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Religious rights and choice under the European Convention on Human Rights.
Peter W. Edge, LL.B., Ph.D. (Cantab.)*
Reader in Law and Religion, Oxford Brookes University. firstname.lastname@example.org *The author would like to thank Dr. Jonathon Black-Branch, Judith Hendrick, Dr. Lucy Vickers, and Professor Diana Woodhouse, all of Brookes; other members of the Society of Public Teachers of Law; and Dr. Graham Harvey, of King Alfred's College, Winchester. Copyright © 2000 Peter Edge. First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
This paper argues that an analysis of the jurisprudence on Article 9 of the European Convention on Human Rights suggests an unspoken, but important, role for the concept of choice in the construction of religious rights. Choice is given a fundamental role in the establishment of such rights, with the Court assuming that individuals choose to believe, an assumption which brings with it significant theoretical and practical problems. Choice is also given a key role in restricting religious rights, with the Court and Commission uncritically accepting an extensive form of waiver of religious rights by those in employment. These developments are not so firmly established in the case-law as to be unassailable, however, and this paper suggests a variety of ways in which the jurisprudence could be modulated to address the concerns it raises, in particular by an appreciation of the different religious interests protected by Article 9.
Introduction. Choice and the right to hold a belief. Choice in the manifestation of religion. Choice as a basis for religious rights. Choice as a basis for the waiver of religious rights. Conclusion Bibliography.
During the passage of the Human Rights Act 1998, the religious rights guarantees of the Convention became a matter of considerable debate. In particular, religious organisations feared that the religious liberty guarantees under ECHR Article 9 would be insufficient to preserve particular religious practices from the impact of other rights guaranteed under the Convention (Cumper, at press). To a large extent, this reaction arose from uncertainty as to the protection offered by Article 9, as well as the threat posed by other substantive articles. It also represents, however, an example of the clash between religious philosophies and what Spickard has described as the essentially religious discourse of the human rights movement – a movement with “its sacred histories and texts, its holy discourses, its rituals, its saints and demons” (Spickard, 1999 at 1.9). The purpose of this paper is to explore one area of uncertainty within Article 9, an area which also demonstrates the extent to which religious rights under the ECHR are currently based upon an unarticulated vision of religious experience. This paper argues that an analysis of the jurisprudence on Article 9 suggests an unspoken, but important, role for the concept of choice in the construction of religious rights. Choice is given a fundamental role in the establishment of such rights, with the Court assuming that individuals choose to believe, an assumption which brings with it theoretical and practical problems. Choice is also given a key role in restricting religious rights, with the Court and Commission uncritically accepting an extensive form of waiver of religious rights by those in employment. These developments are not so firmly established in the case-law as to be unassailable, however, and this paper suggests ways in which the jurisprudence could be modulated to address the concerns it raises. As part of this argument, it is necessary to consider at some length the jurisprudence on Article 9. This is made more difficult by a distinction embedded in the text of Article 9 itself, which provides “1. 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 private or public, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The structure of Article 9 has led the Court and Commission to effectively consider two religious rights – the unqualified right to freedom of thought, conscience and religion, including the freedom to change any religion; and the qualified right to manifest religion or belief. At a number of points, this paper makes use of a more complex division of religious rights into four distinct but related categories - the right to a religious belief; the right to a religious identity; the right to be a member of a religious community (Shaw, 1993 at 450); and the right to act on such belief, identity, or membership of a community. Nonetheless, the
jurisprudence is based on a fundamental distinction between belief and manifestation. Accordingly, discussion begins with a separate analysis of choice in the right to hold a belief, and in the right to manifest that belief, before moving on to a critical analysis of the role of choice in each case. The four-fold distinction is used for analytical purposes within these sections, and later is used to argue that the proselytism cases could be better placed in religious identity, and thus the qualified right to manifest, rather than in the absolute right to hold a religious belief.
Choice and the right to hold a belief.
The right to hold a belief requires the State to abstain from interfering with some, but not all, beliefs of the individual. The jurisprudence has yet to give clear guidance as to how these beliefs are to be identified. Religious belief, in a non-theistic sense including atheism and agnosticism, is protected by the Article (Kokkinakis v Greece (1994) 17 EHRR 397, Ct.). A metaphysical element is not required, however, as ethical or philosophical convictions such as opposition to abortion (Knudsen v Norway (1986) 8 EHRR 45, Cm.), pacifism (Le Cour Grandmaison and Fritz v France (1989) 11 EHRR 46, Ct.), or veganism (H v United Kingdom (1993) 16 EHRR CD44, Cm.) are also protected (cp. Frame, 1992). Although the beliefs protected are not to be categorised by their content as such, there is a suggestion in the jurisprudence that the beliefs must be distinguishable from mere opinion, and “attain a certain level of cogency, seriousness, cohesion and importance” (Campbell v Cosans (1982) 4 EHRR 293, Ct.). Although the emphasis upon the seriousness and importance of the belief to the individual may be justifiable, requirements of cogency and cohesion are much more problematic. Given the inability of a pluralist legal system, including that of the Convention, to rule upon the merits of religious statements, it would seem difficult to find that particular beliefs had failed to reach a minimum level of intellectual sophistication, particularly within a religious tradition which favoured revelation or intuition over intellectual systems of selfreferential doctrine. Equally, cohesion may