, Religion and the law part one: leadingcounsel.co.uk
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Religion and the law part one

At what point should any clash between the law and religion be resolved in favour of the latter, if ever? A number of recent instances have brought this into sharp relief.

It is necessary to distinguish between religious conscience and religious or cultural fashions. The degree of importance is also relevant. For example, I do not believe anyone would or could seriously to object to Sikhs wearing turbans rather than crash helmets, nonetheless on the face of it that means that the law is being changed to accommodate a particular group.

The recent application for permission to appeal brought by a Mr McFarlane and heard by Lord Justice Laws has brought such matters into prominence. Mr McFarlane brought claims of unfair dismissal and religious discrimination against his employer, Relate Avon Ltd ("the employers"). The application was supported by a witness statement from Lord Carey of Clifton, a former Archbishop of Canterbury.

In summary Relate provides relationship counselling services. It is a member of an association with a Code of Ethics which requires the therapist to "avoid discrimination... on grounds of... sexual orientation", whilst Relate itself has an equal opportunities policy. When the applicant was employed he signed up expressly to the employers' equal opportunities policy. The applicant is a Christian who believes that same sex sexual activity is sinful and that he should do nothing which endorses such activity. He had no problems about giving counselling to same-sex couples but the difficulty arose when working with them where issues about their sex lives arose. He asked for an exemption and it was refused, ultimately leading to dismissal for that as equating to gross misconduct.

Lord Carey made a witness statement which included the following comments.
"3. I make this Witness Statement in support of the appeal of Gary McFarlane for his case to be heard before the Lord Chief Justice... and a specially constituted Court of Appeal of five Lords Justices who have a proven sensibility to religious issues.... The vast majority of the more than 2 billion Christians would support the views held by Ms Ladele. ...
It is, of course, but a short step from the dismissal of a sincere Christian from employment to a 'religious bar' to any employment by Christians. ". He also referred to cases regarding wearing of crosses etc. Lord Justice Laws described his concerns as "misplaced". The judge also stated "In a free constitution such as ours there is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian's right (and every other person's right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society. ......... But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. .......The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. ......... the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime. "

Much of what Lord Justice Laws said was correct but exactly where to draw the line can be a matter of some difficulty. Likewise the suggestion of the Archbishop that judges should hear cases based on sensitivity to a particular religion would lead to a nightmare. In the instant case I think the decision was correct. One only has to consider logistical and practical difficulties for Relate itself. If it is offering same-sex counselling, how is it to know what issues will arise? One can well see that considerable difficulty would arise in trying to organise who was to see which couple and when. Mr McFarlane knew the terms when he signed up. Whilst I have sympathy with anyone who finds himself in a crisis of conscience, the employer has a "business" to run.

However it cannot be right that belief is irrelevant. It depends upon the context. For example, whilst I personally have no conscience issues or problems regarding gay couples, some people do. If those are genuine beliefs then they ought to be given some respect as regards forcing a person to do something they regard as abhorrent. That of course cannot be permitted if the effect is to deprive other people of their rights, but it need not go that far. For example if you were working for a local authority or government department I do not see how could possibly justify remaining there is you would not serve certain sections of the community. That does not mean that every entity has to serve all sections. For example, if there was a private and voluntary Catholic agency assisting adoption that was opposed to placing children with same-sex couples, I would have thought that the lesser evil was to allow them to operate in the way they wanted, bearing in mind that this would provide additional relief to children seeking homes, and would still leave same-sex couple prospective adopters able to approach statutory agencies. The alternative would be that such Catholic agencies withdraw completely.

In each case the judge is completely right that people's civil rights cannot be interfered with as a result of the religious beliefs of others. Where however it is possible to accommodate religious belief in terms of not making people act in a way inconsistent with it, it is proper to do so.

Michael J. Booth QC