Considering Ladele
Right – I’m trying to get my head around the Ladele appeal ruling which can be found here. Before I begin, I think I should point out that I consider myself to be quite fair in these matters and I hope you don’t interpret this as just jumping on the “Oh aren’t Christians now all persecuted” bandwagon. For example, only two weeks ago I supported the decision on the case of MacFarlane and Relate because it was obvious that MacFarlane was picking and choosing which bits of Christian teaching on sexual practice he wanted to uphold.
The following is a summary of Neuberger’s ruling as I see it (with para numbers of the ruling itself provided for ease of reference), beginning with the history.
- Ladele became a registrar in Islington on 14 November 2002. Her role changed when the Civil Partnership Act came into force and at the end of 2005 she was required to become a registrar for civil partnerships as well as marriages, births and deaths. She was not given an option as to whether she wished to accept this extra duty. (5,6,8)
- The reason for her mandatory re-designation as a civil partnership registrar was to comply with Islington Council’s “Dignity for All” policy. (9)
- Despite the fact that expressed her religious conviction that two people of the same-sex should not enter such a union, Islington Council would not let her not take civil partnerships and eventually formal disciplinary procedures were taken out against Ladele. (10-15)
- The employment tribunal that Ladele took Islington to after her disciplinary meeting found in her favour on the grounds of direct and indirect discrimination and harassment. (11-20)
- Islington appealed to the employment appeal tribunal which overturned the original judgement. In response to this Ladele appealed to the English and Welsh courts. (21)
Now Neuberger turns to the arguments made during the two tribunals and dissects the different competing “rights” that are at stake in this case. He summarises his approach to the discussions on indirect discrimination with the following paragraph, emphasis added (52)
However, even assuming that argument could be run here, it appears to me that the fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy. Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele’s refusal was causing offence to at least two of her gay colleagues; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.
We’ll return to this shortly. Neuberger’s rejection of the claim of direct discrimination are based on the reading of regulation 5 of the 2003 Regulations. (24)
Regulation 5(1) defines harassment on grounds of belief or religion as occurring when “on grounds of religion or belief, A engages in unwanted conduct which has the purpose or effect” of (a) “violating B’s dignity” or (b) “creating an intimidating, hostile, degrading, humiliating or offensive environment for B”. Regulation 5(2) provides that conduct falls within regulation 5(1) if “having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered to have that effect”.
The claims that Ladele was directly discriminated against are laid out in para 19, but Neuberger rejects the line of reasoning that the original employment tribunal made (36,37)
The notion that Islington, or any officers or employees responsible for the acts of alleged discrimination, were motivated by Ms Ladele’s religious beliefs, rather than by her refusal to officiate at civil partnerships is inconsistent with the fact that Islington’s concerns would undoubtedly have been put to rest if Ms Ladele had agreed to perform all her assigned civil partnership duties. As the EAT pointed out in paragraph 88 of Elias J’s judgment, the evidence showed that “if she was willing to carry out the ceremony … then no further action would be taken against her”. Indeed, Islington’s proposed compromise, although temporary, further supports this conclusion. So too does the fact that no action was taken against one of the other registrars who held the same views but agreed to move to another post. (The third registrar who held such views has, as I understand it, retired).
Accordingly, the difficulty for Ms Ladele’s argument that there should be a remission to the ET is that there was no evidence on which an Employment Tribunal, properly directed, could have concluded that Islington’s reasons for causing or permitting all, or at least some of, the various matters summarised in (a) to (l) of paragraph 19 above were, or even included, Ms Ladele’s religious belief. It is, I suppose, conceivable that, if the matter went back to the ET and further evidence was heard, fresh cross-examination of Islington’s witnesses would be devoted to the question of whether Islington was motivated by Ms Ladele’s religious beliefs. But that sort of Micawberism cannot possibly justify a remission, at least in the absence of special factors (such as the ET having stopped such a topic being raised) which do not exist here.
Neuberger then discusses issues around Article 9 of the European Convention on Human Rights (the right to freedom of thougt, conscience and religion) and the case law in Strasbourg that has come through it. Then the discussion turns to the meat of Neuberger’s discernment and this is around the 2007 Regulations and in particular regulations 3 and 4 (62-64). He summarises Islington’s position (though the campaigning group Liberty made the argument) as follows, emphasis added (68-71).
Liberty’s argument is simple, and is based purely on the natural meaning of the 2007 Regulations, and it has three stages. The first stage is an assertion that a refusal to perform civil partnerships, on the part of someone who is quite prepared to perform marriages, amounts to discrimination as defined in Regulation 3(1) and (3), as the requirements of paragraphs (3)(a) to (d) are satisfied, and it cannot be said, in the light of Regulation 3(4), that marriage and civil partnership are “materially different”. The second stage involves the contention that officiating at marriages and civil partnerships involves “the provision to the public or a section of the public of … services” within paragraph 4(1), and, if that is not applicable in the light of regulation 4(3), then regulation 8(1) and (2) apply, as Islington and Ms Ladele are both “public authorit[ies]” “exercising a function”. Further, if not otherwise liable for Ms Ladele’s refusal to conduct civil partnerships, regulation 30 would seem to render Islington liable for any unlawfulness.
I find it hard to see any logical flaw in those two stages of the argument, at least once Ms Ladele had been designated a civil partnership registrar. The third, and final, stage in Liberty’s argument is that, even if Ms Ladele had succeeded in establishing that Islington would not otherwise have been entitled to require her to perform civil partnerships, the effect of this analysis of the impact of the 2007 Regulations means that, at least once Ms Ladele was designated a civil partnership registrar, Islington were not merely entitled, but obliged, to require her to do so. This argument effectively involves saying that the prohibition of discrimination by the 2007 Regulations takes precedence over any right which a person would otherwise have by virtue of his or her religious belief or faith, to practice discrimination on the ground of sexual orientation.
Such an argument, in my view, accords with the natural meaning of the 2007 Regulations, and is supported by the provisions of Regulation 14, which identifies the relatively limited circumstances in which it is permissible to discriminate against anyone on grounds of sexual orientation because of one’s religious belief: those circumstances are essentially limited to the membership and operation of “organisations relating to religion or belief”, which plainly does not cover performing civil partnership unions, which is self-evidently a secular activity carried out in a public sphere under the auspices of a public, secular body.
Once it is decided that there is nothing in the 2003 Regulations which entitles Ms Ladele, having been designated a civil partnership registrar, to insist on her right not to have civil partnership duties assigned to her because of her religious beliefs in relation to marriage, it means that there is no inconsistency, so far as other legislation is concerned, in giving the subsequent 2007 Regulations their natural meaning, namely that it is simply unlawful for Ms Ladele to refuse to perform civil partnerships. It is also hard to resist the conclusion that this means that Islington had no alternative but to insist on her performing such duties together with their other registrars.
To summarise, what Neuberger is saying is this. Once Ladele was designated a civil partnership registrar there was nothing in law to allow her to object to performing such an office. It’s fair to point out that Neuberger recognises that there was no statutory obligation for Islington to designate Ladele a civil partnership registrar, however at the same time there is nothing stopping them from requiring her to become one under the terms of the “Dignity for All” policy (74-75).
It is right to add that this conclusion may well not have applied if Islington had not designated Ms Ladele (along with all the other registrars) a civil partnership registrar. If they had not so designated her, it seems to me that there would have been a powerful case for saying that she would then have had no cause to refuse to officiate at civil partnerships, and accordingly no problem of discrimination under the 2007 Regulations could arise. Accordingly, I doubt whether a decision by Islington that she would not be designated a civil partnership registrar, at her request because of her religious problems with officiating at civil partnerships, would fall foul of the 2007 Regulations.
