Posted on by Mark Movsesian · 1 Comment

State Court Says Orthodox Jewish Prenup Is Constitutional: Husband Must Give Get

We’re a little late getting to this, but the Jewish Daily Forward reports on a recent Connecticut trial court’s decision to enforce a prenuptial agreement that requires a husband to grant his wife a religious divorce under Jewish law. The prenup between two Orthodox Jews, Rachel and Eben Light, provides that, in the event the couple divorce, Eben must give Rachel a get, or ritual document recognizing the divorce in Jewish law. In fact, the prenup has a liquidated damages clause: for each day Eben refuses to give the get, he must pay Rachel $100 in damages. As of today, the damages may exceed $100,000.

The Connecticut court held that the prenup does not violate the Religion Clauses. Although there have been other cases enforcing Jewish prenups, this is apparently the first recorded case in which this particular prenup, drawn up by the Beth Din of America, a major Jewish-law arbitration tribunal,  has been enforced in the civil courts. The decision will be appealed. 

Posted on by JCPW

Helfand on Implied Consent and the Contraception Mandate

Michael Helfand (Pepperdine University School of Law) has posted What is a ‘Church’?: Implied Consent and the Contraception Mandate. The abstract follows.

This Article considers the “religious employer” exception to the “contraception mandate” – that is, the “preventative care” requirements announced by Department of Health and Human Services pursuant to the Patient Protection and Affordable Care Act. This exception has triggered significant litigation with a variety of employers claiming that they have been excluding from the “religious employer” classification in violation of both the First Amendment and the Religious Freedom Restoration Act. In considering these claims, this Article applies an “implied consent” framework to these cases, which grounds the authority of religious institutions in the presumed consent of their members. On such an account, consent can be assumed so long as members understood the unique religious objectives of the institution when they joined, thereby implicitly authorizing the institution to make rules related to accomplishing these uniquely religious objectives. Building on this implied consent framework, this Article argues that the First Amendment should protect institutions from the requirements of the contraception mandate so long as these institutions were both organized around a core religious mission and where that religious mission was open and obvious to employees. In such circumstances, courts should presume that employees recognized the unique religious objectives of their employer and thereby implicitly authorized their employer to make rules related to achieving these religious goals.

Posted on by Marc O. DeGirolami

Predictably Unpredictable: Thoughts on the Free Exercise Clause

I want to talk to you about the Free Exercise Clause of the Constitution.  This post is long.

My view of the Free Exercise Clause is one part of a larger approach to The Tragedy of Religious Freedomconstitutional adjudication involving the religion clauses.  For those who have been thirsting feverishly to know more about that approach, fear not: soon enough, I will flood the zone.  Suffice it for now to say that one of the most serious criticisms of my approach is that it is insufficiently predictable.  It is sometimes said, not without reason, that my approach is not rule-like enough, and that it is therefore damaging to rule of law values.

These are fair criticisms, and I do my best to address them.  I do this in part by taking a close look at the way in which a selection of district and intermediate appellate courts have applied that putatively most rule-like of all religion clause rules: neutral laws of general application do not violate the Free Exercise Clause.

What I find is: that rule is not nearly as inviolable as many who invoke it believe.  In fact, knowing when that rule will apply actually depends on having the sense of a host of context-dependent and issue-specific factors.  The trouble, as I have explained before, is the issue of general applicability.  Employment Division v. Smith carved out the unemployment compensation cases from its holding.  But, per this amicus brief, it is more accurate to think about this carve-out not as an “exception” but as a corollary to the rule itself, which creates a kind of graduated spectrum of general applicability. Laws which are not “generally applicable” are lifted out of the Smith “rule” and receive judicial balancing.  How do we know when a law is not “generally applicable”?

It falls to courts to determine what “generally applicable” means along the spectrum.  It cannot mean that the law has no exceptions, period; that would destroy the rule.  And yet “generally applicable” must mean something.  What it means is the subject of judicial interpretation–for now, very much in the common law style.  And that means that the Smith rule is much less predictable than its supporters suppose: “If the vice of pluralistic approaches is that they are predictable only to those who know how they will be applied, that is no less true of monistic approaches.”  Chapter 8, The Tragedy of Religious Freedom.  That is not enough, by itself, to convince you to adopt my approach.  For that, you need to buy the book!

