Monday 21 January 2013

Eweida and Others Judgment Part I - The Sexual Orientation Cases

Last week the European Court of Human Rights issued its keenly awaited judgment in Eweida and Others v the United Kingdom, a collection of four different cases which relate to diversity issues. Two of them are more specifically about sexual orientation and two others more about religion as such. In the coming weeks I will post here two guest blog posts by experts on the respective issues. Today is the first part and I am particularly delighted to welcome a guest post by sexual orientation law expert Paul Johnson of the University of York:
Eweida and Others v the United Kingdom

Paul Johnson

For those interested in and concerned about the protection and development of human rights in respect of sexual orientation, the judgment of the European Court of Human Rights (ECtHR) on Tuesday 15th January 2013 in Eweida and Others v the United Kingdom should be seen as significant. The judgment, by the Fourth Section of the Court, responds to four complaints brought under the European Convention on Human Rights (ECHR) that were co-joined because of the similar issues they raise. Two of the complaints concern restrictions placed by employers on the personal display of religious symbols (crucifixes) by individuals in the workplace. The other two complaints, which I will focus on here, relate to claims of discrimination in and dismissal from employment because of the applicants’ refusal to provide services to homosexuals. In all cases the applicants claimed that their right to ‘freedom of thought, conscience or religion’, guaranteed by Article 9 of the ECHR, as well as their right to non-discrimination, guaranteed by Article 14 of the ECHR, had been violated.

In respect of the complaints relating to sexual orientation, the ECtHR found no violation of either the applicants' Article 9 or 14 rights. Whilst this decision should be welcomed, because it upholds the United Kingdom's legislation relating to sexual orientation equality in the provision of goods and services, the substance of the judgment may also be seen as problematic. Lacking any consideration of proportionality in respect of the substantive issues involved, the judgment provides no clear vision about how best to achieve a balance between the often competing interests of religion and sexual orientation in contemporary European societies. Rather, in relying on the doctrine of ‘margin of appreciation’, the ECtHR’s judgment is empty of moral reasoning or insight.

The two sexual orientation related complaints: Ladele and McFarlane

Both of the complaints relating to sexual orientation were brought by Christians.

The first was made by Ms Lillian Ladele about her treatment whilst in employment as a registrar of births, deaths and marriages in the London Borough of Islington. Whilst in post, and as a consequence of the Civil Partnership Act 2004, Ms Ladele was asked to perform duties in the registration of civil partnerships between same-sex couples. Ms Ladele’s refusal to carry out these duties because of a religious objection to same-sex partnerships, and her employer’s insistence that she do so, resulted in a disciplinary hearing against her and a threat of dismissal. Ms Ladele made a successful application to the domestic Employment Tribunal, complaining of direct and indirect discrimination on grounds of religion or belief and harassment, but this was subsequently reversed by the Employment Appeal Tribunal which held that her treatment had been a proportionate means of achieving the legitimate aim of offering a non-discriminatory service. Ms Ladele appealed to the Court of Appeal which, citing the Equality Act (Sexual Orientation) Regulations 2007 (which, in force at the time of the appeal, prohibited discrimination on the grounds of sexual orientation in the provision of goods, services and facilities), held that a desire to have religious views respected should not be allowed ' override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community.' In her complaint to the ECtHR, Ms Ladele relied upon Article 14 taken in conjunction with Article 9 to claim that she had been discriminated against on the grounds of religion, that her employer could have accommodated her religious beliefs, and that using dismissal as a means to meet the legitimate aim of non-discrimination was disproportionate.

The second complaint relating to sexual orientation was brought by Mr Gary McFarlane. Mr McFarlane was employed by Relate (a sex therapy and counselling service) as a counsellor from 2003 until 2008. During his time at Relate, Mr McFarlane had expressed concerns that his Christian view of homosexuality as inherently sinful was at odds with his duty to provide counselling services to same-sex couples. After a protracted series of formal communications, Mr. McFarlane was dismissed by Relate for gross misconduct on the basis that he would not comply with the organization's non-discrimination policy. Mr McFarlane lodged a claim with the Employment Tribunal, claiming direct and indirect discrimination, unfair dismissal, and wrongful dismissal. The Tribunal found that Mr McFarlane had not suffered either direct or indirect discrimination because he had not been dismissed because of his faith but, rather, because he would not comply with the organization's policies. Mr McFarlane made unsuccessful appeals to the Employment Appeal Tribunal and the Court of Appeal. In his application to the ECtHR, Mr McFarlane complained under Article 9 of the ECHR taken alone and in conjunction with Article 14. He claimed that his adherence to Judeo-Christian sexual morality should be protected by Article 9, that his employers could have used less restrictive means to achieve their aim of non-discrimination by referring homosexual clients to other counsellors, and that his dismissal from employment and damage to professional reputation was therefore disproportionate.

ECtHR judgment

In respect of the application by Ms Ladele, the ECtHR applied its four established ‘tests’ in respect of Article 14 complaints. First, in considering whether Article 14 was applicable, the ECtHR decided that the applicant’s objection to participating in same-sex civil partnership registrations was directly motivated by her religious beliefs and, because this fell with the ambit of Article 9, Article 14 was applicable. Second, the ECtHR considered whether Ms Ladele was in an analogous situation with another group of persons receiving more favourable treatment and concluded that a relevant comparator was registrars with no religious objection to same-sex partnerships. Third, the ECtHR examined whether the applicant’s treatment pursued a legitimate aim and concluded that the aim of ensuring equality based on sexual orientation was legitimate. Finally, the ECtHR then approached the crucial question of proportionality. In respect of proportionality the ECtHR noted:

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.
Having set out the issues, the ECtHR then provided no analysis of proportionality but, rather, defaulted to its margin of appreciation doctrine, stating:

The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights […] 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.
 Because of this, the ECtHR held, by five votes to two, that Ms Ladele had suffered no violation of her rights under Article 14 taken in conjunction with Article 9.

