Tuesday, 15 January 2013

Thrown to the Lions?

That Christians are being persecuted was the rather hysterical tenor of an article by Paul Diamond in the Telegraph a couple of days ago - Christians' rights: Martyred on a cross of secular liberalism. The martyr he cites is Harry Hammond, an unfortunate, but homophobic, street preacher who maybe was the victim of some injustice, back in 2002. That goes no way to showing anything more, however, than that one man was treated unfairly by the authorities in one instance. This is not an attack on religion, says Diamond, but on Christianity:
And this is not an erosion of rights for people of faith - Muslims, Hindus and Sikhs continue to be protected by the law - but for people of one particular faith: Christianity.
The assertion is that the British legal system is now antipathetic, to say the least, to Christianity:
It seems that the British legal system is intent on removing the Judeo-Christian foundation of our laws, which have served us for a thousand years, replacing them with a secular, liberal worldview which dispenses tolerance to all those who agree with it and relentless hostility, or even persecution, to those who do not.
Hmm. This hardly seems supported by the facts. But today the ECtHR has ruled on four cases of supposed discrimination against Christians, so we should have some more evidence to judge this by.

The Court's assessment starts with an excellent summary of the issues at stake:
79. The Court recalls that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A).
I rather like that reference to 'the unconcerned', an often over-looked constituency, and the recognition that freedom of thought and conscience are also a 'precious asset' for atheists et al is important. The first case they rule on is that of Nadia Eweida; British Airways refused to allow her to wear her cross visibly. Did the ECtHR consider that she had been persecuted by domestic law? In Para 92 they considered the question, and concluded:
The Court does not, therefore, consider that the lack of specific protection under domestic law in itself meant that the applicant’s right to manifest her religion by wearing a religious symbol at work was insufficiently protected.
So that's a No, then. However, they did consider that the domestic courts had made the wrong decision in this case. It's worth quoting the three paragraphs on the subject to get a sense of the balancing of competing interests involved:

93. When considering the proportionality of the steps taken by British Airways to enforce its uniform code, the national judges at each level agreed that the aim of the code was legitimate, namely to communicate a certain image of the company and to promote recognition of its brand and staff. The Employment Tribunal considered that the requirement to comply with the code was disproportionate, since it failed to distinguish an item worn as a religious symbol from a piece of jewellery worn purely for decorative reasons. This finding was reversed on appeal to the Court of Appeal, which found that British Airways had acted proportionately. In reaching this conclusion, the Court of Appeal referred to the facts of the case as established by the Employment Tribunal and, in particular, that the dress code had been in force for some years and had caused no known problem to the applicant or any other member of staff; that Ms Eweida lodged a formal grievance complaint but then decided to arrive at work displaying her cross, without waiting for the results of the grievance procedure; that the issue was conscientiously addressed by British Airways once the complaint had been lodged, involving a consultation process and resulting in a relaxation of the dress code to permit the wearing of visible religious symbols; and that Ms Eweida was offered an administrative post on identical pay during this process and was in February 2007 reinstated in her old job.
94. It is clear, in the view of the Court, that these factors combined to mitigate the extent of the interference suffered by the applicant and must be taken into account. Moreover, in weighing the proportionality of the measures taken by a private company in respect of its employee, the national authorities, in particular the courts, operate within a margin of appreciation. Nonetheless, the Court has reached the conclusion in the present case that a fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.
95. The Court therefore concludes that, in these circumstances where there is no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9. In the light of this conclusion, it does not consider it necessary to examine separately the applicant’s complaint under Article 14 taken in conjunction with Article 9.

So that's a Yes, the domestic authorities failed to protect Ms Eweida's right to manifest religion. I think it's plain that this is still seen as a judgement call, weighing the competing rights, but the Court decided 'there is no real encroachment on the interests of others'. Certainly it seems to me that there is very little encroachment on the interests of other individuals, although clearly the interests of the company were affected. I must say, this conclusion seems reasonable to me, and the BA relaxation of rules should really have come a lot sooner after Ms Eweida objected to her treatment. I can't even imagine what was going through the minds of her superiors when they insisted she hide her cross, displayed as unobtrusively as it was.

