No conceivable variety of liberalism can overcome the problem of religious liberty alone—but natural law offers hope for managing the challenge.
On Tuesday January 15, the European Court of Human Rights delivered a long awaited judgement. Four British citizens had sought from it a ruling that, on account of their religion, legal rights belonging to them under the European Convention (EC) had been breached. They claimed they had been breached first by their employers and subsequently by employment tribunals and the national appeal courts who ratified the treatment of the employees by their employers.
Two of the appellants were women who had been forbidden from wearing crucifixes about their necks while at work, in the case of one of them in a way that rendered it conspicuous. One was a check-in clerk for British Airways which had ordered her to conceal her crucifix because displaying it contravened its uniform code that forbade employees at work from displaying any jewellery.
The other woman was a geriatric nurse at an NHS hospital which had instructed her to remove the crucifix she had previously worn for years beneath her uniform. She was ordered to remove it, after a change in the design of nurses’ uniforms at the hospital had rendered it conspicuous. Her line managers claimed it constituted a health hazard, since patients might injure either her or themselves by grabbing it or else by its coming into contact with an open wound of a patient.
Both women refused to follow their employer’s instructions. As a result, each was subject to a disciplinary procedure to which each had responded by appealing to an employment tribunal. Each argued that, under Article 9 of the European Convention, they had the right to manifest their religion, and that, under Article 14, each had the further right not to suffer discrimination on account of their religion. Their line of argument proved unsuccessful at these tribunals and subsequently in the English appeal court to which they then took their cases. They had then turned to the Strasbourg Court to seek from it a declaration that these human rights of theirs under the EC had indeed been violated.
The appeal of the check-in clerk was successful at Strasbourg. That of the nurse was not. The European Court judged that, legitimate as the aim of British Airways was to project a certain corporate image through its uniform code forbidding conspicuous displays of jewellery by employees, its interest did not outweigh the EC right their employees had to manifest their religion by displaying modest symbols of it. The nurse’s appeal failed because the Court found the basis of her employer’s instruction to remove her crucifix involving as it did the rights and interests of others to outweigh her right to manifest her religion in the manner she had sought by wearing it.
Important as these two rulings were, in themselves they were relatively trivial and uncontroversial. British Airways had long since altered its uniform policy to allow employees to display modest religious symbols. Likewise, it is difficult to see how any exception could be taken to the Court for concurring with the view of the UK appeal court that had denied the nurse’s appeal against dismissal that courts of law were not in a position to overturn the clinical judgement of health care managers as regards what constituted a health risk. Given this, it would seem, her managers had been entitled to demand the nurse remove her crucifix and to fire her for refusing. However, it remains open to wonder exactly why that nurse should not have been allowed to wear some manner of uniform that would have again concealed it, and so no longer made of it a health risk.
Of far greater import, and more problematic, was the judgment of the Court in respect of the other two appellants. They had been fired on account of the reasons that each had voiced with their employers about being called on by them to perform tasks that, in the eyes of each, were unconscionable because they involved their having either to celebrate or facilitate gay sex.
One was a registrar of births, marriages, and deaths at a London local authority. When instructed to conduct civil partnership registrations after their institution in 2005, she refused for reasons of conscience. To do so, she believed, would be tantamount to endorsing gay sex which, as a devout Christian, she felt unable to do, considering such sexual activity wrong. The other unsuccessful appellant had been a counselor and sex therapist at a national charity for promoting healthy relationships. He too was fired on account of having expressed qualms about having to provide gay couples with sex therapy, again because, as a Christian, he considered gay sex sinful and so did not wish to be complicit in facilitating it.
In being fired on account of reservations each had expressed to their employers about what they were being called on to do, each appellant claimed there had been a violation of their right under the Convention to not suffer discrimination on account of their religious beliefs.
