Squaring equality with religion – Aidan O’Neill QC

29 March 2011 by

The relationship between the expression of religious beliefs and practice and equality law is a fraught one, and particular difficulty has been experienced in the matter of the application of the law outlawing discrimination.

Equality law, as currently interpreted, treats the six prohibited grounds of discrimination – age, disability, race, religion, sex (including transgender status) and sexual orientation – as being of equal weight and standing; there is no hierarchy among these grounds.

For the purposes of employment and the provision of goods and services it is, in general, no longer lawful to take any account of any of these listed characteristics. They are deemed by the law to be irrelevant to decisions about who to employ, or who to serve. And with the exception of disability, the characteristics protected by equality law can, in principle, be relied upon by anyone. Thus a white, male, middle-aged, married, heterosexual Christian can pray in aid anti-discrimination law if he is subject to detrimental treatment which is directly or indirectly referable to the fact that he is male, or middle-aged, or white or heterosexual or Christian.

But there then arises the paradox. Is it not unlawful discrimination against, for example a committed Christian, to prevent him from acting upon his religiously based beliefs by say: his asking to be relieved of his duties as a civil registrar to solemnise same sex civil partnerships ; or his seeking exemption in his job as relationship/marriage guidance counsellor from working with same sex couples ; or in his refusing to rent a double-bedded room to a gay couple in the hotel which he owns and runs ; or in his wearing a crucifix to work ; or in his seeking to foster or to adopt children within a home context which strongly emphasises a religiously based moral code of right behaviour; or, as a care worker , his offering to pray with, and for, residents of a care home ?

It appears not. The courts analyse such cases from a discrimination law perspective by asking whether a person without religiously based views would have been permitted to act in any of these ways. If both a religious and a non-religious person would not have been permitted to do these things, then there is no discrimination on grounds of religion or belief.

For the religious, however, this feels like a false comparison and an empty exercise on the part of the courts. The point about religiously based beliefs is that, for their adherents, they are justified. These beliefs are embedded within an overarching (religious) system. Their beliefs form an inextricable part of that religious world view. Their religious beliefs are intimately tied into the moral values to which they would adhere, by word and deed. Failing to act on those beliefs is not an option for the religious, because a failure so to act expresses for them a denial of their beliefs.

Thus, for the religious, their attitudes and judgments on right conduct are the very opposite of “prejudice” which anti-discrimination law was supposed to be aimed at. And, they would say, there can be no proper comparison between those who would discriminate on grounds of a religiously informed conscience, and those who so act simply from unthinking incoherent prejudice or bigotry. The pretended comparison between the religious and the irreligious wrongly treats unlike cases alike. The law should, instead, respect those who act on the basis of religiously informed conscience and make reasonable adjustments to accommodate them.

On this analysis, being religious is more akin, for discrimination law purposes, to having a disability. The law does not compare the disabled with the able-bodied and say that they should be treated the same – rather the law requires that account be taken of disability and appropriate measures taken to place the disabled on an equal footing with those without that disability. Similarly, the claim is made that the law should not treat the religious and the irreligious as equivalent; rather, the law should respect the beliefs and consciences of the religious and allow them to act on those beliefs without falling foul of anti-discrimination law.

The reply of the courts to date has been to allude to Elizabeth Tudor’s attributed remark to the effect that she “would not make a window into men’s souls”, and that the courts therefore will not require into (religious) motivations, but will simply examine (discriminatory) actions.

The riposte to that is two-fold. First the criminal law does already look at motivation; no-one can be convicted of a criminal offence unless it can be established not only that the wrongful act was done (actus reus) but that it was done with the requisite criminal intent (mens rea). Secondly Elizabeth Tudor’s remarks were made in the context of her law’s enforcement of conformity of religious practice, in requiring Catholics and Dissenters to attend Anglican service against their conscience. Her remark is not one based on any principled neutrality, but on cynicism backed by power: “I cannot govern how you think, but I can govern what you do”.

Applying that Elizabethan parallel to the present-day, the application of the norms of anti-discrimination law, even in the face of religious based conscientious objection, is interpreted by the new religious Dissenters as the State’s imposition of a required outward conformity to a new form of religious settlement: no longer Anglicanism, but a secularism which would banish religiously motivated action from the public square and confine religious belief wholly to the internal forum.

Aidan O’Neill QC is a member of Matrix Chambers, London

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  1. […] Aiden O’Neill QC has written an erudite counterpoint to recent developments in law and religion, a subject on which I have written several recent posts for Halsbury’s Law Exchange and […]

  2. John Dowdle says:

    I feel I have to question Steve Hammett’s assertion above that homosexual orientation is a misfortune.
    I do not believe it is correct to assume that someone who is possessed of such an orientation is in some way unfortunate.
    Ultimately, everyone should be free to follow their own private beliefs, whether or not such beliefs are sexual, philosophical or whatever else they choose to believe in.
    I agree with Steve Hammett that discrimination in the provision of public services should not be permitted.
    Indeed, I believe the legal exclusion of equalities legislation where publicly funded religious schools are concerned is wrong too.
    It would be better all round if religion was taken out of the publicly funded and privately funded schools system altogether.
    Education is – or should be – principally about helping students to attain their full potential; deliberately fostering and promoting belief systems for which there is no objective evidence causes more harm than good in the long run.
    We should all support a fully secularised education system in this country and elsewhere in our planet.

