processes that will ensure the prevalence of human rights principles in education: “Now it is time for all parties that have stakes in human rights advocacy to take part in the international and national processes of monitoring, this opportunity for contribution to these processes are made possible by these important decisions of the Court.”

Some of these efforts even predated the Court's Zengin judgment and started when the case went to the Court in 2004. Thus, these efforts aimed to parallel the legal mobilization around RE with grassroots involvement in the on-the-ground discussions of principles and policy recommendations in RE. For example, ERI organized a series of meetings in 2004 and 2005 on “religion and schooling” in order to develop a “consensus on new policy options on religion and education (…) through a participatory process involving relevant stakeholders.”⁴⁰ This platform provided a space for different grassroots actors such as universities, theology faculty, school administrations, parents associations, policy think-thanks, and education sub-commissions of influential professional associations to meet and discuss several different aspects of problems with RE. The experts stated that such meetings draw attention to the commonness of the problems related to inequality and lack of pluralism in education for both minority and majority beliefs. As a representative of ERI explained, for example, Sunni Muslim parents who previously did not take part in the discussions on RE complained about the state-imposed content of these courses during these meetings and started to see themselves as stakeholders in the discussions on religious education.

Consequently, ERG published a report that made the consensus reached by the diverse parties on RE available for broader publics (ERI 2005). As it is evident in this report, the European freedom of religion framework on RE, especially as these are set out by the UN International Covenant on Civil and Political Rights, the European Convention on Human Rights (ECHR) and the OSCE TOLEDO Principles on Teaching about Religions and Beliefs in Public Schools—served as a source of reference for both the principles and recommendations included in the report. Base on this framework, the report states: “education should promote respect for Human Rights in particular freedom of region or belief (..) and for peaceful co-existence in pluralistic societies” and “the existing compulsory course on religious culture and moral education in schools should be based on as secular understanding that promotes neutrality between the state and every other religion and sect.” (ERI 2005, 4–5).

After the two hallmark decisions by the ECtHR on compulsory religious education in Turkey, these organizations expanded their field of activism to the area of implementation of these judgments. To this end, the IOG issued an “Open Letter to Prime Minister Ahmet Davutoğlu” on their website with regard to the Mansur Yalcin, calling for “measures to be taken to bring the program, books and practice” of the compulsory religion classes “in line with international human rights standards” and presented recommendations to this end.⁴¹ Similar to ERG's position, IÖG frames the issue of compulsory religious education in Turkey and non-implementation of ECtHR judgments as a problem that, not only violates the ECtHR's rulings, but that is also an act against the principles of “international human rights standards” such as the Toledo principles, the UN Covenant on Civil and Political Rights, and the European Convention of Human Rights (especially Article 2 of Protocol No.1).

To draw public attention to the ECtHR's case law and bottom-up ways to solve the problems regarding RE, IÖG organized several meetings. As the IÖG manager stated, ECtHR jurisprudence and the European human rights framework serve as a “universal and supranational” point of reference in the discussions during these meetings. Examples of these human rights law-centered meetings for grassroots actors are a conference in cooperation with Ankara University Centre for Human Rights, entitled Freedom of Expression & Freedom of Religion or Belief, and several roundtable meetings for feedback on draft reports on the right of freedom of religion or belief, with the participation of the Association for Atheism, representatives of non-Muslim communities, and Alevi associations, as well as Mazlum-Der, an Islamic human rights NGO. Evident from the wide range of perspectives represented by the invited parties, the organization aims to provide platforms for various stakeholders in RE to discuss pressing issues beyond an exemption from DKAB classes and includes a wide range of opinions from these actors in its reports on freedom of religion.

Dissemination of ECtHR rulings is also part of these efforts to enable larger grassroots participation in decision-making processes. Through these dissemination activities that mainly aim to convey the Court's message to grassroots actors, these organizations participate in the debates around pluralism and freedom of religion in the country. AIHMIZ is especially active in disseminating the details of the case law regarding Turkey, to clarify the message of the Court for the parties that have stakes in interfering with the national debates and decision-making processes in RE. In reports, articles and panel discussions, legal experts detail the issues raised in the ECtHR case law on freedom of belief and the role of religion in the field of education for the legal and non-legal publics. Activities related to the dissemination of the ECtHR's messages offer a counterpoint to the government's interpretation of the ECtHR case law. For example, immediately after the Mansur Yalcin ruling of the Court, IHOP published an online article to explain the Court's latest ruling to a wider audience, with the specific aim of countering the government's above-mentioned statements regarding the ECtHR's judgments as “representing the Court's double standards against Turkey and position against religious education” (Sirin 2016).

