Tuesday, September 01, 2015

Refusals to Issue Marriage Licenses to Same Sex Couples on Religious Grounds--An American Constitutional Conundrum and the View From the European Court of Human Rights

(Pix © Larry Catá Backer 2015)

The U.S. Supreme Court decision in Obergefell vs. Hodges has produced an expected push back along religious lines. And it once again pushes the political organs of society to examine the elasticity of the U.S. Constitution's Free Exercise Clause. The problem, of course, arises from the judicial determination, made nearly a generation ago, and written into some federal law, that effectively provides religious dissidents an "opt out" of civil law on the basis of religious objection. Not that this somewhat organic effort to create a workable settlement for sectarian differences and ambitions (that is for ambitions to control the societal conversation about conduct management through law) is necessarily wrong or wrongheaded (though many object to the form, scope and direction of the settlement). But it does present the government with a series of conundrums, especially relating to its own internal operations. In that sense it touches on a very delicate point--the power of religious free exercise to affect the order, organization and operation of the state. To the extent it does, it appears to invite objection on the grounds that such accommodation effectively establishes religion within the heart of the state--in its government. And thus the American conundrum.

The setting for the resolution of this conundrum arises from within the lower and most ministerial of the rungs of government administration within the States of our federal union. The clerks of several jurisdictions, most famously now those of the state of Kentucky, has declared their refusal to perform their obligations to issue marriage licenses to same sex couples. That objection is not grounded on the power of the state to issue such licenses, or of the right, under the secular laws of Kentucky (now mandated in a sense by federal constitutional guarantees) of same sex couples to marry. Rather is is grounded int he personal right of individual clerks to avoid complying with their duties of office on the basis of personal religious objection.
Rowen County clerk Kim Davis, who objects to gay marriage for religious reasons, asked the nation's highest court Friday to grant her "asylum for her conscience." . . . . She stopped issuing all marriage licenses in the days after the Supreme Court's landmark decision. . . . A federal judge ordered Davis to issue the license and an appeals court upheld that decision. . . . Forcing her to abandon her Christian principles and issue licenses could never be undone, her attorney, Jonathan D. Christman, with the Christian law firm Liberty Counsel, wrote the court. (Kentucky Clerk Asks Supreme Court to Intervene in Gay Marriage Case, Associated Press via NBC News, September 1, 2015)
That plea was rejected by the Supreme Court on August 31, 2015. "Davis is now faced with a lower court order that her office begin issuing licenses effective Monday. The order marks the first time the issue of same-sex marriage has come back to the justices since they issued an opinion last June clearing the way for same-sex couples to marry nationwide" (Ariane de Vogue and Jeremy Diamond, SCOTUS: Kentucky clerk must issue same-sex marriage licenses, CNN Politics, August 31, 2015). She continues to refuse to issue marriage licenses as of September 1, 2015 (Kentucky Clerk Again Denies Gay Couples Marriage Licenses, The New York Times, Sept. 1, 2015 ("According to news reports on Tuesday, Ms. Davis has again refused to issues marriage licenses to same-sex couples.").

Whatever the decision of the courts, the European Court of Human Rights has also recently had cause to consider similar claims under the protections of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This point includes relevant text of a recent decision of the European Court of Human Rights, Eweida and Others v. The United Kingdom (May 27, 2013). In which the Court rejected, under the European Convention, similar claims on the part of government employees.

 Article 9 of the European Human Rights Convention provides:
 Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 14 provides:
 Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The Europeans do not embrace the concept of antiestablishmentarianism--they have no establishment clause limitation on government.  But they do appear to have a vigorous protection of individual conscience and free exercise  that may have large points of overlap with our own. The issue sand standard are thus considerably different from that of the United States but may provide insight. In this case the insight is particularly useful where the uissue, like that of the Kentucky clerk, focuses on the power of an individual to BOTH retain her office and refuse to comply with its duties.   The European Court of Human Rights in this case emphasized balance over principle.  It agreed that the clerk¡'s conviction were religious and that the state manifestly interfered with the exercise of her religious practice when it terminated her for refusing to register same sex unions.  At the same time, it balanced the discrimination she perpetrated on a class of victims of her own--same sex couples--who also enjoyed the protections of expression and belief, including the belief in the sanctity of their marriages (and more so if these are religiously derived, though the court did not explore that possibility to my regret). Ultimately, the court determined that the state had a wide margin of appreciation (discretion in weighing and balancing these rights) and that the state did not abuse its discretion. Eweida is discussed here, here, here, here, and here.

