Fiona Scolding - Religion and Equality: Incompatible Concepts?

Fiona Scolding is a barrister at Hardwicke Building in London who practises in the area of education and human rights work. She has been involved in a number of cases about the interrelationship of faith and equality, especially in the educational context.

The following seminar was given by Fiona Scolding on religion and equality at the Thomas More Institute on 15 December 2010

RELIGION AND EQUALITY – INCOMPATIBLE CONCEPTS?


Introduction

1.    Barely a day has gone by over the past 4 or 5 years when the newspapers have not been reporting on court cases which concern the rights of those who have a religious belief to practice it in a way they deem appropriate.  Websites buzz with chatter, and there is often a deafening buzz on the twitterscape of outrage and upset by groups who consider that their rights have been infringed by either legislation or the courts. 

2.    The courts have had, over the past five years, to grapple with a number of difficult issues, principally in the field of education and employment, concerning the reconciling of rights of those who profess religious beliefs, and the rights of either other minority groups (such as those who are gay or lesbian) , or the public at large.  Whilst the focus in the Catholic press has been on cases involving practicing Christians, there have also been cases involving practicing Jews, Muslims and Hindus. 


3.    This talk aims to explore the approach of the courts in these cases, why some of these decisions have been made and the legal basis behind this. 

WHY HAVE THESE CASES ARISEN? 
4.    The European Convention on Human Rights (“ECHR”) has, for over 50 years, provided those who have religious belief with rights under the Convention.  These are found, mainly, within Article 9.  Article 9 protects not just religious beliefs, but provides protection of thought and conscience.  It provides that everyone has the right to freedom of thought, conscience and religion, including the freedom to change religion or belief, and freedom , either along or in community with others, and in public or private, to manifest his religion and belief, in worship, teaching, practice and observance. 

5.    However, this right is not unqualified.  Article 9(2) of the Convention provides that the freedom to manifest one’s beliefs shall be subject only to such limitations as are prescribed by law, or are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, and for the protection of rights and freedoms of others.  As can be seen, Article 9(2) therefore means that the court has to strike a balance between the right to freedom of religion, and the rights of others.  The Convention and the Courts therefore recognize that there is an absolute right to believe or think whatever one wishes, which cannot be subject to any form of limitation .  However, the right to manifest those beliefs is subject to the rights of others. 


6.    Article 10 of the Convention also provides for the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authorities.  However, again, this right is qualified and is subject to such “formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, or in the interests of others, to prevent the disclosure of information received in confidence, on national security grounds, for public safety or for the health or morals, or to prevent disorder and crime. 

7.    Article 8 provides a similar qualified right to have a family life and a private life, and Article 14 provides that the rights enshrined within the Convention have to be secured without discrimination on ay grounds such as sex, race, colour, language , religion, national origin, birth or any other status. 


8.    Whilst UK citizens could always enforce their rights under this Convention before the European Court of Human Rights in Strasbourg, the Convention became part of UK law, so that all UK courts have to make decisions which are compliant with the Convention, and scrutinize all cases and legislation in the light of the Convention since the introduction of the Human Rights Act 1998 (enacted 1st October 2000).  This has meant that the UK courts have had to grapple with these issues more directly than before. 

9.    Allied to this us this, the European Union also implemented a Directive  in 2000 which was to require all member state of the EU to implement legislation to prohibit discrimination on the grounds of both religion and belief, as well as other areas . This emerged from the Treaty of Amsterdam, which amended the EC Treaty to provide  that the EU can take appropriate action to combat discrimination based on sex, racial, ethnic origin, religion, belief, disability, age and sex discrimination. 


10.     The EU had already implemented Directives concerning sex and race discrimination .  The context for amendment of the treaty came both from the race lobby, and also lobbying around issues of religious discrimination, alongside a fear in the EU that there was a rise of racism and far rights groups with xenophobic attitudes.  Prior to the Framework directive, there was little or no UK legislation concerning the rights of those with religious beliefs, or to do with discrimination on the ground of age or sexual orientation.  The Directive enshrines the right for no direct or indirect discrimination whatsoever on the grounds of religion or belief, disability, age or sexual orientation in employment and related areas .  As a result of this directive, Parliament first initiated a set of regulations to cover both direct and indirect discrimination on the grounds of religion and belief (as well as sexual orientation , age and disability) , but this is confined to employment and related situations. 

