discrimination

Anatomy of an outrage (or, a prayerful revolution)

Danny Webster Leave a comment

The Church of England thought it would be good to record one of the ancient prayers of the Christian faith for a new generation to hear as a prequel to watching about a long time ago in a galaxy far, far away.

It was rejected by the largest agency distributing adverts to cinemas meaning it will not be seen in Odeon, Cineworld or Vue screens. The agency, DCM, referred to their policy which clearly states they that they reject religious adverts because of the potential they have to offend people of different or no faiths.

Cue outrage.

    1. Saturday night as the first front pages hit twitter the outrage began, how dare they stop us from praying the Lord’s prayer. Well, they’re not actually stopping it, they just have no obligation to screen it. Some of the early outrage suggested discrimination that wasn’t actually taking place.
    2. The National Secular Society never miss a chance to miss the point: “The Church of England is arrogant to imagine it has an automatic right to foist its opinions upon a captive audience who have paid good money for a completely different experience.” Presumably they will be leading the campaign against all adverts and trailers before films .
    3. People with different beliefs speak up for the prayer being shown, the Muslim Council of Britain, atheist MPs, Stephen Fry, even Richard Dawkins got in on the act. Which both reminded me of the strong cultural memory of Christianity in the UK, and the passivity towards it’s infusion across society. The latter is not necessarily a good thing.
    4. Enough time had passed for people to start writing blogs about it. Nonsense on stilts opined Giles Fraser.
    5. Eagled eyed observers who looked at the DCM policy realised it was no surprise that the advert was rejected. Although the Church of England state that the policy wasn’t in existence when they first inquired about running the advert.
    6. But the Lord’s Prayer is offensive. If I’d been quicker off the mark I’d have gone with this angle but Stephen Croft and Andrew Wilson beat me to it.
    7. Over 200,000 people have watched the advert on YouTube, and a similar number from the Church of England’s facebook account.

Two very brief comments on this fandango: first, I initially thought this advert had been designed to be rejected, however, this wasn’t the case: when the Church of England first put the advert forward for publication it was accepted before being declined later. The new policy from the DCM is abundantly clear – it may be ‘nonsense on stilts’ but it is clear. The policy may warrant a legal challenge in that it privileges non-religious beliefs over religious beliefs, but from my non-legal perspective I think that would be a hard case to make.

This was a brilliant piece of marketing, it’s been all over the news yesterday and today. I had wondered if this was all part of a grand stategy, but instead seems to be a great example of a PR victory coming out of the censor’s jaws of defeat. Far more people will see it than if ever it was run before Star Wars. In season 6 of the West Wing when Santos’ primary campaign is running very short of cash they can afford one TV spot. They know they need to leverage it to get people to cover the coverage, and thereby exponentially increasing the impact. That’s exactly what’s happened here.

Second, I hope it helps Christians to think about what they pray. The words of the Lord’s prayer are offensive. They are counter-cultural, they do offend the norms by which our society runs. They should provoke and challenge us, they should disrupt and disturb, they are about a King whose Kingdom is yet to fully come, it is about a God in heaven who is above all other rulers. It’s a prayerful revolution.

[UPDATE: I’ve amended the paragraph beginning two very brief comments to take account of things I’ve read and picked up today.]

A Baker, a Sign Maker and a Printer walked into court

Danny Webster 2 Comments

A printer, a sign maker and a baker walk into a courtroom. And if this sounds like the start of a joke…

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The printer stands accused of refusing to print a leaflet backing the death penalty and therefore committing political discrimination against people who want the death penalty reintroduced. And presumably also discriminating against dead people.

The sign maker is charged with racial discrimination – he wouldn’t make a sign for a shop that wanted to put up a ‘no blacks allowed’ notice, and therefore is guilty of discriminating against people who are not black.

The third is a baker who wouldn’t bake a cake with a slogan supporting the introduction of gay marriage. This, apparently is discrimination based on sexual orientation, and religious because the bakery cited the religious beliefs of the owners as behind the refusal, and political discrimination, because they’re disadvantaging people with a particular political view.

And this is one big joke. But not the kind with a witty punch line, but the sort that leaves you hanging your head in despair. These three examples all surely exist in the category of ‘you couldn’t make it up’. For the first two I have made them up, but the bakery is a real example, and they are now being pushed to court by the Equality Commission in Northern Ireland.

First of all let us be clear what this is not. This is not a case of a Christian refusing to serve someone because they are gay. Those ‘no blacks allowed’ signs were taken down for a reason, and more recent equality legislation extended protection and you cannot refuse to a good or service to someone because of their sexual orientation (with protection also for age, gender, religion, marital status as well as race). There’s been controversy over this, and concern for what happens when these protections might come into conflict, but in Great Britain at least the legal situation is clear.