Here is a brand new HHS Mandate case to show the predictable unpredictability of Smith, Geneva College et al. v. Sebelius, decided Wednesday by the U.S. District Court for the Western District of Pennsylvania.  The case is somewhat unusual inasmuch as the plaintiffs are both nonprofits and for-profits.  The nonprofits’ case was dismissed on standing grounds (only the Eastern District of New York, to my knowledge, has not followed this route for nonprofits).  As to the for-profits, after discussing the issue of a corporation’s exercise of religion and the RFRA claim, the court rested its decision to deny the motion to dismiss with respect to plaintiffs’ free exercise decision on an analysis of the issue of general applicability.  Here’s a substantial chunk of the decision, beginning around page 46:

There is little doubt that the mandate’s requirements are facially neutral in the sense that they are directed toward benefiting the public health, and are not explicitly targeted at any particular religious conduct. The court’s analysis, however, must extend beyond the face of the regulations in question. The Court of Appeals for the Third Circuit has acknowledged that

the Free Exercise Clause’s mandate of neutrality toward religion prohibits government from ‘deciding that secular motivations are more important than religious motivations.’ . . . Accordingly, in situations where government officials exercise discretion in applying a facially neutral law, so that whether they enforce the law depends on their evaluation of the reasons underlying a violator’s conduct, they contravene the neutrality requirement if they exempt some secularly motivated conduct but not comparable religiously motivated conduct.

Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 165-66 (3d Cir. 2002). The process of implementing the objected to requirements has been replete with examples of the government impermissibly exercising its discretion by exempting vast numbers of entities while refusing to extend the religious employer exemption to include entities like SHLC.

The primary example of the “categorical exemption” rejected in Fraternal Order of Police in the present case is the grandfathering provision in the ACA, which exempts as many as 191 million entities from the mandate’s requirements. The grandfathering exemption impacts secular employers to “at least the same degree”—and likely far more—than religious objections from entities like SHLC. Blackhawk, 381 F.3d at 209. The fact that the government saw fit to exempt so many entities and individuals from the mandate’s requirements renders their claim of general applicability dubious, at best. Elsewhere in their briefing, defendants respond that the number of grandfathered plans will continue to decrease as time goes on. Even if this comes to fruition (which is not a certainty), the secular exemption for employers with fewer than fifty full-time employees that choose not to provide any insurance coverage remains. 26 U.S.C. § 4980H(c)(2)(A). Taken together, these categorical exemptions for secular entities and individuals raise a concern that the mandate’s requirements are not generally applicable.

In addition to the secular exemptions, the government continues to engage in an impermissible “religious gerrymander” by extending exemptions to an increasing number of religiously-affiliated entities. Although the court of appeals in Blackhawk and Fraternal Order of Police was not faced with the situation where, as here, some religious conduct is exempted, the fact that defendants continue to carve out exemptions, see generally 78 FED. REG. 8,456, while subjecting SHLC and other similarly-situated close corporate entities to the mandate’s requirements, raises a suggestion of “discriminatory intent” against close corporate entities seeking to advance the religious beliefs of their owners. Fraternal Order of Police 170 F.3d at 362. On the present record, this court finds that the Hepler plaintiffs raised plausible claims that the sheer number of exemptions—both secular and religious—to the mandate’s requirements burdened their free exercise rights to an extent sufficient to trigger strict scrutiny. The court already analyzed the mandate’s requirements under the compelling government interest test in the RFRA context and found that they do not survive strict scrutiny; therefore, for the same reasons, the First Amendment claim is sufficient, and the motion to dismiss this claim must be denied.

Let’s set to the side, for the moment, the issue of the proper interpretation of “general applicability.”  This court interpreted in a certain way; other courts, as I show, interpret it differently.

The problem with the “general applicability” issue isn’t that one court may decide a case in a way you might like, and another court may decide a different case in a way you might not.  The real burn of it is that the very unpredictability that Smith aimed to eliminate has seeped right back in.  No matter how rule-like Smith tried to be, it could not squeeze out of constitutional adjudication what is and must be true about it (at least as to issues like these).  And if the response is that we can solve all of this by clarifying Smith and making it even more rule-like, my reply is: the more you squeeze, the more slips through.

