The Workplace Relations Commission has rejected a challenge by a former seminarian against a yoga studio. The studio banned him for life after he responded to a question about Christmas by saying it was hocus pocus that celebrated the rape and abandonment of a child.
No doubt some people would be offended by this language. However, it is language that is consistent with the balance between freedom of expression and freedom of religion and belief. Such language might have been unlawful when we had a law against blasphemy, but not since we removed that law by referendum.
The WRC found that the man had established a prima facie case of religious discrimination against the Mayo yoga studio. However, it found that the studio’s owner and yoga teacher had successfully rebutted the inference of discrimination by arguing her decision was based on how he expressed his beliefs rather than what the beliefs were.
Context of the case
The context was that, before the yoga class started, the teacher and her clients were informally discussing things as they usually did. She asked the man if he was all set for Christmas. He said it was hocus pocus, celebrating a religious cult which has its origins based on the rape of a child. She said the Church had a good moral code. He said look at the child abuse, the paedophilia, and Tuam. She said right, well, let’s get on with the yoga.
After the class, the teacher wrote to the client saying that his continued presence constituted a threat to her clients and her business operations. She said his behaviour was disruptive to the point of causing unease among other clients. Following further correspondence, she said he was banned for life from the studio.
The WRC adjudicator concluded that, while an individual is entitled to maintain and express religious views, this does not permit the use of “any formulation of language, in any setting, without consequence.” He found that the man was banned “on the grounds of the manner by which he expressed his views, as opposed to the views themselves.”
Why the ruling is wrong
It is obvious that nobody has the right to use “any formulation of language, in any setting, without consequence.” But this ruling ignores the key question of exactly how, in this case, the “manner by which he expressed his views” crossed the line into having such consequences.
His expression of his views about religion was not promoting violence or discrimination against anyone. The studio owner and/or other clients simply did not like the formulation of words he used, in response to a question, in a conversation he did not even initiate.
The WRC did not use a proportionality test, weighing whether restrictions on this formulation of words are prescribed by law, pursue a legitimate aim, and are necessary in a democratic society.
Instead the WRC endorsed banning a client for life from a service. Restricting freedom of expression in this manner is not reflected in any legislation.
Article 40.6.1 of the Constitution guarantees freedom of expression which can only be limited by the protection of public order or morality. There was no threat to either public order or morality in this yoga class, yet he was banned for life for his formulation of words when expressing himself while answering a question. That is simply religious discrimination.
The whole point of the right to freedom of expression is to permit the expression of controversial views that do not cross the legal line of the proportionality test. And this includes the right to express beliefs about religious or philosophical ideas that offend, shock, or disturb people.
What the Venice Commission says
In 2008, the Venice Commission (European Commission for Democracy through law) published a report on the relationship between Freedom of Expression and Freedom of Religion. It said:
“43. Freedom of expression, guaranteed by Article 10 ECHR, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb.
“44. A democracy should not fear debate, even on the most shocking or anti-democratic ideas. It is through open discussion that these ideas should be countered and the supremacy of democratic values be demonstrated. Mutual understanding and respect can only be achieved through open debate. Persuasion through open public debate, as opposed to ban or repression, is the most democratic means of preserving fundamental values.”
Looking at the guidelines from the Venice Commission it is clear that this case has undermined the right to Freedom of Expression in Ireland. We intend to take this issue up with the Minister for Justice, and we will also be writing to the UN Special Rapporteur on Freedom of Expression and the Council of Europe.