January 15, 2013
For the ECHR, it is proportionate to dismiss an employee because of his religious and conscientious objection to homosexuality.
Grégor Puppinck, PhD
Director of the European Centre for Law and Justice.
Strasbourg, January 15 2013.
The ECLJ is deeply concerned by the today ruling of the majority of the Fourth Section of the European Court of Human Rights and wishes that those cases to be referred before the Grand Chamber. This ruling is significant step back for freedom of conscience and religion in Europe.
The ECHR ruled today that the United Kingdom did not violate the European Convention on Human Rights in three out of the four cases of Nadia Eweida, Shirley Chaplin, Lillian Ladele and Gary McFarlane against the United-Kingdom, concerning the right of Christians not to be discriminated against at work because of their conscience and religion (cases nos. 48420/10, 59842/10, 51671/10 and 36516/10).
In those four cases, Christian employees from various denominations have been sanctioned by their employer, and even lost their job, for respecting the commitments of their faith and conscience: wearing a small cross on a chain around their neck (cases of Ms Eweida and Ms Chaplin), and refusing to register same-sex partnership (case of Ms Ladele). For the case of Mr McFarlane, a marriage counsellor, he was dismissed after sharing with his superiors his moral doubts as to his personal ability to counsel same-sex couples (Summary of the facts of the cases below).
The Section only found a violation in the case of Ms Eweida because other employees of other religions were allowed to wear religious items. The ECLJ welcomes this outcome for Ms Eweida.
In the cases of Chaplin, Ms Ladele and McFarlane, the Section ruled that there were no violation of their right to freedom of conscience and religion. The ECHR only rely on the “margin of appreciation” of the State to justify its judgments, considering that it was not disproportionate to dismiss an employee because 1/ she refuses to take off the small cross (case of Shirley Chaplin), 2/ she refuses to take the new professional duty to celebrate same-sex civil partnerships (case of Lillian Ladele), 3/ he shared with his superiors his moral doubts as to his personal ability to counsel same-sex couples. (case of Gary McFarlane)
It has to be recalled that Shirley Chaplin has been wearing this cross around her neck for years in her workplace without any problem; while Gary McFarlane has only share with his superiors his professional and conscientious doubts as to his ability to advice same-sex couples as a couple’s therapist. Concerning Lillian Ladele, she was already in position as registrar in Islington before the law introducing same-sex partnership in the UK; therefore, she never accepted to take this responsibility and could easily be affected to another position as a civil servant.
What is the most inacceptable in the Section’s ruling is that it found that the dismissal of the employees is proportionate to the need to enforce the employer’s “equality and diversity policies” which is aimed at fighting against sexual, racial and religious discriminations. How can one consider proportionate to dismiss an employee when it would have been easy for the employer to accommodate him affecting him to other positions or tasks? The refusal by the employers to accommodate the applicants is merely an ideological sanction meaning that, as a question of principle, there is no room in the staff for “intolerant Christians”. Many Western democracies have chosen to promote the model of “reasonable accommodation” in order to allow a divers society to live together in mutual respect; this is not the choice of the today ruling. The Section chooses the way of the imposition on individual consciences of postmodern ideology, which, in the name of diversity and pluralism, refuses the personal expressions of sexual morality. This ruling has chosen to endorse the monopolistic imposition of the postmodern ideology over individual consciences and religious beliefs, whereas the Section had the opposite possibility to show the way of a really pluralist and respectful approach of diversity.
The ECLJ is convinced that the recognition of the existence of specific moral issues, with regard to which the free conscience of citizens should be respected, can only be beneficial to democratic, pluralist and tolerant States and strengthen the cohesion of society. Taking into account the small numbers of conscientious objectors and homosexual couples, there should be no practical difficulties in respecting their respective rights. Under no circumstances should this lead to a loss of employment. As the Court often uses to say “the role of the authorities is not to suppress the cause of the tensions by eliminating pluralism, but to ensure that opposing groups tolerate each other”. Ones can wonder if it is still true.
This Section’s ruling gives a free licence to discriminate Christians at workplace by submitting them to “obsessive political correctness”. Those rulings are perfect example of the liberticidal trend of liberalism and relativism, were a society based on a consensus of amorality do not tolerate those who continue to have a moral judgment of conscience.
The majority of the Section obviously missed the fundamental difference between conscience and religion. Whereas the cases of Ms Eweida and Chaplin are cases of “freedom of religion” (freedom to wear religious items in public), the ones of Ms Ladele and Mr McFarlane are cases of “freedom of conscience” (conscientious objection to homosexuality). Only two judges - Judges Vucinic and De Gaetano - have understood this fundamental difference that the ECLJ tried to explain in its written observations to the Court .
Whereas freedom of religion may be subject to necessary limitations in a democratic society (according to article 9§2), freedom of conscience shall not be subject to such limitation, once a genuine and serious case of conscientious objection is established. The State has the positive obligation not only to abstain from forcing someone to act against his (moral) conscience, but also to undertake positive measure to accommodate this person, as mush as reasonably possible. In the case of Ms Ladele, the State not only forced her to celebrate same-sex unions, (violating its negative obligation to respect individual conscience) but also made no effort to find a reasonable accommodation in order to respect her genuine conscientious objection (violating its positive obligation to respect individual conscience).