be seen as irrelevant to counter-rational mysteries within some religious traditions, or assume an epistemological structure not found in some religions. The difficulties of Wicca and Druidry in receiving unequivocal recognition as religions under the Convention may arise from this requirement of cogency and cohesion (See X v UK, (1977) 11 Decisions and Reports, Cm.). Jurisprudence concerning the ability of single issues to found an Article 9 claim, however, suggests that cohesion may not be an inflexible requirement (Evans, 1997). Once it is established that a given belief falls within the scope of the Article, it “affords protection against indoctrination of religion by the State” (Angelini v Sweden (1988) 10 EHRR 123, Cm.), and can also require the State to protect the individual against such improper influence to change her/his beliefs (Kokkinakis v Greece). This right is unqualified that is to say, the State cannot disregard the right in order to protect some other interest. This is not as startling as may appear, however, as the right is basically internal : it is the right of the individual to be free of inappropriate attempts to change her/his beliefs or indoctrinate her/him. Any claim beyond the right to simply hold the belief is treated as a claim to manifest that belief, discussed in the following section. The most important case is that of Kokkinakis v Greece (see Edge, 1995; Edge, 1997). The applicant had been prosecuted for the criminal offence of proselytism, and argued that this
was a violation of his Article 9 right to manifest his religion. Greek law prohibited: "any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naivety," (Law no. 1672/1939 s.2) The majority of the European Court of Human Rights found that the application of this law was a restriction on the Article 9 right. It was prepared to accept, however, that the aim of the law was a legitimate one, "namely the protection of the rights and freedoms of others, relied on by the Government" (para. 44). The Government had identified the law as intended "to protect a person's religious beliefs and dignity from attempts to influence them by immoral and deceitful means" (para. 42). Thus, although the case concerned Kokkinakis' right to manifest his religion, this right was set against the rights of those he proselytised to hold their beliefs free from improper influence, and so is of considerable importance in determining the content of the right to hold these beliefs. The majority of the Court thought that : "a distinction has to be drawn between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others. Scrutiny of [national law] shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and in so far as they are designed only to punish improper proselytism, which the Court does not have to define in the abstract in the present case". (para. 48) Here the majority are implicitly indicating that freedom to hold a belief is based on freedom of choice, in that conduct which reduces this freedom of choice - whether improper pressure, taking advantage of individuals with a reduced capacity to choose, or the negation of individual choice implied by 'brainwashing' – constitutes a violation of that right. In this case, the majority found that, while the law itself might be in compliance with the Convention, its application to Kokkinakis had been too broad to constitute action necessary in a democratic society, and therefore violated Article 9. Judge Pettiti, although agreeing that the restriction on proselytism constituted a violation, took the view that the Greek law itself was a violation, because it did not ensure that "[t]he only limits on the exercise of this right are those dictated by respect for the rights of others where there is an attempt to coerce the person into consenting or to use manipulative techniques". Judge Valticos, in a dissenting Opinion, described the conduct covered by the Greek law as the "rape of the beliefs of others". Judge Martens, in a partly dissenting Opinion, stressed that :
"the State is bound to accept that in principle everyone is capable of determining his fate in the way that he deems best – there is no justification for the State to use its power 'to protect' the proselytised (it may be otherwise in very special situations in which the State has a particular duty of care, but such situations fall outside the present issue)." From the majority in Kokkinakis, it seems that the right to hold beliefs under Article 9 is based upon choice, and that some conduct which reduces freedom of choice may be restricted in order to protect the right. This idea was developed further in Larissis and Others v Greece (1998) 27 EHRR 329, Ct.. In that case, the applicants were officers in the Greek Air Force, who were convicted of proselytism against a number of subordinates, as well as a number of civilians. The majority of the Court noted that Article 9 did not protect "improper proselytism, such as the offering of material or social advantage or the application of improper pressure with a view to gaining new members for a church" (para. 45). The Court distinguished sharply between the prosecutions concerning subordinates, and those concerning civilians. In relation to the airmen : "the Court notes that the hierarchical structures which are a feature of life in the armed forces may colour every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject may, within the confines of military life, be viewed as a form of harassment or the application of undue pressure in abuse of power." (para.51) "two airmen felt themselves constrained and subject to a certain degree of pressure owing to the applicants' status as officers, even if this pressure was not consciously applied … [a third] like the other two airmen, must have felt to a certain extent constrained, perhaps obliged to enter into religious discussions with the applicants, and possibly even to convert to [their] faith." (para. 52-3) Although they upheld the restriction on the applicants in relation to their subordinates, the Court did not do so for the restriction in relation to civilians, finding it "of decisive significance that the civilians whom the applicants attempted to convert were not subject to pressures and constraints of the same kind as the airmen" (para.59). In conclusion, the right to hold a belief under Article 9 is essentially the right to hold a belief free from circumstances that might render changing the belief an unacceptably unfree decision. By taking this approach, the Court has implicitly accepted the explicit statement found in the International Covenant on Civil and Political Rights art. 8(2) : "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." (see Cumper, 1995; Human Rights Committee, General Comment 22).
Choice in the manifestation of religion.
