Yesterday’s European Court of Human Rights judgement on Eweida, Chaplin, Ladele and McFarlane didn’t get the attention it might otherwise have received. For the mainstream media this was the news story getting all the coverage with Steve Chalke relegated to a small sidebar. But within the Christian world the cases got a distinct shove to the sidelines.
In response to the cases I want to make two legal points as best as I feel able to from a layman’s perspective. And then two theological reflections about where the cases and the judgement leave us.
Summary of judgement
Firstly, what did the court decide? It determined that one of the four claimants, Nadia Eweida, had been subject to an unlawful restriction of her freedom to express her religion. In the other three cases it found no unlawful restriction, and refused a claim for direct discrimination on grounds of religious belief for Lillian Ladele.
Nadia Eweida should have been allowed to wear her cross to work but Shirley Chaplin, a nurse, was reasonably prevented from doing so. The crucial legal point affirmed by the judges in Strasbourg was that this was not dependent on whether wearing a cross was a necessary, or even generally recognised, aspect of Christian belief. Rather, and importantly, what matters is whether the action arising from belief is important to the person in question’s religious belief.
The desire to wear a cross for both Eweida and Chaplin passed the manifestation test that I set out last week, and the actions of their employers was deemed to be interference with that expression of belief. The key question was whether that interference was justified. This is where I think the court took a very simple to understand common sense stance. In the case of Chaplin health and safety concerns were considered justified while for Eweida the desire for British Airways to maintain their brand image was not. Added to this, British Airways were inconsistent in their accommodation of religious belief and had allowed the uniform code to be modified to satisfy other religious beliefs.
The second interesting and important point that comes from the judgement comes in the case of Lillian Ladele. Both she and Gary McFarlane requested an opt out from certain duties in their work because of their beliefs about homosexuality. For several reasons I consider Ladele to be the far more interesting and valid case, not least because she was employed by Islington Council prior to the introduction of civil partnerships and her job was changed to include their registration as well as marriages. In both cases no users would have been restricted from accessing a service, but their employers refused the request for an opt out because it would go against their equal opportunities policies.
In the case of McFarlane, he choose to change the remit of his role by training in psycho-sexual counselling, in doing so he raised the prospect that he might be unwilling to provide this service to gay and lesbian couples. In doing so he showed intent to restrict the service he provided on the basis of sexual orientation. A further point in his case was that his scruples applied only to gay and lesbian couples and not to heterosexual couples outside of marriage, which strikes me as an inconsistent application of biblical sexual ethics, although following the reasoning above the court accepted his stance constituted a manifestation of belief. For these reasons, I am satisfied that the court reached the correct decision in finding that Relate acting fairly.
The European Court of Human Rights allows the relevant authorities, in this case the employers and the UK courts and wide margin of discretion when determining how to protect convention rights. Therefore in both these cases the court found that the actions of the employers in their equal opportunities policies, and the courts in backing them, were reasonably because they were in pursuance of protecting the rights of others on the basis of their sexual orientation.
The question that arises following the decision to place the actions of Islington Council in the case of Ladele within this ‘margin of appreciation’ is what would be needed to fall outside of this margin? The court has acknowledged that there is a need to balance the protection of different convention rights, but in its decision leant heavily towards protecting sexual orientation rights without any guide to how religious expression would be equally protected. I am not sure, if this judgement is confirmed by the Grand Chamber, whether there is any action that an employer took to protect sexual orientation that would be deemed an unjustified interference in the manifestation of belief.
Both the pairs of cases, raise theological as well as legal issues. And these come into play layered over rather than in conflict to whether or not they should have won. For what it’s worth I think both Eweida and Ladele should have won, but I think sometimes we can get caught up in the legal rights and wrongs of specific cases that we detach it from the our faith.
On the cases of the crosses, I don’t wear a cross, I don’t think it’s important to my belief. But I accept that for some it might be, a friend coincidentally wore a pair of rather large cross earrings yesterday. But that wasn’t a statement of faith. And I think it’s a mistake when we make a big deal of things that aren’t a big deal. And whether or not we can wear a cross is not a big deal.
That’s the first theological point. The second is bigger, and harder to define. It’s the question of whether cases such as these are helpful or a hindrance to public Christian witness. I think when cases are brought that are unlikely to ever win but instead used to promote the perspective that Christians are being discriminated against they are a poor weapon which leads to a culture war which leaves far more loses than winners.
The Clearing the Ground report issued by Christians in Parliament last year commented: “The cyclical strategy of generating-fear-to-fuel-funding-to-fight-cases (cases that are often doomed from the outset) is a recognised part of the culture war situation in North America. Although such an approach can have the effect of giving Christians a sense of ‘taking a stand’ against a tide of secularism, with protest as a primary mode for political engagement, it is clear that it simply reinforces a victim mentality, polarises society, and does not work.”
But sometimes there are legitimate grievances, and how do we respond in those cases? What of Lillian Ladele who was pushed into a job she never applied for, doing something that conflicted with her deeply held belief, in a situation that could have been resolved without anyone deprived from getting a civil partnership, and the only cost Islington Council’s equal opportunities policy?
I think in these cases we have to act with humility, we have to exhaust all possible options. And I think sometimes we need to turn the other cheek.
It’s a thought I can’t get away from at the moment, that when faced with a situation when we are sure we are right how do we prioritise relationships without giving up on what we believe. And how in it all do we live out the reality that we are created in the image of God, how can we be attractive to the world that needs to know God in whose image we were created?