Five - Law and religion: A survey of cases in the UK and what they reveal

Summary

Introduction

Religion and belief enjoys protection in international and domestic law as part of a framework of fundamental human rights, with freedom of religion and belief found within all major human rights treaties. To this has been added a legal guarantee of equality on grounds of religion and belief. To an extent, freedom of religion and belief, and equality on the grounds of religion can be understood to be complementary rights, founded on the notions of dignity, autonomy and equality. Nonetheless, these different foundations for protecting religion or belief can also be in tension with each other: for example, religions do not always recognise the fundamental rights and freedoms of others, such as rights not to be discriminated against on grounds of status, gender, sexual orientation or other grounds. Equally, tension arises when religious-ethos employers are prevented from using faith as a factor in recruitment, leading to restrictions on religious freedom. As a result, determining the boundaries for proper legal treatment of freedom of religion and belief, equality on grounds of religion and belief and equality on other grounds can be complex.

In this chapter I consider how these different rights have been treated in three areas in which cases have arisen in the UK: the wearing of religious dress to work; conscientious objection to particular work tasks on the basis of religion; and the refusal of services on grounds of sexual orientation for reasons related to religion. I then identify some of the broader social and policy themes that have come before the courts, and suggest a framework that may help courts to resolve some of the complexities with which they are faced.

The legal framework

Traditionally, human rights have been understood to form part of the protection for citizens from the power of the state, and it has been within this context that religious freedom rights have materialised. Article 9 of the European Convention on Human Rights (ECHR) protects the right to freedom of thought, conscience and religion, and recognises that this includes the right to manifest religion or belief ‘either alone or in community with others’, so that the right applies to religious groups as well as individuals. The right has tended to be engaged with regard to manifestations of belief – in particular, the wearing of religious symbols and conscientious objection to certain work tasks.