What does the failure of the Christian cases at the European Court of Human Rights teach us?

This blog has been following the story of four Christians who have taken freedom of religion cases to the European Court of Human Rights (ECHR) for most of the last year.  You can read a the background details on each applicant’s case here.  These cases involving Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane have been dragging on for some time, but on Tuesday three of the cases finally reached the end of the road when the EHCR’s Grand Chamber, which is its final arbiter rejected the appeals*-.  When the cases had previously been heard by the ECHR in January, only Nadia Eweida’s, which involved the wearing of a cross in the workplace was successful.  The other three were rejected.  Their lawyers decided to apply for a hearing by the Grand Chamber, but the five judges on the panel have now rejected these requests.

These cases all centred on Article 9 of the European Convention on Human Rights, which provides a right to freedom of thought, conscience and religion focusing on the freedom to manifest a religion or belief in worship, teaching, practice and observance, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.  A huge amount of time, energy and money has been consumed by those representing the four applicants and having gained limited success, perhaps the most obvious questions are whether it was worth it and whether an understanding and interpretation of the limitations of Article 9 have become any clearer.  The cases of Nadia Eweida and Shirley Chaplin pose different problems to those of Lilian Ladele and Gary McFarlane and consequently need to be treated separately.

Nadia Eweida and Shirley Chaplin’s cases both involved the wearing of a cross at work at face value appear quite similar, but actually the contrasting judgements highlight the differences and point to why Shirley Chaplin’s case was flawed, when Nadia Eweida’s was not.  Sensibly the ECHR found that the British courts had been wrong to favour Eweida’s employer, British Airways’ aim for staff to project a certain corporate image over her personal religious freedom.  The ECHR decided that her wearing of a cross did not harm that image and that therefore she should be allowed to wear it.  British Airways had been heavy-handed and unaccommodating in their actions on an issue that would have had minimal effect on anyone, whilst the British courts had failed to take this into consideration.  Shami Chakrabarti, director of human rights group Liberty, said the judgment was ‘an excellent result for equal treatment, religious freedom and common sense’. She said British courts had ‘lost their way’ in Ms Eweida’s case and that ‘Strasbourg has actually acted more in keeping with our traditions of tolerance’.

The scale of the fight over the right to wear a religious symbol may have appeared superficially disproportionate given that it’s not an issue at the top of most Christians’ agendas, however when calls were coming from David Cameron and other high-profile MPs to allow it, it was clear that something had gone wrong with the British legal system on this occasion.  The ECHR proved that assumption to be correct.  It was the first time ever that the Court had found the UK in violation of Article 9 and was a reminder that equalities law causes as many headaches as it solves and is not always a force for good depending on how rigidly it is interpreted.

In comparison, Shirley Chaplin’s case suffered from the fact that as a nurse, she had been given permission to wear her cross in public, just not on a chain around her neck.  Her complaint gave the impression of being overly fussy and whilst her employer had shown a degree of effort to accommodate her wishes, she had not been willing to compromise in return.  The Daily Mail may have considered it to be a form of persecution, but many people including Christians could easily have seen her demands as dogmatic and ungracious.  Her case had very little chance of succeeding at the ECHR and one wonders if her lawyers genuinely believed they would win at any point.

Whilst the issue of wearing a cross is an irritation, it’s unlikely that anyone in future will choose not to go into nursing because they are unable to wear a cross around their neck.  However, the same cannot be said in relation to the professions of Lilian Ladele and Gary McFarlane.  Ladele was disciplined by Islington Borough Council because she refused to perform civil ceremonies for same-sex couples in her role as a registrar.  McFarlane was dismissed from his job as a relationship counsellor for Relate because he could not confirm that he would be able to offer same-sex couples sex therapy.  Neither Ladele nor McFarlane at any point failed to carry out their duties, instead both individuals fell foul of their organisations’ equal opportunities policies.  Neither employers needed them to perform the disputed services, but instead the issue related to their beliefs, attitudes and the potential impact on their work.  They were forced into a situation of choosing between leaving their jobs or keeping them but being prepared to act against their conscience and religious beliefs.

