Saturday, 22 January 2011

more about the B&B judgment

Updated Monday morning

Here are two articles from religious sources that express criticism of the judgment previously reported here.

The Tablet has an editorial headlined Not equal before the law.

…Compelling people to act against their conscience, or for­cing them out of business unless they are prepared to do so, can never be regarded as an unqualified victory for human rights. When rights clash, the appropriate way to resolve the issue is before an objective tribunal, which will weigh up the pros and cons on either side. That means there ought to be occasions where the right to religious freedom prevails, and the right not to be discriminated against on grounds of sexual orientation has to give way. But the latest case confirms, and as County Court Judge Andrew Rutherford said in his judgment, the balancing of one right against another is not what the law requires. In effect, gay rights trump religious convictions every time. There is something wrong with such a law. Judges should have discretion to probe further. Did the gay couple in this case, for instance, have a convenient alternative? Were the religious convictions merely a mask for homophobic prejudice? Above all, the court should be obliged to give due weight to the undesirability of overriding deeply held religious convictions, which is at least as wrong as offending the feelings of gay people. Religious believers have human rights too.

The Guardian has published a column by Jonathan Chaplin director of the Kirby Laing Institute for Christian Ethics titled Law can be influenced by religion.

…But quite apart from the merits of the case, judges should be warned off any future reliance on the ill-considered opinions about law and religion ventured last year by Lord Justice Laws. Laws rightly asserted that no law can justify itself purely on the basis of the authority of any religion or belief system: “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.”

A sound basis for this view is Locke’s terse principle, in his Letter on Toleration, that “neither the right nor the art of ruling does necessarily carry with it the certain knowledge of other things; and least of all the true religion”.

But Laws seemed to ground the principle instead on two problematic and potentially discriminatory claims…

This is a continuation of Chaplin’s earlier argument against what Lord Justice Laws said in the McFarlane case.

Update Monday morning

Here are two further articles, from a legal perspective, about the case:

In yesterday’s Observer Afua Hirsch the Legal Affairs Correspondent of the Guardian wrote Gay couple’s hotel battle is latest case of religion clashing with human rights

She mentions the trend of “Religitigation” and she concludes with this:

the Bulls’ case confirms that, in the meantime, Christians will have to accept that civil partnerships are intended to be its equivalent as far as the law is concerned. But the interesting issue in this case lurks in the judge’s commentary. “It is no longer the case that our laws must, or should, automatically reflect the Judaeo-Christian position,” said Rutherford, that is in regarding marriage as the only form of legally recognised binding relationship.

It is this issue that concerns religious groups – the ability of the law to move on from its religious roots to a more equitable formula of guaranteeing fundamental rights, including the right against discrimination. Of course where those rights come into conflict, a more nuanced exercise of balancing takes place – one that the judiciary has so far approached with the utmost seriousness. Rutherford confessed he found the Bulls’ case “very difficult”, and Lord Phillips – president of the supreme court and the UK’s most senior judge – said earlier this year that the Jewish school decision had been the hardest of his judicial life.

That has been of little consolation to religitigants, however. What they seem to want is a trump card that puts them above the subtle considerations of fairness. And that, the courts have repeatedly said, is not going to happen.

At the UK Human Rights Blog Catriona Murdoch wrote A Cornish hotel and the conflict between discrimination law and religious freedom.

The judgment itself is now available as a web page here.

And, as Catriona reminds us, the Northern Ireland version of these regulations was the subject of a high court challenge, see An Application for Judicial Review by the Christian Institute and others [2007] NIQB 66). We reported the outcome at the time: Northern Ireland: judicial review of SoRs. Among other things the judge said at that time:

“The applicants contend that the regulations treat evangelical Christians less favourably than other persons to the extent that they are subject to civil liability for manifesting the orthodox religious belief in relation to homosexuality. I am satisfied that the Regulations do not treat evangelical Christians less favourably than others.”

Posted by Simon Sarmiento on Saturday, 22 January 2011 at 9:31am GMT | TrackBack
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Categorised as: equality legislation
Comments

Not the best of pieces from the Tablet, religion has many "values" that give way to better wisdom as time teaches us and there are competing values within religions and between them - I am not sure the State can place itself at the whim of these. I believe there are genuine issues of concern but this case and this editorial touches on none of them.

However the Chaplin piece does to some extent and this view and those of Aidan O'Neill and Laws are all worth looking at again.

Posted by: Martin Reynolds on Saturday, 22 January 2011 at 12:31pm GMT

Read about the couple in the Bible. the husband is terribly ill.. I feel this is a very hollow victory for the gay men.

Far from being a Rosa parkes moment this will only be bad publicity for the gay lobby.

