Religious freedom: Strasbourg's balancing act

http://www.guardian.co.uk/commentisfree/2013/jan/15/religious-freedom-strasbourg

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The quartet of devout appellants considered by Strasbourg on Tuesday might, putting it politely, be described as awkward customers. One, for example, was a man with anti-gay views who nonetheless enrolled on a diploma in psycho-sexual therapy which his employer laid on as preparation for coaching couples of all persuasions to overcome problems in the bedroom. If that sounds like a martyrish move, it was not the only one that the European court of human rights grappled with. Two others were employees bent not only on wearing but displaying crucifixes, one of whom rejected an equally paid alternative post in which one could freely have one's cross to bear.

Working around such faith-based impulses is certainly awkward. There is no clean divide between religiously rooted and other beliefs, and this is an area where asking questions will not reliably yield intelligible answers because – as case law cited in Tuesday's judgment puts it – within the sort of supernatural discourses involved "individuals cannot always be expected to express themselves with cogency or precision". So it is maddening to accommodate consciences that reject values such as gay equality, which are cherished by wider society. And yet, if we are serious – as we must be – about the freedom to believe, we must at least try to reconcile the two.

The big question is how to do so. Jesuitical past judgments about extending protection to such beliefs that "possess an adequate degree of seriousness and importance" are no guide, doing no more than begging the question. So what Strasbourg actually does, and all anyone can sensibly do, is weigh up competing interests and rights. The phraseology is different, but the European court's approach is reminiscent of the "reasonable adjustment" concept applied in disability rights legislation. It may be reasonable to require a ground-floor pub to install a ramp, but not to require a small top-floor bar to install a costly lift which would bankrupt it. In the same way, the judges considered how far employers had gone in accommodating pious staff, and weighed these efforts against the other necessary considerations.

Thus, for example, the Royal Devon and Exeter NHS Foundation Trust's concern about infections on its wards was unanimously deemed by the judges to qualify its duty to respect nurse Shirley Chaplin's wish to wear religious jewellery, and management's rejected suggestion that she could tie her cross to her staff ID lanyard was an adequate workaround. The judges all agreed, too, that the equalitarian counsellors at Relate could not be expected to accommodate the would-be discriminatory sex therapist. Two likened his lot to a man who "volunteers to join the army" and then expects "to be exempted from lawful combat duties on the grounds of conscientious objection". More contentious was the case of Lillian Ladele, the Islington registrar bent on not conducting civil partnerships. Two dissenting judges said she deserved to keep her job, pointing out that as no gay couple was turned away on account of one registrar not getting involved, the tangible rights of an individual were being unduly sacrificed to a fuzzier notion of collective inclusion. If we were dealing with a priest being forced to bless a partnership he disapproved of, that objection would be decisive. But coming from an official in a strictly secular registry office, an institution that largely exists to marry the divorcees the churches don't want, an avowed belief that marriage can only be lifelong union between a man and a woman is less weighty.

Last but not least, the judges defended BA air steward Nadia Eweida, whose cross flouted uniform rules. The court rightly ruled understandable corporate concern about presenting a smart front could never justify trampling on the rights of an individual conscience. The irony here is that this tabloid hero has found vindication in the tabloid bogeyman of the European court. Let us hope this does not go unnoticed. Balancing religious and other rights is horrible work, which somebody's got to do. Strasbourg reminded us Tuesday that it does it as well as anyone else.