The European Court of Human Rights, often unfairly, gets a regular kicking in the British press. So it's good to see that the judges in Strasbourg have come up with a series of careful and nuanced rulings this morning on the issue of religious discrimination that are a cracking advertisement for exactly why we need such a court.
The judgements cover four cases that were brought by British Christians who claimed they were discriminated against by their employers because of their religious beliefs.
British Airways steward Nadia Eweida and NHS nurse Shirley Chaplin both lost employment tribunals because they refused to take off necklaces bearing a crucifix. Lilian Ladele, a marriage registrar from Islington, and relationship counsellor Gary McFarlane lost their jobs because their opposition to same sex relationships impinged on their ability to do their jobs without discriminating against others.
While accepting Eweida had been discriminated against, the ECHR threw out the other three cases for very good reasons. I’ll go into why the judges found the way they did below.
Striking a fair balance
As these cases have wound their way through the courts, the Christian right has portrayed all four as examples of how adherents are discriminated against and how their faith is supposedly being marginalised in the public sphere. They have already started to portray the Eweida win as an important victory “upholding the right to wear a cross at work”.
But, as the ECHR has ruled today, it’s a lot more complicated than that and, in reality, this is a loss for the Christian lobby.
At the heart of this legal and moral debate is the question of competing rights. Religious freedom is a vital human right recognised by both UK and European law. But it is not an absolute right. That’s because occasionally the religious views of one person may impinge upon the equally valid rights of another group of people.
Religious opposition to same sex relationships is the most common current day example of this dilemma. Those with theologically inspired opposition to same sex relationships are allowed to be anti-gay. They can disapprove of same sex relationships, publicly speak out against them and say they are damned to eternal hellfire if they like.
But where the courts are often asked to draw a line is when a religious person directly impinges the rights of a gay person. It’s a classic example of the liberalism espoused by JS Mill. Generally, we should be allowed to do, say and believe what we like as long as what we do doesn’t harm (and that does not include causing offence) others.
In the two cases of the marriage counsellor and the registrar, Strasbourg ruled that the British courts “struck a fair balance” between these competing rights when they decided McFarlane and Ladele’s employers were right to dismiss them. Here were two Christians, employed to offer a service to all people regardless of race, gender and sexual orientation who couldn’t do so because of their religious belief.
The court found that both the marriage charity Relate and Islington borough council had clear policies that “required employees to act in a way which did not discriminate against others.” These policies, the court found, “had the legitimate aim of securing the rights of others, such as same-sex couples, which were also protected under the Convention (My emphasis).” Treating people differently because of sexual orientation “required particularly serious justification”.
The court has effectively reinforced a point it has made many times before but it’s an important one to restate again and again: religious rights don't trump rights of others unless there is a very good reason. A balance has to be struck and in these cases, the ECHR ruled, the British courts did the right thing.
The crucifix cases are slightly different. Unlike Judaism, Islam and Sikhism which (depending on the school of thought) compel a believer to wear certain items or forms of dress, there is nothing in Christian doctrine that states an adherent must wear a crucifix. It’s a manifestation of one’s faith, but it is not dogma. Nonetheless the manifestation of faith is an important human right.
For Eweida and Chaplin no-one else’s rights are being directly threatened by their desire to wear a crucifix. So why did the court find in favour of Eweida and not Chaplin? The answer is relatively bland – sheer practicalities.
As an NHS nurse Chaplin has to conform to her employer’s standards on health and safety. When the hospital she worked at brought in new v-neck uniforms she was asked to remove her cross. Doctors feared that any overhanging jewellery might pose a risk because it could be pulled on by a patient or might touch an open wound – increasing the risk of infection. Given the importance of health and safety in a hospital the ECHR concluded that requiring Chaplin to remove her cross “had not been disproportionate and that the interference with her freedom to manifest her religion had been necessary in a democratic society.”
A silver lining
Eweida had more luck because BA’s policy to ban her from wearing a cross was fraught with inconsistencies. As a Coptic Christian, Eweida had always worn a small crucifix under her uniform. In mid-2006 she decided to wear the cross openly. British Airways’ uniform code required women to wear a high necked shirt and a cravat, with no visible jewellery and when Eweida refused to remove her crucifix she was offered admin work where she wouldn’t need to wear a uniform. Ewieda refused. Then in February 2007, BA backed down and allowed employees to display religious or charity symbols.
That U-turn was one of the crucial reasons why Eweida won her case. The court once more spoke of competing rights but in this case it was the right of an employee to manifest their faith and the right of an employer to protect its brand image. In this case, BA had allowed Muslims and Sikhs to wear hijab/turbans respectively. So its brand image clearly didn’t demand the secular. Meanwhile, the fact that the company later changed its uniform policy meant – in the eyes of the court – “that the earlier prohibition had not been of crucial importance”.
Ultimately today’s rulings are a blow for the Christian lobby. Only one out of the four cases won and the one that did, did so because BA had an inconsistent policy towards protecting faith in the workplace.
What the ECHR hasn’t done is given Christians – or any other religion – a carte blanche to discriminate against others on the grounds of belief. It means future claims where Christians have discriminated against gay men and women when offering services (such as a B&B room) and then pleaded religious freedom are less likely to succeed.
But the Christian lobby shouldn’t feel too down because there is a silver lining. The legal point that competing rights don’t automatically trump each other might protect them one day. After all, if a gay B&B owner refuses to accommodate a Christian because of their beliefs; or refuses to marry a Christian couple; or provide them relationship counselling – there’s a strong chance they’d win their case in the courts for the same reasons.