At the end of May, the Grand Chamber of the European Court of Human
Rights (the final European Court of Appeal) rejected a request for
referral to it of three contentious religious freedom cases from the
United Kingdom. This means that the European Court’s initial
less-than-friendly rulings on religious freedom still stand, and they
will undoubtedly help erode respect for religious freedom throughout
Europe.
The court, under the auspices of the Council of Europe, is distinct
from the agencies of the European Union, and processes litigation from
forty-seven countries, including Russia and Turkey. Over the years, the
council’s Parliamentary Assembly has betrayed an endemic suspicion of
religion, and following a tradition of French secularism, has tended to
see religion as a threat to human freedom, instead of its possible
basis.
This thinking can be traced to the later French Enlightenment, with
its exaltation of a rationalism that led to materialism, and markedly
differs from the early Enlightenment thought of John Locke. Locke
believed reason was rooted in divine nature, the “candle of the Lord” as
he put it. His deep influence on English politics in the Glorious
Revolution of 1689 and the American founding resulted in documents that
upheld a divine grounding for human rights.
In contradiction of this view, the Council of Europe affirmed in 2007
that “states must require religious leaders to take an unambiguous
stand in favour of the precedence of human rights, as set forth in the
European Convention of Human Rights, over any religious principle.”
It is ironic that freedom of religion is expressly protected by the
Convention and that the council recognizes this protection, because now
the right to manifest one’s religion is highly qualified. In the
council’s words, “a religion whose doctrine or practice [runs] counter
to other fundamental rights would be unacceptable.”
In Europe, as opposed to the United States, freedom of religion
translates to “freedom of religion or belief,” a phrase that covers not
just atheism, but “philosophies” like vegetarianism or environmentalism.
“Religion,” however defined, is no longer regarded as a unique
contribution to the common good.
The result of this is that when more systems of belief invoke
protection, the less effective that protection can be. When everything
is protected nothing can be. “Freedom of religion or belief,” a concept
that can only be broadly and vaguely defined, is easily subordinated to
wider considerations of public policy.
The idea that religion cannot claim rights when other “fundamental”
rights are jeopardized fails to do justice to the freedom of religion.
When rights clash, we shouldn’t think that one trumps another. If rights
are important, each should continue to matter, despite a clash, and
should be accommodated as far as possible. One of the cases that the
Grand Chamber refused to take perfectly illustrates this problem.
Lillian Ladele was a civil registrar working in London for the
Borough of Islington. When civil partnerships between same-sex couples
were introduced, she believed she could not in good conscience, as a
Christian, officiate at the ceremonies. The Borough wished to uphold gay
rights, and made an example of her. She lost her job, although
colleagues could easily have conducted the ceremonies, and she could
have continued doing the same work she had done for many years.
No attempt was made to accommodate her, and the court seemed to take
no interest in the promising idea of reasonable accommodation. The
reason could only be that social priorities, such as the promotion of
homosexual equality, have to take precedence over any idea of religious
freedom.
Even in England, there seems to be a growing suspicion of religion,
and a desire to minimize its influence. This is particularly true as
Parliament seems set to redefine marriage without ensuring adequate
safeguards for those with conscientious objections, such as civil
registrars, teachers, and parents, among many others.
Religion is too often seen in Europe as divisive and threatening, and
associated with bigotry and dogmatism rather than reason. The view
seems to be that we need freedom from religion, not for it.
All too often religion is thought of as opposed to reason. An immediate
corollary of this view is that it cannot contribute to public, rational
debate. It may be tolerated as the private pursuit of those who choose
it, but public policy should not take account of it, let alone be
grounded on any religious view. It is in this spirit that public
displays of religious belief are often prohibited. That prohibition is
itself a symbol of deeper attitudes concerning the public role of
religion.
The other two cases that the court refused to hear concerned the
wearing of crosses. One case invoked somewhat spurious health and safety
grounds against wearing the cross, but the court was unwilling to
correct hospital managers who claimed that a nurse’s wearing of a cross
was a health hazard.
