In a modern liberal democracy we take for granted the fact that laws apply to all individuals and are enforced by the courts without special consideration of religious beliefs they may happen to have.
But for a while at least there was a very real danger of the dissolution of the divide between private orthodoxy and public principle following the widespread invocation of Article 9 in the courts. This came to a head in the furore over the former Archbishop of Canterbury’s intervention in the MacFarlane v Relate case, provoking some very sharp words from Lord Justice Laws. Although religious groups continue to rattle their sabres, a recent ruling from the Charity Tribunal suggests that the right to religion is losing its edge somewhat on the litigious battlefield. Does this mark a trend away from making concessions to the devout?
We posted previously on the somewhat convoluted history of Catholic Care v Charity Commission for England and Wales. Essentially the Charity wished to legitimise its policy of excluding same sex couples from its adoption services by seeking permission from the Charity Commission to amend its objects of association. They sought thereby to a statutory exception to the general prohibition on discrimination in the Equality Act 2010.
The Commission refused, and refused again following the quashing of its first decision by Briggs J. The Commission held the Charity’s proposed objects would not bring it within the exception provision.
Section 193 of the Equality Act 2010 provides that a person does not contravene the Act only by restricting the provision of benefits to persons who share a protected characteristic (same sex orientation being one) if their actions are in pursuance of a charitable instrument, and their provision of benefits fulfils the requirements of justification and proportionality.
Catholic Care appealed to the First Tier Tribunal, contending that it should be permitted to amend its objects clause so that it could limit provision of adoption services to heterosexual couples only. They contended that the Commission had wrongly restricted its interpretation of “benefits” and that the adoption of its proposed objects was justified under the general prohibition on discrimination under Article 14 ECHR. The legitimate aim it pursued was that of providing suitable adoptive parents for a significant number of children who would otherwise go un-provided for. The Charity maintained that unless it were permitted to discriminate as proposed, it would no longer be able to raise the voluntary income from its supporters on which it relied to run the adoption service, and it would therefore have to close its adoption service permanently on financial grounds. In the hearing the charity was supported by oral evidence from the Roman Catholic Bishop of Leeds, who commented that the law does not require the Catholic Church to bless civil partnerships and that therefore the law should also allow the Church to act in accordance with its conscience in relation to same sex adoptions.
So, argued the Charity, the Commission had taken insufficient account of the fact that, in certain circumstances, discrimination was permitted by the law: the Charity had advanced a classic case of proportionate discrimination in order to achieve a legitimate aim. There would be no disbenefit to same sex couples, they averred, since the service would not be available to anyone in any event if the charity had to close its adoption service.
The Tribunal concluded that the Charity’s proposed approach was inconsistent with the authority of Re G in which it was confirmed that the interests of the child required the door to be opened “as wide as reasonably possible” . The Charity’s proposed means of operation would be likely to reduce the pool of potential adopters by (a) excluding same sex couples from assessment by the Charity itself and also by (b) risking the loss of suitable same sex couples to the adoption system as a whole by subjecting them to the “particularly demeaning” experience of discrimination on the grounds of their sexual orientation.
As to the Charity’s contention that the consequence of not being permitted to discriminate against same sex couples is that it would lose its voluntary income then, to the extent that this is based upon views attributed to its supporters, the Tribunal took the view that, following Smith and Grady v UK the negative attitudes of third parties cannot, of itself, provide justification for discrimination on grounds of sexual orientation.
Religion in the courts
It is significant that the appellant charity accepted that religious conviction alone could not in law provide a justification for the denial of its adoption services to same sex couples. Even though religious belief is protected by Article 9 and the Equality Act 2010 in certain private circumstances, the Tribunal observed that both it and the Commission are bound by case law to the effect that -
religious belief cannot provide a lawful justification for discrimination on grounds of sexual orientation in the delivery of a public-facing service such as the operation of a voluntary adoption agency
In reaching this decision, the Tribunal was careful to point out that it had to uphold “the essential distinction between private acts of worship such as blessings and the provision of a public service such as an adoption agency.”
Whatever the difficulties and drawbacks of the new Equality Act (and some think these are multifold), it embodies a policy of social cohesion that the previous government at any rate thought could be achieved by outlawing many forms of discrimination. As such it is bound to be at odds with some religious views. There is, and always will be, tension between a whole range of religious convictions and the principles of liberal government. The question is whether the courts are the best place for resolving this tension – or indeed whether it should be resolved at all since any concession would compromise the separation of political and religious premises, at the peril of a free society.
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- Previous posts on religion
- Sexual orientation, religion and the courts’ increasingly difficult role
- High Court says Lord Carey “mistaken” on religious discrimination [updated]