January 15, 2013

On the Ranking of Rights

Thinking Anglicans has a very thorough round-up of reports (including the full statement of the court) concerning the European Court of Human Rights decision on some alleged infringements of religious rights on the part of employers.

The principle upon which the court bases its decision should come as no surprise to those familiar with human rights, that is: that one's exercise of a right should not constitute an infringement of another's exercise of a right — whether the same right or a different one. In particular, it is abundantly clear that the right to one's religious beliefs and practices does not include the right to deny others a public accommodation or service simply on the basis of one’s religious objection to the manner of life or behavior of that other person — including his or her own religious beliefs.

The court found that the employer who said an employee could not wear a cross because it conflicted with brand identity had indeed infringed upon her rights; but in the case of an employee who was offered an alternative way to express her religion because the means she chose to express it constituted a possible hazard (offered a pin instead of a cross on a necklace), the court found that the offer was reasonable. The other two cases involved people whose employers required them to provide services to mixed-sex and same-sex couples alike, and the court ruled that their refusal on the basis religious objection infringed upon the rights of those to whom they wished to deny service.

This decision, taken as a whole, provides a good balance in addressing the hierarchy of rights. If we accept one legal definition of a right as not simply a freedom to carry out a given activity, but as placing an obligation upon others (whether individuals or society as a whole) it is perhaps easier to see the issue in terms of a ranking of obligations: those who provide public accommodations are obliged to provide them without discrimination; employers are obliged to protect their customers and clients, and provide services without discriminating; a religious believer who feels an obligation to profess his or her faith through the wearing of some visible symbol, or to profess a given belief, has a right to do so unless it conflicts with some other duty which they are also obliged to carry out in reference to someone else.

It is earnestly to be hoped that a similar clarity of thought can be applied to the issue of the provision of health insurance.

Tobias Stanislas Haller BSG

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