Should Courts Grant Conscientious Exemptions?

Should Courts Grant Conscientious Exemptions from Equality Laws as Judicial Remedy?

Freedom of conscience and religion is a fundamental right as stated in Article 9 of the European Convention on Human Rights[1]. The key issue here is that there is no explicit reference to conscientious objection, which leads to a clash of ideals between freedom of thought, conscience and religion – which may lead to individuals being permitted to discriminate against others – and the principle of equality, which can only be dealt with via conscientious exemptions granted by the court. Therefore the purpose of this essay is to determine whether equality prevails over freedom of religion and whether the courts should grant conscientious exemptions from equality laws.

Freedom of conscience and religion allows an individual to practice and change their religious or non-religious beliefs without interference from the government. However exercising one’s right to manifest their religion or belief can overstep the mark and be inappropriate, an example being the case of Lee v McArthur[2]. In this case, the appellants were appealing an earlier ruling which stated that the appellants directly discriminated against a customer by not supplying a cake decorated with the message “support gay marriage”. The court upheld the original decision and gave the ruling that the bakery did in fact directly discriminate against the customer as “it was a case of association with the gay and bisexual community and the protected characteristic was the sexual orientation of the community.” This was a landmark case as it featured many democratic and political principles such as the right to free speech, the right to manifest one’s beliefs, and the principle of equality. The ruling also proved that, on this occasion as well as many others, equality does take precedence over freedom of conscience and religion, and that the court believed granting conscientious exemption could not be justified.

The Equality Act 2010[3], in essence, is the statute that which places the limitations on the right to freedom of religion and one which all employers – especially ones which provide goods and services – must uphold. This is where the courts must show particular care as to defining the limits of freedom of conscience and religion as they must give particular regard to the legislation and its aim of protecting certain characteristics from discrimination – in particular, sexual orientation, and religious and non-religious beliefs. One example where equality came up against freedom of religion was in the case of Hall v Bull[4]. This is a case where a same-sex couple were refused a double-bedded room by Christian hoteliers. The ruling given by Lords Neuberger and Hughes was that the couple were in fact directly discriminated against as he hoteliers were “applying the criterion that their legal relationship was not that of one man and one woman”, a criterion that cannot be distinguished from sexual orientation. The fact that there are a number of cases with similar rulings is more evidence that freedom of religion will not be favoured above equality, suggesting that courts are unwilling to grant conscientious exemptions.

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Conscientious objection has been around for many a year now, as historically humanists and religious people alike have exercised their right to refuse military service at times of conscription. One of the many ways to protect freedom of conscience and religion is by the granting of conscientious exemptions, and it is also one of the many varieties of exemption that can be granted by law[5]. This raises the question as to why the courts have not done more to protect the right to freedom of conscience and religion and grant such exemptions from equality laws. There have been a number of cases where the courts have granted conscientious exemptions, as well as being opposed to it in others. The very first case where the issue of the applicability of Article 9 (freedom of thought, conscience and religion) of the Convention to conscientious objectors was in the case of Bayatyan v Armenia[6]. In this particular case, a Jehovah’s Witness was initially convicted of draft evasion and sentenced to prison for refusing to perform military service for conscientious reasons, which he then appealed to the European Court of Human Rights (ECtHR). The Court noted that a shift in the interpretation of Article 9 was necessary and that, being in the situation of the applicant, Article 9 was applicable to his case. The Court also noted that, by convicting the objector, Armenia had been in violation of Article 9 of the Convention.

The Ruling in the Bayatyan case was a significant step in the direction of granting conscientious exemptions in relation to the refusal of engaging in military service. However, it is still debated as to whether courts should grant conscientious exemptions in relation to non-military services. In the case of Eweida and others[7], the complainants ( E, C, L and M) complained that the domestic law of the United Kingdom failed to protect their right to manifest their religion. In the applications of E and C, the complainants refused to remove their respective crosses as they were committed to their Christian faith. Their respective employers did not allow them to remain in their positions, with E not allowed to remain in her post while visibly wearing the cross, and C being moved to a different post which then ceased to exist. L was employed by a local authority as a registrar or births, deaths and marriages. However, as a Christian, she believed same-sex civil partnerships were contrary to God’s law, and therefore refused to be designated as a registrar of civil partnerships, resulting in the loss of her job. M was employed by a private company with a policy of providing services to equally to opposite-sex and same-sex couples. However M refused to commit to providing counselling to same-sex couples, resulting in disciplinary proceedings being brought against him.

