How Europe defines religious freedom

Last week, my colleagues in America were kept very busy by a Supreme Court hearing which touched some sensitive nerves: it concerned two firms run by devout Christians who object to implementing parts of the Obamacare health-care mandate which require them to offer contraceptive services to their employees. To understand the red-hot sensitivity of the case, you have to know not just the details of the arguments submitted, but the broader context formed by America's understanding of religious freedom. It is common to hear Americans draw a sharp contrast between their country's religious order and that of Europe.

So what exactly is the difference? That's too big a question for one Erasmus posting, so let's divide the matter into two parts, theory and practice. The fundamentals of America's religious order are summed up in the first 16 words of the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."). This elegant form of words, on whose interpretation millions of words have been expended, has no precise equivalent in Europe. The "free exercise" of religion is guaranteed, albeit with qualifications, by Article 9 of the European Convention on Human Rights, which all 47 members of the Council of Europe have signed.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

The article goes on to say that freedom of religion can be limited in the interests of "public safety...the protection of public order, health or morals, or for the protection of the rights and freedoms of others." That seems quite a broad range of exceptions. Nor can be there any equivalent of America's "establishment" clause, because many European countries either retain established or national churches (think of England, Denmark and Greece) or accord certain historic privileges to the Roman Catholic church (as in Spain, Italy and parts of Germany). This diversity of regime, ranging from church-minded Greece to ultra-secular France, is guaranteed by the Treaty on the Functioning of the (28-member) European Union. Article 17 of that treaty states that the "Union respects...the status under national law of churches and religious associations or communities in the member states."

In other words, there is no question of Brussels imposing a uniform church-state regime. But for all the differences in theory, there are some ways in which European and American practice has been converging. In both places, courts have recently leaned towards respect for the "autonomy" of religious organisations—their right to set their own rules in respect of internal organisation and even hiring policy.

In both America and the EU, important bits of legislation mandate, albeit with exceptions, the equal treatment of people of different religions. America's Civil Rights Act of 1964 was intended to outlaw all discrimination on the basis of religion as well as race and national origin. In EU law, there is a directive outlawing all forms of discrimination (including over religion) in employment, as well as a broader equality directive which does not mention religion. Both in America and Europe, it is acknowledged that indirect discrimination—applying a rule which may disadvantage certain groups—may be permissible if the purpose is legitimate.

From that tangle of legal and constitutional principles, judges in both America and Europe have to pick their way through the claims of parties—be they private employers, employees, or agents of the state—who aspire to behave differently from other people, or avoid being treated worse than other people, because of their religious belief. The principles are clearer in Europe, but the case law is equally tangled on both sides of the Atlantic. In my next posting, I will have a look at how European judges have reacted to cases which are a bit similar to the Obamacare saga.