essay

Richard Nellari

              

The freedom of religion
and freedom from religion

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In Lautsi vs. Italy, the applicant considered the school’s
practice of displaying the crucifix in each classroom to be contrary to the
principle of secularism which she wanted for her children. She believed she had
a claim under Article 2, which protected the rights of parents to ensure such
education and teaching in conformity with their own religious convictions.

Her essential claim was that Article 9 and A2P1 should be
interpreted as imposing an obligation on the State to maintain absolute
religious neutrality within the State education system. Lautsi asserted that any
manifestation of religious symbols that could be viewed as having support should
be prohibited. It was asserted that the mere exposure to the sight of a
crucifix in an educational setting would violate a child’s freedom of religion
or freedom from religion, and this would violate the parent’s right to have
their children have education in conformity with the parents religious beliefs.
 

The Second Section of the ECtHR, which issued a unanimous
judgment on 9 November 2009 holding that Italian law was incompatible with the
Convention, finding a violation of Article 9 in conjunction with A2P1 and
awarding Mrs Lautsi €5,000 in damages.

On appeal, the Grand Chamber (by a 15-2 majority) reversed
the judgment of the Second Section. The Grand Chamber held that Italian law is
compatible with the ECHR and that no violation of Mrs Lautsi (or her
children’s) rights had occurred. The obligation to hang crucifixes in
classrooms were from a Royal Decree from 1860 and restated in 1922 and 1926 in ministry
of education circulars. The catholic church is named in the constitution. The
constitutional court has declared that secularism is one of the main principles
of the system and that the state should be pluralist. In 1985 there was an
amendment that removed the principle that Catholicism was the only official
religion.

One
strong argument to allow Italy to keep the crucifixes in the schools is
pluralism. Making one blanket rule for every state affects the bigger picture
of pluralism. Decreasing the diversity of states’ religious protections. 

  

Another
argument would be that religion is being targeted. Expressions of secular not
banished, but religion singled out. For example views to “go green” are not singled
out as influential on children but religious symbols are. Should we not be able
to tell kids about recycling or global warming? After all, these are also views
that fall within the belief systems that parents might find contrary to their own
beliefs. The closed neutrality argued for in the first decision would stifle a
lot of teaching points if applied evenhandedly.

 

Finally,
the main argument is that rules Cannot be neutral if binary.

 

 

Lautsi was not only about the crucifix but also tension
between individual rights and collective identity. In my opinion states should also
be given a right to self determination which include their collective identity.
There are many examples of states where religious element is part of who they
are like anthems, flags and constitutions of various countries. It does not
make sense to remove all religious symbols and representations from established
practices that the state was built on.

 

Religion
can be seen as manifesting in identity of the state. Identity of the states
should also have pluralism. If there is a singular rule to ban the to protect
individuals’ rights from religion or to religion, then this would create a lack
of pluralism in terms of states with different religious rules.

 

Main
solution; The idea should not be to separate or to stifle religious manifestations
but instead create neutrality through accommodation.

 

I agree with the 15-2 decision. Requiring the removal of all
religious symbols does not create neutrality. It should be a positive law
welcoming all religions. I believe it would be best to teach children about
pluralism and tolerance instead of banning a religious symbol from the schools.
It is best for students to know about the different religions available them,
to learn respect of other religions, and to think for themselves. It is not
neutral to ban the crucifix because banning religious symbols is favoring the
non-religious views. On the other hand, allowing for multiple religious symbols
develops a neutral environment without taking away aspects of a country’s identity
like Italy’s history with Christianity.  With
respect to allowing the non-religious beliefs, it is harder because there are
no religious symbols. However, I believe this can be resolved by explaining to
the students that they should not feel compelled to have a religion and informing
them of beliefs like atheism. The main issue in this case is not one of rights
but rather it is concerning the state’s obligation to stay neutral; when church
and state are separate, it should not look like it is favoring a religion over
another or beliefs of no religion. I think this issue is resolved as long as
other religious symbols and views are given a level playing field with an
opportunity to be on the walls and explained to the students.

 

 

 

Arguments
in favor of removing the crucifix highlighted the age of the children in the
public schools. The children were young and the thought was that this made them
more vulnerable to suggestions like religious symbols. They would see the
crucifix at the school like an endorsement by the adults. Additionally, it is
clear that the main connotation of the crucifix is religious. Children have
probably seen crosses in other connotations, but it is decidedly religious when
a figure of Jesus is on the cross.

 

BOTH

 

These
cases are important because the stakes were high. Religion is a polarizing
issue, especially because Europe is more diverse now and more secular. Best
thing for the state is to be neutral because no one should be excluded.

