Equality and Religious Belief
A great summary of the state of play as the EHRC engages in a review of religious discrimination can be found over at the excellent Religion Law Blog.
LILLIAN LADELLE and MORAL COMPLICITY
11) The Commission has said that it will oppose the appeals in the cases of McFarlane and Ladelle and clearly considers that the issues in the two cases are the same. I disagree and suggest that the two cases are clearly distinguishable on their facts and in the legal principles applicable to them. This submission will concentrate solely on the case of Ladelle which we would suggest shows an inability on the part of the Courts, and the Commission, to distinguish between simple discrimination and refusal to be complicit in an immoral act. In addition the case demonstrated an unwillingness on the part of the UK Courts to properly consider or apply the limitations in Article 9.2 in particular the question whether the limitations were “necessary in a Democratic Societyâ€
12) In respect of her desire not to participate in same sex partnership ceremonies Ms Ladelle was manifesting her religion and belief in “practice and observanceâ€. Since she believed that same sex relationships are sinful she was aware that by participating in them she would herself be morally complicit in that sin and therefore any attempt to force her to participate in them was contrary to her rights under Article 9 because it was an attempt to force her to act in a way that was inconsistent with her moral beliefs. Her objections should only have been overridden if that was “necessary in a democratic societyâ€
13) In para 56 of its judgment the Court of Appeal said “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.”  and this section shows a fundamental misunderstanding of Christian belief on marriage, or Article 9 and of the proper role of the Courts. It is not for Secular Courts to distinguish what is or is not a “core part†of a religion and Article 9 is concerned with freedom of religion not freedom of worship. Like all elements of the Convention Article 9 protects both positive and negative freedom. To force someone to act in a way contrary to their religious beliefs is as bad as preventing someone acting, or worshipping in accordance with their religious beliefs but that is what Islington Council and the Court of Appeal required of Ms Ladelle.
14) In Ms Ladelles case there is absolutely no evidence that it was “necessary†to make her participate in same sex ceremonies. The evidence in the case showed that theservice provided by Islington was not in any way affected by Ms Ladelle ensuring that she was not rostered for same sex ceremonies therefore requiring her to participate was not “necessary†in any meaningful sense of the word. The fact that her views may have been contrary to the Equality policy of the Council, which is arguable both ways, still does not make it “necessary†to force her to act in a manner which was contrary to her religious beliefs. The issue of whether the Councils actions were “necessary†was never properly addressed by the Court.
Perhaps the work of the Christian Legal Centre over the past few years might yet bear fruit?
This is a really good summary of why the Ladele case is so important for religious freedom and why it is very important that her appeal to European Court is successful. Neil Addison summarises all the important points of her case very well.
14) Even if, in the short term, a particular person was willing to cover duties that Ms Ladelle should be expected to perform, surely it could be argued that setting such a precedent – allowing *public* servants to pick and choose which members of the public they serve, and having rosters unfairly rotate around Ms Ladelle's preferences – *is* contrary to the relevant equality legislation and avoiding setting such a precedent was in a sense "necessary"?
Of course freedom of religion extends to more than the right of worship, but allowing public servants to pick and choose which of their *duties* they perform is fraught with all sorts of worrying implications (should a Hezbollah style Islamofascist be allowed to discriminate against Jews? And hasn't this very website had to deal with cranks who claim that their belief in Christianity necessitates or at least enables worrying racial views? Surely they would be covered by the logical elaboration of "it is not for Secular Courts to distinguish what is or is not a “core part” of a religion"?)
The argument the blogger is putting forward (and he isn't in any sense a fan of the CLC) is that the correct interpretation of Article 9 is that freedom to exhibit religious belief would trump the Council's "equality agenda" if and only if it could be shown that having Ladele perform CPs wasn't necessary. Given that there are plenty of other registrars, it could be reasonably argued (as the CLC did) such a way.
Ryan
One of the pernicious aspects of the Ladele case is that her conscience was being accommodated by voluntary rotation with other staff with no problems or detrimental affect on the provision of the civil partnership service to gay couples. This was common cause in the case and was noted in the court findings.
