Posted on by Mark Movsesian

ECtHR to Issue Ruling in UK Religious Freedom Cases Tomorrow

Tomorrow, a chamber of the ECtHR will release its judgment in Eweida and Others v. United Kingdom. As we explained back in September, when the cases were argued, the ECtHR’s ruling could have a major impact on religious freedom jurisprudence under the European Convention on Human Rights:

The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

CLR Forum will have an analysis of the judgment later this week.

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Ten Napel on An Alternative Approach to Limiting Government Religious Displays in the Public Workplace

Hans-Martien Ten Napel (Leiden Law School) has posted Beyond Lautsi: An Alternative Approach to Limiting the Government’s Ability to Display Religious Symbols in the Public Workplace. The abstract follows.

One of the central ideas underlying the chapter is that the questions regarding the limits of the government’s ability to display religious symbols in the public sphere, and how judges should deal with the manifestation by citizens of religious symbols in public institutions, are closely interrelated.

First, the Chamber and Grand Chamber judgments in the Lautsi case and several related cases in the Italian context will be discussed. Next, two prototypical reactions will be described: one (Mancini’s) agreeing with the Chamber judgment; the other (Weiler’s) agreeing with the Grand Chamber judgment. Finally, after a brief comparison with U.S. case law, an alternative approach inspired by the concept of positive secularism is sketched as a possible way out of this deadlock. This concept has recently been defended in the report of The Consultation Commission on Accommodation Practices Related to Cultural Differences (CCPARDC), which was responsible for analyzing the challenges posed by a new migratory situation in Québec, Canada, among others. The chapter ends with a conclusion.

Posted on by Mark Movsesian

Blasphemy in Greece

Here’s an interesting report from NPR on two recent prosecutions for the crime of blasphemy in Greece. In the first, the government brought a blasphemy charge against the poster of a Facebook page that mocks a famous Orthodox monk; the government has since dropped the blasphemy charge but has maintained a prosecution for the separate crime of “insulting religion.” In the second, the government is prosecuting the producers of a Greek translation of Terrence McNally’s Corpus Christi, a play that depicts Jesus and his disciples as a group of gay men in Texas.

Most European states have abolished the crime of blasphemy. The UK did so in 2008. Nonetheless, the European Court of Human Rights has held more than once that states may criminalize blasphemy in order to protect human dignity — that is, in order to protect the religious sensibilities of listeners from gratuitous and substantial offense. States can’t ban all criticism of religion, of course, only criticism that is insulting or abusive. Obviously, this is not an easy line to draw. In the US, in fact, the Supreme Court has suggested strongly that blasphemy laws are unconstitutional, in part because of the line-drawing problems.

What about the Greek prosecutions in these cases? I can’t read Greek, but the Facebook page in question, which you can access from the NPR story, seems more tongue-in-cheek than anything else. I’m not surprised the government dropped the blasphemy prosecution, though, of course, the prosecution for “insulting religion” continues. The Corpus Christi case seems closer to those in which the European Court has allowed blasphemy prosecutions in the past. In the 1990s, the court allowed Austria to ban a film that depicted sexual tensions between Christ and the Virgin Mary, and allowed the UK to ban a film depicting the vision of St. Theresa of Avila in erotic terms. So the Court might be inclined to allow prosecution in the Corpus Christi case, too, if the case ever reaches Strasbourg. Then again, Greece doesn’t stand so high in the opinion of European institutions these days.

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Marinović and Jerolimov on the State and Minority Religious Communities in Croatia

Ankica Marinović and Dinka Marinović Jerolimov (Institute for Social Research, Zagreb) have posted What about Our Rights? The State and Minority Religious Communities in Croatia: A Case Study. The abstract follows.

In December 2007, three registered minority religious communities in Croatia took a discrimination case against the Republic of Croatia to the European Court for Human Rights (ECHR) in Strassbourg. This paper documents the entire case, from the public announcement of the lawsuit to the final decision of the ECHR, which ruled in favour of the three religious communities. In a broader sense, this case study deals with church-state relations in Croatia and points to some important consequences of the case for religious rights, religious freedom, and governing by the rule of law in Croatia.

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Pei on Burqa Bans and the European Court of Human Rights

Sally Pei (Yale University Law School) has posted Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights. The abstract follows.

Over the past decade, Europe has been the site of strident debates over integration and Islam. One major pole of controversy is the trend toward enacting legislation to prohibit Islamic veils from public places. Laws banning face coverings, already in force in France and Belgium, are under consideration in a number of European countries, including the Netherlands, Italy, and Switzerland. The laws raise fundamental questions about what it means to be French, Belgian, Dutch, or indeed European. But the bans are of special interest for another reason: They provide a likely testing ground for the nascent nondiscrimination jurisprudence of the European Court of Human Rights (“the Court”), and a potential opportunity to bolster legal safeguards against discrimination at the regional level.

The laws might seem to invite an obvious challenge on the grounds that they deny the right to religious freedom guaranteed by Article 9 of the European Convention. But previous cases addressing restrictions on religious dress have sharply narrowed that avenue for redress. This Comment argues, however, that Article 14 nondiscrimination claims can fill that void. The Court’s Article 14 jurisprudence has long been criticized for its limited scope and application, but a recent line of cases in the education context evinces the emergence of a new doctrinal approach to discrimination. Properly applied and reinforced, that case law could mature into a general analytical framework for addressing the claims likely to arise from anti-burqa legislation and other discriminatory measures.

