Press Release from the LGB&T Anglican Coalition
‘Embrace Civil Partnerships’ - Bishops told.
2nd February 2012 - for immediate use
The time has come for a change in stance on Civil Partnerships is the message from pro-gay groups in the LGB&T Anglican Coalition.
In its submission to the House of Bishops review group on Civil Partnerships, (made public today) the Coalition calls on the Church of England to allow churches to register Civil Partnerships, authorise services of Thanksgiving and Dedication, and end the ban on Bishops in Civil Partnerships.
With over 47,000 Civil partnerships had been registered by the end of 2010, the submission notes that “As social attitudes towards those in same-sex relationships have become increasingly open and accepting, the Church of England is becoming increasingly isolated. This is in turn damaging both our mission and our ability to provide pastoral care to those in our parishes, congregations, and clergy.”
On offering Civil Partnerships in Parish Churches, the Coalition has already identified 95 churches who want to press ahead but General Synod would need to approve the application. Although negative statements have been made by the Church of England’s Press Office,
“the fact that there has been no possibility of discussion within the Church about whether individual churches should be allowed to register their for Civil Partnerships is in itself a retrograde position for the Church of England to be in.”
On services of Thanksgiving and Dedication, the Coalition has called for an experimental liturgy to be introduced in the same way that such services were permitted following marriage after divorce in the 1990’s.
“The present situation where services of blessing are proscribed and the creation of public liturgies deemed to be wrong, is creating pastoral tensions, ecclesiastical ambiguity, and a culture of double standards… As a minimum step, therefore, the Church should permit services of thanksgiving and dedication to take place in pastoral response to the large number of civil partnerships. To refuse to respond in such a way would confirm fears that the present ban is motivated by prejudice rather than theology or religious belief. “
On the current ban on appointments of openly gay clergy to be Bishops the Coalition calls for an immediate end to the moratorium:
“One of the most pressing needs is to see an end to the moratorium on appointment of bishops in civil partnerships even if celibate. There is no justification for the current moratorium and it should be repealed immediately.”
The submission also warns against putting up barriers to such appointments:
“Furthermore, any attempt to deter or exclude such candidates by singling them out for intrusive questions is not only unjust and hurtful to the individuals concerned but also damaging to mission and ministry.”
In response to the submission, the House of Bishops review group has invited members of the Coalition to meet with them to discuss the issues further.
The Coalition is also organising an Act of Witness at General Synod drawing attention to the many hundreds of LGB&T clergy who minister in the Church of England despite the discrimination and suspicion which they often suffer. The Act of Witness will take place on Thursday 9th February, 8:30-10am in Deans Yard, Westminster.
The full text of the submission is available as a PDF file from here.
Updated again on 1 February
There were two news reports in Sunday newspapers concerning the Dean of St Albans.
One was in the Mail on Sunday and written by Jonathan Petre, see ‘I’ll sue Church of England if it bars me from being bishop,’ says gay dean. (A later version with a quite different headline appears here.)
The other was in the Sunday Times by Kate Mansey but is hidden behind a paywall. However, I can say that it included a long quote from the memorandum written by Colin Slee and published some time ago in connection with a Guardian news story.
Several other newspapers have followed up these reports. The most thoughtful is the Independent which has today published the following items:
Updates
Andrew Brown has this analysis: Why is this gay cleric considering suing the church if he won’t win?
…Look at the small print of its legal opinion on civil partnerships, transparently designed to prevent John from being able to sue for discrimination. No selection committee would ask straight candidates for a job whether they had ever had pre-marital sex, and, if they had, whether they were jolly sorry for it. Yet the Church of England believes that it is legally and morally OK to ask the equivalent questions of gay men: “Whether the candidate had always complied with the church’s teachings on sexual activity being solely within matrimony; whether he had expressed repentance for any previous pre-marital sexual activity.”
That is offensive enough, but the real point is found in the apparently balanced statements of disagreement. “It is clear that a significant number of Anglicans, on grounds of strongly held religious conviction, believe that a Christian leader should not entire into a civil partnership, even if celibate … it is equally clear that many other Anglicans believe it is appropriate that clergy who are gay by orientation entire into civil partnerships.” This formulation gives the game away. It is only conservative evangelical opinion which is described as “strongly held religious conviction”. The liberals merely “believe it is appropriate”, with the implication that their beliefs on this are not religious at all. This kind of nonsense was dealt with decades ago where women priests were concerned. What needs saying, loud and clear, is that the case for liberalism here is every bit as religious, and as theologically informed, as the case for the conservatives…
Two further analyses:
New Statesman Nelson Jones Bishop sacrifice
When it was announced that the Church of England had established an advisory group on human sexuality, consisting of four bishops and a retired civil servant, there was some criticism of the fact that all its members were (ahem) male. But that was only to be expected, and not just because it happens to be a group of bishops, which remains, for the time being at least, an exclusively male club. In Anglican parlance, “human sexuality” is code for, “What do we do about the gays?”
…In the case of the Church of England, there are currently two major sticking points, which may or may not be linked: the question of whether civil partnership ceremonies should be allowed to take place in church, and the question of whether openly gay men, even if celibate, should be allowed to become bishops. In both cases the present situation is one of studied hypocrisy…
Episcopal Café Jim Naughton Misleading media coverage: the latest in the Jeffrey John saga
There is a full report in the Church Times see C of E policy on appointing bishops may face legal test
And the Press column by Andrew Brown is now also available to non-subscribers: An enemy hath spun this
…Right at the bottom of the Mail’s story was the line that “one source said Dr John suggested he would drop his legal threat if he felt he would not be ruled out for future posts.”
Of course, a huge amount turns on whether this source was a friend or enemy of Dr John, because the Sunday Times story and the Mail on Sunday’s headline both invite the riposte that they got from George Pitcher on the Mail’s website.
He wasted no time on the ball, and went straight for the man: “We’re forced to ask how seriously we’re likely to take him as a bishop if we harbour the suspicion that he won his post, even by suggestion, because he’d declared that if he wasn’t delivered such-and-such a bishopric then he’d sue.”
But is that really why Dr John was discussing legal action? It is clearly true that Alison Downie has been corresponding with church legal authorities on his behalf. But friends — real friends — of his, and allies, too, suggest that what he was trying to do instead was to ensure that civil partnerships are not in themselves a bar to promotion. That is just as upsetting to conservative Evangelicals as if he were actuated by personal ambition.
It is actually much more difficult for the Archbishop of Canterbury to handle, and much more appealing to public opinion. One begins to see why the story might have emerged from his enemies with the spin that it had.
Updated again Friday morning
The House of Lords today debated the Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011. See earlier reports, starting here.
No vote was taken, as Baroness O’Cathain eventually withdrew her motion:
That a Humble Address be presented to Her Majesty praying that the regulations, laid before the House on 8 November, be annulled on the grounds that they do not fulfil the Government’s pledge to protect properly faith groups from being compelled to register civil partnerships where it is against their beliefs.
Links to Hansard:
The permanent record of this debate now starts here. See below the fold for links to the speeches made by the Bishop of Oxford, and the Bishop of Blackburn (twice).
Meanwhile, media reports:
And press releases:
This morning, the Guardian had published this editorial comment: Civil partnerships: questions for the church
…Today’s motion should be opposed. Opposing it would be more straightforward if the Church of England were to come off the fence on the issue of gay and lesbian equality. Britain has taken great strides towards wider tolerance and equality in recent years. Yet on civil partnerships, as on women bishops and gay priests, the church has recognised the moral wrongness of discrimination while failing to embrace the moral rightness of equality. Everyone can see where this journey is leading. But leading is the one thing the church is reluctant to do. It could make a start by throwing its weight clearly against the conservatives in the Lords today.
And earlier, the Cutting Edge Consortium had published this briefing note for peers.
The leaders of the religious bodies who had originally sought this legislation wrote a letter to parliamentary leaders, which is reproduced in this Ekklesia article: Faith bodies urge Lords to support civil partnerships.
Bishop of Oxford’s speech starts here.
Bishop of Blackburn: first speech starts here; second speech starts here.
Updated Sunday evening
The Scottish Government just concluded a consultation on Registration of Civil partnerships same sex marriage and related issues. The terms of the consultation can be found here.
This consultation paper seeks views on the possibility of allowing religious ceremonies for civil partnerships and the possible introduction of same sex marriage.
This Government believes in religious tolerance and the freedom to worship. We also believe in equality and diversity.
There are a variety of views on religious ceremonies for civil partnerships and on same sex marriage. We hope that everyone will use this consultation to express their views and opinions. However, as the debate unfolds, we also hope that everyone will treat those with different or opposing views with courtesy and respect, in accordance with the very highest standards of democratic discourse.
