Claims that same-sex marriage is on a collision course with religious freedom have dominated the headlines (The New York Times and The Washington Post) in the US, especially with recent ballot-box victories in Maryland, Maine and Washington, as well as the US Supreme Court's grant of certiorari in Hollingsworth v. Perry. Equal marriage legislation in the US always include exemptions for religious leaders in the performance or solemnization of same-sex marriages and, in some cases, in the provision of accommodations or services related to the solemnization of such marriages. In some states the very title of the legislation or proposed legislation [PDF] reflects the presumed conflict of rights. In the UK, recently proposed legislation would actually prohibit the Church of England and the Church in Wales from performing same-sex marriages. This is clearly a sensitive question for marriage equality and religious freedom advocates.
The applicability of exemptions for religiously motivated individuals extends far beyond whether clergy must marry same-sex couples. Courts in a variety of countries, including Canada, the US, the UK and Australia have heard cases concerning whether services, facilities and accommodations generally available to the public may be refused to same-sex couples or gay and lesbian individuals on religious grounds. In other words, does sincere religious conviction exempt one from non-discrimination laws?
Now the European Court of Human Rights (ECtHR) has weighed in on the debate about the intersection of religious freedom and equality with its judgment in Eweida and Others v. United Kingdom [PDF], issued on January 15. The European Convention on Human Rights (ECHR) guarantees the right to freedom of thought, conscience and religion including the right to manifest one's religion in public or in private, under Article 9. Manifestation is broadly defined as "worship, teaching, practice and observance." It has been held to include wearing headscarves, reading sacred texts, observing dietary restrictions and proselytizing. The right to manifest one's religion, however, may be limited, provided that the limitation is prescribed by law, necessary in a democratic society and for the purpose of one or more or the aims set out in Article 9(2). One of those aims is "the protection of the rights and freedoms of others." Unfortunately, those looking for guidance on how to balance potentially competing rights claims may well be disappointed.
Eweida which consolidated applications from four British nationals claiming that their rights to freedom of religion and to be free from discrimination had been violated concerned two different types of restrictions on religious freedom. In the first pair of joined applications, Eweida & Chaplin, the issue was whether employers could prevent their employees from wearing crosses at work. The court found a violation in the case of Eweida, where the employer's asserted rationale of projecting a certain corporate image was not a sufficient justification, but none in the case of Chaplin, where the purpose of the restriction was the health and safety of hospital staff and patients.
The second pair of cases, Ladele & McFarlane, directly addressed the religious freedom-sexual orientation discrimination conflict. Lillian Ladele and Gary McFarlane claimed that they had been unfairly treated by their employers for refusing to provide services to same-sex couples. Ladele was a marriage registrar with the London Borough of Islington who refused to conduct same-sex civil partnerships, in violation of Islington's equality and diversity policy. She believed that same-sex unions were "contrary to God's will." McFarlane was a relationship counselor employed by a private counseling service who did not wish to counsel same-sex couples on psycho-sexual issues because of his "adherence to Judeo-Christian sexual morality." Both were disciplined by their employers. Ladele ultimately resigned and McFarlane was dismissed.
The court held, unanimously in the case of McFarlane and by a vote of 5-2 in the case of Ladele, that there had been no violation of the right to manifest one's religion or, specifically in the case of Ladele, the right to be free from discrimination on religious grounds. The objective of protecting same-sex couples from discrimination was a legitimate and important one.
So far so good. The court could hardly have done less, given its earlier judgments in sexual orientation cases. In a series of decisions, the court has emphasized that the non-discrimination guarantee of the ECHR includes sexual orientation, that differences on the basis of sexual orientation require "particularly serious reasons by way of justification," and that same-sex couples have the same need for legal recognition and protection as opposite-sex couples. Nevertheless the court missed a significant opportunity to clarify the interaction of these rights. In at least three areas it may have actually weakened the hand of equality advocates.
First, the court rejected the argument, which had been articulated earlier by the ECtHR in a series of admissibility decisions (Konttinen v. Finland and Stedman v. United Kingdom), that the possibility of resigning from one's job meant that there was no interference with the employee's religious freedom. The court instead concluded, "rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate."
Second, the court relied heavily on the margin of appreciation doctrine. Since competing ECHR rights were at stake, the court afforded the UK "a wide margin of appreciation" in determining where to strike a fair balance. Under this standard, the UK authorities had not "exceeded the margin of appreciation available to them." What this might mean in a future case where a same-sex couple alleges discrimination by a service provider claiming a religious exemption is unclear. Moreover, the application of a very deferential margin of appreciation was unnecessary, given the court found that any interference was in pursuit of a legitimate aim, necessary and proportional. By granting extremely wide latitude to states, the court left open the possibility that refusals by religiously motivated individuals to provide services to potential clients or customers because of their sexual orientation do not violate the ECHR.
Finally, and perhaps most disappointingly, the court accepted at face value the assertion that the refusal to offer same-sex couples publicly available services (whether civil partnership ceremonies or relationship counseling) was, in fact, a manifestation of belief. The UK had maintained that these acts did not amount to manifestation, referring to Strasbourg jurisprudence holding that Article 9 did not "always guarantee the right to behave in the public sphere in a way which is dictated by" religion or belief and that the "term 'practice' in Article 9 does not cover each act which is motivated or influenced by a religion or belief," (Porter v. United Kingdom; Skugar and Others v. Russia).
In a case that would seem to be directly on point and was cited by the Court of Appeal in its Ladele decision the ECtHR found [French] inadmissible the application of two French pharmacists who had refused, for religious reasons, to fill prescriptions for contraceptives. Indeed, in Pichon & Sajous the court stated:
As long as the sale of contraceptives is legal and occurs on medical prescription nowhere other than in a pharmacy, the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.The refusal of pharmacists to sell contraceptives was described by the court as recently as 2009 as an example of acts which "were not recognized as a direct expression of the applicants' beliefs protected under Article 9 of the Convention." Nowhere in the Eweida judgment does the court explain why the reasoning of Pichon & Sajous does not apply to the actions of Ladele and McFarlane.
There will continue to be cases, within Council of Europe member states and elsewhere, addressing claimed conflicts between religiously motivated individuals and general non-discrimination laws. Eweida and Others tells us only that a state may interfere with a manifestation of belief in the interest of equality, but it does not tell us that a state must do so.
Alli Jernow is the Senior Legal Advisor for the Sexual Orientation and Gender Identity Project of the International Commission of Jurists. The ICJ, together with ILGA-Europe and Fédération Internationale des ligues des Droits de l'Homme submitted a joint third-party intervention in Eweida and Others.
Suggested citation: Alli Jernow, Manifesting Inconsistency in Marriage Equality Rights, JURIST - Hotline, Jan. 21, 2013, http://jurist.org/hotline/2013/01/alli-jernow-ladele-uk.php
This article was prepared for publication by John Paul Regan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him/her at email@example.com