Catholic Care gay adoption rejection boosts equality protection

19 August 2010 by Adam Wagner

Tenets of belief not enough

The Charity Commission has rejected a bid by a Catholic organisation to amend its charitable objects in order to restrict its adoption services to heterosexuals. The case highlights the significant protections which have been put in place by recent equality law, and the policing role which the Charity Commission is required to play from a human rights perspective.

The Commission was ordered by the High Court in March to look at its initial decision again in light of Article 14 of the European Convention on Human Rights. The law behind the case is quite convoluted, but is worth looking at again as it is likely to have significant implications for gay couples looking to adopt as well as for religious charities in general.

Catholic Care, a Leeds-based social care organisation, now say they are looking for other ways in which the charity can continue to support families seeking to adopt children in need, but it seems unlikely that it can do so in light of the decision of the Commission as well as that of the High Court.

Premature victory in the High Court

In March the High Court was asked ([2010] EWHC 520 (Ch)) to examine two initial decisions of the Charity Tribunal to refuse Catholic Care permission to obtain its charitable objects. The charity had argued that it was outside the tenets of the Roman Catholic Church to provide adoption services to same-sex cohabiting couples or civil partners, and in fact it only provided adoption services to couples if they were married.

The case arose because of new regulations which make it unlawful for a person to discriminate on grounds of sexual orientation in the provision of goods, facilities or services to the public or a section of the public.

The regulations were passed by the last government under powers granted by the Equality Act 2006, and were objected to at the time by various religious reasons for fear of exactly this kind of scenario. The Catholic Church wrote to the previous Prime Minister saying that it would be an “unnecessary tragedy if legislation forced the closure of these adoption services.” This reasoning was rejected on the grounds that same-sex couples could not be discriminated against for any reasons, faith-based or not.

However, the regulations did have a partial get-out clause for charities. Regulation 18 provides that nothing in the Regulations will make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if (a) he acts in pursuance of a charitable instrument, and (b) the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument.

Similarly, section 193 of the new Equality Act 2010 now provides a general exception to charities which provide services with the “proportionate means of achieving a legitimate aim” or to prevent or compensate for a disadvantage. As the High Court pointed out, each of those charity exceptions would have needed to have been construed in conformity with Convention rights.

The problem for Catholic Care in using the exception was that its ‘charitable instrument’ failed to mention adoption. It therefore sought to amend it in order to include provision to “only provide adoption services to heterosexuals and such services to heterosexuals… in accordance with the tenets of the Church”. The Charity Commission turned this down as they argued that the “benefits” provided by adoption from the charity would be to children, not to couples, and therefore changing the instrument would not bring the charity within the Regulation 18 exception.

The court discussed the European Court of Human Rights case-law on discrimination against same-sex couples. Article 14 of the Convention (anti-discrimination) is read in these cases in the context of Article 9 (freedom of religion). The Strasbourg court has recently made clear that in relation to the justification of differential treatment on grounds of sexual orientation, the State’s margin of appreciation is narrow, and that the principle of proportionality requires that the measure chosen to realise the legitimate aim must be both suitable in general, and necessary in the circumstances. Furthermore, the more public and secular the sphere in which the conduct takes place, the less protection is afforded by Article 9.

The court ruled that the purpose of Regulation 18 was clear from its wording as well as its context, in seeking to “afford to charities an exception from the prohibition of differential treatment on grounds of sexual orientation, wherever the public purpose being (or to be) achieved by the charity in question constitutes an Article 14 justification for that differential treatment“.

The regulation was not, however, intended to “give carte blanche to publicly funded faith-based adoption agencies to continue to deny their services to same-sex couples” and in this context, importantly

the respect for the religious beliefs motivating such faith-based adoption agencies would not be likely to constitute a justification of differential treatment in favour of heterosexual couples under Article 14 because of the essentially public nature of their activities, carried out to a significant extent on behalf of local authorities, and funded to a greater or lesser extent by them.

Therefore, the court found “it is by implication limited to the provision of benefits on the basis of differential treatment which would be justified under Article 14″.

This was then applied to Catholic Care’s case. The problem which the court found was not that it disagreed with the decision of the Charity Commission in principle (it did not say either way), but rather that the Commission had misinterpreted the true of meaning of the charitable exception under the Regulations. It was, the court pointed out, the Commission’s job to scrutinise the proportionality, in the sense of the anti-discrimination aspect of the European Convention on Human Rights, of requests to amend charitable instruments. It had not carried out this exercise (instead it had relied on a mistaken technical interpretation of the regulations), so the decision was ultimately quashed and sent back to the Commission to look at it again, this time from a human rights perspective.

Back to the Charity Commission

Victory in the High Court turned out to be a premature one for Catholic care. The court had emphasised that the Charity Commission must act as a bulwark against human rights breaches by charitable organisations, and that this is the real effect of the new equality laws.

It was now incumbent on the Charity Commission to re-address the issue from a human rights perspective, with the test being whether the measures being sought by an organisation represent a proportionate means of pursuing a legitimate end (classic human rights law language) as well as being justified by particularly convincing and weighty reasons.

The organisation gave various reasons for the proposed discrimination, namely that the tenets of the Church describe a family unit as being in the image of the Nazarene family; namely a married couple with a child or children, and that ceasing its adoption service (as an alternative to adopting to gay couples) would put off donors.

The Commission was unconvinced by these reasons and went on to rule against Catholic Care, stating that despite its laudable past efforts in placing children with parents – around 10 per year – it had decided that

the proposal in the proposed objects to consider as prospective parents for its adoption service only those who are heterosexual would not be justified as a proportionate means of achieving a legitimate aim. Accordingly, it considers that the proposed objects would not be for the public benefit because of the large public dis-benefit which flows from unjustified discrimination on the ground of sexual orientation.

Particularly convincing and weighty reasons

The raft of equality legislation brought into law under the last government is likely to have significant and perhaps unexpected effects on religious organisations. The Catholic Care case highlights the important role of the Charity Commission in policing human rights and anti-discrimination, as well as the difficulties that similar organisations will face in providing services which are on the face of it discriminatory. Put simply, despite exceptions in the legislation, religious organisations will now have to find very strong justifications before they can convince the Charity Commission or a court that discrimination is justified.

Read more

• Previous posts on religion
• Sexual orientation, religion and the courts’ increasingly difficult role
• High Court says Lord Carey “mistaken” on religious discrimination [updated]

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