And indeed, the discrimination wrinkle adds an interesting dimension to the analysis of religious rights.  Free Exercise sometimes tends to be argued as if the opt out demanded occurs in a vacuum in which the religious objection is centered and its connection to its consequences fade into less significance.   But where the opt out involves a government official and the object of the opt out is a governmental service, the issue of discrimination cannot be avoided.  One wonders, whether, in the United States, that will produce the further development of hierarchies of rights.  Certainly there might be those who will insist that because of its place in Article I, religious rights are paramount to others and that its potentially constitutionally unlawful effects--discrimination, etc., must be endured because those are lower on the hierarchy of rights.  This might apply to some discrimination--say against women and same sex unions, but it would be harder to make against other religions and certainly against religious discrimination. But this case is easier if only because the discrimination is also constitutionally suspect but not enshrined specifically in the text of the Constitution. On the other hand, in this case, the opt out goes to the very heart of the integrity of the government itself constituted by the  Constitution.  Yet constitutional doctrine may reduce the case to insignificance, that is to one turning on the nature of accommodation--Ms. Davis may keep her job status but may be removed from her specific duties. The problem arises again where a majority of clerks seek shelter in the Free Exercise Clause. But in the absence of wholesale opt outs, accommodation puts off the underlying issue for another day. That is possible certainly for clerks appointed and functioning as employees of the state.

On the other hand, were Ms. Davis an elected official, the conundrum is compounded, and the problem cannot so easily be avoided through accommodation. And indeed, that is precisely the case that is presented by the Kentucky clerk: "Davis cannot be fired because she is an elected official. The Legislature could impeach her, but that is unlikely given that many state lawmakers share her beliefs. The Republican president of the state Senate spoke at a rally last week in support of Davis." (Kentucky Clerk Asks Supreme Court to Intervene in Gay Marriage Case, Associated Press via NBC News, Aug. 28, 2015).  Now we are on very ambiguous terrain, one in which context matters a great deal.  On the one hand, many would now argue that it is unconscionable for an office holder to fail in her obligations, one solidified through her oath, to do her duty.  On the other, this countrry has witnessed important episodes where popular resistance to constitutionally legitimate mandates have been resisted by state and local officials sometimes with impunity.
Before the Civil War, northern states defied the federal government by refusing to enforce one of the most repugnant laws ever enacted in U.S. history. Although the concepts of states’ rights and nullification are historically associated with the South, they were employed by northern states to resist the Fugitive Slave Act of 1850. Under this law, stringent measures were imposed to catch runaway slaves. . . . This “nullification” of federal law was first introduced by the Virginia and Kentucky Resolutions of 1798, in which Jefferson and James Madison declared that states had the right to nullify federal laws they deemed unconstitutional. (Nullifying the Fugitive Slave Act; see also here).
Of course, the last time this happened this way, the consequence was secession and civil war.  And globally, we do live in an age in which sectarian wars appear to have become legitimated (again) in fact if not in form in many parts of the world.  Ms. Davis and her defenders point us in that direction again, and for a cause in which the United States is both divided (though substantially less so than even a decade ago) and on which there can be no compromise within certain religious communities which used to control the legal narrative of social legislation but apparently no more in the United States (at least for the moment). Here again accommodation is possible (same sex couples can drive to the next county) but such accommodation substantially weakens the integrity of our national union and the structures on the basis of which it is legitimated through rule of law structures. And that rule of law edifice is substantially more well developed than at the time of the Fugitive Slave Acts, one built around the protection of the franchise for all members of the electorate (e.g., Romer v., Evans). But in this instance, the contest pits constitutional provisions against each other, along with the principles underlying them all. Indeed, while Ms. Davis may be well protected in the United States in the broad exercise of her personal rights to dissent, it is less clear that she may use those rights positively or instrumentally to affect the rights and expectations of others, even (or especially) in her public and representative capacity.  The issue of discrimination, then, assumes both a personal and institutional character.