In the second case, the initial European Court hearing accepted that a
British Airways employee could wear a cross, as a manifestation of her
belief. This ruling was an advance on the rulings of other English
courts that wearing a cross is not a “core” requirement of the Christian
faith, and so is not a proper manifestation of that faith.
A disturbing feature of this case was different courts’ willingness
to venture into theological territory and rule on theological
priorities. Lillian Ladele had been similarly told that beliefs about
marriage are not central to Christianity, and courts have also recently
said the same about not working on Sundays. Some Christians work on
Sunday, the line goes, so there can be no substantive objection. These
cases show us that freedom of religion is progressively narrowing down
to freedom of worship. The right to worship in church on a Sunday is
enough, though ironically that criterion doesn’t seem to protect those
who wish not to work on Sundays so that they can worship.
In England, following previous European judgments, the view has been
that freedom of religion is adequately protected by freedom of contract.
If you do not wish to work on Sunday, and your employer requires you
to, you can resign. Yet the freedom to be unemployed is not much of a
freedom.
At root is an undervaluing not just of religious freedom, but of
religion itself. Attitudes are typified by the remarks of Lord Justice
Laws in the English Court of Appeal, concerning a case that went to the
European Court. A relationship counselor who had conscientious
objections to advising same-sex couples lost his job. Laws responded,
“in the eye of everyone save the believer, religious faith is
necessarily subjective, being incommunicable by any kind of proof or
evidence.” He further said that protecting a position on purely
religious grounds “is irrational, as preferring the subjective over the
objective, but it is also divisive, capricious and arbitrary.”
By thus glibly separating religious faith from any claim to
rationality, Laws rejected centuries of theological and philosophical
thought. He followed our modern tendency to see reason and religion as
fundamentally opposed. The result is inevitably to see religion as a
potential danger to society, outside the scope of rational discourse,
and hence able to contribute little to the wider good.
All religions form minority communities in Europe today, and
secularist assumptions are becoming daily more influential. Different
countries still recognize the traditional relationship between church
and state, but even where this recognition exists it is more and more
under threat.
Muslims and Jews, for example, both see in the Establishment of the
Church of England a lingering respect for the role of religion in
society. “Establishment” is no longer a vehicle for Anglican privilege,
as it perhaps once was, let alone any financial advantage. Instead it
provides an umbrella under which different religions can shelter and
still claim a public voice together.
Despite efforts to sideline the Christian faith in particular, and
all religion in general, the Anglican Church still reminds people that
religion has formed the fabric of the nation. Yet the danger is that, as
Locke saw, human rights themselves may not be justifiable without some
religious foundation. Allowing human rights always to “trump” any
manifestation of religious belief is in the end going to corrode one of
the most important supports for our collective understanding of the role
and importance of those rights.
In a new resolution on human rights and religion and belief in April,
the Council of Europe seemed to stress more positively than previously
“the importance of upholding freedom of conscience and religion.” The
Parliamentary Assembly called on member states to “ensure that the
religious beliefs and traditions of individuals and communities of the
society are respected, while guaranteeing that a due balance is struck
with the rights of others in accordance with the case law of the
European Court of Human Rights.” It also stressed that states should
“accommodate religious beliefs in the public sphere . . . providing that
the rights of others to be free from discrimination are respected and
that the access to lawful services is guaranteed.”
All this sounds well and good, but the qualifications ensure that
religious rights are likely still to be trumped by other rights. The
recent refusal by the Grand Chamber to hear the cases described above
proves the point. Freedom from discrimination will not include freedom
from discrimination on grounds of religion. Words like “accommodation”
and “balance” won’t carry any real weight in the European Court. If
reasonable accommodation were the aim, the Grand Chamber would have
seized the opportunity to hear the cases, in which other demands trumped
the right to manifest religious belief.
