How is Religious Freedom Protected when it Clashes with Other Rights

How is Religious Freedom Protected when it Clashes with Other Rights Presented by: Mr. Bowers Date: 2 December 2020 Accommodation Of Difference - September 1789 George Washington in letter to Annual Meeting of Quakers • "I assure you very explicitly that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify an permit". How Do Human Rights Protect Religious Believers? - Article 9 ECHR • (1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. • (2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Accommodation Of Difference - Lord Bingham in Denbigh High School [2007] 1 AC 100 • "The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance”. - Nehushtan & Coyle in Adentire, Religious Beliefs and Conscientious Exemptions in a Liberal State p125 • "A tolerant liberal state should not create an accommodating atmosphere for ideologies including religious ones that are unjustly intolerant and anti liberal by their nature". - Sahin v Turkey app 44774/98 paras 104 - 111 • The value of religious harmony and tolerance between opposing or competing groups and • Of pluralism and broadmindedness; • The need for compromise and balance; • The role of the state in deciding what is necessary to protect the rights and freedom of others and the permissibility in some contexts of restricting the wearing of religious dress. - Central Alberta Dairy Pool v Alberta Human Rights Commission (1990) 2 SCR 489 • The court set out "a non exhaustive list of criteria to be considered"; • Financial cost; • Disruption of a collective agreement, • Morale problems for other employees, • Inter changeability of workforce and facilities, the size of the employer and safety. - Gabrielle Caceres • "Reasonable accommodation aims at relaxing generally applicable rules in order to guarantee a more substantive equality in which the specificities of everyone are taken into account". Proportionality - Identify a legitimate aim on the part of the employer; - Find a rational connection between the aim and measure; - Check whether there are less restrictive means and then apply a balance. Conscientious Objection - Conscientious objection may include: • Refusal to perform abortion • Wear safety helmets • Work on religious day of rest • Receive or allow medical treatments • Perform compulsory military service • Using internet A Really Important Quartet - Eweida and others v. UK [2013] • Four people with quite different complaints • Good demonstration of challenges human rights law faces when addressing religious issues Do Human Rights Protect Religious Believers? A really important case - Eweida and others v. UK [2013] • In one sense, a big step forward: • Religious views must "attain a certain level of cogency, seriousness, cohesion and importance" (§81) • "... it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a "manifestation" of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9 § 1... In order to count as a "manifestation" within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. The existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case" Freedom Of Conscience (Article 14- Anti- discrimination) - Bull & Anor v Hall & Anor [2013] UKSC 73 • Christian hoteliers • Policy was to only let double-bedded rooms to married couples • Supreme Court found they had directly discriminated against two homosexual men in a civil partnership on grounds of sexual orientation What Would Be Gained By A Reasonable Accommodation Approach a) May allow a more individual approach based on the accommodation to the needs of that individual, whereas proportionality looks through a wider societal lens; and indirect discrimination requires group disadvantages. b) It addresses more barriers to participation of particular groups. c) There is no need for comparators as there would be in direct and indirect discrimination. d) May be easier for general public; This may lead to a more structured approach so that the employee asks for the specific accommodation and the employer says that is not reasonable in my circumstances so that... e) It would change burden of proof away from the claimant and provide a more transparent framework. f) It is individual based; it does not seek equality for the group to which he is a member; indirect discrimination is based on group disadvantage. It addresses the issues of group identification raised in Mba, Eweida and Chaplin in CA.