This article is a part of the March 2013 issue of the Lausanne Global Analysis. Access other articles from this issue or download the full issue as a free PDF download.

On 15th January the European Court of Human Rights (ECHR) issued judgments on four cases of great significance for the cause of religious freedom.  Its jurisdiction covers the whole of Europe, including Russia and Turkey, but what it says could well have repercussions far beyond, since it affects the ability of Christians to witness to their faith in public.

Indeed the cases can be viewed as part of the ongoing pressure on individual Christians and Churches in many places to withdraw from public life into some private ghetto.  Part of this is a latent assumption that freedom of religion is mere freedom of worship, and should not intrude on the public sphere.  The judgments bear out what Os Guinness said in the January edition of Lausanne Global Analysis of ‘increasing violations of religious freedom in the West in the name of equality and other noble intentions.’[1]

The Issue At Stake

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 publicly given to religiously based principles, particularly in societies that are growing increasingly secular.

Symbols Cases

The first case (Eweida) was comparatively straightforward and concerned a British Airways employee who wished to wear a cross as a sign of her faith, in contravention of the employer’s uniform code.  The second case concerned a nurse on a geriatric ward who was prevented from wearing her cross on duty on health and safety grounds. 

The Court found in favour of the British Airways employee, but against the nurse.  The Court accepted 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.  In the other case, 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.’  It is hard not to accept that such health concerns are entirely appropriate within a hospital context.  The nurse worked within a geriatric ward, and, for example, patients may very well have tried to tug at the cross and chain.

 These two judgments pull in opposite directions:

• There is a 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 left to the discretion of the employer, and there is room for continued controversy (and no doubt lawsuits) about such matters.
• The Court’s decisions may have been cleverly nuanced, but they cannot be said to give clear guidance.

Homosexual Issues Cases

If all sides could see something to approve of in these two judgments, the same cannot be said for the other two:

• 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 be argued 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.  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).  Little account was paid to their views as sincere Christians, as the practice of religion, it seems, is not that important in contemporary European society.

Reasonable Accommodation?

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 McFarlane 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:

• 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.
• 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.

Dissenting Judgment

Two judges in a dissenting judgment, supported Ladele, and consider her conscientious objection should have been respected.  They complained 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 choose 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 this too should be respected, and they 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.”

Implications For Religious Freedom

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, though, freedom of religion can be simply replaced by an appeal to individual conscience is much more doubtful:

• Freedom of conscience is vital in civil society, but religion itself seems of particular importance in human life, and should be cherished.
• Unlike individual conscience, it has a social dimension, with institutional, as well as individual, aspects.

However, once freedom of religion is not thought to be of absolutely fundamental importance in a society, but gives way to current social priorities, freedom of conscience is inevitably also challenged.  Religious freedom 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.

Restrictions on the display of symbols are always more significant than the issues alone would suggest, as anyone who has lived under a totalitarian regime would attest.  Signs and manifestations of all religion, but more particularly Christianity, are being gradually hounded out of the public sphere in many European countries.  Christian public witness is being systematically attacked both in legislation and in the courts.

Need For Vigilance And Political Action

These cases are just one instance of that, and the implications spread far beyond the United Kingdom.  The idea of state ‘neutrality’ to religion, denuding the public sphere of all religious influence, is now paraded as a European core value.  It is happening in the name of equality, but its effect on all freedom is vast.  The effects on how children are to be educated in state schools in many countries are particularly significant. 

Christians must be much more alert to what is happening, and even be ready to get involved politically in the defence of basic democratic freedoms.  The ECHR is not immune to public opinion across Europe, and its Grand Chamber will probably be asked to hear appeals concerning these cases.  An aggressive secularism is at work, in Europe, North America and beyond.  One of its techniques is to use the courts to enforce its views.  Christians must realise the consequences if it gets its way.                

Dr. Roger Trigg, Associate Scholar with the Religious Freedom Project, Berkley Center, Georgetown University.

Dr. Trigg is Senior Research Fellow at Kellogg College in the University of Oxford, Academic Director of the Kellogg Centre for the Study of Religion in Public Life, and Emeritus Professor of Philosophy at the University of Warwick.  His recent publications, among others, include Morality Matters (2004), Religion in Public Life: Must Faith be Privatized? (2007); Equality, Freedom and Religion (2011); and the report Free to Believe?  Religious Freedom in a Liberal Society (2010).  The paperback edition of Equality, Freedom and Religion has just been published (2013) by Oxford University Press.  

 

[1] Guinness, Os. “The Global Charter of Conscience.”  Lausanne Global Analysis.  The Lausanne Movement.  January 2013.  Web – https://lmconversation.wpengine.com/en/resources/detail/12906#.USebaqWIMvw