By failing to recognize the importance of religion as a support for human rights, European courts are slowly eroding religious liberty.
At the end of May, the Grand Chamber of the European Court of Human Rights (the final European Court of Appeal) rejected a request for referral to it of three contentious religious freedom cases from the United Kingdom. This means that the European Court’s initial less-than-friendly rulings on religious freedom still stand, and they will undoubtedly help erode respect for religious freedom throughout Europe.
The court, under the auspices of the Council of Europe, is distinct from the agencies of the European Union, and processes litigation from 47 countries, including Russia and Turkey.
Over the years, the council’s Parliamentary Assembly has betrayed an endemic suspicion of religion, and following a tradition of French secularism, has tended to see religion as a threat to human freedom, instead of its possible basis.
This thinking can be traced to the later French Enlightenment, with its exaltation of a rationalism that led to materialism, and markedly differs from the early Enlightenment thought of John Locke. Locke believed reason was rooted in divine nature, the “candle of the Lord” as he put it. His deep influence on English politics in the Glorious Revolution of 1689 and the American founding resulted in documents that upheld a divine grounding for human rights.
In contradiction of this view, the Council of Europe affirmed in 2007 that “states must require religious leaders to take an unambiguous stand in favour of the precedence of human rights, as set forth in the European Convention of Human Rights, over any religious principle.”
It is ironic that freedom of religion is expressly protected by the Convention and that the council recognizes this protection, because now the right to manifest one’s religion is highly qualified. In the council’s words, “a religion whose doctrine or practice [runs] counter to other fundamental rights would be unacceptable.”
In Europe, as opposed to the United States, freedom of religion translates to “freedom of religion or belief,” a phrase that covers not just atheism, but “philosophies” like vegetarianism or environmentalism. “Religion,” however defined, is no longer regarded as a unique contribution to the common good.
The result of this is that when more systems of belief invoke protection, the less effective that protection can be. When everything is protected nothing can be. “Freedom of religion or belief,” a concept that can only be broadly and vaguely defined, is easily subordinated to wider considerations of public policy.
The idea that religion cannot claim rights when other “fundamental” rights are jeopardized fails to do justice to the freedom of religion. When rights clash, we shouldn’t think that one trumps another. If rights are important, each should continue to matter, despite a clash, and should be accommodated as far as possible. One of the cases that the Grand Chamber refused to take perfectly illustrates this problem.
Lillian Ladele was a civil registrar working in London for the Borough of Islington. When civil partnerships between same-sex couples were introduced, she believed she could not in good conscience, as a Christian, officiate at the ceremonies. The Borough wished to uphold gay rights, and made an example of her. She lost her job, although colleagues could easily have conducted the ceremonies, and she could have continued doing the same work she had done for many years.
No attempt was made to accommodate her, and the court seemed to take no interest in the promising idea of reasonable accommodation. The reason could only be that social priorities, such as the promotion of homosexual equality, have to take precedence over any idea of religious freedom.
Even in England, there seems to be a growing suspicion of religion, and a desire to minimize its influence. This is particularly true as Parliament seems set to redefine marriage without ensuring adequate safeguards for those with conscientious objections, such as civil registrars, teachers, and parents, among many others.
Religion is too often seen in Europe as divisive and threatening, and associated with bigotry and dogmatism rather than reason. The view seems to be that we need freedom from religion, not for it. All too often religion is thought of as opposed to reason. An immediate corollary of this view is that it cannot contribute to public, rational debate. It may be tolerated as the private pursuit of those who choose it, but public policy should not take account of it, let alone be grounded on any religious view. It is in this spirit that public displays of religious belief are often prohibited. That prohibition is itself a symbol of deeper attitudes concerning the public role of religion.
The other two cases that the court refused to hear concerned the wearing of crosses. One case invoked somewhat spurious health and safety grounds against wearing the cross, but the court was unwilling to correct hospital managers who claimed that a nurse’s wearing of a cross was a health hazard.
In the second case, the initial European Court hearing accepted that a British Airways employee could wear a cross, as a manifestation of her belief. This ruling was an advance on the rulings of other English courts that wearing a cross is not a “core” requirement of the Christian faith, and so is not a proper manifestation of that faith.
A disturbing feature of this case was different courts’ willingness to venture into theological territory and rule on theological priorities. Lillian Ladele had been similarly told that beliefs about marriage are not central to Christianity, and courts have also recently said the same about not working on Sundays. Some Christians work on Sunday, the line goes, so there can be no substantive objection.
These cases show us that freedom of religion is progressively narrowing down to freedom of worship. The right to worship in church on a Sunday is enough, though ironically that criterion doesn’t seem to protect those who wish not to work on Sundays so that they can worship.
In England, following previous European judgments, the view has been that freedom of religion is adequately protected by freedom of contract. If you do not wish to work on Sunday, and your employer requires you to, you can resign. Yet the freedom to be unemployed is not much of a freedom.
At root is an undervaluing not just of religious freedom, but of religion itself. Attitudes are typified by the remarks of Lord Justice Laws in the English Court of Appeal, concerning a case that went to the European Court. A relationship counselor who had conscientious objections to advising same-sex couples lost his job.
Laws responded, “in the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence.” He further said that protecting a position on purely religious grounds “is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary.”
By thus glibly separating religious faith from any claim to rationality, Laws rejected centuries of theological and philosophical thought. He followed our modern tendency to see reason and religion as fundamentally opposed. The result is inevitably to see religion as a potential danger to society, outside the scope of rational discourse, and hence able to contribute little to the wider good.
All religions form minority communities in Europe today, and secularist assumptions are becoming daily more influential. Different countries still recognize the traditional relationship between church and state, but even where this recognition exists it is more and more under threat.
Muslims and Jews, for example, both see in the Establishment of the Church of England a lingering respect for the role of religion in society. “Establishment” is no longer a vehicle for Anglican privilege, as it perhaps once was, let alone any financial advantage. Instead it provides an umbrella under which different religions can shelter and still claim a public voice together.
Despite efforts to sideline the Christian faith in particular, and all religion in general, the Anglican Church still reminds people that religion has formed the fabric of the nation. Yet the danger is that, as Locke saw, human rights themselves may not be justifiable without some religious foundation. Allowing human rights always to “trump” any manifestation of religious belief is in the end going to corrode one of the most important supports for our collective understanding of the role and importance of those rights.
In a new resolution on human rights and religion and belief in April, the Council of Europe seemed to stress more positively than previously “the importance of upholding freedom of conscience and religion.” The Parliamentary Assembly called on member states to “ensure that the religious beliefs and traditions of individuals and communities of the society are respected, while guaranteeing that a due balance is struck with the rights of others in accordance with the case law of the European Court of Human Rights.”
It also stressed that states should “accommodate religious beliefs in the public sphere … providing that the rights of others to be free from discrimination are respected and that the access to lawful services is guaranteed.”
All this sounds well and good, but the qualifications ensure that religious rights are likely still to be trumped by other rights. The recent refusal by the Grand Chamber to hear the cases described above proves the point. Freedom from discrimination will not include freedom from discrimination on grounds of religion. Words like “accommodation” and “balance” won’t carry any real weight in the European Court.
If reasonable accommodation were the aim, the Grand Chamber would have seized the opportunity to hear the cases, in which other demands trumped the right to manifest religious belief.
Roger Trigg is Senior Research Fellow, Ian Ramsey Centre, University of Oxford, and Associate Scholar, Religious Freedom Project, Berkley Center, Georgetown University, Washington, DC. His most recent book is Equality, Freedom and Religion, Oxford University Press paperback 2013.