Judicial Deference in an Age of ' Living Together' A Moralist Account of the European Court's Religious Rights Jurisprudence

It is often theorised that at the heart of the European Court of Human Rights' jurisprudence, individual rights protection and national democratic sovereignty battle for supremacy. Internationalist liberals ascribe priority to the former and see substantive rights as limits to national sovereignty. Others pose a principle of subsidiarity, and suggest that national policies with a procedurally sound origin should be assumed not to violate rights. Taking the controversy surrounding the Court's S. A. S. v. France judgment (2014) as a case study, this article aims to show the ineptitude of both approaches. Human rights, it claims, can only constitute a normative compelling framework insofar as they represent genuine expressions of societies' moral identity. The liberal picture of individual rights as a negative constraint on democratic sovereignty is therefore misleading, but so is the idea the ECtHR is primarily a procedural watchdog. Substantive rights count as embodiments of national sovereignty, and deserve protection as such.