While this is very frustrating for religious believers in countries like the U.K., 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.
LOPEZ: Is this religious-freedom issue when it comes to gay marriage and homosexuality in the public square an underappreciated one? Should those cases raise alarm bells for Americans?
COLEMAN: The threat to religious liberty in the U.K. has come in a context where same-sex “marriage” does not even exist. And yet, even in this environment, people are consistently being punished for believing in traditional marriage. As the Christian Institute, the organization that backed Lillian Ladele throughout her case, put it, “What this case shows is that Christians with traditional beliefs about marriage are at risk of being left out in the cold. If the Government steamrollers ahead with its plans to redefine marriage, then hundreds of thousands of people could be thrown out of their jobs unless they agree to endorse gay marriage.” A leading U.K. lawyer, Aidan O’Neill, has similarly expressed concerns over the impact on areas of everyday life should same-sex “marriage” be legalized. These conscience cases should therefore serve as a warning to anyone who believes that introducing same-sex “marriage” poses no threat to religious liberty.
LOPEZ: Should a court ever be in the business of determining what exactly a particular religion mandates, and in specifics like a piece of jewellery? Should these questions be in court?
COLEMAN: This is where the domestic courts in the U.K. erred. As Alliance Defending Freedom put it in its submission to the ECHR: “The Court cannot operate distinctions between religions based on whether or not the manifestation of the religious belief was a mandatory requirement. If such an approach was adopted by the Court, it would be easy for an adherent of a religion that has many obligatory rules, regulations and duties to show a manifestation of his belief, whereas an adherent of a religion that is not rule-based will have less protection under the Convention, as his actions will not be based on strictly imposed duties.”
One of the positive aspects of the ECHR decision was its rejection of the “mandatory requirement” test. In paragraph 82 of the judgment the Court affirmed that “there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question.”