Unless Americans respond to the Supreme Court's recent marriage decisions with greater protections for the rights of conscience, our first freedom is sure to lose force, just as it has in the UK.
Over the past twenty years I have witnessed firsthand the steady assault on the rights of citizens in Britain to speak and act according to their conscience. During that time different parts of the British state, including our Parliament, publicly funded organizations, and the judiciary, have opposed and punished the expression of belief and conscience.
My American friends are, like me, horrified at this rapid deterioration in personal liberty and freedom in the UK. Most of them believe, however, that the First Amendment would stop such a thing from happening in the "land of the free."
The First Amendment is a magnificent and precious defense of personal liberty, and I hope that my friends are right; but my own experiences represent a cautionary tale for truly liberal-minded Americans. I want to share with you four brief examples from my own legal experience.
The first case that drew my attention to conscience restrictions arose in 2001. A street preacher named Harry Hammond went into Bournemouth city center carrying a placard that read, "Jesus Gives Peace, Jesus Is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus Is Lord." He set up his placard and, as he started to speak, a crowd surrounded him, pushed him to the ground, threw water and soil at him, and pulled down his sign.
The police arrived, noted that Hammond had been attacked, and for inciting the attack he had suffered. They did not arrest anyone who had assaulted him. He was found guilty, and ordered to pay fines and costs totaling $1,000. Shortly after his conviction he was hospitalized, recovered, but shortly thereafter died.
Many people, including some Christians, would not agree with Hammond's views, but as a victim of violence, should he have been arrested? Even gay rights activist Peter Tatchell, a man who has been beaten and abused for his sexuality, offered to testify in any subsequent appeal. Even he saw the dangers inherent in Hammond's treatment. Tatchell said that while the placard was offensive to gay people, there was no legitimate reason to suppress his right to protest and turn him into a criminal.
This case began a trend, in which agencies of the state decide what someone is and is not at liberty to say in a public space, and how they may or may not demonstrate their faith.
The second case involves Stephen Copsey, who, in February 2000, told his employers that he did not wish to work on a Sunday when they introduced Sunday working hours in order to meet increased demand caused by a new contract win. His employer, WBB Devon Clays Ltd., came to an arrangement with the workforce, including Copsey, and for two years he was allowed to observe the Sabbath in line with an agreement by which he would receive less money for not working on a Sunday.
This arrangement worked for the employer and employees until March 2002, when the company won another new order that required a further increase in production. The management decided that Sunday working should be mandatory, and announced that all employees must be prepared to work on a Sunday or lose their jobs. Copsey told his employers he would not work on what he considered a holy day, and after a period of negotiation his employment was terminated at the end of July 2002. He received no redundancy payment.
He appealed the dismissal but received no support from the English legal system. His first recourse was to the local Employment Tribunal and then subsequently the tribunal's appeal process. The judge in the Employment Appeal tribunal told Copsey that if his religious commitments were incompatible with what was being asked of him he was "free to resign," as if this were an adequate remedy for any discrimination against him.
The case went to the Court of Appeal, the second highest court in England. The three presiding judges again sided with Copsey's employers, although there was some sympathy for Copsey's position based on the fact that it was the employer who was unilaterally varying the terms of the employment contract, not Copsey.
The third case, that of British Airways (BA) employee Nadia Eweida, is perhaps the most infamous recent case involving conscience restrictions.
In 2006 Eweida was employed in a public-facing role for BA and wore a small cross on a chain around her neck. She was asked to cover up this cross, even though people of other faiths could wear religious garments at work. When she refused to remove or cover up her cross, or take a position where she was not exposed to the public, she was placed on unpaid leave.
Eweida subsequently appealed this decision, first through an Employment Tribunal and then in the Court of Appeal, losing on both occasions. The case received a considerable amount of attention in the British media, much of it broadly supportive of Eweida. In November 2006 then-Prime Minister Tony Blair commented directly on the case, suggesting that BA should "just do the sensible thing"--meaning allow Eweida to wear her cross.
