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Permissible Prejudice?

February 15, 2018

The Equal Treatment Directive (2006/54/EC) extended the principle of equality in the workplace. In doing so, it afforded protection to a number of protected characteristics, including religion or belief. Arts 9, 10 and 14 of the European Convention on Human Rights (ECHR) also provide protection in respect of "conscience" and "belief"; including its manifestation.  These rights are enjoyed at both individual and collective level. At the individual level, such laws are intended to insulate all individuals from intrusion into the internal forum and/or the imposition of particular belief. By reason of Art 9, faith communities and others are said to enjoy autonomy and self-determination; subject, of course, to qualifications which are necessary in the pursuit of one of the legitimates identified in Art 9(2).   The application of the 'margin of appreciation' is said to ensure that issues of time, culture and place are not left out of account (Lautsi v Italy). 

However, it is clear that all actions motivated by belief enjoy protection (cf Arrowsmith v UK) and, further, that freedom of expression is far from absolute (Otto Preminger v Austria). Nonetheless, these convention and Community rights are said to attest to the affirmation of a core concept, namely: a pluralistic society. That is, a society in which, amongst other things, there is plurality of belief and non-belief. But in and of itself, plurality (like diversity) is meaningless.  All laws- properly so called- must possess a normative component. That is, they must lay claim upon each member of the society to which they have application. This ability to compel (i.e. the vinculo iuris) must rest on something more than coercion. Identifying the vinculo iuris, requires that legislator and jurist have a clear and discernible legislative ambition to which the specific norm is intended to give effect. In short, the particular norm of law must necessarily represent the articulation of a recognised societal value, which itself is directed to a particular purpose. In the context of convention rights, it may be said (and indeed, the preamble to the ECHR implies) there exists a shared recognition of the human person as possessing a unique form of dignity; a dignity which ought to be recognised in any democratic society. In this sense, therefore, the articles of the ECHR may be considered both protective and aspirational in character. Protective of the dignity of the human person as the possessor of rights antecedent to membership of a given political community. Aspirational, in that the articles of the convention are intended to educate both individuals and societies in what is presumed to be a shared journey toward inclusivity and tolerance. 

In recent times, within the EC, such norms have been supplemented by domestic laws which seek to prohibit inter alia the incitement of hatred against a person on account of his or her religious belief (e.g. within the UK, the Racial and Religious Hatred Act 2006).    The European Court of Human Rights has recently affirmed that conduct of this kind will not be protected under Art 10 ECHR and/or that domestic laws which seek to prohibit such behaviour do not offend the rights which Art 10 confers: Belkacem v Belgium (2017) ECHR 253. However, in practice, certain sections of society appear to consider those who express their religious views as 'fair game'. Witness the attack, several years ago, upon Archbishop Andre-Joseph Leonard by female activists representing the pro-abortion and and gay rights group FEMEN.

Invited to speak at a University Conference (ULB Brussels) the Archbishop was seated when he was verbally abused and doused with water by a number of protestors; the water poured from bottles shaped to replicate the image of the Virgin Mary.   One is obliged to posit the question: what was the nature of his offence? The answer: to communicate the teachings of the Catholic Church. 

There can be no doubting that issues of human sexuality and the rights of the unborn child are highly emotive issues; capable of generating profound disagreement. The purpose of this blog is not to advance one view over the other. However, it must equally be true that if the ambitions of community and convention legislation are to have any prospect of realisation, the right to express one's own view free from such attacks must be protected with equal seriousness. Paraphrasing the French philosopher Voltaire, one may disagree with the statement but defend the right of the author to make it.  If tolerance, plurality and cultural diversity are to be given any hope of attainment, societies must be seen as taking this right of protected expression seriously. Nor can this be seen as affording religious beliefs any form of preferment or precedence. Rather, it is a necessary component of true freedom and equality; one which pre-empts the privatisation of conscience and serves to correct any perception that antagonism to religion is the last permissible prejudice. 

The attack upon Archbishop Leonard was captured in photographic and video images. Many remain available on the net. In one such image, the protestor is less than three feet away from the Archbishop. Stripped to the waist, shouting, arm outstretched to douse him with water, the protestor is herself daubed with anti-religious slogans. Within the same image, the posture of the Archbishop is profound. Head-bowed, hands clapsed in prayer, he avoids eye contact with the protestors. He remains seated.   His reaction brings to mind the word of the psalmist: "All who see me deride me, they curl their lips and toss their heads..." (Ps. 22).  Perhaps the Archbishop was equally consoled by the words of Ephesians (Eph:6:10-20). We do well to remember them.   

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