On a Wing and a Prayer: Indirect Religious Discrimination in the European Court of Human Rights

Abstract

What is religion? What is religious practice? The answer to these questions may differ greatly between religions and religious groups. There is particular legal significance when such a difference in perception of religious practice between majority groups, who generally have the power to determine legal regulation concerning religion, and minority groups, who are at risk of unfair treatment by such regulation. While non-discrimination has been one of the central principles of the European Convention on Human Rights (Article 14 of the Convention guarantees non-discriminatory protection of each and every other right in the Convention), indirect discrimination is a fairly new concept in the legal reasoning of the European Court of Human Rights. 1 The Court has recognized that a neutral policy which has a disparate impact on members of different groups, that is indirect discrimination, can be a violation of Article 14. 2 Although the Court has previously recognized the possibility of indirect discrimination in regard to religious freedom, 3 it has so far, in practice, found the cases within the margin of appreciation of the states. The Court has yet to recognize indirect discrimination in a case regarding religious freedom, and so to guide states on the correct application of this principle. In this comment I argue, referring to a recent case, The Church of Jesus Christ of Latter-day Saints v United Kindgom ( LDS v UK ) 4 that this should have been the right case in which to recognize indirect discrimination in according religious freedom and a breach of Article 9 in conjunction with Article 14.