In this situation the sexuality of the customer is not relevant, the customer could have been gay or straight, the issue was not who the customer was but the cake they were ordering. If the cake was for a same sex wedding ceremony it would be a clear case of discrimination, that they made wedding cakes for straight couples, but not for a gay couple.

Secondly, I should clarify I have a very limited understanding of the law in Northern Ireland on this point. It differs from Great Britain and includes provisions relating to religious and political discrimination which I imagine were designed due to the particular history of the nation and the religious and political tensions that run through it.

As far as I understand the law in Great Britain (and of course it may be different in Northern Ireland) one is free to choose not to publish political campaign material if they disagree with it. So I can choose whether or not to print a poster advocating the death penalty, or cancelling international development, or I can refuse to print a sign for a political rally. Yes, this is a form of discrimination, in the same way a shop not serving alcohol to someone under 18 is discrimination, but it is legal.

As far as I can see the choice not to bake a cake with a campaign message in favour of gay marriage is part of this latter category, it is the choice not to endorse a political message, and not the discrimination against a person on the basis of a protected characteristic.

Who, exactly is being discriminated against here? The customer for not being served, the baker for being told their religious views should not be allowed into play, or the cake for not getting Bert and Ernie gracing its icing?

The bakers were not discriminating based on the sexuality of the customer because both gay and straight people campaign for the introduction of same sex marriage. This wasn’t religious discrimination because the religion of the customer had no bearing on whether or not they were served.

The provider’s beliefs did make a difference but is this now suggesting that people are unable to make decisions over what they do or don’t do based on religious belief? The most obvious example is whether the same approach in Great Britain could be taken to force a doctor who objects to abortion on religious grounds to carry out abortions because to not do so would be religious discrimination.

I suppose the logic of the Northern Ireland Equality Commission is that in refusing to make this cake on the basis of their religious beliefs Ashers bakery were discriminating against people who did not share their religious belief. A comparison to this logic would be to take a Christian newsagent to court for not selling pornography which they object to on grounds of their faith. The newsagent down the road who took the same decision but without any religious motivation would be free not to sell pornography. Absurdly, to apply the regulations in this manner would be discriminating against the Christian newsagent for taking action on account of their religious beliefs.

Comparisons are frequently made between LGBT rights and the civil rights, some of which are fair, others are questionable. In this case, the comparison would be for someone who refused to print a ‘no blacks allowed’ sign to be guilty of discrimination. This is ludicrous, nonsensical and of course shouldn’t be allowed.

Neither should this current action against the bakers. If it is allowed to continue it is shutting down public debate, and a supposedly independent equality commission is acting as a coercive force stopping those who disagree with changing the law from the freedom to stand by that political opinion.

This is not about gay rights, it is not about homophobia. It is not even just about religious freedom (although it certainly is about that), it is about ensuring that fundamental freedoms of political disagreement and debate are not undermined and dissenting voices protected and not prosecuted.

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Read more:

My colleague in Northern Ireland has also posted on his blog ‘Are the Equality Commission baking mad?’

Peter Ould posted similar thoughts to mine on facebook

Does the customer have all the rights?

Danny Webster 1 Comment

Business Cartoon“I want a wet cappuccino” declares the customer, “so you want a latte?” I reply. “No” they restate, “a wet cappuccino”. So I give them a wet cappuccino – which is really just a latte.

Burger King have long marketed their burgers with the tag line “Have it your way”, a riposte to the supposed inflexibility of McDonald’s. The customer can choose what they want and how they want it, within reason and usually at extra cost. Recently they changed the slogan to ‘Be your way’, and the shift marks not only a development of their advertising but the further incorporation of individualism into everyday life.

It’s not so much ‘I think therefore I am’, but ‘I choose therefore I am’. The liberty to decide what to do, how to do it, or whether to do it – whatever it may be – has become society’s fundamental and inalienable right. Not just the customer is always right, but the customer has all the rights.

Cases on both sides of the Atlantic have brought the question of religious liberty to the fore in recent weeks. There was the case in America of a dog walker ‘firing’ a customer because they supported the legalisation of marijuana. Also in the States was the related issue of whether an employer should cover medical insurance for treatments which they had religious objections to. And in Northern Ireland a bakery is being taken to court by the Equality Commission for refusing to back a cake decorated to advocate for the legalisation of same sex marriage. Continue reading →

The curious case of Dr Drew and St Ignatius’ prayer

Danny Webster Leave a comment

Ignatius-Loyola_thumb3

Sending a prayer to colleagues shouldn’t be a sackable offence. If we have freedom of religious expression what use is it if we are told we can only exercise it in private? Freedom of religion and freedom of expression have to include a public dimension if the freedoms are to be substantive.

