We will have to wait some time before Strasbourg hands down its judgment in the religious discrimination cases it heard earlier this week.
Whatever the outcome – which is perhaps predictable – the Court’s ruling will have a significant influence on the place of religion in public life and on how the relationship between religion and the state should be structured to reflect the aims of fairness and mutual respect envisaged in the Convention.
The Equality and Human Rights Commission argues in its intervention submission that Strasbourg – and the UK courts – should move on from their “restrictive” interpretation of Article 9, summed up by Lord Bingham’s oft-cited description of the Court’s position in R (SB) v Governors of Denbigh High School  UKHL 15
The Strasbourg institutions have not been at all ready to find an interference with the right to manifest a religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.[para 23]
(This is a revised intervention after the EHRC responded to widespread criticism of its proposed argument in support of “reasonable accommodation” of employees’ beliefs – see Alasdair Henderson’s post on this dust-up “Leap of Faith” and our following post on the reversal of the EHRC’s position.)
In its intervention, the National Secular Society (NSS) contends that the Strasbourg position has always been that conduct which fails to respect the principle of secularity will not necessarily be accepted as being covered by the freedom to manifest one‟s religion and will not enjoy the protection of Article 9 – indeed Article 17 of the Convention forbids the reliance on one Convention to subvert the ideals and values of a democratic society (Zdanoka v Latvia [GC], no. 58278/00 and Refah Partisi (the Welfare Party) and Others v Turkey 41340/98 et seq). In Sahin v Turkey (2007) 44 EHRR 5 the Court assumed that the applicant‟s Article 9 rights had been interfered with, but found that the interference was outweighed by secular principles, in particular gender equality, which was “one of the key principles underlying the Convention and a goal to be achieved by member States of the Council of Europe‟.
The arguments at the core of this case centre around the question of whether Article 9 only protects manifestation of belief, as required by that belief, or whether it should extend to non-obligatory manifestations. The respondent government and the NSS maintain that the Convention does not protect every act motivated or inspired by a religion or belief. And here is the nub of the problem. The NSS submits that it is “doubtful” whether refusal to carry out a professional duty, or provide a service, can constitute a “manifestation‟:
Article 9…does not always guarantee the right to behave in public in a manner governed by that belief. The word “practice” used in Article 9 §1 does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief. (Reports of Judgments and Decisions 2001-X p 371)
Here are two instances where Article 9 protection has been refused for “manifestation”:
- a judge’s non-observance of his duties on grounds of conscientious objection (Cserjés v Hungary (dec.), no 45599/99)
- the refusal by two chemists to sell contraceptive pills on grounds of religion (Pichon and Sajous v France)
The NSS puts the question thus:
When determining whether the facts of a case disclose a manifestation protected by Article 9, what matters is not whether a given belief is legitimate, but whether the wearing of a particular item, on the basis of the applicant‟s own account of his or her belief, amounts to a manifestation – that is, whether it is the result of a command of conscience rather than a mere desire to express oneself
It is vital to maintain this distinction, they say, because otherwise there is a risk that Article 9 will coalesce into a hierarchy of rights “giving greater protection to religious forms of conscience to forms of conscience that are not religious in nature.” Certain acts, including the refusal to provide a service and the wearing or display of particular costume or symbols, should not qualify more readily for “manifestation” status when believed to follow from religious doctrine than when they result from philosophical conviction or rational analysis. If they do, then atheists, agnostics, sceptics and the unconcerned stand to be deprived of the “precious asset” of the broader protective umbrella of Article 9. An example is given of a refusal to employ mothers of young children that is based on a non-religious belief in traditional gender roles. This should receive no more or less protection than a similar refusal based on a religious commitment to such gender roles.
Quite so. One wonders therefore why the Equality Act 2010 contains special exemptions for religious belief that subvert the very neutrality that it seeks to impose on society:
- charities may make acceptance of a religion or belief a condition of membership (section 193)
- faith schools may give preference to members of their own religion in their admissions criteria (schedule 11 para 5)
- religious employers may in certain circumstances discriminate on grounds not only of religion but also sex, marital status and sexual orientation (schedule 9 para 2(6))
In Sahin the Strasbourg Court has affirmed Article 9’s role in imposing on contracting states a “duty of neutrality and impartiality”
Article 9 does not protect every act motivated or inspired by a religion or belief.
The belief itself must have “a certain level of cogency, seriousness, cohesion and importance”. This test prevents the protection of Article 9 from being expanded beyond reasonable limits.
The EHRC puts a different spin on these cases. It submits that Strasbourg’s early restrictive approach to manifestation has led to a narrow interpretation of Article 9 by the United Kingdom courts, which rarely accept that a restriction on an individual’s religious practice must be justified under Article 9(2)
the Commission is concerned by the tendency in domestic law to narrowly construe the scope of manifestation. The fact that not all Christians choose to wear a cross should not necessarily undermine the rights of those Christians for whom the display of the cross is an essential and reasonable aspect of their autonomous interpretation of their faith.
In the EHRC’s submission, recognition of the principles of “dignity and autonomy” requires an approach to the definition of manifestation that “focuses primarily on the conviction of the adherent”, providing the manifestation is carefully scrutinised if it is not a requirement of the religion and belief. Subject to this, the Commission invites the court to find that Article 9 applies in these cases and that, as a matter of general principle, it applies if an individual’s desire to manifest a belief is motivated by a “genuinely held belief” that attains a certain level of cogency and seriousness and is not unreasonable.[para 16]
But that requires courts to enter into an investigation of the genuineness of belief – an impossible and undignified enterprise – which in turn brings the court teeteringly close to assessing the integrity of the belief system itself, something which the architects of Article 9 cannot have envisaged in their wildest nightmares. See David Hart’s post about religious no-go zones.
The EHRC also criticises the “unsatisfactory” legal position in the UK where claimants are more likely to succeed on race discrimination grounds where the same complaint does not reach the high threshold for establishing an interference with Article 9. This, they say
leads to a failure to guarantee the same level of protection for individuals asserting a purely religious identity as it does for those whose religious and racial identities are intertwined.
But this is a non-sequitur. You can choose your religion. Race, gender, sexual orientation and disability are immutable. Where a person who has voluntarily adhered to a set of religious beliefs seeks exemption from the requirements of the workplace (and in some cases, those of the 2010 Equality Act), he or she should be in no better position than non-religious person who does not have a theistic credo to back up their views (see Alice Donald’s interesting post on the debates around this question). In any event, the courts naturally and logically find no discrimination where both religious and non-religious persons are equally prevented from opting out of civil society’s requirements . There is no discrimination on grounds of religion or belief. Similarly, wearing a crucifix is a matter of personal choice, as the Court of Appeal has found in the First Applicant’s case.
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