On January 15, 2013, the European Court of Human Rights issued judgments on four cases of great significance for the cause of religious freedom. What they say could well have repercussions beyond Europe itself. The European Court operates under the Council of Europe, applying the European Convention of Human Rights in cases that are referred to it from a wide range of European countries. They include those of the European Union, but take in many others, as disparate as Russia and Turkey.
These four cases all came from the United Kingdom, and concerned the place of religion, and a religiously formed conscience, in modern European society. Two were about symbols, and were probably themselves symbolic of wider disputes about the place of religion in public life. The other two concerned the reluctance of some Christians to be involved in apparent affirmation of homosexual practices. That is a current flash point in many countries, but it is important to note that the dispute could just as easily have been about other practices abhorrent to some religious consciences. The point of principle at stake is how much importance should be given publically to religiously based principles, particularly in societies that are growing increasingly secular.
The first case (Eweida
) was comparatively straightforward and concerned a British Airways Airways employee who wished to wear a cross as a sign of her faith, in contravention to the employer’s uniform code. It is significant that employees belonging to other religions were given a certain amount of leeway. Sikh employees could wear a turban and a bracelet and Muslims could wear a hijab. The second case concerned a nurse on a geriatric ward in Devon who was prevented from wearing her cross on duty on health and safety grounds. The employer’s fear was that disturbed patients might pull on it, or that it could become a source of infection by coming into contact with open wounds.
The Court ruled in favour of the British Airways employee, but against the nurse. It was no doubt influenced by the fact that British Airways had in any case subsequently changed its policy about crosses, and by implication, did not itself consider the matter a major issue. However, the Court did accept that Ms. Eweida’s desire to manifest her religious belief ‘is a fundamental right.’ Other things being equal, she should therefore be allowed to do so. That itself is a substantial point. In the other case, however, the Court regarded health and safety concerns as proper factors to be weighed in the balance, and concluded that ‘hospital managers were better placed to make decisions about clinical safety than a court.’ One might be sceptical about how justified such concerns were, but it is clearly difficult for anyone not on the relevant ward to make a proper judgment. It is hard, too, not to accept that health concerns are entirely appropriate within a hospital context.
These two judgments, therefore, pull in rather opposite directions. It is established (as it ought be) that there is fundamental right to manifest one’s faith, but, on the other hand, circumstances may mean that it is inappropriate for that right to be exercised. Much is apparently left to the discretion of the employer, and there is room for continued controversy (and no doubt law-suits) about such matters. The Court’s decisions may have been cleverly nuanced, but they cannot be said to give clear guidance.
If all sides could see something to approve of in these two judgments, the same cannot be said for the other two cases. The case of McFarlane concerned a counsellor working for a private, national relationship counselling service. As a practising Christian, he became unwilling to work on sexual issues with homosexual couples, and lost his job. The Court sided with the English courts in backing the employer’s right ‘to secure the implementation of a service without discrimination’. Gay rights, it seems, have to ‘trump’ any claim to religious freedom. This was illustrated even more forcefully in the case of Lillian Ladele. She was a civil registrar who was unwilling to register civil partnerships for same-sex couples after they had been introduced. It is perhaps highly relevant that her job had changed in a very major way, and she was now expected to conduct ceremonies that had not been envisaged when she first became a registrar. It could not even be argued, therefore, that she ought to have considered the duties of the job before she took it on. That did not weigh with the Court, however. Discrimination against homosexuals, like racial discrimination, is going to be regarded as unacceptable. In its own words, ‘the Court recalls that in its case-law... it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification.’ That form of discrimination, in other words is going to trump discrimination on grounds on religious belief, and that is what has happened here. Religious freedom is, in effect, not regarded as important as stopping certain other forms of discrimination.
This is a disappointing result. It does not matter whether one agrees or disagrees with the stance taken by Ms. Ladele. In fact, the importance of standing by her right to act on her beliefs is even more crucial if you think she is wrong in this instance. It is easy to give freedom to those one agrees with. It seems that her own desire to practise her religious beliefs is not regarded as important as whatever the fashionable preoccupations of public policy might be at a given time. She, and others, are at the mercy of the views, well-founded or not, of the majority (or at least of a certain intellectual elite). What is at stake can be illustrated by the fact that both she and McFarlane happen to be black. If they had been able to show that their employer was picking on them for that reason, their case would have been unanswerable. Because, though, they fought it as sincere Christians, standing up for their beliefs, little account was paid to them. The practice of religion, it seems, is not that important in contemporary European society.
One continuing theme in many European cases has been that freedom of religion is guaranteed by freedom of contract. In other words, you are free to practise your religion, because you can always give up your job, if it makes demands that you find unacceptable (such as Sunday working). This has always seemed harsh. The freedom to be unemployed is not much of a freedom. It is glaringly unjust when, as now, the employment situation in many European countries is grim. It is important, therefore, that in the course of this judgment, the Court seemed to change its previous policy. It says: ‘Given the importance in a democratic society of freedom of religion, the court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.’ In other words, balancing out the issues is fairer than just saying ‘you are free to give up your job’.
That approach seems a much more sensible one, and could appear to open the door to the idea of a ‘reasonable accommodation,’ particularly when rights conflict. The problem is that, for all their words about the importance of freedom of religion, in the cases of Mcafarlane and Ladele , the European judges do not appear to have put it in the balance against other rights, or tried to accommodate all parties. They have allowed the claims of religious freedom to be swept aside by other priorities. For example, Ladele worked for the London Borough of Islington, and had colleagues who could easily have conducted civil partnership ceremonies while she took on conventional marriages and so on. The Council was not willing to do that for purely ideological reasons. It was not a question of ensuring a service be provided. It was a question of making a political point.
Two judges in a dissenting judgment, in fact, supported Ladele and thought that her conscientious objection should have been respected. They complain that Ladele was the victim of a combination of ‘back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights).” The judges’ assertion that gay rights are to be distinguished from fundamental human rights is itself interesting and controversial. More important, though, is the fact that they chose to see the case not so much as one of freedom of religion, but as freedom of conscience (also protected by the European Convention). Conscience, they say, enjoins people to do good and avoid evil, and, while it may be nurtured by religious beliefs, it need not be. Certainly, one can imagine that even someone who was not religious could view homosexual practices as immoral, perhaps through some non-religious view of natural law. The argument of the two judges is that they too should be respected. The two judges say that the state should recognise an individual’s freedom of conscience, ‘once a genuine and serious case of conscientious objection is established.’ They point out that ‘freedom of conscience has in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad.’
Certainly, as is recognised in the case of conscientious objection in a time of war, it is the mark of civilised society to respect a conscientious stand, even if it is thought misguided. Whether freedom of religion can be simply replaced by an appeal to individual conscience is much more doubtful. Religion seems to be itself of deep importance in human life, and should be cherished. It has a social dimension, with institutional, as well as individual, aspects. What is quite clear is that once freedom of religion is not thought to be of absolutely fundamental importance in a society, but can give way to current social priorities, freedom of conscience also is challenged. Religious freedom, itself, is very hard to prise apart from the most basic freedoms that make any life worth living. It is regrettable that current European jurisprudence does not appear to take this point seriously.
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Roger Trigg is an associate scholar with the Religious Freedom Project at Georgetown University's Berkley Center for Religion, Peace and World Affairs. His most recent book, Equality, Freedom, & Religion, will be published in paperback by Oxford University Press this February.