September 5, 2012

Going Courting

A collection of cases is heading to the European Court of Human Rights concerning alleged infringements on religious liberty by people forbidden to wear crosses in the workplace and being required to perform civil partnership registrations for same-sex couples, among other related matters.

The thing that strikes me in this is the question of how deeply Christian it is to be concerned about articles of religious clothing or decoration, and the ability to make determinations about the moral status of other parties, refusing to have anything to do with them. WWJD? Perhaps more directly, WDJS (what did Jesus say?) about such matters. Critique of broad phylacteries and fellowship with outcasts seems rather to have been his metier.

Tobias Stanislas Haller BSG
hat-tip to Thinking Anglicans

30 comments:

Grandmère Mimi said...

I own two gold crosses, one that is from my first communion when I was 7 years old, and the other a cross with the Greek letters Alpha and Omega imposed upon it, which I like quite a lot. I once wore the crosses fairly often, but less so now as I've thought more about what statement I make by wearing a cross.

I'm put off by the silliness of people who go to court over work rules because they "never take off their crosses" or see the work rules as an infringement of their religious freedom.

Brother David said...

Neca eos omnes. Deus suos agnoset!

OMG, sorry, different topic

Tobias Stanislas Haller said...

Thanks, Mimi. The argument in the cross case in particular I find odd, in noting that yarmulkes and head-scarves and Sikh turbans are permitted; the difference being that these articles do in fact form a part of the discipline of that faith. But wearing a gold neck cross is not required of Christians! I have no sympathy whatever with the civil servant who chose not to serve part of her society on the basis of her own bigotry. She has every right to her religious belief and practice, but not when it infringes on others, and when she has a secular job to do, for which she receives compensation. If she cannot do her job, she is in the wrong line of work. Pacifists should not enlist in the armed forces.

Bro David, yes, a rather different circumstance. In this case it is the Cathars who seem to be doing the crusading...

Grandmère Mimi said...

Any kind of chain could be dangerous in certain jobs, so in some instances the rule makes good sense for a cross on a chain. But you're right; Christians are not required to wear crosses, so if other religious symbols are allowed, then why not crosses?

Those who wish to discriminate in the performance of their duties in a secular job have no excuse and should go into another line of work.

Erika Baker said...

Tobias,
the registrar is the one person I DO have sympathy for because unlike a Pacifist enlisting in the Armed Forces, she enlisted in a service that married men and women - and suddenly Civil Partnerships came along and she was faced with a crisis of conscience.

Martin Reynold pointed out on TA that register offices did not have to appoint everyone as a CP Registrar and that, in fact, a special appointment was necessary. Many districts decided not to force everyone to register CPs and this would have been quite within the law.

Islington decided to appoint everyone as CP registrar but quietly allowed Ms Ladele not to register CPs. She then told her colleagues about this, 2 of whom were gay, and they naturally took exception. On the other hand, if Islington thought it was appropriate to make the exception, why shouldn't she have told everyone?

Martin suggests that her error lay in not protesting as soon as she was appointed as CP Registrar and that is quite possibly right.

She is definitely a very ill-used woman, exploited by those who now wish to capitalise on her fate in their ridiculous attempts to prove that Christians are being persecuted in the one country in the world in which they have guaranteed seats in the House of Lords!

Naive, she probably is. But not more than that. And I do feel very sorry for her.

Tobias Stanislas Haller said...

The difference I was trying to note, Mimi, is that in some religions the wearing of the article of dress is part of the discipline of the religion.

Erika, it is because the person in question was given the option that I find the lawsuit problematical. But changes in law happen all the time, and yes, people are required to keep up with the changes -- and if they don't like the changes, seek other employment. (I was thinking of a pacifist who joins the army in peacetime in order to take advantage of the educational possibilities, then finding herself in the midst of a war.) I agree that she is probably being used as a pawn in a fit of Christian pique -- but not knowing the ins and outs of the ECHR I don't know if there would be a case if she did not cooperate. (In general, in the US cases have to be brought by a person with standing, that is, one harmed by an action; even the class action suits have to have members of the class willing to go forward -- at least as this non-lawyer understands it...)

My point, after all, is that calling this "persecution" of Christians is risible, and an insult to those Christians who actually are persecuted in places like Pakistan. Your point about the Lords is very well taken!

rick allen said...

"WDJS (what did Jesus say?) about such matters."