The start of the complaint was from two gay registrars who were 'offended' by Lillian Ladele's refusal to conduct civil partnerships, despite the fact that her rotation was voluntary, respectfully done and she had joined the registrar service prior to civil partnerships being introduced.
Gay couples quite rightly have the right to dignified and well provided civil partnerships. The should not have the right to not be 'offended' by someone's views politely and respectfully expressed.
Her case contrasts with a recent experience in my home province in South Africa. See http://www.dispatch.co.za/news/article/1871 (Tip: read the article – the headline is not accurate) The South African Civil Union Act 2006 was introduced with the written-in provision that registrars could conscientously object to participation, something that should have happened in the UK and which would have protected Lillian Ladele from the deplorable way in which she was treated.
I think that the main difference is that in highly religious South Africa there was no way this Act would have gone through without rights of conscience provisions. Whereas in the post-Christian UK, Christian conscience is safely expendable!
>>>One of the pernicious aspects of the Ladele case is that her conscience was being accommodated by voluntary rotation with other staff with no problems or detrimental affect on the provision of the civil partnership service to gay couples. This was common cause in the case and was noted in the court findings.>>
The fact that her conscience *was* being accommodated in this way in no way makes allowing her to discriminate against gay people moral and or (one hopes) legal. Its theoretically possible that, in the bad old days, people who didn't want to work with a particular (e.g.) racial group could be and were accomodated, but such fudging of the implications of equality would be rightly condemned if applied to e.g. racial minorities today.
>>>Gay couples quite rightly have the right to dignified and well provided civil partnerships. The should not have the right to not be ‘offended’ by someone’s views politely and respectfully expressed.>>>
I quite agree (although, tangentially, there's as much as if not more 'I'm offended!' rhetoric coming from the anti-gay side on these sorts of issues c.f. The Christian Institute and their reaction to TV programmes that have the temerity to portray gays as human beings). Take someone who receives unfavourable treatment because of their race; it is not the "being offended" that makes the treatment a (in the relevant contexts) a crime. People can believe whatever they want. But when a public servant decides that they can't serve relevant members of the public *because of* this belief then it is the action, not the belief per se, that is rightly condemned. It is naive to think that there are not expressions of Islam today that are virulently anti-semitic; could such people, in a secular society, play the "my religion overrides the Law" card? If not, why not?
It does, again tangentially, crack me up when people cite conservative Christians wanting to enter gay bars, as if the two instances are at all comparable – even if they were, it would hardly be in the interests of gay barkeeps to turn away some of their best customers ;-) http://gayhomophobe.com/
Ryan
1. You're missing the point. There was no discrimination by Ladele against gays. It was common cause, stated in the court findings, that her actions had no effect on the efficiency or dignity of the service provided to gay couples. Her conscientious objection was registered quietly, respectfully and following due process the whole way – in stark contrast to the behaviour of Islington Council!
2. Your comparision with racial prejudice is specious. The expression of racist views is quite rightly strictly controlled as race is a given. It is also right that there should be laws against 'hate speech', subject to free speech safeguards, that protects all people, including gays. But it is legitimate to argue that homosexual behaviour is morally wrong, as long as it is respectfully expressed. I've met a number of ex-gays – I've never met any ex-blacks!
3. My comparison with South Africa is very relevant. It was quite predictable that in the UK some Christian registrars would want to conscientiously object against participating in civil partnerships. The orthodox Christian view that homosexual behaviour is morally wrong is well known and continues to be the official position of all major churches in the UK. Yet the government did not see fit to protect the rights of orthodox Christians. In highly religious South Africa the Civil Union Act was a response to a Supreme Court ruling rather than democratic debate and oversight. Even using this back-door method of judicial activism, it proved difficult to get it through, and the ANC had to enforce a three-line whip on its MPs to get the vote. And there is no way that the Act would have passed without rights of conscienctious objection!
1. Philip, you're missing the point. Ladele discriminated against gays by saying she could not serve them; the fact that management were able to work around her prejudice *in no way* means that discrimination did not occur (and this is a point simply about logic, not one that requires acceptance of "homosexual practise" to agree with. If person x says they can't serve group y and management endorses/accepts this then discrimination has still occurred even if one *specific member* of group y has not been discriminated by person x. In fact, it's in some senses worse – as the person discriminating against a specific member of group y could make excuses for doing so, in contrast to Ladelle who, by her own admission, objects to performing civil ceremonies for *all* same-sex couples.