And it is the institutional character of the discrimination that merits further study.  One can start with the easy question--mandamus is available to compel a government official to do her duty (Marbury v. Madison, 5 U.S. 137).  Beyond the element of fiduciary obligation (she is not acting for herself but as a representative instrument of the state) lies the issue of hijacking the institution she serves to her own (religious) ends.  Where there is an identity between the enterprise and the individual, that may be possible.  That certainly might be understood as one of the great insights of the Hobby Lobby case (Burwell v. Hobby Lobby, 573 U.S. ___ (2014)).  But where that identity does not exist in the private sphere (e.g., a publicly traded corporation) or in the public sphere in any case, such dissent, transposed into the official rather than personal acts of the individual, may be beyond  the reach of the protection of the Free Exercise Clause.  And in this instance may be beyond the power of accommodation built therein. And here, the Establishment Clause would have to come to the rescue.  Elected officials who view their office as a means of expressing their (in this case dissenting) religious beliefs, practices etc., would in effect be using their office to establish religion (theirs). And, indeed, one way of understanding what Ms. Davis is doing is to look past the individual religious believer to the consequences of her actions in her capacity as a representative official--her actions effectively establish her religious beliefs and practices de facto as those of the county. That is not merely forbidden by the Establishment Clause, but may well, in her use of her official powers, also exceed her authority as an administrative official. And it may well interfere with the religious rights of same sex couples to marry and to be afforded access to the instrumenatalities of the state in a neutral manner.  Embedded as well, then, is a separation of powers issue--the clerk might well be understood to have asserted discretion arbitrarily but also to effectively have usurped legislative authority, seeking to legislate the extent of the role of the clerk. But all that remains to be seen, perhaps in another case and in another time. For the moment, it appears that this clerk will take her cause to the people, move her campaign to the societal sphere. 

Eweida and Others v. The United Kingdom
(Applications Nos. 48420/10, 59842/10, 51671/10 And 36516/10)
15 January 2013
FINAL 27/05/2013
(portions omitted)

* * * 

3. The applicants complained that domestic law failed adequately to protect their right to manifest their religion. Ms Eweida and Ms Chaplin complain specifically about restrictions placed by their employers on their wearing of a cross visibly around their necks. Ms Ladele and Mr McFarlane complained specifically about sanctions taken against them by their employers as a result of their concerns about performing services which they considered to condone homosexual union. Ms Eweida, Ms Chaplin and Mr McFarlane invoked Article 9 of the Convention, taken alone and in conjunction with Article 14, while Ms Ladele complained only under Article 14 taken in conjunction with Article 9.
* * *
 * * *

