In UK, religious freedom falls on increasingly frosty ground
Religious freedom was described by Pope Benedict XVI in January 2011 as the "the first of human rights" because it from it our other rights and freedoms flow. It guarantees rights for believers and non-believers alike. It is a freedom which flows from our innate dignity as God-created beings. Along with the right to life, religious freedom is the basic condition for all human rights; they are the condition for "the moral legitimacy of every social and legal norm".
That's why recent signs that the ground of religious freedom is being chilled in the UK should worry not just religious people, but anyone who cares about democracy.
Many eminent legal minds have been issuing warnings recently that it will be impossible for religious people to dissent from state orthodoxy on questions such as gay adoption and gay marriage.
Aidan O'Neill QC, for example, is warning that parents who object to their children being taught that gay marriage is "equal" will have no right to withdraw them from lessons.
Eric Pickles, Secretary of State for Communities and Local Government, sees the problem: "long-standing British liberties of freedom of religion have been undermined in recent years by aggressive secularism, especially in the more politically correct parts of the public sector", he writes, before going to claim that the Government is on the side of faith.
But judging by the arguments of the UK Government's lawyers in Strasbourg last week, that simply isn't true.
HMG's central argument in four linked cases recently heard by the European Court of Human Rights -- the judgement has been reserved, and won't be handed down until the end of October -- displays a profound misunderstanding of religion. In arguing that the four Christians were not discriminated against, they sought to define discrimination in ways that could be seriously detrimental to basic human rights and religious freedom in the United Kingdom.
Article 9 of the European Convention on Human Rights recognises that everyone has the right to manifest their religion in worship, teaching, practice, and observance, except in situations where it is both lawful and necessary to limit this. Article 14 of the Convention, which the UK signed in 1951, says that the enjoyment of this right should be guaranteed without discrimination on any grounds.
Lawyers representing the Government claimed that Christians facing problems at work with religious expression are not discriminated against if they have the option of leaving their job and finding new employment; there was nothing to prevent them - the lawyers argued -- from practising their religion in private. This, of course, is the secularist ideology: religion is a private matter for individuals, to be practised between consenting adults behind closed doors; it can have no public relevance or bearing, and to the extent that this is claimed, it must be denounced as fundamentalism.
The implication of the UK lawyers' case, as Dinah Rose QC points out, is that if an employer refused to employ practising Jews, this would not constitute discrimination as long as other employers were willing to employ them. One can only imagine the outcry if the Government were to say that employers would not be discriminating against gay staff if it barred them from revealing or expressing their sexuality while at work, saying that they were free to do so in their own time or get another job elsewhere.
Four Christians of different denominations claimed that they have been barred from manifesting their beliefs and have as such been discriminated against. The Government argues that their rights have not been infringed by previous British court decisions which repeatedly dismissed their right to act and dress according to their beliefs.
“The conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled… The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified.”
This judgment appears to fly in the face of the European Convention on Human Rights, which guarantees people to right to manifest their religion and beliefs in teaching, practice, and observance, save when it is both lawful and necessary to limit this; Mr McFarlane, like Lilian Ladele, was seeking only that his views be respected and accommodated, not that they should be imposed upon others.
Islington Council and Relate have undermined their commitment to diversity and equal opportunities by needlessly excluding committed Christians from jobs. Contrary to the Government’s claim that the cases of Ms Ladele and Mr McFarlane were indistinguishable from the 2001 ECHR case Pichon and Sajous v France, the four UK cases before the ECHR were not merely about whether Ms Ladele and Mr McFarlane’s freedom to manifest their religious beliefs were denied.
They were about whether they were discriminated against by being forced to choose between their religious beliefs and their conditions of employment in a way that other employees would not have to. Obviously there are some jobs that Christians and others simply cannot do in good conscience, and they are free not to do them: work in an armaments factory, for example, or perform abortions. But Christians should not to be forced to choose between their beliefs and ordinary employment in ways that other employees or potential employees would never be forced to do, simply because they do not share certain ideological positions about sexuality.
