Today, a chamber of the European Court of Human Rights announced its decision in the highly anticipated Eweida and Others v. United Kingdom, a group of four consolidated cases brought by British Christians who alleged that the U.K. had violated their religious freedom under the European Convention on Human Rights. From the claimants’ perspective, the outcome was, at best, mixed: The chamber ruled in favor of only one of the four claimants. With respect to the other three, the chamber accepted the government’s argument that important countervailing interests, including the protection of gay rights, outweighed concerns about religious freedom.
The claimants alleged that their employers had violated their religious freedom by disciplining them for manifesting their Christian beliefs. Nadia Eweida, a British Airways employee, and Shirley Chaplain, a hospital nurse, complained that their employers had forbidden them from wearing cross necklaces at work. Lillian Ladele, a public registrar, lost her job when she declined, out of religious conviction, to officiate at civil partnership ceremonies for same-sex couples. Gary McFarlane, a psychotherapist, was fired by a sex counseling service because of his objections to providing sexual advice to same-sex couples. British courts had ruled against all four claimants, who then applied to the European Court for relief.
I won’t get into the details of the analysis here, but, briefly, the European Convention provides that individuals have the right to manifest their religious beliefs, but that governments may limit that right if necessary to protect important countervailing interests, such as public health and “the protection of the rights and freedoms of others.” With respect to the first two claimants, the chamber held that wearing visible cross necklaces qualified as a manifestation of belief under the Convention. This seemingly obvious proposition in fact represented a loss for the British government, which had argued, rather incredibly, that wearing a visible cross is not a protected manifestation of belief, as Christianity does not require the wearing of crosses.
With respect to Eweida, the British Airways employee, the only significant countervailing interest was B.A.’s wish to project a certain corporate image, and this was not sufficient to outweigh Eweida’s religious freedom. (In fact, B.A. has since changed its policy to allow employees to wear visible crosses, a fact the chamber noted). With respect to Nurse Ladele, however, her hospital employer had determined that her necklace posed a risk of injury and infection to herself and her patients. Unlike B.A.’s interest in its corporate image, this was a serious public health concern, and the chamber deferred to the hospital’s judgment on the matter.
With respect to the third and fourth claimants, similarly, the chamber held that the refusal to engage in certain work activities because of religious objections to homosexual conduct qualified as a manifestation of belief under the Convention. In both cases, however, there was a competing Convention right at stake: the right of same-sex couples to be free from discrimination. The Convention allows national governments a certain discretion—“margin of appreciation” is the exact term—in deciding how best to balance competing rights, and the chamber did not believe that the U.K. had exceeded its discretion in these cases. With respect to McFarlane, in particular, the fact that the claimant had voluntarily signed up with a service that offered sexual counseling to same-sex couples militated against his religious freedom claims. In short, in both cases, the government could legitimately determine that the right of same-sex couples to be free from discrimination outweighed the right of the claimants to manifest their religious beliefs with respect to homosexual conduct.
There’s a lot more in the chamber’s analysis, but that’s the gist of it. The claimants may appeal the ruling to the Court’s Grand Chamber; we’ll have to wait and see. In the meantime, the ruling suggests that the European Court will be pretty deferential to arguments that workplace manifestations of religious belief must take a back seat to other concerns, including the state’s interest in ending discrimination on the basis of sexual orientation. As conflicts over religious freedom increasingly seem to involve sexuality in some way, that’s not an especially encouraging message for advocates of religious freedom.
Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.
January 15th, 2013 | 11:19 pm
Without digging into the actual wording of the decisions, I think most people would shrug and find this quite reasonable and quite in line with what they think religious freedom means.
The nurse case may seem questionable, but then I have heard of hospitals banning docs from wearing ties because they do in fact spread infection. Provided it wasn’t letting other nurses wear other types of necklaces and such it’s not an infringement IMO.
That leaves the sex therapist and registrar. In both cases this strikes me like someone taking a job at a steakhouse and then declaring because their religion says meat is murder they cannot be expected to touch any plate with meat on it.
January 16th, 2013 | 7:17 am
I simply can’t understand why a nurse would assert a religious right to wear a necklace that her employers reasonably considered to be a danger to herself and her patients. I think the right to religious freedom is weakened by making frivolous claims. Here’s another one, from the excellent web site Religion Clause Blog:
It is simply preposterous to claim a religious right to have rickety furniture in front of lighted candles.
January 16th, 2013 | 10:12 am
Clearly a lawyer is going to make any argument he can on behalf of his client, even an absurdish ‘Hail Mary’ pass. So silly freedom of religion claims that arise in that front don’t bother me much.