Seems, to begin with, that he left us some wide discretion, telling us in the Sermon on the Mount (if memory serves, on the one hand,to let our light shine before men, and, on the other, to shun hypocrasy by taking our prayers to the privacy of the closet.

That's either a contradiction, or a suggestion that there is a time and place for both.

For myself, I don't own any cross ornaments, and have never worn one. (I'd like to think that people would know I'm a Christian from my behavior, but I may just be delusional about that).

Despite that, I don't think it wrong that some people feel it important to declare their faith through some visible sign. Obviously clergy do it, and many religious, and I don't see that it's out of line for laity.

So, the question then comes up, for those who feel some sense that it's right to express their faith (not, understand, as a formal religious obligation, but as an individual expression), what should they do when the boss says, "Get rid of that cross"?

There is, after all, another thing Jesus says:

"Whosoever therefore shall confess me before men, him will I confess also before my Father which is in heaven. But whosoever shall deny me before men, him will I also deny before my Father which is in heaven."

This somewhat raises the stakes. For someone like me, happy to keep his public Christianity rather under-the-radar, there's no problem. But even I, if I did momentarily come out of my shell, and were then told to get rid of the cross, to sit down and shut about about the Jesus stuff, might feel, at that point, a need to say "no," rather than coming dangerously close to saying, with Peter, by my compliance, "I don't know him."

So I can very much sympathize with those put in that position, and don't feel like I can make it their fault by pointing out taht they had no actual obligation to wear the cross. It's not, of course, persecution, in the sense of those who, in many countries, risk life and limb to live as Christians. But it still strikes me as a violation of that guaranty of religious freedom which, hitherto, we've considered rather fundamental in the post-Englightenment West, and thus not trivial, and not something for which those caught up in these dilemmas should be blamed by fellow Christians.

Erika Baker said...

Can I also point out, please, that the nurse in question was offered to wear her cross as a pin on her lapel or her collar. She refused and insisted on wearing a dangly necklace.

Powerful Christians with their own war to wage against what they perceive to be creeping marginalisation of Christanity are exploiting these people for their own purposes.

It is ludicrous to suggest that Christian observance not only includes the visible wearing of a cross but that it also proscribes which kind of cross must be worn in which particular way.

Tobias Stanislas Haller said...

Rick, the issue becomes, To what extent is wearing a cross-shaped piece of jewelery an 'expression' of ones faith? Is it the sort of thing Jesus had in mind when he spoke of letting lights shine, or taking up the cross? That seems very unlikely to me.

I do have some sympathy for the people caught in this -- but they were offered the option of wearing a badge instead of a necklace, and refused -- so the issue seems not to be about identity but format -- they wanted the necklace, which suggests that there may be some other factor than Christianity at work. It was not, in short, about confessing the faith, but the form the confession took. And it was only the form to which the employer objected.

Over at TA, David Shepherd, with whom I rarely agree, sums it up well,

...Sikhs who wear turbans are exempt from the use of mandatory safety headgear on construction sites and Muslim modesty is accommodated in the NHS by allowing headscarves and providing disposable plastic over-sleeves. These 'requirements' of religion trump public safety.

In contrast, the Court of Appeal upheld an employer's right to ban the wearing of a one-inch long crucifix because:
1. it is not a uniformly imposed requirement of the Christian faith and therefore cannot be defined as a manifestation of religion.
2. it does not put Christians, as a group, at a disadvantage through indirect discrimination.

On this basis, I doubt that the cases relating to wearing a crucifix will succeed. While I feel compassion for the petitioners, those cases will clearly distinguish the genuine requirements of Christian faith from those religions that prescribe conformity to externalisms of attire.


A wise confessor would have handled this situation very differently than those who gave advice to the cross-wearers.

I have no sympathy whatever, however, for the recalcitrant registrar and the pious sex-counselor. Their inability to reconcile their private religious beliefs with their public responsibilities are cause for resignation, not litigation. That would represent a real "martyrdom" in the proper sense of the word.

Tobias Stanislas Haller said...

Thanks, Erika. Good points.

Chris H. said...

Wearing headscarves/modest clothing is not required by Islam. There are millions of Muslim women who don't wear them. Aljazeera news even has an anchor/reporter that doesn't and at least one Muslim country,Turkey, BANS women from wearing them in some public areas-courthouses, the capital building and even on state run college campuses in order to prevent islamists, etc. a foothold. Sikhs are the only people I've known where everyone agreed on the dress code--and I've only known a few, so that might not mean anything.