The judgment of the Strasbourg Court in respect of these two appellants is of much greater import than that which it made in respect of the nurse and the airline check-in clerk. This is because, in the case of the two latter appellants, the particular manifestation of their religion they had been forbidden by their employer was merely one in which they had each wanted to engage while at work. Although the Court acknowledged that wearing a cross at work could be a genuine and legitimate manifestation of the wearer’s religion, it was not a requirement of any. Nor did either appellant consider their wearing a cross to be their religious or moral duty.
By contrast, the manifestation of religion for which the registrar and counselor were each fired was for both a matter of conscience. The Court ruled that the rights and interests of gay people not to suffer discrimination outweighed those of religious people to freedom of conscience.
What makes that ruling of the Court more worrisome than that delivered by it about the display of crucifixes by employees was that, in issuing it, the Court was, in effect, saying that those with such scruples as those of the registrar and counselor must learn to overcome or disregard them at work, out of deference to the rights and interests of gay people, or else face dismissal. In other words, the Court was requiring people placed in such circumstances to act against their conscience to keep their jobs. It was offering religious people no accommodation on account of their consciences. Their right to freedom of conscience, so the Court was in effect ruling, was not as important as that of gay people not to suffer discrimination on account of their sexual orientation.
What makes this judgement worrisome is that for anyone to act or be made to act in violation of their conscience is typically far worse than being deprived of the opportunity to act as they might have wished to. The nurse might well have felt badly at being denied the opportunity to wear her crucifix at work. However, in complying with the managerial instruction to remove it, she need not have felt her moral integrity was being compromised in any way. The same could not be said of the registrar or counsellor. Their moral integrity would have been impugned, if, to retain their jobs, either eventually had performed the tasks required of them by their employer they considered unconscionable.
There can be no doubt that the Court, or at least the five judges in the panel of seven who found against the registrar, had no qualms in ruling that religious employees must be prepared to set aside their consciences in order not to discriminate against gay people in the workplace. The Court held that:
differences in treatment based on sexual orientation require particularly serious reasons by way of justification… [and] same-sex couples are in a relevantly similar situation to different–sex couples as regards their needs for legal recognition and protection of their relationships… Against this background, it is evident that the aim pursed by the local authority [–“to provide a service which was not merely effective in terms of practicality and efficiency, but also… committed to… requiring all its employees… (not to) discriminate against others”] was legitimate. The Court takes into account that the consequences for the applicant were serious… On the other hand, however, the local authority’s policy aimed to secure the rights of others which are also protected under the Convention… In all the circumstances, the Court does not consider that… the local authority employer which brought the disciplinary proceedings [against the registrar], and also the domestic courts which rejected the applicant’s discrimination claim, exceeded… [that to which they were entitled by the Convention]. It cannot, therefore, be said that there has been a [rights] violation… in respect of the third applicant. [para.105]
In arriving at this judgement, it appears, the five judges who did had been heavily influenced by the opinion concerning the case that was expressed in a letter to the Court submitted in August 2011 by the British National Secular Society. Among the three signatories to that letter was former Prime Minister Gordon Brown’s constitutional adviser, the Labour peer and human rights lawyer Lord Lester QC. The reasoning cited by the five judges as leading them to find against the registrar closely mirrors the following argument contained in that letter concerning the limits to her rights:
Employers are entitled to require that those who voluntarily undertake to provide services to the public must do so in a non-discriminatory fashion, even if they believe it is morally wrong to do so. At least where the prohibition concerns discrimination of type that, under the Convention, requires particularly weighty reasons to justify – such as on grounds of… sexual orientation – such a requirement will always be a proportionate means of protecting the rights and freedoms of others so as to justify a potential interference with Article 9 rights. [para. 33]
Two of the seven judges presiding in the case did not concur with this opinion. In a pithy and cogently argued, scathing dissenting opinion, these two judges advanced a powerful reason why Article 9 should not have been construed as giving employers and national authorities any entitlement to make such onerous demands on the consciences of employees in the name of non-discrimination. In a nutshell, what these two judges claim is that Article 9 accords the right of people to freedom of conscience an unconditional status, similar to the right of people not to be tortured. As such it is not one against which it is appropriate to balance the competing rights and interests of others, however weighty these might in themselves be. Thus, according to their line of argument, however much of a right and great an interest gay people might have not to suffer discrimination on account of their sexual orientation, that right and interest of theirs should never be made to trump those of anyone who felt on grounds of conscience compelled to refuse to treat them, as the registrar had done in refusing to conduct civil partnerships registrations on their behalf.
