Eweida, Part II: The Margin of Appreciation Defeats and Silences All
In this second post on Eweida and Others v. the United Kingdom, I deal with the conflict between freedom of religion (or the prohibition of indirect discrimination on the basis of religion, if you so wish) and the prohibition of discrimination on the basis of sexual orientation (or an employer’s interest in upholding equality and diversity policies, if you so wish) in the cases of Ms. Ladele and Mr. McFarlane.
There were many reasons to be excited about an ECtHR ruling in the cases of Ladele and McFarlane. Many reasons to find both cases intriguing and challenging. And as many reasons to be disappointed with the astonishingly brief and extremely deferential reasoning the Court eventually delivered. In this post, I aim to lay bare some of the main shortcomings of the Court’s reasoning, without necessarily challenging the outcome of the case.
I will focus almost exclusively on Ms. Ladele’s case. The case of Mr. McFarlane will largely be left aside, both for reasons of space and because his case is less challenging than Ms. Ladele’s case.
Ms. Ladele is a Christian. Since 2002, she was employed by the London Borough of Islington as a registrar of births, deaths and marriages. When the Civil Partnership Act of 2004 came into force in December 2005, Islington decided to designate all existing registrars of births, deaths and marriages, including Ms. Ladele, as civil partnership registrars. Ms. Ladele, however, objected to registering same sex partnerships because she holds the view that marriage is the union of one man and one woman for life, and sincerely believes that same-sex civil partnerships are contrary to God’s law. Initially, she was permitted to make informal arrangements with colleagues to exchange work so that she did not have to conduct civil partnership ceremonies. After a few months, however, homosexual colleagues of Ms. Ladele complained about her refusal to carry out her duties. They felt victimised and argued that Ms. Ladele’s refusal to register same-sex partnerships was discriminatory. The Borough of Islington subsequently undertook disciplinary steps against Ms. Ladele, for breaching Islington’s “Dignity for All” equality and diversity policy. Ms. Ladele applied to the Employment Tribunal, complaining of direct and indirect discrimination on grounds of religion or belief and of harassment. She initially won her case, but lost the appeals at the Employment Appeals Tribunal and the Court of Appeal.
Judgment and commentary
‘Freedom to resign’ abandoned
At the ECtHR, Ms. Ladele complained under article 14 taken in conjunction with article 9, rather than under article 9 taken alone, because she considered that she had been discriminated against on grounds of religion. It is particularly interesting to note her litigation strategy, since it demonstrates how applicants have become fearful of litigating under article 9 alone, assuming that the Court will give short shrift to such claims. And, until Eweida came out, they appeared justified in being fearful, primarily because the Court frequently used its infamous ‘freedom to resign’ doctrine to swiftly dismiss article 9 cases in the employment sphere. Fortunately enough – and somewhat ironically in view of (or perhaps partly thanks to?) Ms. Ladele’s litigation strategy – the Court has now abandoned that doctrine, as Lourdes already pointed out in her post on Ms. Eweida’s case.
Unlike the Court’s laudable reasoning in response to the claim of Ms. Eweida, however, its reasoning with respect to Ms. Ladele’s case is astonishingly brief and extremely deferential. For that reason – and even though the outcome of the case is in my opinion, for reasons explained below, justifiable – the judgment almost demands to be criticised.
Religion (not) a suspect ground?
A first issue that stands out is the Court’s failure to engage with Ms. Ladele’s argument that “the Court should require “very weighty reasons” in order to justify discrimination on grounds of religion”, because “[a]s with suspect categories so far identified by the Court as requiring “very weighty reasons” (such as sex, sexual orientation, ethnic origin and nationality) religious faith constitute[s] a core aspect of an individual’s identity.”
In its reasoning, the Court does accept that article 14 is applicable to Ms. Ladele’s case, but it does not say anything about religion being (or not) a suspect ground. Instead, the Court focuses exclusively on the opposing principle, recalling that “in its case-law under Article 14 it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification.”
The Court thus refuses to take seriously Ms. Ladele’s claim that religion should be added to the suspect categories under article 14. In doing so, it also refuses to engage with the dissent in Redfearn v. the United Kingdom (see Lourdes’ post here), in which the dissenters argued – in an overzealous effort to interpret Hoffman v. Austria broadly – that religion has “traditionally” been recognised as a suspect ground by the Court. Interestingly, in Eweida, Judges Bratza and Hirvelä – two of the three dissenters in Redfearn - did not repeat that claim in any way or form.
The Court’s silence in Ms. Ladele’s case confirms, to me, that it does not (yet) consider religion a suspect ground under article 14.
It’s all about the margin of appreciation
The main reason why the Court’s reasoning in the case of Ms. Ladele (and of Mr. McFarlane) disappoints, is because it relies exclusively on the margin of appreciation to dismiss Ms. Ladele’s claim (see also Paul Johnson’s excellent guest post on the ECHR Blog). The sentences that decide the case are so few in number that I can easily quote them in their entirety here:
The Court takes into account that the consequences for the applicant were serious: given the strength of her religious conviction, she considered that she had no choice but to face disciplinary action rather than be designated a civil partnership registrar and, ultimately, she lost her job. Furthermore, it cannot be said that, when she entered into her contract of employment, the applicant specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement was introduced by her employer at a later date. On the other hand, however, the local authority’s policy aimed to secure the rights of others which are also protected under the Convention. The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights [the Court references Evans]. In all the circumstances, the Court does not consider that the national authorities … exceeded the margin of appreciation available to them.