The reason that Lilian Ladele and Gary McFarlane’s cases ultimately failed was not that the ECHR did not accept the genuine religious motivation behind their decisions.  The ECHR’s ruling came down to the consideration that the most important factor to be taken into account was that the policies of the applicants’ employers (to promote equal opportunities and to require employees to act in a way which did not discriminate against others) had the legitimate aim of securing the rights of others, such as same-sex couples, who are also protected under the European Convention on Human Rights.

Based on this approach, it would have been hard to have found a reason for the Grand Chamber to have reached a different conclusion.  What we see is that when differing streams of equalities legislation come into conflict with each other, unless employers are willing to adopt a position of reasonable accommodation, one stream will lose out to the other.  With the way equalities legislation is currently framed in the UK, religious belief will be the likely loser and the ECHR has confirmed this.  However in the decision of Lilian Ladele, two of the seven judges had ruled in her favour, stating that where courts find conscientious objection is a manifestation of deep religious conviction and beliefs, there is a need to strike a fair balance in which respect for the individual’s moral conscience is taken into account and reasonable accommodation should be made where possible. The dissenting judges stated that:

“It was incumbent upon the local authority to treat her differently from those registrars who had no conscientious objection to officiating at same-sex unions – something which clearly could have been achieved without detriment to the overall services provided by the Borough including those services provided by registrars, as evidenced by the experience of other local authorities. Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal – something which, even assuming that the limitations of Article 9:2 apply to prescriptions of conscience, cannot be deemed necessary in a democratic society. Ms Ladele did not fail in her duty of discretion: she did not publicly express her beliefs to service users. Her beliefs had no impact on the content of her job, but only on its extent. She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others.”

These rulings are a stark reminder that whether we are willing to admit it or not we are in the last throes of Christendom in our country.  The religious foundations of our society are in places being replaced by a notional belief in equality for all where religion is put on an equal footing with a whole range of other elements of our society’s make-up.  Christian belief no longer defines the law, but instead is increasingly subject to it.  The problem inevitably now comes in how ‘equality’ is interpreted and who makes the final decision on it.  Equality in essence is a worthwhile ideal, but for Lilian Ladele and Gary McFarlane’s cases, the stumbling block has been where equality has been perceived to have been used in an overly officious way.  For each of the four applicants their employers were seen to have been intolerant of their views in one form or another in an excessive and unreasonable way.  The fact that in each case the employee was a Christian is actually a side issue.  We can see the same heavy-handed approach in the news this week where Morrisons have suspended an employee for wearing a Help for Heroes wristband.

Christians are, whether they like it or not, stuck in the middle of this cultural change.  Religious belief can be far more complicated than issues of race or sexuality and it is inevitable that employers will struggle to cope with it at times.  Unfortunately ignorance or prejudice will often make this worse and we will continue to see similar cases in future.  Certainly Christians should be allowed to defend their rights on grounds of justice; the apostle Paul was often in court and did what he could to work the law to his advantage.  But also there is a wisdom needed that understands that the Church and the Christian faith cannot expect to be treated with a level of respect that it was previously, even if this is detrimental to society as a whole.  Some battles need to be fought, but Christians need to be careful about throwing the persecution label around unnecessarily.  A litigious Christian faith is not honouring to God and will win it few friends.  Knowing when to cease travelling down the legal path through appeals is part of that.  By taking the remaining three cases to the ECHR’s Grand Chamber, the lawyers can say that they have given it everything, but it’s really time to move on now, make sense of the implications and respect the decisions that have been made.

Categories: Faith in society, Human rights, The law & legal issues

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8 replies

  1. Once again, Gillan I find myself in large agreement with you. I think that it is time that we as Christians really thought long and hard about how to faithfully live out our faith and the callings into which this draws us as individuals in the reality of the shape of modern day society in the UK.

    This does not and should not mean that we neglect or diminish our own faith distinctive but rather that we learn how to live this out in a society where our faith-based values are no longer always the wider societal norm. Perhaps a closer read of the New Testament will help us understand how to deliver on this.

    Readers who may not have seen it when originally published last year may also be interested in the report on this issue produced by Christians in Parliament which can be found at this link – http://www.eauk.org/current-affairs/publications/clearing-the-ground.cfm

    • Thank you Matt. We are returning to a time similar in some ways to that of the early Church where to be a Christian is counter-cultural. I agree that we shouldn’t have to diminish the distinctiveness of our faith, in fact the distinctiveness becomes more apparent as cultural Christianity falls away. There’s a limit to how much we should fight – it’s not a New Testament principle, but that doesn’t mean that conforming is the alternative – that’s not biblical either. There is an alternative and John 15 provides some of the answers. Part of the point of this blog is to explore how we hold these elements in tension whilst remaining true to our faith.