 

 

 

Another important case regarding religious issues was
Achbita. In this decision, the European Court of
Justice (ECJ) issued a ruling that a blanket ban on wearing any signs of
religious or political beliefs did not constitute direct discrimination.
However, it said the ban could constitute indirect discrimination if it disproportionately
affected members of a class and did not have a legitimate aim that was
appropriate and necessary. The ECJ referred the case back to the referring
court on the basis that the preliminary ruling would assist in the ongoing
proceedings.

The Court
of Cassation in Belgium had made the request to the ECJ in respect of
proceedings brought by Ms Samira Achbita, a Muslim, and the Centre for
Equal Opportunities and Combating Racism (Centrum), against G4S Secure
Solutions NV (G4S) following Ms Achbita’s dismissal for insisting that she
wished to wear an Islamic headscarf at work.

The ECJ
reasoned that whilst G4S’ internal rule prohibiting employees wearing any
visible political, philosophical or religious signs in the workplace did not
amount to direct discrimination under Article 2(2)(a) of Directive 2000/78, it
might constitute indirect discrimination within Article 2(2)(b).

An
obligation like the blanket ban would constitute indirect discrimination if its
apparently neutral nature results in putting individuals of a particular
religion at a disadvantage when it is applied to them.

However,
even if this treatment amounts to indirect discrimination, it may still
fall within the constraints of the law if it is objectively justified by a
legitimate aim and the means of achieving that aim are appropriate and
necessary. Usually the justification is not as high for indirect discrimination
as it is for direct because indirect discrimination is usually an unintended
consequence. The ECJ said it was for the referring court to ascertain whether
the ban amounted to indirect discrimination. 

  

There
might be a few arguments for the company’s side. First, the company could argue
that it should have the freedom to conduct business with its own dress code and
rules. A receptionist is the face of the business and should be able to make
customers feel comfortable. Second the company might argue that this is not
discriminating because it is applied to all the employees.

  

However,
in response to those arguments, Achbita could argue that businesses  should not cater to discriminatory preferences
of clients. It is not okay to discriminate against certain religions, genders,
or races within a company just because the clientele of the company have those
views. It is not right to cater to the prejudice of some clients and create an occupational
rule that promotes those discriminatory views. The hijab is normal and Muslims
shouldn’t have to hide their religious manifestations.

 

 

 

The court should consider whether the purpose of
the company rule was legitimate? And even if there was a legitimate purpose,
was the blanket ban the least restrictive measure? When considering the least
restrictive method of resolving the conflict, the court might find that she did
not have to be fired and could have been given a back office job without
creating an undue burden.

 

Different
impact on different religions

 

 

The
common theme in Lautsi and Achbita is figuring out the best way to interpret neutrality.
Excluding all religious symbols is taking a position; excluding religious
symbols is promoting secularism. There can be two definitions of neutrality. Either
it is neutral because everyone is the same by removal of anything different or neutral
by permitting the difference and by giving that opportunity to everyone.

Company
is the one deciding the def on neutrality so don’t give it much weight.

 

 

 

Granted
there can be circumstances like in an operating room where it needs to be removed
but discrimination on the behalf of customers is not a legitimate reason.

 

 

Neutrality

 

Ms. Samira Achbita worked
for G4S in Belgium as a receptionist, with no uniform provided. When she began
wearing the Muslim headscarf, the company claimed to have a written policy of
“neutrality” in the workplace, meaning a bar on clothing expressing a
religious, philosophical, or political belief. G4S dismissed Ms. Achbita, and
the next day the written policy came into force.  Juliane Kokott, the German
advocate-general at the Court of Justice, gave an opinion on May 31, 2016
that G4S’s policy was only indirect discrimination and can be justified.

G4S dismissed Ms. Achbita only because she expressed her religion
by wearing a headscarf. They did not argue that the headscarf affected her
ability to do her job. G4S only claimed that it had a company policy of
appearing “neutral,” and that their policy did this by treating each worker’s
religious beliefs equally. Advocate-General Kokott argued that a rule targeting
expression of religion does not treat a worker less favorably on grounds of
religion. She also argued that, in any event, an employee’s willingness to show
“neutrality” is a legitimate occupational requirement.

The argument that there was no
direct discrimination is clearly wrong. The expression of religion is an aspect
of religion, as Advocate-General Kokott accepted. G4S dismissed Ms. Achbita
because she wore a headscarf for religious reasons: treating her differently
from a woman who wore a headscarf for other reasons. Ms. Achbita was singled
out for unfavourable treatment because of her religion.

