Human-rights panel: 'Gay' trumps 'faith'

Alex Newman

STOCKHOLM, Sweden – In a landmark case that experts say will reverberate for generations, the European Court of Human Rights ruled against three of four U.K. Christians who suffered from discrimination because of their faith.

Analysts who spoke with WND had mixed feelings about the verdict, parts of which will be appealed to the ECHR Grand Chamber.

The general consensus among Christian leaders and advocates of religious liberty was that there were some positive elements to the decision. However, there were also some troubling precedents.

Two of the victims in the case, a registrar asked to officiate homosexual unions and a therapist who expressed concerns about providing "sex therapy" for homosexuals, were punished for their beliefs.

The ECHR upheld domestic rulings in both cases, claiming the terminations were justified under "equality" legislation despite supposed guarantees of freedom of conscience enshrined in European treaties.

The other plaintiff who lost her case, nurse Shirley Chaplin, was barred from her government job in a hospital ward after refusing to remove a confirmation cross that she had worn for some 30 years without incident.

"It would have been better obviously, if they'd won, but the situation is certainly slightly better than it was before," Thomas More Legal Center Director Neil Addison told WND in a phone interview after the ruling.

"What it has done is given more scope for argument on religious freedom and it hasn't supported the British courts' reasons," the prominent attorney continued.

He said the ECHR ruling undermined the controversial reasoning behind U.K. decisions involving theological questions about the wearing of Christian crosses.

The court did rule in favor of one of the victims, however.

British Airways employee Nadia Eweida, also disciplined for failure to remove or conceal a small necklace cross, appealed to the ECHR after she failed to obtain relief from U.K. courts.

Contrary to U.K. tribunal rulings, the Strasbourg-based European court ruled that her employer had acted inappropriately and that wearing a cross was indeed a manifestation of the Christian faith.

Both of the women discriminated against for displaying Christian crosses pointed out that the religious attire of other faiths – Islamic headscarves and Sikh turbans, for instance – are protected by law.

U.K. courts had ruled that displaying crosses and crucifixes was not "mandatory" in Christianity and so could be restricted.

"I'm pleased that the European court recognized the cross as a Christian symbol, but it's an extraordinary state of affairs that we needed to go to the European court for that to happen," CEO Andrea Williams of the Christian Legal Centre, which has been supporting the plaintiffs throughout the legal process, told WND in a phone interview after the verdict was handed down.

However, the news was not all positive for Christians and advocates of equal protection under the law – especially in nurse Chaplin's case.

"What the European court has done on the cross cases, with regards to Shirley Chaplin, is essentially put everything back into the domestic situation, saying that governments have a wide margin of appreciation and that health and safety rules meant she should not wear her cross," Williams continued.

"This is disingenuous given the fact that for 30 years she had been wearing her cross without incident, and that the uniform policy of the hospital actually allows for symbols of faith to be worn," she said, citing Muslim hijabs. "So the uniform policy is not being applied uniformly."

While all four of the cases were heard together, the other two plaintiffs were seeking protection for the conscience rights of Christians in the workplace.

Counselor Gary McFarlane was fired for "gross misconduct" when, citing his Christian beliefs, he expressed doubts to his superiors about his ability to provide so-called "sex therapy" to homosexual couples.

Despite the availability of other counselors who were willing and able to provide the services, U.K. courts ruled that McFarlane’s termination was appropriate. The ECHR agreed.

The other conscience rights plaintiff, Lillian Ladele, served as a registrar for the London Borough of Islington.

Citing her faith, she expressed a conscientious objection to officiating homosexual civil partnership ceremonies.

Again, despite the availability of other registrars and her employer's admission that the objections could have been accommodated, the Christian woman was disciplined and threatened with termination.

When Ladele began working as a registrar, British law did not require her participation in or facilitation of homosexual relationships.

U.K. courts eventually held that her views on marriage were not central to Christianity and that officiating homosexual relationships did not prevent her from practicing her faith.

