Picture
Sacked Christian Counselor Gary McFarlane

How
will the EU Court of Human Rights define religious freedom and how will their decision impact the rights of Christian employees in the UK?

(Posted by Bryana Johnson on September 15, 2012)

Sometime next year we’ll hear rulings from the European Court of Human Rights on two landmark cases that may set the tone for the future of religious freedom in European workplaces and outline the rights of businesses in disputes regarding employee practices. In a showdown that has the potential to become a fascinating clash of ideals, the Alliance Defending Freedom (ADF) legal firm will be representing four aggrieved UK plaintiffs who claim they were discriminated against by their employers as a result of their Christian faith.

One case, Eweida and Chaplin v. United Kingdom, involves plaintiffs Nadia Eweida and Shirley Chaplin who were both ordered to either cover up or remove cross necklaces at their places of work. Nadia Eweida worked at the British Airways check-in counter at London’s Heathrow Airport while Shirley Chaplin worked as a nurse at a government-run hospital. The ADF claims that in both cases accommodation was made for some employees of other faiths, but not for these women. ADF attorney Paul Coleman said
in an interview with OneNewsNow

"When other members of the workforce were given accommodations for their religious symbols-- be it the Hijab or the Sikh turban -- Christians were told they were not allowed to wear the cross."

The second case, Ladele and McFarlane v. United Kingdom, deals with plaintiffs Lillian Ladele and Gary McFarlane who were fired from their places of work for declining to perform services involving same-sex partnerships and counseling. Ladele, a marriage registrar for Islington Council in London, “was disciplined after she asked to be exempt from registering same-sex civilpartnerships.” McFarlane was a counselor who was fired after he “declined to unequivocally commit to provide same-sex couples with psycho-sexual therapy.”

"In both of those cases, they could have been easily accommodated," Coleman told OneNewsNow. "There could have been timetables worked out; there could have been various ways that the issues could have been resolved, but instead, the employees were dismissed for gross misconduct."

What are the possible rulings that could come down from the Court of Human Rights and how would they affect our era’s raging debate regarding workplace discrimination and freedom of religious expression? A quick look at the cases might seem to suggest that the court can only rule in one of two ways: either against workplace discrimination or in favor of business rights.

If the court were to rule against workplace discrimination, Christian conservatives would rejoice at having their values upheld. If the court were to rule in favor of business rights, Christian conservatives would have at least as much cause to rejoice, as Christian business
owners have often expressed dismay at being hampered by government intervention from running their businesses according to the dictates of their faith. They might even eventually find themselves freed from being forced to provide accommodations for same-sex couples at their Bed and Breakfast establishments, and wedding services for same-sex marriages at their churches and entertainment venues. However, the fact of the matter is that these cases are far more complex and a far more disturbing ruling is likely to be the issue of this conflict.

UK law has provisions in place to respect the religious freedom rights of employees and to handicap businesses from prohibiting certain religious attires and behaviors. These laws, however, are not definitive. An individual is not allowed free reign simply because he or she claims religious reasons for his or her behavior or dress. It is left to the courts to determine how much religious observance is mandated by the religious teachings of an employee’s creed.

Thus, the 2010 Employment Appeal Tribunal ruled against Shirley Chaplin, the nurse who was ordered to remove her cross necklace, citing “health and safety guidelines.” The Tribunal
ruled againsther claim because it said Christians "generally" did not consider wearing a cross as a requirement of their religion.

As long as adherents of other faiths are held to the same standards, this is certainly an understandable ruling on the part of the Tribunal. Was the hospital in fact discriminating against Chaplin due to her Christian faith? I certainly think it likely. Perhaps the court could have investigated whether other employees were permitted to wear necklaces of the same size as Chaplin’s. Perhaps they could have probed into the hospital’s safety and health guidelines to figure out exactly how a small crucifix could be considered a violation of these. However, in the end, UK law says that Chaplin’s freedom to wear her necklace is not protected and that she must be subject to her business’s code of conduct. Even if it could be proven that her business is discriminating against her solely because of her faith, this would not make any difference. The Tribunal’s decision was that Chaplin’s necklace was not mandated by her religion.

 Let’s take a look at the original UK court ruling against Gary McFarlane, the disappointing outcome that prompted him to take his grievance before the European Court. The case opinion
is summarized as follows:

“A relationship counselor dismissed for refusing to counsel same sex couples on sexual matters because of his Christian beliefs did not suffer discrimination under the
Employment Equality (Religion or Belief) Regulations 2003. Although the law protected a person's right to hold or express their religious beliefs, it did not protect the substance or content of those beliefs on the ground only that they were based on religious precepts.”

In this situation we have a far more arrogant ruling issued against the plaintiff, because the court has refused to accept that McFarlane considered his actions to be mandated by his religion. Indeed, the ruling has sidestepped this crucial issue altogether. Justice Laws stated in his judgment,

“The promulgation of law for the protection of a position held purely on religious grounds cannot …be justified. It is irrational, as preferring the subjective over the objective.”

So suddenly, in the eyes of the court, this case is no longer a matter of whether or not McFarlane’s employer was asking him to contradict his own religious beliefs, but has become an issue of whether or not a religious belief is protected if the court doesn’t like it. Contrary to what Justice Laws implies by his statements, McFarlane’s actions were in no way jeopardizing the rights of same-sex couples to receive counseling services at his firm.
Explained Andrew Marsh, campaigns director for Christian Concern, 
 
“What lies at the heart of this is that no-one has been harmed by the choices these four wanted to make, no-one had had a service denied to them. This is an issue which really resonates with people on the ground, and is much wider than just a Christian issue.”

Thus the ruling issued by the UK court was in no way a protection of the rights of same-sex couples, but merely an attack on Christian religious freedom. It is this form of authoritarianism and bigotry that the European Court of Human Rights has the power to enshrine in the case of Ladele and McFarlane v. United Kingdom. The free world waits with bated breath to see what the verdict will be. Will diversity and religious liberty be upheld, or will these sad words of Andrea Williams, Director of the Christian Legal Centre, prove true?

"It seems that a religious bar to office has been created, whereby a Christian who wishes to act on their Christian beliefs on marriage will no longer be able to work in a great number of environments."

 


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