Posted by: Robert ian Williams on Saturday, 22 January 2011 at 2:38pm GMT

The views of Aidan O'Neill can be found at
http://www.thinkinganglicans.org.uk/archives/004390.html

Posted by: Simon Sarmiento on Saturday, 22 January 2011 at 3:45pm GMT

meant the newspaper not the bible.. freudian slip!

Posted by: Robert ian Williams on Saturday, 22 January 2011 at 4:12pm GMT

The Tablet piece seems simply to misunderstand the law - a law which is based on English law going back to the 1960s, although only more recently applied to sexual orientation and religion - and which is now enshrined in European law, following the English model.

The law is that no-one should be subject to discrimination on the grounds of religion, sexual orientation etc.

That's it.

It's not much to ask.

Since the only people being discriminatory in the B&B case were the owners, they lost.

If the boot was on the other foot, and B&B owners were held to different standards because of their Christianity, the owners would be protected.

But that was not the case. In fact, they are arguing that they should be put in a better position than non-Christians, given an exemption from the duty not to discriminate, which no-one else has, just because they are conservative Christians, and others are not.

I really don't think it's that hard to see why that would be wrong. Is it?

Posted by: badman on Saturday, 22 January 2011 at 5:24pm GMT

Robert Ian Williams, like many others, makes reference to 'The Gay Lobby'. Perhaps he would like to elaborate on who or what this is. And secondly, why shouldn't there be a 'Gay Lobby'. There are plenty of 'Christian' ones, starting with the Christian Legal Centre, the Christian Institute, Christian Voice, and so on, all with the word 'Christian' in their titles, and all presuming that this gives them some sort of automatic right to have their opinions overrule any others or indeed the law of the land.

Posted by: Richard Ashby on Saturday, 22 January 2011 at 9:59pm GMT

["Gay lobby", RIW? I sincerely thought you were better than that. :-( ]

What does The Tablet NOT understand about the terms "Public Business"? Licensed by the government, to meet certain standards for a "hotel"? (Or "Bed & Breakfast"---at any rate, not a religious retreat-house!)

Human rights are neutral vis-a-vis "rights regardless of sexual orientation (inc. relationships)" versus (potentially) "rights of religious believers". However, that's merely the right to BE of a (distinct) religious faith (affiliation). The government must never put its official stamp of approval on any SET of religious beliefs (I'm ignoring "the Church by Law Established" conundrum, pointedly!).

In a (potential) clash between the "rights regardless of sexual orientation (inc. relationships)" and the particular BELIEFS of any group of religious believers, the latter MUST give way. Is this not obvious? [Would the UK submit the human rights of women to particular religious beliefs? Would Hindu beliefs about caste supercede human rights "regardless of ethnicity"? I don't think so!]

Posted by: JCF on Sunday, 23 January 2011 at 6:29am GMT

Definition of lobby..those committed to a particular cause.

Posted by: Robert ian Williams on Sunday, 23 January 2011 at 7:10am GMT

"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.”

- Lord Justice Laws -

A very good argument, consonant, in my reckoning with the words of Jesus "The Sabbath was made for man, not man for the Sabbath"

Posted by: Father Ron Smith on Sunday, 23 January 2011 at 9:38am GMT

I appreciate that many of the above comments focus on sexual orientation aspect of equality legislation. Slightly off-topic, but I'm still in quandary over how the law will tackle religious discrimination.

For many Christians, participation is tantamount to connivance. To highlight this, let's say you run a printing firm. You're also a committed Christian and an animal rights campaigner.

A couple of customers accept your quick quotes based on intended output format and quantity. When the artwork arrives, one is entitled 'The Real Fur Quarterly' and the other is religious publication that radically opposes Christianity.

Does the current legislation allow an opt out of work on the first publication, but not second?

What's the legal or ethical position on declining anything?

Posted by: David Shepherd on Sunday, 23 January 2011 at 9:47am GMT

I feel sorry for the hotel owners -- they do not want to see what they consider immorality going on in the same house as they sleep in. Indeed, what is to prevent a hotel from becoming what used to be called a maison de passe (a love hotel) if hoteliers are obliged to forgo any moral discrimination?

Posted by: Spirit of Vatican II on Sunday, 23 January 2011 at 10:53am GMT

RIW:

Then why--as previously asked--do we never hear you talk about a Christian lobby? I assure you, in both your country and mine, those with a determination to have the government rule by "Christian" standards (as THEY understand them) are far more organized and far more active in lobbying our respective legislatures than gays are.

Posted by: Pat O'Neill on Sunday, 23 January 2011 at 12:53pm GMT

David:

I don't know what the law might be in the UK, but in the US, printers are not considered "public accommodations" and thus are not subject to anti-discrimination laws. Public accommodations are retail stores, hotels, restaurants, and the like.

