Today’s Argument at the ECtHR: Highlights

Today in Strasbourg, a chamber of the European Court of Human Rights heard oral argument in four consolidated cases from the United Kingdom: Chaplin v. UKEweida v. UK, Ladele v. UK, and McFarlane v. UK. The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

For an American watching the webcast on the ECtHR’s website, today’s hearing offered some surprises. First, the argument was about two hours long, and the judges waited patiently to the end before asking any questions. A note to our readers in Europe: in an American courtroom, the judges would have interrupted in two minutes! Substantively, the counsel for the UK, James Eadie, made some claims that strike an American lawyer as remarkably broad. For example, he argued that Article 9 does not even cover the practice of wearing crosses. Article 9, he argued, only protects religious practices that are “generally recognized” within a religion, and there is no consensus in Christianity that adherents must wear crosses. I’m not aware of any analogous principle in American law. In response to Eadie, Eweida’s attorney, James Dingemans, scoffed at the idea that a practice must be “generally recognized” or “scripturally mandated” for Article 9 to apply. That, he said, is an unworkable standard. There is obviously no consensus on whether Islam requires the hijab, he noted; does that mean that hijabs may be flatly prohibited? Here, Eweida personally believed that wearing a cross was an integral part of her Christian identity – a belief not at all unusual among Christians, Dingemans added.

Even if Article 9 does protect crosses, Eadie argued, employers need not accommodate religious practices where, as in these cases, the employees could conveniently find alternative ways of engaging in the practices  – for example, by resigning and seeking other employment. This is truly a remarkable claim, again, without analogy in American law. At the hearing, both Dingemans and Dinah Rose, Ladele’s attorney, rejected the idea Article 9 is not violated where the employee can find other employment. That theory, Rose stated, would excuse an employer who refused to hire Jews because Jews could find other jobs. Paul Diamond, the lawyer for Chaplin and McFarlane, asserted that no group besides Christians had been subjected to this disrespectful argument.

With respect to Ladele and McFarlane, Eadie argued that the “legitimate, weighty aim” of ending social discrimination against homosexuals justified restrictions on the applicants’ religiously-motivated conduct. In response, Rose pointed out that Laclede could have been accommodated without any injury to same-sex couples: other registrars could have been assigned the task of registering same-sex civil unions. Rose also noted that the Dutch Council of State had recently issued an advisory opinion suggesting that public servants in Ladele’s position should be accommodated if they decline to register same-sex unions. In response, Eadie said that the Dutch court’s action only underscored the fact that different European nations would come to different judgments, and that a wide – I believe he said “particularly wide” – margin of appreciation is necessary.

The chamber’s decision is expected in several weeks.

UPDATE: Stijn Smit from Strasbourg Observers writes to tell me that “weeks,” which I read in one of the British accounts of the hearing, is an optimistic estimate; ECtHR judgments often take 6-12 months to appear.

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