In October 2010 Eweida announced that she would take her case to the European Court of Human Rights (ECHR). The court heard Eweida's case in September 2012, and on January 13, 2013, nearly seven years after she had been suspended, the European Court held that there had been a violation of Article 9 of the ECHR.
In delivering judgment the court noted that:
As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life.
And in commenting directly on Eweida's case, the court said that the refusal by BA between September 2006 and February 2007 to allow the applicant to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion.
A rare victory for Christian conscience, won not in a British but a foreign court.
There may be an argument that we need to balance of rights of employees with those of private enterprise. A private company, its management and shareholders, should have rights as well as the employee. But in the UK, discrimination against Christians is meted out to private and public-sector employees alike.
I witnessed this myself in the case of public employee Shirley Chaplin. Chaplin had been a nurse in the British National Health Service for thirty years and had worn her crucifix during all of that time. In 2009 she was asked to remove her crucifix on "health and safety" grounds (although her employers produced no evidence of what danger a medical practitioner might pose to patients by wearing a crucifix or cross). Chaplin's Muslim colleagues were exempted from this restriction but because the hijab was deemed to be a "mandatory cultural requirement" of Islam.
The wearing or showing of crosses in the UK has been a particular problem for public- sector employments because it is deemed to be offensive to others under diversity policies.
Chaplin was also not permitted to wear the crucifix as a badge on her uniform; instead her employer suggested that she wear it inside her clothing, out of sight. Later, she was told she could dangle the cross with her identity badges. This she refused to do and so she was dismissed. This case eventually found its way to the ECHR, but an international court was not prepared to review the decision of the national court.
Thus the drive to proscribe Christian conscience and expression in Britain spans both private enterprise and the state. Indeed the British government, together with related institutions, is now embarked on the steady but relentless process of establishing a religion that we might call secular humanism. It favors this "religion" over all others, especially Christianity, and thereby undermines all the Judeo-Christian values that have underpinned Western society for centuries.
Reflecting on these events, I can't help but notice something that might sound familiar to my American friends. We have a state that prefers and establishes its own system of belief as a form of religion. That same state then prohibits the right of Christians to speak or publicly manifest their religion. Like all religions, secular humanism fails the tests of rationality and logic; it shows unwarranted special animus toward Christians and favors certain other religious groups.
Could the same thing happen in the United States? The First Amendment does stand as a bulwark against the erosion of liberal freedoms to speak, to assemble, and to act out of conscience; but for how long? Alluding to that amendment, Thomas Jefferson wrote in his correspondence of a "wall of separation between church and state"; but it is not hard to see how some cracks could appear in that wall.
What, for example, might a hostile US court make of a commercial photographer who refused to accept an assignment to photograph a same-sex marriage? Or how would federal employers react to employees who do not actively endorse homosexual activity or seek a conscientious objection to facilitating a same-sex marriage?
These cases are already pending in lower US courts. If they were to come before a British court, the decision would be entirely predictable, and conscience would be no defense.
How will the United States deal with Catholic adoption agencies that do not wish to place a child with a same-sex couple? To guess at the answer, we need only reflect on the fact that Catholic adoption agencies in the UK (and three US jurisdictions: Massachusetts, Illinois, and the District of Columbia) have felt that they have no choice but to close.
The recent marriage decisions of the US Supreme Court will need to be carefully balanced with protections for free religious exercise. My case work in the United Kingdom on "hate speech," the firing of Christian employees who refuse to endorse homosexual conduct, and the banning of Christians from professional bodies due to their views of such conduct, indicate that the road ahead for the American people needs to be carefully driven.
The battle lines for these principles are now being drawn. All those who care about the personal liberties enshrined in the spirit and the letter of the First Amendment will need to fight to preserve America's truly liberal rights. The alternative is an intolerant, secular state that will impose its will on the lives of its citizens. We need only look to the horrors of the last century to know how important the battle for liberty and freedom of conscience will be.
This article originally appeared in Public Discourse, the online journal of the Witherspoon Institute of Princeton, NJ, it is reprinted with permission.