11.    The Equality Act 2010 changes things further.  This enshrines within UK law (as from October 2010) the outlawing of discrimination connected with religion and belief outside other employment fields.  Religion and belief encompasses all religions, and means any religious and philosophical beliefs  .  An individual has a right not to be subject to discrimination either directly , or because of a combination of characteristics (i.e. because the person is a black Catholic: or a disabled Jew, or an old Hindu) , or indirectly ,because a provision, characteristic or practice is applied which would not be applied if that person did not share that religion and belief, and it puts the person with the religious belief at a disadvantage, and it is not a proportionate means of achieving a legitimate aim .  The Act provides protection against discrimination in employment, in the provision of services for the public, in the provision of goods to the public, in the letting or sale of houses or commercial premises, in employment, to personal and public  office holders (such as the judiciary, MPS, members of the civil service, councillors etc), in employment and training agencies and trade unions and organizations, membership organizations, guests, selection of candidates,  in the provision of pensions, and in the provision of education  - although there are certain specific provision which permit faith schools and universities to continue to discriminate in terms of the curriculum offered and the terms of admission. 

12.    The Act continues to permit religious bodies to hold single sex worship services (if required) , and also to continue to permit employment solely on the basis of one’s religion and belief if that is an occupational requirement regarding the ethos, or the nature and the context of the work. 


13.    It is therefore likely that the implementation of the New Act to cover most services offered to the general public and to apply to most areas of life will lead to further litigation. 

WHAT DO THE CASES TELL US?

Article 9
14.    The courts are always at pains to stress that religious belief and the religious dimension is a precious asset, and part of the humanity of every individual . The court accepts that the right to religious freedom is a cornerstone of a democratic society.  However, when it comes to the practice of that religion, particularly within the workspace or public sphere, the courts are often called upon to achieve a balance between the differing sections of society (see Williamson v SSEE [2005] UKHL 15).  In Williamson, the House of Lords undertook a rigorous analysis of the Strasbourg jurisprudence on Article 9 to try and clarify what principles underlie judicial decision making in this area.   The House of Lords stressed in the Williamson case the need not to take a rigidly analytical approach to the rights under Article 9. 

15.    One technique that has been used by the courts is to try and limit the definition of what is the belief protected.  In the Williamson case, at first instance and in the Court of Appeal, the court was lead into long discussions about whether or not a belief (based upon Biblical teaching) in corporal punishment is or is not a religious belief such as to be protected by Article 9.  The House of Lords indicated that this was probably not the right approach, and that the courts should adopt an expansive view of what constitute a religious belief or practice, particularly given the multiplicity and variety of practices in a number of areas of life related to religious expression.  The House of Lords found that it would be wrong for the court to impose an evaluative filter at the first stage, as it is felt that this is the court imposing its own views as to whether or not those views are cogent and serious.  The courts have historically, and now, been extremely reluctant to engage in discussion or decision making about whether or not someone’s belief is serious enough to be a religious belief, or has such cogency.  This view has been taken not just in the UK, but also in the US and Australia . Only in clear and extreme cases have any jurisdiction held that the religious belief is not serious or cogent enough to justify coming within Article 9. In Williamson, Lord Walker accepted the proposition that, in matters of human rights, the courts should not show liberal tolerance only to tolerant liberals. 