The Scottish Government is choosing to make its initial views clear at the outset of this consultation. We tend towards the view that religious ceremonies for civil partnerships should no longer be prohibited and that same sex marriage should be introduced so that same sex couples have the option of getting married if that is how they wish to demonstrate their commitment to each other. We also believe that no religious body or its celebrants should be required to carry out same sex marriages or civil partnership ceremonies…
The Scottish Episcopal Church made its response, and published it here (PDF) together with this press release.
…In submitting its response, the Scottish Episcopal Church has stated that its General Synod expresses the mind of the Church through its Canons. The Canon on Marriage currently states that marriage is a ‘physical, spiritual and mystical union of one man and one woman created by their mutual consent of heart, mind and will thereto, and as a holy and lifelong estate instituted of God’.
The Rt Rev Mark Strange, Bishop of Moray, Ross & Caithness and Convener of the Faith & Order Board’s working group on the consultation explains “The Canon on Marriage is clear in its wording and that has given the working group set up by the Faith and Order Board a common basis on which to discuss the issues raised in the Government’s Paper. The Church’s current position is that marriage is a union between a man and a woman and this clarity allows us the space to listen to the many differing views held by the members of our Church.
“The general issues raised by the consultation document are matters which are already the subject of ongoing discussion within both the Anglican and Porvoo Communions, and in which the Scottish Episcopal Church plays its part. Our written submission is offered in the knowledge of these ongoing discussions, it is placed within the Government’s time frame and has therefore sought to indicate our canonical position without pre-empting any debate we as a Church are or could be engaged in…
The Church of Scotland responded with No to same sex marriage: Consultation response confirms traditional position and the Convener of the Legal Questions Committee also issued this statement.
The Roman Catholic Bishops in Scotland have expressed strong opposition to the proposals, but their official response to the government does not appear to have been published yet by the Scottish Catholic Media Office.
Update The SCMO has kindly supplied me with a copy, which is available here (PDF).
Although the RC bishops objected very strongly to anyone from outside Scotland being allowed to respond to the consultation, numerous lobby groups invited people outside Scotland to respond, including Anglican Mainstream which sent emails to English General Synod members and others, urging them to participate.
A political party entitled the Scottish Christian Party responded that the consultation was “not fit for purpose, and concluded saying:
“It will be a mark of perpetual disgrace, and a blot on Scottish history, that no sooner has the Scottish National Party formed a majority Government than one of its first measures is a moral and social revolution of such a nature that it will destroy the time-honoured understanding of marriage, undermine the family, threaten the well-being of children, disrupt Scottish education, compromise healthy living, satisfy the communistic agenda of cultural Marxism, introduce anomalies into Scottish Law which will leave a legacy of legislative confusion, and be a stick with which the aggressive homosexual lobby can continue to beat Christians.”
We reported on 24 November and again on 2 December on attempts to force a debate in the House of Lords on The Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011 which come into force tomorrow.
The Quaker website Nayler has published two articles concerning this development, containing a great deal of useful background information:
Baroness aiming to stop religious civil partnerships
Religious civil partnerships: almost law
And Ekklesia has published Quakers in Britain welcome civil partnerships opportunity.
Iain McLean has written an article at Our Kingdom Time to save religious freedom from the UK’s religious right.
…What faith groups want to conduct civil partnerships on their premises? At the moment, a handful: the Metropolitan Community Church, the Quakers, the Unitarians, and Liberal Judaism. The Act, the regulations and ministers in both Labour and Coalition Governments have all made it clear that s.202 is purely permissive. No faith community can be penalised for not requesting to hold civil partnerships. And yet a coalition of conservative Christian groups continues to insist that this measure exposes them to litigation from those seeking to force them to hold civil partnerships against their will. This is part of a victimhood narrative in which, it is said, people are being penalised “for being Christians” (read: for discriminating against gay clients) in various roles such as registrars, relationship counsellors, would-be adopters, and hotel proprietors. In each of these cases, the courts have ruled against the Christians. This is bad for the individual Christians, who have been encouraged to bring (or defend) hopeless cases; it is good for their lobby groups, who need to keep the victimhood narrative going…
And he concludes:
…Furthermore, in a legal opinion published only on 1 December (long after Lady O’Cathain had secured her debate), the Church of England Legal Office reveals that both it and the government’s own lawyers agree with us and disagree with Mark Hill. It is a mystery why the Legal Office did not pass this opinion on to the Lords committee, which could then have seen that the regulations pose no real threat: neither to the Church of England, nor, as the C of E’s lawyers proceed helpfully to add, to any other faith community, whether congregational or hierarchical.
Lady O’Cathain’s campaign is not about protecting faithful Christians from the threat of vexatious litigation. If it were, then Quakers and Jews, who have suffered more than their fair share of that over the centuries, would be on the same side. It is about restricting religious freedom, and thwarting the will of parliament. Section 202 was enacted under the Labour government. The disputed regulations were promulgated by the coalition. All three parties have therefore endorsed it. As a Quaker, I totally respect the right of other Christian denominations not to host civil partnerships, if that is where their conscience leads them. But we have consciences too. Please get your tanks off our lawn, Lady O’Cathain. I hope that Peers will turn out in force on December 15th to protect religious freedom by defeating the O’Cathain motion.
Recent press coverage has tended to focus more on the Church of England’s own position than on the threat to the regulations themselves:
Martin Beckford Telegraph Church of England insists it will not have to host civil partnerships
Jasmine Coleman Guardian Church of England pours cold water on hopes for civil partnership ceremonies
Steve Doughty Mail Church ‘may have to offer gay weddings’ if Cameron’s plans given go-ahead
AFP Church of England against ‘gay wedding’ use
BBC Church of England bans hosting civil partnership ceremonies
Press Association Tatchell asks clergy to defy ruling
The Church Times has a report today, by Ed Beavan which is only available to paid subscribers until next week, headlined Lawyers dispute civil partnership opt-ins for sacred venues. (£)
A SUBMISSION by a leading ecclesiastical lawyer, Professor Mark Hill QC — which says that the planned changes to the regulations on civil partnerships in religious premises could lead to “costly litigation” for faith groups who object in conscience — has been challenged by an Oxford academic…
Here is the full text of the memorandum (PDF) by Scot Peterson to which the report refers. This criticises the opinion of Professor Mark Hill QC which was published previously. He concludes:
…From a more general point of view, the Objectors‘ position becomes clearer. Rather than objecting to the Proposed Regulations, which offer all the protection available to faith groups, denominations, individual ministers and congregations, which is available under the existing regime for licensing religious premises for conducting marriages, Objectors wish section 202 had never been passed in the first place. They want a second chance to defeat the principle of the Alli amendment. In order to accomplish this, they have used every effort to identify problems with the regulatory regime that cannot be solved without a complete overhaul of English marriage law, as well as the Equality Act itself. Rather than offering constructive suggestions for modifying the Proposed Regulations, which the GEO could incorporate into its regime, they have put the perfect (in their view) in the way of the possible.
Neither the GEO nor the legislature should cave in to these efforts. The regulatory scheme proposed and submitted to the legislature offers every protection to the Objectors which is available under English law and applicable human rights and equality laws. They should be permitted to go into force as planned.
Yesterday, after the Church Times had gone to press, the Church of England’s Legal Office published its opinion, which also disagrees with Mark Hill.
…5. The question has been raised in Parliament and elsewhere of whether a religious denomination, or a local church, which declined to seek to have its premises approved for the registration of civil partnerships could be held to be discriminating in a way which is unlawful under the Equality Act 2010. The clear view of the Legal Office is that it could not. This is also the declared view of the Government’s lawyers.
6. A key relevant provision is section 29 of the Equality Act which makes it unlawful for “a person (a “service-provider”) concerned with the provision of a service to the public or a section of the public” to discriminate on various grounds, including sexual orientation, “against a person requiring the service by not providing the person with the service”. A Church which provides couples with the opportunity to marry (but not to register civil partnerships) is “concerned with” the provision of marriage only; it is simply not “concerned with” the provision of facilities to register civil partnerships.
7. That would be a different “service”, marriage and civil partnership being legally distinct concepts. If Parliament were in due course to legislate for same sex marriage, as recently suggested by the Prime Minister, we would of course be in new territory. But that is a separate issue which would have to be addressed in the course of that new legislation.
8. The non-discrimination requirement imposed by the Equality Act on service-providers does not include a requirement to undertake the provision of other services that a service-provider is not already concerned with providing just because the services that it currently offers are of such a nature that they tend to benefit only persons of a particular age, sex, sexual orientation etc. Thus, for, example, a gentlemen’s outfitter is not required to supply women’s clothes. A children’s book shop is not required to stock books that are intended for adults. And a Church that provides a facility to marry is not required to provide a facility to same-sex couples for registering civil partnerships…
Meanwhile, over in the House of Commons, Edward Leigh MP has tabled an Early Day Motion to annul the new regulations. See this report in the Catholic Herald MP takes on Government over same-sex regulations.
