Are Christians really marginalised in this country?

7 September 2012 by

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 [2006] 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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  1. Paul de Mello says:

    Religion, or to be precise, attraction to (a) Religion, is not deemed to be a choice like ‘dating’ is, and is more like a ‘reaction’. I believe cognitive scientist refer to religion as a “spandrel” (byproduct). If you were wired up to a neurographic lie detector the reaction-over-choice would be more obvious when compared to a true believer’s reading. What category of ‘choice’ or ‘reaction’ a bisexual-relationship or transgender post-op person would fall into is not explored.

    That said even if you play with the concept of ‘choice’, there are points of comparison. I would compare Religious employees (Art.9) to Trade Unionist (Art.11) workplace rights and maternity/fertility rights (Art.8&12). Trade Unions are ultimately a manifestation of philosophical belief systems. Industrial Action, be it withdrawal of labor or working to rule is a form of conscientious objection to the terms and conditions imposed by the employer. In other contexts such disruption to obtain financial gain would be deemed blackmail. Yet reasonable accommodation is granted, both in terms of identifying that you are a member and to changing your work pattern to meet your membership requirements.

    Likewise, when it comes to Family rights to IVF/Maternity/Flexible-Working, reasonable accommodation is to be granted even though it is a choice and disadvantages other employees, and even displays of family life, like wedding rings/bands/studs are given exemptions from uniform policy.

    I find it weak to argue that ‘reasonable accommodation’ for ‘choice-based’ HRA Article 11 (Trade unions) and HRA Article 8 & 12 (family) rights should be granted in the workplace, but not for HRA Article 9 (faith) or any other HRA rights?

    Regarding symbols, Unicorns appear on coat-of-arms on flags and educational/military uniforms , and even secular France allows emblems like the Marianne figure or the Juno/Liberty figure (official seal) to be used in the work place. I note one example of a Muslim worker that had returned from Hajj pilgrimage and wanted his name badge to say ‘Haji’ instead of ‘Mr’ as display of his faith. Considering that the company would let newly married women change their title it would be discrimination if they did not allow him the same choice would it not?

  2. John D says:

    A very interesting set of comments above. I am late in making my comment due to experiencing computer problems. I have now chosen to buy a new lap top computer. It is my choice and I have freely exercised it.
    The same is true of other products, such as religion and football. Religion is a product which consumers make choices over, as can be seen by the phenomenon of religious conversions or in people abandoning religion.
    The same may be true of football and other similar spectator sports (which does include religion, of course, in most cases). While people may feel a temporary commitment to a particular brand of religion or some other largely intangible brand of consumer product, this does not make it immutable. People can and do change brands or simply stop taking notice of branding strategies altogether. I come under this last category.
    In the case of the male homosexual couple refused accommodation, it should be realized that the owners were not simply providing accommodation for family friends. They – also – were not running a small B&B but were – in fact – running a fully registered hotel business, under which they had a legal responsibility to provide accommodation to anyone requesting it. Do please check your facts before coming to a judgment on matters like this. Reading the Daily Mail and other similar low-brow publications just will not do if you want to acquire an intelligent understanding of the issues involved.
    There is another aspect which no one above has touched on and that is how the behaviour of individual employees may impact upon the customers of the businesses involved. People who are not consuming any particular brand of religion may feel uncomfortable when confronted by aggressively religious individuals who insist on flaunting their religiosity in everything they do. How would you all react if, as you were boarding a plane for a flight, some of the airline staff started praying as you were walking up the steps to board the plane. How comfortable and confident would this make you feel? If this example seems extreme, bear in mind the insistence of some religiously motivated pharmacists that they should be allowed to refuse to dispense a GP prescribed morning-after pill to a young woman on the basis of their religious beliefs. Does everyone consider this is acceptable behaviour?
    I have also pointed out previously that it is my belief that some of these complainants are more interested in the money they can chisel out of their employers in the form of tribunal compensation than they really are about the actual issues involved. I note that the government is talking about reducing this level of compensation, which is currently capped in excess of £74,000.
    As the old saying goes, “Follow the money if you want to know the truth” !!

  3. Theo Hopkins says:


    Can I insist that I can wear a portrait (a small one) on a chain around my neck
    The portrait would be of our Saviour, the blessed Richard Dawkins, as a witness of my atheism

    1. The Engineer says:

      Why ever not?

