European Court Rules on Religious Freedom Cases
Greg Daly - published on 01/16/13
In considering her case, the Court recognised that Ms Ladele’s views on civil partnerships were directly motivated by her religious faith, and thus were entitled to protection under the Convention. It also recognised that Ms Ladele did not waive her right to religious freedom when she accepted her employment contract, and that the change to her terms of employment had a “particularly detrimental impact on her because of her religious beliefs”.
However, the Court also recognised that Ms Ladele’s employer aimed to secure the rights of others, and concluded that neither Ms Ladele’s employer nor the UK domestic courts had exceeded the ‘margin of appreciation’ available to them to balance these rights, their decisions being, if not quite justified, at least justifiable. In effect it decided that the act of balancing between two sets of rights was best left – in this case – to the member countries.
The fourth applicant, Gary McFarlane, joined a relationship support charity in 2003, and in 2006 began a diploma in psycho-sexual therapy, fully aware that he would be expected to advise both straight and gay couples. Concerns were raised about conflicts between his religious beliefs and his duty to provide psycho-sexual therapy for same-sex couples, and he was suspended from work before being dismissed for gross misconduct. Citing discrimination, Mr McFarlane unsuccessfully appealed against this to an employment tribunal, the Employment Appeal Tribunal, and the Court of Appeal.
The Court accepted that Mr McFarlane’s refusal to advise homosexual couples was a legitimate manifestation of his religious beliefs, but determined that the most important factor in the case was Relate’s intention to provide a service without discrimination; given this, the domestic courts had a ‘wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others’. As with Ms Ladele, the Court found that the domestic courts had not exceeded this margin.
On the face of it, for only one case out of four to have succeeded is disappointing, and the decision in the case of Ms Ladele is particularly galling. The partly dissenting opinion of Judges Vucinic and De Gaetano noted that her case was less a case of freedom of religion than of freedom of conscience, and that the majority judgment did not give due attention to the member states having a real obligation to respect that.
“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.”
It would seem that Ms Ladele, at any rate, has strong grounds for challenging this decision in the Grand Chamber of the European Court of Human Rights.
More positively, it should be stressed that Ms Eweida’s victory is the first defeat for the UK in a case brought in connection with freedom of religion. Even the other judgments may turn out to be important through their implicit rejection of arguments made by the British government which would have had the effect of restricting freedom of religion to a narrowly-defined freedom of worship.
Clearing the Ground, a British Parliamentary enquiry into the freedom of Christians, found in early 2012 that, while Christians are certainly not persecuted in British public life, the public space for Christians has been narrowed, largely due to religious illiteracy, which “has led to legal restrictions on how faith can be expressed”.
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