Posted on by Marc O. DeGirolami

The Best Legal Argument For Protection of For-Profits Under RFRA

Several people have asked me about the issue of the protection of for-profit corporations in the ongoing HHS contraceptives mandate controversy.  Generally, skeptics of such protection are apt to jump immediately to policy arguments — for example, “doesn’t giving religious liberty protection to for-profits threaten the rule of law?”

Set those policy arguments, which are certainly worth taking seriously, aside for the moment.  Instead, focus strictly on the legal arguments under the Religious Freedom Restoration Act.  The very best legal argument that I have seen so far that RFRA does, indeed, protect for-profit corporations is set out in this amicus brief filed on behalf of several US Senators in the Hobby Lobby litigation, authored in part by Kevin Walsh (Richmond), and which I was fortunate to have an early look at.  Whatever policy concerns one might have, it seems to me that the Administration’s categorical exclusion of for-profits in its current proposed rule, and its reliance on certain definitions in Title VII of the Civil Rights Act, just is not going to fly in the RFRA context.

Here is one important part of the brief (at 17-18):

In formulating RFRA, Congress heard testimony about the need for greater protection for the free exercise of religion by organizations as well as individuals . . . .  And Congress did not limit RFRA’s protections to individuals. Rather, Congress provided that “[g]overnment shall not substantially burden a person’s exercise of religion,” 42 U.S.C. § 2000bb-1(a), employing a term that ordinarily encompasses “corporations, companies, associations, firms,  partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1.

Rather than reach the obviously incorrect conclusion that RFRA does not extend to corporations at all, the district court created an exception from RFRA’s coverage for “secular, for-profit corporations,” incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1288, 1291-92 (W.D. Okla. 2012). The district court reasoned that “[g]eneral business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion.” Id. at 1291. But the same can be said of corporations that unquestionably are “persons” under RFRA, such as hospitals, universities, and religious orders.

In attempting to justify their failure to respect religious objections to the HHS mandate asserted by for-profit corporations, Defendants have observed that Congress has sometimes distinguished between nonprofit religious organizations and for-profit secular organizations. 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013) (discussing Title VII of the Civil Rights Act of 1964). This demonstrates that Congress can distinguish between for-profit and nonprofit employers when it wishes to do so. But Congress made no such distinction in RFRA, which applies broadly and generally, subject only to displacement by later enactments that relax its reach in specific areas. Congress plainly wrote RFRA to include corporations, and neither RFRA nor the PPACA excludes for-profit corporations.

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie: Denouement

Back in December, I wrote a couple of posts about “Psychic Sophie,” —  Part I and Part II — the “spiritual counselor” who was classified as a “fortune-teller” by Chesterfield County and in consequence was deemed to be violating various County zoning ordinances and a licensing requirement.  Psychic Sophie’s free speech, free exercise, and RLUIPA complaint was dismissed by the US District Court for the Eastern District of Virginia, and she appealed to the Fourth Circuit.

Things did not sound very good for Psychic Sophie at oral argument, and, as Kevin Walsh reports, the Fourth Circuit affirmed the grant of summary judgment for the County today.  From Kevin’s post about the opinion:

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

The problem of the legal definition of religion only occasionally vexes courts, and the Supreme Court has never said anything definitive about it for constitutional purposes (Yoder may offer “guidance,” as the court says, but its guidance is not definitive — and I don’t mean that in the least as a criticism ofYoder).  Judge Arlin Adams’s Third Circuit concurring opinion in Malnak v. Yogi many years ago is certainly worth reading as a classic period opinion of the late 1970s on the subject, but it seems to me that the Fourth Circuit’s approach is quite different (different times).

One final note.  Writing for the panel here, Judge Duncan said this: “Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convinctions, as to allow otherwise would threaten ‘the very concept of ordered liberty.’  Yet [she] forswears such a view when she declares that instead of following any particular religion or organized recognized faith, she ‘pretty much goes with [her] inner flow, and that seems to work best.'”  But, taking care not to “belittle” Psychic Sophie’s beliefs, the court seems to hold here that a self-referential religion of one will not receive protection under the Constitution or RLUIPA.