16.    A further technique used by the court as an evaluative filter is to limit the legitimacy of the right to manifest one’s belief under Article 9.  The courts have held article 9 is not engaged for every act inspired by either religion or belief  .  For example, in Arrowsmith, the court’s held that handing out leaflets by a pacifist is not a manifestation of that person’s beliefs.  In other cases a refusal to allow a Buddhist Prisoner to submit a publication to a religious journal was not a manifestation of belief . The right to committed assisted suicide was not held to be a manifestation of belief, and the right to wear a purity ring as a symbol of Christian charity was also not held to be so linked ; it is an act which is motivated by belief, but is not part and parcel of expressing that belief.  Furthermore, the court has also adopted an approach where, if a person can take steps which will avoid conflict between his beliefs and those acts which he claims interferes with those beliefs, or voluntarily accepts a regime which leads to such conflict, then he or she cannot complain of any interference .  The courts have tried, on occasions, to discriminate between those manifestations of belief which are uncontroversial, such as communal acts of worship, preaching, diet etc, which form a core of central beliefs, but that is different to acts motivated by such beliefs.  The weight given to religious rights may depend upon how close the subject matter is to the core of the religion’s value or organization .  For a religious belief to have a right to be manifested, the courts have held that it must satisfy some minimum requirements, or compatibility with human dignity, seriousness, importance and cogency and coherence and also be consistent with the ideals of a democratic society, but set at a low threshold to allow minority beliefs the protection that the courts and the Convention intends .

17.    As can be seen, this distinction between manifestations of a religious belief rather than an act merely motivated by religion is difficult to determine.   The ECHR has tended to identify the nature and scope of the belief, and if it takes the form of a perceived obligation to act in a specific way, then, in principle, doing that act pursuant to that belief is itself a manifestation of that belief in practice.  However, this has led to difficulties with the courts in and of themselves. For example, in a case involving whether or not a religious organization should have to pay domestic rates, the courts found that it was not a breach of Article 9, as they would not be stopped from manifesting their beliefs by having to pay the rates.  If it was only Mormons who were affected by this charge, then it would be such a manifestation.  

18.    It can also be seen that the Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where someone has voluntarily accepted employment or a role which does not accommodate that practice, and there are other means open to someone to practice or observe his or her religion without undue hardship.  In the employment context, the ECHR have consistently indicated that an individual can resign is he or she is unwilling to accept restrictions on their beliefs . The same is also said for those who voluntarily serve in the military .  The UK courts have accepted this , for example, where individuals lived communally, they still had to pay rates as they could have dealt with a commercial landlord.  In school situations, the House of Lords was divided as to whether or not the governors of a mixed sex, multi community secondary school could not allow someone to wear a Jilbab in contravention of the school’s uniform policy .  The majority found no interference, as the family had chosen her school, and she could attend another school where she could wear this garment.  The minority held that there was an interference (R(SB) v Denbigh [2006] UKHL 15. 

19.    The third technique that the courts have used is to adopt a flexible approach to what is covered by Article 9 (1), but to find that any interference with belief can be justified.  This is the approach taken by the UK courts recently and in Strasbourg .   For example, the ECHR has stressed that some forms of dress for Muslim women may offend against gender equality, and therefore it was necessary in a democratic society for this to be respected as much as the religious beliefs, and if a ban meets, for example, the need for secularism and gender equality . Other grounds for justifying interference have been on the issues of broad social policy: to promote community cohesion: on grounds of health and safety and public health .

20.    Article 9 does provide however, a positive obligation upon the state to ensure that holders of religious beliefs can effectively enjoy their rights under the Convention.  For example, in a case involving a film with content that could be held to be blasphemous, the ECHR found that it was appropriate, when balancing freedom of expression against religion, that an interference with the freedom of expression (under Article 10) with freedom of religion, and stressed the duty of those who exercise freedom of expression not to gratuitously offend individuals . However, many judicial commentators feel that this line of case law should be reappraised, and I would argue that the right to protection of the manifestation of one’s religions should not extend to protection from being offended in one’s religion by others.  The right to cause offence and to express views which are unpopular, heretical and marginal must be a right which should be vigorously defended.   In the Otto Preminger case, no one’s belief was interfered with: no-one was stopped from believing or in manifesting their beliefs by the showing of the film.  However, again, this is balanced by competing factors relating to the general laws of the country.  The courts have held that the fact that protesting is part and parcel of the manifestation of your religious beliefs is not unlawful .


THE APPROACH UNDER THE REGULATIONS
21.    It is vitally important when looking at cases brought under the Religion and Belief Regulations to accept that they are informed by the views expressed by the UK and ECHR concerning the right to manifest one’s beliefs.  Put in this context, much of the case law does have coherence and consistency. 