    2. Stephen says:


      Provided there is no H & S hazard or some other interference in your effectiveness I don’t see why wearing the said item should be the business of your employer.

      Professor Dawkins is a respected academic and so I doubt his portrait would bring your employer into disrepute.

    3. David Shepherd says:

      Yes, of course you can wear a Richard Dawkins cameo necklace, if indeed you view him as the Saviour of the atheist cause.

      Other atheists might disagree most strenuously, but your rights are sacrosanct (sorry, I mean protected).

  4. Michael Duncan says:

    Sexual orienation is also arguably mutable (given that people can and do change their sexual orientation during the course of their lives), as is to some extent whether or not a person has a disability (given that a person can receive corrective treatement which might nullify the effects of the disability), further weakening the proposition that religion should not be protected as it is not immutable.

  5. In same breath as eshewing the idea that actions arising from religious belief should be accorded *greater* exemption than those arising from non-theistic values, Rosalind English accords religion a *lesser* status with respect to other characteristics because (she claims) it differs by involving choice.

    So, first she oppose a hierarchy that privileges religious belief above secular values, but then she privileges race, gender, sexual orientation and disability above religion: ‘You can choose your religion. Race, gender, sexual orientation and disability are immutable’.

    In fact, our society accepts that even a person’s birth gender is not immutable, but that it may be altered through gender reassignment. Clearly, immutability cannot be a rational basis for according a characteristic, like religion, a lower threshold than gender for establishing interference with Article 9 rights. In fact, Rosalind has employed a flimsy rationale for undermining the status of religion.

    What she misses is the fact that the protections accorded equally to religion, race, gender, sexual orientation and disability have more to do with respect for fundamental aspects of person’s identity, than demonstrable immutability.

    Article 9 rights aim to balance respect for *responsible* personhood (hence the need for “a certain level of cogency, seriousness, cohesion and importance”) with respect for the broader needs of society.


  6. ObiterJ says:

    For many entirely reasonable non-legal people out here it matters not how all this is dressed up. The whole appearance is that the Christian is being penalised whereas other religions are not. This can hardly be a healthy state for the law to be in.

  7. Kate says:

    @ The Engineer, the point that is frequently forgotten in the question of wearing religious jewellery is that the cases which came to court had nothing to do with displaying a religious symbol, they had to do with wearing jewellery in contravention of a Company policy which stated that staff must not wear jewllery of any kind. It isn’t a religious argument, it’s an argument about a trouble-maker who refused to follow Company dress code and it’s been blown up into a religious argument by a small group of Christian troublemakers who apparently want to see Christians given a position above the law..

    1. Stephen says:

      So company policy is sacrosanct and should be given the status of scripture, should it? My irony klaxon has just exploded!

      1. Why should scripture have any status whatsoever?

        1. David Shepherd says:

          Er…I think that’s his point. If, as you appear to suggest, we should relegate the status of scripture in a largely secular society, we can’t then vaunt company policy to the point of assuming it to be sacrosanct and incontrovertible.

          Therein lies the irony.

  8. frednach says:

    The two cases at Strasbourg currrently being pursued raising an interesting issue affecting all religious persuasions. The precedent has been set in one important case of Ahmed v UK where a school teacher was not permitted to take Friday afternoon’s off for Friday prayer’s since he must has realised this when he accepted the contract. More, importantly it would set a precedent and fundamentally affect his contractual teaching duties. This case therefore makes clear that religious practices are not absloute and have to give way where such practices interfere with public good ie child’s education.

    However, this case can be contrasted with the case of the Registrar objecting to conducting civil ceremonies, which she was not required to perform upon initiating her contract many years back. Nonetheless, she must have realised this since the introduction of legislation. The question for the court is to what extent has the employer to consider her views balancing with the needs of public. I agree with Josh Rosenberg who has argued what ever the outcome of the case (hedge a bet, contrary to my religion, in favour of the employer) surely in a democratic state a reasonable employer should be able to accommodate her belief’s without breaching any public morals. And vice versa, a reasonable employee should be able to perform her substantive duties without alienating the public.

    With regards to the wearing of religious sysmbols aside from any health and safety issues, most people have no objection providing it is not used as a symbol or a badge as a means of expressing indifference or preferance.

  9. Michael Duncan says:

    Fantastically well put RCAP.