And this report in the Telegraph by Martin Beckford Tory MPs try to stop civil partnerships in places of worship.
The Secretary General, William Fittall, has issued a paper on Civil Partnerships in Religious Premises to General Synod members today: GS Misc 1005 (pdf file). We have made an html version available.
The paper starts:
In view of the likely media interest in and possible controversy over a change in the law which comes into effect on 5 December this note and the attachment prepared by the Legal Office provide some background information and explanation for the benefit of Synod members.
and concludes
In short, the position under the new arrangements is that no Church of England religious premises may become “approved premises” for the registration of civil partnerships without there having been a formal decision by the General Synod to that effect.
An analysis by the Legal Office to justify this conclusion is attached to the paper.
Earlier, we reported on the outcome of the government consultation on allowing civil partnerships to be registered on religious premises. In particular we noted that a statement had been issued to the press (not a press release) which said:
“…The Church of England has no intention of allowing Civil Partnerships to be registered in its churches.”
In June, in evidence to the consultation, the Church of England had said:
“…In the case of the Church of England that would mean that its churches would not be able to become approved premises for the registration of civil partnerships until and unless the General Synod had first decided as a matter of policy that that should be possible.”
Changing Attitude has questioned the accuracy of that press statement Changing Attitude questions whether the C of E has made a decision not to opt in to CPs in church.
…William Fittall says the Church of England has no intention of allowing civil partnerships to be registered in our churches because it would be inconsistent with the 2005 statement from the House of Bishops.
He is of course right when he says that he and his colleagues are expected to have regard to official reports, resolutions and decisions of authoritative bodies within the Church. Therefore, the matter is not entirely open as we implied. He gently reprimands us for suggesting that anyone at Church House might turn their personal opinions into official statements, thus questioning the professionalism of the staff team.
His general point that different bodies exercise authority in different areas is true – they do. The question we raise is whether or not they should or if they have the authority to do so. The Archbishops’ Council has been given a great deal of executive authority but we are not sure they have the authority to determine policy issues like this. Mr Fittall’s basic premise is that the Church of England will not opt in to CPs in church as it would be inconsistent with the House of Bishops’ statement, 2005. As a prediction this may be accurate but we maintain it is for General Synod to decide, and the matter has not yet been put to Synod…
The House of Bishops Pastoral Statement in 2005 did not of course contemplate the possibility of registration of civil partnerships on religious premises since at the time that was forbidden by civil law. What it said was:
…the House of Bishops affirms that clergy of the Church of England should not provide services of blessing for those who register a civil partnership.
Much more recently the House of Bishops issued this statement, announcing a review of the pastoral statement.
“It is now nearly six years since the House issued its Pastoral Statement prior to the introduction of civil partnerships in December 2005. The preparation of that document was the last occasion when the House devoted substantial time to the issue of same sex relationships. We undertook to keep that Pastoral Statement under review. We have decided that the time has come for a review to take place.
“Over the past five and half years there have been several developments. Consistent with the guidelines in the Pastoral Statement a number of clergy are now in civil partnerships. The General Synod decided to amend the clergy pension scheme to improve the provision for the surviving civil partners of clergy who have died. More recently Parliament has decided that civil partnerships may be registered on religious premises where the relevant religious authority has consented (the necessary regulations are expected this autumn).
“The review will need to take account of this changing scene…”
The Copenhagen Post reports: Church weddings for gays proposed.
Homosexual church marriages could become a reality by next summer if a bill giving them equal status with heterosexual unions passes parliament.
“It’s historic, it’s the biggest thing since female ministers were allowed in the Folkekirken,” Manu Sareen (Radikale), the church and equality minister, told the media today.After years of opposition to granting homosexual unions the same status as heterosexual unions, Folkekirken bishops are developing a new wedding rite that will enable vicars to wed homosexuals.
“I think that most people in the Folkekirken are happy that there is finally a political decision on which way to proceed,” the bishop of Copenhagen, Peter Skov-Jakobsen, told Politiken.
“But I also think there are some people who will be disappointed that the distinction between marriage and partnership will disappear.”
An earlier newspaper report is here: Minister: Gay weddings by next year.
The Evangelical Lutheran Church in Denmark has an English website. It signed the Porvoo Agreement in October 2010.
Updated Thursday evening
See earlier report here.
The draft regulations were laid before Parliament on 8 November:
The Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011 or available here as a PDF.
And there is an explanatory memorandum (PDF only).
Last weekend, the Independent reported Tory peers to rebel on civil partnerships in churches.
Conservative peers in the House of Lords are attempting to scupper plans to allow same-sex couples to hold civil partnerships in churches.
Under regulations drawn up by ministers, religious denominations would be allowed to open their doors to same-sex couples in the new year. But the move is now being opposed by Tory peers, led by Baroness O’Cathain, pictured,who argue that the new law would not properly protect faith groups from being “compelled” to register civil partnerships against their beliefs.
Government whips are confident that the measure will pass but Downing Street will be embarrassed at the sight of Tory peers rebelling against government equality legislation…
Today, the House of Lords Merits of Statutory Instruments Committee published a report (also available as a PDF) which deals with these regulations. The substance of what it says is below the fold.
Several related documents are also published by the committee:
Evangelical Alliance submission
Christian Institute submission
Thursday evening update
Also today, in the House of Commons the following exchange took place:
Church Commissioners
The hon. Member for Banbury, representing the Church Commissioners, was asked—
Civil Partnerships
1. Mr Ben Bradshaw (Exeter) (Lab): What the authority is for the policy of the Church of England that services of blessing should not be conducted in church premises for those who register civil partnerships. [82259]The Second Church Estates Commissioner (Tony Baldry): In its pastoral statement of July 2005, the House of Bishops affirmed that clergy of the Church of England should not provide services of blessing for those who register a civil partnership. The Church of England’s response to the Government’s consultation document on civil partnerships on religious premises, which was produced earlier this year, reflected that policy and was approved by the Archbishops Council and by the Standing Committee of the House of Bishops.
Mr Bradshaw: I am grateful for that reply. Given that when the law changes to allow civil partnerships to be conducted on religious premises many Church of England priests and parishes will want to conduct such ceremonies, would it not be better for the Church of England to do what it did when it first allowed the remarriage of divorcees in church, and allow individual priests and parishes to make the decision?
Tony Baldry: In fairness, I would contend that the Church of England, led by its bishops, has to be free to determine its own stance on matters of doctrine and ethics. The Government have said that the new option to register civil partnerships in places of worship must be entirely voluntary. That means that those who think that the Church of England should opt in need to win the argument within the Church.
What the House of Lords committee said:
This instrument is drawn to the special attention of the House on the grounds that it gives rise to issues of public policy likely to be of interest to the House.
1. The Equality Act 2010 (“the 2010 Act”) amended the Civil Partnership Act 2004 to remove the prohibition on religious premises being approved for the registration of civil partnerships. The framework for the approval of premises for marriages and civil partnership registrations is set out in the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 (“the 2005 Regulations”). These Regulations amend the 2005 Regulations and establish the procedure for religious premises to be approved for civil partnership registrations (but not civil marriages).
2. The Explanatory Memorandum (“EM”) says that the provision in the 2010 Act is entirely permissive and religious organisations will not be obliged to host civil partnership registrations if they do not wish to do so (EM paragraph 7.2).
3. The Government ran a public consultation on the proposal which closed on 23 June 2011 and received 1,617 responses (EM paragraph 8.1). The EM says the majority of the responses were objecting to the introduction of this proposal on principle rather than focussing on the detail of the consultation which was the practical arrangements to put in place the changes to the approved premises scheme (EM paragraph 8.2).
4. The Committee has been made aware of an opinion prepared by Mark Hill QC on the Regulations and this has been made available on the Committee’s website. The Committee has also received submissions from the ‘Evangelical Alliance’, ‘The Christian Institute’ and ‘CARE’ which raise a number of concerns about the instrument, in particular whether it will achieve its intended purpose. These too are available on the website. The concerns raised by ‘Evangelical Alliance’ include:
- Many independent churches operate in buildings they do not own, and officials for such a denomination may try to register all its premises, leaving evangelical ministers in a very difficult position; and
- If a church itself is registered but the minister or congregation refuses to host a particular civil partnership, they are vulnerable to legal action by the couple concerned.
The concerns raised by ‘The Christian Institute’ include:
- That the Regulations do not offer sufficient legal protection to churches that do not wish to host civil partnerships;
- Combined with the public sector equality duty, the Regulations raise the prospect of churches being refused the right to register marriages at all, if they will not also register civil partnerships; and
- The complexities of the different types of church structure are not properly accounted for in the Regulations.
5. ‘CARE’ argue that the Regulations do not achieve the stated purpose of advancing religious liberty by enabling places of worship that do wish to host civil partnerships to do so, whilst not obliging any place of worship that does not wish to host civil partnerships to do so.
