Elephants in courtrooms -3-: “Legitimate aims”

ECHR: office Strasbourg France

This is the third article on the European Court of Human Rights and judicial activism. To start with the conclusion: we have to get rid of this Court.

Not because everything these ladies and gentlemen say is equally nonsensical. But because of their judicial activism. Even more so because it suits so many politicians perfectly to be able to hide behind the authority of this Court in the context of their wish to establish some kind of world government as soon as possible.

My first article in this series was about the Pastafarianism ruling of the Dutch Council of State. Our Supreme Councillors of State ruled that Pastafarianism did not meet the definition of a true religion or philosophy of life. For substantiation of this, they referred to ‘European’ rulings that were supposed to deal with this definition, but did not actually do so. In the ruling that I am examining in detail here, it is only in passing and through references to yet other rulings, that something is said about the ‘definition’ of religions and philosophies that deserve that name.

In part two I mainly wrote about the not so European character of the European Court, the role and attitude of this Court and its judges.
Here, I address the most important of those rulings to which the Dutch Council of State referred in a questionable way.

Sweeping together

As an appendix, I attach a description of the four cases that were dealt with more or less jointly by these ‘European’ judges. In doing so, I have avoided jargon and double or triple denials. The sweeping together of these four cases is -incidentally- a special aspect of this ruling, which is not explained by the seven judges and which, partly for that reason, deserves extra attention. Two important similarities between these four cases stand out even on superficial reading:

  • All four people who had appealed (only!) British rulings in Strasbourg were Christians.
  • All four cases involved a conflict that the complainants (‘applicants’) had as employees with their employers.

From the descriptions in the ruling, the impression emerges that the cases were quite different in almost all other respects. The first and second twosome did have another clear similarity. The first concerned the visible wearing of a (Christian) cross at work, and the second involved the lackadaisical embrace of homosexuality.

That phrase ” lackadaisical embrace ” is, of course, mine. I use my own words because I do not suffer from misplaced awe of people based on their position, let alone their use of jargon. I judge people by their behaviour. In this case, that behaviour consists of expressing opinions, referring to the opinions of others and doing rulings.
There is no question of in-depth reflections.

Two different duos of judges considered it necessary to have their own views included in this ruling on four different, yet lumped together cases. I will not elaborate here on the remarkable fact that as a result only three of the seven judges agree with the full ruling.

Other similarities

The final rulings in the four cases are also not the same. The ladies and gentlemen also do not explicitly consider the question of how these matters actually correspond or differ and why (therefore) different rulings have been made. Because of those differences and similarities, you would expect fundamental considerations. The similarities between the cases mentioned are striking, but other similarities are politically more important. I focus on what is common in the rulings: what does that say about the underlying ideas, about the role, attitude and position of this Court. Three things stand out.

  • This Court does not seek the truth. It most certainly does not.
  • This Court does not shy away from writing about what they allow [!] state governments
  • This Court writes about ‘legitimate aimsof the employers in question. The remarkable thing about the use of the term ‘legitimate’ is that these jurists use this pre-eminently legal term here in the common sense of the word: ‘acceptable’, ‘just’ or something like that. It is even to be feared that they mean ‘a just cause’.

No truth-finding

With regard to the first point, this Court is not unique. After all, something similar applies to, for example, the Dutch Supreme Court: it uses cassation. What was cassation again? An Amsterdam law firm provided a clear description. I would call the last sentence piquant in this context:

A ruling given on appeal may be appealed in cassation to the Supreme Court. The Supreme Court does not reopen the case as to its substance. There will be no re-examination of the facts and the facts will not be determined anew. The Supreme Court only checks whether the court has correctly interpreted and applied the law and procedural rules, and whether a judgment is sufficiently substantiated. It is therefore only concerned with the rules of law. For this reason, not many cases lend themselves to cassation.

As much as that last sentence applies here, this ruling of the ‘European’ Court becomes especially clear in case number four. The man in question was fired because he feared that he might be less qualified to help some customers. He had given relationship therapy to lesbian couples to everyone’s satisfaction, but with help to homosexuals who struggled with directly sex-related questions, he foresaw problems. He was, as it were, ‘corrected’ by the court because he was said to have been discriminating. 

The strange thing is that this therapist’s original complaint was that he himself was discriminated against, that he was fired because of his Christian beliefs. Of course, in reality, each of the ‘counsellors’ working in this company has more difficulty with some couples than with others. There are bound to be some who have less trouble than their colleagues with couples who like SM, or with people with paedosexual tendencies. A counsellor in this company may also have difficulty with anal sex, regardless of whether they are same-sex or opposite-sex couples.