  10. RCAP says:

    “You can choose your religion. Race, gender, sexual orientation and disability are immutable”

    This is an odd viewpoint, but an increasingly prevalent one among secularists. The logic is that since it is possible to change religion, religions are a matter of choice. There are however two difficulties.

    (1) The first, and more important, is that this viewpoint is entirely external to the nature of the commitment involved in religious belief.

    Possession of a religious belief is a commitment to truth: to the belief being correct, or right. That is just what a belief is: to use Finnis’ example, the phrase “I believe that p is true” is TRANSPARENT for (ie. the same meaning as) “p is true”. The terminology of “choice” of religion, with its overtones of the marketplace and a free selection between substitutable goods, not only commits the user to a thinly veiled relativism between religions, but entirely misunderstands what religious belief involves. For a Christian, the belief that Christ was and is God is not one that “fits” better than the view that Vishnu is a god, but one that is true.

    That is just what religious belief is, and turning it into a glorified fad is nothing but sleight-of-hand. You might as well say that you can “choose” to think that killing babies is wrong. Both are subjective non-falsifiable beliefs: both involve a commitment to what is true.

    (2) The second, less important, objection, is that this also mischaracterises the way that religions are instilled in individuals. As an English Catholic, the ways that I think, believe, pray, and act are rooted in two decades of my own upbringing, and centuries of the Church’s tradition. I could as easily become a Vaishnavite tomorrow as I could a hippie: both are theoretically possible, but would involve a complete transformation of my categories of thought, values, and lifestyle.

    Doubtless the second objection is seen by secularists as only a temporary difficulty: once we have a truly secular state, and a truly secular school system, and teach only the values we like to teach, then religion truly will be a matter of choice, and the “indoctrination” that forms the bulk of the objection will be swept aside. But this reductive and illiberal paternalism is replete with its own set of problems.

  11. The Engineer says:

    The unfortunate B&B owners didn’t turn away a gay ‘couple’ as I understand it; they offered separate beds.

    If one may wear a plain disc, why not a cross? Surely it is the people who purport to fin symbols “offensive” who need to learn tolerance, rather than be indulged by courts.

    1. If one can wear a cross (or yarmulke/turban/hijab/burqa) as a symbol for one’s ideological beliefs, why not a swastika? I suspect that you would show far less tolerance towards symbolic displays of allegiance to an ideology that you personally found offensive, no matter how sincerely the wearer held those beliefs.

      1. Because wearing a swastika would imperil an employer’s reputation. Wearing a cross doesn’t.

  12. Tim says:

    I think the argument presented here is very strong. I worry about what the Supreme Court may come up with in the B&B case because anybody can hold any view and claim that it is ‘religious,’ even though there may not necessarily be much/any biblical basis for it, let alone a logical or moral basis.

    When I asked what is the difference between the B&B owners turning away a gay couple and turning away me because I’m Deaf, some other commentators quite rightly pointed out that some part(s) of the OT do indeed put down disabled people.

    Religious tomes and confirmation bias make a for a very dangerous combination – people can poisonous cherry-pick the parts which confirm their prejudice against other people and then misrepresent it as a ‘religious’ view. I don’t think that is something which should be allowed to happen.

  13. The word significance should read significant in the opening sentence above, The word religion should read religious in the first sentence of the last paragraph. Typos.

  14. Stephen says:

    OK. Fair enough.

    But there is a significance difference between “act manifestation”, where an employee’s acts or omissions affects the service or product delivered by the employer to a customer, and “display manifestation”, where an employee merely wishes to wear a badge of their religion or belief.

    The latter, unless there are H & S reasons or a risk to the employer’s reputation, does not affect the service or product delivered by the employer. For this reason, I cannot see that wearing a badge proclaiming belief should be an employer’s business (subject to their being no H & S or reputational risk factors)

    It’s not just religious belief that is at stake here. The ban would extend to employees wearing badges proclaiming their charitable activities or humanitarian causes too. So much for diversity!

    For me, the issue is not about religion freedom. It is about an unjustified right of intrusion and excessive power given to employers in cases where the justification is weak and based on dogma. Increasingly, and insidiously, there is a belief that employers should be exempt from the normal rules of engagement and should enjoy legal protection for what appears to be unnecessary oppression. The Corporate State, perhaps?

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