publication . Article . 2008

Underrating Human Rights: Gallagher v Church of Jesus Christ of Latter-day Saints

Russell Sandberg;
Open Access
  • Published: 10 Dec 2008 Journal: Ecclesiastical Law Journal, volume 11, pages 75-80 (issn: 0956-618X, eissn: 1751-8539, Copyright policy)
  • Publisher: Cambridge University Press (CUP)
  • Country: United Kingdom
Abstract
<jats:p>The Human Rights Act 1998 has led to an increase in domestic litigation concerning Article 9 of the European Convention on Human Rights (ECHR). Most such cases have been unsuccessful, particularly at higher level. Moreover, such claims have increasingly failed due to lack of interference under Article 9(1) rather than on grounds of justification under Article 9(2). This has meant that litigants in religious dress cases are now arguing anything but Article 9: the most recent case, concerning the wearing of the Sikh Kara in Aberdare, was successful because, while the school saw the issue as one concerning Article 9, the claimant's legal team relied instead...
Subjects
free text keywords: Religious studies, Law, Religious discrimination, Sociology, Argument, Human rights, media_common.quotation_subject, media_common, Latter Day Saints, Plaintiff, Convention, K1

14 Ibid, para 31.

15 Ibid, para 12.

16 Ibid, para 15.

17 Article 1 of Protocol 12 extends this to 'any right set forth by law' but this has not been ratified in the UK. See R Ahdar and I Leigh, Religious Freedom in the Liberal State (Oxford, 2005), p 109.

18 PM Taylor, Freedom of Religion (Cambridge, 2005), pp 182 - 183.

19 Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (1979- 80) 1 EHRR 252 at 282.

20 Ibid: 'A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.' See also Igleisa Bautista and Ortegra Moratilla v Spain (1992) 72 DR 256, para 2.

21 Darby v Sweden (1991) 13 EHRR 774, para 31.

22 It could be argued that the analysis of Article 9 here is also flawed. In a series of judgments, the Strasbourg Court has held that 'the ability to establish a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of freedom of association, without which that right would be deprived of any meaning': Religionsgemeinschaft der Zeugen Jehovas and Others v Austria (2008), application no 40825/98, 31 July, para 62.

23 (2001) 31 EHRR 15.

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