Law and religion: happy marriage or estranged acquaintances?

By Andrew Worthley
4 Feb 2013

After being awarded €2,000 compensation by the European Court of Human Rights (ECtHR) for having suffered religious discrimination at the hands of BA, Nadia Eweida said she was “very pleased that Christian rights have been vindicated in the UK and Europe”.

Despite her jubilation, the ECtHR judgment itself actually reveals a somewhat more complex picture of what exactly has been ‘won’ or ‘vindicated’ in this case. There have already been vast swathes of commentary about what impact this decision will have on employment and equality laws in the UK. In fact, the implications for any statutory or regulatory changes are probably relatively limited.

What the case of Eweida & Others really does is to shine a spotlight on the relationship between law and religious practice in the UK. It also presents an opportunity for some religious communities to consider what a core tenet of belief is, and whether expressions of this really require legislative or judicial protection.

It seems that some Christians (and others) harbour a deeply held view that there is a battle going on between the encroaching secular forces of the Law and a diametrically opposed bastion of immutable Christendom. However, this caricature of law and religion as engaged in a breathless war of attrition simply does not stand up in court. The fact is that over the course of some 1,800 years, both Christianity and the Law have been in a more or less constant state of relational flux.

With the more recent demise of top-down Christendom and the welcome rise of wider religious liberty, the picture has become even more nuanced. Despite this, some schools of more dogmatic religious belief seek to paint a picture of Christianity as a beacon of unchangeable truth and polity that requires ‘protection’ or ‘vindication’ against the marauding powers of secular equal rights.

In the context of the Eweida case this is not simply an unfortunate historic anachronism, but also something of an ironic one. The wider context is a reminder that the ‘discrimination’ complained of in this ECtHR case is mild, at most, in comparison to the gory stories of murderous Christian history. This is not the case of another brutally martyred Saint Alban, but a straightforward matter of jewellery policing.

An added irony is generated by the fact that there are many biblical injunctions against the wearing of jewellery, and it was not commonplace until well after the 4th Century for the cross to be a mark of distinctive Christian identity. Further, the sumptuary laws of the Middle Ages actually prohibited many types of jewellery-wearing as part of an ordered Christian society. God forbid a medieval humble yeoman should dream of wearing a silver cross.
That would be an un-Christian act indeed; an act of rebellion against the ‘natural state’ that the Creator had placed him in.

That wearing a piece of gold jewellery should now serve as a marker of Christian belief in the 21st century demonstrates how fluid and socially contextual such matters are – particularly given the injunction of Jesus to his followers (recorded in St Luke) to sell their possessions and give them to the poor: an action that is apparently yet to be litigated by a sincere believer in the European courts.

A different perspective is afforded by the case of one of the unsuccessful ECtHR claimants, Lillian Ladele, a marriage registrar working for Islington Borough Council in London. When civil partnerships were legalised in 2004, Ms Ladele refused to conduct them, saying that it was against her religious beliefs. She described her objection as “as a matter of religious conscience”. In rejecting her appeal, the court recognised that the right to express religion reasonably and proportionally needed to be balanced alongside the requirement that services be offered in a non-discriminatory fashion.

Again though, the defence of ‘traditional marriage’ on religious grounds is a historically curious position. Rewind the clock 1,000 years, and marriage in England would be unrecognisable compared to the institution of today. Consent was irrelevant for many parties (consider the 12th Century nobleman who tried to marry a four-year-old peasant girl), consummation of a marriage was by no means a necessity, and a celibate marriage was for many theologians the purest and most spiritual of Christian unions.

Crucially, the involvement of the State in any sort of ‘official’ marriage as it would be thought of now is barely 300 years old. For long stretches of Christian history in pre-modern Europe, marriage was a thing of colourful fluctuation where the Church even officially ordained adelphopoiia services which were arguably analogous to marriage for same-sex couples (although the term ‘homosexuality’ was as yet uncoined).

Marriage as understood today is in fact a mismatch of various Roman customs, Christian principles, legislative reforms and societal norms. As such, any attempt to protect ‘traditional marriage’ as something concrete and constant is misplaced. It is rather the enforced protectionism of a narrow band of socially conservative practices that, many would say, aligns with a lazy scriptural hermeneutic and a short memory.

In reality, the decision of the ECtHR in Eweida & Others could be used as a catalyst for British religious communities to re-consider certain expressions of religious belief and re-evaluate their place in a society that values human rights and the equal treatment of all individuals.

It is much too easy to confuse instinctive conservatism with religious sincerity. For better or for worse, for richer for poorer, in sickness and in health, religion and law have been in a committed relationship of mutual adaptation for nearly two millennia. Neither stands independently of the other. As with the abolition of the transatlantic slave trade, religion can be used to great effect to challenge unjust legislation legislation (although, of course, the Bible was also ab/used to defend and propagate slavery). On the other hand, laws such as the Act of Toleration (1689) have served to alter the suffocating shape of totalitarian religious orthodoxy.

Accordingly, the insights gained through the jurisprudence of human rights in cases like this can serve as a helpful needle prick to the conscience of some religious traditions. Before rushing to court to cry foul in the future, a person of religious conviction would do well to remember this and consider for a moment whether history is likely to be on their side.

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© Andrew Worthley is a practising barrister and lecturer at the City Law School, where he teaches Employment Law on the Bar exam. He also holds a licence in theology.

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