If the opinion of these two dissenting judges is correct as to the unqualified status of the right to freedom of conscience that is accorded it in Article 9, it was improper for the registrar’s employer, and subsequently for the employment appeals tribunal and national court that found against her, to have weighed against that right of hers those of gay people not to suffer discrimination on account of their sexual orientation. As the two dissenting judges put it:
In our view the State’s margin of appreciation… does not enter into the equation in matters of individual conscience which reaches the… level [of cogency, seriousness, cohesion and importance that the third applicant’s conscientious objection attained.] [paras. 5 and 3.]
The two dissenting judges deny that there was any similar rights violation in the case of the dismissed counsellor. This is because, as they put it:
[W]hen the third applicant joined the public service in 1992, and when she became a registrar of births, deaths, and marriages in 2002 , her job did not include officiating at same-sex partnership ceremonies… [Nor] was it to be expected… that marriage registrars would have to officiate at these ceremonies in the future. If anything, both the law (the Civil Partnership Act of 2004) and the practice of other local authorities allowed for the possibility of compromises which would not force registrars to act against their consciences… [N]o violation of Article 9 [occurred] in respect of the fourth applicant… [because] he [had] effectively signed off or waived his right to invoke conscientious objection when he voluntarily signed up for the job.
It is moot whether the fourth applicant ever actually did refuse to carry out sex therapy with gay couples, rather than merely express to his employer his moral qualms at the prospect of having to do so. If, as he claims, it was only the latter, then, in being fired, his rights to manifest his religion would have been violated too. For such qualms would not have given his employer any legitimate grounds to fire him.
Supporters of the Court’s majority decision maintain that, should the right to freedom of conscience be understood as being as absolute as the two dissenting judges interpret Article 9, then it would drive a coach and horses through the British Government’s Equalities legislation prohibiting anyone from discriminating against others on grounds of their sexual orientation. However, it is difficult to see why that should really be so, since it seems sufficiently possible to differentiate between genuine conscientious objection and bigotry to know which is operative in any given case.
Should, on appeal, the opinion of the two dissenting judges prevail, then the way forward in these difficult cases would be by means of pursuing the reasonable accommodation of those with conflicting outlooks. This is the path which was recommended by the Director of the European Centre for Law and Justice on whose brilliant third party intervention the two dissenting judges had so heavily relied in arriving at their dissenting view. In a press release issued immediately after the Court delivered its ruling, the Centre commented on it as follows:
How can one consider [it] proportionate to dismiss an employee [who conscientiously objects to some task they have been given at work] when it would have been easy for the employer to accommodate him by [assigning] him to other positions or tasks? The refusal by the employers to accommodate the applicants [in the cases of the registrar and counsellor] is merely an ideological sanction meaning that, as a question of principle, there is no room on the staff for “intolerant Christians”. Many Western democracies have chosen to promote the model of “reasonable accommodation” in order to allow a diverse society to live together in mutual respect; this is not the choice of the ruling today.
Sadly, it was not. But there is still time for wisdom to prevail on appeal, unless, that is, in the words of Bob Dylan:
We live in a political world
Where wisdom is thrown in jail
It rots in a cell
Is misguided as hell
Leaving no one to pick up a trail.
We live in a political world
Icicles hanging down
Wedding bells ring
And clouds cover up the ground.