It is not the same to force someone to abstain from wearing a religious item, and to force someone to act against his conscience, for example forcing someone to celebrate a homosexual union, or any other practice that can be genuinely considered as immoral, such as abortion. Indeed, there is no much difference between dismissing a civil servant for his refusal to celebrate a same-sex union, and dismissing a medical practitioner for refusing to perform an abortion.
This comprehension of the difference between “conscience” and “religion”, and its implications for the legal protection of both freedom of conscience and freedom of religion, structures the excellent dissenting opinion of Judges Vucinic and De Gaetano. In their opinion, the two judges demonstrate why the UK violated Ms Ladele freedom of conscience. The two judges concluded their opinion explaining that, in the case of Ladele, “Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal – something which, even assuming that the limitations of Article 9 § 2 apply to prescriptions of conscience, cannot be deemed necessary in a democratic society”.
For the case of Mr McFarlane, the two dissenting judges noted that he could not ask respect for his conscientious objection because he voluntarily decided to take the job of therapist, knowing that he may be asked to advice same-sex couples. The ECLJ would agree with this appreciation in McFarlane only if he had eventually refused to advice some clients; that he never did. His dismissal was only based on his “doubts”, i.e. on his personal opinion.
It also has to be noted that the Ladele and McFarlane cases are coming a few months after the Court’s ruling in Vejdeland and others v. Sweden of February 2012, where the Court already accepted the limitation of freedom of expression on matters related to homosexuality. This time, concerns for homosexuality override freedom of conscience and religion.
The ECLJ intervened as a third party (amicus curiae) in the proceedings before the ECHR in two of the cases, namely in Ladele v. the United Kingdom (no. 51671/10) and McFarlane v. the United Kingdom (no. 36516/10) and submitted written observations to the Court . The Director of the ECLJ, Dr Grégor Puppinck, participated also at the hearing as adviser of Ms Nadia Eweida.
Summary of the facts of the cases:
Chaplin and Eweida (applications nos. 59842/10 and 48420/10)
The applicants, Ms Nadia Eweida and Ms Shirley Chaplin worked from 1999 and April 1989 respectively as a member of check-in staff for British Airways (BA) and as a nurse on a geriatrics ward being employed by the Royal Devon and Exeter NHS Foundation Trust. As a sign of their commitment to their faith, they wore a small silver cross on a chain around their neck openly.
In September 2006, Ms Eweida was sent home without pay until she decided to comply with the uniform code, which, according to BA permits wearing a sikh turban or a muslim headscarf, but not a Christian Cross. In October 2006 she was offered administrative work without the obligation to wear a uniform or have contact with customers, which she refused. She finally returned to work in February 2007 when the company’s policy was changed to permit the display of religious and charity symbols, with the cross and the star of David being given immediate authorization.
As to Ms Chaplin, in June 2007, her manager asked her to remove her small crucifix on the chain around her neck. She sought approval to continue wearing her crucifix which was refused on the ground that it could cause injury if a patient pulled on it. In November 2009 she was moved to a non-nursing temporary position which ceased to exist in July 2010.
Both applicants lodged claims with the internal courts complaining in particular of discrimination on religious grounds, but their claims were rejected. In Ms Eweida’s case, they found that the visible wearing of a cross was not a requirement of the Christian faith but the applicant’s personal choice and that she had failed to establish that British Airways’ uniform policy had put Christians in general at a disadvantage.
Ladele and McFarlane (applications nos. 51671/10 and 36516/10)
The applicants, Ms Lilian Ladele and Mr Gary McFarlane were employed as a Registrar by the London Borough of Islington from 1992 to 2009 and as a Counselor for Relate from May 2003 to March 2008 respectively. Both of them consider that homosexual relationships are contrary to God’s law and that it is incompatible with their judgment and beliefs to do anything to condone homosexuality. When the Civil Partnership Act came into force in the United Kingdom in December 2005, the first applicant was informed by her employer that she would hence forth be required to officiate civil partnership ceremonies between homosexual couples. Refusing to sign an amended work contract, disciplinary proceedings were brought against her in May 2007 which concluded that, if she failed to include civil partnership ceremonies as part of her duties, she would be in breach of Islington Council’s equality and diversity policy and her contract could be terminated.
In the case of Mr McFarlane, by the end of 2007, his superiors, as well as other therapists, had expressed concern that there was conflict between his religious beliefs and his work with same-sex couples. In March 2008, after a disciplinary investigation, Mr McFarlane was dismissed summarily for gross misconduct on the ground that he had stated that he would comply with Relate’s Equal Opportunities Policies and provide counseling to same-sex couples without any intention of doing so. Both applicants brought proceedings before the internal tribunals on grounds of religious discrimination, but their claims were rejected on the grounds that their employers were not only entitled to require them to carry out their duties, but also to refuse to accommodate views which contradicted their fundamental declared principles.
Considering that their rights guaranteed by the Articles 9 (freedom of religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights were violated, all four applicants addressed to the ECHR, complaining that domestic law failed to adequately protect their right to manifest their religion.
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The European Centre for Law and Justice (ECLJ) is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights. The ECLJ has held special Consultative Status before the United Nations/ECOSOC since 2007. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, and the Organization for Security and Cooperation in Europe (OSCE).
The ECLJ bases its action on “the spiritual and moral values which are the common heritage of [European] peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy” (Preamble of the Statute of the Council of Europe).