Updated again Monday evening
A High Court judge has ruled that a Roman Catholic bishop may be held vicariously liable for the acts of one of his priests, even though the priest is an office holder rather than an employee. There are reports that the ruling will be appealed.*
The full text of the judgment is available here (PDF).
A good explanation of the case by Adam Wagner at UK HumanRights Blog Bishop can be vicariously liable for priest’s sex abuse, rules High Court
Press reports:
Guardian Riazat Butt Catholic church can be held responsible for wrongdoing by priests
BBC High Court rules Catholic Church liable over priests
Independent Jerome Taylor Catholic church liable over priests
Channel 4 News Catholic church liable for priests charged with abuse
Updates
Neil Addison has written about this case at Religion Law Blog under the headline Catholic Bishops and Vicarious Liability for Priests.
The RC Bishop of Portsmouth, Crispian Hollis, issued a statement, available here as a PDF, or over here, which inter alia made clear that no decision had yet been taken about whether or not to appeal this decision.
Amended Monday morning
The Government Equalities Office has published its response to the consultation held on this subject. The written ministerial statement is recorded here.
The document includes a copy of the draft regulations which will be laid before parliament shortly.
Download the full document via this link (PDF 776k)
Note The document published at the above link on 2 November was replaced by a revised version on 4 November. The GEO press office has confirmed that this was to correct a minor error.
From the Introduction:
1.1 Following a listening exercise held last year by Lynne Featherstone MP, Minister for Equalities, with a range of faith and lesbian, gay and bisexual (LGB) groups, the Government announced on 17 February 2011 its intention to remove the legal barrier to civil partnerships being registered on religious premises by implementing section 202 of the Equality Act 2010.
1.2 Making this change will allow those religious organisations that wish to do so to host civil partnership registrations on their religious premises. This voluntary provision is a positive step forward for both LGB rights and religious freedom.
1.3 The Government published a consultation document on 31 March 2011, seeking views on the practical arrangements necessary to implement this change. The consultation ran until June 23 2011. This document provides a summary of the responses received during the consultation.
1.4 1,617 responses to the consultation were received. Of these, 343 responses were on the official pro forma which addressed each question in turn and 1,274 were responses by email or letter. Of those submitting the official pro forma, 145 were from organisations and 198 from individuals.
1.5 All responses were gratefully received and individually considered by the Government Equalities Office.
1.6 A copy of the draft regulations to implement the proposals consulted on is included as part of this document and reflects the many useful and constructive responses received during the consultation period. These regulations will be laid before Parliament shortly so that they are able to come into force by the end of 2011, subject to the will of Parliament…
The official Church of England response to the consultation was reported previously, see Registration of Civil Partnerships in Religious Premises from June.
At that time, the official press release said:
“That means that there needs to be an ‘opting in’ mechanism of the kind that the Government has proposed. In the case of the Church of England that would mean that its churches would not be able to become approved premises for the registration of civil partnerships until and unless the General Synod had first decided as a matter of policy that that should be possible.”
Yesterday the following official Church of England response was issued:
We will study the draft regulations as a matter of urgency to check that they deliver the firm assurances that have been given to us and others that the new arrangements will operate by way of denominational opt-in. If Ministers have delivered what they said they would in terms of genuine religious freedom, we would have no reason to oppose the regulations. The House of Bishops’ statement of July 2005 made it clear that the Church of England should not provide services of blessing for those who register civil partnerships and that remains the position. The Church of England has no intention of allowing Civil Partnerships to be registered in its churches.
The Church of England website has this page: Civil Partnerships.
The Primus of the Scottish Episcopal Church has now written on this subject.
See his article in the Scotsman The Most Rev David Chillingworth: A secular state should be prepared to defend religious freedom and his article on Thinking Aloud Church, state and the secular society.
…The suggestion has been made that the Scottish Government does not have a mandate to introduce legislation which is of such fundamental significance for our society. The implication is that these are “non-negotiable” areas. If the Scottish Government was proposing to legislate to enshrine in law discrimination on the grounds of gender, sexual orientation, colour or race, I would publicly oppose their moral right to do so. But that is not the nature of these consultation proposals.
So what does this say about the relationship of church and state in modern society? I have often said that I am a supporter of the secular state because it sustains a proper separation between legislature, judiciary and church.
In my Irish background, I have experienced both the confessional state which was the Irish Republic in my childhood and the Northern Irish mirror image – the sabbatarian “lock up the playgrounds on Sunday” society. Neither was healthy. A secular state should defend religious freedom – but it will not make any assumptions about religious faith nor defer to it.
If, following the consultation period, the Scottish Government and parliament feel that they should legislate in this way, I believe that it is their right to do so. It is clear that there would be an “opt-out” protection for those who cannot accept this. Churches and faith groups would have to decide whether they wished to use or to stand outside the provisions of such legislation…
This has been reported also in the news columns of the Scotsman as Gay marriages backed by Episcopal Church* which is a most perverse interpretation of what the Primus has said. Which was this:
IN THE Scottish Episcopal Church, we’re thinking about our response to the Scottish Government’s consultation on same-sex marriage and other related issues. The definition of marriage set out in our Canons is that, “marriage is a physical, spiritual and mystical union of one man and one woman”. That is the position of our church. It’s a difficult issue for us – as it is for all churches and faith groups. We have among our membership people who feel passionately that change is needed – and those who feel equally strongly that we should resist any attempt to broaden society’s understanding of marriage. The consultation period is very short. Among the things we shall say will be that if – and it’s a big “if” – we were to consider changing our canonical definition of marriage, that would require a two-year process in our General Synod, the outcome of which could not be predicted with any certainty.
We haven’t got involved in public debate about this. We’ve been asked for our view and we shall give it in a considered manner – believing that the time for public debate comes later…
* The Scotsman later changed its online headline to read Episcopal Church considers changing stance on gay marriages. Which is less of a stretch.
Both the UK government and the devolved Scottish government are considering legislative changes to allow civil same-sex marriages.
This post by Adam Wagner at UK Human Rights Blog summarises the current legislative situation in both jurisdictions: Gay marriage on the way… but not quite yet.
…The Prime Minister said in his speech that “we’re consulting on legalising gay marriage.” In fact, to the annoyance of some campaigners, the consultation was announced by the Equalities Minister last month but will not begin until March of next year. According to gay news website Pink News, the Prime Minster personally intervened to ensure the law is changed “within the lifetime of this parliament“, but Liberal Conspiracy doubts whether this is now practically possible. By contrast, a Scottish consultation on gay marriage launched in September…
The Scottish Government’s consultation - which also covers the issue of civil partnership registrations taking place on religious premises in Scotland - is already in progress, see The Registration of Civil Partnerships Same Sex Marriage - A Consultation.
This consultation paper seeks views on the possibility of allowing religious ceremonies for civil partnerships and the possible introduction of same sex marriage…
…The Scottish Government is choosing to make its initial views clear at the outset of this consultation. We tend towards the view that religious ceremonies for civil partnerships should no longer be prohibited and that same sex marriage should be introduced so that same sex couples have the option of getting married if that is how they wish to demonstrate their commitment to each other. We also believe that no religious body or its celebrants should be required to carry out same sex marriages or civil partnership ceremonies…
Objections to this proposal have been voiced strongly. In particular:
Archbishop Mario Conti issues Statement on marriage
Bishop Philip Tartaglia; “same sex ‘marriage’ is neither warranted nor needed”
And most recently, Former SNP leader calls for gay marriage referendum.
There have been objections to the objections too. Most notably from the Provost of St Mary’s Cathedral, Glasgow, who preached this sermon last Sunday.
…It vexes me greatly to say so in public, but at such a time as this, there seems no alternative but to speak up. The behaviour of our brothers, the Roman Catholic Bishops in recent days, has been so unpleasant and so ill judged that it risks harming the good influence of the whole Christian community.
To behave as though bishops carry some kind of block vote to Holyrood, to threaten politicians and to decry those who want access to the dignity of marriage as unnatural…. to say these things seems to me to go too far.
Such comments from the leaders of the Roman Catholic church have left me feeling embarrassed as a Christian. There is a risk that all of the churches will appear to be out of touch, arrogant, conceited and rude. We don’t all have to agree but we are all called to behave charitably and there has been an absence of love in this relentlessly bitter campaign and it diminishes us all…
This led to news coverage in several places, including The Times (not available online without subscription) which ran a story with extensive quotes from the sermon under the headline Catholic views on gay marriage ‘unpleasant’.
And Channel 4 News hosted a discussion on the general topic (not specifically related to Scotland) which you can see here: Is Britain divided over the issue of gay marriage?
This morning’s papers are reporting that the UK government will begin a formal consultation on equal civil marriage for same-sex couples with a view to making the necessary legislative changes before the next general election.