Perhaps the “Eisenhower principle” has its limits.

Posted on by Marc O. DeGirolami · 2 Comments

Sixth Circuit Dismisses Anti-Religion Sign Suit

In a very interesting opinion, Freedom From Religion Foundation v. City of Warren, the Sixth Circuit ruled yesterday that the City of Warren, Michigan, could retain its yearly holiday display (which includes “a range of secular and religious symbols–a lighted tree, reindeer, snowmen, a ‘Winter Welcome’ sign and a nativity scene), located in the atrium of its civic center between Thanksgiving and New Year’s, without also being compelled to display the following:

At this season of
THE WINTER SOLSTICE
may reason prevail.
There are no gods,
no devils, no angels,
No heaven or hell.
There is only our natural world,
Religion is but
Myth and superstition
That hardens hearts
And enslaves minds.

Placed by the Freedom From Religion Foundation
On Behalf of its State Members
ffrf.org

State/Church
KEEP THEM SEPARATE
Freedom From Religion Foundation
ffrf.org

In his opinion for a unanimous panel, Judge Sutton held that (1) the display does not violate the Establishment Clause because the nativity scene is accompanied by other secular and seasonal symbols; and (2) the display is “government speech” and therefore does not violate the Freedom From Religion Foundation’s free speech rights by refusing to add its anti-religion sign.

Judge Sutton carefully grounded the court’s Establishment Clause holding in the Supreme Court’s holiday display cases–Lynch v. Donnelly and County of Allegheny v. ACLU: “If the multi-purpose, multi-symbol Pawtucket and Allegheny County displays did not offend the Establishment Clause, then neither does the Warren display. The Warren exhibit parallels the Pawtucket one and is less faith-centered than the permitted Allegheny County exhibit.”  He rejected FFRF’s claim that the city’s refusal to display the anti-religion sign demonstrated  a “lack of neutrality between the secular and the religious.” He argued that all of the symbols in the display but one were secular, offering the following interesting discussion:

Some of these symbols allegedly are rooted in pagan traditions . . . . Some are connected to the winter season.  And some embody the most commercial features of the holiday season.  But none of these secular symbols has roots in any one faith or in faith in general.  Look through the Old and New Testaments, even we suspect in their original languages, and you will not find any references to these symbols. It may be true that many of these symbols have become connected to European and American celebrations of Christmas over time, some through the happenstance of the time of year at which the holiday falls (at least in the western part of the Northern Hemisphere) and some through stories written and read over the years. But that did not suffice to invalidate the equivalent display in Lynch; it does not suffice here.

The composition of displays used to commemorate holidays and seasons, moreover, is not static. The breadth of symbols included in the Warren exhibit reflects not just the demands of the Establishment Clause but also the demands of democracy in an increasingly pluralistic country. That presumably is why some cities no longer have such displays, why others have made a point of featuring symbols connected to other faiths (Warren had a Ramadan sign one year) and why a city like Warren would include words conspicuously ungrounded in any faith (“Winter Welcome”). Even the most faith-inspired phrases have taken on secular connotations over time. When one neighbor greets another in mid-December with “Happy Holidays,” it is the rare person who hears “Happy Holy Days.” See Webster’s New International Dictionary 1188 (2d ed. 1950).  What was once the most religious of invocations has become one of the most faith neutral, even secular. One indeed can fairly wonder who has co-opted whom over time with these displays and words. But that is a matter for another day. The key lesson of Lynch and Allegheny County is that a city does not run afoul of the Establishment Clause by including a creche in a holiday display that contains secular and religious symbols.  Warren readily meets that test.

Judge Sutton also rejected FFRF’s claim that certain isolated remarks in a letter written by the Mayor of Warren was proof of the City’s non-neutrality.  And then he said this about a strict separationist approach to the Establishment Clause:

A strict separationist perspective might suggest that the Mayor got carried away when he said that “our country was founded upon basic religious beliefs” and added a few other like-minded sentiments. Id. But the Establishment Clause does not demand strict separation between church and state in governmental words and deeds, even if that were somehow possible. The Mayor indeed could have been more forceful on the point and quoted the Supreme Court in the process: “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). If the Court may say this about American government and if Congress may enact a law devoted to spiritual matters and called the Religious Freedom Restoration Act, all without violating the Establishment Clause, see Wilkinson v. Cutter, 544 U.S. 709, 712–14 (2005), surely the Clause does not stand in the way of the City’s winter solstice-free display and the Mayor’s explanation for it.