      I’ve also provided a comprehensive review of the Clearing the Ground report by Christians in Parliament. The articles are here:

  2. it teaches us that Christians have not fought for or defended the Christian faith ferociously enough, before now….including the Sovereign Queen of England, who promised in her Coronation Oath to Defend THE Faith, and who, perhaps we have considered their own ambitions above those of God.

    It also teaches us Britain has gone so far from God, only a miracle will allow the anti-christian laws now in place, to be revoked.

    It also teaches us that intellectual christianity does not have a lot to do with Jesus work and the Word of God.

    It also teaches, that in Shakespeare’s words ‘the Law is an Ass’,

    and that God’s holiness is neither spoken of, known…valued or given consideration in our ‘me’ centred nation.

    Lastly, it teaches ME that we should rather ‘throw in my lot’ with Christians like Andrea Williams of Christian Concern, because they can SEE FURTHER THAN THE END OF THEIR NOSES..i.e. caring about children and their children’s

    children having their innocence stolen through the teaching they will be SUBJECTED to from the age of four; because of the sensual and sexual spirit of THIS age, because they CARE ENOUGH to COMMIT to CHALLENGING the destruction of the Christian foundations of British society….. WIN OR LOSE!

    Do read Lance Lambert’s prophecy about Britain given in

    2011…and, of course PRAY …..IN HUMILITY……please.

    Marie Laken

    P.S. Maybe you will, with respect, get off your high horse, and come and pray outside Parliament on Monday. It’s just too cosy sitting at your computer, bless you, and dishonouring Christians who are FIGHTING for the very soul of Britain.


    • I agree with your view that the spiritual climate in this country has largely slipped away from God because of the Church’s failure to stay close to him and to live and preach the Gospel. I don’t believe things will change significantly without another move of God and we should be praying for this.

      Just to let you know I have been inside parliament praying for marriage and the state of our nation on more than occasion recently. Words without actions are not enough.

  3. Interesting to compare this to the Scottish Midwives case. After first losing the case (not to be administratively involved in organising abortions) the midwives won their case in a higher court. The judge at the appeal court (a woman, interestingly) put it bluntly. She said that their right to conscientious objection must be protected because ‘it is recognised that the whole process of abortion is to many people morally repugnant’. Any inconvenience to the hospital or disruption of services is deemed irrelevant.

    In contrast, the belief that sex between two people of the same sex is morally repugnant is being treated by the European and UK courts as a prejudice rather than a moral position. This is despite the fact that the RC catechism prohibits any sex except coitus.

    It’s difficult to see the criteria behind these decisions.

    • I think the obvious difference is conscientious objection and one’s belief and the fact that someone feels something is repugnant. I think arranged marriages and honour killings are repugnant, and against my belief. So have I the right in such countries that allow such actions to demand my conscientious objection [if I lived there] is taken into consideration in my living there and in my employment activities. And also try to make illegal those things I find repugnant so that anything my belief or my conscientious objection finds repugnant overrides someone elses adult consented moral choice?

      • I’m not really following you. The words on the abortion case were ‘morally repugnant’ (ie. felt to be very wrong, not just ‘icky’), and the issue here is whether an employee has the right to refuse to be involved in some procedure and still keep their job, not whether someone has the right to demand that something is made illegal because they personally don’t agree with it.

        So the Scottish midwives got to keep their jobs and carry on delivering babies and caring for pregnant women, while refusing to have anything to do with abortion. Lillian Ladelle lost her job and cannot be involved in marrying men and women while refusing to officiate at same sex ceremonies. Gary MacFarlane was fired from Relate and can no longer carry on with his work of giving relationship counselling to all couples and sex therapy to heterosexual couples while refusing to give sex therapy to same sex couples.

        Those with traditional Christian beliefs can carry on delivering babies, but they’ve been pushed out of marrying or counselling heterosexual couples because of their objections to homosexuality.

        I’m not necessarily saying these decisions are wrong, all I’m asking is Why? On what basis?


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