C.Ms Ladele
23. The third applicant is a Christian. She holds the view that marriage is the union of one man and one woman for life, and sincerely believes that same-sex civil partnerships are contrary to God’s law.
24. Ms Ladele was employed by the London Borough of Islington, a local public authority, from 1992. Islington had a “Dignity for All” equality and diversity policy . . .
25. In 2002 Ms Ladele became a registrar of births, deaths and marriages. Although she was paid by the local authority and had a duty to abide by its policies, she was not employed by it but instead held office under the aegis of the Registrar General. The Civil Partnership Act 2004 came into force in the United Kingdom on 5 December 2005. The Act provided for the legal registration of civil partnerships between two people of the same sex, and accorded to them rights and obligations equivalent to those of a married couple. In December 2005 Islington decided to designate all existing registrars of births, deaths and marriages as civil partnership registrars. It was not required to do this; the legislation simply required it to ensure that there was a sufficient number of civil partnership registrars for the area to carry out that function. Some other United Kingdom local authorities took a different approach, and allowed registrars with a sincerely held religious objection to the formation of civil partnerships to opt out of designation as civil partnership registrars.
26. Initially, Ms Ladele was permitted to make informal arrangements with colleagues to exchange work so that she did not have to conduct civil partnership ceremonies. In March 2006, however, two colleagues complained that her refusal to carry out such duties was discriminatory. In a letter dated 1 April 2006 Ms Ladele was informed that, in the view of the local authority, refusing to conduct civil partnerships could put her in breach of the Code of Conduct and the equality policy. She was requested to confirm in writing that she would henceforth officiate at civil partnership ceremonies. The third applicant refused to agree, and requested that the local authority make arrangements to accommodate her beliefs. By May 2007 the atmosphere in the office had deteriorated. Ms Ladele’s refusal to carry out civil partnerships was causing rota difficulties and putting a burden on others and there had been complaints from homosexual colleagues that they felt victimised. In May 2007 the local authority commenced a preliminary investigation, which concluded in July 2007 with a recommendation that a formal disciplinary complaint be brought against Ms Ladele that, by refusing to carry out civil partnerships on the ground of the sexual orientation of the parties, she had failed to comply with the local authority’s Code of Conduct and equality and diversity policy. A disciplinary hearing took place on 16 August 2007. Following the hearing, Ms Ladele was asked to sign a new job description requiring her to carry out straightforward signings of the civil partnership register and administrative work in connection with civil partnerships, but with no requirement to conduct ceremonies.
27. Ms Ladele made an application to the Employment Tribunal, complaining of direct and indirect discrimination on grounds of religion or belief and harassment. On 1 December 2007 the Statistics and Registration Act 2007 came into force and, instead of remaining an office holder employed by the Registrar General, Ms Ladele became an employee of the local authority, which now had the power to dismiss her. It was advanced before the Employment Tribunal that if the applicant lost the proceedings, it was likely that she would be dismissed.
28. On 3 July 2008, the Tribunal upheld the complaints of direct and indirect religious discrimination, and harassment, holding that the local authority had “placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of [Ms Ladele] as one holding an orthodox Christian belief”. The local authority appealed to the Employment Appeal Tribunal, which on 19 December 2008 reversed the decision of the Employment Tribunal. It held that the local authority’s treatment of Ms Ladele had been a proportionate means of achieving a legitimate aim, namely providing the registrar service on a non-discriminatory basis.
29. The decision of the Employment Appeal Tribunal was appealed to the Court of Appeal, which on 15 December 2009 upheld the Employment Appeal Tribunal’s conclusions. It stated, at paragraph 52:
“. . . the fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy. Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele’s refusal was causing offence to at least two of her gay colleagues; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.”
The Court of Appeal concluded that Article 9 of the Convention and the Court’s case-law supported the view that Ms Ladele’s desire to have her religious views respected should not be allowed “. . . to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community.” It further noted that from the time the 2007 Regulations (see paragraph 42 below) came into force, once Ms Ladele was designated a Civil Partnership Registrar, Islington was not merely entitled, but obliged, to require her to perform civil partnerships.
30. The applicant’s application for leave to appeal to the Supreme Court was refused on 4 March 2010.
* * *
A. Council of Europe Member States
47. An analysis of the law and practice relating to the wearing of religious symbols at work across twenty-six Council of Europe Contracting States demonstrates that in the majority of States the wearing of religious clothing and/or religious symbols in the workplace is unregulated. In three States, namely Ukraine, Turkey and some cantons of Switzerland, the wearing of religious clothing and/or religious symbols for civil servants and other public sector employees is prohibited, but in principle it is allowed to employees of private companies. In five States—Belgium, Denmark, France, Germany and the Netherlands—the domestic courts have expressly admitted, at least in principle, an employer’s right to impose certain limitations upon the wearing of religious symbols by employees; however, there are neither laws nor regulations in any of these countries expressly allowing an employer to do so. In France and Germany, there is a strict ban on the wearing of religious symbols by civil servants and State employees, while in the three other countries the attitude is more flexible. A blanket ban on wearing religious clothing and/or symbols at work by private employees is not allowed anywhere. On the contrary, in France it is expressly prohibited by law. Under French legislation, in order to be declared lawful any such restriction must pursue a legitimate aim, relating to sanitary norms, the protection of health and morals, the credibility of the company’s image in the eyes of the customer, as well as pass a proportionality test.
B. Third countries
1.  The United States of America
48. For civil servants and Government employees, the wearing of religious symbols is protected under both the United States Constitution (the Establishment Clause and the Free Exercise Clause) and the Civil Rights Act 1964. When a constitutional claim is made by a public employee, the courts apply the standard of intermediate scrutiny, under which the Government can impose restrictions on the wearing of religious symbols if the action is “substantially related” to promoting an “important” Government interest (see Tenafly Eruv Association v. Borough of Tenafly, 309 F.3d 144, 157 (3rd Cir. 2002)). When a statutory claim is made, the employer must have either offered “reasonable accommodation” for the religious practice or prove that allowing those religious practices would have imposed “undue hardship” on the employer (see Ansonia Board of Education v. Philbrook, 479 US 60 (1986); United States v. Board of Education for School District of Philadelphia, 911 F.2d 882, 886 (3rd Cir. 1990); Webb v. City of Philadelphia, 562 F.3d 256 (3rd Cir. 2009)). For private employees there are no constitutional limitations on the ability of employers to restrict the wearing of religious clothing and/or symbols. However, the restrictions from Title VII of the Civil Rights Act continue to apply so long as the employer has over 15 employees.
2.  Canada
49. Religious freedom is constitutionally protected under the Canadian Charter of Rights and Freedoms 1982 (the Charter). Section 1 of the Charter provides the state with authority to infringe on freedom of religion in the least restrictive way possible for a “compelling government interest” (see B(R) v. Children’s Aid Society of Metropolitan Toronto (1995) 1 SCR 315). Canadian employers, in general, are expected to adjust workplace regulations that have a disproportionate impact on certain religious minorities. The standard applied by the courts in this connection is that of “reasonable accommodation” (see R v. Big M Drug Mart Limited (1985) 1 SCR 295). Recent litigation on this point has centred on the rights of Sikh persons to wear a turban or kirpan at work. In Bhinder v. Canadian National Railway Co. (1985) 2 SCR 561, the Supreme Court determined that the claimant could not wear a turban at work because it interfered with his capacity to wear a hard helmet. This was found to represent a “bona fide occupational requirement”. The Canadian courts, rather than purporting to define a religion or religious practice, are more interested in the sincerity of the belief in a practice that has a nexus with a religion (see Syndicat Northcrest v. Amselem (2004) 2 SCR 551). In Multani v. Commission scolaire Marguerite-Bourgeoys (2006) 1 SCR 256, in which the Supreme Court of Canada upheld a Sikh student’s right to wear a kirpan to school, the court did not undertake a theological analysis of the centrality of kirpans to the Sikh faith. Instead, the court considered that the claimant “need[ed] only show that his personal and subjective belief in the religious significance of the kirpan [was] sincere”.
* * *
III.            MERITS
* * * 