But quite often there’s a reflexive assumption here that freedom of religion simply means siding with a church (or in these cases a person who claims to be religious) in all disputes even as mundane as a local zoning board balking at a church’s request to expand its parking lot over concerns about traffic. The ‘Ground Zero Mosque’ fiasco, though, demonstrated that for many (not all) this concept of freedom of religion is totally one sided.
What’s interesting here is that it seems the EU courts are actually more accomodating to such claims. In the US I suspect the British Airways employee would be out of luck. If the company wants a strict uniform policy and wearing a cross was not absolutely demanded by her religion she’d have to take it off, wear it under her uniform or find another job.
January 16th, 2013 | 11:04 am
Boonton, your steak house analogy is inapropos. In the case of the registrar, the proper analogy is someone taking a job at a vegan restaurant, working at it for 15 years, and then to be told one day that the restaurant will begin serving steak and firing everyone who objects.
In a capitalist society, most would defend the firing on the basis of private property rights. Fine. Such a ruling thus says that property rights are the trump card in that society. In fact, this is essentially the ruling handed down by the ECHR despite atmospherics otherwise. Let’s be clear.
Of course, my more accurate analogy is still limited. Let’s instead imagine this society has one capitalist which is very large relative to his competitors and has at his disposal the means of violence — imagine Ford Motors in the 1920s. He states that all his five thousands vegan restaurants (the society is predominantly vegan) in the entire national chain will now serve steak on the menu and any dissenters will be fired.
The courts find in favor of Mr. Ford. The rights of property, you know.
January 16th, 2013 | 11:43 am
Darel – If vegan restaurants were such a good idea and doing so well, could not others open vegan restaurants after Mr. Ford fired them?
January 16th, 2013 | 11:54 am
Boonton, your steak house analogy is inapropos. In the case of the registrar, the proper analogy is someone taking a job at a vegan restaurant, working at it for 15 years, and then to be told one day that the restaurant will begin serving steak and firing everyone who objects.
Errr if that actually happened you’d be fired. But if you’re a public registrar whose job it is to issue licenses and perform ceremonies for civil marriages, you are basically taking a job doing the marriages that are legal for the state you are working in. Unless you’re working in a theocracy, what right do you have to expect or demand that the set of legal civil marriages must always overlap with the set of marriages you consider religious. Why not, then, get a job being a registrar or secretary for your church?
Again to me that seems very much like taking a job at a restaurant because the owner is vegan and you like that and then years later he has a change of heart and decides to go to meat.
January 16th, 2013 | 12:24 pm
The courts find in favor of Mr. Ford. The rights of property, you know.
Darel,
As things now stand, veganism isn’t considered a religion, and making nonreligious analogies to try to clarify issues of religious discrimination isn’t really helpful. The vast majority of workers in the United States are at-will employees and can be fired if the employer is tired of seeing their faces, or they root for the Mets and the employer roots for the Yankees, or just about any reason not having to do with race, color, creed, national origin, religion, and a few other factors. The owner of a restaurant can fire, or refuse to hire, vegans just because he disagrees with them.
There is a case in the works where the court has agreed to hear arguments that veganism is a religion, but courts in the past have found that veganism is not a religion.
January 16th, 2013 | 12:32 pm
There is no rationa basis to force a registrar to perform as the officiant at any ceremony. There is no good reason to require a registrar to perform as officiant at a ceremony that directly conflicts that registrar’s conscience.
The gay emphasis does not justify the government coersion against a registrar’s conscience. Besides, there is no same-sex sexual requirement for those who’d show-up to SSM. The real issue is marriage and not the gay emphasis, however, readers will note the use of the gay emphasis to rationalize the SSM side’s reliance on the heavy hand of Government to enforce the falsehood that is the SSM idea.
A registrar who does not choose to officiate at a ceremony is entitled to that choice, as a registrar and as a government employee, and is thus entitled to acting on that choice as a registra and as a government employee. Our entire system of governance depends on freedom of conscience rather than on the government owning citizens. We see here how SSMers have different priorities.
A ceremony for SSM is not a wedding, in fact, even when a government entrenches a fiction that is based on an utterly false equivalence.
As SSMers have argued, when something is not a legal requirement, it is not a legitimate basis for lawmaking on eligibility to marry (likewise, surely, for SSM, if their argument is to be applied evenly). A registrar who objects to the SSM ceremony is merely objecting to his or her participation in a falsehood. Our government employees ought to be free to stand against falsehoods rather than b coerced to pretend the false is true. Sexual orientation is irrelevant to the registrar’s role in officiating at actual wedding ceremonies.
But, as we see here, the gay emphasis (an emphasis on a political identity group rather than on sexual orientation) is supposedly the central issue for SSMers. But that directly contradicts…
January 16th, 2013 | 1:35 pm
As a practicing Catholic I find the rulings about the crosses completely reasonable.
The BA case was definitely correct. BA had no acceptable reason to require employees to remove religious themed jewelry. They later realized this, accepted it, and changed their policy.
The hospital had a reasonable reason to require cross necklaces to be covered. Assuming it applied to all similarly hanging jewelry, this ruling makes sense.
The other too are a bit more nuanced. Not knowing the details I won’t comment on these yet.
January 16th, 2013 | 3:34 pm
David, I really don’t disagree with what you say at 12:24pm. In a capitalist society, the rights of property are the most important rights of all. All else comes second.
The real problem from a public conversation perspective, in my view, is that many Christians — or, at least many Catholics — are confused about the relationship between their faith and liberalism. They think the two are compatible when they are in fact quite opposed. There was a brief rapproachment during the 1940s, ’50s and ’60s topped off by Vatican II, something which neoconservatives (some of which write for First Things) are hopelessly trying to resurrect. But those days are long gone and won’t be coming back under any form of liberalism.
January 16th, 2013 | 4:56 pm
George
The BA case was definitely correct. BA had no acceptable reason to require employees to remove religious themed jewelry. They later realized this, accepted it, and changed their policy.
In the US at least an employer has every right to establish a uniform, incl. ‘no jewelry’. If the policy was ‘jewelry ok but not crosses’ that would be a different matter.
Chairm,
I would agree only if registrars who work at the town clerk’s office have *always* had the option to decline to perform any civil marriage ceremony for any reason or no reason at all.
On the other hand if the registrars have the right to keep the fees they collect from doing ceremonies, then I’d say there’s a good reason to require them to do all ceremonies. As registrar everyone whose getting married in town has to come to them giving them a prime position to sell services as an officiant. Since that position is created by all the taxypayers they should perform ceremonies for all taxpayers.
January 17th, 2013 | 1:16 pm
Registering Civil Partnerships is one of the tasks for which registrars are employed and pay received. If they refuse, it seems only reasonable that they may be dismissed.
Of course, it would be a very different matter to compel positive obedience under a criminal sanction. Now, that would be a gross violation of the registrar’s rights of conscience.
I believe the Cross cases were rightly decided. Their most notable feature was in the case of Shirley Chaplain, where the court held that, on a health and safety issue, the court will not substitute its own judgment for that of the employer, acting in good faith. That has to be right.
January 17th, 2013 | 3:27 pm
In the US there’s two people involved in a civil marriage or union. The town clerk issues a license, the couple then takes the license to someone who is going to perform the marriage who signs it, then they bring it back to the clerk who registers it and it becomes ‘official’.
The ‘officiant’ can be a clergy member either from an established Church or a ‘rent-a-minister’ who you can find in the yellow pages. There are also plenty of independent people of all types of convictions that can serve this role. If the couple doesn’t want a ceremony, though, they can often ask the registrar to do it which they will typically do for a fee (say $100).
This is why I say if this does create a cause to fire a registrar who wants to pick and choose. If he can keep the fee for himself, he has a nice little niche business for himself since every couple in town is going to him for the license…he gets ‘first crack’ at every couple whose not connected already to some clergy person. If the fee goes to the town then again this is a person who took a job doing secular civil marriages. How is that different than the vegan working at the steakhouse?
January 21st, 2013 | 12:55 pm
Boonton, however SSM is not marriage and so the ceremony is not a wedding.
Public servants who are coerced to follow orders of this sort are given false choices: treat a falsehood as a truth or lose your job.
You said: “Since that position is created by all the taxypayers they should perform ceremonies for all taxpayers.”
Wedding ceremonies, Boonton, entail a bride and a groom, together, and that does not happen in SSM ceremonies.
January 21st, 2013 | 12:59 pm
The officiant is the official witness of the marital ceremony. How can a person, in good conscience, witness for a falsehood?
I do not think she can do so against her moral conscience.
As Boonton pointed out, there are plenty of options for those who would participate in a ceremony that lacked either bride or groom. There is no good reason to press a conscientious objector into service as a witness to such a ceremony.
January 22nd, 2013 | 3:52 am
Chairm
You overlook the fact that Ms Ladele was not required to officiate at same-sex weddings, currently illegal in the UK, but to record a civil partnership in the register, a purely ministerial act, like recording a deed in the Register of Sasines, for preservation and execution.
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