It may be true that the Mayor misapprehended the Religion Clauses when he implied that atheists receive no protection from them by saying that the Foundation’s “non-religion” was “not a recognized religion.” In this respect, the Mayor, apparently untrained as a lawyer, may not have missed his calling. The Religion Clauses, it turns out, do protect the religious and nonreligious. Wallace v. Jaffree, 472 U.S. 38, 52–54 (1985). But this defense of his actions, premised on a misreading of precedent, does not transform his actions or the City’s display into an establishment.

Posted on by Marc O. DeGirolami

The Second Circuit’s Establishment Clause Jurisprudence of Desire

The Second Circuit has upheld the decision of a public school to forbid a student from closing a middle school speech with the following: “As we say our goodbyes and leave middle school behind, I say to you, may the Lord bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.”  The student sued on free speech grounds, and the court concluded that though the restriction was content-based, because the standard in public schools is deferential to the school (“reasonably related to legitimate pedagogical concerns”), and notwithstanding the school’s need to come up with an “overriding” state interest, the school had done so here.

What was that “overriding” state interest “reasonably related to legitimate pedagogical concerns”?  It was the school’s “desire to avoid violating the Establishment Clause.”  But this was a student’s own decision, uninfluenced by the school (indeed, opposed by the school).  That did not matter.  So long as the government “desires” to avoid an Establishment Clause violation — whether the “desire” corresponds with what the Establishment Clause actually proscribes or not — that is sufficient to overcome what might otherwise be an actual violation of a constitutional right (irrespective, I take it, of anybody’s desires).  But desires are tricky.  People desire all sorts of things; sometimes those desires are constitutional, sometimes not, but I can’t think of another context in which a constitutional dispute really depends so heavily on the desires of one of the parties, whether or not those desires correspond to actual realities.  But why not be more forthright?  This decision has nothing to do with the Establishment Clause.  It has to do with the school’s desire not to permit the religious language of the student’s speech.  So why is it necessary to bloat the Establishment Clause this way?  But the endorsement test put us on the path of Establishment Clause “desires” and “appearances” long ago.

Posted on by Marc O. DeGirolami

New York Court Dismisses Breach of Contract Suit Under Ministerial Exception

In New York’s first application (and extension) of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a state court has dismissed a wrongful termination law suit filed by an ordained minister of the United States Methodist Church and a former employee of the General Commission on Christian Unity and Interreligious Concerns (GCCUIC), an arm of the Church devoted to ecumenical work.  The Book of Discipline of the Methodist Church set out the plaintiff’s job responsibilities, which included interfaith dialogue as well as proselytism.  It also stated that those in the plaintiff’s position:

shall be persons who model themselves after the servanthood of Jesus Christ. They shall be persons of genuine Christian character who love the Church and are committed to the oneness of the body of Christ, are morally disciplined and shall uphold the doctrinal and ethical standards of The United Methodist Church as set forth in the Doctrinal Standards and Social Principles, and are competent to administer the affairs of a general agency[.]

The plaintiff was fired, it seems, after a falling out with his superior.  He claimed that he was wrongfully terminated and that Hosanna-Tabor did not apply because his job was secular.  Though the court recognized that Hosanna-Tabor did not extend to breach of contract or tort actions, it disagreed.  Here is a good chunk of the court’s thorough analysis, which engages in very much the sort of particularist methodology laid out in Hosanna-Tabor as necessary to understand the nature of the employee’s position:

Unlike Hosanna-Tabor, it is undisputed that Mills is an ordained minister. He has several years of religious education and held ministerial positions before and after his employment with the GCCUIC. Pursuant to Hosanna-Tabor, the fact of his ordination is relevant to this inquiry. Nonetheless, Mills argues that the ministerial exception does not apply because his job duties with the GCCUIC were wholly secular. For the following reasons, this Court disagrees.