Perhaps ‘applicant’ McFarlane (4th case) shouldn’t have used the term discrimination! After all, using the term discrimination calls for waving tolerance flags and judicial activism. The seven in question used the clumsy unintentional pass to score a goal between the poor man’s own goalposts!

Indeed, Article 9 of the treaty the Court is dealing with here, is not about disadvancing (or advancing) people of a particular religion [2], but very explicitly about manifesting a faith.

These ‘Europeans’ rub that manifesting aspect under his nose. But unlike the ladies of case 1 and 2, with their christian crosses, this gentleman did not want to manifest his faith at all. Nevertheless, this Court also turns his case into a case on that issue.
Horrible.

Another painful aspect of that “not engaging in truth-finding” is illustrated in the description of applicant 1’s case, Ms. Eweida. In one place in the text it is mentioned that the complainant stayed at home, in another place that she was sent home. A rather important detail for banal reality. But for these rulings, the actual conduct of the employee and employer in question are of no importance at all!

What we allow

In cassation cases before our (Dutch) Supreme Court, (only) lower court judges are reprimanded. For example, nothing is said about police – or reporting officers. By this ‘European’ Court, only governmental authorities are reprimanded. Employers are not judged.

In the one case where the complainant was proven right (Mrs. Eweida, case 1), the employer did not have to pay, but the British taxpayer did. Five of the seven judges even considered that the complainant should not only be generously compensated for her expenses but was also entitled to damages …

Our Supreme Court does not consider it necessary to remind itself in its rulings how powerful it is. This ‘European Court’ does. Literally the ladies and gentlemen state that:

The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights.

One could also have written that the treaty left that space. This wording is used in the third case: the woman who preferred to leave the leading of ceremonies for gay marriages to her colleagues at the submunicipality. These colleagues felt that they were being offended by this. Of course, there were no complaints from gay couples. Who would want someone who disapproves of their celibrating event to play an important role at his or her party?

Rubbing in as ‘Legitimate aim’

Just like in the other cases, the Court emphasises here that the municipal district had a good reason to deal with applicant 3 as they did. The court also compares favourably with the British ‘Court of Appeal’, which stated that:

… once Ms Ladele was designated a Civil Partnership Registrar, Islington was not merely entitled, but obliged, to require her to perform civil partnerships.

In the first indication of this case, there is mention of marriage. Because of her religion, Mrs. Labele had difficulty in marrying two people of the same sex. In this ruling, however, it is not a question of marriage but of registered partnership. How is that possible? The Court’s ruling is really sloppy on this.

In December 2005 Islington decided to designate all existing registrars of births, deaths and marriages as civil partnership registrars. It was not required to do this; the legislation simply required it to ensure that there was a sufficient number of civil partnership registrars for the area to carry out that function. The question of whether the registered partnerships are now identical to (gay) marriages remains vague. Some other United Kingdom local authorities took a different approach, and allowed registrars with a sincerely held religious objection to the formation of civil partnerships to opt out of designation as civil partnership registrars.

The council of the submunicipality in question clearly did not only want to please the gays, but wanted to instill in those ‘registrars’ which views about (gay) marriage are the right ones. The judges of the European Court do establish that the district council should not have acted in this way, but indirectly wholeheartedly agree with the approach taken by this council. Namely, they state that the council pursued ‘legitimate aims’ and by that pursuit they mean the promotion of equal opportunities.

Perhaps it is due to my poor knowledge of the English language, but to me, the grouping of gay marriage under the denominator of (equal) ‘opportunities’ (!) seems rather crazy anyway. But even then: this ‘just cause’ does not concern the (institution of) gay marriage itself but the propagation, via the subordinates on the shop floor, of an ideology. In this case, the enthusiastic propagation of the idea that gay marriage is completely okay. Other ideas are, in Orwell’s words, expressions of wrongthink that must be banished.

The elephants and the silliness

The headscarf is the main elephant. Everyone understands that it is because of the headscarves that this ‘manifestation’-part IS in the human rights treaty. The clothes that are many times more prominent than the most striking Christian crosses ever were. The scarves that, if you know anything about the teachings of Mohammed, remind you of the explicit purpose of discrimination; discrimination between Muslim and non-Muslim women (Qu’ran verse 33:59). And then there is the help-elephant of the absurd concept of ‘positive discrimination’.

There was no question of any manifestation at all in cases 3 and 4. In case 1 and to a lesser extent in case 2, yes. Mrs. 1 was proven right. Otherwise, the elephant would have become very conspicuous, because of the absurdity of different, i.e. non-uniform, uniforms for Muslim women and men who follow the Sikh faith.