Also, one of British Government's lawyers said that Christians should just go find another job or follow their religion at home privately out of public view. Really? What would the reaction have been if any other religion had been named in that sentence?

Tobias Stanislas Haller said...

Chris, I think you speak to broadly when you speak of the requirements of "Islam." As with Judaism, there are various levels of strictness within different strands of the tradition with regard to headgear.

That a lawyer made a comment not entirely out of keeping with the advice of Jesus concerning public display of religion was part of my point. The issue here is not freedom of religion, but freedom of ostentation.

It will be interesting to see what the ECHR decides.

Chris H. said...

Tobias, you had made the point that exceptions for Sikhs and Muslims were because those points were required and the Turkish ban is real. My point is that if one religion is allowed to make a public statement of faith not required of ALL its adherents, exceptions should be make for other groups or sects. The lawyers comments sounded as if Christians should never stand up or make themselves visible. If Mr. Eade had put the word "gay" in that sentence, would that be acceptable?

Tobias Stanislas Haller said...

Chris, the adherents of Sikhism and Islam follow those practices because they believe them to be required by their faith. It isn't for me to challenge that, nor do I believe all Sikhs or Muslims agree, and more than all Jews where yarmulkes. The point is that those who do can point to explicit mandates from their religious tradition. I don't see the issue of something being required of all adherents as the issue. The point in the present case is that no Christian is required, by virtue of the teachings of the faith, to wear a gold neck cross. There are nuns and monks who wear such things as part of their habit, of course, as I do myself, and it is part of my Rule.

The issue, once again, was not about the cross per se -- but about a necklace. The employees in question rejected wearing a cross on a pin or badge. So this is emphatically not about religious "visibility." It's about a necklace

As to the lawyer's statement, I think it is taken out of context. He is referring to English law, which permits employers to restrict the wearing of some symbols which happen to be religious on the double basis of safety and in connection with the extent to which the wearing is a requirement of the religion, rather than a matter of personal piety. His comment about finding other work is meant to demonstrate that other work is available, if the matter of conscience is so very high. The point of the cross, after all, is sacrifice, not ostentation. That's the point I was trying to make.

I understand the Turkish ban is real. There are similar bans in Mexico. There is a ban in England on non Church of England churches identifying themselves simply as churches -- they have to include their sect or denomination, while C or E churches can simply say, St John's Church, for example. There used to be restrictions on who could wear clerical dress in public. I am not speaking in favor of any of these restrictions, but I don't think they are germane to the issue before the ECHR. The Turkish ban is based on their commitment to secularlism in the public sphere.

Many businesses have dress codes, and those who are interested in working in those fields need to take that into consideration. That exceptions are made for legitimate religious concerns -- that is, when it is not just a matter of personal piety but of a particular teaching of a religious tradition, simply shows that flexibility has limits, and they are not ill defined.

IT said...

Here's an excellent quiz on the HuffPo to determine if one's religious liberty is actually under threat:

http://www.huffingtonpost.com/rev-emily-c-heath/how-to-determine-if-your-religious-liberty-is-being-threatened-in-10-questions_b_1845413.html?utm_hp_ref=religion

Tobias Stanislas Haller said...

Thanks, IT. Very sharp stuff from HuffPost!

Brother David said...

BTW, those laws were changed a number of years ago. Which is why there are now about 10 LDS Temples scattered around Mexico.

musculars said...

After the Second Vatican Council American Catholic sisters of non contemplative orders for the most part abandoned their religious garb (opting for smaller insignias like a gold cross) primarily because they felt the habits separated them from the faithful they were called to serve.

I feel that religious ostentation (great description)serves this purpose, whether Amish caps or Muslim hajibs or Sikhs turbans. It all sets one apart, to the point of being viewed as strangers in our midst. The question confronts us who or what is responsible for "the otherness" The one who veils or the one who perceives "otherness"in the veiled.

In particular the hajib in the tenor of our times has become not merely a religious symbol but a political symbol and identity.On one hand it is viewed internally as an expression of religious liberty and on the other viewed externally as a provocation of extremist ideology. Furthermore the original debate around the hajib comes from the predominantly Muslim Middle East and informs the debate in the West

Erika Baker said...

Chris,
there is no ban on crosses. There is a ban on crosses on necklaces. They can be worn on lapels and on collars.
There is not a shred of religious persecution there.

