Religious freedom in UK to be considered by Strasbourg Court
3 September 2012
Macfarlane and others v United Kingdom (ECHR 329 (2012) – read press release
Tomorrow the Strasbourg Court will hear complaints in four applications that UK law has failed adequately to protect the applicants’ right to manifest their religion, contrary to Articles 9 (freedom of religion) and 14 (prohibition of discrimination). See our posts on these cases here and here, and in the related Preddy case here.
All four applicants are practising Christians who complain that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complain that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor, complain about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality. Their challenges to their consequent dismissal were rejected by the UK courts on the basis that their employers were entitled to refuse to accommodate views which contradicted their fundamental declared principles – and, all the more so, where these principles were required by law, notably under the Equality Act (Sexual Orientation) Regulations 2007.
The judgment is awaited with considerable anticipation: the National Secular Society and the Equality and Human Rights Commission have both filed intervening submissions under Rule 44 §3 of the Rules of the Court.
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@David Shepard uses as part of his argument: “…Sikhs who wear turbans are exempt from the use of mandatory safety headgear on construction sites…” and conflates this with the fact regarding wearing of a cross that “…the item is not a uniformly imposed requirement of the Christian faith…”.
But neither is the wearing of a turban for Sikhs. Many Sikhs I know do not wear a turban so this argument is invalid.
Unfortunately, the issue is that the ECHR has fairly strict criteria for determining what qualifies as a manifestation of one’s religion. It must be prescribed by religious authority, such as scripture or canon law, rather than merely inspired, or encouraged.
The British Sikh Federation successfully campaigned for an exemption from wearing a safety helmet or hard-hat on construction sites. So, in Section 11 of the Employment Act, it states: “Any requirement to wear a safety helmet which …would, by virtue of any statutory provision or rule of law, be imposed on a Sikh who is on a construction site shall not apply to him at any time when he is wearing a turban”.
In the case of an article that is not considered a manifestation of one’s religion, the ECHR has stated that it ‘is likely to recognise a certain “margin of appreciation” on the part of state authorities, particularly where the justification advanced by the state is public safety’.
So, Sikhs who wear turbans are exempt from the use of mandatory safety headgear on construction sites and Muslim modesty is accommodated in the NHS by allowing headscarves and providing disposable plastic over-sleeves. These ‘requirements’ of religion trump public safety.
In contrast, the Court of Appeal upheld an employer’s right to ban the wearing of a one-inch long crucifix because:
1. the item is not a uniformly imposed requirement of the Christian faith and therefore cannot be defined as a manifestation of religion.
2. banning the item does not put Christians, as a group, at a disadvantage through indirect discrimination. The appeal was not denied because the item was considered a threat to safety.
On this basis, I doubt that the cases relating to wearing a crucifix will succeed. While I feel compassion for the petitioners, those cases will clearly distinguish the genuine requirements of Christian faith from those religions that prescribe conformity to externalisms of attire.
Fortunately, Christianity is designed to adapt to the likely total denial of its adherents’ human rights. As Christ said, ‘God is spirit, and his worshipers must worship in spirit and in truth.’ Anything more is the insidious yeast of the Pharisees, tarnishing the purity of internal devotion with repetitive form, ritual and the ostentation of religious symbols.
I refer to the thoughful analysis written by Josh Rosenberg on Law Gazette last week on this issue. To me the HRA is and always must be a question of balance between the rights of individual’s with the rights perceived by society as norm. The concept of individual expression or thought’s are for ever changing and evolving, what is acceptable today may not be tomorrow and vice versa. Thus the registrar had no civil cremonies to perform when she was first posted and being asked perform these functions now due to legislative changes arisen due to societal values and feelings .
The rights of a valued employee, who clearly has strong faith must always be given strong consideration, but equally her religion must not dominate or promote differential treatment so as to breach that concept of equality. Here, surely the employer can permit the employee to function in her post by excusing her civil ceremonies role to be performed by another registrar. But, there may come a time where a particular district has overrding civil ceremonies which makes the employer very difficult to accommodate the employee unless s/he is able to compromise- or find another suitable post elsewhere.
Equally, wearing religious symbols must not be a front for religious bigortary or promotion of difference. If like here a public official wears a cross clearly visble for all to see (though some might think there are other ways of cementing one’s religion or belief) then if the same public whom she is serving objects in sufficient numbers then clearly the employer must act. To me religion must not be a badge for indifference.
Ladele and McFarlane don’t seem bothered to offer their services to divorced people or people who openly like to eat shrimps (which is clearly forbidden by the bible!)
This shows to me that their cases are not about religious freedom, but about personal views which happen to be backed by obscure religious teachings, teachings that apparently they pick and choose as they wish.
As a layman I probably must be missing the whole point, but the whole thing just seems so silly to me. I find it a disgrace that these people are taking their cases to the Strasbourg court, spending public money and time, just for the right of discriminating in name of religion, while so many others are fighting to end discrimination and bring people together. I have a bad feeling about this and I can’t wait to see the outcome.
Um, doesn’t the wearing of crosses go against Matthew 6:1-6 ?