Last among equals?
Daniel and Amy McArthur of Ashers Bakery outside Belfast County Court (PA)
Christian teachers, hoteliers and now cake-makers are being hauled before the courts in the name of equality. It’s time the law was more flexible in taking account of religious beliefs
I want to propose a change in the way judges decide cases involving clashes over religious belief. This simple, common-sense reform would spare those involved much unnecessary hardship. But first let’s consider why there have been so many prominent examples of devout Christians appearing before our courts.
Take the case of Lillian Ladele, a registrar for marriages, births and deaths for the London Borough of Islington. When the Civil Partnership Act came into force she registered a conscientious objection. The local authority brusquely dismissed this, telling her that as a holder of a public office she was obliged to officiate at such ceremonies and her conscientious objection counted for nothing. The fact that other registrars could easily have presided at the ceremonies, of which there were not likely to be many, was also dismissed.
The council told her she was in breach of its “Dignity for All” policy, which provided 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, who must be treated with dignity and respect. It also said that “all employees are expected to promote these values at all times and that those who do not may face disciplinary action”.
Ladele eventually resigned because she refused, as a Christian, to conduct civil partnership ceremonies. She lost her claim that she had been discriminated against on the grounds of her religious belief. The Court of Appeal placed much weight on the council’s “commitment to fighting discrimination”, which it then interpreted as discrimination on grounds of sexual orientation.
Moreover, Ladele’s view of marriage, as being between one man and one woman, was not held to be a core part of her religion. This was a shocking decision and, thankfully, the courts have now widened the meaning given to religious belief, so that a belief that Christians should not work on Sundays is held to be a religious one. To that extent, Christians in the workplace are better off.
But a worrying feature of the case was the extent to which the council acted under its “Dignity for All” policy rather than the law. This frequently happens, often to the detriment of Christians, who need to point out forcibly that it is the law, and not the myriad equality and diversity policies that have sprung up, that governs individual rights.
But we must be careful, as some stories about alleged discrimination against Christians turn out, on investigation, to be nothing of the sort and, sadly, there is a good deal of scaremongering going on aided by national newspapers. As a lawyer, I know how often cases are misreported in the press.
On the other hand, there are cases of genuine discrimination against Catholics and other believers in their jobs, and our case when combating them will be immeasurably strengthened if we distinguish between these real cases and the others.
Take the position of Catholic teachers. It is often said that Catholic schools in Britain must “actively promote” other faiths, which would mean that a Catholic teacher could be dismissed for failing, for example, to promote Islam. This is simply not true. Government guidance requires all schools to “actively promote respect and tolerance for people of different faiths and beliefs”. It cannot be stressed too strongly that there is all the difference in the world between promoting respect for a religion and promoting that religion as a good in itself.
Again, it is said that all schools must actively promote the “protected characteristics” in the Equality Act, which include sexual orientation, and that therefore schools must promote same-sex marriage. This too is untrue.
Schools should teach that it is wrong to discriminate against a person on the ground of their sexual orientation, and on other grounds too, but there is no requirement to promote same-sex marriage as a good in itself. Indeed, Government guidance specifically states that it is not necessary for schools, including faith schools, to promote teachings, beliefs or opinions that conflict with their own.
This should not detract from the problem faced by Catholic teachers in a non-denominational school. Suppose you teach Personal, Social and Health Education (PSHE), which contains the topic “All Relationships? All Equal?” Diversity is a key theme. You tell your students that, although you will teach them what the law says about same-sex marriage, your religious convictions mean that you cannot teach them that same-sex marriage is, in fact, marriage. Here you are at risk of dismissal. One could say that you have chosen to teach in a school where you knew that this conflict between your beliefs and your job would arise. But is this the answer?
Running a hotel can bring you into conflict with the law too. Martyn Hall and Steve Preddy were civil partners denied the use of a double room in a hotel which they had previously booked online. Peter and Hazelmary Bull, the owners, argued that it was against their Christian beliefs to allow unmarried couples (heterosexual or homosexual) to share a room. This was held to be discrimination against Hall and Preddy on the grounds of their sexual orientation.