Mrs. 2 was not proven right because the argument of safety had been put forward before the cross ban. The Court certainly doesn’t question whether this isn’t actually an occasional argument. Has it been shown that a little cross dangling from a necklace is more dangerous than a hairpin that can fall out of your hair? True, some of the elderly patients in question have mental problems. They might pull on the Christian caregiver’s necklace. This is however not weighed against (for example) the question of whether the prescribed form of the Muslim veil -not a loose cloth but a “close-fitting “sports” hijab, resembling a balaclava helmet”- could not create unnecessary anxiety in that same category of patients.

In the workplace, manifestation of one’s own religiosity as such is just silliness. Those crosses never posed any problem, no friction even, before the Muslim women arrived with their headscarves. In all likelihood, the first two complainants would never have started protesting, let alone litigating, if they had not constantly seen headscarves around them that were allowed.
In fact, the Court itself simply writes that manifesting your faith at work is really just silliness. After all, you can also work somewhere else and you can manifest in all kinds of places other than at work that you are a true believer. But hey, everyone knows it: the Muslim headscarf. So that is why the Court adds that this would be too short-sighted: an acceptable trade-off must have been made …

Same-sex marriage in Russia

The difference between the cases on the crosses, on the one hand, and those on homosexuality, on the other, is enormous. The judges of this Court, however, simply, solemnly and firmly state:

1. Decides unanimously to join the applications [!].

Please let this sink in.

In the cases concerning homosexuality, judicial activism is considerably more painfully expressed than in the cross-cases. In all openness, they note that:

It has also held that same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship, although since practice in this regard is still evolving across Europe [sic], the Contracting States enjoy a wide margin of appreciation as to the way in which this is achieved within the domestic legal order.

So, these developments on gay marriage are still ongoing.
And please note: this is not a right laid down in the treaty this Court is supposed to monitor. In fact, only 15 of the 47 ‘European’ countries that participate in this Court, recognise same-sex marriage. In some of those other 32 countries, marriage as something between a man and a woman is even enshrined in the constitution! 

The judges of this Court are thus concerned with future developments as they see them unfolding…

NOTES:

1. The last one for now. I am writing ’for now’ because while studying and writing, the urge to write more articles increased.

2. As I wrote in my first article: a few centuries ago, the Dutch constitution had a very sensible and practical rule with regard to religious freedom: “No civil advantages, or disadvantages, are attached to the confession of any Ecclesiastical Doctrine System.” No mention of the strange concept of discrimination and because of that verb ‘attach’ it is also clear that this concerns favouring or disadvantage by the government only. That part is added a few decades ago on the initiative of the Communist Party in the Netherlands (who later merged with the Greens).

APPENDIX

‘Applicant 1’ Eweida (also namesake of the ruling), adheres to the Coptic faith. She moved from Egypt to GB when she was 18. She works for British Airways, not a public company. B.A. did no longer allow her to wear her cross visibly, as it did not fit into new ‘uniform’ regulations. Uniform in quotation marks, because for Muslim women the possibility was explicitly created to wear their ‘own uniform‘: including ‘hijab’ in company colours. As is often the case in cases like this, there was also an arrangement for a ‘uniform’ for male Sikhs: they were allowed to wear a turban. Eweida at first only sputtered against it, but in October 2006 she no longer put up with it. The company wanted to give her a position where she would no longer deal with customers and would not have to wear a ‘uniform’. She refused, and stayed at home. From a purely practical point of view, this was the crux of the matter: did she or did she not get paid for those months?

In response to the publicity surrounding her case, the company changed the uniform code: “Certain symbols, such as the cross and the star of David, were given immediate authorization.” Mrs. E then immediately went back to work. She claimed she was the victim of “indirect discrimination”. This was a little awkwardly phrased: it was of course about the obvious ‘positive discrimination’ against, let’s say, people of other faiths.

The British Employment Tribunal found that such a cross was not mandatory for Christians. 

She appealed in GB and the Employment Appeal Tribunal made a remarkable ruling: that according to that first ruling it is not obligatory for Christians to wear such a cross did not matter, according to them, but then again Mrs. E had not shown that a whole group was disadvantaged …

Eweida appealed again: this time to the Court of Appeal. It admitted that the first ‘tribunal’, the Employment Appeal Tribunal, was right, but then added that the so-called ‘uniform’ code had a ‘legitimate aim‘…

Furthermore, they referred to yet another judgement in which a British Judge (one Bingham, a lord), had ‘analysed’ that the religious manifest rights of man do not apply in the workplace because, after all, you can go and work somewhere else and you can deal with your faith in a different way… Then it went to the Supreme Court of GB, but they did not even hear the case (‘inadmissible’).

