A former British Airways employee won a victory this week when a European court upheld her right to wear a crucifix at work, despite her employer’s objection. But secularism had the run of the day at the same court. When conscience clashes with new postmodern understandings of equality, religious freedom often suffers: That’s what happened this week when the same court rejected their conscience claims. Paul Coleman, a lawyer with the Alliance Defense Fund and author of Censored: How European ‘Hate Speech’ Laws are Threatening Freedom of Speech, discusses the four cases involving religious liberty decided this week with National Review Online’s Kathryn Jean Lopez.
KATHRYN JEAN LOPEZ: What do you make of the mixed bag of rulings that the European Court of Human Rights delivered Tuesday?
PAUL COLEMAN: Nadia Eweida’s victory is historic. The ECHR has been in operation for just over 50 years. In that time, it has found approximately 13,000 violations of the European Convention on Human Rights but only 40 violations of the right to freedom of religion under Article 9 (approximately 0.3 percent of all violations). Secondly, the United Kingdom has never been found in violation of Article 9. In the Court’s written opinion there is some very helpful language which strengthens the protections afforded to freedom of religion. In particular, the Court took the opportunity to overturn several previous decisions that had unhelpfully stated that if an employee faces difficulties in the workplace because of his or her faith, having the freedom to resign is the best they can hope for. So in that context, this is in no way a minor or token victory.
While the Court could certainly have gone much further in protecting religious freedom, particularly in regard to the freedom of conscience, the victory in one of the cases is still extremely welcome and long overdue.
LOPEZ: Defenders of religious liberty are excited that the British Airways employee won her crucifix-on-the-job suit. But are the losses the more important news of the day?
COLEMAN: The losses in the conscience cases are deeply disappointing, and it is hoped that they will be overturned on appeal. The ECHR has stated on numerous occasions that freedom of religion is a “fundamental right.” Given that the applicants could easily have been accommodated by their employers, it is hard to see how such a fundamental right can be so easily overridden.
However, it is important to note that the ECHR, in deciding against the Christians, didn’t put in place a principle that will stop all future cases from being successful. Rather the Court held that it “allows the national authorities a wide margin of appreciation [i.e. discretion] when it comes to striking a balance between competing Convention rights. And, as it assessed these cases, it held that, “in all the circumstances, the Court does not consider that the national authorities . . . exceeded the margin of appreciation available to them” (paragraph 106).
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.”
LOPEZ: What’s next for those who lost?
COLEMAN: Both Shirley Chaplin and Gary McFarlane have stated that they will appeal the decision to the Grand Chamber of the Court. Nothing has been announced from Lillian Ladele’s lawyers at this time but it is likely they will also appeal.
LOPEZ: What’s the approach for appeal in the “Grand Chamber” of this European court?
COLEMAN: The Grand Chamber is composed of 17 judges (as opposed to seven in a Chamber decision) and any case appealed to it is heard afresh. Unfortunately the Grand Chamber hears fewer than 20 cases per year, so it is by no means guaranteed that the U.K. cases will be accepted at the highest level. In the famous case of Lautsi v. Italy (2010), in which Alliance Defending Freedom represented 33 members of the European Parliament, a Chamber decision unanimously held that Italy was in violation of the Convention for displaying crucifixes in public schools. The case was appealed to the Grand Chamber, which overturned the decision by a 15–2 margin. This recent case should provide encouragement to the three applicants who lost yesterday.
LOPEZ: Do you have hope for legislation?
COLEMAN: The British prime minister, David Cameron, had previously stated that if the cross cases lost at the European Court, he would change the law. Shirley Chaplin, the nurse who lost her case yesterday, said, “I still expect David Cameron to change the law and anything else would be a broken promise.” However, laws in the U.K. are already in place to protect Christians. There is the Equality Act 2010, which prevents discrimination on the grounds of religion, including Christianity, and there is the Human Rights Act 1998, which enshrines the European Convention into domestic law, giving Christians protection under Article 9. The Human Rights Act also includes a clause which states that, “if a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.”
The solution, therefore, is unlikely to be more legislation, but better interpretation of existing legislation. At the moment freedom of religion is being interpreted so narrowly that there is very little protection for religious believers at all. Rather than more legislation, the U.K. and Europe must see freedom of religion as encompassing far more than merely freedom of worship.
LOPEZ: What is religious liberty in Britain today? What are its biggest challenges?
COLEMAN: There is no doubt that religious liberty is under serious threat in Britain, particularly for Christians. In the language of “equality,” “diversity,” and “tolerance,” secularists have found a way to sideline and marginalize Christianity, successfully framing the moral beliefs of Christians as “intolerant” or “discriminatory” and unworthy of protection. Unless a true balance is found, where Christians can be accommodated in the public square and not shut out, we will see many more cases like the four before the ECHR in the headlines.
LOPEZ: What is the lesson for America?
COLEMAN: Most of the cases in the U.K. emanate from a misunderstanding of true equality and diversity, and the raft of equalities legislation passed over the last ten years has simply provided the legal mechanism to marginalize those who hold “politically incorrect” beliefs on issues such as marriage and sexual morality. If America passes legislation such as the proposed Employment Non-Discrimination Act (ENDA), it can expect to see a large increase in litigation similar to the cases being seen in Europe. The message to America would therefore be: “Look what’s happening in Europe when it comes to equalities legislation, some are more equal than others.”
— Kathryn Jean Lopez is editor-at-large of National Review Online.