But does the public expression of belief require that workplaces accommodate it in all its forms? Probably not.

While religious freedom should allow for religious expression within the workplace, that doesn’t mean it should in all its forms. The two cases of Shirley Chaplin and Nadia Eweida provide a helpful illustration, they both complained at their employers’ restrictions on wearing a religious symbol, in the first case the restriction was considered legitimate due to health and safety concerns (and reasonable alternatives offered), in the latter it was not because only due to a uniform code.

There are actions on the part of an employer which are undue restrictions on religious liberty, and there are actions from employees which may restrict religious liberty, but which may also be justified. The challenge when assessing cases such as these, and Dr Drew’s is the most recent such case, is to work out which side of the line they sit.

The case of Dr Drew and Walsall NHS Trust is more complicated than simply deciding where it sits on a spectrum of fair and unfair interference with religious liberty. In fact, the case doesn’t get into the details of where or how it engages Article 9 of the European Convention of Human Rights. This is because it is a very confused case. The problem arose from a complaint which was investigated, and taken through various rounds of internal processes, an independent review, a disciplinary process, a termination of employment and an employment tribunal before it reached its current stage at the employment appeal tribunal (EAT). The initial complaint, which did have a religious dimension, Dr Drew circulated an email including a prayer, became lost under a wider breakdown of employment relations, and at one point the EAT concludes that he shared confidential information by forwarding on an email, which was gross misconduct in and of itself. Therefore, from my lay reading, it seems reasonable that he was sacked, but he wasn’t sacked for sending an email which contained a prayer.

The sticking point is that the situation escalated because Dr Drew would not accept the recommendations of the independent review panel in their entirety. In particular he took issue from the instruction to refrain from use of religious references in his professional communications. He questioned this requirement and asked for an explanation of how it would work in practice because the English language is replete with metaphor and allegory, much of which is derived from the Bible. It was Dr Drew’s failure and unwillingness to comply with the review’s recommendations that ultimately led to his dismissal, and the main reason he wouldn’t was because he was being asked to not speak about his religious beliefs.

Therefore, although the case can and was dealt with largely without engaging a substantive consideration of whether his religious expression was constrained, it has at its heart the actions of an employer seeking to constrain religious expression, and whether this restriction was valid does not seem to have been adequately considered by the court.

This is a poor case, it seems relationships had broken down, both sides come across as antagonistic and seeking out a dispute rather than a resolution.

But I am concerned that an employer can ask an employee to refrain from using religious language. The case discusses in some detail what the appropriate comparator is to decide whether doing this and acting on Dr Drew’s failure to comply is religious discrimination. The comparator, both the original tribunal and the EAT agreed was another person with a different religious belief or no religious belief being asked not to send texts important to their system of belief or non-belief. The problem is that this creates a barrier between religious beliefs and non-religious beliefs, for example, would an employee be reprimanded for sending poetry to other staff? If you do not follow a religious system of belief you do not have a text or source of texts that can so simply be considered.

The requirement not to use religious references disadvantages those with a religious system of belief over those who do not have one at all or hold only very lightly to one. Therefore, while perhaps not pertinent to the eventual outcome of this case is still a matter of concern. A all encompassing request to not use religious references is secularism writ large, and writ large in a pernicious form. It is a pity it got lost beneath this case.

FURTHER READING: Summary from Law & Religion blog, and the full EAT judgement.

Should street preachers be arrested?

Danny Webster 4 Comments

George Whitefield preaching

It’s surely a QTWTAIN. A question to which the answer is no. Ensuring that people are free to preach, worship and change their religious beliefs is a fundamental freedom and a hallmark of a country that respects human rights.

In addition, for Christians there is the clear command of scripture to go out into all the world and preach the good news. Not only should public preaching be allowed, but it is an outworking of Christian belief.

Yet rights are very rarely unlimited, they are mostly qualified, subject to legitimate restrictions. But if religious freedom allows preaching in public, which I believe it should, there should be a fairly high bar for stopping it. If the preaching is disliked or disagreed with, this should not be enough. We live in a country with myriad different beliefs and hues of adherence, it is inevitable someone will disagree with what you believe, and especially if you think that others should also believe what you believe. Freedom of belief is an empty freedom if it is only granted when no one complains.