Ruling on Ms Ladele’s case, the Court of Appeal had claimed that marriage was not a core part of the Christian religion. Yet the traditional understanding of marriage as a conjugal union of a man and a woman is so integral to mainstream Christianity that it has been one of the most important metaphors the Church has used to explain its relationship with Christ from its very earliest days.
In the cases of Shirley Chaplin and Nadia Eweida, and despite the Prime Minister’s admission that the wearing of religious symbols at work is “a vital religious freedom”, the Government has embraced BA’s argument that there is no scriptural mandate for Christians to wear crosses as a manifestation of their faith. Of course, it is not a requirement for Christians to do so; but wearing a Cross as an obvious and typical Christian thing to do -- whether beneath or on top of their clothes.
As the former Anglican bishop of Rochester, Michael Nazir-Ali, puts it:
“Lay people are encouraged to wear a cross or a crucifix to affirm their desire to follow in the way of Christ… They wear it also to declare their faith and to witness to others. For many, this is a lifetime commitment and they would feel very bereft if, for some reason, they were not allowed to wear it… The right to manifest the Christian faith is central to belief; it is little succour to the believer to be free to believe, but not be free to live his beliefs... The wearing of the Cross is a religious manifestation of the Christian faith; it is inappropriate to describe aspects of devotion in terms of whether a practice is ‘mandatory’ or otherwise. This ‘test’ is inappropriate for religious faith and no religion can be deconstructed to this simplistic level.”
Britain’s Equality and Human Rights Commission has recognised the absurdity of the Government’s position, pointing out that Article 9 of the ECHR protects the beliefs of individuals, not merely of groups, and that while wearing a cross might not be a requirement imposed on Christians, what matters is whether they feel a strong personal obligation to do so.
Another absurd part of Government's case is the idea that for religious dress to be permitted there must be a "scriptural requirement" -- which is obviously a matter of interpretation: many Muslims think the Hijab is required by the Koran, for example, while many others disagree. But the idea that a religious requirement must be sourced in Scripture is itself, of course, a theological point of view, and specifically a Protestant one.
“All the applicants were able to manifest their religious belief in many ways outside the professional sphere. The court’s jurisprudence is clear that employees are free to resign if they consider that the requirements of their employment are incompatible with their religious beliefs.”
Mr Eadie’s argument reveals a fundamental misunderstanding of what religion is: it is not merely something to be adopted and put aside on a matter of whim, but is fundamental to the identity, worldview, and behaviour of religious people, such that it would be a flagrant and foolish abuse of basic human rights to attempt to restrict it to the private sphere. Indeed, it would be an oppressive and disingenuous state that gave people the freedom to believe, but denied them the freedom to live their beliefs.
As Pope Benedict puts it, religious freedom should be understood "not merely as immunity from coercion, but even more fundamentally as an ability to order one's own choices in accordance with the truth".
The National Secular Society's Keith Porteous Wood warned, absurdly, that “any further accommodation of religious conscience in UK equality law would create a damaging hierarchy of rights, with religion trumping all”. Yet Clearing the Ground, a recent Parliamentary enquiry, found that religious illiteracy, recent court decisions, and a widespread failure to accommodate religious belief have already created a hierarchy of rights in the UK, one in which religious views – including issues of conscience and belief – are subordinate to views of sexuality asserted in the name of equality.
The secularist prejudice, increasingly normative in our culture, is that a religious opponent of gay marriage, say, does so 'because of their religious convictions'. Yet most religious people who oppose gay marriage do so for the same reasons that non-religious people do, reasons which are expressed just as easily in natural-law terms as theological ones. Yet because they are "religious opinions" they can be dismissed as a form of prejudice.
Only a Government that understood religious freedom would be capable of restoring this imbalance. But judging by its lawyers' arguments in Strasbourg, it is not this one.