4.  The third applicant
70. The third applicant complained under Article 14 taken in conjunction with Article 9, rather than under Article 9 taken alone, because she considered that she had been discriminated against on grounds of religion. She submitted that her acts, for which she was disciplined, were a manifestation of her religion and that the claim certainly reached the lower threshold required for applicability of Article 14, namely that it fell within the ambit of Article 9. She further contended that, in failing to treat her differently from those staff who did not have a conscientious objection to registering civil partnerships, the local authority indirectly discriminated against her. The local authority could reasonably have accommodated her religious beliefs, and its refusal to adopt less restrictive means was disproportionate under Articles 14 and 9.
71. The third applicant contended that the Court should require “very weighty reasons” in order to justify discrimination on grounds of religion. As with suspect categories so far identified by the Court as requiring “very weighty reasons” (such as sex, sexual orientation, ethnic origin and nationality) religious faith constituted a core aspect of an individual’s identity. Moreover, race, ethnicity and religion were often inter-connected and had been linked by the Court . . . .
72. The third applicant accepted that the aims pursued by the local authority were legitimate, namely to provide access to services, irrespective of sexual orientation and to communicate a clear commitment to non-discrimination. However, she did not consider that the Government had demonstrated that there was a reasonable relationship of proportionality between these aims and the means employed. She emphasised that she was employed as a marriage registrar prior to the change in legislation permitting civil partnerships to be established, and that the basis on which she was employed was fundamentally altered. The local authority had had a discretion not to designate her as a registrar of civil partnerships and could still have provided an efficient civil partnership service while accommodating the applicant’s conscientious objection. That objection was to participating in the creation of a legal status based on an institution that she considered to be a marriage in all but name; the applicant did not manifest any prejudice against homosexuals. In any event, it could not be assumed that, had the local authority accommodated the applicant, it would have been seen as approving of her beliefs. For example, when the State permitted doctors whom it employed to opt out of performing abortions, the State was not necessarily seen as approving of the doctors’ views; instead it was a sign of tolerance on the part of the State. In this case, however, the local authority did not adequately take into account its duty of neutrality. It failed to strike a balance between delivering the service in a way which would not discriminate on grounds of sexual orientation, while avoiding discriminating against its own employees on grounds of religion.