Manifestation of belief can take a number of forms (Cullen, 1997). Most obviously, this includes religious worship (Holy Monasteries v Greece (1994) 20 EHRR 1, Ct.); educating oneself or others in the belief (Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, Ct.); proselytising, or attempting to spread the belief amongst others (Kokkinakis v Greece); proclaiming belief publicly (App.9820/82 v Sweden (1982) 5 EHRR 297, Cm.); or observing dietary or similar prohibitions (App.9820/82 v Sweden (1982) 5 EHRR 297, Cm.). It seems that merely acting from a religious motivation is not sufficient to make an act a manifestation of religion. In Arrowsmith v United Kingdom (1978) 3 EHRR 218, Cm. the applicant had been convicted under a United Kingdom statute for distributing leaflets intended to ‘seduce’ troops from their allegiance in relation to service in Northern Ireland. She claimed that this was a violation of her right to manifest her pacifism under Article 9. Not every part of the leaflet endorsed pacifist philosophy, and it did not constitute a general call for persons to give up all violence. The Commission considered : “that the term ‘practise’ as employed in Article 9(1) does not cover every act which is motivated or influenced by a religion or belief ... when the actions of individuals do not actually express the belief concerned they cannot be considered to be as such protected by Article 9(1), even when motivated or influenced by it”. (para. 71). Later cases support the view that religious motivation is not sufficient to bring Article 9 into effect - there must be some characteristic about the activity itself which is of a religious or conscientious nature (cp. Thomas, 1991; Carter, 1993). Thus, participating in an action designed to provoke a strike in public civil service (App.10365/83 v Germany (1985) 7 EHRR 409, Cm.), refusing to perform administrative functions associated with an office in a state religion (Knudsen v Norway (1986) 8 EHRR 45, Cm.), or to pay taxes towards state revenue used to fund objectionable purposes (Bouessel de Bourg v France (1993) 16 EHRR CD49, Cm.) do not fall within Article 9. The behaviour must, rather, be “the direct expression of a religious or philosophical conviction” (Faclini v Switzerland (1993) 16 EHRR CD13, Cm.). The construction placed on the applicant’s actions can determine this. In Stedman v United Kingdom for instance, the applicant had been dismissed for refusing to work on Sundays, that day being a day of rest under her religion. The Commission found that, although her refusal was religiously motivated, she had been dismissed for refusing to work particular hours rather than because of her religious beliefs as such. The right to manifest religion is, moreover, subject to a range of restrictions. Manifestation may be restricted by limitations proscribed by law which are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others (See Poulter, 1997). These restrictions are similar to those found in other Articles in the Convention, and have been applied in a similar way by the Commission and the Court. In particular, the Court has recognised that its role is not to second-guess the domestic authorities, but rather to act as a Court of review, ensuring the decisions of local bodies fall within the national margin of appreciation (Ahmad v United Kingdom (1981) 4 EHRR 126,Cm. at para. 19; see generally Lavender, 1997; Edge, 1998). Choice in relation to manifestation has arisen primarily as a ground for excluding an applicant from the rights guaranteed under Article 9, thus allowing the Court to avoid determining whether the right has been violated, or whether such a violation was justified. The cases have arisen primarily in the context of employment, causing Gunn wryly to note :
"the 'fundamental rights' of the European Convention are subject to a simply contractual waiver and … governments need not respect the fundamental rights of their employees, provided that the applicants are informed of the restrictions in advance and that the employees are free to resign.". (Gunn, 1996 at 315). A strong line of cases has concerned the status of physical and legal persons associated with a religious organisation. In Knudsen v Norway (1986) 8 EHRR 48, Cm. the Commission was required to consider the application of a vicar of the Norwegian State Church who had been dismissed from his job, but permitted to continue carrying out religious functions, although not as a State employee. The vicar had refused to carry out what he described as “the State’s part of his office” as a protest against domestic abortion law. The Commission first noted that a right to hold office in the Norwegian State Church or otherwise was not as such guaranteed under the Convention, but accepted that in certain circumstances dismissal of a disobedient State employee could raise an issue under the Article. One of the grounds upon which the Commission rejected the vicar’s application was that : “If the requirements imposed upon him by the State should be in conflict with his convictions, he is free to relinquish his office as clergyman within the State Church, and the Commission regards this as an ultimate guarantee of his right to freedom of thought, conscience, and religion”. In Karlsson v Sweden (1988) 57 Decisions and Reports 172, Cm. the applicant was a priest in the Swedish State church who was refused a post in the church because of doubts over his ability to work properly with female priests. The Commission found that : "The freedom of religion … does not include the right of a clergyman, within the framework of a church in which he is working or to which he applies for a post to practise a special religious conception. If the applicant's views on women priests and thus his intentions regarding cooperation with female colleagues is found to be incompatible with the view generally held by the church in question the latter is not obliged to accept the applicant as its servant. On the other hand if the requirements imposed upon a person [employed] by the church should be in conflict with his convictions he should be free to leave his office, and the Commission regards this as an ultimate guarantee of his right to freedom of thought, conscience and religion." (para.1). Similarly, in Williamson v United Kingdom (1995) HUDOC, Cm. the applicant was a priest of the Church of England who argued that the change in ecclesiastical law allowing the ordination of women as priests was heretical. As a result, he argued that the change in the law of his church violated Article 9 by, inter alia, requiring him to accept women priests in his church and leaving him in a church whose identity had been changed without his consent. The Commission appears to have endorsed the change in principle, as being intended to promote greater equality between the genders and thus to protect the rights of others, but explicitly endorsed the approach in Karlsson. Finally, in Hautanemi and Others v Sweden (1996) 22 EHRR CD155, Cm. the applicants
complained that use of a particular liturgy had been forbidden in the applicant parish. The Commission found that the parish had the ability to claim Article 9 rights as an association with religious aims acting on behalf of its individual members, and went on : "The prohibition was thus aimed at providing rules for the liturgy used in Finnishspeaking parishes belonging to the Church of Sweden. It has not been established that the applicant parish would be prevented from leaving the Church of Sweden if it were unable to accept the liturgy of that Church" It is easy to misunderstand the scope of these cases, as indicating that a religious test, restricting particular posts to adherents of particular religions or excluding particular adherents from office on the basis of their religious beliefs, is always acceptable under the Convention; thus, that it is always acceptable to give an individual a choice between practising her/his religion, and taking up a particular job or post. There are, however, indications as early as Knudsen that some claims to office can raise rights under Article 9. The key lies in the emphasis we give to Knudsen. As a matter of law, only a State is bound by the Convention - private individuals and organisations are not required to respect it, so State churches are the only religious organisations to be subject to review in this way. It is easy to place the emphasis in Knudsen on it being a State church, in which case similar principles would seem to apply to other State posts. But perhaps the stress should be on it involving a State church, in which case similar principles could apply to other church posts, although the structure of the ECHR means that churches unconnected with the State cannot directly violate the Convention. Thus, it may be that Knudsen, and this line of cases generally, should be limited to holders of posts in religious organisations, who by taking their posts limit their absolute religious freedom because of the nature of the post. Consider, for instance, a religious organisation, such as a Church, established with clearly defined tenets of belief and doctrine, and employing a professional clergy through donations of lay members of the organisation. If a member of this clergy is no longer able to subscribe to the doctrines of the organisation, there are two routes by which her/his religious rights may be guaranteed. The Church-employer may be required to accommodate these religious beliefs, effectively being obliged by the State to accredit, and fund, a heretic. Alternatively, and the route taken by the organs of the ECHR, the Church-employer may be allowed to dismiss the cleric, whose ultimate religious freedom is guaranteed by their right to leave the organisation. This seems the better option. There has been a clash between the individual's religious beliefs, and the core values of the organisation which s/he accepted when taking up the post. If the organisation had been set up with no express or implicit tenets of metaphysical belief or doctrine, on the other hand, then removing the employee from her/his post becomes a less defensible action which impinges on the ease with which they hold and manifest her/his beliefs. This is not to say that religious and philosophical tests would necessarily be limited to clergy who happen to be employed by the State. Consider a police officer who becomes convinced that legal structures are inherently oppressive, and becomes a dedicated anarchist. Could the State legitimately remove her/him from her/his post because of a conscientious objection to being involved in the arrest and eventual punishment of those who break the criminal law ? The answer must be yes - like the heretical cleric, the anarchist police officer has moved to a position where her/his personal beliefs are in direct conflict with the core values of the office which s/he seeks to hold.