In respect of Mr McFarlane’s complaint, the ECtHR took a similar approach. The ECtHR stated that it accepted that Mr McFarlane’s objection to providing services to same-sex couples was directly motivated by his Christian beliefs and that a contracting state has a positive obligation under Article 9 to secure those beliefs. The question, therefore, was whether a fair balance had been struck between the applicant’s and the organization's competing interests. In approaching the issue of proportionality, the ECtHR stated that 'the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination' and, because of this, '[t]he State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others'. Because of this, the ECtHR held unanimously that the state had not exceeded its margin of appreciation and Mr McFarlane’s complaint did not give rise to a violation of Article 9, taken alone or in conjunction with Article 14.

A lack of moral reasoning

Whilst the judgment in respect of Ms Ladele and Mr McFarlane may be welcomed by some (including myself), its complete lack of reasoning in respect of proportionality and its reliance on the margin of appreciation doctrine makes it problematic. It is problematic because the ECtHR can (and regular does) take the same approach in order to reject claims from sexual minorities about violations of ECHR rights. For this reason, although the margin of appreciation is one of the key methods used by the ECtHR in its review of complaints, its use in these circumstances should be questioned. The margin of appreciation doctrine is used by the ECtHR in Eweida in two ways: first, to determine the extent of the ECtHR’s authority to intervene as a court which operates under the principle of subsidiarity (‘The Court generally allows the national authorities a wide margin of appreciation’); and, second, as an interpretative device in respect of the substantive issues involved (‘all the circumstances’). The use of the margin of appreciation in both of these ways has long attracted considerable and sustained criticism. Singh, for example, has argued that it is ‘a conclusory label which only serves to obscure the true basis on which [the ECtHR] decides whether or not intervention in a particular case is justifiable’. Or, as Lord Lester of Herne Hill more prosaically puts it, the ‘concept of the margin of appreciation has become as slippery and elusive as an eel’ and is used ‘as a substitute for coherent legal analysis of the issues at stake’. As Lord Lester also argues: ‘The problem with the Court’s invocation of the margin of appreciation is that it removes the need for the Court to discern and explain the criteria appropriate to particular problems.’

What Lord Lester sees as a ‘problem’ for jurisprudence – a problem that has led scholars to attempt to catalogue the various ways in which the margin of appreciation has been applied and the hierarchy of rights that it has produced – is actually what makes it most useful to the ECtHR in cases like Eweida. It is useful because it provides a highly malleable device through which the ECtHR can mandate its judgments and, at the same time, obscure its moral reasoning. In ‘applying’ the margin of appreciation, the ECtHR appears to draw upon a precision instrument that enables it to calculate the ‘width’ of the margin available to a state and reach a judgment. However, although the margin available to a state appears to determine the outcome of a judgment, the judgment ultimately remains an expression of the ECtHR’s moral orientation to ECHR rights. This was true in respect of complaints brought under the ECHR by homosexuals between 1955 and 1980 when applicants were routinely told that the criminalization of male homosexual acts in private was within the margin of appreciation available to contracting states and were given little or no reasons about the proportionality of such criminalization. It was wrong then for the Strasbourg organs to not outline the moral reasoning that underpinned its decisions in respect of complaints brought by homosexuals, and it is inadequate now to do the same in respect of these present complaints about religious freedom. A detailed consideration of proportionality is a mechanism that makes transparent a moral consideration of rights; the margin of appreciation is a way to avoid it.

In a partly dissenting opinion, judges Vučinić and De Gaetno do provide a full account of their reasoning as to why they disagree with the majority judgment in respect of Ms Ladele's complaint. These judges argue that Ms Ladele has suffered a violation of her Article 9 rights because her attitude towards homosexuality is, although underpinned by religious belief, a matter of freedom of conscience. They engage in a fulsome discussion of the need to protect freedom of conscience because it 'has in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad'. What is important about this dissenting opinion is that, in outlining their reasoning, these judges make their moral commitments explicit. Although they engage in no formal analysis of proportionality, their understanding of how rights should be balanced is made explicit through their claim that: 'a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights) eventually led to [Ms Ladele's] dismissal'. The documented reasoning of these dissenting judges in respect of the substantive issues and human rights involved in the complaint produces the conclusion that a conscientious objection to homosexuality is a 'fundamental human right' which has greater value than 'gay rights'. However lamentable this might be and whatever questions it might raise - such as, would a conscientious objection, founded in religious belief, to marrying people of different ethnicities be worthy of greater protection than ensuring non-discrimination on the grounds of race? - we can, at least, see the moral reasoning of these judges.

In the majority judgment, by contrast, the reliance on the margin of appreciation renders opaque the moral reasoning in respect of the substantive issues involved. In failing to engage in an analysis of proportionality, the ECtHR provides no insight into how European states, with vastly different legal approaches to matter relating to religion and sexual orientation, should interpret the ECHR in order to balance the frequently competing interests of those who claim rights on the basis of religion and sexuality. The ECtHR has not, therefore, provided an interpretation of the ECHR that gives practical guidance to contracting states on how best to achieve proportionality in this area. Furthermore, the ECtHR has not explained to Europeans why their religious beliefs about sexual orientation may not be protected by the ECHR when contracting states pursue the aim of protecting sexual minorities from sexual discrimination. Whilst I wholly welcome the outcome, I find the judgment completely lacking in the moral reasoning that is required to underpin and legitimate the ECHR in contemporary European societies - societies that are now so often riven by conflict about religious and sexual orientation rights.
Many thanks to Paul! Other comments about this judgment have appeared on the UK Human Rights Blog and on Strasbourg Observers.