But I have to agree, to say that people can simply go to work somewhere else is an appalling argument akin to the church saying it does not discriminate against gay people because they are free to worship in other denominations.

The reasonableness of the claims has to be proven or dismissed based on their own merit, not based on what might apply in other parts of society.

And what happened to the Registrar was that she was given ample opportunity to work in other parts of the service where her conscience would not be compromised.

But to say "I will not compromise my conscience but I still insist to work in a role where my purity causes my colleagues extra work" is unreasonable and for people to object to it is not a sign of religious persecution.
It's actually a sign of an acute sense of fairness that does not rely on special pleading and a sense of moral superiority that is acted out on the back of others.


Tobias Stanislas Haller said...

Thanks, Bro D., this confirms my suspicion about those regulations in Mexico. Times change!

Musculars, this whole issue fascinates me, as I alluded to in the original post, based on the essential interiority of ethics as taught by Jesus. Jesus appears to want faith to reside in the heart, and practice in the public square, the latter nourished from the former. (Out of the heart...) So his critique is of those who make a show of religious affiliation but do not do the actual works of righteousness. Pray in secret, do good in public, seems to be his message. I think the shift, predominantly among women religious, is an "owning" of this Gospel truth. The root of the word Pharisee is "apart" and I love the Anglo-saxon translation of it, sundorhalgwe = "apart-holy" -- and so, yes, distinctive dress as a means of marking oneself off from "the world" has a venerable antiquity! The ironies of the debate over the hajib highlight different world views, as you suggest.

Thanks Erika. I still think the comment about working elsewhere was not meant as it is being understood. My reading of it was that it was a comment about the society as a whole, not the particular job, though it was clumsily expressed. The full actual quote in the Church Times reads a bit differently to the summary in the headlines. I think what the attorney meant was that English law and society as a whole do not discriminate on the basis of religious expression. If a worker cannot "do the job" as required because of her religious concerns, then that is not the job for that person -- and they are not forced to keep it. They are "free" to choose their religion over the job. Here are the quotes from the article:

Mr Eadie said: "In a free and democratic society, everybody has the right to express and manifest their beliefs, including to display religious symbols or to live out their beliefs on family values motivated by the teaching of faiths; but these are not absolute rights or rights without limits."

He argued: "If an employer requires or prohibits conduct while at work that individual employees consider is inconsistent with their religious beliefs, there is no interference with Article Nine [of the European Convention on Human Rights] where they can obtain alternative employment in which they can practise their religion as they wish. . .

"All the applicants were able to manifest their religious belief in many ways outside the professional sphere," he said. "The court's jurisprudence is clear that employees are free to resign if they consider that the requirements of their employment are incompatible with their religious beliefs."


I think the headline ovesimplifies and obscures the point Eadie was making. The job requires certain things, which the person is unwilling to do on the basis of their religion -- this is not discrimination by the employer, but conscientious objection from the employee -- which is why I raise the analogy of a pacifist in the military.

Erika Baker said...

Tobias,
but the right to religious expression goes beyond "if a job happens to make that possible", doesn't it?
Is not a part of this right that the employer has to enable you to express your faith up to the point where that expression become a disproportionate burden on the employer, the employer's clients or the rest of the workforce?

It seems strange that an employer should, in principle, be able to uphold a right by ignoring it and by merely pointing to others who do.

Tobias Stanislas Haller said...

Erika, I think what Mr. Eadie is saying is indeed that there are limits to the freedom of religious expression -- when that religious expression goes against neutral standards of the job requirement. In the case in point the issue wasn't a forbidding of crosses, but of crosses on a necklace. I assume there would be the same ban on a Star of David necklace, or for a secular person, an E=mc^2.

The same goes even more forcefully for the registrar and the counselor -- they need to be able to do their job neutrally, and if they can't on the grounds of conscience, they are free to find other lines of work. They are not being discriminated against, they are refusing to do their job because they don't agree with it.

Erika Baker said...

Over on Thinking Anglicans people seem to suggest that if a person is not offered any accommodation (which the people in the cases we are discussing were!) but only given the alternative of resignation they could resign and then sue the company for constructive dismissal.

Tobias Stanislas Haller said...

Exactly, Erika, which is why these cases -- which is what Eadie is referring to -- do not constitute religious discrimination.

