Religion vs the Secular State
In Ebrahimian v France, the European Court of Human Rights has delivered a powerful blow against the individual’s right to manifest their religious beliefs.
Ebhrahimian was a social worker in the public sector. Her contract was not renewed when she refused to stop wearing religious headgear.
She lost her case. It was important, said EctHR, that the freedom of religion of her patients should be respected – and that meant that she should do nothing that might convey a particular religious world view to others.
I think it’s a surprising decision – although the reluctance of Europe’s judges to interfere with the discretion of member states is becoming more and more plain.
You may recall the case of Ms Eweida, a BA employee whose legal campaign for the right to display a cross became a cause celebre for the right to freedom of religion and belief.
In Eweida, ECtHR said this: “On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image.”
Yet in Ebrahimian the value of communicating the claimant’s “central tenet of her life” was trumped altogether by the nature of secular society in France.
The judgment is in French only, at present, but I’ve seen a translation of the single dissenting judge’s opinion and it includes this: “A principle of constitutional law or a constitutional ‘tradition’ may easily end up by being deified, thereby undermining every value underpinning the Convention.”
The point has elsewhere been made – if we must refrain from any manifestation of our religious views, must our public servants become nameless, identified only by initials? Since the perception of a patient might well be that “Mohammed” isn’t a Christian name, nor David a Hindu one.
Is the decision limited to France, with its constitutional guarantee of secularity?
I think not. If the ECtHR wants a level playing field (i.e. no manifestation by anyone) then that must apply with equal – or perhaps greater – force in a society where Christianity is an established religion (how else to protect minority rights?)
Europe’s jurisprudence has never been terribly easy to follow. In this case I suspect the baby has been thrown out with the bathwater.
Paul Scholey – Senior Partner
For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.
