Newsletter 21. Jänner 2013

In this issue:

Four Rulings on Christians in the European Court Judgment
How Did the Court Decide?
What is Good About the Rulings?
What is Disappointing and What is Next?
Christian Leader’s Concern is Freedom of Conscience
Credits

Four Rulings on Christians in the European Court Judgment

On January 15th, the European Court of Human Rights ruled in the four UK Freedom of Religion cases: one was ruled in favor, three against. The decision of the Court is not yet final and can be appealed to the Grand Chamber of the Court.

The applicants, Nadia Eweida, Gary McFarlane, Shirley Chaplin, and Lillian Ladele are British nationals who were born respectively in 1951, 1955, 1960 and 1961. They live in Twickenham, Exeter, London and Bristol, respectively.All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work.Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.

How Did the Court Decide?

Only in the case of Nadia Eweida, the court held that British Airways had not struck a fair balance between Ms Eweida's religious beliefs and the company's wish to "project a certain corporate image". Thereby, Ms Eweida’s right under Article 9 of the European Convention on Human Rights was violated. The Observatory on Intolerance and Discrimination against Christians in Europe had intervened as a third party. The court ruled the rights of three others had not been violated by their employers: when it comes to competing rights, the court allows member states to balance.  While this is very frustrating for countries like the UK, which continue to balance against religious freedom, the Court has not issued a blanket rule that sexual orientation must always trump religious freedom.

What is Good About the Rulings?

Christian Concern, a UK – based NGO, says that „these are significant breakthroughs and will be a great help in contending for Christian freedoms in the UK Courts in the future.“ The rulings challenged many of the principles adopted by UK Courts and asserted by the British government.

1. Wearing a Cross is Protected by Freedom of Religion: So for example, the UK Government had made the remarkable assertion that the cross was not a generally recognised Christian symbol. It also suggested that since wearing the cross is not compulsory for Christians, it is not a protected freedom. The European Court ruled that, in principle, wearing the cross is an expression of Christian faith and so is a freedom to be protected!

2. No Proof Required for What’s Part of One’s Religion: The UK Courts had held that beliefs about marriage as between a man and a woman was not a core component of Christian belief and so not protected. The European Court said that these beliefs were part of Gary and Lillian's Christian identity and so were in principle protected.

3. Resignment in Order to Practise One’s Religion is not Sufficient: The British Government suggested that because the individuals were free to resign and find other jobs, there had been no infringement of their freedom of religion - in other words, 'your freedom to resign secures your freedom of religion'. The European Court ruled that 'freedom to resign and find another job' is not sufficient to guarantee religious freedom.

4. Sexual Orientation does not Generally Trump Freedom of Religion: “In all the circumstances, the Court does not consider that the national authorities ...exceeded the margin of appreciation available to them” (paragraph 106). While this is very frustrating for religious believers in countries like the UK, which continues to strike the balance against religious freedom, the Court has not issued a blanket rule that “sexual orientation” must always trump religious freedom. There are many other countries in Europe that would balance the rights differently and the Court has stated here that they are free to do so. Hence, while the Court has not upheld Christian conscience in these cases, it has not ruled out the possibility of other cases being successful in the future. It is also worth noting that two of the judges decided in favour of Lillian Ladele, and their strongly worded dissenting opinion will also provide encouragement for the future.

What is Disappointing and What is Next?

It was very disappointing that in Shirley, Lillian and Gary's case, the Court ruled that, although their religious freedom had been infringed, the circumstances had justified that interference.

1. Health and Safety: In Shirley's case, 'Health and Safety' was given as the justification. The European Court said that it was not in a position to examine the application of the Health and Safety policy. It had to assume that it was justified, as the UK Courts had suggested. However, no credible Health and Safety risk was ever demonstrated by the hospital.  

2. Freedom of Conscience: In the case of Lillian and Gary, the European Court said that it was necessary to restrict their freedom in order to protect the freedom of others. However, in both cases, it would have been possible to accommodate Gary and Lillian's conscience, without there being any danger of anyone being denied a service. This important point will continue to be made in the second instance: For Ladele and McFarlane, the Court needs to go one step further in its recognition of Christian conscience. The Chamber decision gave domestic authorities wide discretion in how they balance competing interests in their country.  However, the Court could go a step further – recognising that countries do not have the discretion to override conscientious objection in cases such as these.  The Court has taken this approach on the issue of conscientious objection to military service, so there is no reason why it cannot adopt the same reasoning on conscientious objection to promoting or condoning homosexual behaviour.

3. Margin of Appreciation: The fact that the Court applied its doctrine of the “margin of appreciation” to the conscience cases could be problematic for future cases originating from countries where Christian conscience is being overridden. However, giving countries wide discretion in this area may also be of benefit to conservative countries where the balance between religious freedom and other interests is being drawn in a different place.  For example, in the recent case of Gas and Dubois v France (2012), the court cited the margin of appreciation to explain why it allowed member states to treat the issue of same-sex adoption differently.  In that case, the Court held that France was not in violation of the Convention for denying adoption to a same-sex couple.  Therefore, insofar as the margin of appreciation means that the country has discretion to decide the issue itself, this will benefit Christians in conservative countries and be problematic for those living in for liberal ones.

Christian Leader’s Concern is Freedom of Conscience

On January 16, Archbishop Mamberti commented on Radio Vatican on the four cases: "There is a real risk that moral relativism, which imposes itself as a new social norm, will come to undermine the foundations of individual freedom of conscience and religion. ... the rationality of the human conscience in general and of the moral action of Christians in particular requires explanation. Regarding morally controversial subjects, such as abortion or homosexuality, freedom of consciences must be respected. Rather than being an obstacle to the establishment of a tolerant society in its pluralism, respect for freedom of conscience and religion is a condition for it." Read more

Credits

We thank the Christian Legal Centre (www.christianconcern.com/christian-legal-centre) and Alliance Defending Freedom (www.alliancedefendingfreedom.org) for their detailed analyses of the cases and the text elements provided in this text. We also thank the European Center for Law and Justice (www.eclj.org) for their publications.

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