The key element, by this analysis, is the direct conflict between the individual's beliefs and the core values of her/his office. A religious test generally applicable to public office could only be permitted under the Convention if the Convention accepted that the core value of every office was a religious one. The Convention organs have found repeatedly, however, that pluralism is a core value of the Member States. Although the clergy cases can be read narrowly, the Commission, and now the Court, has shown a willingness to extend this idea - of freedom to leave a post as satisfying the requirement of freedom of religion - to non-religious employment situations. In Ahmad v United Kingdom (1981) 4 EHRR 123, Cm., which concerned a teacher refused permission to attend a mosque for worship during the school day, one ground for the Commission rejecting the applicants claim was that he had "in essence given up his right to claim an exemption from the rules concerning working hours when he had freely accepted employment which could have resulted in conflict with his religious obligations" (Stavros, 1997 at 616). In Kontinnen v Finland (1996) 87 Decisions and Reports 68, Cm. the applicant was an employee of the State railway who became a Seventh-day Adventist. As a manifestation of his religious beliefs, he sought permission to refrain from working from sunset on Friday. When the sun set before the end of his normal working hours, he absented himself from work. He was disciplined, persisted in this practice, and was eventually dismissed after his employer was unable to redeploy him to a post which would not involve the conflict. The Commission accepted that public servants may be able to base a Convention claim on dismissal from their posts, but rejected this application on a number of grounds : "In the present case the Commission finds that the applicant, as a civil servant of the State Railways, had a duty to accept certain obligations towards his employer, including the obligation to observe the rules governing his working hours. He was cautioned by his employer, not having relinquished his post after the irreconcilable conflict arose between his religious convictions and his working hours. In these particular circumstances the Commission finds that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours. This refusal, even if motivated by his religious convictions, cannot as such be considered protected by Article 9(1). Nor has the applicant shown that he was pressured to change his religious views or prevented from manifesting his religion or belief. The Commission would add that, having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion" (para.1) The Court has taken a similar approach in Larissis and Others v Greece, discussed above. A similar approach was also taken in Kulac v Turkey (1999) 27 EHRR 553, Ch., although the application failed on a number of grounds, and it is arguable that this point was not the principal one. In that case, the applicant was a judge advocate in the armed forces, who was compulsorily retired in part because his conduct and attitude revealed unlawful fundamentalist Islamic opinions, contrary to the secularism enshrined in the Turkish constitution. Although the Court found that he was dismissed for reasons unconnected with the manifestation of religion, they also noted :
"In choosing to pursue a military career Mr Kalac was accepting of his own accord a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of members of the armed forces limitations incapable of being imposed on civilians." (para. 28) It seems clear, then, that choice can serve to prevent a claim under Article 9 even outside the context of religious employment. The cases have not, so far, gone beyond employment more generally, and it seems unlikely that every instance where the applicant could have acted otherwise will, ipso facto, fall outside the scope of Article 9. The proselytising applicant in Kokkinakis v Greece, for instance, could have chosen not to spread his faith; or the congregation in Manoussakis and Others v Greece (1996) 23 EHRR 387, Ct., where the Court emphasised the importance of places of worship to the religious life of the community, could have chosen to celebrate their religion in private, rather than as a community. In relation to choice, however, the Commission and Court have recognised that some choices are not genuine ones, and will not suffice to exclude a Convention claim. In Darby v Sweden (1988) 56 Decisions and Report 166, Cm. the applicant was required to pay church tax for a religious organisation of which he was not a member. Exemptions were possible for those formally registered as resident in Sweden, but the applicant opted not to so register. The Commission noted that : "It cannot be accepted that an individual should be forced to move from his home and take up residence in the State concerned before he could enjoy the right to have his freedom of religion respected by that State" (para.52) As Gunn has noted, this cuts against a blanket implication that "religious rights are not infringed when the petitioner retains the choice of altering his circumstances" (Gunn, 1996 at 318). Although the case is explicable as limiting choice to claims in respect of office or employment, it is also explicable as a choice which the applicant could not be expected to make. The requirement that the choice be a genuine one is drawn out most unambiguously in the recent Court decision of Buscarini and Others v San Marino (1999) HUDOC, GC., a case of sufficient importance to merit a sitting of the Grand Chamber. In this case, the applicants had been elected to the legislature of San Marino, and were required to take the oath laid down by San Marino law. The oath referred to swearing "on the Holy Gospels", and the applicants objected to swearing in that form. The form was insisted upon, however, and the applicants, under protest, took the oath in that form rather than forfeit their parliamentary seats. An optional oath was later introduced for parliamentarians who did not wish to refer to the Gospels, being permitted to swear "on my honour" instead, although the old form remained mandatory for some offices. The applicants claimed a violation of their Article 9 rights. The State argued that the form of words in the oath had lost their original religious character, much like public holidays which had originally been religious feast-days. The Court disagreed, viewing the requirement that the applicants swear such an oath as a limitation of their Article 9 rights "since it required them to swear allegiance to a particular religion on pain of forfeiting their parliamentary seats" (para. 34). The Court clearly saw this as being a restriction on the right of the applicants to manifest their religion, as it went on to consider
