At the forefront of the docket of the European Court of Human Rights, the European Union’s highest judicial body, is a case brought by two British women against the British government. The government’s stance, should it become precedent in the Union, would further limit the already heavily regulated area of religious expression. The women in question, who were found to be wearing the Christian cross in defiance of their clearly stated work regulations, have argued that similar exemptions have been made for members of other religions, like Islam and Sikhism.
Before engaging in an impassioned defense of the right to religious displays, it is important to keep one thing in mind: when employers make this sort of decision for practical reasons, it is fully within reason to expect one to comply. For example, if the crosses in question were large and bulky, and posed a potential danger or interference with the employees’ line of work, it would be natural to mandate that they either hide the cross beneath their clothing or take it off entirely. This is a decision that may be made for secular jewelry and decoration as well, however, and it can thus be distinguished from the sort of religiophobic crusade on which the British ministers now find themselves.
That being said, let me put it frankly: the notion that the governments of Europe would allow employers to restrict employees from wearing religious decoration of the sort is ludicrous, and smacks of frighteningly overreaching interference. One line of defense that the British government will take, according to CNN, is to argue that the employees had the freedom to choose to work elsewhere. At first glance, this seems to be a plausible argument, but it is only so in certain circumstances. It has its place in discussions regarding healthcare, as in cases of religious pharmacists who refuse to dispense contraceptives. Indeed, these providers are barring other individuals from accessing basic rights, like the right to health. That is presumably not the case here, however. Unless the cross poses a threat as a physical object, as mentioned above, it is not endangering or barring rights of the individuals that the employee will encounter in daily interaction. It is this provision that forms the second part of the oft-quoted Article 9 of the European Convention on Human Rights, which states that governments will only prohibit an individual from manifesting religion in cases where public safety, health, morals, or the rights of others are compromised.
Another striking aspect of the British government’s argument is its reliance on the idea that the cross is not a mandatory symbol of faith, unlike symbols of other religion that are permitted in the workplace. Firstly, as any scholar of religion would affirm, what is “required” by a religious tradition changes by the year and can be construed across a wide spectrum of interpreters – what business is it of the government to decide what is “religiously required?” There are certainly quotes from the Bible (Isaiah 42:11, for one) that lend support to the idea of showing one’s faith in public. Furthermore, whether or not symbols are even considered required by a majority of believers, or a particular authority, or whatever standard for judgment one would use, is not in the provision of Article 9. The convention promises the freedom to manifest a religion in observance thereof, and the definition of “observance” is ultimately up to the interpretation of each observer.
If the above is accepted as true, and the cross is not interpreted as threatening, hateful, or incendiary, there seems to be little reason not to allow these British employees, and all European employees, to show their beliefs as they see fit. By continuing to rule on issues of self-expression in such a totalitarian way, the ECHR comes dangerously close to quashing free speech altogether.Tweet