Alan Travis in The Guardian Gay and lesbian marriage to be considered in spring legal review
“Consultation will only cover civil marriage for same-sex couples, not religious weddings – nor heterosexual civil partnerships.”
Christopher Hope in The Telegraph Gays to be given right to marry
“Plans to give same-sex couples the right to marry will be published next year, ministers have announced.”
Jonathan Brown in The Independent Hope for new law to allow gay marriage
Daniel Martin and Tim Shipman in the Mail Online Gay marriage ‘to be made legal in Britain by 2015’
Gavin Cordon in The Scotsman Same-sex marriage may be on statute book soon
Third Sector reports: Charity Commission publishes further guidance on the Equality Act.
Equality Law has Charity Commission issues new Equality Act guidance.
New guidance has been issued by the Charity Commission which sets out its views on the application of the new charities exception in the Equality Act and the circumstances in which a charity may restrict its benefits to a group defined by reference to a protected characteristic.
The Charity Commission advice is here: Equality Act guidance for charities: Restricting who can benefit from charities .
This may be of interest to those who have been following the case of Catholic Care.
The Church Times has a report by Pat Ashworth Nurses win abortion battle.
The first part of this deals with the case reported here: Equality Act applied in abortion case.
The second part deals with the EHRC intervention: Equality Commission reveals its views on 4 cases at the European Court. This finishes with a quote from me, which unfortunately got shortened in the editing process. The full quote reads as follows:
Many observers will welcome the EHRC’s suggestion that the rights of Eweida and Chaplin, under Article 9(2) of the European Convention on Human Rights to manifest their Christian beliefs, were not adequately considered. It is unclear why claims such as theirs ever came before the courts at all.
However, the EHRC’s view that the domestic courts came to the correct conclusions in the cases of Ladele and McFarlane will be very unwelcome to those who have campaigned so vigorously and so long on their behalf. Most employment lawyers though will breathe a sigh of relief that common sense has again prevailed.
Back in June, we noted that a Church Times leader had said this about that Legal Opinion, which was first reported much earlier in May.
In May, our view was a negative one, since the document listed several reasons why the appointment of a gay bishop could be blocked. This week’s positive spin has not changed our opinion. As the leaders of the “gay-led” Metropolitan Community Church in Manchester wrote to Dr Williams this week, “We note that [unlike a gay candidate] heterosexual candidates for bishoprics are not asked to repent of any sexual activity with which the Crown Appointments Commission may be uncomfortable.” More than one serving bishop has said that he would have considered it an impertinence had he been asked about his sexual history.
The legal advice has no more weight now than before it was circulated to Synod members. It was not approved by the Bishops when they discussed it in May, not least because, to many, the brief was not how to remove discrimination within the Church, but how to continue it untroubled by the law.
The full text of the letter to Rowan Williams from MCC leaders mentioned above (and which was published here) is copied in full below the fold.
Dear Archbishop Rowan,
As leaders of the lgbt-led Metropolitan Community Church in the United Kingdom we wish to publically voice our dismay at the legal advice which has been given to the Church of England regarding the possibility of openly gay men being consecrated as bishops.
We understand that the legal advice suggests that there should be no bar, per se, to gay men serving as bishops provided that they repent of any same sex activity before they entered the priesthood, have lived by the requirement to be celibate since ordination and promise to continue to be celibate.
We feel that the spectacle of the Church of England trying to avoid complying with the law is unedifying and betrays a deep unease about the wonderful diversity of human sexuality. We note that heterosexual candidates for bishoprics are not asked to repent of any sexual activity with which the Crown Appointments Commission may be uncomfortable. We also note that Jeffrey John, an outstanding priest and leader of the Church of England, has publically stated he remains celibate out of fidelity to your church’s teaching yet he was still blocked from preferment. Even when we keep your rules, we’re still discriminated against.
We also think the policy of requiring celibacy will simply make the Church of England look even more ridiculous and open yourselves up to the most dreadful kind of casuistry as people wonder what, exactly celibacy requires. Could, for example, a gay bishop kiss his partner? Does the bishop and his partner have to sleep in separate rooms in the episcopal palace, or would twin beds in the same room suffice? If twin beds are acceptable what would be a “celibate” distance between the beds – 5 feet, 10 feet, or opposite ends of the room? Do any lapses in this celibacy rule have to be reported and, if so, to whom? The Archbishop of the Province? Her Majesty The Queen? The Prime Minister? The Diocesan Synod or just the local press?
The failure of the Church of England to embrace the reality of the diversity of human sexuality repels people from the wider Church as we are all deemed to be intolerant.
We are an lgbt-led church, yet we talk far more about mission than we do about sexuality. We commend this approach to you. In an age where many people are “spiritual but not religious”, where society is increasingly open to lesbian and gay people and where there is great hunger for authentic spirituality it is sad to see the energy and resources of the Church of England be used to avoid the provisions of the Equalities Act.
Yours Sincerely,The Reverends Andy Braunston, Kieren Bourne, Jane Clarke, Catherine Dearlove, Chris Dowd, Debbie Gaston, Sharon Ferguson, Dwayne Morgan, Maxwell Reay, and Ruth Scott.
The Equality and Human Rights Commission has published Legal intervention on religion or belief rights: seeking your views.
Last month we announced that we had applied to intervene at the European Court of Human Rights and we have now been granted permission to do so.
We are considering using the four cases already before this Court as a platform to advise on and clarify the interpretation of human rights laws. We are seeking your views on our proposed submission on the human rights elements of the four cases claiming religious discrimination, and separately, whether the concept of reasonable accommodation has any useful practical application in cases concerning the manifestation of religion or belief…
And there is a 6 page consultation document (.doc)
The essence of their position is this:
We propose to intervene in:
• Eweida and Chaplin on the basis that the Courts may not have given sufficient weight to Article 9(2) of the Convention.
• Ladele and Mcfarlane on the basis that the domestic courts came to the correct conclusions.
And
We had suggested that our intervention might put forward the idea of extending the concept of reasonable accommodation beyond disability. However, we also know that this idea needs more careful consideration than the timetable for the European Court of Human Rights allows.
So they won’t now be doing that, but they are seeking views on the subject.
Neil Addison reports on his Religion Law Blog about a new use of the Religion and Belief provisions in the Equality Act 2010.
See Abortion and the Equality Act.
…From the facts it was clear that the Hospital had not recognised or accepted that the Nurses had a legal right to refuse to participate. EMA has been held by the High Court, in the BPAS case mentioned, to be an Abortion procedure under the Abortion Act 1967 and as such the Nurses had an absolute right to refuse to participate under the conscientious objection provisions of s4 of the Abortion Act.
Abortion Act 1967 - 4. Conscientious objection to participation in treatment
(1) Subject to sub-section (2) of this section, no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objectionTMLC wrote to the hospital stating that the Nurses were refusing to work in the Clinic and quoting their rights under s4 Abortion Act. The letter also stated that their belief in the sanctity of life from conception onwards was a philosophical belief protected under the Equality Act and therefore any attempt to pressure them into participating in the Abortion Clinic or to suggest that their refusal would affect their career would be illegal under the Equality Act 2010.
This particular interpretation of the Equality Act has never, to my knowledge, been argued before however since the Courts have accepted that the philosophical belief in Global warming is protected under Equality legislation, see Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 I could see no reason why belief that human life begins at conception should not be equally protected.
The reason for including the Equality Act in the letters to the Hospital was in order to provide the Nurses with additional protections. Section 4 of the Abortion Act though it is clear does not provide any enforcement mechanism and also does not protect a conscientious objector from being pressurised to participate in Abortion, held back in their career due to their pro-life belief or indeed not employed in the first place. However using the Equality Act as well as s4 of the Abortion Act meant that the Nurses would be able to claim Harassment, Victimisation or Discrimination in an Employment Tribunal if they were put under pressure at work because of their reliance on the conscientious objection protection in s4…
Gavin Drake has some further comments on this.
In June we reported that Catholic Care had been refused leave to appeal by the Charity Tribunal, but noted that the agency’s solicitor had said:
the charity could appeal to the Upper Tribunal for a review of the charity tribunal’s decision not to allow the appeal. He said trustees had not decided whether to do so.
And it is now reported that they have done this. See this from Third Sector Catholic Care given leave to appeal again.
…After a further charity tribunal ruling in June that it would not accept an appeal against the decision, Catholic Care has appealed to the Upper Tribunal, which has the same status as the High Court.
The Upper Tribunal confirmed this week that it would allow the appeal.
Benjamin James, a solicitor at the law firm Bircham Dyson Bell, acting on behalf of Catholic Care, told Third Sector the charity would argue in its appeal that the charity tribunal had failed to properly perform the balancing act required to determine whether discrimination was reasonable given that, according to the charity, the alternative was closing its adoption service.