whether the restriction could be justified under Article 9(2). The Court found that the restriction was not necessary in a democratic society as it : "was tantamount to requiring two elected representatives of the people to swear allegiance to a particular religion, a requirement which is not compatible with Article 9. As the Commission rightly stated in its report, it would be contradictory to make the exercise of a mandate intended to represent different views of society within Parliament subject to a prior declaration of commitment to a particular set of beliefs." (para.39) One reading of this case would support the argument advanced above, that the clergy cases can be seen as turning on the core values of the office in question – in this case, by comparison, the core values of the office not only do not require a particular religious belief, but are positively inimical to such a requirement. As discussed earlier, however, the approach of the Commission is sufficiently consistent to make such a limitation unlikely. The case may also be read as a departure from the line entirely, being concerned with democratically elected officers, rather than appointed employees of the State. A third reading, however, is that the choice with which the applicants were faced was sufficiently unfree to place them in a position of having no genuine choice. Consider the stark difference in language between being "free to relinquish one's post" (Kontinnen) and "on pain of forfeiting their parliamentary seats" (Buscarini). In the former, the option of leaving the job is presented as a freedom; in the latter, as a penalty serving to coerce the applicant. In conclusion, the freedom to manifest religion may be modified by the particular circumstances which the applicant voluntarily assumes. Freedom of religion for a holder of religious office in a religious organisation is guaranteed by her/his having the power to change her/his circumstances by leaving office. Freedom of religion for other employees is subject to the same choice of keeping her/his job or compromising her/his manifestation of religion – even where, as in the form of military service, a change of employer may involve a change of career. Even within these ranges, however, the choice to leave office may be so unacceptable to the values of the Convention as not to be a true choice, and the religious freedom of the applicant may need to be guaranteed in office.
Choice as a basis for religious rights
This section argues that the cases discussed above indicate that choice is given a central place in the Convention's construction of religious rights; that choice is a problematic foundation for freedom of belief, if not freedom to manifest beliefs; and moves to consider better ways to deal with improper proselytism, which are not based upon the voluntariness of religious belief. It was suggested above that the Court has implicitly adopted the construction, explicit in the International Covenant on Civil and Political Rights, of belief being a matter of choice, and the right to believe being the right to exercise that choice freely. Returning to the fourfold division of religious rights into belief, identity, community, and manifestation, this division would seem to be stratified into increasing opportunities for choice. Thus, the Court having accepted that belief involves choice, it follows that the other forms of religious right are also
based on choice. Take for example an individual who believes that Jesus possessed a number of unique attributes, as stated by most Christian churches' Christology. The individuals relationship with these facts causes her/him to adopt the identity of a Christian, which coexists with the range of other identities s/he possesses. Although it is possible to retain this identity as a purely internal characteristic, s/he chooses to become a member of a particular Christian community. As part of that community, or indeed as an individual, s/he then chooses to perform particular actions which the Court would consider to be manifestations of her/his religious belief. The increasing opportunities for choice, particularly if choice is an apt description for the first step, are evident. One radical approach to problematising choice would be to reject freedom to choose entirely – if individuals are the sum of their genetics and environment, both of which are themselves determined by genetics and environment, what appears to be choice is simply the inevitable playing out of events whose origin can be traced back to before the existence of the individual in question. In the context of responsibility derived from choice, Lucas states the stance neatly: "they are not really my actions and I cannot be held responsible for what my hormones, my genes, my childhood traumas, or the state of the universe at the Big Bang have made me do" (Lucas, 1995 at 13) Whatever the merits of the argument (see Young, 1991; Norrie, 1991; Duff and A. von Hirsch, 1997), it is self-evident that the Convention, and European legal systems generally, are based upon the possibility of the individual having the freedom to make some choices, but are concerned with circumstances which reduce this freedom. A better approach to problematising choice in this context would be to accept, at least provisionally, the possibility of the individual being free to choose in some circumstances, but to argue that the individual does not chose to believe in the same way that, for instance, they chose to enter into a contract or commit a criminal act. In concrete terms, "[i]f I see a flame over there, on the far side of the room, I cannot help believing that the flame is hot" (Price, 1960 at 221). In a recent discussion, Penelhum suggests a binary division between voluntarists, who argue that we have voluntary control over what we believe in the way in which we have voluntary control over our actions; and involuntarists, who deny that we can choose to believe "because belief is not an action and therefore cannot be commanded or done to order" (Penelhum, 1995 at 41). Penelhum accepts that idiom commonly constructs belief as action – we can choose to believe, our choice is often influenced by our desires, and it may be easy or difficult to carry out. Even idiom, however, does not treat belief as a normal type of action : "An inability to do the opposite is something we offer as an excuse when we are discussing our actions, but it is something we point to with pride when we are talking about our beliefs" (ibid, at 42) Penelhum focuses on the type of believing that seems closest to acting – belief when reflection is required to make up our minds. Even here, he finds a number of distinctions, the most important of which is the absence of any intervening stage between concluding the correct course of action and putting it into effect – "if I know what I must believe, I believe it