* * *
B. The Court’s assessment
1.  General principles under Article 9 of the Convention
79. The Court recalls that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260A).
80. Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9 § 1, freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis, cited above, § 31 and also Leyla Şahin v. Turkey [GC], no. 44774/98, § 105, ECHR 2005XI). Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9 § 2. This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.
81. The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance * * * Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed . . . .
82. Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a “manifestation” of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9 § 1. . . . In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question. . . .
83. It is true, as the Government point out and as Lord Bingham observed in R (Begum) v. Governors of Denbigh High School case (see paragraph 46 above), that there is case-law of the Court and Commission which indicates that, if a person is able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there is no interference with the right under Article 9 § 1 and the limitation does not therefore require to be justified under Article 9 § 2. For example, in the above-cited Cha’are Shalom Ve Tsedek case, the Court held that “there would be interference with the freedom to manifest one’s religion only if the illegality of performing ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable”. However, this conclusion can be explained by the Court’s finding that the religious practice and observance at issue in that case was the consumption of meat only from animals that had been ritually slaughtered and certified to comply with religious dietary laws, rather than any personal involvement in the ritual slaughter and certification process itself (see §§ 80 and 82). More relevantly, in cases involving restrictions placed by employers on an employee’s ability to observe religious practice, the Commission held in several decisions that the possibility of resigning from the job and changing employment meant that there was no interference with the employee’s religious freedom . . . However, the Court has not applied a similar approach in respect of employment sanctions imposed on individuals as a result of the exercise by them of other rights protected by the Convention, for example the right to respect for private life under Article 8; the right to freedom of expression under Article 10; or the negative right, not to join a trade union, under Article 11. . . . Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, 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.
84. According to its settled case-law, the Court leaves to the States party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference is necessary. This margin of appreciation goes hand in hand with European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see Leyla Şahin, cited above, § 110; Bayatyan, cited above, §§ 121–122; Manoussakis, cited above, § 44). Where, as for the first and fourth applicants, the acts complained of were carried out by private companies and were not therefore directly attributable to the respondent State, the Court must consider the issues in terms of the positive obligation on the State authorities to secure the rights under Article 9 to those within their jurisdiction. . . . Whilst the boundary between the State’s positive and negative obligations under the Convention does not lend itself to precise definition, the applicable principles are, nonetheless, similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others, cited above, § 62).
* * *
3.  Application of the above principles to the facts
of the present cases
 * * *
 c.  The third applicant
102. The Court notes that the third applicant is a Christian, who holds the orthodox Christian view that marriage is the union of one man and one woman for life. She believed that same-sex unions are contrary to God’s will and that it would be wrong for her to participate in the creation of an institution equivalent to marriage between a same-sex couple. Because of her refusal to agree to be designated as a registrar of civil partnerships, disciplinary proceedings were brought, culminating in the loss of her job.
103. The third applicant did not complain under Article 9 taken alone, but instead complained that she had suffered discrimination as a result of her Christian beliefs, in breach of Article 14 taken in conjunction with Article 9. For the Court, it is clear that the applicant’s objection to participating in the creation of same-sex civil partnerships was directly motivated by her religious beliefs. The events in question fell within the ambit of Article 9 and Article 14 is applicable.
104. The Court considers that the relevant comparator in this case is a registrar with no religious objection to same-sex unions. It agrees with the applicant’s contention that the local authority’s requirement that all registrars of births, marriages and deaths be designated also as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. In order to determine whether the local authority’s decision not to make an exception for the applicant and others in her situation amounted to indirect discrimination in breach of Article 14, the Court must consider whether the policy pursued a legitimate aim and was proportionate.
105. The Court of Appeal held in this case that the aim pursued by the local authority was to provide a service which was not merely effective in terms of practicality and efficiency, but also one which complied with the overarching policy of being “an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others”. The Court recalls that in its case-law under Article 14 it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification. . . . It has also held that same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship, although since practice in this regard is still evolving across Europe, the Contracting States enjoy a wide margin of appreciation as to the way in which this is achieved within the domestic legal order (Schalk and Kopf, cited above, §§ 99–108). Against this background, it is evident that the aim pursued by the local authority was legitimate.
106. It remains to be determined whether the means used to pursue this aim were proportionate. The Court takes into account that the consequences for the applicant were serious: given the strength of her religious conviction, she considered that she had no choice but to face disciplinary action rather than be designated a civil partnership registrar and, ultimately, she lost her job. Furthermore, it cannot be said that, when she entered into her contract of employment, the applicant specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement was introduced by her employer at a later date. On the other hand, however, the local authority’s policy aimed to secure the rights of others which are also protected under the Convention. The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007I). In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them. It cannot, therefore, be said that there has been a violation of Article 14 taken in conjunction with Article 9 in respect of the third applicant.

No comments: