What qualifies under the right to freedom of philosophical belief?

Atheist Ireland met Minister for Children and Equality Roderic O’Gorman last week. Afterwards, we wrote the following to the Minister about the right to freedom of ‘religion or belief’.

Dear Minister O’Gorman, we discussed at our meeting what test should be used to determine what does or does not qualify as a philosophical conviction under this term. The Venice Commission and the Organisation for Security and Cooperation in Europe published guidelines in 2004 for Review on Legislation Pertaining to Religion or Belief. This includes:

“A3. Religion or belief. International standards do not speak of religion in an isolated sense, but of “religion or belief.” The “belief” aspect typically pertains to deeply held conscientious beliefs that are fundamental about the human condition and the world. Thus, atheism and agnosticism, for example, are generally held to be entitled to the same protection as religious beliefs. It is very common for legislation not to protect adequately (or to not refer at all to) rights of non-believers. Although not all beliefs are entitled to equal protection, legislation should be reviewed for discrimination against non-believers.”

The Council of Europe published in 2012 a human rights handbook on protecting the right of thought, conscience and religion under the European Convention on Human Rights. Page 16 includes the following tests, with links to relevant court cases.

“What is meant by “thought, conscience and religion”? Use of the terms “thought, conscience and religion” (and “religion or beliefs” in paragraph 2) suggests a potentially wide scope for Article 9, but the case-law indicates a somewhat narrower approach is adopted in practice. For example, a “consciousness” of belonging to a minority group (and in consequence, the aim of seeking to protect a group’s cultural identity) does not give rise to an Article 9 issue.

Nor is “belief” the same as “opinion”, for to fall within the scope of Article 9, personal beliefs must satisfy two tests: first, the belief must “attain a certain level of cogency, seriousness, cohesion and importance”; and secondly, the belief itself must be one which may be considered as compatible with respect for human dignity. In other words, the belief must relate to a “weighty and substantial aspect of human life and behaviour” and also be such as to be deemed worthy of protection in European democratic society.

Beliefs in assisted suicide or language preferences or disposal of human remains after death do not involve “beliefs” within the meaning of the provision. On the other hand, pacifism, atheism and veganism are value-systems clearly encompassed by Article 9. A political ideology such as communism will also qualify. However, it is important to note that interferences with the voicing of thoughts or the expression of conscience will often be treated as giving rise to issues arising within the scope of Article 10’s guarantee of freedom of expression or the right of association under Article 11.”

The European Court of Human Rights has published a guide, last updated in 2022, on Article 9 of the European Convention on Human Rights. This includes:

“14. On the one hand, the scope of Article 9 is very wide, as it protects both religious and non-religious opinions and convictions. On the other hand, not all opinions or convictions necessarily fall within the scope of the provision, and the term “practice” as employed in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or belief (Pretty v. the United Kingdom, 2002, § 82).

16. If a personal or collective conviction is to benefit from the right to “freedom of thought, conscience and religion” it must attain a certain level of cogency, seriousness, cohesion and importance. Provided this condition is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (Eweida and Others v. the United Kingdom, 2013, § 81).

17. The organs of the Convention have explicitly or implicitly acknowledged that the safeguards of Article 9 apply to: (a) the “major” or “ancient” world religions which have existed for millennia or for several centuries; (b) new or relatively new religions or spiritual practices; (c) various coherent and sincerely-held philosophical convictions, such as:

• pacifism (Arrowsmith v. the United Kingdom, Commission report of 12 Oct 1978, § 69)
• principled opposition to military service (Bayatyan v. Armenia [GC], 2011)
• veganism and opposition to the manipulation of products of animal origin or tested on animals (W. v. the United Kingdom, Commission decision of 10 February 1993)
• opposition to abortion (Knudsen v. Norway, Commission decision of 8 March 1985; Van Schijndel and Others v. the Netherlands, Commission decision of 10 September 1997)
• a doctor’s opinions on alternative medicine, constituting a form of manifestation of medical philosophy (Nyyssönen v. Finland, Commission decision of 15 January 1998)
• the conviction that marriage is a lifelong union between a man and a woman and rejection of homosexual unions (Eweida and Others v. the United Kingdom, 2013)
• attachment to secularism (Lautsi and Others v. Italy [GC], 2011, § 58; Hamidović v. Bosnia and Herzegovina, 2017, § 35).

20/21. With regard to Scientology and Neo-Paganism, the Court has deferred to the judgment of the authorities in the respondent State… 22. Conversely, the Court refused to extend the applicability of Article 9 to “Pastafarianism”… 23. Whether an activity which is wholly or partly based on a belief or a philosophy but which is entirely profit-making is eligible for protection under Article 9 is not yet completely clear…”

25. As regards atheism, the Commission considered complaints lodged by atheists under Article 9 (Angeleni v. Sweden, Commission decision of 3 December 1986). In a slightly different context it stated that this current of thought only expressed a certain metaphysical conception of man which conditioned his perception of the world and justified his action and therefore could not be validly distinguished from a religious denomination in the traditional sense; therefore, the State was not justified in assigning it a legal status radically different from that of other religious denominations (Union des Athées v. France, Commission’s report of 6 July 1994, § 79). Moreover, the Court has made it clear that freedom of thought, conscience and religion is “a precious asset for atheists, agnostics, sceptics and the unconcerned” (Kokkinakis v. Greece, 1993, § 31).”