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.