Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others

DOIhttp://doi.org/10.1111/1468-2230.12064
Publication Date01 Mar 2014
AuthorRobert Wintemute
Accommodating Religious Beliefs: Harm, Clothing or
Symbols, and Refusals to Serve Others
Robert Wintemute*
Is there a middle path between the existing case law of the European Court of Human Rights,
which rarely requires accommodation of a religious individual’s beliefs, and a ‘general right to
conscientious objection’, which would exempt religious individuals from all anti-discrimination
and other rules interfering with manifestations of their beliefs? The author argues that failure to
accommodate is better analysed as prima facie indirect discrimination, to highlight the exclusionary
effects of non-accommodation on religious minorities, and that the presence or absence of direct
or indirect harm to others (or cost, disruption or inconvenience to the accommodating party)
could guide case-by-case assessments of whether the prima facie indirect discrimination is justified.
The author then applies a harm analysis to the examples of religious clothing or symbols and
religiously motivated refusals to serve others, recently considered by the European Court of
Human Rights in Eweida and Others vUnited Kingdom.
INTRODUCTION
One of the greatest challenges for 21st-century European human rights law
is the question of when religious beliefs should be accommodated in liberal,
publicly secular, democratic societies that are increasingly multicultural and
visibly diverse, in terms of their residents’ ethnic origins, religions, and sexual
orientations. Two situations in which an individual might request that a par-
ticular manifestation of their religious beliefs be accommodated are where the
individual: (i) wishes to wear clothing or symbols associated with their religion,
especially in the context of employment or education; or (ii) refuses to serve
some of their employer’s customers because of their religious beliefs about a
characteristic of the customers (the objection that ‘refusal to serve’ is an unfair
characterisation will be addressed below). These two situations gave rise to four
applications to the European Court of Human Rights (ECtHR)1by Christian
employees of non-religious employers: Eweida and Chaplin vUnited Kingdom on
their right to wear small but visible crosses around their necks at work, and Ladele
and McFarlane vUK on their right to refuse to serve same-sex couples. The
ECtHR delivered its judgment on the four applications, known as Eweida and
Others vUK (Eweida and Others), on 15 January 2013.2
*Professor of Human Rights Law, King’s College London. I presented the first version of this analysis
to staff seminars at the National University of Juridical Sciences in Kolkata, West Bengal, India in 2009,
and King’s College London in 2010. I would like to thank Dennis Baker, Edwin Cameron, Allison
Jernow, Satvinder Juss, Robert Leckey, Bruce MacDougall, Maleiha Malik and anonymous MLR
reviewers for helpful comments on subsequent versions.
1 All cited ECtHR judgments ( J) and admissibility decisions (AD) are at http://hudoc.echr.coe.int.
2 [2013] ECHR 37 ( J) (Eweida and Others). Requests by Chaplin, Ladele and McFarlane that their
cases be referred to the Grand Chamber were rejected on 27 May 2013.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(2) MLR 223–253
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Unlike Lautsi vItaly3(Lautsi), which limited the duty of the State to be neutral
among religions and treat them all equally, and was recently examined by Leigh
and Adhar,4Eweida and Others concerns religious individuals, who have no duty
to be neutral, but must not impose their beliefs on others. In this article, I will
seek to identify human rights principles that support a potential right to accom-
modation of a particular manifestation of an individual’s religious beliefs, and the
countervailing public interests that might justify non-accommodation, including
harm to others. I will then apply a harm analysis to the examples of religious
clothing or symbols and religiously motivated refusals to serve others, consider to
what extent it supports the outcomes and reasoning in the four parts of Eweida
and Others, and recommend changes to the ECtHR’s existing case law which,
unlike the UK’s Equality Act 2010, has generally permitted neutral rules banning
all religious clothing or symbols. I should stress that I am making normative
arguments about how the ECtHR and national courts ought to interpret the
European Convention on Human Rights (ECHR), and am not presenting a
‘best understanding’ of the ECtHR’s existing case law.
I will focus on ‘accommodating a particular manifestation of the beliefs of a
religious individual’, as opposed to a religious organisation, which seeks to define a
particular space (place of worship, school, hospital) as a collective religious space,
and requests exemptions to prevent secular rules from entering and changing it.
In the case of a religious individual, the opposite occurs: the individual brings the
particular manifestation of their religious beliefs into a space that is otherwise
secular. The challenge for human rights law is to allow the religious individual
to participate to the greatest extent possible in public life, while ensuring that
particular manifestations of their religious beliefs do not have the effect of
imposing their beliefs on others.
Excluding religious organisations from my analysis makes no difference with
regard to clothing or symbols, because only an individual can physically wear
them all day wherever they go (rather than attach them to a wall). It does,
however, make a difference with regard to refusals to serve others. It is common
to grant religious organisations specific exemptions from anti-discrimination
legislation. I have discussed elsewhere the difficulty of drawing lines that provide
sufficient protection to the core activities of religious organisations, while not
excluding extensive opportunities in employment, education or services from
legal protection.5However, unlike the well-established and generous exemp-
tions enjoyed by religious organisations,6Eweida and Others raised, for the first
time in the ECtHR, the question of an obligation to grant an exemption from
anti-discrimination legislation to religious individuals working, not for religious
organisations, but for non-religious employers.
3 [2011] ECHR 2412 ( J).
4 I. Leigh and R. Adhar, ‘Post-Secularism and the European Court of Human Rights’ (2012) 75
MLR 1064.
5 See R. Wintemute, ‘Religion vs. Sexual Orientation: A Clash of Human Rights?’ (2002) U of
Toronto J of Law and Equality 125.
6 See Equality Act 2010, Sched 9, [2]–[3] (employment), Sched 11, [5] (schools), Sched 23, [2]
(organisations). cf Catholic Care vCharity Commission [2012] UKUT 395 (TCC) (no exemption
for religious adoption agencies).
Accommodating Religious Beliefs
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
224 (2014) 77(2) MLR 223–253

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