James said the charity would attempt to overturn the charity tribunal’s ruling that it had not provided sufficient evidence to show that losing funds from the Catholic Church would force it to close the service. The tribunal had suggested the charity could raise money from other sources…
The historical background to this case can be found in this excellent article in Caritas from last October, by Michael King and Fraser Simpson Equality v religious belief. They then go on to comment:
Alternative approaches
The solution followed by three agencies, covering seven dioceses in England & Wales has been to embrace the regulations, both in technical detail and in spirit, by pursuing an open policy with regard to potential adopters.
The result has been that non-discriminatory agencies are simply carrying on doing what they have done before, having regard for the best interests of the child.
Some commentators agree that this has been achieved without undermining or jeopardising the Catholic nature of the adoption agency involved. Although some bishops and clergy may not feel able to sit on the boards of such agencies, it is argued that this does not necessarily alter their Catholic heritage, charism and ethos. It must be remembered that, at law, faith-based adoption agencies are not usually branches of a particular religious body, but are generally autonomous charities in their own right, and so the question of the interests of those whom they are set up to serve has to be uppermost in the minds of the trustees, whatever their decision may be.
Some church leaders have suggested that, going forwards, funding of agencies might be withdrawn and leases over diocesan properties might not be renewed. Agencies that do follow the open route must be aware of these risks and try to mitigate the potential harm by positive dialogue with dioceses and their people. They might perhaps draw comfort from the fact that there are many Catholic charities in existence, dealing with education, the care of disabled or elderly people or rehabilitation of sufferers from addiction, which have no clerical trustees but are nevertheless accepted as carrying out the wider mission of the Church.
The future
All of the Catholic adoption agencies have deservedly high reputations for the work which they have pursued in the best interests of the children whom they were established to serve and one hopes that in one way or another this work will continue.
However, it is in our respectful view possible for those agencies, which after careful thought have adopted an open policy, to comply with the regulations and yet to think of themselves as pursuing the mission of the Church towards children in need of adoptive parents.
The most recent report from Caritas also notes this:
Sarah Clune of law firm Stone King told Caritas: “An interesting point to note is that in its judgment of 26 April 2011, the Tribunal referred to the Public Sector Equality Duty (s.149 Equality Act 2010, which has since come into force), which imposes a duty on public bodies to pay due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity.
Whilst not relevant to the Tribunal’s decision, the Tribunal stated that even if the charity were permitted to discriminate in reliance upon s.139 of the Equality Act 2010, the duty is likely to impact, in due course, on the willingness of local authorities to work with a charity which discriminated on the grounds of sexual orientation in respect of adoption placements.”
Two more developments in the previously reported appeal to the European Court of Human Rights of four recent cases involving discrimination in the UK, and the announcement by the Equality and Human Rights Commission that it would intervene in the case. That development was recorded here (12 July), and then here (14 July).
Now the Christian Institute is reporting that Angela Mason, one of the EHRC commissioners has said:
“The commission has already decided not to put forward ‘reasonable adjustment’ arguments if we do continue with our intervention.”
Their source is Pink News which carries further comments from Ms Mason:
“The legal issues are complex but it is a question of harm. And we have to be very careful when the issue is of manifesting religious belief that is about discrimination.”
When asked whether she had been consulted before the EHRC made its announcement, she said: “A press release is a press release. I don’t think it fully represented the opinion of the commission.
“It is important to carefully consider all the points and arguments that have been made and take them into account before we decide to intervene. We haven’t actually been given permission to intervene yet and there are sensitive and conflicting issues.”
Speaking about her personal views, she added: “The balance of reasonable adjustment does not deal in the cases of Ladele and McFarlane.
“If we go back to the issue of harm, there is less harm involved in the wearing of crosses than the view that gay men are less equal.”
The second development is the National Secular Society has announced that it is also going to intervene in the case. See NSS given leave to intervene at ECHR in religious discrimination cases.
Savi Hensman has made a detailed analysis at Ekklesia, see An ill-judged intervention from the Equality and Human Rights Commission.
…If the EHRC were to succeed, Christianity’s reputation would be further damaged among those who come to associate it with institutionalised prejudice and abuse of power.
Christians too could find themselves on the receiving end of ‘conscientious’ discrimination. For instance, at present, if a church were vandalised, a police officer sent to the scene would be expected to do his job sensitively and diligently. This would be so even if he happened to be an ardent atheist in his private life who believed that religion was the source of most of the world’s evil. But if he believed that his belief could override his duty, he might refuse to go.
What is more, discrimination against Christians might appear increasingly justifiable, especially among those who do not know that – in practice – many churchgoers are reasonably sensible, accepting people, very different from the most vocal campaigners against ‘persecution’…
A rather different view comes from Alasdair Henderson at the UK Human Rights Blog. See A leap of faith?
…The way forward which the Commission proposes is the concept of “reasonable accommodation” for employees’ beliefs (similar to the ‘reasonable adjustments’ duty employers have towards disabled people). This is an idea that was floated by Aidan O’Neill QC on this blog not so long ago. The EHRC gives an example in its press release of how this could work – “If a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota. This would potentially be reasonable and would provide a good outcome for both employee and employer.”
…The EHRC’s announcement has been welcomed by those who felt the Commission had failed to adequately support the right to religious freedom in the past, or even been anti-Christian. However, it has also provoked fierce criticism from some quarters. Some gay rights activists are concerned that this signals a shift in the Commission’s views that might negatively effect gay equality, given the particular difficulties of potential clashes between protection from discrimination on grounds of sexual orientation and protection of religious freedom (see our post on this subject here).
…Rather more strangely, the EHRC’s announcement has been heavily criticised by secularist and humanist lobby groups like the British Humanist Association. It is difficult to understand why such groups have any objection, since any argument by the EHRC that there should be accommodation for employees’ beliefs would apply not just to Christians, but equally to people of all faiths, including humanists and atheists.
In any event, it will be interesting to see how these cases, and the EHRC’s involvement, develops in the coming months. There are some important questions that will require significant thought. Is an employee’s religious belief really comparable to disability, such that it can be analysed and approached in the same way? How could employers be helped to accommodate employees’ religious beliefs while at the same time ensuring that there is no discrimination in the provision of services to the public? Whatever the outcome, hopefully this move by the EHRC will produce more light and less heat in a particularly difficult and sensitive area of human rights and equality law.
Colin Coward has posted at Changing Attitude about The problem with (gay) bishops and the CNC.
I want to revisit Colin Slee’s posthumously published memorandum about the Southwark CNC process in the light of the subsequently published paper Choosing Bishops – The Equality Act 2010 issued by the Legal Office at Church House and the conversations I had at General Synod in York.
These documents were both originally leaked to the Guardian in May and reported there by Andrew Brown in this article: Church of England tied in knots over allowing gay men to become bishops. (Earlier TA article is here.)
Andrew reported then:
…The document reveals shouting matches and arm-twisting by the archbishops to keep out the diocese’s preferred choices as bishop: Jeffrey John, the gay dean of St Albans, and Nicholas Holtam, rector of St Martin-in-the-Fields in central London, whose wife was divorced many years ago. Eventually Christopher Chessun, then an assistant bishop, was chosen.
John, an able theologian and gifted preacher and pastor, highly regarded in the diocese and a friend of Williams, is celibate but in a longstanding civil partnership with another clergyman. He was forced by the archbishop to stand down after being appointed suffragan bishop of Reading eight years ago, following an orchestrated protest campaign by evangelicals. Holtam’s promotion had been blocked because of his wife’s divorce but he has since become bishop of Salisbury.
At the same time, the Church Times also reported this story, focusing more on the Legal Opinion, in this report: House of Bishops divided on keeping out homosexuals.
Colin Coward goes on to say:
…Colin [Slee]’s memorandum revealed information about the culture of the CNC process and the attitude towards two outstanding candidates for the episcopate, one of whom, Nick Holtam, has now been appointed to Salisbury, thanks be to God. The other, Jeffrey John is now the subject of an attempt to permanently block his preferment by the position outlined and the relevant factors listed in the Equality Act document. It is designed specifically to block any further attempt to nominate and appoint Jeffrey.
Colin Slee’s memorandum provides an inside perspective on the effect of the secrecy of the CNC process. Colin complied with the rules but was as open as possible with the candidates he nominated and with the Archbishop of Canterbury. He wrote to both Jeffery John and Nick Holtam telling them he had nominated them as mandatory candidates for Southwark in March 2010. The Archbishop replied but did not say, please don’t nominate either of them. Other people had nominated both candidates.
I have subsequently learnt that both Jeffrey and Nick have been deliberately blocked, one for Southwark and the other for Chelmsford. Who does the blocking? Lambeth staff at the Archbishop’s request?
Three Questions were asked at General Synod last Friday about the Legal Opinion issued as GS Misc 992. They were answered together.
