Inevitably, Chaplin, Eweida, McFarlane and Ladele have led to widespread press comment both before and after the hearing at Strasbourg: some of it balanced, some of it fairly hysterical - like this and this. The Center for Law and Religion at St. John’s University School of Law has posted an interesting summary of the proceedings before the Court, written very much from a US point of view.
But as Rosalind English asks on the UK Human Rights Blog, Are Christians really marginalised in this country?
She notes with approval the argument advance by the National Secular Society in its intervention:
“When determining whether the facts of a case disclose a manifestation protected by Article 9, what matters is not whether a given belief is legitimate, but whether the wearing of a particular item, on the basis of the applicant’s own account of his or her belief, amounts to a manifestation – that is, whether it is the result of a command of conscience rather than a mere desire to express oneself”.
The importance of this distinction between obligation and mere personal preference, argues the NSS, is that its abandonment will mean that Article 9 will coalesce into a hierarchy of rights “giving greater protection to religious forms of conscience [than] to forms of conscience that are not religious in nature” – presumably on the basis that atheists and agnostics do not have specific forms of “non-religious” dress.
“Quite so” says Rosalind English:
“One wonders therefore why the Equality Act 2010 contains special exemptions for religious belief that subvert the very neutrality that it seeks to impose on society:
- charities may make acceptance of a religion or belief a condition of membership (section 193)
- faith schools may give preference to members of their own religion in their admissions criteria (schedule 11 para 5)
- religious employers may in certain circumstances discriminate on grounds not only of religion but also sex, marital status and sexual orientation (schedule 9 para 2(6)).”
To which a possible answer might go something like this…
However annoying it may be for the non-religious, people insist on continuing to hold intellectual positions that are either unverifiable (eg that Jesus rose from the dead) or irrational (eg that God created the Universe in six days) or both. Or sometimes they want on grounds of conscience to do things that the majority of us find to some degree distasteful – like the ritual slaughter of animals without pre-stunning. But precisely because faith is a matter of belief rather than of reason, the strongly-held religious views of believers are a core part of what makes them who they are. And liberal democracies have tended to accommodate that position.
Moreover, at a more technical level,
- at least one reason why the Equality Act allows charities to make acceptance of a religion or belief a condition of membership is – presumably – in order to respect the intentions of the original settlors/trusters
- if faith schools are not allowed to give preference to members of their own religion in their admissions criteria, what is the point of having faith schools at all? (the wider issue of whether or not faith schools are a desirable feature of a democratic liberal society is another matter – on which I have serious doubts – and beyond the scope of this post)
- if religious employers could not in certain circumstances discriminate on grounds not only of religion but also sex, marital status and sexual orientation, the Roman Catholic and Orthodox Churches would either have to close down their activities in the UK or start ordaining women – would that be generally regarded as “fair”?
As to the last of these, no Christian Church of my acquaintance recognises a “right” to be ordained in any event: it is variously thought of as a privilege, a response to a vocation, the outcome of discernment. Even in my own obscure corner of the religious zoo – the Society of Friends – no-one has a “right” to be invited to fill any office: appointments are made by business meetings after proposals by the meeting’s nominations committee.
In The New Religious Intolerance (Harvard UP: Cambridge Mass. 2012) at 143, the American legal ethicist Martha C Nussbaum writes about the need for “cultivated inner eyes” – the ability to stand in the shoes of the other person and see things from his or her point of view:
“The idea that equal respect requires us to approve of all religions equally, or even all instances of religious conduct, is just mistaken, and the participatory imagination doesn’t require approval either. It just requires seeing the other as a person pursuing human goals, and understanding in some loose way what those goals are, so that one can see what a burden to their conscience is, and whether the conduct really does contravene vital state interests.”
That, in my view, is absolutely crucial: the state has to weigh the “burden of conscience” against “vital state interests”. There is certainly a vital state interest in ensuring that people are not discriminated against because they are black or gay – but is there really a vital state interest in making it possible for women to be ordained as Roman Catholic priests or in preventing airline staff or nurses from wearing a cross or crucifix around their necks? The problem is one of balancing rights – and there is no easy answer to it.