Christians might justifiably say: but what about discrimination against us? After all, religion and belief, as well as sexual orientation, are among the “protected characteristics” in the Equality Act. There is some evidence of a hierarchy of rights, where the right not to be discriminated against on the grounds of sexual orientation ranks higher than not to be discriminated against on grounds of religion. Thus Lord Justice Sedley has referred to the different areas where discrimination is prohibited and observed: “One cannot help observing that all of these, apart from religion or belief, are objective characteristics of individuals; religion and belief alone are matters of choice.” Thus religion was put in the same category as my decision as to which supermarket to shop at.
But Lady Hale, in the Bulls’ case, put it this way: suppose that we turned the situation round, and Preddy and Hall were the hotelkeepers who had refused a room to the Bulls because they were Christians or an opposite-sex couple. What would we think? She argued that “each of these parties has the same right to be protected against discrimination by the other”.
The other danger is that we are seeing, as if by stealth, the law not just allowing discrimination against Christians because of their beliefs, but also suppressing free speech. Last week Ashers, a Christian-run bakery in Northern Ireland, was held to have discriminated against a homosexual customer by refusing to make a cake with the slogan “Support gay marriage”. The bakery was quite happy to bake the cake but objected to the slogan. We now see employers, and in the Ashers case the law itself, infringing the right of Christians even to voice their objection to same-sex marriage.
Adrian Smith, a manager at Stafford Housing Trust, was disciplined and suffered a 40 per cent salary cut when he linked an article on the BBC News website headlined “Gay church marriages get go ahead” to his personal Facebook page, adding the comment: “An equality too far.” The following evening he posted: “I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church. The Bible is quite specific that marriage is for men and women. If the state wants to offer civil marriage to the same sex then that is up to the state; but the state shouldn’t impose its rules on places of faith and conscience.”
Yet there is nothing in the Equality Act that prevents individuals from expressing their own personal opinion.Thankfully, his treatment was held to be wrongful by the courts. But it took him much time and trouble to vindicate his rights.
What is the answer? Cases involving clashes between those with religious views and others, especially gay rights campaigners, will go on happening. Should Catholics – and other believers – be given a conscientious right to, in effect, opt out of some legislation?
At present, a right of conscientious objection exists in only three cases in English law: military service, participating in a lawful abortion and the exemption given to Sikhs from wearing turbans on motorcycles and on building sites. The problem is that, rightly or not, Christians would be putting themselves above the law by claiming an exemption from it, whereas it has always been a Christian principle that where possible obedience should be given to the law. Moreover, we have just seen in the case of the Glasgow midwives how narrowly the courts interpret the term “participate” in the Abortion Act.
So while I contend that the above three exemptions should remain in English law, in many other instances a more nuanced approach is needed where in each case the law judges whether reasonable accommodation should be given to religious belief. Lady Hale, the deputy president of the Supreme Court, has suggested this approach, which is already applied in Canada. There it is for the employer to justify the act of discrimination and the question is whether it is impossible to accommodate individual employees without undue hardship on the part of the employer. Factors to be taken into account in assessing undue hardship include financial cost, morale problems for other employees, the size of the employer’s business and safety considerations.
How would this work? Take the case with which we began: that of Lillian Ladele, where there were other registrars. Here it would have been easy to reallocate the duty of officiating at civil partnership ceremonies among the others.
Suppose, though, that I am the sole registrar on a remote island accessible only by a boat that calls monthly. Here my religious objection to officiating at same-sex marriages would probably have to give way to the requirement of my employer to perform them – otherwise there would be undue hardship in shipping in someone to do this task, and I do not think that one could argue with that.
We need to protect our rights in the workplace, while not giving the impression of intolerance. There is certainly a threat to many Christians in the workplace today. How we meet it is a test not just of our resolve but of our faith, too.
John Duddington is the editor of Law and Justice, the Christian law review
This article first appeared in the latest edition of the Catholic Herald magazine (29/5/15).