already" (ibid, at 42). It may be, however, that "belief can be voluntarily cultivated, at least sometimes, although it cannot be instantaneously produced just by a single fiat of will" (Price, 1960 at 222). In particular, we may be responsible for our beliefs, even though we cannot chose them: "Beliefs have what Hume called a natural history. So even if we cannot have beliefs to order, it is quite possible that we can have some degree of indirect control over them by choosing whether to set that history in motion … obviously many of the causes that generate beliefs are actions that we can choose to do or not to do. We can choose whether to read books, attend lectures, look through microscopes, or ask awkward questions" (ibid, 46-7) The approach of the Court may be criticised for failing to consider whether belief is "not something which happens at a particular moment, but something which we have or possess throughout a period, long or short" (Price, op.cit., at 20); and for assuming that the basis of religious interests is religious belief. Most centrally, the Court has not considered the important differences between acting and believing, and assumes that the individual believer chooses to believe, when this remains open to philosophical debate, including debate of a nature protected by Article 9 itself. This is of more than theoretical interest as unexamined assumptions upon how a state of affairs entitled to protection under Article 9 arises may inform the content of that protection. There are three possible ways in which the Court could take account of this criticism. Firstly, the Court could ground the protection of belief in Article 9, not in choice, but some other justification. The Convention is not concerned solely with the protection of voluntary behaviour, or voluntarily acquired characteristics. The non-discrimination guarantee in the Convention, for instance, refers to a number of characteristics rarely constructed as voluntary, such as "sex, race, colour, … national or social origin, … birth or other status" (ECHR art.14). If the state of holding a particular belief is to be protected simply because the state exists, however, the Court may create some interesting problems for itself. Although the evidence is unclear as to whether a state of belief can be created by coercive techniques against adults, the Court might find itself required to protect such beliefs, no matter what evidence was presented as to how the belief was generated – in the same way that a child born with a particular national origin because of the forcible deportation of her/his parents would remain entitled to protection from discrimination on the basis of national origin. The current construction of belief as voluntary at least allows some leeway for dealing with the involuntary creation of beliefs in others. The Court might also find itself required to give more weight to the religious beliefs of children, rather than treating them largely as under the control of their parents in matters of conscience – if belief is not about choice, then the reduced capacity of the child to make properly informed choices seems less relevant to the protection to be afforded her/his beliefs. This would have a serious impact on the treatment of children's religious rights under the Convention, which assumes that children's religious rights gradually separate from those of their parents as they gain in capacity. At the extreme, this could result in the State being required to enforce the rights of children, even those whose capacity to form decisions is sharply limited, against their parents (cp. Ahdar, at press).
Secondly, the Court could retain a commitment to choice, but switch this from the state of belief to the natural history of the belief. In other words, the right to choose, and responsibility for that choice, would be shifted from belief to the process by which belief is acquired. In English law some responsibility for the natural history of belief has already been imposed in, for instance, criminal law. The second head of the test for recklessness in Caldwell  AC 341, HL might be seen as attaching criminal responsibility to a failure to ensure a sound natural history for a belief that the action does not create an obvious risk of harm. A shift to the natural history of the belief would be in line with Kokkinakis and Larissis, but again may lead the Court into some interesting situations. If freedom of belief under Article 9 actually constitutes a right to a sound natural history for beliefs, might that not include access to materials relevant to such a natural history, including access to materials of which the individual is unaware? This may be avoided by casting the right to a sound natural history as a purely negative one – the State will refrain from actions reducing the integrity of the history below a certain point, such as State sponsored indoctrination in beliefs. The right would not include any positive right to integrity in the history, and may not cover minor reductions in integrity. A natural history approach may, nonetheless, result in the Convention organs having to shift focus away from individual events, to the history of the individuals belief as a whole. Consider the airmen in Larissis – might it not be argued that their brief exposure to proselytising superiors, although unpleasant, could have only a marginal impact in the context of a lifetime involved in a national culture based on a different form of Christianity? Such a broad based analysis of the individual situation may sit poorly with a juridical process predicated on the identification of individual State actions which constitute a violation of individual human rights. Thirdly, the Court could switch the emphasis in the proselytism cases from religious belief to some other form of religious right. An obvious possibility is to recast Kokkinakis and Larissis as dealing not with religious belief, but with religious identity. In Kokkinakis Judge Martens, in strong contrast to the majority of the Court, expressed severe reservations, not only about the existence of autonomy reducing conversion techniques, but also the very concept of coerced conversion : "Coercion in the present context does not refer to conversion by coercion, for people who truly believe do not change their beliefs as a result of coercion; what we are really contemplating is coercion in order to make someone join a denomination and its counterpart, coercion to prevent someone from leaving a denomination" (para. 17) Martens here sees the mischief caused by improper proselytism not as striking at the beliefs of the target of the proselytism, but her/his identity as a member of a particular denomination. Within the structure of Article 9, religious identity may best be protected as a manifestation of religious belief, rather than belief itself. This may be the case even where identity is not externally performed – recent jurisprudence on the protection of religious sensibilities, although problematic, may suggest that manifestation can occur passively (Edge, 1998). Constructing proselytism cases as competing manifestations would allow the Court to avoid problems as to the nature of belief, and the extent of the absolute right under Article 9, until a case of alleged indoctrination actually arose.
Choice as a basis for the waiver of religious rights.