  3. Steve Hammett says:

    To take Aiden O’Neill’s argument to its logical conclusion, presumably the Church of England or the Roman Catholic Church should be prohibited to rule on doctrinal issues to discriminate against Christians whose equally selective interpretation of scripture causes them to believe that they are entitled to discriminate againt racial or national minorities (on the basis of, say Leviticus or a misguided interpretation of Paul in Corinthians) and thus as clergy, publically support the policies of the British National Party or deny the reality of the Jewish Holocaust.

    I contest his notion that professed religious beliefs should somehow privilege the holder of those opinions to treat others as they would NOT wish to be treated themselves.

    Insisting that those who hold non-religious beliefs with equal passion, such as Humanists or secularists, or people who have the misfortune to be born with a homosexual sexual orientation, should not be so protected, against discriminatory practices based on a person’s choice of religious belief, is invidious. It is also hypocritical to contend that, in effect, whilst publically funded bodies such as faith schools should be able to discriminate in their employment and membership practices against the non-religious, etc, people who have chosen to believe in a religious ideology who have chosen to work in the secular public sector should somehow also be allowed to discriminate. Working in the public sector today, rightly requires accepting, as a condition of employment, non-discrimination towards service users.

    Some of us are old enough to remember when private shipbuilders receiving public funds, in Northern Ireland, refused to employ Catholics, and how dehumanising this felt, not to mention the publically funded, essentailly Protestant RUC and the feeling that they were not interested in the policing needs of Catholics. I do not wish to see a return to those days.

  4. John Dowdle says:

    I would like to raise two points with regard to this opinion.

    Firstly, human rights law has been amended so that discrimination against religion or belief is now unlawful. Recent employment cases involving someone whose environmental beliefs and another person who was opposed to wild animal hunting with dogs were both accorded similar belief status; consequently, when their employments were terminated, it was held that their former employers had discriminated against them.

    Secondly, there have been a whole slurry of alleged religious discrimination cases brought in the courts, some of which have been alluded to above. In every single case, the judges either ruled against those claiming religious discrimination or they simply ruled that there was no case to answer (as in the fostering case).

    It has now reached the point where even the religious community has finally realised that all of the alleged religious discrimination cases brought before the courts have been without any real merit. Claims that religiously-motivated people in this country are being discriminated against appear frankly ridiculous when we see just how truly appalling acts against religious consumers in other countries have been.

    Sectarian violence and murder in other countries puts the rather precious claims of religious discrimination being claimed in this country appear what they are – idiotic.

    What Aidan O’Neill QC has failed to mention when citing a number of cases above is that most of the people involved were either being paid out of public funds to provide public services or were providing a publicly licensed service to the general public. They should either do their public job or provide the public service they are licenced to provide, or find another job where their religious sensibilities do not come into play.

    Religious organisations are allowed to discriminate in their employment practices so people like the registrar mentioned above should go and work for a religious employer – it is her option to choose.

    The case where employees insisted on the right to wear religious artefacts involved one employer (British Airways) suggesting accommodating alternatives for them, such as wearing their jewellery underneath their uniforms – an alternative which was spurned by the individuals involved.

    The employer had a duty under health and safety legislation to keep their employees safe and necklaces could provide something with which disgruntled members of the public could grab hold of to force down the heads of the religiously motivated employees, if they chose to.

    Aidan O’Neill QC needs to break away from the Daily Mail mentality he is apparently developing over these cases of religiously motivated and vexatiously inspired cases of religious activism. It does them and him absolutely no good at all.

    No one is interfering with the rights of private individuals to engage in beliefs of any kind; even if such beliefs are utterly irrational, there is no law against them holding to these beliefs in their own private sphere and within their own groups of similarly-minded individuals. There is no law against flat-earthers – or Jedis.

  5. Lloyd Jenkins says:

    “And, they would say, there can be no proper comparison between those who would discriminate on grounds of a religiously informed conscience, and those who so act simply from unthinking incoherent prejudice or bigotry. ”
    I’m pretty unconvinced by this. It seems to distinguish between one set of beliefs that inform the world-view of their holder (racism) as ‘unthinking’ and ‘incoherent’ and yet treat another set with as much empirical and rational backing (a particular religion) as above question. As they’re both as rational and as important to a world-view as each other the distinction strikes me as false.

  6. Law Think says:

    “The pretended comparison between the religious and the irreligious wrongly treats unlike cases alike.”

    I am almost convinced by your argument. But you do not explain why they ought to be treated differently. What is the difference between a strongly held religious belief and a strongly held belief if such a secular belief is strong enough to form part of someone’s world view?

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