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.