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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