ECLJ: The Assembly of the Council of Europe’s resolution on “Discrimination on the basis of sexual orientation and gender identity” reaffirms the exemptions status of the religious institutions when legal requirements conflict with religious tenets.

By ECLJ1274212827317

(Strasbourg, France) -- The Parliamentary Assembly of the Council of Europe has adopted the Resolution 1728 (2010) on “Discrimination on the basis of sexual orientation and gender identity.” The vote occurred April 29, 2010 with 51 votes for, 25 against and 5 abstentions (See the adopted resolution here)

The European Centre for Law and Justice (ECLJ), worked to amend the text and succeeded in assisting to postpone the vote; in changing some of its fundamental aspects; and most significantly, in introducing a new paragraph reaffirming a general principle of “religious exemption.”  In a detailed memorandum, the ECLJ criticized Mr Gross’ report mainly because it notably diminished and even threatened fundamental rights, such as the freedom of speech, the freedom of religion and conscience, the higher interest of children and the States’ sovereign interest and right to protect public morality, family and the best interests of the child. This resolution is also very problematic since it promotes the gender ideology, affirming, among other things that the “gender” is “assigned at birth” and opposes the “heterosexual majority against a homosexual minority.”

Dr. Grégor Puppinck, Director of the ECLJ, argued that “the appropriate response to violence and unjust discrimination against LGBT people should not include eliminating moral pluralism. That it is vital to protect and promote both free speech and freedom of religion in moral matters. More generally, the definition of the family should be maintained and the fundamental right to disagree with 'LGBT ideology' should to be protected.” To achieve this, the ECLJ drafted over a hundred amendments, some of which were adopted.

Through those positive amendments adopted, the original text was changed, among other dispositions, by:

  • Withdrawing the recognition of a “right to same sex union”,
    • replaced by “ensure legal recognition of same-sex partnerships only when national legislation envisages such recognition,” (tautological);
  • Withdrawing the right to marry and to found a family for transsexuals,
    • replaced by “relationship recognition, in accordance with the case law of the European Court of Human Rights” ;
  • Withdrawing the “right to adoption” of the children of the same-sex partner,
    • replace by “provide the possibility for joint parental responsibility of each partner’s children”;
  • Affirming that the best interest of the child must prevail;
  • Introducing a reference to the to freedom of expression in relation to “hate speech”;
  • Affirming a general principle of “religious exemption”.

One of the most noteworthy contributions of the ECLJ is the following amendment, reaffirming the general principle of “religious exemption”:

17. “Member states may grant exemptions to religious institutions and organisations when such institutions and organisations are either engaging in religious activities or when legal requirements conflict with tenets of religious belief and doctrine, or would require such institutions and organizations to forfeit any portion of their religious autonomy, and if such exemptions are compatible with the European Convention on Human Rights, as interpreted by the European Court of Human Rights.”

This text was adopted by one vote (41/40 and 1 abstention). It must be noted that the scope of this general exemption is NOT limited to sexual orientation issues, or even to “non-discrimination” regulations, but is absolutely general and concerns any legal requirements conflicting with tenets of religious belief and doctrine. This paragraph confirms and extends the scope of Article 4 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. This directive from 2000 adopted by the EU already recognized an exemption status to “churches and other public or private organisations the ethos of which is based on religion or belief,” but only in regard to discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation.

Regarding “hate speech,” the ECLJ maintains that the definition of this concept given by the resolution jeopardizes freedom of speech, including the freedom of religious preachers. The definition is to broad and vague:  it is defined as “speech likely to legitimise and fuel discrimination or hatred based on intolerance.” With such a definition, a sermon explaining the sinfulness of homosexuality could be considered as a speech likely to legitimise discrimination based on sexual orientation, for religious motives. It is with real difficulties that a the following reference to the case law of the ECHR has been introduced: “The boundary between hate speech inciting to crime and freedom of expression is to be determined in accordance with the case law of the European Court of Human Rights.” This wording shows the vagueness of the concept of “hate speech,” since its final definition is attributed to the Court. The courts will be in charge to balance and limit the liberticidal effect of the concept of “hate speech.”

A recent example of the necessity to protect the “freedom to dissent on moral and religious grounds” from the gender ideology, is given by the arrest last April 20 of Rev. Dale McAlpine, a Baptist street minister in the United Kingdom, after publicly calling homosexuality a sin. He was charged with causing “harassment, alarm or distress.”

The resolution was first scheduled to be voted during the First Part (25-29 January 2010) Session of the Parliamentary Assembly but due to the large number of amendments tabled at the last minute, Mr. Gross had to request that it be debated but not voted upon until the Second Part Session which was from 26-30 April, after examination of the many amendments in Parliamentary Committee. By postponing the vote by four months, the resolution lost a lot of its interest and influence on, firstly, the Recommendation CM/Rec (2010)5 of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity” (adopted on 31 March 2010), and secondly, on the hearing before the European Court of Human Rights of the Schalk and Kopf v. Austria case, a case concerning recognition of same sex union (on 25 February 2010).

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The European Centre for Law and Justice (ECLJ) is an international law firm focusing on the protection of human rights and religious freedom in Europe and worldwide.  The ECLJ is affiliated with the American Center for Law and Justice (ACLJ) which focuses on protecting religious freedom in the United States. Attorneys for the ECLJ have served as counsel in numerous cases before the European Court of Human Rights.  Additionally, the ECLJ has special Consultative Status with ECOSOC of the United Nations, and is accredited to the European Parliament.

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