Free speech concerns aren’t the only problem with the Gillard government’s proposed new anti-discrimination law.  There’s also been some discussion lately about the extensive exemptions that will continue to be offered to religious organisations to engage in discriminatory conduct that would be illegal for anyone else. (There’s a news report in this morning’s Age, and an earlier opinion piece by David Marr.)

But in Britain the controversy du jour is the other way around – religious believers are using human rights law to claim that they’re the ones who have been discriminated against. In the European Court of Human Rights yesterday they scored one out of four. (Read the full judgement here.)

The court upheld the complaint of a Christian, Nadia Eweida, who said she was treated unfairly by British Airways, her employer, when they refused her permission to wear a small gold cross around her neck (the airline’s policy has since been changed). The court said that “a fair balance was not struck” between her religious freedom and the airline’s legitimate desire to project a certain corporate image.

But the other three claimants were unsuccessful. They were another cross-wearer who worked in a hospital, which had a strict policy against jewellery for health and safety reasons; a registrar of births, deaths and marriages who, due to her Christian beliefs, refused to act as a registrar for same-sex partnerships; and a relationship counsellor who, “motivated by his orthodox Christian beliefs about marriage and sexual relationships,” would not agree to provide counselling to same-sex couples.

The considerations were slightly different in each case, but fundamentally the court held that religious belief is not a general license to ignore the terms of one’s employment. The judges also pointed out that more latitude would be given in the case of a private employer (which was why the third claimant, the registrar, received more sympathy – two judges dissented in her case), and that employment policies deserved additional respect when their purpose was itself to prevent discrimination (as in the third and fourth cases).

The unanswered question here, and where it gets closer to the Australian debate, is what would happen to a claimant like Eweida who wanted to wear a piece of jewellery for something other than religious reasons. On the one hand, they would have difficulty bringing their case within the terms of the Human Rights Convention; on the other hand, for religious believers to be accorded privileges not available to others runs against the basic idea of equality before the law.

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