The second way ECtHR case law regarding Turkey came up in the interviews was in creating momentum for their advocacy work on equality and pluralism in education nation-wide. Non-implementation of ECtHR case law on Turkey thus plays an important opportunity for these organizations when they are intervening in educational policies through reporting and monitoring. ERI experts consulted for this study emphasized that through these two activities “(We) are presented with an opportunity to make your main issue [equality and pluralism in education] a topic of conversation once again. It becomes part of the national agenda and meanwhile you have the opportunity to express and voice your opinion on the issue.”

Specifically, in the field of monitoring, legal experts under AIHMIZ work to ensure the implementation of ECtHR judgments and prepare reports for the Committee of Ministers as a way to open a dialogue with the government to this end. A representative of ERG stated that the ECtHR judgments “strengthened their organization's hand” in national and European policy circles: “[We] participate in the meetings with the European Commission for Turkey's accession reports. There, we present our observations and reports on the place of religion in the educational arena in Turkey … Our observations were included in these annual reports—among the reports and observations of other very prominent actors in the field. If the ECtHR did not have the Zengin judgment, maybe, the problems on freedom of religion in education would not be part of the problems regarding freedom of religion in the country that the Commission is focusing on.” Thus, although these rulings did not produce direct policy change, in the view of the NGO representatives and legal scholars cited in this section, there is hope that, through the Commission's monitoring, and in turn, through the activities of these NGOs (such as monitoring of these decisions and meeting with the members of the Commission), which support the work of the Commission, the ECtHR rulings may indeed have an effect on the government's policies.

CONCLUSION

For the grassroots actors in Turkey, the ECtHR and its case law on Turkey represent European standards of human rights and freedom of religion in the field of RE. As such, it is central to discussions, debates, and mobilizations against the government's religion-related policies on education in three different types of mobilizations. Actors involved in these different mobilizations perceive the effectiveness of the ECtHR in different ways and have different purposes when utilizing case law to further their demands. Yet, in terms of the indirect effects of the Court on these mobilizations, two interlinked conclusions stand out.

First, grassroots actors’ incorporation of the ECtHR and its case law into their discourses and mobilization strategies mainly aims to counter the pressing developments in the government's management of religion in education. They engage with the government's RE policies on different levels that are reflected by three different mobilizations that emerged in the field. In their discourses of freedom of religion, grassroots actors constantly compare domestic freedom of religion and the government's related policies in RE to international standards of freedom of religion, represented by the Turkey-related case law of the Court. Thus actors’ “inward looking domestic expectations” (Cali, Koch and Bruch 2013), such as pluralist reform in national education, lead to a constant comparison of the government's policies and ECtHR case law. The Court plays a central role in the actors’ discourses on pluralism and equality as an external corrective to “check domestic decisions” (965), as the basis for the social legitimacy of the government's RE policies.

Second, closely related to this first point, actors’ awareness of ECtHR case law goes hand in hand with an awareness of the government's non-implementation. Actors mostly perceive the ECtHR's effectiveness as circumscribed by non-implementation and argue that legal mobilization before the ECtHR regarding exemption is inadequate in bringing widespread change. This strong focus on non-implementation of the Turkey-related rulings also shapes the “radiating effects” (Galanter 1983) of the Court's case law on further mobilization. At the same time, it serves to broaden the aims of the mobilization around RE to freedom from state-imposed majority religion for every citizen and encourages groups other than those addressed directly by these two particular cases (i.e., beyond the Alevi community) to mobilize and interfere in the decision-making processes in education.

Overall, despite the diminishing respect for international human rights instruments and the lack of any direct effect on the government's RE policies in Turkey, the ECtHR has an ongoing influence on the alternative framings of freedom of (and from) religion and pluralism by grassroots actors. It does so by representing a counter-point and European standard against the government's RE policies, thus providing further opportunities for mobilization in the search for equality and pluralism in national education, as well as building new pluralist definitions of secularism.