In Hosanna-Tabor, the Court noted it was relevant that “significant religious training and a recognized religious mission underlie the description of the employee’s position” (id. at 708). The GCCUIC required candidates for the Associate General Secretary position be “persons who model themselves after the servanthood of Jesus Christ” with a masters level education in theology, experience with ecumenism and interfaith relations, and “[t]heological acumen.” Therefore, it is evident that the position requires “significant religious training.”

As to whether “a recognized religious mission underlie[s] the description of the employee’s position,” the record indicates that the focus of the Associate General Secretary position is to “promote and further theological dialogue with other Christian Communications and interfaith partners” and to promote the purposes of the GCCUIC. Mills characterizes the purposes of the GCCUIC as “to advocate and work toward the full reception of the gift of Christian unity and to strengthen relationships with other living faith [sic] and to dialogue with persons of other faiths, cultures and ideologies” (Opp. Mem. at 2-3).2 Despite Mills’ arguments to the contrary, these are clearly religious purposes and a “recognized religious mission” underlies his job description.

Similar to the manner in which Hosanna-Tabor “held Perich out” as a minister, the GCCUIC held Mills out as a minister by classifying him as a ministerial employee and designating him as a clergyperson assigned to an “extension ministry.” Mills held himself out as a minister by claiming the housing tax exemption and presenting himself as a minister while conducting official GCCUIC business, and by wearing his collar and ministerial attire during business travel.

Pursuant to Hosanna-Tabor, even if Mills performed primarily secular duties, the ministerial exception will apply if his job duties “reflected a role in conveying the Church’s message and carrying out its mission.” The record indicates that Mills acted as a representative of the GCCUIC and The Methodist Church by participating in ecumenical dialogues with a variety of interfaith organizations and ministries where he “articulat[ed],” communicated, and interpreted the “perspectives positions, traditions” and the history of The United Methodist Church. During the course of his employment, he also wrote and published a variety of ecumenical writings and presentations which he touted as professional accomplishments in at least one performance review with the GCCUIC. On at least one occasion, he performed ministerial duties when he “preach[ed] during the Week of Prayer for Christian Unity.” Given all of these factors, it is clear that Mills had a role in conveying the Church’s message and carrying out its mission.”

Furthermore, adjudication of Mills’ claims would require this Court to interpret various sections of the Book of Discipline, a constitutionally questionable endeavor at best, given the religious nature of the text. Specifically, this Court would be obliged to examine Mills’ behavior and determine whether his termination was justified under paragraph 711 of the Book of Discipline which enumerates reasons that an Associate General Secretary may be terminated. Because New York law does not have legal standards for “immoral conduct” or “breach of trust,” there is no basis in law for this Court to determine whether Mills violated these provisions.

The case is Mills v. Standing General Commission on Christian Unity (No. 601640/2009, Jan. 29, 2013).

Posted on by Mark Movsesian

European Court’s Judgment in UK Religious Freedom Cases: A First Read

Today, a chamber of the European Court of Human Rights announced its decision in the highly-anticipated Eweida and Others v. United Kingdom, a group of four consolidated cases brought by British Christians who alleged that the UK had violated their religious freedom under the European Convention on Human Rights. From the claimants’ perspective, the outcome was, at best, mixed: the chamber ruled in favor of only one of the four claimants. With respect to the other three, the chamber accepted the government’s argument that important countervailing interests, including the protection of gay rights, outweighed concerns about religious freedom.

The claimants alleged that their employers had violated their religious freedom by disciplining them for manifesting their Christian beliefs. Nadia Eweida, a British Airways employee, and Shirley Chaplain, a hospital nurse, complained that their employers had forbidden them from wearing cross necklaces at work. Lillian Ladele, a public registrar, lost her job when she declined, out of religious conviction, to officiate at civil partnership ceremonies for same-sex couples. Gary McFarlane, a psychotherapist, was fired by a sex counseling service because of his objections to providing sexual advice to same-sex couples. British courts had ruled against all four claimants, who then applied to the European Court for relief.

I won’t get into the details of the analysis here, but, briefly, the European Convention provides that individuals have the right to manifest their religious beliefs, but that governments may limit that right if necessary to protect important countervailing interests, such as public health and “the protection of the rights and freedoms of others.” With respect to the first two claimants, the chamber held that Read more

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.