22.    The most high profile cases have involved whether or not it was discriminatory to compel an employee to undertake work which could conflict with their religious beliefs.  In Ladele [2009] EWCA Civ 1357, a Christian Registrar refused to undertake civil partnerships.  She was disciplined, and then dismissed by her employers.  The Court of Appeal held that she was not discriminated against on the grounds of her religious belief.  The Court held that the reason for her dismissal was because of her refusal to do her job, not because of her religious beliefs: she worked for a public authority and did a public job, and was being asked to perform a secular task.  Refusing to do that task was, in effect, to discriminate against gay people.  The court held that Ms. Ladele’s objection was based on her view of marriage, which was not a core part of her religion, and it in no way prevented her from worshipping as she wished.  Just as with other cases, the Court in effect said that the right to have her views respected should not override the concern to ensure that all were respected.  I have been most concerned that in some aspects of the Christian press and in some Christian commentators (including the former Archbishop of Canterbury) felt that the Court had acted as a court to condemn those with such beliefs.  They did not.  They did not state that Mrs. Ladele was a bigot, nor did they condemn her views.  They simply indicated that the local authority was entitled to balance those views against its policy of non discrimination and to determine that this aspect of her belief could not override her duties as an employee. 

23.    In a very recent judgment of the Court of Appeal, McFarlane v Relate Avon Lord Justice Laws [29/4/10] has explained in a passage about the interface of religion and law.  I am citing it in full because it says everything I would wish to say:


“These considerations, I believe, refute the applicant’s argument as to the
meaning of discrimination. But they do not confront deeper concerns
expressed in Lord Carey’s statement and in Mr Diamond’s argument. These are                                                                                        to be found for example in the references to an alleged want of
understanding or sensitivity on the part of the courts in relation to the beliefs
espoused by Lord Carey and others: “a lack of sensitivity to religious belief”
(paragraph 10 of the witness statement).
21. These concerns are formulated at such a level of generality that it is hard to
know precisely what Lord Carey has in mind. Broadly, however, the
argument must be that the courts ought to be more sympathetic to the
substance of the Christian beliefs referred to than appears to be the case, and
should be readier than they are to uphold and defend them. The beliefs in
question are not specified by Lord Carey. Since his statement is given in
support of the applicant’s case, it must be a fair assumption that they include
what is expressly stated at paragraph 21 of Mr Diamond’s skeleton argument
of 23 December 2009:
“To the religious adherent ‘Religion’ is the route to salvation:-
• The fear of hell is central to the appellant’s religious
belief; and individuals ought to be informed of the
consequences of hell;
...
• The proposition of the appellant’s religious belief is
that sin will have eternal consequences. Those who do
not repent will go to hell when they die...”
22. In a free constitution such as ours there is an important distinction to be drawn                                                                     between the law’s protection of the right to hold and express a belief and the law’s                                                                              protection of that belief’s substance or content. The common law and
ECHR Article 9 offer vigorous protection of the Christian’s right (and every
other person’s right) to hold and express his or her beliefs. And so they
should. By contrast they do not, and should not, offer any protection whatever
of the substance or content of those beliefs on the ground only that they are
based on religious precepts. These are twin conditions of a free society.
23. The first of these conditions is largely uncontentious. I should say a little
more, however, about the second. The general law may of course protect a
particular social or moral position which is espoused by Christianity, not
because of its religious imprimatur, but on the footing that in reason its merits
commend themselves. So it is with core provisions of the criminal law: the
prohibition of violence and dishonesty. The Judaeo-Christian tradition,
stretching over many centuries, has no doubt exerted a profound influence
upon the judgment of lawmakers as to the objective merits of this or that social
policy. And the liturgy and practice of the established Church are to some
extent prescribed by law. But the conferment of any legal protection or
preference upon a particular substantive moral position on the ground only
that it is espoused by the adherents of a particular faith, however long its
tradition, however rich its culture, is deeply unprincipled. It imposes
compulsory law, not to advance the general good on objective grounds, but to
give effect to the force of subjective opinion. This must be so, since in the eye
of everyone save the believer religious faith is necessarily subjective, being
incommunicable by any kind of proof or evidence. It may of course be true;
but the ascertainment of such a truth lies beyond the means by which laws are
made in a reasonable society. Therefore it lies only in the heart of the
believer, who is alone bound by it. No one else is or can be so bound, unless
by his own free choice he accepts its claims.
24. The promulgation of law for the protection of a position held purely on
religious grounds cannot therefore be justified. It is irrational, as preferring
the subjective over the objective. But it is also divisive, capricious and
arbitrary. We do not live in a society where all the people share uniform
religious beliefs. The precepts of any one religion – any belief system –
cannot, by force of their religious origins, sound any louder in the general law
than the precepts of any other. If they did, those out in the cold would be less
than citizens; and our constitution would be on the way to a theocracy, which
is of necessity autocratic. The law of a theocracy is dictated without option to
the people, not made by their judges and governments. The individual
conscience is free to accept such dictated law; but the State, if its people are to
be free, has the burdensome duty of thinking for itself.
25. So it is that the law must firmly safeguard the right to hold and express
religious belief; equally firmly, it must eschew any protection of such a
belief’s content in the name only of its religious credentials. Both principles
are necessary conditions of a free and rational regime.
26. As I have shown Lord Carey’s statement also contains a plea for a special
court. I am sorry that he finds it possible to suggest a procedure that would, in
my judgment, be deeply inimical to the public interest.
27. I have gone into these matters because of the wide issues raised by Mr
Diamond’s argument and Lord Carey’s statement. I have done so although in
truth there is a short route to the resolution of this application. The applicant’s
argument is closed against him by this court’s decision in Ladele, from which
this case cannot sensibly be distinguished. There is no more room here than
there was there for any balancing exercise in the name of proportionality. To
give effect to the applicant’s position would necessarily undermine Relate’s
proper and legitimate policy.
1.    28. This application is dismissed.