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The ruling given in the application of Eweida was that while the employer had a legitimate aim of wishing to project a certain corporate image, the domestic courts had given it too much weight[8]. However in C’s case, the judgement made was that interference with her freedom to manifest her religion was necessary in a democratic society and that there had been no breach of Article 9[9]. The reason for this was that asking her to remove the cross was of a greater magnitude than that applied in respect of E, since it was for the protection of health and safety. It was also noted that hospitals were better placed to make decisions about clinical safety than a court, especially one where no direct evidence was heard. The judgement given in the case of L was that there had been no breach of Article 14 in conjunction with Article 9 of the Convention as the local authority’s policy aimed to secure the rights of others, which were protected under the convention as well as L’s right to manifest her religion[10]. As in the case of M, the most important factor was that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. This then allowed the state authorities to benefit from a wide margin of appreciation, which was not exceeded. Therefore, the ruling was that there was no breach of Article 9, taken alone or in conjunction with Article 14 of the Convention[11].

The main issue with all applications within the particular case, as with many other cases, was striking the right balance between the right to manifest one’s religion and providing a service equally to everyone. Brian Barry is one theorist who holds the view that conscientious exemptions can rarely be justified and “that it is hard to steer a path between the position that doing (or avoiding) X is so important that all should do it, and the alternative position that people should be free to decide for themselves whether to X[12]. This suggests that a path must be found if freedom conscience is to be taken seriously. Even more evidence to suggest that freedom of conscience will not be taken seriously in court and that the principle of equality will always trump the freedom of thought, conscience and religion.

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The clash between the right to thought, conscience and religion and the principle of equality has been and will be continuing for a very long time. Early evidence suggests that equality does prevail, as domestic and European courts have shown in their judgements of many human rights cases. As with the majority of cases, the complainant is usually an employee who may have been given disciplinary action by their employer. The key issue was whether there is a fair balance in each particular case and whether or not there was a wide margin of appreciation. Each case has different set of facts and what must be known is the circumstances surrounding the facts of the case e.g. was there a policy within the company that restricts one to manifest their religion, can it affect the health and safety of others, and are there other colleagues who wear religious materials but were not disciplined. As courts have shown to be more towards equality, and the fact that one case is completely different to another, conscientious exemptions should not be granted as judicial remedy. However, whilst conscientious objection is as of now a right under Article 9 of the Convention[13] in relation to refusing to engage is warfare, it is still not explicitly stated so therefore such exemptions from equality laws should not be granted as judicial remedy.

Bibliography

Cases

Bayatyan v Armenia (2012) 54 EHRR 15

Eweida and others v United Kingdom (2013) 57 EHRR 8

Hall v Bull[2013] UKSC 73

Lee v McArthur [2016] NICA 39

Legislations

Equality Act 2010

EU Treaties

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 9

Books

B Barry, Culture and Equality (2001) 46, 50 (as cited in Yossi Nehustan, ‘Religious Conscientious Exemptions’ (2011) 30 Law and Phil. 143)

Journal Articles

Yossi Nehustan, ‘Religious Conscientious Exemptions’ (2011) 30 Law and Phil. 143


[1] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 9

[2] Lee v McArthur [2016] NICA 39

[3] Equality Act 2010

[4] Hall v Bull[2013] UKSC 73

[5] Yossi Nehustan, ‘Religious Conscientious Exemptions’ (2011) 30 Law and Phil. 143

[6] Bayatyan v Armenia (2012) 54 EHRR 15

[7] Eweida and others v United Kingdom (2013) 57 EHRR 8

[8] Eweida (n 7) [94-95]

[9] Eweida (n 7) [99-100]

[10] Eweida (n 7) [106]

[11] Eweida (n 7) [109-110]

[12] B Barry, Culture and Equality (2001) 46, 50 (as cited in Yossi Nehustan, ‘Religious Conscientious Exemptions’ (2011) 30 Law and Phil. 143)

[13] (ECHR) art 9 (n 1)

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