Religion in the dock: navigating the legal landscape of religious discrimination

Jan Feb 2012 008On Tuesday the European Court of Human Rights will issue its judgement on four cases concerning religious discrimination. The cases, brought together against the UK government are the culmination of several years of progress through the layers of courts and together represent a significant moment for understanding the role of religion in public life in the UK. The cases of Eweida, Chaplin, Ladele and McFarlane have all attracted headlines at multiple points during their consideration, and this will certainly be true next week.

Ahead of the judgement I wanted to explore the contours of the cases and the legal landscape, in an attempt to clear some space for a considered and thoughtful response. I intend to write a more opinionated piece soon in which I may venture some predictions as to how I think the cases might be decided. But I also might not. Also, big caveat required, I’m not a lawyer, so I may have got all of this analysis wrong, or it might be over simplistic.

The judgement will be poured over in considerable detail in the days, weeks and months to come, and it could establish important precedent for future cases before UK courts. The judgement could also be couched in very narrow terms which mean it doesn’t set precedent and the applicability is limited to the specific cases in question. It is also possible that the judgement will not be universal for all the four cases, so one may win and the others lose, or any other variation on that theme.

The legal analysis is unlikely to matter much for the immediate press response which will be either: “Christians are marginalised”, or “vital victory for freedom of religion”. Call me a cynic if you wish.

It is not just the mainstream media that will jump to immediate and potentially generalised conclusions, the same can sometimes be true of Christian as we respond to the news. I think it is therefore important to understand what is going on, both with the cases in question and in the legal processes involved. I was going to put a profile of the four cases up, but Gillan over at God and Politics has put up the summaries from the hearing in September last year. At this point anything further I have to say would be editorialising as to the relative merits of the four cases, something which for now I will refrain from.

As well as understanding the facts of the cases it is also help to know what the courts are adjudicating on. The cases have been brought under Article 9 of the European Convention of Human Rights which protects freedom of religious belief, with Article 14 – freedom against discrimination – also in play. Article 9 is split into two sections, the first provides for the freedom of thought, conscience and religion and the second the manifestation of said religion or belief. The first is without restriction, the latter is open to limitation “as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

In assessing the cases the courts take a four step process to consider whether unlawful restriction of religious belief and its manifestation has taken place. Daniel Whistler and Daniel Hill have published a paper considering philosophical perspectives on religious discrimination and symbolism, and outline this four step process. Their paper most closely relates to the cases of Eweida and Chaplin, but there is also a broader applicability.

(i) Belief test: Initially, claims are judged to engage Article 9 only if the beliefs that are purportedly manifested meet certain criteria. These criteria are ‘a certain level of cogency, seriousness and importance’ as well as being ‘worthy of respect in a democratic society and not incompatible with human dignity’. In short, such beliefs must be ‘a coherent view on a fundamental problem.’

(ii) Manifestation test: Secondly, the judges ask whether the rites of worship, observances, teachings or practices that allegedly manifest such beliefs can, in fact, be properly designated ‘manifestations of belief’, rather than (for instance) practices which are merely motivated by such beliefs.

(iii) Interference: Thirdly, it needs to be established that the claimant’s right to manifest his or her beliefs was in fact interfered with. It is at this stage that questions surrounding the claimant’s ability to resign or transfer schools (or be educated at home) in order to manifest his or her beliefs freely is considered.

(iv) Justification: Finally, the judges consider the extent to which the State was justified in interfering with the claimant’s rights in line with the limitations on freedom of religion and belief set out in Article 9(2). For instance, was the prohibition of the manifestation necessary in a democratic society?

(pp 16-17 Religious Discrimination and Symbolism: A Philosophical Perspective full paper available online)

This extensive quote from the paper, which is worth reading in full if you’ve got a couple of hours to spare, casts light on the complex process the court takes to decide if religious freedom has been unlawfully restricted. The paper looks in significant depth at the manifestation test, which in public discourse is sometimes referred to as the necessity test, but the authors contend that the court’s record does not support such a reading of the law. They suggest that beliefs which are manifested but might not be necessary still engage Article 9 protection. This seemingly technical legal point is important when considering the status of Christian belief and action before the law because very few, if any, practical out workings of belief are mandated.

In the hearing before the European Court of Human Rights in September the government lawyer incurred considerable ire for suggesting that religious belief was not infringed because, in reference to the cross cases, they could get another job. This is part of the third test, that of whether interference took place. If the court finds that the option of getting another job is sufficient to avoid passing the interference test, then this has wide reaching consequences. It is possible that the cases may fail under Article 9 but still engage Article 14 protecting against discrimination.

One final point to consider is the apparent inconsistency between a government lawyer defending the finding against the claimants and David Cameron saying he would legislated to ensure workers are allowed to wear religious jewellery. The case is the claimants versus the United Kingdom, and the government therefore respond to the European Court of Human Rights on the basis of the judgements reached by the national court. These judgements all found against the claimants which is why in both the written submission and the hearing the government lawyer argued that religious freedom had not been infringed. It is therefore feasible, and in this case apparently so, that the government defending in court a position which if upheld by the European Court of Human Rights they would legislate to change. Likewise, the Equality and Human Rights Commission (EHRC) has said the courts may have interpreted Article 9 too narrowly in regards to Eweida and Chaplin.

The government (wearing both its legal and political hats), and the EHRC, have both suggested the courts reached the correct conclusion in Ladele and McFarlane. The EHRC initially suggested it might support all four cases, but following a public consultation back tracked and only supported the cases involving religious symbols.

While I have focused on the legal dimension and not the individual cases, it is worth noting that each case is complex with a variety of aspect in play, and taking position before a wide variety of pieces of law, employment regulations and individual employment policies and practices. Likewise, it is also possible that a finding against any of the claimants might not mean that public expression of Christianity is being restricted: an employer could have been within their rights to take the action they did irrespective of religious belief or action. Further, Article 9(2) allows for limitations on religious manifestation, and in a democratic society sometimes these limitations are justified, it is possible that they could be in one or more of these cases. All of which goes to show that great care will be required in responding to the judgement next week.

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