However, the fact that some registration authorities have (as I understand to be the case) decided not to designate registrars who shared Ms Ladele’s beliefs as civil partnership registrars, and the fact that such decisions may well be lawful certainly do not undermine the conclusions reached by the EAT (with which I agree) that Ms Ladele was neither directly nor indirectly discriminated against, nor harassed, contrary to the 2003 Regulations, whether by being designated a civil partnership registrar, by being required to officiate at civil partnerships, or by any other aspect of her treatment by Islington (albeit that it is only right to record that many people may feel sympathy for the position in which she finds herself, and that, in some respects – most notably the unjustifiable characterisation of her letter of 18 April 2006 as “gross misconduct” and the unwarranted breach of her confidence in Mr Lynch’s letter of 15 November 2006 – Islington did not treat her fairly).
So where does this leave us. It strikes me that there are three key observations to be made from this ruling:
- Although Islington didn’t have to make Ladele a civil partnership registrar it chose to do so and once it had done so there was nothing in the legal framework (as Neuberger interpreted, and he is the Master of the Rolls)Â that meant she could object to carrying out such a function. It begs the question therefore whether those who conscientiously object to having to officiate at the performance of a particular function because of religious beliefs should be entitled to do so as long as it didn’t impinge on the ability of an institution as a whole to provide a particular service or function. Indeed, there are some local authorities, as Neuberger recognises, who provide such a flexibility.
- Neuberger’s interpretation of religious freedom seems to be narrowed only to the ability to worship at a religious service in a particular manner (51-52). This seems to narrow religious belief to a narrow activity and to deny that one’s religious convictions can permeate one’s whole life. I wonder whether this line of interpretation would stand up against the “Orthodox Jew forced by employer to turn on a light switch on the Sabbath” defence?
- Thirdly, the passages I have highlighted in red take us back to the key issue as to whether civil partnership can in any sense be seen as an exclusively “homosexual” relationship. There is nothing in the law to prevent two “straight” men forming a civil partnership, or to prevent a “gay” man and “straight” woman” (or vice-versa) forming a marriage. Give these facts, can it be argued that Ladele’s objection to performing a civil partnership had absolutely nothing to do with any problem with the orientation of those engaging in it and rather that she objected to the formalising of a relationship in this way between any two people of the same sex, regardless of sexual orientation. If this were so then the core of Neuberger’s argument falls apart.
These are just initial thoughts. What do you think?
Admittedly, I have no legal expertise — especially concerning UK/EU laws, but this is an interesting case.
“Although Islington didn’t have to make Ladele a civil partnership registrar it chose to do so …”
The government was required to implement the law and add the duties to its employees. As Ladele was already a registrar, it seems reasonable for the government to add civil partnerships to her duties. I don’t think any organization could function if employees were allowed to pick and choose which new duties to perform.
“Neuberger’s interpretation of religious freedom seems to be narrowed only to the ability to worship at a religious service in a particular manner (51-52). This seems to narrow religious belief to a narrow activity and to deny that one’s religious convictions can permeate one’s whole life…”
It seems an impossibly high standard to expect an employee’s every job duty to coincide with his/her every religious conviction.
“…Give these facts, can it be argued that Ladele’s objection to performing a civil partnership had absolutely nothing to do with any problem with the orientation of those engaging in it and rather that she objected to the formalising of a relationship in this way between any two people of the same sex, regardless of sexual orientation…”
That seems to be an insincere, fine line argument. While the bible does not specifically address the concept of sexual orientation, Ladele’s objection to her assigned duties does effectively discriminate against citizens of a certain sexual orientation. It could also be argued that Ladele seeks to discriminate against citizens of a certain gender since her main objection is that a member of a civil partnership is the wrong gender.
Having recently submitted my domestic partnership to my local government, I do appreciate Islington’s effort to fully implement its equality and diversity policy. Since the legal and procedural process for domestic partnership is substantially different than hetero-marriage, it would have been an additional insult to watch a government clerk seek another clerk with lower moral values to handle our offensive civil process.
I would argue that Ladele’s argument is as insincere as the MacFarlane case you refer. Another Orthodox Christian view is that persons of different religions should not be yoked and yet Ladele apparently had no religious issues issuing marriages to different faiths. So, it seems Ladele was selectively applying her faith (and politics).
Norm,
I think you’re missing the legal subtleties here. Let me review your points one by one.
i) As Ladele was already a registrar, it seems reasonable for the government to add civil partnerships to her duties. At the same time there was no statutory obligation to do so and given the number of registrars it was not necessary for the purpose of efficiency. The reason Ladele was designated a civil partnership registrar was because of Islington’s equality policy which was based on sexual orientation, a concept itself not found in the civil partnership law.
ii) It seems an impossibly high standard to expect an employee’s every job duty to coincide with his/her every religious conviction. Yes, but this is not dealing with the substantive point that Neuberger’s reading of the law produces an incredibly narrowed understanding of what religious conviction entails (as John Sentamu himself pointed out in the second reading of the Equality Bill in the Lords).
iii) That seems to be an insincere, fine line argument. That may be, but most crucial matters of law end up being exactly that. The key point is that the civil partnership act does not ever reference sexual orientation, so while it may be assumed that some who enter into a civil partnership are homosexual, you cannot presume that Ladele’s objection to performing such registrations is connected to the sexual orientation of the individuals involved, since she would be unaware of their sexuality since there is nothing in the Act or in the accompanying application papers for a civil partnership which would reveal the sexual orientation of the civil partners. That’s not insincerity, it’s precision.
You write,
“the key issue as to whether civil partnership can in any sense be seen as an exclusively “homosexual†relationship. There is nothing in the law to prevent two “straight†men forming a civil partnership, or to prevent a “gay†man and “straight†woman†(or vice-versa) forming a marriage. Give these facts, can it be argued that Ladele’s objection to performing a civil partnership had absolutely nothing to do with any problem with the orientation of those engaging in it and rather that she objected to the formalising of a relationship in this way between any two people of the same sex, regardless of sexual orientation. ”
I am pretty sure that Ladele’s objection lay in the fact that the “civil partnerships” she would register legitimised a homosexual relationship in a similar way to marriage. If she simply objected to
“the formalising of a relationship in this way between any two people of the same sex”
one would ask “why should she?” Where in the bible is there any suggestion that a platonic relationship and commitment between two people of the same sex is forbidden? In fact Ruth articulates a commitment to Naomi that ( I believe) is wholly platonic but is often used at marriage ceremonies because of its sense of commitment and the language of a formal vow. I think her grounds for claiming religious discrimination would in this case be very flimsy. I know of nothing in the traditions of the Church or bible that forbids same sex friendship and same sex communities for example or a pair of same sex disciples working together closely goes way back.
I think if Islington changed her terms and did not offer her alternatives, when they might reasonably have done so, it was ungenerous and inflexible. It is a different matter for people being employed newly to the post who sign up to register civil partnerships. I disagree with Ladele, but I can see that what to me might be her being narrow and prepared to judge others, might to her seen as holding to a point of principle.
I would ask those on this site who are opposed to same sex marriage to see it from “the other side” as well. To someone who believes in gay rights and the validity of same sex unions, Ladele’s objections seem as “nasty” as someone refusing to marry a black and white couple, or as extreme as a muslim who refuses to marry a muslim and someone who is of another faith. Can you at least understand that?
I can well understand how someone who believes in gay marriage could see any opposition or resistance as “nasty”, especially if they didn’t bother to think about the facts. As I understand it, Ladele just wanted to continue to avoid having to officiate at the registration of Civil Partnerships. She had been doing this for some time without the clients involved knowing about it. She was not wishing to be “nasty” just avoid being implicated in something he saw as wrong.
As long as she was self-employed, but the Government changed the law to make all registrars employees and thus involve the local Government as employer in any such arrangements.
I think that, due to the political and internal pressure from gay rights campaigners (mentioned in this case) it would have been “very brave” of Islington to have allowed Ladele to avoid such duties. As you said, all forms of opposition is seen as just nasty, and not to be tolerated! They could well have been roasted politically and in the press.. even if they themselves were prepared to tolerate such a nasty person.
As for the arguments that Ladele was already compromised on other moral issues by registering marriages she would not have approved of. Firstly, if they think that one can only have a moral objection if you are yourself morally perfect and consistent, then I wonder why so many liberal commentators spend so much time denouncing conservatives’ moral stands!! Secondly, marriage is a virtuous estate in Scripture and can be redeemed even if entered into wrongly, whereas same-sex sex is absolutely irredeemable; it can only met with a call for repentance (as per the Anglican Church’s bishops’ policy).
Thirdly, although Civil Partnerships can theoretically be said to just be a legal docuument, they were and are in fact held to be gay marriage and to signal a change in the attitude of British society (or at least nice British society) to homosexuality. Anyone who thinks it is wrong is going to resist being forced to participate!
IN THE END, it all comes down to whether there is something wrong with same-sex sex. Until we can discuss that without “nasty homophobe” labels being stuck on us, Christians will continue to be unfairly marginalised and disadvantaged because of purely imagined wrongs.
I am pretty sure that Ladele’s objection lay in the fact that the “civil partnerships†she would register legitimised a homosexual relationship in a similar way to marriage. If she simply objected to
“the formalising of a relationship in this way between any two people of the same sexâ€
I think you’re probably right, but what I’m trying to formulate is a legal defence to the charge of discrimination on the grounds of sexual orientation, not a theological one.
But if her grounds are not theological then you lose the claim that she faced “religious discrimination.”
No, not at all. Her grounds WERE theological but you can’t argue theology in response to a legal point. She was discriminated against on grounds of religion because her theological convictions DID NOT legally discriminate on the grounds of sexual orientation and neither did they violate the equality policy of Islington Council (which is caged in the language of sexual orientation).
The reasons were theological, the defence, legal.
Hi David,
I didn’t say that Ladele was nasty or should be seen as nasty, I only asked you to understand that some people might see her objections or ATTITUDE as “nasty”, just as you might see an objection to mixed race sex as “nasty.”
There is also a big difference between trying to UNDERSTAND someone’s position and AGREEING WITH IT. I understand Ladele’s position, I don’t agree with it. I am simply asking you to understand or imagine the position from the other side, not to then agree with it if you still do not.
As for whether Christians are marginalised and disadvantaged in Britain, well there is a wide range of “Christian” views, it is true that those whose views cause them to break the law of the land will face consequences.
We live in a society where gay people can no longer be personally ridiculed, discriminated against, attacked, openly hated or despised with impunity but must be respected and treated with dignity as human beings and equal members of society. The legal right of LGB people to have and enter into same sex relationships must also be at least respected EVEN if you personally think it is morally wrong.
I really feel that the key point here is the denial of rights of conscience to orthodox Christians. Let me quote from the relevant Section 4(1) of the 1967 Abortion Act which permits that ‘no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment…to which he has a conscientious objection.’
I repeat, this type of provision was not included in the Civil Partnerships Act. It was quite predictable that orthodox Christians would want to conscienciously object to having to perform same-sex partnership registration. The difference in the thirty-odd years since the Abortion Act is that the government now clearly feels that it should be able to compel its orthodox Christian employees to act against their conscience.
Make no mistake, the gay rights lobby has been itching for a test-case like this to establish a precedent. This case is very firmly NOT about the legal right to same-sex partnerships. It has been firmly established that Islington Council could have organised their staff rotas to provide same-sex partnership registration without Lillian Ladele, in just the same way that abortions are provided in state hospitals without involving orthodox Christian doctors.
But Islington Council quite deliberately chose not to accommodate Lillian Ladele. It introduced its ‘Dignity for All’ policy which designated all registrars as civil partnership registrars. And the introduction of this council policy enabled the Council to claim successfully (this time) that they disciplined Lillian Ladele for contravening her working conditions.
From that campaign of victimisation and shunning that Miss Ladele endured before the introduction of the new policy, it seems highly likely that a major aim of the ‘Dignity for all Policy’ was to weed out Lillian Ladele and any others with a conscientious objection to performing same-sex partnerships. This is the precedent that has been sought by the gay rights lobby: that orthodox Christian state employees can be forced to act against their conscience.
We are now living in a very different age to the passage of the 1967 Abortion Act, when it was recognised that orthodox Christians could have legitimate conscientious objection to performing abortion. It is not enough for gay couples to have the liberty to join in a same-sex partnership and to enjoy their special day. The gay rights lobby finds it offensive merely that there are other people working in the same civil registry office that may not agree with same-sex partnerships. According to this very powerful and overwhelmingly anti-Christian lobby, Lillian Ladele is guilty of ‘thought-crime’ merely by holding her views. And she must either change her views to conform to the new orthodoxy, or she must get out!
The right of conscientious objection is a vitally important part of the checks and balances on the abuse of power and is the fruit of Christian liberty. At its core, this case is about the liberty of conscience and its protection. It is very important for the protection of human rights for all that any appeal is successful.
Hello all,
just some brief thoughts on your three bullet points, Peter:
1) I basically agree with you here – see also para 74 of Neuberger’s judgement, which I think I referred to on another thread.
2) This seems to me the most important point to highlight – especially as it’s not only Neuberger’s “interpretation of religious freedom [which] seems to be narrowed only to the ability to worship at a religious service in a particular manner”. His judgement refers to cases at the European Court of Human Rights which used the same interpretation. If I read it rightly the crux is about interpreting Article 9 of the universal declaration of human rights – the right to freedom of conscience and religion. Neuberger, the ECHR and others interpret this as (hope this is fair / accurate) a fairly heavily qualified right. Being free to hold a belief but not to act on or practise it, isn’t being very free in my eyes. It was this that I found sobering, rather than Lillian Ladele’s specific case, to be honest (which was arguably avoidable given your point 1… ).
3) I think you’d need to find a quote from Lillian Ladele herself for this point to carry much weight, frankly. On a technicality you’re right that “There is nothing in the law to prevent two “straight†men forming a civil partnership…” but you might struggle to find an actual example of this. Also the CP law could be said to assume (given the prohibited degrees of relationship which are the same as those for marriage) that CPs will be sexual relationships.
Will leave it there for now :)
in friendship, Blair
iii) But even if we assume that a Civil Partnership is sexual that still has no bearing on the sexual orientation of the partners, UNLESS you fall into the conservative reductionist fallacy of gay = gay sex. The only way for civil partnerships to be directly related to sexual orientation would be for sexual orientation to be a pre-determinant criteria for entry, but then that would fall foul of equality legislation!
Peter,
The problem with this argument is that, in my view, CPs were deliberately constructed to be “gay marriage” with one or two sops to the church. For instance, they mimic marriage by being restricted to people who are not closely related, even though this restriction excludes some non-gay people who are suffering under current tax treatments of siblings who co-habit. Evidence? Everyone calls CPs “marriage” now – even The Telegraph! :-)
Secondly, you might try arguing that discriminating against CPs is not the same as discriminating against sexual orientation because people in CPs don’t have to be gay, or sexually active, but a court might equally find that, since because people in CPs don’t have to be gay, or sexually active, you have no “religious rights” grounds for refusing the reasonable instruction of your employer to officiate at a CP! Either way you loose!
Personally, I think that the solution is that, if liberal governments really can’t accept that the church (and all other religions!) sees something wrong with same-sex sexual relationships, then they should just get away from legal recognition of marriage all together. instead, they could easily provide legal equality by legally recognizing registered CPs (for any two asults) and leave old traditional things like marriage ceremonies, along with Christmas, Ramadan etc for religious organizations to provide according to their own beliefs and moral standards.
“We live in a society where gay people can no longer be personally ridiculed, discriminated against, attacked, openly hated or despised with impunity but must be respected and treated with dignity as human beings and equal members of society.”
Hi Sue,
Firstly, I believe that EVERYONE “must be respected and treated with dignity as human beings and equal members of society”! But your quote above makes me wonder whether you think that there are groups of people that it should be possible, or even desirable, to “personally ridicule, discriminate against, attack, openly hate or despise” with impunity?
Secondly, the question is not whether Christians who break “the law of the land” should be punished. The question is whether the law of the land should have been so constructed as to make Christians into lawbreakers (or in Ms Ladele’s case, at risk or loosing their position) if they insist on speaking or behaving in a way that reveals that they still see same-sex sexual relationships as wrong?
I’m certain that that wasn’t the implication of Sue’s comment, nor do I see that it is open to that interpretation.
It HAS BEEN generally regarded during my lifetime as acceptable for gay people to be “personally ridiculed, discriminated against, attacked, openly hated or despised with impunityâ€. There are, indeed, people who still think, even today, that it is acceptable, although their number has marvellously decreased and, by the grace of God, will continue to do so.
Sue has simply drawn attention to the fact that the contemptible attitude underlying such conduct is no longer the prevailing one, and that it no longer receives the support either of the law or of the contemporary social ethos.
I don’t think that the analogy which some have drawn between abortion and Civil Partnerships is a particularly good one. While it may not be unreasonable to expect that sexual activity will be taking place within a Civil Partnership, sexual activity is not, if I have understood correctly, a sine qua non of the legal validity of the partnership. Furthermore, Ms Ladele was not herself required to encourage, facilitate or participate in any sexual activity, to enquire whether or not sexual activity would be taking place, or to concern herself with that question in any way, nor was it her place to do so. She was merely required to register it.
Thank you William.
There was absolutely no implication in my comment that I think it should be, ” possible, or even desirable” that certain groups are ridiculed, despised or attacked and I was just pointing out the way that these assumptions have changed – thankfully!
I often wonder how people make the cognitive leap from what I do say to what they think I say.
Hi David,
No, I don’t think any group of people should be ridiculed, discriminated against, attacked, hated or despised with impunity.
I have a vested interest in not seeing Christians treated this way, because I am myself a Christian. However, I also think it important when it comes to “speaking and behaving” that my speech and behaviour genuinely reflects my Christian belief that others must be, “treated with dignity as human beings and equal members of society.”
So, for example, I have two colleagues who are living together but not married, they have no intention of marrying. It is not acceptable for me to harrass them by making personal comments, I have several colleagues in same sex relationships, I show them the same respect as everyone else. I have a Christian friend who is divorced and remarried, I don’t throw question on his morality or the validity of his faith. I have plenty of sins of my own to occupy me, without living to judge others!
Now, suppose I had a Christian colleague who strongly felt same sex relationships, divorce, living together was wrong. Should he/she be allowed to say so? I think “yes”, if he or she were asked their opinion, if the subject arose. I don’t want to live in a police state, where people cannot RESPECTFULLY differ. However, if they made a point of it and harped on and on about their faith and the immorality ( or perceived immorality) of others, I think they would be acting in a way that was a. unchristian b. illegal – (harrassment)
As for Ladele, I have already said that, if her contract was changed and her employers sacked her without making reasonable accomodations, then that was wrong( in my opinion.) I am not sure those are the facts of the case, but that is another issue…
“No, I don’t think any group of people should be ridiculed, discriminated against, attacked, hated or despised with impunity.”
Sue,
Thanks, that’s what I thought you’d say…
But what about groups such as polygamists, or racists for example?
This is a serious question. If you really think that ALL groups are equal, then all characteristics should be provided for equally under the law. But if you think that some should not be provided for equally, then what you are really arguing for is not equality but the rights and wrongs of various characteristics.
You would probably argue that there is something wrong with a man having more than one wife, so justifying legal “discrimination” against polygamists.. even though many men will openly admit to their natural inclination to sex with women other than their wife!!!
Similarly you would probably say that racism is ridiculous and should be exposed as such. Yet many people, and many less liberal nations, openly admit to racist instincts. It seems to be almost natural.
Sue, are you arguing for blind equality or, if you’re honest, for characteristics you believe are good, but many people believe are wrong?
If people hold racist views, I disagree with them, I don’t hate, despise, attack, discriminate or ridicule them personally – I don’t see racism as ridiculous by the way and am very uninclined to find it funny. If racist views lead people to behave in ways which break the law, then they must face the consequences! (This is the same point as I made about Christians earlier.)
I don’t really approve of polygamy – and yes many men( and women) are inclined to have sex with more than one partner. I think most of the people I know have, during their lives, had more than one sexual relationship. As to a “consensual Polygamous relationship”, I personally do not think it is a Christian way to live and so do not live my life that way. It is pretty uncommon in our society, but if three or more people enter into such a private arrangement, I can’t see that it is any of my business! I certain won’t despise, hate or ridicule or discriminate against them.
As to whether “polygamists” are discriminated against by the law of the land, well I don’t make the laws! I am not sure that every impulse people have makes them “a group” or minority by the way! People may well have the urge to rape or run up and down the street naked or shoplift, doesn’t mean it should be legal!
If the law changed to allow polygamous relationships to be registered legally, I wouldn’t want to see people in those relationships discriminated against – as in turned away from bed and breakfasts or denied goods and services, insulted in the street – whatever. When people are not breaking the law, I can’t see why it is any of my business what they are doing morally!
Hi Sue
I’m glad you don’t believe in hating people who you think are wrong! Too many people in my view see being wrong as equating to loosing your human rights.
My view, and the only reasonable view in my opinion, is that either EVERYONE is equal whatever their characteristics, right or wrong, good or bad. However, the way UK law is made at the moment seems to be using “equality” enforcement as a cover for imposing one particular moral view of right and wrong. That is not Equality.
The trouble with your argument – that you just don’t want to discriminate against people in legally recognized relationships – is that you are just abrogating responsibility to the government, and not engaging with the fact that people who disagree with the Governement are being needlessly and disproportionately disadvantaged by the current laws. That is discrimination too!
I don’t want to unjustly discriminate against anyone at all, but I also do not want to be discriminated against because I refuse to approve morally the expression of some characteristics in certain ways.. or because I wish to act (or not act) on that basis.
And, worse, the threat of legal action you have referred to twice — just for expressing ones beliefs in word or action (or lack of action) is intimidating – it is an attempt to win an argument using the force of the state – not an approach that respects people you disagree with… or their human rights!
Hi David,
Interesting article at the CA website about how many Christians struggle to cope with now being just another voice in society and having little power or privilege.
http://changingattitude-england.blogspot.com/2009/12/what-happens-when-christians-transition.html
I think you have to recognise that in law, a set of Christian beliefs is just that – a set of beliefs and attitudes – not an innate characteristic such as race, gender, sexuality ( I know you may not agree that sexuality is innate but the law does.)
You say,
“I also do not want to be discriminated against because I refuse to approve morally the expression of some characteristics in certain ways.. or because I wish to act (or not act) on that basis.”
I agree with the first bit – but I don’t see you can complain if you act on your moral disapproval, or refuse to comply with the law because of it?
Unfortunately, what seems “reasonable” to one person, does not to another. It is for the law to decide, not the individual citizen, what beliefs they can act on and how they act on them.
As to “not acting”, suppose I decide I have a moral objection to having to tax my car, I feel it is government interference and so I fail to do so?
I know it is hard, and personally, I think Ladele had a case and am uneasy with her treatment. I wonder were you speaking up decades ago when gay people lost their jobs? Do you campaign for LGBT people who face discrimination and death elsewhere in the world? It is much easier to see “discrimination” when we feel we might face it, when it is others, especially those we dislike, we think it is just “one of those things” or even “they deserve it for being like that.”
Welcome to the teensy-tinyest taste of what life is like for many LGBT people day in day out, multiplied 100%, in so many places around this globe.
Sue,
I don’t believe in discriminating against anybody – even the worst criminal offenders.
The question shouldn’t be about punishing people because the Government thinks that they, or their forebearers, were somehow to blame for unfair discrimination against groups that they now favour. Nor about picking and choosing which laws one should obey. And “anti-discrimination” law should not just be about prioriotization based on some philosophical approach such as how relatively “innate” a particular characteristic is thought to be. (see p.s., below).
It’s about equal respect for *everybody* DESPITE their characteristics. To quote the European HR Charter:
“[On]… limitation on the exercise of the rights and freedoms [eg free speech, freedom to expres one religion and beliefs etc etc]: Subject to the principle of
proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest …”
Anything else just leads to a heirarchy based on the philosophical system used to prioritise people’s characteristics (and, therefore their rights). Yet idealogs always tend to make “proportionality” into “absolute”. So for instance, in communist countries (like the recently demised USSR) I understand that religious people were marginalized despite there being “religious rights” – but narrowed to freedom of worship.. You couldn’t get a responsible job and your children could not get access to higher education.. and there were regular purges of churches, priests and individual believers because they were thought to be a threat to the state ideology (which of course they were :-) !!)
On the other hand I understand that many moslem societies, where respect for religion is top priority, relegate gay people because the religion rejects homosexual sex. In that case, sexuality rights are bottom of the pile, because same-sex sex is against the ideology of the state.
ps I think that the only truly “innate” characteristic is birth sex – though even then there are a few people who fall in between – but at least men and women *are* different on the inside and on the outside.. Every other characteristic tends to be on a sliding scale – race and sexuality for instance – and many are not inherent – sexuality, for instance, does vary through life for many people
pps As you know, few Christians in the UK would see homosexual *orientation* per se as a bar to almost anything, even to being a church leader. In fact there are, and probably always have been, a disproportionately high number of gay people in high positions in the church!
Peter
Thank you very much for posting the link to the judgement which I have now read. I agree with all your points, except the argument that civil partnerships are not necessarily same-sex partnerships. While technicallly correct, I think that this would be a thin line of arguement as David argues, that ‘CPs were deliberately constructed to be “gay marriage†with one or two sops to the church’. The judgement leans very strongly on the concept of ‘democratic values’ and argues that these values include equal treatment for same-sex partnerships.
I’d like to make my comment on the full judgement here and I apologise in advance as it’s going to be long. As I’ve stated already, I believe that this case is fundamentally not about gay rights or Christian belief but about the need to accommodate liberty of conscience within the public sector. In that respect, the judgement is seriously flawed and has the potential to set a whole series of dangerous precedents.
I am an evangelical and charismatic Christian and I believe that homosexual practice is a sin, as do most orthodox Christians. Others that post on this site are liberal Christians and believe that homosexual practice within ‘committed, loving and faithful’ relationships (regular posters know why I use the quotes) should be celebrated as part of God’s diversity. And that’s cool, because the law protects the rights of both of us to have these beliefs, as it should, as long as we do not harm or discriminate against others by our actions. And the distinction between beliefs and actions is a vitally important part of case law which this judgement has the potential to dangerously erode.
The key practical effect of this judgement is to deny rights of conscience on civil partnerships to orthodox Christians who are state employees. William, the contrast with the conscience provisions of the Abortion Act is an important one, because the absence of a similar conscience clause in the CPA has led to this case being brought. Should there have been a conscience clause in the CPA. Clearly yes, as orthodox Christians have not been protected from discrimination. And, whatever you think of the views of orthodox Christians on SSP, it is vitally important in a free society that the right for them to express their views respectfully in the public space is protected. I agree with you, Sue, that respectfully is an important point and I also broadly agree with your practical definition of ‘respectful’. Unfortunately, many people seem to have given up on this kind of common-sense definition.
So let’s take a look at the judgement. Quotes are directly from the judgement itself.
JUDGEMENT COMMENTS ON THE PROCESS
The judgement states that the government introduced the law on civil partnerships after Lillian Ladele became a registrar. The state changed her conditions of employment, which of course it is entitled to do with due process.
Anticipating problems, Lillian Ladele had the courtesy to inform her line manager that she would not want to officiate at civil-partnerships, even though ‘civil partnership duties were not part of Ms Ladele’s job description’. However, her line manager took the view that ‘civil partnership duties should be shared out between all the existing registrars, although three of them (including Ms Ladele) had made it clear that they were unwilling to officiate at civil partnerships’. The line manager also took the view that ‘the Registry Service should “not be accommodating people’s religious beliefs”’.
For a while ‘Ms Ladele made informal arrangements with colleagues to swap assignments, so she avoided officiating at civil partnerships’, which seems like the sensible compromise between providing an effective service to same-sex partners and accommodating her Christian conscience. However, ‘two gay registrars, Mr Goncalves and Ms Kingsley, complained to Mr Lynch, Head of Islington’s Democratic Services, that they felt “victimised” by Ms Ladele not carrying out civil partnership duties’, although the judgement does not make clear how they felt victimised.
Islington Council had in the meantime introduced its ‘Dignity for All’ policy which ‘provides that there should be equality and freedom from discrimination and harassment (on the grounds, among others, of sexual orientation and religious belief) for all staff’. The working practice, instituted by Ms Ladele’s line manager, of designating all registrars as civil partnership registrars also continued. This is important because the introduction of the ‘Dignity for All’ policy enabled the Council to claim successfully (on this appeal) that they disciplined Lillian Ladele for contravening her working conditions, even though performing civil partnerships was never part of her contract.
Ms Ladele’s line manager wrote to her saying that ‘her refusal to officiate at civil partnerships would be viewed by Islington as discriminatory, indeed, potentially as gross misconduct, and threatening formal disciplinary action’. It seems that from that point Miss Ladele endured a campaign of victimisation and shunning as the judgement states that ‘relationships among Islington’s registrars were tense, and Ms Ladele felt victimised and picked on for her views’.
The two gay registrars reiterated ‘their concern about Ms Ladele (and one of the other registrars with similar views) not conducting civil partnerships, describing it as “an act of homophobia”’. A manager replied to them the following day in a letter that ‘contained information about Ms Ladele, which was confidential to her (which) was a breach of Ms Ladele’s rights, and a breach of Islington’s own “Code of Conduct for Employees”’. The judgement also lists the quite amazing finding that ‘this confidential information was then repeated at a meeting of Islington’s LGBT [Lesbian Gay Bisexual Transgender] Forum’. Certainly the judgement provides strong evidence of abuse of process by Islington Council and the campaign of victimisation that is claimed by Ms Ladele.
Ms Ladele then complained to that same manager that she was being unfairly treated. The judgement finds that ‘Islington does not seem to have taken any steps to investigate Ms Ladele’s complaints or to consider disciplinary proceedings against anyone in connection with them’.
The formal complaint made against Ms Ladele by the two gay registrars led eventually to a charge of gross misconduct being laid against her by Islington Council and the process which led to the employment tribunal ruling and the success of the appeal by Islington Council this week.
JUDGEMENT FINDINGS
Now let’s skip to the judgement findings from the point of view of Christian conscience.
As you summarise, Peter, the key point in the judgement in that dismissed Ms Ladele’s appeal was that Islington Council had every right to introduce their ‘Dignity for All’ policy and that Ms Ladele’s refusal to implement the policy by operating in her new role of civil partnerships registrar constituted grounds for dismissal. However, you also rightly point out that the judgement also found that ‘this conclusion may well not have applied if Islington had not designated Ms Ladele a civil partnership registrar. If they had not so designated her, …. no problem of discrimination under the 2007 Regulations could arise’. In other words, if Islington Council had decided to accommodate Ms Ladele’s Christian convictions (as is common cause that they could easily have done) then there wouldn’t have been a problem (although it is important to note that the judgement took no view on whether Islington Council should have accommodated Ms Ladele).
It is also important to note that the judgement found that ‘it is only right to record that many people may feel sympathy for the position in which she finds herself, and that, in some respects – most notably the unjustifiable characterisation of her letter of 18 April 2006 as “gross misconduct” and the unwarranted breach of her confidence in (the manager’s) letter – Islington did not treat her fairly’.
It was also argued by Ms Ladele’s lawyers that Islington Council’s “Dignity for All’ policy was achieved ‘by disproportionate means’, in other words that they could have implemented this policy and also accommodated Ms Ladele’s Christian conscience. In a finding of major importance the judgement states that ‘(this) argument might well be characterised as invoking the tail to wag the dog: the aim of the Dignity for All policy was of general, indeed overarching, policy significance to Islington, and it also had fundamental human rights, equality and diversity implications, whereas the effect on Ms Ladele of implementing the policy did not impinge on her religious beliefs: she remained free to hold those beliefs, and free to worship as she wished’.
In other words, because Ms Ladele remained free to attend church and worship her rights were not infringed. However, it is clear that this judgement defines religious belief narrowly and restricts its scope of operation within the public sector.
The judgement then takes the amazing view that ‘Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion’. At this point the judgement is frankly sinister. It sets the state up to determine what is core and non-core religious doctrine, which is most emphatically not its job! At a stroke, it removes the victories of the reformation and of the non-conformist and dissenting churches won at great sacrifice over centuries past. It has the potential to returns us to a world of state-approved religious doctrine that has not existed in the UK since Catholic Emancipation in the 1820s.
Symon Hill of Ecclesia has written a deeply wrong and ahistorical article claiming that Christians should applaud the judgement. Ecclesia, with their ‘post-Christendom’ analysis, should instead be deeply worried about this judgement. Symon Hill especially, as a Quaker and hence part of the long and honourable line of the dissenting and non-conformist churches, should oppose this judgement. Symon Hill’s Quaker forbearers were heavily persecuted by the state because the Established Church of England decided that their doctrine was wrong. Do you see what the judgement does? Effectively, this judgement starts to implement a ‘new Christendom’ (or more accurately, a ‘new Seculardom’) of state approved religious doctrine!
JUDGEMENT CASE LAW AND PRECEDENT
The judgement then quotes various case law as precedent which are a real eye-opener. Almost all case law quoted is from the European Court of Human Rights (ECHR). It includes revealing statements that ‘It is clear that the rights (to freedom of thought, conscience and religion) protected by the article are qualified, and that it is only beliefs which are “worthy of respect in a democratic society and are not incompatible with human dignity” which are protected’.
In support of its judgement it quotes ECHR case law that allowed ‘a (French) University (to) refuse admission to lectures or tutorials, and refuse enrolment on courses, to students with beards or Islamic headscarves’, stating that ‘the need “to maintain and promote the ideals and values of a democratic society”, in that case “the principle of secularism” (paragraph 116), can properly lead to “restrict[ing] other rights and freedoms … set forth in the Convention”’.
In quoting this case, it fails to note that France has had its policy of ‘laicite’ (secularism is inadequate but is the closest English equivalent) but that other EU states are not secular states. And it begs the very important question: At what point in time and by what process did the EU definition of ‘democratic ideals and values become secular’. This case does however establish that secular values are more protected than religious conscience and belief!
And most amazingly of all, it quotes other ECHR case law to ‘emphasise that “[w]here sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within article 8”. It is not suggested that, by permitting Ms Ladele not to officiate at civil partnerships, Islington would have infringed anyone’s rights under the Convention, but observations such as these demonstrate the importance which the Convention should be treated as ascribing to equality of treatment irrespective of sexual orientation’. In other words, gay rights are more protected than religious conscience and belief, or at the very least the burden of proof of infringement lies with the religious!
The judgement draws attention to ‘the relatively limited circumstances in which it is permissible to discriminate against anyone on grounds of sexual orientation because of one’s religious belief: those circumstances are essentially limited to the membership and operation of “organisations relating to religion or belief”, which plainly does not cover performing civil partnership unions, which is self-evidently a secular activity carried out in a public sphere under the auspices of a public, secular body’. Effectively this judgement finds that the orthodox Christian view that homosexual practice is sin can only affect the beliefs and actions of Christians within the church. Once they are outside the church they cannot act upon their beliefs but can only act in accord with ‘democratic values’ as defined by the state!
And a very clear-cut definition is also made that ‘the legislature has decided that the requirements of a modern liberal democracy, such as the United Kingdom, include outlawing discrimination in the provision of goods, facilities and services on grounds of sexual orientation, subject only to very limited exceptions’.
SUMMARY
1. Ms Ladele followed due process to respectfully ask that she not officiate at same-sex partnerships.
2. Islington Council was able to accommodate her request without any detriment to the efficiency of its civil partnership registration service, but it did not want to do this.
3. Ms Ladele was able to informally rotate with colleagues to ensure that she did not have to officiate at same-sex partnerships.
4. Two gay registrars formally claimed that they felt ‘victimised’ by this action which they claimed was an ‘act of homophobia’, although the judgement does not detail how they came to this conclusion. The result was however an investigation of Ms Ladele for ‘gross misconduct’.
5. The judgement cites evidence of ‘victimisation and harrassment’ of Ms Ladele by Islington Council staff. It finds that her rights were abused during the investigation process, including sharing of confidential information about her. It finds that her complaint of victimisation was not investigated by Islington Council.
6. Despite harrassment and abuse of process, the judgement finds that Islington Council did not discriminate against Ms Ladele, directly or indirectly, as she was required to implement the ‘Dignity for All’ policy and was required to register civil-partnerships.
7. To make this finding, the judgement defines religious freedom narrowly as the the freedom to freely practice worship and to discriminate on grounds of religious conscience only within the church.
8. For an encore, the judgement defines the orthodox Christian view of marriage as a ‘non-core doctrine’. It should be strongly argued that this task is outside the competence of the courts!
9. The judgement cites EU case law and precedent to argue that: democratic values are secular values; freedom of religion is narrowly defined as being the right to freedom of worship and to apply ones own religious views within the religious institution; that ‘[w]here sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights’
This judgement is an abuse of human rights legislation. It fails to differentiate between belief and action. It tramples over rights of religious freedom and conscience that were won at great cost, and it leads us towards the threat of a ‘new Seculardom’ of state-approved religious doctrine. It is a step towards tyrrany and it is vitally important that an appeal is successful!
Philip – that’s a superb contribution. Thank you so much.
What you haven’t dealt with, Philip, is my point that a Civil Partnership does not, legally speaking, HAVE to include sexual activity of any kind. In other words, while it may be reasonable to suppose that a Civil Partnership is likely to include sexual activity if it is contracted for the purpose for which Civil Partnerships were introduced (i.e. the legal recognition of their relationships for those gays and lesbians who wanted it), and not for some other purpose, it is not a LEGAL presumption that sexual activity will take place. I think I’m right in saying – and correct me if I’m wrong – that, unlike a traditional marriage, a Civil Partnership can’t be annulled on the grounds of “non-consummationâ€.
The Sunday Times reported in May 2005 that it had been decided that ‘gay and lesbian clergy [of the Church of England] who wish to register relationships under the new “civil partnerships†law – giving them many of the tax and inheritance advantages of married couples – will not lose their licences to be priests. They will, however, have to give an assurance to their diocesan bishop that they will abstain from sex.’ Whether or not that is a reasonable stipulation – my own view being that it is not – it nonetheless demonstrates the Church’s acknowledgement that a Civil Partnership does not HAVE to imply sexual activity.
Now Ms Ladele was not required to find out whether or not the couples applying for Civil Partnerships were engaging in sexual activity of any kind or whether they intended to do so in the future, or to concern herself with that question in any way. Therefore, had she officiated at Civil Partnerships, this would not have had to imply that she approved of (or pretended to approve of) same-sex sexual activity. She wasn’t even required personally to believe that Civil Partnerships were a good idea, or to call them “marriagesâ€. She was just required to register them. She could have done so while still herself believing that the couples in such partnerships ought not to engage in sexual activity. (Whether in fact they did or not would, of course, have been none of her business.)
I briefly dealt with the argument that the existence of a civil partnership does not automatically mean that a same-sex relationship exist in my first paragraph. I dealt with it briefly as I feel that its a weak argument either way: both in support or against the position that Lillian Ladele has taken. I think that David has given the best summary of the argument: essentially, from a state and legal point of view civil partnerships have been introduced to create ‘marriage-like’ facilities for same-sex people. And from the point of view of the state and, I suspect legally (although I am not a lawyer), it would be reasonable to expect the vast majority of civil partnerships to involve same-sex sexual activity.
But my larger point is that it is the absence of a conscience clause in the CPA that has led to this problem. It should have been put in as the orthodox Christian views that homosexual practice and abortion are sins are both widespread and well known by all, Christian and non-Christian alike. And the state has no business anyway in determining core and non-core Christian doctrine.
“And from the point of view of the state and, I suspect legally (although I am not a lawyer), it would be reasonable to expect the vast majority of civil partnerships to involve same-sex sexual activity.â€
It may be reasonable to expect it. Whether it would be reasonable to expect it “legally†speaking is another matter. Since same-sex sexual activity is not required for the partnership to be legal, and since, as I have already pointed out, a civil partnership can’t be annulled on the grounds of non-consummation, I suspect that whether or not it would be “legally†reasonable to expect it to involve same-sex sexual activity is not a “legally†meaningful question. There is therefore no need for a registrar, in his or her professional capacity, to be concerning himself or herself with the matter at all.
I really think that “orthodox†or “traditional†Christians sometimes gratuitously cause problems simply by not minding their own business. They have every right to live their own lives by the light of their religious convictions – it would, indeed, be reasonable to question the sincerity of those convictions if they did otherwise – but sometimes it seems that they are not content with that inalienable right; they are not satisfied unless those convictions also have some uninvited, unwanted and inconvenient spin-off effect on the lives of others.
With regard to a conscience clause, I think that it could be argued that such a clause would confer an exceptional and undue privilege on those who don’t approve of same-sex relationships. The orthodox Roman Catholic view that to remarry while one’s previous spouse is still living is wrong, that such a second marriage is theologically null and void, and that couples in such a second marriage are living in sin, is well known by all and is widespread among other orthodox Christians. But there is not, so far as I am aware, any conscience clause which exempts a registrar who shares those views from performing a civil marriage ceremony for a couple where either one of the couple (or both) has been previously married and divorced.
William
I take your point about ‘Christians sometimes gratuitously cause problems simply by not minding their own business’ and I agree with you to an extent. There are Christian’s that spend too much of their time worrying about other people’s sins. The biblical injunction is to look first at the beam in your own eye before pulling the mote out of other people’s eyes. And that is an important instruction to obey. If we spend time speculating on the sins that other people may or may not have committed then we are certainly in danger of ignoring the beam in our eye!
But that is not what I am talking about. I am refering to the the very important instruction to not be party to sin. And the right of Christian conscience in such situations is well established and has historically been respected in the UK. Conscientious objection to serving in the military in the UK was partially allowed during WWI and fully allowed during WWII for Christian pacifists. The provision was taken up (mostly by the Quakers) despite pacifism being a far less unanimous doctrine for Christians as a whole than agreement on homosexuality being a sin.
Abortion also remains a very relevant example. The Christian denominations that believe abortion is a sin tend to be the same that believe that homosexual practice is a sin (and vice versa). Yet there is a conscience clause in the Abortion Act and not in the CPA. Why not? Although if the right to abortion ever became a human right in terms of ECHR legislation, then I would expect the Abortion Act conscience clause to bite the dust pretty quickly!
Hi Philip,
Those are excellent comments, I guess there is a clear contradiction at play.
However I was wondering where you would draw the line with an individual having the right to express their religion and for the state not to define this. As William expressed surely this would have to be extended into the area of divorce and remarriage. If the individual and not the state get to define what is appropriate then a civil registrar could refuse to perform a marriage ceremony of divorcees. Some people also only have a difficulty with “no-fault” divorcees remarrying so they would have to have the right to investigate further the nature of the perspective marriage partners’ previous divorces to ensure that they were not party to their understanding of sin. Some people also have understandings of being “unequally yoked” which mean that they would view certain marriages as sin and therefore they would have to have the right to investigate if this was the case. And to place it on the extreme, some people believe interracial marriage is sin. I don’t think you are saying that a civil registrar should have the right to refuse to perform such a ceremony but if they are not to have this right surely the state is defining where they can express their religious belief, as erroneous as that belief may be.
I say all this because in Ireland the state is contemplating a religious freedom clause for civil registrars in our upcoming civil partnership legislation. However they have said they are not going to countenance it as to do so would mean also extending it to civil servants involved in divorce proceedings, something which we in Ireland voted on introducing in the 1990s. Almost 50% voted against the introduction of divorce, most on religious grounds yet there has been no religious freedom clause introduced and no demand for one. So the politicians basically see it as hypocrisy to ask for it in just this one area.
Hi Philip,
What a long post, you must be exhausted! As I have said, the Ladele case does make me uneasy, mainly because Ladele’s terms and conditions were changed and her employers ( in your account) didn’t accomodate her when it was reasonable to do so.
However, you write,
“Effectively this judgement finds that the orthodox Christian view that homosexual practice is sin can only affect the beliefs and actions of Christians within the church. Once they are outside the church they cannot act upon their beliefs but can only act in accord with ‘democratic values’ as defined by the state!”
I actually think this is fair enough. You can’t for example have a Christian nurse refusing to treat a gay patient – or a gay nurse refusing to treat a patient whom they know is a Christian opposed to same sex relationships. People cannot behave as they wish towards others on the basis of their beliefs, be these religious, political or personal, especially when carrying out civic functions or providing goods or services. People can conduct their own lives in line with their religious beliefs and this would involve their choice of employment. If you are a strict Muslim, you don’t work in a pub, a Christian might avoid taking a job in a strip joint etc. What wouldn’t be acceptable would be to take a job in a pub and complain that alcohol was served and this infringed your religious sensibilities!
