Balancing freedom of religion and other rights: European approaches

Determining whether the right to freedom of religion is engaged

The European Court of Human Rights has dealt with a substantial number of cases regarding freedom of religion and belief under article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provide useful guidance regardng the very similar provisions of ICCPR  Article 18.

In considering cases in which a person (or organisation) claims that their right to freedom of religion has been violated, the European Court starts by identifying whether the person has a belief which has a sufficient ‘level of cogency’ to attract the protection of article 9  of the European Convention.  (1)

Once such a belief has been identified, the Court asks the question whether a person’s action constitutes a ‘manifestation’ of his or her belief (whatever that belief may be), either in worship, observance, practice or teaching.  In this way the European Court assesses whether an act is sufficiently connected to a person’s beliefs to engage the right to freedom of religion in article 9 of the European Convention.

The term ‘practice’ in the European Convention  potentially covers a very broad category of behaviours. The European Court has held that manifestation through ‘practice’ cannot not act as a catch-all category, as ‘it cannot be said that every act which is in some way inspired, motivated or influenced by [a belief] constitutes a “manifestation” of the belief.’(2)  The European Court has recently stated that, in order to determine whether an action qualifies as a manifestation of a belief

the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case… [but] there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question. (3)

In Skugar and Others v Russia  the European Court set out a number of examples of conduct which in previous cases it (or its predecessor body the European Commission on Human Rights) had held were insufficiently connected to a belief to constitute manifestations of a belief in ‘practice’. These included giving a specific name to a child (4),  and putting a photograph on a graveyard memorial (5).

Determining whether an interference with the right is permissible

In cases in which the European Court is satisfied that an action is a manifestation of belief, and therefore falls within article 9, it turns to consider whether the conduct complained about ‘interfered with’ the applicant’s right under article 9. If it did, the Court then considers whether that interference was permissible according to the criteria set out in article 9. Article 9 contains a similar premissible limitatinos clause to that contanied in ICCPR Article 18. It provides that limitations of freedom to manifest religion are only permissible if they are: 

• prescribed by law and
• are necessary in a democratic society
• in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

In assessing the necessity (or proportionality) of the limitation, the European Court examines the rights and interests of those who were (or could be) affected by the applicant’s manifestation of their belief. In the recent case of Eweida and Others v United Kingdom  (Eweida), the European Court used this approach to resolve the complaints of four different applicants.

In Eweida the European Court accepted that the wearing necklaces with crosses, a refusal to perform same-sex civil partnerships and a refusal to provide sexual counselling to same-sex couples were all manifestations of beliefs which engaged the right in article 9. However, the European Court illustrated how important it is to assess the necessity or proportionality of particular limitations on the right to freedom of religion on a case-by-case basis. In relation to the first two applicants in the case, the Court came to different conclusions as to whether a prohibition on wearing a cross in the workplace was a permissible limitation of a Christian employee’s right to manifest her religion.

The first applicant was a Christian air hostess employed by British Airways. The European Court held that her right to manifest her religion was violated by her employer’s refusal to allow her to work while wearing a visible cross. Although the European Court accepted that the employer’s wish to ‘project a certain corporate image’ was a legitimate aim, it concluded that the employer’s refusal to allow her to wear the cross was not proportionate, because there was no evidence that her wearing a cross would result in a significant (or indeed any) interference with the employer’s interests.

The second applicant was a Christian nurse working on a geriatric ward. The European Court in her case found that her right under article 9 of the European Convention was not violated by her employer’s refusal to allow her to work on a ward while wearing a cross on a necklace.

This was because the employer’s legitimate aim in imposing its ‘no necklace’ policy was to protect the health and safety of its nurses and patients. Further, this policy was a proportionate interference with the second applicant’s right, especially as it was applied uniformly to people of all religions, and the nurse has been offered an alternative, such as wearing a cross in the form of a brooch.

The third applicant in Eweida was a Christian marriage registrar employed by a local authority. The Court noted that she held the ‘orthodox Christian view’ that same sex unions are contrary to God’s will and it would therefore be wrong for her to participate in them. When she commenced employment as a registrar, there was no requirement to act as a registrar for same-sex civil partnerships. However, her employer later imposed this requirement on all its registrars, as part of its policy of promoting ‘equal opportunities’ and requiring all of its employees not to discriminate. The applicant refused to perform same-sex civil partnership ceremonies. Disciplinary proceedings were brought against her, and ultimately she lost her job.

