Blog of the International Journal of Constitutional Law

The UK 3 – British Christians 1

Lorenzo Zucca
King’s College London

British Christians are becoming increasingly more vocal about the presence of their faith in the workplace. Four of them brought cases all the way to the European Court of Human Rights (ECtHR) in Strasbourg (based on Article 9 and Article 14 of the European Convention of Human Rights) to claim the right to wear crosses on their uniforms (Eweida and Chaplin) as well as the right to be exempted from assisting homosexual people in the performance of part of their job (Ladele and McFarlane). The outcome (released on Tuesday, January 15) was clear: British Christians loses 3 to 1 in Strasbourg, but it could have easily been a 4-0, since in the Eweida case the employer—British Airways—does not dispute the right to wear a cross any longer, but simply denied compensation to Eweida for the five months during which she was not allowed to work with customers. The ECtHR (Chamber; 7 judges) granted a reduced compensation to Ms Eweida.

It is unclear why the four cases were bundled up in one. After all, the first two cases deal with the display of religious symbols by employees in the workplace; the cases tackle an issue of religion as a source of personal identity and the extent to which the right to wear those symbols should be compromised by other concerns put forward by the employer. In Eweida, the tension is between the employee’s right to wear the crucifix on her neck versus the interest of the company to control its corporate image. The Court held that the latter should not be given too much weight, it’s really not as important as Eweida’s religious expression rights (Article 9 of the European Convention of Human Rights) and this justifies the success of Eweida’s claim. In Chaplin, the employee is a nurse working with elderly patients, and the concern of the employer is regarded as general and neutral: the wearing of any necklace could be a problem when handling patients. The message of the court is clear: health concerns are more serious than corporate image, and the right to wear a religious symbol loses that contest in the workplace.

The other two cases deal with a completely different issue: the Ladele and McFarlane cases are about respect of conscience; this offers a different understanding of religion not so much as a source of personal identity, but rather as a complex set of deep convictions about how to treat other people compatibly with one’s own beliefs. The first two cases are self-regarding, while the last two are other-referential. In McFarlane, all the 7 Judges agreed that the applicant does not have a case. He was trained as a sex psychologist in a facility that treats both homosexual and heterosexual couples, so it was surprising when he claimed that to help homosexual couples would go against his own deep convictions. As pointed out by the partly dissenting Judges (Vucinic and De Gaetano—they only dissented to Ladele’s case) this is comparable to someone who enrolls in the army only to discover that shooting is against his own beliefs.

Ladele raises what is arguably a more complex situation since her conscientious objection was initially compatible with her task of registering births, marriages and deaths. It is only later that she was requested to register civil unions by the borough of Islington, which of course included unions between homosexual. Ladele was given mixed messages by her administration since she was first allowed to avoid celebrating unions between homosexulas, but then the work environment gradually changed and Ladele was explicitly requested to put aside her beliefs in order to comply with sexual equality requirements. Ladele complains of discrimination on the grounds of her religious beliefs. What convinced the UK Court of Appeal that there was a legitimate interest in her employer’s policy was the notion that a public authority has to send a very clear image if it wants to be trusted as a promoter of equal opportunities. Any deviance from the image must pass a strict scrutiny, which the ECtHR refuses to engage with, and leaves to the consideration of of national authorities. Moreover, the ECtHR also recognizes a margin of appreciation in determining the balance between freedom of religion and the rights of others, in this case non-discrimination on sexual grounds. What is open to debate is why Ladele framed her argument only in discrimination terms and not at all in the language of free conscience.

Here are three general observations on these four cases. Firstly, there is considerable uncertainty as to the meaning of freedom of religion as defined by Article 9 of the Convention. In the first two cases, freedom of religion covers personal affiliation with a religion by way of religious symbols. The lesson to take away is that the right to freedom of religion understood in such a way is not very strong; it may just about prevail over commercial interests such as corporate image. In the other two cases, freedom of religion is defined in terms of conscience, one of the paradigmatic cores of the individual exercise of that freedom. The Court is very clear about the importance of free conscience when asserting its general principles. Freedom of conscience is “one of the most vital elements that go to make up the identity of believers and their conception of life.” But in practice, freedom of conscience does not play a great role in the last two cases, and perhaps there is room to exploit this notion further in the future.

Secondly, when the Court engages in a balancing exercise between freedom of religion (however defined) and other interests, the former is likely to lose, in particular when freedom of religion clashes with another human rights, say non-discrimination on sexual grounds, rather than a simple commercial interest. In the four cases above, freedom of religion was regarded as the losing side against the interest of health (Chaplin) and against the right to non-discrimination on sexual grounds (Ladele and McFarlane).

Thirdly, out of 28 judicial votes (7 votes in each of the 4 cases), 23 were against recognizing the claims of religious applicants. This is not unanimity but it is an imperious recognition that British Christians did not have much of a claim in Strasbourg. The 5 voices who voted for the recognition of Eweida’s claim might have done so to keep the appearances that freedom of religion has a bite after all, but her victory has a limited scope since the damages awarded were largely symbolic, BA’s interest in its corporate image was weak, and the company itself was readily willing to change its directives to accommodate wearing of religious symbols. All in all, British Christians wanted to put up a showcase fight, but they go home with a resounding defeat.

Lorenzo Zucca

(post uploaded by Ran Hirschl)



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