Defenders of religious freedom suffered a qualified defeat at the European Court of Human Rights today. 
Basically, the court found [1] in favour of one person’s right to wear a cross to work, against another worker’s right to do so, and against two workers who have a conscientious objection to homosexual behaviour.
The reason the defeat wasn’t much heavier is because a country can still protect the rights of religious workers against certain kinds of anti-discrimination legislation if it so desires.
The four people before the court – all English – were airline worker, Nadeia Eweida; nurse, Shirley Chaplin; marriage counsellor, Gary McFarlane; and registrar, Lillian Ladele.
Eweida and Chaplin both wished to continue wearing a cross to work. Ewedia was granted this right against British Airways because the court in Strasbourg ruled it clashed with no other overriding right and was protected under the European Convention on Human Rights.
However it found against the right of Shirley Chaplin to wear a cross at her workplace because the court believed that her employer was entitled to ban it on ‘health and safety’ grounds.
In the other two cases, Lillian Ladele had been dismissed from her job as a civil registrar because she did not wish to register civil unions between same-sex couples.
Gary McFarlane did not want to advise same-sex couples on their sex lives. He was also dismissed.
Ladele and McFarlane were ruled against today because the court decided that an employer was entitled to decide that other rights – the right not to be discriminated against in this case – are more important than the right to conscientious objection.
The only reason these rulings are not even more devastating from a religious freedom point of view is because the court left it up to individual countries within its jurisdiction (the members of the Council of Europe, a separate body from the EU) to decide whether to protect conscience rights and religious freedom or not.
To put it in more technical language, it decided that the Chaplin, McFarlane and Ladele cases fell within the ‘margin of appreciation’ which means member states of the Council of Europe have considerable latitude in deciding how the various provisions of the Convention apply to them.
This means that if a given country decided to protect the conscience rights and religious freedom of a McFarlane or a Ladele it could do so.
However, the decisions in respect of McFarlane and Ladele in particular are very worrying because they mean that individuals who believe in traditional sexual morality have fewer and fewer legal protections and are going to find themselves barred from an ever growing number of jobs.
PS. Incidentally, Judges Vucinic and De Gaetano dissented from the Ladele judgement. They said in their dissent:
“Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal – something which, even assuming that the limitations of Article 9 § 2 apply to prescriptions of conscience, cannot be deemed necessary in a democratic society”.