Balancing the freedom of religious expression with the protection against discrimination

Summary In four different applications, the European Court of Human Rights considered the balance the state party had purported to strike between religious freedom and the protection against discrimination. In so doing, the Court afforded a significant “margin of appreciation” to the state party.

Facts

The Eweida case involved four applications brought against the United Kingdom to the European Court of Human Rights. Ms Eweida complained that British Airways (BA) discriminated against her by refusing to allow her to wear a Christian cross around her neck as part of the BA uniform.  Similarly, Ms Chaplin, an aged-care nurse, complained that she was not allowed to wear a cross on a necklace as part of her uniform.

Ms Ladele was a Registrar of Births, Deaths and Marriages who was dismissed after she refused to perform civil ceremonies for same-sex couples, saying this conflicted with her Christian religious beliefs. Mr McFarlane was a counsellor who worked for a company called Relate, which had a non-discriminatory policy. He was dismissed after he refused to provide counselling services to same-sex couples on the grounds that to do so would effectively condone homosexuality, and contravene his Christian religious beliefs.

All four applicants complained that UK law had failed adequately to protect their right to manifest their religion. Ms Eweida, Ms Chaplin and Mr McFarlane relied on article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (freedom of religion and belief), taken alone and in conjunction with article 14 (prohibition of discrimination), while Ms Ladele complained under article 14 taken in conjunction with article 9.

Orders

By a majority of 5:2, the Court held that there had been a violation of Ms Eweida’s right to manifest her religious belief (article 9), but found no violation of either article 9 or article 14 in relation to the three other applicants.

Judgment

Ms Eweida and Chaplin

Ms Eweida worked for a private company and so could not attribute any direct State interference with her right to manifest her religious belief. Rather, she submitted that her right to manifest her religion had not been adequately protected by legislation.

The Court noted that the UK courts had carefully examined the BA’s uniform code and the proportionality of its response to Ms Eweida’s action (to continue to wear a cross after being asked to remove it). The Court noted that domestic courts of Convention countries operate within “a margin of appreciation” in determining the correct balance between competing rights and interests.

However, the Court concluded that the UK Court of Appeal had not struck the right balance in this instance. In so finding, the Court took into account that:

  • the cross was discreet and did not detract from Ms Eweida’s professional appearance;
  • other employees had been allowed to wear items of religious clothing (such as turbans and hijabs) and there was no evidence that this had any negative impact on BA’s brand; and
  • BA had amended its uniform code to allow symbolic jewellery to be worn, and this demonstrated that the prohibition applied to Ms Eweida was “not crucial” for its image.

The Court considered that there had been an interference with Ms Chaplin’s article 9 right to manifest her religion. However, the Court considered that the reason for asking Ms Chaplin to remove her cross, namely the protection of health and safety on a hospital ward, was of much greater importance than the maintenance of corporate image. Therefore, the Court held that there had not been a disproportionate interference with Ms Chaplin’s right to manifest her belief, and so no violation of article 9.

Ladele and McFarlane

The Court agreed with the UK Court of Appeal that the policies of the third and fourth applicants’ employers – to promote non-discriminatory service provision –  had the legitimate aim of securing the protected rights of others, such as same-sex couples, and this outweighed the right of the applicants to manifest their religious beliefs by refusing to offer services.

Rather than undertaking a proportionality assessment of the rights and interests engaged, the Court applied the margin of appreciation doctrine and found that the local authority and the UK Courts had not "exceeded the margin of appreciation available to them" in striking the balance between rights in favour of non-discriminatory service provision.

Commentary

The decision indicates that there is a clear right to manifest an individual religious belief by wearing religious symbols and jewellery, but that this right can be limited by legitimate policy aims such as the promotion of public health and safety.

The Court’s decision in relation to Ladele and McFarlane could be read as indicating that there is no right (under the Convention) to manifest individual faith by objecting to practices that are overtly protected by anti-discrimination law. However, the Court’s reliance on the margin of appreciation doctrine means that the Court’s finding could also be limited to the proposition that the UK authorities and courts had acted within the margin of appreciation available to them when balancing these rights in these circumstances.

There has been criticism of the majority’s reliance on the margin of appreciation doctrine. The Court relied on the doctrine in two ways:

  • to determine the extent of the Court’s authority to intervene as a court operating under the principle of subsidiarity (at [99]); and
  • as an interpretative device to weigh the substantive issues involved in terms of the rights engaged (at [106]).

The application of the doctrine to the task of weighing rights effectively replaced a proportionality analysis of the rights and interests of the parties. As a result, the judgment does not provide clear guidance about the balance between the (often) competing rights of freedom of religion and freedom from discrimination. The lack of proportionality reasoning in the majority judgment has also been criticised as not providing sufficient guidance in terms of how different European countries should interpret articles 9 and 14.

Dissenting judgments

By comparison, the dissenting judgments undertake a close analysis of the rights and interests engaged in two of the applications. The judgment of Justices De Gaetano and Vučini is particularly provocative, as their Honours made controversial arguments about the balance between the rights of freedom of conscience and religion and “other rights” such as freedom from discrimination.

Their Honours De Gaetano and Vučinic held that there was a violation of Ms Ladele’s right under article 9. Their Honours considered that Ms Ladele’s application concerned freedom of conscience rather than freedom of religion. Their Honours considered that the right to "conscientious objection" is a fundamental right that in many circumstances should be accorded higher protection than freedom of religion, and certainly higher protection than the right to freedom from discrimination. Their Honours held that the State’s margin of appreciation does not enter into the equation in matters where a “genuine and serious” conscientious objection is made to conduct or policy.

Their Honours held that, while the aim of the UK policy (to provide services in a non-discriminatory way to all people) was a legitimate aim, the means of enforcing this policy (dismissing Ms Ladele from her employment) were “totally disproportionate”, taking into account the rights engaged.

The Eweida decision is available online via the European Court of Human Rights website here.

Eliza Bateman is a Senior Lawyer in the Equality Law Program at Victoria Legal Aid.