I think Ladele’s case is a bit different because when she took the job, it only involved opposite sex couples. It would be different for someone joining after the introduction of CPs.
Sue
Yes, I am exhausted but because here in South Africa I am at the end of a long and hard working year. This weekend I start a 4-6 week break (which probably will include a 1 week trip to the UK at some point) so I have time on my hands. The sun is out, the temperature is scorching! I don’t have the energy to enjoy it yet, but I do have the energy to type!
I recognise that you can see that Lillian Ladele has been badly treated. I agree with you that the situation would be very different for someone joining the Registry Service after the CPA was enacted as the expectation, and probably the job description, would include registering same-sex partners.
But with respect, you are failing to differentiate between helping and serving others, which is a Christian command (Christian nurses and doctors treating gays), and aiding and abetting people to sin, which is a definate Christian no-no (Christians registering same-sex partnerships)!
And the core issue here is the freedom (or human rights if you will) of orthodox Christians already working in the public service to refuse (respectfully, and with direction to other people who will) to provide services that will cause them to aid and abet sin. They have this right in the case of abortion and (as a result of this ruling) they don’t have this right in the case of SSP. Its a glaring contradiction, isn’t it?
Philip,
There is a better contradiction than that in recent “equality” legislation:
Transexuals have been given the right to be legally recognized in their gender of choice. Birth certificates can be cahnged, everything, and everyone i klegally obliged to treat them in their new gender. Even despite the Human Rights of religious belief and expression, there is no exemption for religious organizations even when providing marriage… (though an individual minister, if he finds out, may decline to preside).
HOWEVER, there is an exception in this otherwise blanket ban on discrimination.. for SPORTS! Sporting bodies may legally inquire into someone’s original gender and discriminate on those grounds! The reasons for this exemption are obvious but, as far as I know, there is no European Right to equality in Sports that the lawmakers have had to balance against the transexual’s equality rights!
It is purely pragmatic. I think that this contradiction speaks volumes about our law-makers true understanding of Human Rights!
ppps I’m not very surprised that, in current society, this Government is continually turning the screws on people who believe, speak or act in a way that suggest that there is something wrong with same-sex sex, or any consensual sexual conduct outside marriage for that matter! The cabinet has had many members whose sexual conduct is far outside Christian ideals.. Hardly surprising then that they are wielding their power to suppress freedoms that allowed people to criticise and reject what they want to do! (and to attack people and organisations that call such things decadence rather than liberation). Like all of us, as sinful human beings, they don’t want to be reminded that what they are doing is wrong and will be judged by God.
A number of different comments have been written giving different situations of potential conflict between Christian belief and duty to perform one’s function in the public service. With respect, I don’t believe that these are the key issues that are raised by the Ladele case. I feel that complete freedom of belief is vital in a free society and that limiting the expression of belief should only take place only when that expression is likely to cause physical harm to others or will intefere with performing a job or other contractual responsibilities. In my view, the basic principle should be to not intefere with the expression of belief unless it can be proved that these two important qualifications are contravened.
And that has been the general practice in the UK until relatively recently. I can remember a major spat in the 1970s over Sikhs in the UK being exempt from the law for compulsory wearing of motorcycle helmets. Sikhs argued that their religion meant the compulsory wearing of turbans for men, which would be impossible with motor-cycle helmets. This is a good example because of the illiberal, and often racist, passions that it ignited for a short time. Some argued that Sikhs had to change their religious beliefs and come into the modern world. Others argued that their religious belief was less important than ensuring their greater safety. The most extreme argued that Sikhs should pay some sort of additional tax as a contribution to the extra hospital costs from not wearing helmets! Do you see the parallel with some of the arguements over the Ladele case. The government quite correctly decided against inhibiting religious freedom.
The problem is that this is no longer the view of the government, indeed it increasingly seems that the government sees religious belief as a problem and as the realm of eccentrics, as the Archbishop of Canterbury has pointed out recently.
The reason that the Ladele case is so significant is that she made her objections responsibly, respectfully and through due process. The judgement clearly documents her use of due process and contrasts it with Islington Council’s abuse of her confidentiality and employment rights.
If you follow the judgement carefully the original complaint that eventually led to her disciplinary hearing was made by two gay registrars that objected to her beliefs. As I stated earlier: ‘Ms Ladele was able to informally rotate with colleagues to ensure that she did not have to officiate at same-sex partnerships. Two gay registrars formally claimed that they felt ‘victimised’ by this action which they claimed was an ‘act of homophobia’, although the judgement does not detail how they came to this conclusion. The result was however an investigation of Ms Ladele for ‘gross misconduct’’.
This is important because it shows that the gay rights lobby is not just fighting for perfectly reasonable equal rights of access, employment and services. It wants to change people’s beliefs and ensure that they are punished for those beliefs when they do not conform to gay rights orthodoxy.
This is deeply illiberal and, unless it is defeated on appeal, this judgement is a significant move towards a system of state-approved religious belief. Indeed, the most sinister aspect for me in the judgement is the listing of European Court of Human Rights (ECHR) case law and precedent to argue a number of points (quote from my earlier contribution).
1. It is clear that the rights (to freedom of thought, conscience and religion) protected by the article are qualified, and that it is only beliefs which are “worthy of respect in a democratic society and are not incompatible with human dignity†which are protected’.
2. The need “to maintain and promote the ideals and values of a democratic societyâ€, in that case “the principle of secularism†(paragraph 116), can properly lead to “restrict[ing] other rights and freedoms … set forth in the Conventionâ€â€™.
3. The need to ‘emphasise that “[w]here sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within article 8″ (freedom of belief and religion)’.
It is clear that ECHR precedent is being used to severely restrict religious freedom and to establish a system of values and rights that are ‘worthy of respect in a democratic society’, a deeply sinister phrase.
It is not clear to me that this process of determining a hierarchy of protected beliefs, values and rights has been subject to any real democratic oversight and scrutiny.
Let me be clear about this. It is not the business of the state to legislate for anyone’s values and beliefs, merely to legislate for the common good on actions that stem from those beliefs. However the modern Euro-super state, without adequate democratic controls and safeguards is legislating into existence a series of approved values and beliefs. It is taking on the role that Queen Elizabeth I refused to have – of a ‘window into men’s souls’. And if it persists in this course unchecked then it will become deeply illiberal and authoritarian.
Philip, I think that is very true. I’m surprised that the ECHR ruled such a judgement. I suppose that shows the hypocrisy of using Human Rights as basis for making law, rather than just as a basis for deciding the limits of the law..
If one uses HR to ‘give’ people religious freedoms – it makes one set of beliefs (Human Rights, and any beliefs associated with them in the mind of the courts) absolute and all other beliefs must be restricted by HUman Rights. Hence current societal values eliminate the right to express any belief that is “wrong”. is too far away from them.
Surely it is obvious that ANY restriction of freedoms on purely philosophical grounds, rather than actual harm, is just discrimination on the basis of belief (or lack of belief)? Even if that philosophy is called “Human Rights”. In other areas liberal” politicians have consistently argued against any balancing human rights with human responsibilities, but now they are usings Human Rights to manufacture Human Restrictions.
It’s a bit ironic that the preamble of the UN Declaration of Human Rights’ states that:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, “ (my highlight added)
But that “liberal” governements and courts and now using their power, on the basis of imposing human rights, to restrict freedon to express (maybe even to hold) any belief, or any article of religious faith, that is not liberal enough!
ps There’s a really good discourse on how human dignity requires freedom of religion and conscience here: http://www.becketfund.org/files/AWU-LibraryofCongress.pdf
David
Thanks for posting this link to a very well argued paper.
Happy New Year
Philip