The government recently accepted amendments to the 1986 Public Order Act which removes the justification for arrest if someone’s words are insulting. Insulting is a subjective charge, and too easily applied to someone who you disagree with. The law will still protect against abusive and threatening behaviour, but the removal of the word insulting raises the bar, which had been used to arrest people for preaching on the streets.

However, in recent months several street preachers have been arrested or taken into custody by the police due to their street preaching. The most recent case is Josh Williamson who has twice been arrested in Perth. This past Saturday he stood on his stool and started preaching.

I’ve watched the video twice and am still not sure what I think, in particular whether I think the police were right to get involved. Also, my understanding of the law is patchy, and the police were not making an arrest under the Public Order Act, but on grounds of failing to desist and threatening to cause a breach of the peace. As I understand the situation, once the police got involved, it stopped become about his preaching but about his attitude towards the police and their requests, whether they were right to get involved at all is more dubious. I would be very grateful for any legal insight into this, I believe the relevant precedent in this area is Redmond-Bate v Director of Public Prosecutions.

As I understand it, the reaction to someone’s actions is not in itself enough to define the original actions as a breach of the peace, those actions have to be considered as intended to provoke. And if I’ve got it right, provocation that is likely to lead to violence. I would argue that his actions were intended to provoke, but not likely to lead to violence.

I want people to be free to preach in public, many will disagree, some will find it offensive, but that shouldn’t be cause for arrest. But here’s the difficult part. As I watched the interaction I found myself on the side of the police. I felt they were trying to handle a tricky situation with care, even if they were wrong to arrest him. I thought their words and actions were reasonable, even if not legally correct. I want to defend the preacher’s freedom, but his actions seemed designed to goad the police and test their tolerance.

I’ve seen the Easter story played out before multiple thousands in Southampton and Winchester, it happens in Trafalgar Square each year, I’ve been involved in public acts of worship in Parliament Square. I’ve prayed on the walls of Southampton, and I’ve been moved on by the police for ‘loitering’. I’ve filed the paper work to present a prayer to Downing Street (technically it was a petition). In each of these cases the right to preach and worship in public was not guaranteed. Forms usually had to be filled, permission given.

The freedom to preach does not give us a blank cheque to do whatever we like. We still have laws to follow, and structures and systems to work within and abide by. There are places where those systems become iniquitous and breaking the law is an act of good conscience, but that is not what’s going on here.

This is not persecution, I’m not even sure it’s discrimination. I also think it can make us look indolent in the face of what happens across the world. The Archbishop of Canterbury said on Radio 4 yesterday: “The appearance is often deceptive but I think Christians have been attacked in some cases simply because of their faith,” and he went on: “we have seen more than 80 martyrs in the last few days. They have been attacked because they were testifying to their faith in Jesus Christ by going to church. That is outside any acceptable expression in any circumstances for any reason of religious difference.”

There’s also the other half of the Great Commission in Matthew 28. To go into all of the world preaching the good news and making disciples.

I don’t think the street preaching was any good. One twitter response said he should be arrested for ‘mundane and uninspiring preaching’, another said what he was doing was ‘aggressive, unattractive and far from winsome’. I’m not saying the freedom to preach the gospel only applies if the oratory is of sufficient quality, but we have to consider what is being heard as well as what is being said.

I would question whether this sort of street preaching is making disciples, and therefore whether it is effective preaching of the good news. I believe in the good news of Jesus. I believe it has the power to transform lives like no other. I believe we should be bold and courageous about telling people the impact it can have. But we should also see what works and what doesn’t. I was reminded last night of an analogy of a man standing in the street asking people to kiss him. The 98th woman assents. He has success he cries, forgetting the 97 who went before who he alienated and freaked out.

The gospel will offend. It will send some away. It is difficult to take. We do not have to do that work for it. We do not have to offend. We do not have to alienate in order to have authentically preached the gospel. We have to make disciples as well as preach the good news.

Sometimes being the victim seems to come a little too easy. There are injustices and poor behaviour by the police and authorities, arrests that shouldn’t be made. But there are also times when being the victim provides a sense of affirmation that we are doing things right, that if we’re suffering we must be on the right course.

The clothes of the martyr some times fit too easily when we haven’t walked in their shoes.

The Daily Mail: What an insult to Christians

Danny Webster Leave a comment

Jan Feb 2012 008The Daily Mail splashed their front page this morning with “An Insult to Christians”. No, that’s not how I’m describing it, that is their actual headline.

