Sept. 5, 2012

Rights precedent pending as tribunal warned of discrimination

The European Court of Human Rights is expected to decide soon whether Christians across the continent can be forced by employers to act in violation of their religious faith – an issue that has become white-hot in the United States with the Obama administration’s requirement that religious employers provide abortion services for their employees.

In Europe, the conflict has been developing for several years already, and is culminating with an expected ruling from the ECHR on four different cases, argued just today.

They are the Eweida and Chaplin cases, in which employees were disciplined for wearing “a small cross on a chain around their neck,” and the Ladele and McFarlane cases, in which public employees were ordered to perform same-sex civil ceremonies in violation of their biblically based beliefs.

The European Center for Law and Justice filed a friend-of-the-court brief in the two cases involving same-sex ceremonies. The four cases all oppose sanctions against Christian employees for following their faith in basic and unobtrusive ways.

“While, on the one hand, the four applicants asked for respect for their freedom of religion and conscience and for the right not to be discriminated against because of their faith, on the other hand, the responding government['s] ultimate argument was: ‘their freedom of religion is respected because they are free to resign and to practice their religion in private,’” said a report today from the ECLJ’s director, Gregor Puppinck.

“Such an argument goes too far; it is also unrealistic because the applicants were not ‘free’ to resign, but have been fired,” he said. “Therefore, the ECLJ is reasonably optimistic as to the positive outcome of those cases for the applicants, especially because in none of the four cases it was argued that the sanction was proportionate.”

He said the ruling is expected in a few weeks or months.

In his brief filed on behalf of the plaintiffs in the Ladele and McFarlane cases, he said, “Employees are subject to contractual obligations and a duty of loyalty to their employer, but do not lose the right to enjoy freedom of conscience and religion.”

But he added: “The employer has the obligation to respect the freedom of conscience and religion of his employees and not to practice discrimination in this respect. The employees’ internal conscience enjoys full protection: the employer cannot discriminate against, or penalize, an employee for his beliefs or religion. Nor can he force them to change their beliefs or religion.”

And even with the “external” indications of a conscience, an employer should accept actions and conditions that do not “disrupt the smooth running of the business,” he said.

The ECLJ explained in the two cases in which it filed documentation, the plaintiffs are Lilian Ladele and Gary McFarlane. Ladele worked for the London Borough of Islington until 2009 and McFarlane was a counselor for relate until 2008.

“Both of them consider that homosexual relationships are contrary to God’s law and that it is incompatible with their judgment and beliefs to do anything to condone homosexuality,” the ECLJ explained.

“When the Civil Partnership Act came into force in the United Kingdom in December 2005, the first applicant was informed by her employer that she would henceforth be required to officiate civil partnership ceremonies between homosexual couples. Refusing to sign an amended contract, disciplinary proceedings were brought against her in May 2007 which concluded that, if she failed to include civil partnership ceremonies as part of her duties, she would be in breach of Islington Council’s equality and diversity policy and her contract could be terminated,” the group said.

“In the case of Mr. McFarlane, by the end of 2007 his superiors as well as other therapists had expressed concern that there was conflict between his religious beliefs and his work with same-sex couples. In March 2008, after a disciplinary investigation, Mr McFarlane was dismissed summarily for gross misconduct on the ground that he had stated that he would comply with Relate’s Equal Opportunities Policies and provide counseling to same-sex couples without any intention of doing so.

“Both applicants brought proceedings before the internal tribunals on grounds of religious discrimination, but their claims were rejected on the grounds that their employers were not only entitled to require them to carry out their duties but also to refuse to accommodate views which contradicted their fundamental declared principles.”

In the other two cases, Nadia Eweida worked for British Airways and Shirley Chaplin worked for the Royal Devon and Exeter National Health Service Foundation Trust.

They each wore small silver crosses on chains around their necks. Eweida was ordered to go home without pay until she decided to remove the cross, even though BA permitted employees to wear a sikh turban or a Muslim headscarf.

Chaplin was told to remove her crucifix and eventually was moved to a non-nursing position, which then was eliminated.

Puppinck wrote in the two homosexual-union cases, “Even though one may not agree with the rejection of homosexuality, it is indisputable that it is based on both a religious prescription and a prescription of conscience.

“Mr. McFarlane’s case is simple to resolve. The choice to question the morality of homosexuality and to form beliefs on this basis is protected by article 9, paragraph 1. Nobody can be punished simply for holding opinions or beliefs,” Puppinck argued. “McFarlane never refused to offer advice to homosexual couples on issues of sexuality, and has already advised two lesbian couples. … He had merely shared with his superiors the questions he had asked himself … following rumors concerning the issue.”

Ladele was given the additional duty of same-sex civil partnerships although her employment contract did not cover those responsibilities.

Further, the case against her was developed only after complaints from “two homosexual officers who could not tolerate Mrs. Ladele’s situation.”

“Taking into account the state’s obligation to ensure the pluralism, tolerance and open-mindedness that underpins the [Human Rights] Convention, and with respect to the presented facts, the state’s attitude cannot be justified by the protection of the rights of others, it cannot be considered necessary in a democratic society and as representing a fair balance between the various interests at stake.”

In the U.S., the issue was raised by an Obama administration decision to require employers, including religious employers, to subsidize the nation’s abortion industry by providing abortion services to employees as part of their health care package.