The third applicant claimed that she had been discriminated against on the basis of her religion, in violation of article 14 (the right to non-discrimination) and article 9 of the European Convention. The European Court considered that the employer’s policy had a legitimate aim, namely that of eliminating discriminatory conduct against same-sex couples. The Court reiterated its view, developed in previous decisions, that ‘differences in treatment based on sexual orientation require particularly serious reasons by way of justification’, and that same-sex couples need legal recognition and protection of their relationships in the same way that different-sex couples do. (6)

In determining the proportionality of the interference with the applicant’s right not to be discriminated against on the basis of her religion, the European Court noted, in terms of the impact on the applicant, that:
the consequences for the applicant were serious: given the strength of her religious conviction, she considered that she had no choice but to face disciplinary action rather than be designated a civil partnership registrar and, ultimately, she lost her job. Furthermore, it cannot be said that, when she entered into her contract of employment, the applicant specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement was introduced by her employer at a later date. (7)

However, the European Court noted that, on the other side, ‘the local authority’s policy aimed to secure the rights of others which are also protected under the Convention’. (8)  It applied the principle of the ‘margin of appreciation’, which is a discretion afforded to States Parties by the Court to determine for themselves where the balance should be drawn, particularly in situations involving competing Convention rights. The European Court held that the balance struck in the third applicant’s case would fall within that margin, and accordingly found that there had been no violation of the applicant’s rights.

The European Court applied a similar line of reasoning to come to the conclusion that there was no violation of the right to freedom of religion in the fourth applicant’s case. The fourth applicant was a Christian who was employed as a counsellor by ‘Relate’, a national private organisation which provided a confidential sex therapy and relationship counselling service. Relate had an Equal Opportunities Policy which contained a positive policy to achieve equality for all staff and clients, which clearly precluded any discrimination on the basis of sexual orientation.

The fourth applicant enrolled in Relate’s post-graduate training programme in psycho-sexual counselling. He held the religious belief that homosexual activity was sinful, and that ‘he should do nothing which directly endorses such activity’. Concerns were raised (and confirmed by the applicant) that he had difficulty reconciling work on the sexual issues of homosexual couples with his duty to follow the teachings on the Bible. Various discussions took place between the applicant and his employer about his willingness to fulfil his role in compliance with the Equal Opportunity policy. The applicant was ultimately dismissed from his job because his employer believed he did not intend to provide sexual counselling to same-sex couples, in violation of the Equal Opportunity Policy.

The European Court accepted that the fourth applicant’s refusal to counsel same-sex couples was directly motivated by his orthodox Christian beliefs, and therefore that it was a manifestation of that belief. In balancing up the competing interests at stake, the European Court took into account that the ‘loss of his job was a severe sanction with grave consequences for the applicant’. (9) But it also considered that his decision to undertake a contract of employment involving responsibilities which he knew would have an impact on his freedom to manifest his religion, while not determinative, ‘was a relevant matter to be weighed in the balance’. (10)

The European Court concluded that:

for the Court the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court does not consider that this margin of appreciation was exceeded in the present case. (11)

These different results for the applicants in Eweida illustrate that the exercise of balancing rights is a complex one, which requires every scenario in which there are competing rights to be carefully considered in light of all the particular circumstances of each case.

Notes:

 1. See, for example, Eweida and Others v The United Kingdom

2. Skugar and Others v Russia, 3 December 2009. See also Eweida and Others v The United Kingdom, 15 January 2013, para 82. See also Kalaç v Turkey, 1 July 1997, para 27; Hasan and Chaush v Bulgaria, 26 October 2000, para 60; Pichon and Sajous v France, 2 October 2001, pp 4-5.

 3. Eweida and Others v The United Kingdom,  para 82.

 4.Salonen v. Finland, European Commission on Human Rights, 2 July 1997.

5. Jones v the United Kingdom, 13 September 2005.

6. Eweida, para 105.
7. Eweida, para 106.
8. Eweida, para 106.
9. Eweida, para 109.
10. Eweida, para 109.
11. Eweida, para 109.