In the discussion above, it was suggested that the Convention’s waiver of religious rights may only arise in the context of employment or the holding of office. Certainly, there is no evidence from the reasoning in cases outside of this context to indicate otherwise. Even within this relatively narrow context, however, this approach can be criticised. In his discussion of employment rights and religion in the United Kingdom, Bradney puts forward an argument applicable to the Convention approach, although it should be stressed that he was concerned with English law. He concludes that the law provides very little protection for the religious rights of employees, but that this is not a cause for concern: “People choose to enter into employment ... No employer tells a person what to do. Rather, the employer’s command is always a contingent one: if you wish to remain employed, obey me. The relationship is a voluntary one. If a command by an employer offends against a worker’s religious convictions the worker may always leave the employment avoiding the difficulty. The law does not bind the employee to the employer nor does it bind the employee to follow a particular course of action. The dictates of education law or family law [by contrast] cannot be avoided and it is that which can give them their particularly offensive character ... In times of high unemployment it might be considered unrealistic to ask a worker to leave his or her employment ... to leave one’s employment because of one’s religious convictions might be a hard choice. Nevertheless it is a choice which can be made” (Bradney, 1993 at 114) Bradney comes to this conclusion within a framework of radical autonomy where “[l]imitations to ourselves, to our action, to our manner of being, are ones that we make, that we accept” (ibid, at 22) and “it must follow that no legal rule can negate the radical autonomy of self” (ibid, at 28). He supports this conclusion, which is essentially reflected in the jurisprudence of the Convention, with two further grounds. Firstly, that accommodation of an employee’s religious beliefs will place an unjust burden on other employees: “[o]thers would be forced to take on one’s work because of one’s own religious beliefs. To make them work for you, whether they choose to or not, would be to seek to deny their autonomy.” Secondly, “[i]f one group’s religious needs and beliefs are taken account of in, for example, the law relating to unfair dismissal then all other’s religious needs and beliefs must equally be taken into account.” (ibid, at 115). Examination of these points reveals a single issue which needs to be taken into account when evaluating the approach of the ECHR. Turning to the first point, there is a tension within Bradney’s argument. In distinguishing religious liberty in employment from other areas, he stresses the presence of choice, as shown by the right to leave employment. When considering the position of employees asked to modify their working patterns to allow an employer to accommodate another's religious needs, however, the language of choice is notably absent – instead, he suggests such employees will be forced to take on work, and made to work for their religious colleague, whether they choose to or not. It could be argued that such employees always retain a choice – they may choose to leave their employment rather than modify their working practices. Nonetheless, if we recast the argument in terms of cost, rather than choice, it needs to be answered. Accommodating religious practices in employment may well involve some element of cost to an employer, which may require them to modify the working patterns of other employees, perhaps imposing a cost on those employees.
This links directly with Bradney's second point, that recognition of religious rights in employment should apply to all religious groups. On the one hand, this may involve an employer, especially a large employer, in complex issues of management – for instance accommodating a range of holy days or dietary restrictions – as well as requiring the employer to become acquainted with the religious needs of her/his employees, or at least of those employees who present themselves as requiring accommodation. On the other, this may raise the issue of insincere claims of accommodation being made. A broad right to religious accommodation might lead either to abuse of the consideration given to religious interests, or to a public perception that such abuse might occur. There is some concern that insincere claims to religious beliefs or religious group status may be made in order to secure a secular benefit which would be equally desirable to others. These concerns can be overplayed, particularly where the religious individual is seeking a secular disbenefit. For instance, a Jehovah’s Witness who refuses a life-saving blood transfusion because of her/his religious beliefs will receive an objectively inferior outcome if her/his religious views are respected, as opposed to the extra life span if her/his views are not respected. The concerns are stronger when respecting the religious interest results in an objective benefit. In some cases this objective benefit might take the form of an exemption from some normal State limit on freedom of action, which could create the impression of avoidance or evasion of socially important legal rules. One commentator on the United States experiment with the prohibition of recreational alcohol recounts an anecdote concerning Jewish communities, whose religious observances could require some use of more than nominal amounts of alcohol, and who were given a special exemption : “At the outset of prohibition, for example, the congregation of Los Angeles’ Talmud Torah Synagogue numbered 180. Within fourteen months almost 1000 new members had joined, many of them impelled, it would seem, by a desire less than spiritual. In the spring of 1921 the majority voted to oust their Rabbi Gardner, not, according to him, for any violation of the Volstead Act, but quite the reverse.” (Kobler, 1974 at 250-1) If exemption from this sort of legal regulation might create resentment amongst those who are not so exempted, the problem is exacerbated where the State seeks to resolve disputes between two individuals. In relation to custody disputes, for instance, Mumford has warned that “by putting too much emphasis on freedom of religion, the parent who makes childrearing decisions motivated by reasons of faith ... may be seen to have an advantage in cases of dispute over the parent who makes different decisions for secular reasons” (Mumford, 1998). In the United States guides are available on how best to present the advantages of religious participation to a court considering this issue (Wah, 1994), and how to use this same religious participation as a tool to gain a favourable outcome for the other parent (Bergman, 1996). The point here is not that religious interests should be ignored because of concerns that any special consideration will be abused, or because the majority population might conclude that they are being abused. Most legal rules are capable of some level of abuse, or of portrayal as being abused, especially when we factor in the possibility of the court coming to a factually incorrect decision. Rather, it is important to acknowledge that in many instances the recognition of something as religious may involve some social cost, or cost incurred by another individual. In the context of the rights under Article 9, recognition of this cost can arise through the justifications for infringement of religious rights under Article 9(2).