The ECHR agreed, but with a caveat, saying Christian beliefs on marriage were indeed important.

"In each case the employer was pursuing a policy of nondiscrimination against service-users, and the right not to be discriminated against on grounds of sexual orientation was also protected under the Convention," the European court ruled.

Critics of the violation of conscience rights highlighted the ECHR's dissenting opinion on Ladele's case, a dissent that was widely praised by Christians and those concerned with the protection of conscience.

"Instead of practicing the tolerance and the 'dignity for all' it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness," the two dissenting judges wrote. "It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal – something which, even assuming that the limitations of Article 9 [section] 2 apply to prescriptions of conscience, cannot be deemed necessary in a democratic society."

Christian Legal Centre CEO Williams applauded part of the ruling but promised to appeal.

"With regards to the case of Gary McFarlane and Lillian Ladele, I'm delighted that the European court has recognized that believing marriage is between a man and a woman – believing that sex should be between a man and woman within the construct of marriage – is something that flows from the Christian faith," she told WND. "They accepted that as a meaningful manifestation of faith."

However, instead of addressing the conflict between the conscience rights of religious people and anti-discrimination rules on homosexuals, the ECHR ruled that national governments should make that determination.

"By saying that the nation could decide, if there was an equality policy that said there can be no discrimination on the grounds of sexual orientation, then every employee would be compelled to act within it, so their conscience would not be respected," Williams said.

"We're delighted that there was recognition of this belief, but saddened that the European court did not make a decision on what happens when there is a clash of rights," she continued, adding that the ruling would compel people to violate their conscience if governments prioritize homosexuals over Christians.

"We are appealing to the Grand Chamber," Williams said.

Another expert whose organization filed a brief in the case supporting the plaintiffs, director Grégor Puppinck of the European Center for Law and Justice, also criticized the rulings.

"The majority obviously missed the fundamental difference between conscience and religion," Puppinck told WND after the verdict was published. "Whereas the cases of Eweida and Chaplin are cases of 'freedom of religion' – freedom to wear religious items in public – the ones of Ladele and McFarlane are cases of 'freedom of conscience,' conscientious objection to homosexuality."

According to the European Convention on Human Rights, religious freedom may be subject to certain necessary limitations.

Freedom of conscience, however, should not be limited once a genuine and serious case of conscientious objection is established, Puppinck explained.

"The state has the positive obligation not only to abstain from forcing someone to act against his moral conscience, but also to undertake positive measures to accommodate this person, as much as reasonably possible," he continued.

"In the case of Ms. Ladele, the state not only forced her to celebrate same-sex unions, violating its negative obligation to respect individual conscience, but also made no effort to find a reasonable accommodation in order to respect her genuine conscientious objection, violating its positive obligation to respect individual conscience," Puppinck said.

"It is not the same to force someone to abstain from wearing a religious item, and to force someone to act against his conscience, for example forcing someone to perform a homosexual union, or any other practice that can be genuinely considered as immoral such as abortion," he concluded.

Other experts and attorneys who spoke with WND about the ECHR ruling agreed that Ladele, in particular, had a very strong case for appeal.

The one victory in the four cases that were heard together, which upheld British Airways check-in clerk Eweida's right to display her cross, drew widespread celebration among Christians.

Even U.K. Prime Minister David Cameron said he was "delighted" by the news.

"There was no evidence that the wearing of other, previously authorized, items of religious clothing, such as turbans and hijabs, by other employees had any negative impact on British Airways' brand or image," the Strasbourg-based European court ruled.

"Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewelry demonstrates that the earlier prohibition was not of crucial importance," it added.

"The court therefore concludes that, in these circumstances where there is no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant's right to manifest her religion," the ECHR verdict stated.

While the European court's decisions are not binding in the U.K., the government must consider them going forward.

The three plaintiffs who lost their cases have three months to file an appeal.