Eweida and Others v the United Kingdom - the question of 'fair balance'
In debates about the issues raised in Eweida and Others v the United Kingdom, it is often taken for granted that there is great complexity and difficulty in reaching a fair balance between the rights of religious believers who have a fundamental objection to homosexuality and the rights of homosexuals.
In Great Britain, in respect of the provision of goods and services, this 'difficulty' has only been a legal one since 2007 with the commencement of the Equality Act (Sexual Orientation) Regulations 2007 (and subsequently the Equality Act 2010). Since that time, any commercial organisation or public authority engaged in offering goods, services, facilities or premises cannot discriminate on the grounds of sexual orientation.
As a consequence of the requirements of equality law, some Christians have argued that they do not wish to carry out aspects of their job that demand providing homosexuals with goods and services. This is the essence of the complaint made by one of the applicants (Ladele) in Eweida who refused, when employed as a registrar, to carry out any aspect of her job insofar as it related to the registration of civil partnerships by same-sex couples.
Despite the fact that seemingly sensible people would quickly dismiss such an objection if it was made in respect of another protected characteristic ('as a Christian I cannot work on the checkout at Tesco because I object to serving people with disabilities') even serious legal commentators like Joshua Rozenberg, when responding to the Chamber judgment in Eweida, bemoaned the European Court of Human Rights' failure to strike a 'fair balance' between the rights of Ladele and the same-sex couples she refused to serve.
When the Court considers the request by Ladele and her co-applicants for referral to the Grand Chamber next Monday the issue of fair balance will be a fundamental limb of the applicants' argument.
One issue that the Court might wish to consider in respect of the question of fair balance (and I am grateful to Prof Robert Wintemute for pointing this out) is an aspect of the recent Parliamentary debate in respect of the Marriage (Same Sex Couples) Bill 2013. At Report Stage of the Bill in the House of Commons an amendment was proposed to include a 'conscientious objection' clause which, if enacted, would have meant that 'No person shall be under any duty, whether by contract or by statutory or other legal requirement, to conduct a marriage to which he has a conscientious objection if he is employed as a registrar of marriages on the date this Act comes in force' providing that the conscientious objection is 'based on a sincerely-held religious or other belief'.
The sponsor of this clause stated that its inclusion would 'strike a proper balance between the right of marriage and the right of conscience'. It was designed to 'protect' people like Ladele.
How did the House of Commons respond to this proposed conscience clause? They rejected it by 340-150. The central reason for its rejection was the widespread recognition that no protect characteristic should be elevated above another. When at work, religious belief should not be a justification for refusing to serve homosexuals, just as sexual orientation cannot be a ground for refusing to serve Christians. With this approach, a fair balance is reached.
Perhaps the Court, when reaching its decision, might consider the argument made by Nick Herbert MP during the debate:
If, in the case of an application to have a wedding, it is wrong for a registrar to turn someone away on the grounds that they are black or a member of an ethnic minority, why would it be right for a registrar to turn away a gay person? That is the essence of the question and that is why [the conscience clause], in seeking to protect the conscience of that registrar, who is performing a public service, goes too far and opens up the possibility that we would provide all sorts of protections for the exercise of conscience, most of which—maybe not all—Members of this House would find deeply unpalatable.