A new right among consensus, evolutive interpretation, and the margin of appreciation
PhD Student in “Law, Market and Person” University Ca’ Foscari of Venice
In a global context characterized by increasing religious diversity, issues concerning the interaction between law and religion are ever more present in international constitutional discussion. Requests to be awarded special accommodations or to be excused from having to obey secular laws in light of religion are becoming more frequent. This is observed especially in work environments where the desire to observe and express religious beliefs sometimes conflicts with employees’ job obligations.
In the recent case Eweida and Others v. the UK, the European Court of Human Rights faced four situations in which the employee asked to be accommodated for religious needs that were in conflict with the guidelines expressed by the employer. These instances occurred when a particular responsibility of the position contradicted the employee’s religious beliefs or practice.
The case is relevant for two reasons. First, Eweida and Others v. the UK is an important turning point in Article 9 jurisprudence. In fact, for the first time, the Court recognized that religious objections in the workplace can be protected as a manifestation of religion under Article 9 of the Convention. Second, it is interesting to note the particular reasoning that the Court applied, especially concerning the relationship between consensus, evolutive interpretation and the margin of appreciation.
The first applicant, Ms Eweida, formerly employed by British Airways, was dismissed because of her refusal to conceal her cross in breach of the company’s uniform code. The employer justified this measure with the wish to protect a certain corporate image; also in the case Chaplin v. the UK, the applicant, a nurse, was required to remove her cross necklace to reduce the risk of injury when handling patients. The third and the fourth cases (Ladele and McFarlane v. the UK) concerned a refusal to register the union of same-sex couples and to provide relationship counselling services to homosexual couples due to the applicants’ Christian faith.
The Strasbourg Court held that the applicant’s desire to wear a religious symbol at work, even if not mandated by the religion in question, was a manifestation of her religious belief in the form of worship, practice, and observance, and as such attracted the protection of Article 9. This is a departure from its previous case law, which suggested that freedom of religion was granted by the ultimate option to leave a job when it was inconsistent with an individual’s religious beliefs. In addition, Ladele’s and McFarlane’s conscientious objections relating to same-sex relationships fall within the ambit of Article 9 as a manifestation of their deep religious convictions and beliefs.
It is interesting to look at one aspect of the Court’s reasoning. The Court interprets the Convention through a dynamic and evolutive approach allowing it to consistently render its rights practical and effective. The Court usually refers to the presence of a consensus amongst the Contracting States to justify its reading of the Convention as a living instrument. In fact, the Court usually identifies a new right only after having observed the presence of a consensus among the States, meaning that the right was already recognized at the national level. Nevertheless, in this case, the Court does not mention any consensus to support the new interpretation of Article 9 of the Convention. In particular, the Court notes that the issue relating to wearing religious symbols at work continues to be unregulated in the majority of the States. Moreover, a comparative analysis is totally absent with regards to the issue of religious objection in the workplace. Consequently, it seems that the Court recognized a new right without a consensus. It would be interesting to know which other factors the Court took into consideration to reach its conclusion.
Moreover, in Eweida and Others v. the UK, the doctrine of the margin of appreciation played a crucial role. This could be described as the room for discretion accorded to the Contracting States on how to interpret and enforce the Convention. When determining the scope of this margin, the Court usually refers to the existence or non-existence of a consensus among the Contracting States. If the Court finds that the States’ regulations converge in a particular field, the margin granted to the States will be narrower. Furthermore, the Court refers to the concept of the margin of appreciation not only for the recognition of a right, but also to balance it with all interests involved once the right has already been recognized.
In the Eweida case, the Court held that the employer’s wish to protect the corporate image was legitimate, but the State had accorded it too much weight compared to the applicant’s right to manifest her religious beliefs, which is a fundamental right in a democratic society. On the contrary, in the Ms. Chaplin case, the Court held that the State had struck a fair balance between the applicant’s right to manifest her religious belief and the desire to protect the health and safety of others, an aim that “was inherently of a greater magnitude than that which applied in respect of Ms Eweida”.
The Ladele case could be considered even more interesting; the Court seems to have used an emerging consensus to include the need for the legal protection of same sex couples in the balancing exercise. In fact, the Court accorded a wide margin to the State to balance the right of religious objection with the right of gay couples not to be discriminated against, in particular referring to the need of legal protection for homosexual relationships. Although the Court has not yet identified an obligation to provide for the legal recognition of same-sex couples, it has repeatedly affirmed that same-sex couples have an interest in obtaining this protection. The Court has noted that the practice in this regard is still evolving across Europe, but there is an emerging European and global consensus towards legal recognition of same-sex couples. Even if this consensus cannot yet be established, it is a goal the Court aims to reach. Consequently, when a State decides to grant this protection, that need falls within the protection of the Convention and the State has to assure it. The emerging consensus entitles the need to enter into the balance with other competing Convention rights. Therefore, the Court granted a wide margin of appreciation to the respondent State to strike the fair balance between the right of religious objection and the rights of same-sex couples. For this reason, one could read the margin of appreciation in the Ladele case as a way of balancing the conflicting rights granted by the European Convention of Human Rights.
 ECHR, Eweida and Others v. the UK, Application nos. 48420/10, 59842/10, 51671/10, and 36516/10, 2013.
 Eweida and Others v. the UK, supra n.1, at para. 89, 97. In particular the Court considers that “Ms Eweida’s insistence on wearing a cross visibly at work was motivated by her desire to bear witness to her Christian faith” and […] that “Ms Eweida’s behaviour was a manifestation of her religious belief, in the form of worship, practice and observance, and as such attracted the protection of Article 9”. The Court reached the same conclusion in Ms Chaplin’s case; the “applicant’s determination to wear the cross and chain at work was a manifestation of her religious belief and […] the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion”.
Eweida and Others v. the UK, supra n.1, at para. 108: “The Court accepts that Mr. McFarlane’s objection was directly motivated by his orthodox Christian beliefs about marriage and sexual relationships, and holds that his refusal to undertake to counsel homosexual couples constituted a manifestation of his religion and belief. The State’s positive obligation under Article 9 required it to secure his rights under Article 9.”
 Eweida and Others v. the UK, supra n.1, at para. 99.