2. It's not remotely specious, because I was referring to the logic of the quoted statement which said " It is not for Secular Courts to distinguish what is or is not a “core part” of a religion and Article 9 is concerned with freedom of religion not freedom of worship". It manifestly does not object on legal grounds with a Gagnonesque *theological* argument along the lines of race being inate and unchangeable and homosexual being merely an inclination towards immoral behaviour. Precedent is important in law. If it is *not* for the the secular courts to decide what constitutes a core part of a religion, then presumably people are free to offer theological arguments for their beliefs. No offense, but there's something utterly absurd about a SA based fellow like yourself to seem to be ignorant that theological arguments can to be cited to burnish racist views! And you ignored my point about Islamic antisemitism. Now of course I don't think that antisemitism is a core or even a natural part of Islam – but then the defense here is that it is not for secular courts to decide what is and is not a core part of a religion. So the antisemite Islam could certainly, like the proof-texting Christian homophobe, quote verses to justify his prejudice (http://en.wikipedia.org/wiki/Islam_and_antisemitism#Hadith)
And of course even if YOU think that sexuality and race are a poor analogy the law, broadly speaking, does not, and Ladelle's actions are judged under the law that we actually have, not the theocratic variety that she may well pine for. Your last line is an amusing bon mot (here's another: never see Michael Jackson? ;)) but of course it is true that Jewish people used to change their names from giveaways like Auster or Goldblatt in order to not be persecuted in antisemitic societies. Nowadays, society would rightly say that it is the prejudice that is fault, irrespective of whether Jews (unlike blacks) can hide their identity and 'pass' in a prejudiced world. And of course Jewish people can convert – does the existence of "ex-Jews" make "antisemitism" as unsound as "homophobia". If not, why not?
3. Are you sure you don't mean "England" when you say UK? The (One, True, Holy and Fabulous ;) Scottish Episcopal Church famously announced in 2006 that being in a same-sex relationships is no barrier to ministry, whereas the Church of Scotland's decisions in light of Scott Rennie and at the last General Assembly have hardly been the stuff of reasserting 'Orthodoxy'. Let me reemphasise that we're talking about legal judgments. If you expect the likes of Lidelle to be entitled to a "right to deny the rights of others" then you have to offer legal arguments that work within established laws – merely stating particular theological beliefs about homosexuality is not, in a legal sense, compelling. Which is presumably why the original post included the necessarily broader line about secular courts not being able to decide what is an is not a core part of religions – which DOES – *logically* -have implications for far,far more than objections on sexuality grounds, in the manner I've described.
Re your first point, what the legal opinion I quoted suggests is that since this is a conflict of Article 9 Rights versus other rights, EU Law says that Ladele should have been accommodated if it was possible. Since there were enough other registrars to handle CPs, Ladele's Article 9 rights were infringed since it is the Council that has the obligation to provide CPs and NOT Ladele herself.
Having been a critic of the CLC approach in the past, I'm starting to agree that this argument has great merit.
Ryan
You're not recognising the important distinction between discrimination and 'prejudice' (I'm putting the latter in quotes for reasons you will see). Discrimination can only be logically understood as differential provision or access to goods, services, employment and promotion. It's quite right that gay people, along with all people should be protected in this way. But it was common cause in the case that LL's actions in no way inhibited the provision of the services rightly due to gay couples.
'Prejudice' refers to views and opinions rather than actions. The expression of racist views has, in my view rightly, been classed in many countries as hate speech or as a threat to public order, based on experience that expressing of such views often preceeds or is associated with violence against black people.
This is not the case with the orthodox biblical view that homosexual behaviour is a sin. Indeed, the Waddington amendment to last year's Equality Act expressly protects this view stating that (I may not have the exact words but I hope that I have the sense) "the expression of the view that homosexuality is a sin, in and of itself, is not a crime". It is also very easy to demonstrate that this view is a religious view. A strong legal argument can therefore be made that TOBVTHBIAS (you know what I mean) is both protected under English law and is a religious view that is commonly held.
This is why I put the point 'prejudice' in quotes. I fully accept that you and indeed many other people would see TOBVTHBIAS as 'prejudice'. Other people, including me, don't. But in terms of English law, which is after all what matters here, TOBVTHBIAS is not prejudice and is not equated with racism. Indeed it is a protected view as long as it is respectfully expressed, which is common cause in the case of LL.
And this is where the power of Neil Addison's points come in. As Peter says, he points out that EU law protects both religious views AND practice, subject only to the qualification that these rights should be limited if this is “necessary in a democratic society”.
He argues that it was not "necessary" to infringe LL's religious rights in order to provide an efficient and dignified service to gay couples, which is the only way that discrimination in this case can be understood. Based on common cause in the previous UK case, this should be fairly easy to demonstrate that this was the case.
And that is why the point of "reasonable accommodation" is so important. It was raised by LL's lawyer in the UK case and was also going to be basis of the EHRC's intervention in the case until the gay rights lobby scuppered that one. "Reasonable accommodation" is important because it is the basis by which conflicting rights can be weighted and balanced in the "democratic society" of EU law.
"Reasonable accommodation" argues that LL should have been accommodated because:
1) Her religious views on homosexuality are protected in both English and EU law, as long as they are respectfully expressed.
2) Expression of her views, in the manner in which she did, did not discriminate against or inhibit the provision of the civil partnership services rightly due to gay couples.
3) Islington Council, through the exercise of its Equalities Policy, did not balance the rights LL was given in that policy or make any serious attempt to accommodate her.
Neil Addision's points are very pesuasive (the full article is well worth a read) and IMHO LL has a very strong case in European Law.
To summarise:
In a free society it is right that gay couples should be given the services to which they are due without discrimination or favour. But they do not have a right to not be "offended" by the expression and exercise of orthodox Christian views which are protected under EU and English law.
In a similar manner, many Christians are "offended" by Gay Pride and based on the flagrant indecency that goes on they could probably make a case (there are still laws against public indecency in the UK, aren't there?) But they have no rights against "offence" and the rights of gay groups to march and express their beliefs by actions should be and are protected, subject to the laws governing any demonstration or large gathering of people.
You may see TOCVTHBIAS as 'prejudice'. Fine, that's your opinion and you are free to lobby for the churches to change their views. But that is not the view of English or EU law. So LL's rights should have been "reasonably accommodated".
I have NO IDEA what you mean!
Oops, I'm a bad typist! It's an acronym I often use to refer to 'the orthodox Christian view that homosexual behaviour is a sin' it therefore should read TOCVTHBIAS!
Philip, as the saying goes, you've answered everything except my question.
Of course I recognise the difference between "discrimination" and "prejudice" (c.f. my post above). You seem to think that Ladelle was wrongly condemned for merely expressing a view, which is nonsense; it is her *actions*, in exempting herself from providing services to *all* same-sex couples that are rightly seen as at fault. Homophobic prejudice is not a necessary form of religious practise. On top of which those who favour full marriage equality would point out that Civil Partnerships are not synonymous with marriage; Ladelle was not objecting to being forced to participate in a (to her) blasphemous version of a religious right. Hence the post above making the more general point that secular courts ought not to be allowed to decide what is and is not a core part of a religion, which I maintain has the unfortunate implications outlines in length (and apparently ignored) above. And, again, whether you or anyone else *thinks* that homosexuality is not most analogous to race doesn't alter the fact that the law, as it exists, does largely group sexuality alongside 'race' and 'sex' in relevant equality legislation.
A public servant who (for whatever reasons) claims that they can't perform their duties for *any* gay people (or those of a racial minority etc) is in violation of the basic requirements of her post; allowing one to pick and choose in this way is in no way a "reasonable acoomodation" (for example, I've some knowledge of the "reasonable adjustments" that the Disability Discrimination Act allows – they do not extend to exempting relevant parties from the key requirements of a particular job)
Peter – surely the council could legitimately point out that although *in the short term* it could provide other CPs to cover Ladelle's rightful duties, it is ultimately unsustainable – and therefore an unfair/unrealistic expection of the council – to allow CPs to discriminate for alleged religious reasons in the manner of Ladelle?
And I don't know what TOBVTHBIAS is either. Is it related to Cthulhu http://en.wikipedia.org/wiki/Cthulhu ? :-)
Finally engaging with the legal issue Ryan!! Yes, the Council could argue that complying with Ladelle's Article 9 rights was unsustainable, but then they would have to demonstrate that not rostering her for CPs was causing major issues. Given that the arrangement that she didn't do CPs had worked without any problems for many many months, I can't see how they would support such a contention.
Compare it to the council installing a wheel-chair ramp into a building, getting no complaints from anybody and then wanting to argue that the wheel-chair ramp caused too many problems.
Ryan
As I understand it the logic of the legal argument in favour of LL's position would go something like this:
1) Religious freedom is protected under both EU and English law. This freedom is understood broadly as the right to both freedom of worship and the exercise of religious freedom through action, rather than the false restriction to the former which was made in LL's UK case.
2) The EU qualification to the general right to freedom of belief and expression is that restriction is “necessary in a democratic society”. It's under these grounds that the expression of racist views is restricted on the basis that they will intefere with the rights of black people.
3) That is not the case with TOCVTHBIAS. Its expression is protected by the Waddington amendment to the Equalities Act and by EU law, as long as this is respectfully done without incitement to violence or harm.
4) The LL case therefore becomes, as Peter says, a judgement of competing rights under EU law. "Reasonable accommodation" becomes the basis for judging competing rights and their expression, which is why it has become such a key phrase in this case.
5) In LL's case the first point of "reasonable accommodation" is does the exercise of her conscientious objection impinge on the rights of gay people in the "democratic society" of EU law. Gay people rightly have rights to provision of goods, services, employment and promotion without discrimination under this democratic society.
6) But it is common cause that LL's "reasonable accommodation", which was already happening on a voluntary basis, did not intefere with the democratic rights of gay couples to non-discriminatory services.
7) The original basis on which LL was disciplined by Islington Council was one of "offence". Two gay registrars complained that they were "offended" by LL's refusal to conduct civil partnerships.
8) But there is no right to not be offended. And a good job too, as it is a legal concept that is almost impossible to define and the use of which would only provide good incomes for human rights lawyers.
9) Indeed, it can easily be demonstrated that TOCVTHBIAS is not regarded as 'prejudice' in both English and EU law (see 3). In terms of EU law, limitation of the expression of this view is only legitimate if it is "necessary in a democratic society".
10) But that cannot be shown to be the case, as the exercise of rights of conscientious objection by LL was being reasonably accommodated, could have continued to be reasonably accommodated and should have been reasonably accommodated, as there was no impact on the rights of gay couples to the services for which they went to Islington Council.
To summarise again: Gay people correctly have rights to non-discriminatory provision of goods and services, employment and promotion. They do not have the right to not be "offended" by TOCVTHBIAS, respectfully expressed and without infringing on their own democratic rights. Nor should they in a free society!
Well put, and let me add two more points.
i) If LL was working in a registry office with only 2 or 3 registrars, then it is very likely that a court would view her request not to conduct CPs as detrimental to Islington's legal obligation to provide CPs registrations to those who desired and her refusal to conduct CPs. Islington, being unable to be reasonably accommodated because of operational needs, could quite rightly sack her for not conducting CPs. However, since there were plenty of registrars available and very few CPs wanting to be registered, it was perfectly reasonable for Islington to accommodate her Article 9 religious beliefs.
ii) The fact that Ladelle became a registrar before the CPs Act is a red herring and has little legal bearing on the case.
I think that with your additions here, Peter, LL has a very strong case under EU law!
I disagree with Ryan's position that there is fault in LL's actions, to the effect that she exempted herself from providing services to all same-sex couples.
LL was not exempting herself from providing all services to same-sex couples. LL would have registered a birth where the informants were a same-sex couple, or registered the death of one of the partners in a civil partnership or the death of any person where the informants were a same sex couple. If a same-sex couple sought a copy of a entry in the registers then LL would not have refused to provide the certificate.
By not conducting civil partnership ceremonies LL simply exempted herself from being part of the provision of a particular service. It's not as though LL provided the service of civil partnership to some people and not to others. It is ridiculous to argue that simply because by its nature the civil partnership is only available to same-sex couples that means that a registrar who does not participate in registering civil partnerships is wrongly refusing to provide services to all same-sex couples. It's especially the case where her refusal has no impact on the access of same-sex couples to the service of registration of a civil partnership.
LL has a legal liberty (as a citizen) to believe that conducting civil partnerships is wrong. She has no overriding legal duty not to believe that, even if many may consider her stance to be morally wrong. The law says we are all entitled to hold divergent beliefs and even make an effort to promote them, though not in a way that would arouse undue fear of harm, alarm, or distress (i.e. without harassment).
As a comparison, rowdy anti-war protesters have a right (legal permission) to demonstrate loudly near a Remembrance Day service and during the minute of silence. The permission is a liberty that protects our individual autonomy and choice. This doesn't make their behaviour right (morally), only legally permitted.
However, we should ask the question: 'Does any couple planning a civil marriage/partnership have the right to review the staff roster and ask for a particular registrar to be assigned?' Well, no. They simply expect that the service, or assigned registrar will treat them fairly. If you look at the digest of Article 9 cases, it is clear that the ECHR takes into account that there were effective alternatives capable of accommodating the competing interests.
A couple's right to expect a service that complies with the Equality Act is actually a claim. The Registry Office is obliged by law to ensure they provide the required service. The couple only have a claim on the *assigned* staff member to conduct the required ceremony. It's the Registry Office manages the assignment of duties and workload for each registrar.
It would be different, if the Registry Office merely licensed the registrars, rather than employing them. Registrars might then advertise independently and prospective partners would contract with them to deliver the service directly.
I think that Peter has rightly highlighted the crucial difference between licensed service-providers and employees, but there is an equally significant requirement to demonstrate that this refusal was a 'manifestation of her religious faith'. Only then does reasonable accommodation apply when rights compete.
This is where I think LL's case may fall down. Based on the case law, I think that, although her actions may have been inspired, or encouraged by her faith, they were not CENTRAL to them, i.e. there is no conclusive evidence that her refusal to perform civil partnership ceremonies was a binding necessity upon those of her faith. In Arrowsmith vs. UK, the applicant had been convicted of distributing leaflets critical of Government defence policy to soldiers. The ECHR did not consider that action to be a manifestation of her belief in pacifism, it was only encouraged by it. The ruling would have been different, if the tract had focused on disseminating her pacifist values, and urging readers to take up the cause, rather than only denouncing the UK defence policy.
There is a common misconception about the meaning of worship. It is not the attendance of a church or hall with a group of other Christians, it is the obediance of god's laws in all of one's life. That is how you worship. Subsequently, what you you do in your life affects your worship and condoning a same sex Civil Partnership will have on affect on one's worship.
Therefore, no one can say to any one, you can carry on with your worship but you must do this or that.
While I whole-heartedly agree with your understanding of worship, it's not the State's role to favour the sincerely-held beliefs of one Christian faction over the rights of any other group in society.
The current stance of the UK courts is remarkably similar to Gallio's recorded response to the Jews' complaint against Paul in Acts 18.
The passage indicates that Gallio would have entertained their case against Paul ('persuading the people to worship God in ways contrary to the law'), had it amounted something more than what he viewed, rightly or wrongly, as 'questions about words and names and your own law'.
There are so many variations to religious objections, such as: Should a Christian doctor in a fertility clinic refuse to assist a lesbian couple who have found a sperm donor?
Whatever your view, these are choices that we suffer for, in good conscience, knowing that they may be at odds with our employer, and even the wider society. The church's role, as the Body of Christ, is to mount a sensible legal challenge (as Paul did) where we have sufficient grounds, and yet make every effort to relieve the hardship that may likely ensue as a result of following a Christian conscience.
I must say, these cases worry me because of the precedent they set for other cases of conscience. Â For instance, pro-life doctors/nurses will not involve themselves in abortion. Â What does it mean to have freedom of conscience if the only way to follow your conscience is to lose your job?