The main reason why I take issue with the Court’s exclusive reliance on the margin of appreciation to dismiss Ms. Ladele’s (and Mr. McFarlane’s) claim is that it was by no means necessary for it to do so. To partly quote Judge Rozakis’ famous concurring opinion in Odièvre v. France “when … the Court has in its hands an abundance of elements leading to the conclusion that the test of necessity is satisfied by itself … reference to the margin of appreciation should be duly confined to a subsidiary role.”
While I see the point in being deferential when faced with a moral or legal dilemma like the one in Evans, where reason failed to offer convincing arguments in favour of either of the rights in conflict, I see no such point in Ms. Ladele’s case. It seems to me that the Court referenced the margin of appreciation for different reasons – one acceptable, the other not – in Evans and Ladele. In my reading of Evans, the Court was justified in relying on the margin of appreciation because reason had failed to resolve the conflict, thus leading to a stalemate. Deferring to the domestic authorities’ assessment of the case may be prudent in such circumstances, lest the Court’s judgment be perceived as arbitrary.
In Ladele, however, the Court employs the margin of appreciation differently. The Court does not even attempt to assess the validity of any argument, neither in favour of nor against the finding of a violation. The Court also does not explain why the presence of a conflict between Convention rights should automatically require the granting of a wide margin of appreciation.
When reading Ladele, I get a strong impression that the Court employs the margin to provide the shortest route to its intended destination – a finding of no violation – while concealing the normative reasons why it considered that outcome the best. Such use of the margin of appreciation – as a cloak to hide one’s real reasons under, rather than a necessary tool in the face of a failure of reason to provide an outcome – is unacceptable.
The arguments left unaddressed
By hiding behind the margin of appreciation, the Court not only fails to offer convincing reasons – which were available – in support of its conclusion. It also leaves several crucial arguments unaddressed.
Particularly striking is the Court’s failure to engage with the argument, raised by Ms. Ladele herself and by numerous interveners, that Ms. Ladele’s case could have been resolved through reasonable accommodation. Perhaps this was intentional. Perhaps the Court did not know how to deal with this argument, given that it intuitively makes sense to just have someone else perform the same-sex partnerships, like several local authorities in the UK did after the Civil Partnership Act came into force. After all, at first sight, where is the harm in granting exemptions? Ms. Ladele would have been able to abide by her religious convictions and same-sex couples would still have been able to enjoy Islington’s services (just performed by another individual). Perhaps the Court thought it was best to not embark on a painstaking analysis of whether reasonable accommodation should be granted in Ms. Ladele’s case. If that was part of its aim, reliance on a wide margin of appreciation surely did the trick. But it was equally surely not necessary, given that the Court had ample arguments at its disposal to reject Ms. Ladele’s claim that she could have been granted a reasonable accommodation.
There was firstly the argument of principle, employed by the Court of Appeal, to the effect that – even if a reasonable accommodation was pragmatically speaking possible – the prohibition of discrimination on the basis of sexual orientation was too important to surrender. It should thus ‘trump’ any consideration in favour of reasonable accommodation. Given that the Court referenced the “very weighty reasons” required to justify discrimination on the basis of sexual orientation, such a ‘trumping’ argument was well within its reach. But perhaps the Court feared – justly or not – that it would get into a mess in future cases by explicitly employing it?
Even if the Court did not wish to play the ‘trumping’ game, it could have held against Ms. Ladele for other reasons. It could for instance have put a limit on reasonable accommodations when the cost of granting them would involve sacrificing (certain) rights of others. The third party intervener Liberty alluded to this option when it held that “the impact of any accommodation on others, particularly where those others are themselves of minority and/or disadvantaged status should be taken into account.”
In fact, it seems to me that Eweida was the perfect case in which to both firmly ground reasonable accommodation for religion in the Convention and at the same time explain its limitations. Ms. Eweida’s case is – in my opinion – the perfect case in which to establish a duty of reasonable accommodation whenever the costs involved are minor (e.g. small institutional adjustments, commercial image or limited financial costs). The Court seems to agree with that proposition, given its reasoning with respect to Ms. Eweida’s claim (cf. “where there is no evidence of any real encroachment on the interests of others”, para. 95). Ms. Ladele’s case, conversely, indicates that limits should be imposed on reasonable accommodations for religion when the right of others to be free from discrimination are at stake.
In that last respect, I take issue with the dissent of Judges Vuĉinić and De Gaetano when they claim that
No balancing exercise can … be carried out between the third applicant’s concrete right to conscientious objection, which is one of the most fundamental rights inherent in the human person … and a legitimate State or public authority policy which seeks to protect rights in the abstract.
Not only does this miscast the conflict, it also fails to adequately engage with the possibility of expressive harm to same-sex couples who present themselves to the Borough of Islington and the actual expressive harm suffered by Ms. Ladele’s homosexual colleagues. Although I would agree that one should not lightly sacrifice actual rights (rights that are actually at stake) for abstract ones (rights that are purely speculatively at stake), Ms. Ladele’s case is not one in which that ship sails.