Posted by: Pat O'Neill on Sunday, 23 January 2011 at 3:14pm GMT

Definition of lobby..those committed to a particular cause. - Robert Ian Williams

Quite. The 'Christian' lobby is well organised and well funded. It includeds various bishops and ex-archbishops along with much of the Church of England, the whole of the Roman church and assorted fundamentalists of many and varied stripes. Presumably Mr Williams approves of these views as expressed by the 'Christian' lobby because they accord with his own?
Mr Willimas and others do not use the phrase 'gay lobby' in a neutral way. Its use is designed to undermine, marginalise, discredit and dismiss those who hold to differing views.

Posted by: Richard Ashby on Sunday, 23 January 2011 at 5:55pm GMT

"bad publicity for the gay lobby"

Do be civil, Robert. We prefer the term "cabal."

Posted by: Bill Dilworth on Sunday, 23 January 2011 at 7:36pm GMT

Where's your compassion and sensitivity for this old couple. Catholic triumphalism indeed..this is gay triumphalism!

Posted by: robert Ian williams on Monday, 24 January 2011 at 7:33am GMT

I am not sure that Civil actions like this ever leave a pleasant taste in the mouth, Robert.

But it did all remind me of a story I was told at a symposium in mid 1970's New York NY by an Episcopal priest whose father had been an hotelier from the 1930's onward.

He spoke after we had watched an old movie about a journalist exposing anti Jewish discrimination in the US and told us how his father had worked for a year at a hotel owned by a Roman Catholic family who were virulently anti-Jewish and would not allow Jews to say at their hotel. When "one slipped through the net" and presented themselves a the front desk with a reservation it was his father's job to tell them the hotel was overbooked and to re-book them in an upgraded suite at a nearby hotel entirely at the expense of the owners. Apparently nobody ever twigged the discriminatory policy of that hotel, in fact, according to the story teller it had a fantastic reputation for customer care!

It seems to me that it does not take a great deal of imagination or wit for any B&B owner to practice discrimination without being sued. I am absolutely sure it still goes on all over the country, I remember a survey carried not so long ago when B&B's were rung by a heavily accented Mr Patel and then by a posh Mr Carrington - many were full only to the Patel family.

As it was, the hotel in question with its discrimination policy pinned to the door was inviting a Civil Action as Stonewall helpfully pointed out to them - perhaps the only genuine shock in this matter was the time it took for someone to challenge it.

Posted by: Martin Reynolds on Monday, 24 January 2011 at 9:28am GMT

Thanks for your reply, Pat. I haven't found anything similar to Public Accommodations in the UK.

Even though the Bulls have got it wrong, the broader moral/legal dilemma remains: on what grounds can business owners opt out of participation in work that contradicts their religious beliefs? Aggrieved religious minorities may indeed start taking Christian business owners to court.

The Equality Act is not just about sexual orientation.

Posted by: David Shepherd on Monday, 24 January 2011 at 10:16am GMT

David,
which of these provisions were you thinking of?

Equality Act provisions which came into force on 1 October 2010
•The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport.
•Changing the definition of gender reassignment, by removing the requirement for medical supervision.
•Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers.
•Clearer protection for breastfeeding mothers;
•Applying the European definition of indirect discrimination to all protected characteristics.
•Extending protection from indirect discrimination to disability.
•Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment.
•Applying the detriment model to victimisation protection (aligning with the approach in employment law).
•Harmonising the thresholds for the duty to make reasonable adjustments for disabled people.
•Extending protection from 3rd party harassment to all protected characteristics.
•Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.
•Allowing claims for direct gender pay discrimination where there is no actual comparator.
•Making pay secrecy clauses unenforceable.
•Extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment.
•Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce.
•Harmonising provisions allowing voluntary positive action.


http://www.equalities.gov.uk/equality_act_2010.aspx

Posted by: Erika Baker on Monday, 24 January 2011 at 11:25am GMT

'Where's your compassion and sensitivity for this old couple'.

Oh, so now it's ok to discriminate if you are old and infirm?

Posted by: Richard Ashby on Monday, 24 January 2011 at 11:26am GMT

It is a failure to understand the limits of Christian responsibility. Christians are not the moral policemen of the world, appointed to ensure that whatever their standards happen to be (and mine are not the Bulls) they make others follow them. I've blogged on this. http://rosemaryhannah.wordpress.com/2011/01/20/dont-worry/

Posted by: Rosemary Hannah on Monday, 24 January 2011 at 11:30am GMT

The trouble is that the Bulls could be anyone's mum and dad; the wrong target is being pounced on; Britons do not share the American hunger for the last legal pound of flesh.

Posted by: Spirit of Vatican II on Monday, 24 January 2011 at 1:19pm GMT

But don't 'religious minorities 'tend to love 'to be aggrieved' ? I rather thought that was the(ir) point (very often).

