The ECtHR Decisions: More Thoughts, and “What If”

ECHR2This follows yesterday’s post where I discussed the judgements of the European Court of Human Rights concerning religious discrimination against four Christians in the UK. Here I explore things a bit further and also analyse the possible consequences of alternative judgements.

Eweida and Chaplin

The court found that the British Airways employee Nadia Eweida suffered religious discrimination. The airline’s right to project a corporate image didn’t, in this instance, allow it to prevent Eweida displaying her crucifix.

As secularists we’re clear that religious freedom is vital, and it’s crucial when we make this point that we really do mean it. So in principle it’s reassuring this freedom is recognised and enforced, as it was in Strasbourg.

Of course, this doesn’t mean the right is absolute, as the case of the nurse Shirley Chaplin clearly demonstrated. In that case it was reasonable for her employer to restrict her right to wear a crucifix, for health and safety reasons.

Although the court found Eweida had been discriminated against, being prevented from wearing a crucifix in the workplace must surely rank at the more benign end of the religious persecution spectrum. One need only look at the horrid treatment of Christians (and Coptic Christians, like Eweida herself) in the Middle East for examples of persecution which is anything but benign. Still, discrimination is discrimination. And it’s wrong.

In my previous post I rejected in principle discussions of whether a certain item is or is not an “article of faith” or “requirement of faith”. It’s impossible to establish this and there are unpleasant consequences of this approach anyway, such as identity politics, majoritiarianism, and rights being granted to the most assertive but withheld from the most timid. It creates sectarianism and division in the workplace and beyond, even between those of the same “community”.

If an employer’s equality and diversity policies were to recognise, say, the headscarf as a fundamental tenet of Islam, where would that leave a Muslim woman who not only didn’t want to wear a headscarf but positively disliked headscarves? There’s a risk she would be seen as an “improper Muslim” – both by her Muslim and non-Muslim colleagues. At that point she may feel under pressure to compromise her own beliefs or dress choices by joining one group or the other. There’s no reason why she should have to choose between any groups at all.

But there’s another reason I dislike this approach. Remember, Article 9 protects all belief and non-belief, not just religious belief. I can’t think of an equivalent argument to be made for “article of faith” or “requirement of faith” in the context of non-religious beliefs, or non-belief, and so applying this concept solely to religious belief potentially creates a significant difference in the article’s application.

It would be unjust to force religious people to clear an additional hurdle before obtaining the protection of Article 9. Why should their Article 9 rights be subject to endorsement by, most likely, religious “leaders” or “scholars”, whose motivation is often the preservation of their own personal interests above anyone else’s?

And the converse is true. It would be unjust if those seeking to use Article 9 to protect their non-religious belief, or non-belief, were not capable of reaching for some gold-plated coating residing on the article’s top shelf bearing the instructions “Apply to Religious Beliefs Only”.

The alternative outcome

Had the court found that British Airways had acted properly then I suspect some people – secularists and non-secularists alike – may well have argued that religious freedom had been unnecessarily restricted.

Legally and practically I think this would have focused the minds of employees, both religious and non-religious, on the reason they go to work: to work. There would have been a much thicker line drawn between someone’s working life and their personal life. That’s not necessarily a bad thing, especially as so many individuals have a tendency to fuse the two to their own detriment, primarily I suppose because of technological developments such as social media and email.

But from a civil liberties perspective there would have been an even more pressing need to condemn treatment of those like Adrian Smith, who was demoted by his employer the Trafford Housing Trust for saying on his personal Facebook page – outside of work, without a work hat on – that gay marriages in church represented “an equality too far”.

Smith was eventually successful against his employer, and rightly so (I discussed his case here). If the Eweida decision had been different, and also if Smith had not eventually been successful against his employer, that would have been very troubling indeed. Arguably, individuals could have been stripped of personal characteristics and beliefs, in the office and outside of it. Not pleasant at all. It would have created a nationwide, round-the-clock army of featureless, opinionless, miserable, hollow, corporate drones.

Ladele and McFarlane

As I mentioned in my previous post, we really were staring over the precipice on these two cases as there was such clear infringement of others’ rights by both Ladele and McFarlane.  Ladele was a civil registrar who refused to conduct civil partnerships, and McFarlane a sex counsellor who refused to advise same-sex couples.  The court rejected their claims that they had been discriminated against.

And unlike the other two cases these ones actually sent a chill down the spine. Imagine, if you will, taking a legal crusade to the top table in Strasbourg in order to deprive a fellow human being of their fundamental right not to be discriminated against. That’s the power of religious faith. These litigants were fuelled up to the eyeballs on high-octane spite and bigotry.

The Daily Telegraph is persisting with the persecution narrative. But hopefully that type of interpretation may eventually die down and we can finally put to bed the notion that some protected characteristics, such as race, must be protected at all costs whereas sexuality is up for grabs, to be “reasonably accommodated”.

A while ago I debated this principle of “reasonable accommodation” with a colleague, a Jewish lawyer of many years’ qualification. He was perplexed why reasonable accommodation couldn’t have been made for Ladele and McFarlane.

When I asked him whether “reasonable accommodation” should be made for a Muslim who wanted to deprive him of services, the mood changed instantly, and I quoted Martin Niemöller’s moving remark about inactivity of German intellectuals following the Nazis’ rise to power.

I could almost hear my colleague’s brain shudder into first gear as he said, “I see, so I suppose what you’re trying to say is that gay people shouldn’t be discriminated against?” Er yes, that is what I’m saying. That is exactly what I’m saying.

There may also be pleasant consequences for secularism generally (Robert Pigott, the BBC’s religious affairs correspondent, went so far as to say the court “has left a milestone on the road to a secular society”). For example, on gay marriage some might now conclude the wind has finally changed and that they should back another horse while they still have a chance to stop looking really stupid. I don’t imagine too many of those driven by religious zeal will change their mind (quite the contrary; they may feel a greater sense of emboldenment and “persecution”), but perhaps those disapproving of gay marriage on the grounds of wibbly wobbly tradition might be forced to scratch their heads.

I was disappointed that none of my lawyer colleagues yesterday really seemed to be aware of, let alone interested in, the ECtHR judgements, and how close we all came to having our calendars recalibrated. Freedom is taken for granted. On an epic scale.

The alternative outcome

I like to think there would have been widespread protest and civil disobedience, but then maybe I’m a romanticist. And when I say protest and civil disobedience I don’t just mean by individuals and campaign groups, but by enlightened employers too. Yes, I do think employers are capable of this.

If protected characteristics were subject to the discretion of highly-motivated, bigoted, spiteful and aggressive individuals, possibly backed by powerful religious lobbies (with some implicit or explicit threat of violence thrown in for good measure), the equalities arena would have been an unforgiving jungle, ripe for conquest by the most aggressive and assertive. Previously benign individuals and groups might have felt an irresistible urge to rearm and outdo others or face being outdone themselves. Fundamental human rights would have required aggressive assertion to be relied upon. This would have been fatal for those most in need of fundamental rights: the vulnerable, the powerless, and the silent. The right not to be discriminated against shouldn’t have to be asserted to be maintained; it’s not an intellectual property right. Fundamental human rights must be guaranteed by the state even if an injured party doesn’t speak out, or rather, especially if they don’t speak out.

And as if all that wasn’t enough, just imagine the message Strasbourg would have transmitted to Africa, the Middle East and elsewhere.

What a day. What a close shave.