Question 7
Mrs Sue Johns (Norwich) to ask the Chairman of the House of Bishops:
Q. Has the House considered the issues addressed in GS Misc 992?
Question 8
The Revd Canon Simon Butler (Southwark) to ask the Chairman of the House of Bishops”
Q. Given the legal opinion offered in GS Misc 992 (‘Equality Act’) can the House indicate the following:
a. Which individuals or bodies are responsible for weighing and, if appropriate, adopting this opinion as policy;
b. The process by which this opinion shall be weighed and, if appropriate, adopted;
c. How these deliberations will be communicated to this Synod and candidates for episcopal appointment?
Question 9
The Revd Dr Rosemarie Mallett (Southwark) to ask the House of Bishops:
Q. As we have in effect debated paras 14-18 of GS Misc 992 regarding divorce and remarriage at the February Synod, what process does the House envisage to ensure that a debate on the complete paper takes place, recognising that the circulation of a paper to Synod by the Legal Office does not create policy?
The Bishop of Norwich to reply:
A. With permission, I shall answer this and the related questions from Simon Butler and Rosemarie Mallet together.
The Legal Office note was produced in December and made available to members of successive Crown Nominations Commissions and to all diocesan bishops in connection with episcopal appointments. It explains the implications of the legal framework created by the Equality Act so that those making appointments understand the parameters within which they now have to operate. It offers no policy advice. The relevant policy documents are the well known texts referred to in the document, to which must now be added last Friday’s modest supplement from the House.
The policy issue on civil partnerships is now for the review of the 2005 statement and the Church’s stance on same sex relations more generally will be addressed in the consultation document that the House will produce in the light of the listening process in 2013.
Supplementary Question from Simon Butler:
While I welcome the House of Bishops clarity that GS Misc 992 isn’t the policy of the Church, nevertheless it is the legal opinion of the church’s lawyers. Can the Bishop confirm then what freedom the House of Bishops has to depart from this legal opinion?
A. Well, I think what the legal opinion seeks to do is to explain for those involved in episcopal appointments what the law permits. It simply refers back to formal statements of the Church of England’s policy, including statements by the House of Bishops on divorce and civil partnerships, and of course that’s been amended in the light of what the synod decided last February, but it actually offers no policy advice. And the House of Bishops statement is about policy reviews, not prejudging their outcome.
Supplementary Question from Rosemarie Mallett:
Again, we thank you for the clarity of your answer. As part of the review process that will be now ongoing, can we be assured that the House of Bishops will consult with members of the House of Clergy and the House of Laity, before bringing the final consultation document to synod in 2013, so that we have a truly dialogic as well as listening process between now and 2013.
A. Well I think that what we hope for in the 2013 review, which will cover matters related to human sexuality, is to try and create an account of what’s gone on in the listening process, which has included clergy and laity over the course of the past decade or more. And there is a sense in which quite a lot of that work of course has already included clergy and laity, and how that review group will go about its work I can’t say, but it would be very surprising if it did not include consultation with clergy and lay people, to produce the sort of document that we hope would be representative of the mind of the church as a whole.
The EHRC has issued a clarification of its intentions in this Q and A, which has been reproduced by the Equality and Diversity Forum. See EHRC intervention in cases of religious discrimination. This inlcudes the following passage:
The purpose of our intervention is to explain that the law should consider how it may give better respect for religious rights within the workplace than has hitherto been the case, without diminishing the rights of others. We want to change the view that there needs to be an either/or situation. The spotlight and focus is placed too frequently on conflict in place of dialogue that could help identify other acceptable workable solutions.
The accommodation of rights is not a zero sum equation whereby one right cancels out or trumps another. We believe that if the law and practice were considered more widely, then in many situations there would be scope for diverse rights to be respected.
Our view is that careful, sensitive and balanced treatment and consideration is discouraged by the approach taken by the courts to date. In turn, this hinders the development and dissemination of better practice amongst those with duties. We believe that where possible ways should be found within the law of promoting the resolution of disputes at an early stage, without protracted, costly, complex legal proceedings that irretrievably damage relations between the parties.
Philip Henson on Employment Law Update gives an extensive background briefing in The Equality and Human Rights Commission calls for ‘reasonable accommodation’ for religion or belief.
More comment articles expected soon. Meanwhile, this earlier TA article indicates the views of Trevor Phillips, chair of the EHRC.
Heresy Corner has Equality Commission outrages gays and humanists.
The Church Times carries a news report by Ed Beavan Courts have set bar too high for Christians, says EHRC.
Updated Thursday morning
The Equality and Human Rights Commission has applied to the European Court of Human Rights to be allowed to intervene in several recent cases concerning religious discrimination in the workplace.
The EHRC has issued this press release: Commission proposes ‘reasonable accommodation’ for religion or belief is needed.
Judges have interpreted the law too narrowly in religion or belief discrimination claims, the Commission has said in its application to intervene in four cases at the European Court of Human Rights all involving religious discrimination in the workplace.
If given leave to intervene, the Commission will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.
It will say that the courts have set the bar too high for someone to prove that they have been discriminated against because of their religion or belief; and that it is possible to accommodate expression of religion alongside the rights of people who are not religious and the needs of businesses…
The National Secular Society is unhappy, see Equality Commission determined to push religion up the hierarchy of rights.
So is the British Humanist Association, see Equality Commission’s intervention in Christian legal cases ’wholly disproportionate’.
And Stonewall is deeply disturbed, see Stonewall response to EHRC statement on religious ‘discrimination’ cases.
The Christian Institute is however very pleased, see Equality body: Courts have failed Christians and also Humanists and gays fear EHRC intervention.
Updates
Some further reactions:
Christian Concern Equality Commission decides Christians have the right to follow conscience
Andrew Copson at Cif belief The EHRC’s stance on religious rights undermines its credibility
Patrick Strudwick The Equality and Human Rights Commission’s choice is beyond belief
Savi Hensman has written about the presidential address given on Saturday by the Archbishop of Canterbury.
The Church is “the visible sign of a faithful God”, declared the Archbishop of Canterbury. He was speaking at the Church of England’s General Synod on 9 July 2011, in York. He expressed the view that those present were “entrusted with the strength not to abandon and the joy of knowing ourselves not abandoned.”
Rowan Williams made many valuable points in his presidential address to Synod, the Church of England’s key decision-making body. Yet his lack of acknowledgement of the Church’s mixed record raises some concerns…
Changing Attitude has published some comment about the note sent to synod members from the House of Bishops about the Equality Act and the appointment of celibate people in a civil partnership as a bishop.
See Bishops in the church and the Equality Act.
The House of Bishops sent a note to Synod members about the Equality Act and the appointment of celibate people in a civil partnership as a bishop. The legal advice is discriminatory and unworkable. No priest who is gay, let alone in a civil partnership, is going to reveal their sexual orientation when confronted by five such intrusive questions.
The legal note will simply encourage people to stay in the closet, maintaining secrecy about their sexual orientation for all gay (and eventually, lesbian) clergy who are nominated for episcopal office…
Included in the statement issued just now by the House of Bishops is the following paragraph (emphasis added):
“Among the matters to be considered in the review of the 2005 Statement there is one of some importance which the House did not address in advance of any experience of civil partnerships. This is whether clergy who have registered civil partnerships should be eligible for nomination to the episcopate. The House has concluded that it would be wrong to pre-empt the outcome of the review and that clergy in civil partnerships should not at present, therefore, be nominated for episcopal appointment. The House’s intention is to complete the review, which will need to take account of the legal analysis set out in GS MISC 992 (Choosing Bishops - the Equality Act) during 2012.
As regular TA readers will be aware, the Church of England recently issued “a note on the Equality Act prepared by the Legal Office in connection with episcopal appointments for members of Crown Nominations Commissions and diocesan bishops and their Advisory Groups”. This is the document numbered GS Misc 992.
In connection with this, I wrote last week to Church House to ask some questions about GS Misc 992. One question was this:
Third, there is the issue of being in a civil partnership as a specific item to be taken into account. See paragraph 29, second bullet, and also see paragraph 20, where this is distinguished ( by the conjunction “or”) from “a requirement related to sexual orientation”.
These wordings suggest that the authors of the opinion believe it is permissible to discriminate against a person who is in a civil partnership even if none of the other items listed in the document are applicable. I am at a loss to understand the legal basis for such a position, unless all married candidates are to be similarly discriminated against.
I received this in reply:
This was a piece of legal advice and the Legal Office stand by it as an accurate piece of analysis of the Equality Act and its application to the Church. It was produced to help those appointing bishops understand what they are and are not entitled to take into account within the law. In particular the Equality Act is quite explicit in making it clear that religious organisations can, in certain carefully defined circumstances, discriminate on the grounds of someone being in a civil partnership. The note offers no policy or operational advice on what appointment panel should do.
Following on from this announcement, the Sunday Times carried an advertisement for a new Communications Director which you can see here. Further information about the post can be found here and then here.