Being old and ill excites 'sympathy' does it ? Does that go for old, ailing homos too, I wonder ?

The Christian (sic) Legal Center;and the Christian (sic) Institute too often it appears to me, egg such people on for the institution's reasons and needs and not the pastoral care of those concerned.

Btw we religious believers, are free under the law to worship, study, fellowship, and to organise our meetings and common-life; and also to engage in certain forms of out-reach. Including publishing.

Some religious bodies in Britain also run schools,institutes, colleges and so on.

So, not too down-trodden then...

As for genuine grievances ---

I am still waiting for an apology from the British state and Church of England for its past persecution, imprisonment,execution and abuse of people in same-sex friendships and relationships. And for many current prejudicial words and acts, including the with-holding of marriage unequivocally from same-sex couples in Church and Register Office.

Posted by: Laurence Roberts on Monday, 24 January 2011 at 3:43pm GMT

Erika,

Thanks for the link. I guess 'harassment and victimisation in services' fits the bill for the printer's alleged religious discrimination.

Our fictional fur traders might feel equally aggrieved at the refusal to publish their periodical. However, they would most likely have to pursue a civil action against the animal rights campaigner. It's only politics.

Posted by: David Shepherd on Monday, 24 January 2011 at 4:42pm GMT

Just realised that harassment and victimisation would only apply if the complaint had given rise to a discriminatory reaction.

Direct discrimination in services would be applicable to the printer's refusal.

Posted by: David Shepherd on Monday, 24 January 2011 at 5:51pm GMT

David,

As far as I'm aware, equal treatment for gay people is enshrined in the equality legislation.
Equal treatment for the fur trade isn't.

As a translator I am allowed to refuse to work for the porn industry, for fur traders, for manufacturers of vitamin supplements that claim they treat cancer better than conventional chemotherapy. I am not allowed to refuse to work for gay people, for black people, for disabled people and for women or to translate material simply because it supports the rights of those groups.

It's actually quite simple.

Posted by: Erika Baker on Monday, 24 January 2011 at 7:43pm GMT

"The trouble is that the Bulls could be anyone's mum and dad"

Mummy, Daddy: maybe it's time to retire? We'll take over running the business "up to code" and all that. You two enjoy go yourselves! (Doesn't seem so hard a convo?)

***

Interesting TV coverage of this story, here: http://www.youtube.com/watch?v=e20tHZSUKys "The Big Questions"

Posted by: JCF on Tuesday, 25 January 2011 at 4:38am GMT

Erika,

Thanks for your lucid answer. I only questioned the implications for specifically religious differences.

I kind of get the rest.

Posted by: David Shepherd on Tuesday, 25 January 2011 at 5:56am GMT

David Shepherd may be asking a question about the Equality Act 2006, and more exactly Part 2 thereof, which contains the corresponding regulations concerning Religion or Belief. See
http://www.legislation.gov.uk/ukpga/2006/3/part/2

Posted by: Simon Sarmiento on Tuesday, 25 January 2011 at 8:16am GMT

David,
I'm sorry, I must be particularly dense this morning. What religious differences are you thinking of? The only bones of contention are gay civil rights. All others are accepted everywhere, although people do struggle with the practical implementation of some other rights, like maternity provisions and equal disability access etc. But there is no religious difficulty about accepting mothers or people in wheelchairs.

Yes, there are people who would rather not offer a B&B bed to a disabled person but they are very well aware that they cannot cite religion as their smokescreen for their prejudice.

Posted by: Erika Baker on Tuesday, 25 January 2011 at 8:23am GMT

Simon is right. My question related to the corresponding religious regulations from the Equality Act 2006.

Erika,
Would you, as a translator, (or for that matter our printer) be able to refuse service, e.g. translation or printing of a religious periodical on the ground of incompatibility with your Christian beliefs?

Posted by: David Shepherd on Tuesday, 25 January 2011 at 5:07pm GMT

David,
that is an interesting question, especially since there is a lot of fundamentalist Christian material out there that I would not want to work on.
And I did once work on a Catholic book that contained a description of the crucifixion of torture that was positively sado-masochistic and very sexual and I ended up refusing to translate those paragraphs.

I do a lot of translations for someone very active in Christian-Muslim interfaith dialogue and I certainly don’t have problems translating Islamic material as such. Although I would refuse to translate anything that incited violence or hatred.

In reality, though, it has happened more than once that prospective Christian clients have googled my name after I submitted a quote and have then suddenly changed their minds about their translating requirements.

I suppose one would have to test the limits in court. Or is anyone else still reading this who understands the legal aspects better?

Posted by: Erika Baker on Wednesday, 26 January 2011 at 9:00am GMT

I wonder what the breakfasts were like.

Just asking.

Posted by: Father Ron Smith on Saturday, 29 January 2011 at 10:22am GMT
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