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Today’s Argument at the ECtHR: Highlights

Today in Strasbourg, a chamber of the European Court of Human Rights heard oral argument in four consolidated cases from the United Kingdom: Chaplin v. UK, Eweida v. UK, Ladele v. UK, and McFarlane v. UK. The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

For an American watching the webcast on the ECtHR’s website, today’s hearing offered some surprises. First, the argument was about two hours long, and the judges waited patiently to the end before asking any questions. A note to our readers in Europe: in an American courtroom, the judges would have interrupted in two minutes! Substantively, the counsel for the UK, James Eadie, made some claims that strike an American lawyer as remarkably broad. For example, he argued that Article 9 does not even cover the practice of wearing crosses. Article 9, he argued, only protects religious practices that are “generally recognized” within a religion, and there is no consensus in Christianity that adherents must wear crosses. I’m not aware of any analogous principle in American law. In response to Eadie, Eweida’s attorney, James Dingemans, scoffed at the idea that a practice must be “generally recognized” or “scripturally Read more

Posted on by Mark Movsesian

ECtHR Broadcast of Hearing in British Christians’ Cases to Begin Shortly

This morning in Strasbourg, a chamber of the European Court of Human Rights held a hearing in four consolidated cases concerning religious freedom in Britain. The applicants are British Christians who allege that UK employment law does not sufficiently protect their rights to wear crosses at work and to refuse duties that, in the applicants’ view, condone homosexual activity. The court will post a broadcast of the hearing on its website shortly, starting at 2:30 pm local time. For the ECtHR’s press release summarizing the issues in these cases, follow the links here.

Posted on by Mark Movsesian

ECtHR Rules That Ban on Screening IVF Embryos for Genetic Defects Violates European Convention

A chamber of the European Court of Human Rights ruled yesterday that Italy’s ban on testing IVF-created embryos for genetic defects violates Article 8 of the European Convention on Human Rights. Italian law permits IVF in limited circumstances, but forbids pre-implantation testing of embryos; on the other hand, Italian law allows women to abort fetuses conceived through natural reproduction if the fetuses  have certain diseases, for example, cystic fibrosis. In the case before the chamber, an Italian couple who were healthy carriers of cystic fibrosis wished to conceive through IVF and to have all embryos tested for the disease before implantation. The chamber ruled that the Italian ban violated article 8’s grant of a right to respect for private and family life. The chamber rejected Italy’s argument that the ban was  justified, among other reasons, to avoid the risk of eugenic abuses. This was a legitimate aim, the chamber said, but the ban on pre-implantation testing seemed “disproportionate,” given that Italy allowed women to abort naturally-conceived fetuses that showed signs of the disease. In effect, Italy was requiring parents in the applicants’ position to conceive through natural means but then abort a fetus that showed signs of cystic fibrosis, a choice that would bring the parents only more anxiety and suffering. Italy’s IVF law is one of Europe’s most restrictive, a result, in part, of the influence of the Catholic Church. Italy has three months to appeal the chamber decision. The case is Costa and Pavan v. Italy (ECtHR, Aug. 28, 2012), available here (follow the link for the PDF).

Posted on by Mark Movsesian

ECtHR’s Grand Chamber to Hear Romanian Church Autonomy Case

The Grand Chamber of the European Court of Human Rights  has decided to review the judgment in Sindicatul Păstoral Cel Bun v. Romania, a significant church autonomy case. In the case, a group of Romanian Orthodox priests sought to register as a trade union. The Romanian Orthodox Church objected, arguing that registration would violate the Church’s autonomy, and a Romanian court agreed. In January, however, a  lower chamber of the ECtHR ruled that the European Human Rights Convention granted the priests a right to unionize even over their church’s objections (for details, see our discussion of the lower chamber’s reasoning).  Romania referred the lower chamber’s decision to the Grand Chamber, which has accepted the case. This is not the only important church autonomy case at the ECtHR these days. In May, a different chamber ruled, in Fernandez Martinez v. Spain, that the church autonomy principle allowed a Catholic bishop to fire a priest who had been teaching religion in Spanish schools. Here’s a press release about the Romanian case from the Becket Fund, which represents Romania and the Romanian Orthodox Church.

Posted on by Mark Movsesian · 2 Comments

Turkish High Court Rules Against Monastery; EU Voices Concern

Another blow for Christian minorities in the Middle East: last week, Turkey’s highest court ruled against the Mor Gabriel Syriac Orthodox monastery (left), the oldest functioning Christian monastery in the world,  in a long-running lawsuit brought by local villagers. The lawsuit accused the monastery of “anti-Turkish activities,” including the illegal occupation of land that allegedly belongs to the government. Most commentators have dismissed the merits of the lawsuit — among other things, the suit claims the monastery occupies the site of a pre-existing mosque, even though the monastery predates Islam by centuries — and the high court’s behavior during the litigation has not reassured people. At one point, for example, the court apparently “lost” the documents the monastery submitted in support of its claim. The monastery will now appeal to the European Court of Human Rights, which ruled against Turkey in a similar case involving the Greek Orthodox a while ago.  The EU, meanwhile, has expressed “serious concern” about the decision.