In response, dozens of members of Congress already have signed on to lawsuits challenging the Obamacare mandate.

One federal judge already has halted enforcement against a Denver company, and the government voluntarily has waived enforcement for now in a case brought on behalf of a Michigan company.

The American Center for Law and Justice, representing 79 members of Congress, has filed briefs in 12 separate lawsuits brought by more than 40 Catholic organizations suing over the requirement.

The plaintiffs in the cases include the Archdiocese of New York, the University of Notre Dame and the Catholic Charities of the Archdiocese of Chicago.

And leaders of a multitude of religious-advocacy groups are warning of the Obamacare contraception mandate consequences for business owners of faith:

• Larry Cirignano, president of Faithful Catholic Citizens: “Give up your religion or go bankrupt. This is not a mandate; it is an ultimatum. Buy insurance and kill babies or go bankrupt fighting us. Not all of us can afford lawyers to fight this ‘mandate.’”

• Matt Smith, president of Catholic Advocate: “Aug. 1 will be remembered as the day our most cherished liberty was thrown in a government dumpster and hauled away. A day when family owned small businesses were forced to abandon their religious beliefs to provide products and services for free. And if they don’t, they will be taxed and fined at a time when job creators are struggling with enough costs and bureaucratic red-tape at every level of government just to stay in business. While the courts have provided a reprieve for one family business in Colorado, the government will never be able to repair the broken conscience of thousands of others until this mandate is removed.”

• Brent Bozell, chairman of ForAmerica: “August 1st is a day that will live in infamy for the First Amendment and the fundamental freedoms and rights we as a people have enjoyed since the founding of our nation. The HHS mandate imposed on the American people is the beginning of the end of freedom as America has known it and loved it. August 1st marks the day when many family owned and operated businesses lose their rights to exercise their faith in their daily lives. The government has told them – either comply with this mandate in violation of your faith and do what we tell you, or you will pay crippling faith fines to the federal government. With the stroke of a pen, the Obama administration has shredded the First Amendment and the Constitution right before our eyes.”

• Grace-Marie Turner, president of the Galen Institute: “The Obama administration’s assault on religious liberty is taking root. … Failure to comply with the mandate will result in penalties that could cost business millions of dollars. The administration clearly did not reach a much-vaunted ‘accommodation’ with business owners who strongly oppose the mandate and believe it is a clear violation of their constitutional protection of religious liberty. The HHS mandate forces business owners to choose between following their religious beliefs or obedience to the federal government. The Obama administration clearly believes the government is supreme and that individuals and businesses must bow to its dictates or suffer severe consequences. We know that Obamacare is wrong for America. The HHS anti-conscience mandate is clear evidence of why the law violates the most fundamental principles upon which our country is founded.”

• Gary Marx, executive director of the Faith & Freedom Coalition: “Confidence in the system and hope for religious liberty was mildly restored when a federal district judge issued a temporary injunction blocking Barack Obama’s health-care mandate from compelling a business to provide insurance coverage of sterilization, contraception, and abortion-inducing drugs. This is certainly a victory, but the fact that it only applies to one company means the federal government is still going to force millions of Americans to choose between having health insurance or their conscience and faith. With an administration intent on suppressing religious liberty, we can expect a historic turnout of voters of faith show up in November.”

• Penny Nance, president and CEO of Concerned Women for America: “The only solution that has been provided to the majority of Americans is to stand up and fight for their religious rights by refusing to comply or battling in court. … We must remember the wise words of Thomas Jefferson, ‘All tyranny needs to gain a foothold is for people of good conscience to remain silent.’ To force religious groups to deny their deeply held convictions is not called balance; it is called tyranny.”

• Jeanne Monahan, director of the Family Research Council’s Center for Human Dignity: “Today as a result of this initial implementation of the HHS mandate, the relationship between the separation of church and state is critically changed. Americans can no longer follow their consciences or religious dictates on issues as critical as abortion-inducing drugs. Organizations such as Wheaton College, or businesses such as Weingartz Supply of Ann Arbor, Mich.,will be forced to violate their consciences. On this sad day Americans have no ‘choice’ in this matter.”

• David Stevens, MD and CEO of the Christian Medical Association: “What will stop this administration, with its radical pro-abortion agenda, from further undermining conscience rights and pursuing policies that effectively force out of medicine physicians with life-honoring convictions? Who will keep government panels from effectively denying physicians and patients choice about what are the most effective and appropriate medicines, surgeries and treatments? We call on Congress to turn back this law’s assault on our freedoms and restore American values and constitutional principles in health care.”

• Paul E. Rondeau, executive director of American Life League: “History tragically teaches us that if our government can abolish one constitutional right, then all constitutional rights are put in jeopardy. This path sets a dangerous and foolish precedent that First Amendments rights such as freedom of speech, association, freedom of the press and the rights to assemble and petition the government may be just as easily curtailed in the future. We call on all citizens to tell their elected representatives that this erosion of rights must not stand.”

• Kristin Hawkins, executive director of Students for Life of America: “Today marks the beginning of the end of religious and conscience rights in America. As an employer, I am forced to make a false choice between providing a vital service to my employees and violating my conscience and values. The abortion-pill mandate is an egregious attack upon my rights, as well as the rights of all people of values and faith in America.”
• http://www.wnd.com/2012/09/christians-free-to-practice-religion-in-private/print/