Academic journal article Brigham Young University Law Review

Tensions and Synergies in Religious Liberty: An Evaluation of the Interrelation of Freedom of Belief with Other Human Rights; Parallel Equality and Anti-Discrimination Provisions; Enforcement in Competing European Courts; and Mediated Dispute Resolution

Academic journal article Brigham Young University Law Review

Tensions and Synergies in Religious Liberty: An Evaluation of the Interrelation of Freedom of Belief with Other Human Rights; Parallel Equality and Anti-Discrimination Provisions; Enforcement in Competing European Courts; and Mediated Dispute Resolution

Article excerpt

INTRODUCTION

Despite its sixty year history, the European Court of Human Rights has only recently begun to develop a cohesive systematic jurisprudence on freedom of religion and belief. Hitherto, other articles were generally engaged in conjunction with those touching religious liberty-for example, freedom of association or freedom of expression-and having found a violation in relation to one of these articles, the Court has deemed it unnecessary to consider the separate and parallel violation of Article 9. Thus, the academic world has been denied detailed and systematic judicial pronouncements on the reach of freedom of religion and belief and the extent to which it may be qualified by other human rights. As yet, therefore there is only a nascent body of jurisprudence by which commentators can fully assess the extent to which the European Court of Human Rights positions the place of religion in a democratic society. However, such limited pronouncements as exist promote the importance and centrality of freedom of religion and belief as being a core component to human existence. Where the jurisprudence is largely silent, however, is in the tension which exists between religious liberty and other rights protected by the Convention and by other international instruments.

There are obvious synergies between associational rights and freedom of expression and religious liberty, since faith is lived out in community with others and by outward manifestations. But the more complex-and more tendentious-clash is with the right of family life. The understanding of "family" is now very different from when the court was established sixty years ago. As a matter of law (the Convention being a "living instrument," reinventing meanings and definitions with societal changes over generations) a same-sex relationship is now considered a "family"-even though many religious groups find this concept doctrinally unacceptable.

I. GAY RIGHTS AND RELIGIOUS LIBERTY: AN EXAMPLE FROM THE UNITED KINGDOM

An example of the conflict between faith and human sexuality arose recently in the UK: Lillian Ladele was a devout Christian. She was employed by Islington Borough Council as a registrar of marriages. She did this job conscientiously for many years. Then the law changed in the UK. Civil partnerships were introduced and these were to be registered by marriage registrars. For a while Islington arranged its rosters so that Lilian only registered marriages. Many other councils made similar arrangements. However, after persistent lobbying from gay colleagues, Islington changed its policy and required all its registrars to register both marriages and civil partnerships.

Due to her religious beliefs, Lilian in good conscience could not register civil partnerships. She resigned from her job and brought a claim against Islington for constructive dismissal. She lost. She ought to have won because Islington could and should have accommodated her beliefs. Sadly, she also lost in the European Court of Human Rights (ECtHR).1 The court applied the "margin of appreciation" deferring the value judgment to the legislature and judiciary of the member state: a form of moral subsidiarity.

But in the linked appeal of Eweida (heard at the same time), there was no such restraint by the ECtHR: it micro-managed the contractual terms of engagement concerning a private company (British Airways) and one of its employees (a Coptic Christian).2 In a single judgment, the ECtHR both overreached itself and abrogated its duty to secure human rights protection under the European Convention on Human Rights (ECHR).

Lilian's religious conscience was sacrificed at the altar of nondiscrimination. The Equality Act, which implemented a European Directive, outlaws discrimination on the grounds of what are called "protected characteristics": sex, race, age, disability, sexual orientation, etc. Islington council would breach its equality duty if it discriminated on the ground of sexual orientation. …

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