G4S claims?and Advocate-General
Kokott agreed?that eliminating religious clothing maintains a “neutral” work
environment, and that this is a legitimate aim allowing what would otherwise be
unlawful direct or indirect discrimination.

The claim creates the idea that employers can decide there is a
single “neutral” way that Europeans behave and dress. Under this view, it would
not be “neutral” for a woman to wear the Muslim headscarf or a man to wear the
Jewish kippah. People are only “neutral” when their religion or beliefs are
held and communicated without symbolic clothing. Such an interpretation of EU
law would promote hostility to people who show their religion through their
clothing, and to the employers for whom they work. It would legitimize the idea
that these people and their employers are partisans. This would be particularly
harmful for Muslims, who are the main victims of religious
discrimination in Europe.

Advocate-General Kokott’s
position is contradicted by the most important text of EU law:  the Treaty
on European Union. Article 2 affirms that Europe is “a society in which
pluralism, non-discrimination, tolerance, justice, solidarity and equality
between women and men prevail.”

In a society founded on pluralism, non-discrimination, and
tolerance, truly neutral employers do not target clothing which expresses the
wearer’s religion

Islam has been a European religion for 1,400 years, yet women who
express their Muslim beliefs through wearing the headscarf are still
stigmatized as not “neutral,” or truly European. In an important report by the
European Network against Racism, these women speak of the Islamophobia they face
in public and in the workplace.

If the Court upholds G4S’s
conduct as lawful, it may open the door to wider claims of “neutrality.” If a
ban on the Muslim headscarf is ruled “neutral,” employers may be encouraged to
adopt bans targeting other expressions of identity, such as language or
clothing. Should an employer be allowed to decide that “neutrality” of the work
place requires workers to speak only one language? Can an employer forbid staff
to wear distinctively Roma clothing or clothing associated with other national
minorities?

In short, does equality law not
forbid employers from demanding that workers “leave their identity at
home”?their ethnicity, language, and religion?just because the employer or the customers
of the business do agree with the way the identity is manifested?

For the first time, the Court
of Justice can apply the fundamental values of European Union law to the issue
of employment discrimination on grounds of religion. The Court should hold that
a neutral workplace is open to workers who do the job, regardless of their religious
beliefs and how they express them through clothing.

 

This reasoning is shocking, to say the least. In fact, it shows
a total disconnect of the Luxemburg judge from reality. A first practical
question would be: how many workplaces offer jobs with no customer contact
whatsoever? Maybe call centre jobs and jobs with night shifts? What about the
increasing number of Muslim women and other employees manifesting their beliefs,
who aspire to professions that require contact with the public such as lawyers,
doctors, professors, social workers or engineers? In practice, this
‘compromise’ would in any case mean a serious curtailment of people’s right to
access the job market. A second question would be, what does an “image of
neutrality” of a company mean?  Towards whom is a company neutral when it
decides to hide its visibly religious employees for the sake of their corporate
image? Should the main concern of an employer not be that his/her employees
have the capacities and skills to serve the customer in a professional and
neutral way? Moreover, when neutrality is assessed form the perspective of
customers it is often forgotten that customers are also diverse. What kind of message
is given to customers with the same background as the employees who are
discriminated because of these kind of policies? In an increasing diverse
society, with an increasing number of people with high potential and from
different visible and non-visible faiths this kind of reasoning is lacking
awareness of reality.

Finally,
the main problematic aspect of this reasoning is how the ECJ easily accepts the
reasoning that employees who are treated differently would not be discriminated
against, as long as you ‘give them’ the ‘opportunity’ to have a back office
job. It encourages employers to hide diversity. To hide people who are visibly
religious in the ‘closet’ of the company.[1] Kenji Yoshino calls this phenomenon
“covering”.[2]Imagine the same rationale would be
applied to other discrimination grounds. Imagine customers might feel
uncomfortable in front of an employee who has a disability. Would it be
generally accepted that a European Court says: just make sure you give these employees
an alternative in a back office and we won’t consider it discrimination. Or
imagine a company doesn’t allow employees who are pregnant to carry out a job
with customer contact, how would the reaction be? And where are the limits to
these kinds of legitimations of discrimination? Would an employer be allowed to
require an employee with the name Mohammad to use another name in his contact
with customers, since he might give the impression to belong to a faith some
customers might feel uncomfortable with? (see also an earlier post)
The covering of discrimination is still discrimination. Also when it is
enshrined in a general company policy and also when it is applied in a
consistent manner. The opposite message the ECJ gives in these cases is
shockingly at odds with the principle of equality enshrined in the EU Charter
of Fundamental Rights and in the European Convention on Human Rights.

 

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