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.

Carey, culture wars and the quest for civility

Christians are vilified in the UK, they are subject to hounding and persecution. They are targeted by aggressive campaigners. At least this is how former Archbishop of Canterbury Lord Carey sees things.

There’s just a small problem with this, in fact, three. Firstly it’s simply not true, Christians in the UK are not persecuted. They do not risk their lives to worship, they are not imprisoned for converting and they are not banning from preaching. And to suggest as much leads to the second problem: it minimises and trivialises the very real suffering that Christians in places such as Iran, Nigeria and North Korea experience.

Those two should be reason enough to ward Christians off from using such intemperate language. But there is a bigger and harder to define problem, talking and writing in this way ostracises Christians from the world around them. It erects barriers and it defines the relationship between church and society as one based on conflict rather than reconciliation. It fosters an ‘us versus them’ mentality, rather than attempting to build one more akin to the ‘I-thou’ spoke of by Martin Buber.

It is planting the seeds and nurturing the saplings of a culture war. And it’s not like we don’t know where this leads. It leads to law suits and protests, and ad campaigns and vitriolic journalistic exposes. Maybe we’re a lot closer to this than we thought.

The adverts planned and then banned from Christian organisations mimicking and opposing those plastered on buses across London by gay rights group Stonewall are the latest volley in this escalating environment. I doubt it was planned this way, but if they expected them to be vetoed then the whole thing is straight out of the culture war play book: do something, it gets banned, then sue for the right to do it.

I think the actions of some Christians do the credibility of Christian public witness a great deal of harm. Sometimes the retort is that Christians should be expected to be ridiculed and marginalised, and that we are called to not be ashamed of the gospel. And we will and we are. I’m just not sure that it’s always the gospel that is being paraded so publicly and unashamedly, and for which we are being ridiculed.

There will always be an element of friction between the Church and its surrounding culture. I believe that there are aspects of the world around us about which Church is to have a role in standing for truth and righteousness: a signal to how things should be and how they one day will be. And sometimes this means that the church will have controversial things to say. Sometimes these things will be completely contrary to the dominant view in society.

I don’t think it’s easy to speculate as to what Jesus might have plastered on the side of a fishing boat as it crossed the Sea of Galilee. I don’t think he’d have ran the ads proposed this week, but nor do I think he’d have run ads calling on people to feed the hungry. The thing about Jesus was that he was a man of action, he fed the hungry, he healed the sick; people followed him because his words and actions came together. He engaged them in conversation and eschewed megaphone politics.

There are two outcomes to the bus ad farce, for many people it has perpetuated the idea that Christians don’t like gay people (which should not be true). And for some Christians it has reinforced their notion that they are being discriminated against (which in the UK is rarely true). Stuff like this just doesn’t work, it exacerbates the problem.

The words and actions of Christians complaining of persecution are not representative of the church in the UK, but they are powerful. They feed into a mindset that recognises martyrdom as an affirmation of authentic belief, so when Christians are being oppressed it is a sign that we are doing something right. This means that for those purporting to stand up for Christians there is a groove already set of what this looks like in practise. And unfortunately dog whistle campaigning works.

Because while I feel better placed to critique the actions of Christians they are far from the only ones culpable of inculcating this culture war. For Christians who hold to a orthodox Christian understanding of sexuality, where sexual relationships should only take place within the context of marriage between a man and a woman, it is easy to view much of the world around them as hostile to their beliefs. While I do not consider such sexual ethics as central to the gospel, it is a part of my belief system. And I chose to live, or at least I try to live, in a way that honours God and this means that I and other Christians act in a way that is sometimes at odds with the world around them. It is becoming increasingly difficult to publicly defend and promote such views without being branded as intolerant and homophobic. So while Christians are not persecuted, there is a pressure placed on them to conform to views other than those rooted in their faith.

I do not seek to, in many cases I cannot, justify the way in which Christians have sometimes promoted and defended their views on sexuality. But I think it is vital in order to develop a society that is civil and tolerant of difference that Christians are able to say things that are unpopular.

Now whether they should do so, and certainly how they do so, is a different matter, I don’t think the kingdom of god is advanced by the proposed bus adverts. I think God sent his son to earth to bring reconciliation, the crowds wanted him at the head of a revolution, but he let himself be taken and killed for the rebellion of the rest of us. He died so the curtain could be torn, we shouldn’t be trying to brick up the hole sheered by his death.

The church needs to lead the way in finding a better way to cope with our differences. I believe there is a way and I believe in Jesus we have both the way to reconciliation and the model for that reconciliation.