Some Good News for Secularists

ECHRTwo bits of good news in twenty four hours.  It’s fun to be a secularist.

The European Court of Human Rights has passed down judgements in four key cases concerning religious discrimination against Christians in the workplace.

Of the four individuals, Nadia Eweida was the only one to successfully demonstrate she had suffered religious discrimination when her employer, British Airways, refused to allow her to wear a crucifix. The court in Strasbourg held that the right of the airline to project a corporate image should not in this instance have prevented Eweida displaying her crucifix.

Shirley Chaplin, a nurse, was also prevented by her employer from wearing a crucifix but she failed to convince the court she had suffered discrimination. The court decided it was legitimate for her employer to restrict her religious freedom in this way on the grounds of health and safety.

Lilian Ladele was a civil registrar who refused to conduct civil partnerships. Her case failed, as did that of Gary McFarlane, a sex counsellor employed by Relate who refused to provide counselling to same-sex couples.

My initial reaction when I heard the Eweida decision was one of sadness, but having had the time to play with my rosary beads I’ve cheered up, a bit. There was no new principle here: certainly no gold-plated right of Christians to display symbols of torture, or other jewellery, in the workplace – and the Chaplin decision provided an important reminder of that. The court simply found, in one particular case, that an airline had unfairly restricted an employee’s religious freedom in order to project a certain corporate image.

The narrow application of Eweida will not and has not stopped Christian lobby groups proclaiming this as a crucial victory against supposedly sinister secularising forces, and the media has rather unhelpfully focused on the solitary Christian victory rather than the three losses. Tonight, Channel 4 News covered this approximately twenty minutes into its 7pm news. Only Eweida was covered; there was absolutely no analysis or even mention of the other three cases.

With a bit of arm-twisting I might be convinced the court reached the correct decision on Eweida, and in any case I’m not particularly troubled about people wearing crucifixes. They don’t tend to infringe others’ rights (but obviously, note Chaplin), and the faithful aren’t generally coerced or pressured into wearing them.

I am, however, concerned that misreporting of Eweida (and in the case of Channel 4 News, non-reporting of Chaplin), could easily create the perception there is in fact a right to display all religious symbols in all workplace contexts. This is bad news not only for employers, who might adopt an overly risk-averse approach to this issue – thus making the relationship between religious freedom and employment an ever more taboo subject – but it also makes the entire debate about the burka/niqab more difficult, and not just in the work environment. I can’t imagine too many radical Islamic clerics focusing on Chaplin: they don’t care about a failed Christian “martyr”, after all. No, they will more likely concentrate on the implications of Eweida, to argue for further social acceptability of the burka/niqab. That is bad news for the many women who are forced, or encouraged ever so subtly, to wear these garments.

One part of the religious symbols debate I dislike, which is used by secularists and non-secularists alike, is to focus on whether something is an article of faith, a requirement of a particular faith, or covered by a fundamental theological tenet. As a rule I don’t pursue this line even if it were to benefit my argument.

It’s far too arbitrary for a start (since when have people of the same faith or even the same denomination agreed on everything, even key issues?); it risks protecting or not protecting the belief itself rather than the right to hold or manifest that belief; it reinforces group rights over individual rights (which I discussed here); it reinforces the notion of homogeneity of belief across a group (which I discussed here); it risks making religious “leaders”/”scholars” final arbiters on key issues of discrimination and human rights (they are, after all, the individuals most likely to be accepted by the courts as “expert witnesses” on this); and it gives those leaders/scholars ever greater jurisdiction over individuals who belong or are deemed to belong to a certain group. Did I mention I didn’t like it?

But there’s a fly in the Eweida ointment for religious groups: let’s not forget that Article 9 of the European Convention on Human Rights doesn’t apply only to religious beliefs. It applies to all beliefs and, indeed, to non-belief (though it’s interesting to consider whether belief in a deity which – for the sake of argument – does not exist, should be considered belief or non-belief. Anyway, for the purposes of Article 9 it’s irrelevant.

The court did not consider, and nor should it have considered, the actual belief. A belief is no business of an employer (discussed here) or the state (discussed here). So the door is still open in principle for employees wishing to manifest their infidel beliefs, vegan beliefs, Scientology beliefs and – to focus the mind – BNP beliefs. Yes, that’s how rights work: they’re also for people you disagree with.

One argument I have heard in Ladele’s favour (the refusenik civil registrar) was that civil partnerships came into being only after she had taken on her role, and so on that basis, the argument goes, she “never signed up to that”. Sorry, that doesn’t wash with me. An express or implied term in her employment contract to comply with equalities legislation or her employer’s equalities policies would most probably be interpreted to include the wording “as amended from time to time”.

Social progress in the equalities arena would be virtually impossible to achieve if it required the variation of individual employment contracts of all employees. Perhaps there were employees in the 70s who challenged their employer’s right to enforce legislation outlawing racial discrimination. Well, tough. Sometimes people need to be forced to behave morally. As to what does and does not constitute social progress, well sometimes we need the passage of time to establish that, as well as the right to protest.

The prospect of alternative outcomes on Ladele and McFarlane was truly terrifying. In these cases there was clear infringement of others’ rights. The very idea that people could politely excuse themselves from providing services to certain people if they so wished would have created sectarianism overnight and hurled us back to the stone age. What would have stopped, for example, a Muslim refusing to provide services to Christians, infidels, Jews or apostates, based on a reading of certain passages of the Koran? We really were staring over the precipice on those two cases.

I don’t know what would have happened had the court approved of Ladele’s and McFarlane’s right to withhold services. Faced with the prospect of having the clock turned back decades, I’m guessing LGBT activists – and any decent humans regardless of what they choose to do with their genitals – would have engaged in some form of civil disobedience. Because it’s not really the law that is sacrosanct, so much as the rule of law, and civil disobedience is an essential component of the rule of law.

In all then, a good day, with a small question mark over Eweida and how that decision will now be represented. But then again, spin and misinformation has long been a factor in the great debate between secularism and theocracy, so there’s nothing new there…

…Which is why it’s such good news that the Reform Section 5 campaign has been an outstanding success. News of this came in towards the tail end of Monday evening, and it’s been overshadowed by the news from Strasbourg today. In some ways the amendment to Section 5 of the Public Order Act 1986, which will remove the word “insulting” from that legislation, was the more important victory for secularists (though Reform Section 5 was a joint campaign between the National Secular Society and the Christian Institute).  Why?  Because at least we know we can still talk about religion.

Two major pieces of good news in the space of 24 hours. It can sure be fun being a secularist.  Why not give it a go?

Or perhaps you’re already a secularist and you don’t even know it.

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