It remains to consider whether the right to leave employment is an adequate protection of religious rights. A number of grounds suggest that, at least in some circumstances, the right to leave employment is inadequate. Firstly, the cases focus primarily on the employee as an autonomous individual, involved in a distinct transaction, rather than as a member of an identifiable community which may be subject to discrimination more broadly. The efficacy of the right to leave seems weaker when we consider a pattern of such choices, whether within the working life of an individual, or individuals within the same religious community. Consider, for instance, a sector of industry which routinely dismisses members of a particular religious community who manifest their religious beliefs by wearing identifying clothing or jewellery; or a religious community members of which are subject to adverse treatment because of their identity. It might be argued that this sort of discrimination, although unjust and a social problem, is primarily concerned with belief and identity, rather than manifestation. The Convention cases do not deal with the employee who is treated adversely because of her/his religious identity or community, but rather is treated the same as other employees when they ask for special treatment. Whether the different between identity and manifestation is sufficient to justify such a sharp distinction in treatment is debatable, especially as manifestation may contribute greatly to identity. In a key decision on the meaning of "ethnic group" in relation to racial discrimination, the House of Lords noted that an ethnic group must have a cultural tradition, including social customs and manner (Mandla v Dowell Lee  2 AC 548, HL.), and the relationship between ethnic identity and manifestation of that identity is also emphasised by the cases on indirect discrimination (e.g. Panesaar v Nestle and Co Ltd.  IRLR 64.). If the right to leave employment is always an adequate guarantee of religious liberty, then a State ban on wearing particular religious symbols, or adhering to religiously mandated rules in personal grooming, could result in the disappearance of entire communities from visible membership of the government workforce without raising any Article 9 issues at all. The importance of involvement in at least some areas of government service was stressed by the report of the Stephen Lawrence Inquiry, which recommended that those responsible for staffing: “should seek to ensure that the membership of police authorities reflect so far as is possible the cultural and ethnic mix of the communities which those authorities serve” (MacPherson, 1999 recommendation 7). Secondly, the public sector workplace is not necessarily just a location where individuals can discharge functions in return for payment. In some cases, public sector workers pursue careers which would be difficult, or impossible, to continue with a non-governmental employer. Obvious examples within the United Kingdom are the police force, the judiciary, or the armed forces. Additionally, public sector workers may see an element of public service in their activities; or value the opportunity to contribute to State policy and activities. Finally, there is a rhetorical importance in involvement in the State and the holding of State offices and roles, particularly where the offices are seen as historically responsible for mistreatment of particular groups. In short, at least some of the jobs and offices which the State has to offer may differ substantially from those available in the private sector, and employment by the State may have implications beyond simple earning of a wage.
Thirdly, religious employees may be placed in a position where choosing between their religious beliefs and their jobs is not simply a hard choice, as Bradney suggests, but so hard a choice as to be unacceptable in a pluralist democracy. The distinction is perhaps a difficult one to draw, but one which has been accepted elsewhere. The growth of modern employment law could be seen as an attack on the freedom of the employee to choose particular terms of employment, for instance terms which treat them less well than members of other gender or racial groups; or require them to work particular hours; or require them to consent to blanket restrictions on their freedom of expression. These arguments indicate that a universal exclusion of the field of employment from Article 9 rights, so long as employees have the right to leave employ, is too crude an approach to the problems posed by the State workplace. The arguments concerning social cost, however, discussed above, suggest that a blanket requirement that the individual employees religious needs should be met is also too crude. A better approach needs to recognise that individual cases differ greatly, and that the legal mechanisms need to reflect this variety. The germ of such an approach is already to be found in the cases, particularly the recent political office case of Buscarini. If we accept that a restriction on religious identity, community, or practice within the State workplace is prima facie a violation of Article 9, attention must shift to whether the violation is justified. A wide range of factors will then need to be considered in determining this question. The impact on the individual claiming the violation will inevitably be of great importance. In some cases, it may be sensible to rely upon a hierarchy which sees restrictions on identity as more serious than restrictions on community, which are in turn more serious than restrictions on manifestation. Additionally, there may be some limited value in ascertaining whether the individual regards that which is restricted as fundamental to their religious interests, or a valuable, but optional, extra. The existence of a reasonable alternative to continued employment will no doubt affect the impact of the restriction upon the applicant, but it should not be used as a simplistic bar to consideration of the real issues arising in the State workplace. The cost to others of accommodating the individual will also be of great importance, and a State employer may find themselves in a stronger position if they have made some attempt to accommodate the religious beliefs of the applicant, or at least have explored whether such an accommodation is possible. In considering the cost of accommodation, however, it is important to look beyond financial costs. Accreditation of religious officers, even without any financial outlay, may involve a cost to that community if there is no power to remove such accreditation. It would be inappropriate, for instance, to require a community to give organisational approval for an individual whose teachings they regard as profoundly alien to their own beliefs and traditions. Finally, moving away from the interests of identifiable individuals and groups of individuals, there are a number of key legal and political values, damage to which is relevant to whether the restriction is justified. From Buscarini, we might see that participation in political life, regardless of religious affiliation, is such a value. Similarly, the extent to which such a restriction has an impact on the life of the religious community as a whole; or serves to eliminate a particular religious minority from the State workplace, or renders them invisible in that workplace, should all be taken into account.
At the moment, the Court appears to be developing a concept of religious rights based, in two related ways, on individual choice. The cases on proselytism suggest that the right to hold a belief is, in essence, the right to retain the capacity to choose whether or not to believe concepts falling within the ambit of Article 9. The cases on the religious rights of employees suggest that the right to manifest a belief is fundamentally the right to manifest so far as is compatible with voluntarily assumed obligations – if manifestation clashes with these obligations, the individual has the right to leave the situation and manifest elsewhere. Neither construction of the role of choice is unproblematic. The sections above have suggested modulations of this jurisprudence in a way which may reduce the impact of these problems. In relation to manifestation by employees and officeholders, one way forward would be to move consideration of competing interests in the workplace into the justification of restriction under Article 9(2), so that cases can be dealt with on a more individual basis. In relation to the right to hold a belief, moving the proselytism cases from belief, and hence the absolute right, to identity, and hence the qualified right, would allow the Court to avoid basing this area of its work on a particular conception of choice and belief. The latter is only a partial solution, however, as the Court may yet have to consider a case where the pure right to believe is at issue. In that case, the Court would have to engage with the nature of religious belief, and of the interests protected by Article 9. It may be that such an engagement would reinforce the existing Protestant and Enlightenment focus on belief as the foundation of religious interests (Harvey, at press at 6-7), and resolve the philosophical discussion on choice and belief in favour of a voluntarist model. At least such confirmation would provide a specific, contested, part of the theology of the ECHR. Freedom of choice and the availability of alternatives are undoubtedly important factors to be considered when determining whether Article 9 rights have been violated. It may be, however, neither a necessary or sufficient basis for Article 9 rights – we may not need to have chosen to be entitled to respect for our religious rights; nor need the possibility of choosing otherwise lead us to lose these rights.
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