The second case is Shirley Chaplin. She was a nurse who had been asked to remove a cross and chain she was wearing:
The evidence before the Employment Tribunal was that the applicant’s managers considered there was a risk that a disturbed patient might seize and pull the chain, thereby injuring herself or the applicant, or that the cross might swing forward and could, for example, come into contact with an open wound. There was also evidence that another Christian nurse had been requested to remove a cross and chain; two Sikh nurses had been told they could not wear a bangle or kirpan; and that flowing hijabs were prohibited. The applicant was offered the possibility of wearing a cross in the form of a brooch attached to her uniform, or tucked under a high-necked top worn under her tunic, but she did not consider that this would be sufficient to comply with her religious conviction. (Para 98)
Here we see very clear evidence that there is no Christian persecution going on at all; other religion's manifestations were also the subject of health and safety measures.
The Court considers that, as in Ms Eweida’s case, the importance for the second applicant of being permitted to manifest her religion by wearing her cross visibly must weigh heavily in the balance. However, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in respect of Ms Eweida. Moreover, this is a field where the domestic authorities must be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence. (Para 99)
A clear ruling that the domestic authorities in such a case must be allowed a wide margin of appreciation, so that's a No:
It follows that the interference with her freedom to manifest her religion was necessary in a democratic society and that there was no violation of Article 9 in respect of the second applicant. (Para 100)
The third case is Lillian Ladele:
She believed that same-sex unions are contrary to God’s will and that it would be wrong for her to participate in the creation of an institution equivalent to marriage between a same-sex couple. Because of her refusal to agree to be designated as a registrar of civil partnerships, disciplinary proceedings were brought, culminating in the loss of her job. (Para 102)
The Court noted that her objection was religious, and:
The Court recalls that in its case-law under Article 14 it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification (see, for example, Karner v. Austria, no. 40016/98, § 37, ECHR 2003-IX; Smith and Grady, cited above, § 90; Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010). It has also held that same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship, although since practice in this regard is still evolving across Europe, the Contracting States enjoy a wide margin of appreciation as to the way in which this is achieved within the domestic legal order (Schalk and Kopf, cited above, §§ 99-108). Against this background, it is evident that the aim pursued by the local authority was legitimate. (Para 105)
Some interesting notes there, on the same-sex marriage issue as the Court sees it. They conclude:
In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them. It cannot, therefore, be said that there has been a violation of Article 14 taken in conjunction with Article 9 in respect of the third applicant. (Para 106)
So that's another No. It's worth reading the preamble, though, to see that they are concerned that Ms Ladele lost her job over her religious beliefs, a heavy price to pay. Such consequences should not be taken lightly, and we should applaud all courts that weigh these matters conscientiously.

The fourth case is Gary McFarlane:
Employed by a private company with a policy of requiring employees to provide services equally to heterosexual and homosexual couples, he had refused to commit himself to providing psycho-sexual counselling to same-sex couples, which resulted in disciplinary proceedings being brought against him. His complaint of indirect discrimination, inter alia, was rejected by the Employment Tribunal and the Employment Appeal Tribunal and he was refused leave to appeal by the Court of Appeal. (Para 107)
Again the Court agrees that these are beliefs motivated by his religion. It's important to note that Christians are using their religion specifically to ground their homophobia. This should not be forgotten when some dismiss the evil wrought by religion through dogma.

The Court concluded:
However, for the Court the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court does not consider that this margin of appreciation was exceeded in the present case. (Para 109)
It should be noted that this is allowing that the state had not exceeded its margin of appreciation; they expressed serious concerns over the consequences suffered by Mr McFarlane. Nevertheless:
110. In conclusion, the Court does not consider that the refusal by the domestic courts to uphold Mr McFarlane’s complaints gave rise to a violation of Article 9, taken alone or in conjunction with Article 14.
So we have another No, there is no violation of Article 9:

Article 9 – Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations 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.

So we have a picture building that does not support the sentiments expressed by Paul Diamond in his Telegraph article. Certainly there are provisos; one case out of four shows a fault in the domestic courts, but we see from them all that these are difficult judgement calls - consider the dissenting decision on Ladele, for example (final page of judgement):
She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others. (Para 7)
A person can be homophobic (that is their right), so long as it does not encroach on the interests of others.

I think it will always be the case that mistakes will be made by courts when weighing competing rights - this is the price we pay for living in a pluralistic, democratic society. But to conclude from such marginal cases that Christians, in particular, are being persecuted is simply not supported by the details of this judgement.


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