They might think it is a descriptor of the dreadful events they outline in their story, but it is a far closer label for their own treatment of Christians. And in particular in thinking that the situation they discuss is an insult to anyone.

The “insult” is that followers of other religious belief systems including paganism and non religious deeply held belief systems such as vegetarianism will receive the same protections as Christians. Firstly, this is not news. Secondly, it is not controversial (although a little tricky to implement). Thirdly, this is not an insult.

The law has for a while placed all religious and non religious beliefs on a par with regards to their protection under the law. Although only in the last decade has it been codified into statute through regulations following the 2003 Equality Act, and then drawn together in the 2010 Act, court precedence has provided strong protection for non-Christian beliefs in a similar manner (although due to differences in beliefs never quite the same).

The dreadful situation before us today has occurred because the Equality and Human Rights Commission issued guidance last month on how employers should handle religious beliefs and their manifestation. This in the wake of Nadia Eweida’s successful claim in the European Court of Human Rights that her employer had failed to protect her freedom of religious expression when they said wearing a visible cross was against their uniform policy. Legal precedence on religious belief protection is often carried across from one belief to another so there was absolutely nothing of controversy or even interest in the EHRC saying the judgement would affect employers responsibilities towards those with other beliefs.

The controversy has been whipped up because a gaggle of Tory MPs on the right of their party were baited into giving a critical judgement of the EHRC. This is hardly a difficult topic to exploit for that effect, it is high on the list of bodies those of their ilk would prefer were scrapped. What is most controversial about the guidelines is that they had to be written at all, because one would have thought it was common sense. But apparently this morning has demonstrated just why it is necessary.

The requirement to protect non-religious beliefs is also not a new one. A key legal case in 1978 Arrowsmith v United Kingdom found that the applicant’s beliefs in pacifism were deeply held and sufficient to warrant protection under Article 9 of the European Convention of Human Rights. The court found against the claimant for wider reasons but importantly held her beliefs were worthy of protection. The ECtHR judgement in the case of Eweida et al also found that the actions of all four claimants were borne out of religious beliefs and therefore worthy of protection. The Court also went further and said that it was not up to them or any other applicable body to decide what was or was not of sufficient centrality in a belief system to merit protection, or what actions arising from those beliefs should be counted as a manifestation of belief. What the court held to matter was that the belief and action was of importance to the applicant.

Therefore, while this eases the difficulty of deciding when a belief or action becomes sufficiently meritorious for protection, it opens up a whole other can of worms in potentially allowing any belief or opinion protection on these ground. While this is a tricky situation for courts to adjudicate it is not a particularly controversial one. While the beliefs and actions may come under Article 9 jurisdiction it does not mean an employer is forced to allow them. In the case of Eweida the court found that the uniform policy was insufficient grounds to restrict the wearing of a cross, but in Chaplin found the health and safety concerns in a hospital, coupled with the proposal of alternative ways of wearing the cross, were sufficient grounds and found against the claimant. The court also found in Ladele and McFarlane that the equality and anti-discrimination policies of their employers also provided the latitude for their requests to be denied. (This is a more controversial decision and what is at the heart of an emerging hierarchy of rights among equality strands.)

Therefore I doubt that a vegetarian employed in a kitchen role would be granted a request not to handle meat. If it is a central part of the job which would put an unreasonable burden on the company and other staff I suspect the request could be legitimately denied. If however, the staff member is employed in another role but is asked on occasion to assist in the kitchen the request may well be expected to be granted. If we expect a common sense type of accommodation of reasonable requests we also have to understand situations where without any hint of an attack on Christian belief they might not be accommodated.

Finally, this is not an insult. An insult would be to suggest that Christian beliefs alone are worthy of protection. Or moreover that Christian beliefs and practices need more protection than other beliefs. I want the freedom to practice and promote my beliefs and I think the surest way of ensuring that is to fight for others to have the same rights that I do. I may think they are wacky, I may find them absurd. I may even find them offensive. But I want to fight for their freedom of belief: I want them to be as free to promote their beliefs as I want to be to promote mine.

Freedom of belief means freedom of belief for everyone. And at the heart of the Christian message is a voice of freedom that calls into the wilderness. That releases slaves from their captors. It is freedom to choose to worship a God who chose to send his Son so that we could have life and life in all its fullness.

It is the freedom not to worship that makes the choice to worship such a precious gift we have to offer.

To suggest that Christians would rather others were not free to follow their beliefs is an insult.

Legal rights and religious wrongs

Danny Webster 2 Comments

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.

Legal view

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.

Theological reflection

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?

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

Danny Webster 1 Comment

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.