The European Court has now largely agreed with her. The ruling has no effect on the company B.A., but it does affect the British taxpayer: the government has to give her money. That money is not to compensate for back pay, but to cover legal costs. Five of the seven judges believe that the UK government must also pay her damages for failing to protect Mrs. from the harm caused to her by her employer …

‘Applicant 2’, Mrs. Chaplin, was a nurse at a government hospital.

She had been wearing a cross since her ‘confirmation.’ The clothing instruction of the Ministry of Health also contained regulations regarding jewelry: “If worn, jewelry must be discreet”. Paragraph 5.3.6. of the regulation comes across at first sight as a sarcastic joke of the judges:

The case was very different from case number 1: it was not about uniformity, or about conveying the message that Muslim women and Sikhs may, but Christians may not, manifest their adherence to a particular faith in the workplace, but about the safety of patients and nursing staff. Dangling chains could pose a danger. Patients could pull on the chain, the chain could come into contact with open wounds… In this case there is more explicit comparison with attributes associated with other faiths: the Sikhs had resigned themselves to not being allowed to wear their “religious weapon”. A Kripan is called such a thing.

By Mr. Ranveig. Via CC Wikipedia. The picture is quite old.

The Muslim ladies were not allowed to cover their heads with just any form of veil: it had to be a design “resembling a balaclava helmet”. Both ears and mouth covered, apparently these were niqabs. Do take note: in the Qu’ran there is no indication of the form or size of the veiling, only about the reason (discriminating between muslim and n on-muslim women). 

Referring to the case of Eweida, the Court of Appeal indicated that her case had no chance.

The European Court has proven this lady wrong on all counts.

‘Applicant 3′, Mrs. Labele, worked for a London sub municipality and her duties included officiating at weddings. Its council was proud of its own ‘diversity policy’ and wished – in its own words – to combat discrimination in all its forms. It also promised to act against “harassment, victimisation (sic) and bullying through prejudice, ignorance, thoughtlessness [sic] and stereotyping”.

Crucial to Mrs. 3 was the addition: “All employees are expected to promote these values at all times.” This ‘expectation’ was accompanied by a threat of disciplinary action. Although she was working for and being paid by the municipality, she was not employed by it! While the conflict was going on, being employed by the sub municipality became compulsory for people who officiated marriages.

Mrs. Labele considered same-sex marriages to be against her religion and specifically wanted to leave the ceremonies to her colleagues. Her colleagues felt that they were discriminated against as a result. In other sub municipalities, things were arranged in good consultation between conscientious objectors and people who had no problem with same-sex marriages, but the planning clearly became undeniably more difficult. Labele was instructed to perform those ceremonies as well. As if you would want to have your wedding ceremony performed by someone who disapproves of your (kind of) marriage!

The Court of Appeal issued a ruling that was remarkable in more ways than one: Mrs. Labele engaged in discrimination under a sub municipality policy that served a “laudable purpose.” There you have it again! Her refusal was an insult to gay colleagues (!) and her views on marriage were not part of “the core of her religion.” Even more remarkable, in nothing remotely reminiscent of jurisprudence, was the ruling that anyone who performed marriages had to “manifest equal respect for the homosexual community [sic] as for the heterosexual community”. The British Supreme Court did not even hear her case.

The judges at the European Court were again divided, but ruled anyway. With a sense of understatement, the ladies and gentlemen declared that the practice of same-sex marriages “is quietly evolving.” Yet, “it is abundantly clear that the purpose of those duties imposed on employees was a legitimate one.

‘Applicant 4′ worked for the company ‘Relate Avon‘ as a ‘counsellor’. This case, too, revolved around the attitude of Christians towards and their treatment of homosexuality; here, however, it was not about gay marriage but about gay sex. The company stipulated that every therapist “[should] be aware of his or her own prejudice and stereotyping and particularly to consider ways in which this may be affecting the therapeutic relationship“.

The company felt that Mr. McFarlane was resistant to “work on sexual issues with homosexual couples“. Although he had previously worked with lesbian couples without any problems, he admitted that he might encounter problems in some situations, whereupon his manager stated that “it would not be possible to filter clients“! Nevertheless, he still trusted applicant 4. But his direct supervisor did not, and after that the manager changed his position and Mr. McFarlane was fired.

In the ‘court cases’ that followed, the Employment Tribunal stated that the man had not been discriminated against because he had not been dismissed because of his religion, but because he did not do what the company told him to do, which was to “comply with the policies which reflected Relate’s ethos”. And: “the aim (…) was legitimate [!]”. Both appeal bodies refused to hear McFarlane’s case, referring to the case of applicant number 3, Labele. Literally: “the present case could not sensibly be distinguished from Labele”.

The Court stated that dismissal was quite a serious sanction but that the ‘legitimate aims’ of the company outweighed it. That aim would be “to provide a service without discrimination”.

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