The point is that if job requirements are "religion neutral" -- and required of all employees, an employee's religious objection is not grounds for special treatment, though the employer may choose to offer accommodation; but if the employees choose to resign rather than conform, or find the accommodation unacceptable, that is their option. Conscience has a price, and does not guarantee a free ride.

Erika Baker said...

Tobias,
but suing for wrongful dismissal or constructive dismissal means stating that you had no option but to resign because your employer made your life unbearable and that your resignation was not entirely voluntary.
If the Registrar in question had taken that step at the point her employer forced her to be registered as a Civil Partnership registrar, she might well have won her case - on the grounds of religous discrimination.

Tobias Stanislas Haller said...

Erika, I understand, but I don't think that would have applied in this case -- and certainly not in the case of the necklaces. The fact remains the religion is not the right that trumps all responsibilities -- nor should it be. Resignation because I'm required to do something with which I disagree, but which is a normal part of the job, is still entirely voluntary -- that is, it is a choice made by the person, who may have very strong feelings about the matter, but the feelings belong to them.

People need to take responsibility for their feelings and beliefs -- and if that leads them to resign, in doing so they are exercising their religion, not being prevented from exercising it! Resignation becomes a religious act, not by external constraint, but by internal conviction.

Under UK law constructive dismissal requires that the employers action has to be a significant breach of the employment contract. Being required to do what ever other employee is required to do as part of their work cannot be a breach of the employment contract. If the person is forced to take a new position with responsibilities they are unwilling to perform, that may be an issue, but one wonders if the person in question was actually forced to take the new task on. If this was simply a change in the tasks normally part of that job, however, that seems not to be a possible cause of action, to my mind. Rules and procedures in business change all the time, and only if the change could be shown to have been a deliberate effort to make the work intolerable -- rather than a uniform change for all employees in a class of workers -- would it be a form of constructive dismissal.

At least that's how I read the situation.

Erika Baker said...

Tobias,
I completley agree with the ethical part of your argument.
I am not quite so sure about the legal one. Because as Martin Reynolds explained on TA, while there is a requirement that all local councils offer CP registrations, there is no uniform requirement to register every Registrar as a CP Registrar, and indeed, many councils have not done so.
Islington, apparently, decided to register all Registrars as CP Registrars because it felt it was important to treat everyone equally.

But I do think that there is just a possibility that someone could claim that it would have been easily possible for the council not to register all Registrars and that it therefore should have offered Ms Ladele a choice.

I agree with Martin, not having resigned and then sued for constructive dismissal she has no longer got that option. She is now simply in the position of someone who has accepted what she sees as an unjust change in her terms of employment but is refusing to do her job.
But some of the more well versed legal eagles appear to think that she might have stood a chance had she resigned sooner.

Tobias Stanislas Haller said...

Erika, that is my understanding of the situation, but my reading of the law on constructive dismissal is that it seems to require that the imposition from the employer's side has to be directly intended to produce the resignation, not merely to have created a situation the employee did not happen to agree with. There has to be a breach of an understood contract as to the responsibilities of the job.

My sense is that the court would have looked at exactly what a registrar is doing in registering a civil partnership -- and found that a registrar is not by the act of registering expressing personal approval of the couple or their relationship, but merely exercising an essentially secretarial function. So I don't think the law on constructive dismissal or unfairness would have been found to apply on any of the law's grounds.

There is no requirement, as I see it, for employers to make accommodations for religious beliefs that directly conflict with the basic exercise of job responsibilities -- in this case, registering civil partnerships.

Moreover, I'm not sure a good precedent is set in a civil society when the civil authority makes such accommodations -- for the people actually affected by such acts are be the couples coming to register their partnerships -- and what if every registrar in a given locality had such conscientious objections? If one person is allowed to say they won't do their job on such grounds, so could all. To me this is a wrong-headed effort to establish a religious privilege over civic responsibility. I hope the court so finds, and would have found even had a more timely objection been made.

Perhaps having grown up in an environment in which "Gentiles Only" was a sign not infrequently seen, I am sensitive to issues of public accommodation. But it seems to me that if one allows religious objections to enter into the provision of public services, the possibility of denying those services creates a truly discriminated against class.

Erika Baker said...

Thanks, Tobias, for helping to tease this out for me. I had not remembered that constructive dismissal implies a deliberate intention to get rid of an employee, on those grounds, of course, a law suit could not possibly have succeeded.

Tobias Stanislas Haller said...

You're welcome, Erika. And thanks to you I now know a bit more about UK employment law than I did before!