Equality, human rights and religion or belief: time to get out of the courtroom? – Alice Donald
24 August 2012
The interaction between the law and religion or belief is rarely out of the headlines. Debate rages about whether Article 9, the human right to freedom of thought, conscience and religion, receives sufficient – or too much – protection in the courts. There has been a considerable amount of litigation, much of it contentious (see, for example, here, here and here)
A new report for the Equality and Human Rights Commission (EHRC) by researchers at London Metropolitan University, including myself, explores these controversies. It is based largely on interviews and roundtable discussions with around 100 religion or belief groups, human rights and/or equality organisations, employers, public service staff, academics and lawyers. It is concerned as much with differing perceptions and understandings of the law as with the law itself. It also examines the practical application of the law in the workplace and public services.
One critique of the courts is that they are antithetical to or, at best, unable to comprehend religion – a theme explored here by Aidan O’Neill. In particular, some strands of Christian opinion, including in parliament, are concerned that equality law has become the primary vehicle by which (as they see it) Christianity is being marginalised in Britain. Legal judgments are viewed as both demonstrating and perpetuating an anti-Christian bias. Most contentious by far are cases concerning the right of religious believers conscientiously to object to delivering services to same-sex couples, which have prompted claims that sexual orientation unfairly ‘trumps’ religion when each competes for protection. Also controversial are cases about the wearing of religious symbols in the workplace.
No single view
However, there is no single Christian or ‘religious’ view of these issues. The perception of equality law as trampling on individual conscience or intruding illiberally into areas of hitherto unregulated freedom is rejected by other Christians, who view the ‘marginalisation’ narrative as a response by a dominant, conservative tradition to a loss of privilege. Others feel that the excessive or misguided pursuit of litigation could in practice do more harm than good to efforts to uphold individuals’ right to manifest their religion or belief.
For their part, minority religion or belief groups which participated in our research overwhelmingly viewed equality and human rights law positively as a guarantor of a level playing field between all faiths and none. While discrimination on grounds of religion or belief is hard to measure, one clear trend is the greater prevalence and seriousness of discrimination against Muslims compared to other groups defined by their religion or belief.
The inclusion of religion or belief alongside other protected characteristics in the Equality Act 2010 has undoubtedly stretched legal concepts uncomfortably. The very nature of religion or belief as a protected characteristic is contested: is it immutable or chosen – and does it matter in terms of the protection it merits? Should a characteristic which has intellectual content – both proscribing and prescribing certain behaviour – merit equal protection to, say, disability or race? One effect of including the characteristics under the same umbrella has been to magnify conflicts which might not otherwise have become so visible or fraught. However, the prominence of these cases does not mean that such disputes are either prevalent or insuperable.
Nor are the lines of argument always clearly drawn between ‘religious’ and ‘secular’ perspectives. For example, interviewees of different faiths and none supported the principle that those delivering public services cannot expect their functions to be shaped to accommodate discriminatory religious beliefs (as the EHRC has also argued).
More generally, our report questions how far any legal judgment may be viewed as a reliable indicator of the place of religion or belief (or particular religions or beliefs) in society. Cases are highly context-specific and do not necessarily represent common experience. There are invariably contingent reasons why certain cases reach court and others do not. Moreover, the outcome of cases may appear contradictory due to reliance on the principle of proportionality in balancing competing factors in each case. For example, it may at face value appear difficult to reconcile why one employment tribunal held that a Muslim security guard did not suffer indirect discrimination when his employer refused to let him leave work early on Fridays, while another held that a Christian care worker did when required to work on Sundays. Considerable caution is required when seeking to generalise from specific cases or assess their social, as well as legal, significance.
Our research suggests that the law is limited in its capacity to address complex questions of multiculturalism and social identity. There is a perceived need to lower the emotional temperature of public discussion since competing claims for legal recognition and protection are divisive and suppressive of debate. With few exceptions, interviewees viewed litigation as a weapon of last resort and symptomatic of failure, whoever instigates it.
Three areas of consensus
Three others areas of consensus stand out.
First, virtually all interviewees agreed that individuals whose religion or belief is important to them have a responsibility to make sensible career choices and may have to make personal sacrifices to avoid conflict with the law or professional guidelines. We also found broad consensus about the typeof criteria which might reasonably restrict the manifestation of religion or belief in particular instances. These include genuine health or safety concerns; organisational efficiency; reasonable requirements for uniformity; and detrimental impact on colleagues (excluding pure offence). We found a strong presumption towards the accommodation of religion or belief and the exercise of personal autonomy where these factors are not compelling, in stark contrast to attitudes elsewhere in Europe.
Secondly, our interviews suggested a degree of consensus across the equality ‘strands’ that religion or belief groups are legitimate interest groups like any other but should have no privileged role in the formation of law and policy. In particular, virtually all stated that there is no room for ‘truth claims’ or claims of moral superiority based upon religious doctrine. This suggests a broadly-held desire to maintain an appropriate balance between religion or belief and democratic debate.
Thirdly, it is necessary to establish rules of engagement for approaching public discussion or negotiation of differences. These include a requirement to respect the perspective of others, however incomprehensible it is to oneself (such ground rules would surely have precluded the use of the term ‘Gaystapo’ by one Anglican commentator). The balancing of competing interests is not a zero-sum game. Rather, the imperative is to conduct nuanced analysis of the context in each case through dialogue and, where necessary, with the support of mediators. The principle of proportionality should be centre stage in the workplace or public service, as it is in the courtroom.
The long view
The report argues that the most productive level of engagement for those who wish to advance debate, practice and understanding in relation to religion or belief is on the ‘front line’ of decision-making – with policy-makers, practitioners and workplace managers. Employers need practical guidance; for example, to clarify widespread confusion about the definition of ‘belief’ in equality law.
In the longer term, our research suggests that an approach based on human rights is likely to be more satisfactory than one based solely or mainly on equality. While the equality ‘lens’ on its own can produce a narrow focus on legal compliance based on single – and sometimes competing – characteristics, human rights provide a framework for transparent and proportionate decision-making and encourage a holistic focus on individual flourishing.
Alice Donald is a Senior Research Fellow at the Human Rights and Social Justice Research Institute, London Metropolitan University
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