24.      It is against this backdrop, furthermore, that the Eweida v British Airways case [2010] EWCA Civ 80 can also be seen.  This is the “Christian cross” case. The Employment Tribunal had found that Mrs. Eweida was not indirectly discriminated against, and even if it had, it would have been justified.  She alleged indirect discrimination because BA had changed their policy: before 2007, they had permitted individuals to wear items of faith in the workplace, and the banning of the wearing of this was a provision, criterion or practice which had a disadvantageous impact upon Mrs. Eweida as a Christian.  The Employment Tribunal had heard evidence from Christian groups that the wearing of the cross was not a requirement of the Christian faith: and so was not a requirement of the religion.  The Court found that there was no discrimination because there was no evidence that Christians as a group were being discriminated against: but in fact it was only Mrs. Eweida.  Even if there was such discrimination, it was proportionate for BA to introduce such a rule, and to have it as a rule in line with legitimate aim of having a uniform policy at work, particularly as Mrs. Eweida could not point to the fact that her religious belief called for it, and it was no more than a personal preference on her part. 

25.    The last case I shall refer to is E v Jewish Free School (JFS) [2009] UKSC 15.  This shows that there can be allegations of discrimination upheld even within religious communities.  The JFS operated an admissions policy based upon the United Synagogue view that someone was Jewish either because of matrilineal descent, or because there had been conversion under orthodox auspices, or the child had converted.  A child whose father was Jewish, but whose mother was a convert to Judaism in a non orthodox synagogue was rejected form the school as not meeting their criteria. E argued that this refusal was discriminatory under the Race Relations Act 1976, either directly, or indirectly.  He argued that the Jewish people were a defined ethnic group under the legislation, and that the matrilineal group was part of those groups of Jewish people, but did not consist solely of those people.  The majority of the House of Lords found that this test was discriminatory.  The fact that the motivation for the discrimination was based upon 2,000 years of theology and practice was irrelevant, and the fact that the motive was benevolent was also irrelevant. Mrs. E was ethnically Jewish under the legislation, as well as Jewish in the religious sense, and so it was directly discriminatory. 

26.    The minority considered that the JFS’s policy pursued a legitimate aim, and that although it may be indirectly discriminatory, such discrimination would be justified on the grounds of the need to provide education for those of the Orthodox faith. 


27.    This case demonstrates the extremely difficult tensions and areas of conflict inherent in making such judgments. 
FIONA SCOLDING
HARDWICKE
15TH DECEMBER 2010