But what has attracted some attention, for example here, and over here, is the sentence in the advertisement that reads as follows:
This is no ordinary Communications Director job. We are looking for somebody who will share our values and whilst not necessarily an Anglican, is a practising Christian (this post is subject to an occupational requirement that the holder be a practising Christian under Part 1 of Schedule 9 to the Equality Act 2010 because of its representational role and its responsibility for maintaining a Christian ethos within the national Church, as one of its senior officers).
Now, this has been assumed by some people to be a reference to Clause 2 of Part 1 of Schedule 9. That clause is the one which contains all the exemptions relating to gender, marital status, sexual orientation and so forth.
However, I do not believe that is what they meant to reference. I believe the intention was to reference Clause 3 of Part 1 of Schedule 9. This reads (scroll down at the previous link):
Other requirements relating to religion or belief
3 A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work—(a) it is an occupational requirement,
(b) the application of the requirement is a proportionate means of achieving a legitimate aim, and
(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
This is the clause that transposes into the Equality Act 2010 the exemption formerly contained in The Employment Equality (Religion or Belief) Regulations 2003. This exemption was, and is, entirely separate and distinct from others which were formerly contained in the Sex Discrimination Act 1975, as amended and The Employment Equality (Sexual Orientation) Regulations 2003. All of these are now bundled into Clause 2.
So, why have other interpretations been put upon this advertisement? I think there are two causes.
The first is the febrile atmosphere which has arisen following the official publication of the (previously leaked) legal advice issued about Choosing Bishops - Equality Act 2010.
The second is the fact that during the passage of the Equality Act, Secretary General William Fittall gave evidence to a parliamentary committee in which he specifically cited this job as an example of a senior post, likely to be held by a lay person, which he considered should fall within the ambit of the Clause 1 exemptions. Here is what he said at the time. The context of his remarks was a Labour government proposal incorporated in the draft bill to modify the wording of the Clause 2 exemption to be more explicit about who was to be included. This was fiercely resisted by the CofE, and was the reason why a large number of bishops turned out to vote in the House of Lords in favour of an amendment which deleted the proposed changes. The amendment passed, and so the scope of the exemption today remains exactly what it was before.
It is therefore understandable that some would now be suspicious. And, if my interpretation of the intention to invoke only Paragraph 3 is correct, it might be helpful if future advertisements were worded more precisely.
The official CofE response to queries on this is as follows:
‘The occupational requirement that the postholder be a practising Christian means what it says, neither more nor less. Staff are appointed to senior positions in the national institutions of the Church of England by fair and competitive processes. They have to be able to show that they can serve it in all its diversity and operate its equal opportunities policies. Suggestions that appointments are made in pursuit of a particular cultural or partisan agenda are completely unfounded.’
Church of England press release:
The Church of England has today submitted its response to the Government’s consultation on Civil Partnerships in Religious Premises.
A Church of England spokesman said: “Given the decision that Parliament has already taken to amend the Civil Partnership Act 2004 in the Equality Act 2010, the response focuses on the need to assure that the forthcoming regulations continue to provide unfettered freedom for each religious tradition to resolve these matters in accordance with its own convictions and its own internal procedures of governance.
“That means that there needs to be an ‘opting in’ mechanism of the kind that the Government has proposed. In the case of the Church of England that would mean that its churches would not be able to become approved premises for the registration of civil partnerships until and unless the General Synod had first decided as a matter of policy that that should be possible.”
The full text of the submission that addresses the specific questions raised by the consultation is set out below.
Some key passages relating to whether the Church of England will allow its premises to be so used are copied below the fold (emphasis added).
Q2 and Q3: who will be required to give consent?
5. We agree that because governance structures in faith groups are complex and varied, the Regulations should reflect that diversity.
6. In the case of the Church of England the relevant national decision-making body is the General Synod. The two Archbishops are its presidents, and it comprises a House of Bishops whose membership includes all the diocesan and some suffragan bishops, and Houses of Clergy and Laity whose elected members represent, respectively, the clergy and laity of each diocese. The statutory functions of the General Synod include legislating in respect of matters concerning the Church of England (under legislative powers devolved by Parliament) and considering and expressing its opinion on other matters of religious or public interest.
7. The specified body for the Church of England should, therefore, be the General Synod and it should be named for that purpose in the Regulations.
———
Q 21: Other issues
The faculty jurisdiction
35. In English law, all parish churches of the Church of England and a number of other ecclesiastical buildings are subject to the jurisdiction of the consistory court of the diocese. This aspect of the court’s jurisdiction is called “the faculty jurisdiction”. It extends to controlling not only the making of physical alterations to a church building and to the introduction or removal of articles to or from the building, but also the uses to which a church building may lawfully be put with the consent of the bishop through his chancellor.
36. Any non-sacred use of a church building which is subject to the jurisdiction of the consistory court (other than a use which is expressly authorised by legislation) requires the authority of a formal permission - called a ‘faculty’ - from the consistory court in order for that use to be lawful.
37. The registration of civil partnerships in a church building would, as a matter of law, amount to a non-sacred use of that building. It would, accordingly, require the authority of a faculty. The regulations need therefore to be drafted in a way that leave no doubt that that they are without prejudice to the jurisdiction of the consistory court of the diocese.
Third Sector reports:
The charity Catholic Care has been refused permission to appeal against a ruling that it cannot exclude gay couples from using its adoption service.
That earlier ruling was reported here on 26 April: Charity Tribunal rejects appeal from Catholic adoption agency.
This latest ruling can be found at Decision on Application for Permission to Appeal (7 June 2011).
…In the document, Alison McKenna, principal judge of the charity tribunal, wrote: “I have concluded that the grounds of appeal before me do not identify ‘errors of law’ in the decision.
“In the circumstances, I conclude that there is no power for the tribunal to review its decision in this case and I have also, for the same reasons, concluded that permission to appeal should be refused.”
Benjamin James, a solicitor at the law firm Bircham Dyson Bell, acting on behalf of Catholic Care, told Third Sector the charity could appeal to the Upper Tribunal for a review of the charity tribunal’s decision not to allow the appeal. He said trustees had not decided whether to do so.
Press release from the Equality and Human Rights Commission: Religion or belief discrimination in Britain
A review of research evidence commissioned by the Equality and Human Rights Commission indicates there are different perceptions about the legal protections for religion or belief and about the level of discrimination towards different religions or beliefs.
Evidence in the report shows that people’s understanding of their rights around religion or belief is not always matched by recent changes to equality law. The Commission is concerned that this could be preventing people from using their rights…
View the report: Religious discrimination in Britain: A review of research evidence, 2000-10 by Paul Weller of the University of Derby.
(The Commission’s statistical briefing paper on Religion or Belief is also available.)
Read the interview with Trevor Phillips in the Telegraph: Trevor Phillips wades into debate on religion in modern society by Jonathan Wynne-Jones. This interview has provoked a lot of reactions from all sides, and I will add some further links to these later.
Some responses:
Evangelical Alliance Evangelical Alliance responds to Trevor Phillips on religious freedom and Trevor Phillips’ comments on freedom of religion and belief miss the point, says Evangelical Alliance
Christian Concern Equality Commission questions Christian ‘integration’
British Humanist Association Humanists call for EHRC Chair Trevor Phillips to apologise, following ‘sectarian and divisive’ statements
A Private Member’s Bill has been introduced into the House of Lords by Baroness Cox entitled Arbitration and Mediation Services (Equality) Bill.
To make further provision about arbitration and mediation services and the
application of equality legislation to such services; to make provision about
the protection of victims of domestic abuse; and for connected purposes.
The full text of the bill is available as a PDF file, and there are also explanatory notes.
Some news reports:
Guardian Bill limiting sharia law is motivated by ‘concern for Muslim women’
Telegraph Plans to curb influence of sharia courts to be unveiled
This bill has won support from an improbable alliance of lobbying groups:
Andrew Brown explains, in The state cannot curb sharia law alone.
A bill to limit the scope of courts is laudable, but sharia law’s discriminatory aspects must be undermined by Muslims.
He writes:
…What is politically interesting about this is that it represents an alliance of Christians and atheists along with what one might call normal secularists who just dislike institutionalised sexism and exploitation. The campaign against sharia law has long been confined to a leftwing atheist ghetto. Cox has broken it out of that. It’s to the credit of both parties that Keith Porteous Wood of the National Secular Society appeared next to an American Christian missionary at the launch of the bill yesterday.
There’s no doubt that the bill will be used by some people to stir up distrust and hatred of Muslims. But I don’t think that is in itself a good enough reason to oppose it. What it does is to make explicit the fact that Islam is practised like any other religion in Britain, under the rules that parliament makes…
According to a recent report in the Telegraph,
European judges have ordered ministers to make a formal statement on whether it believes Christians’ rights have been infringed by previous decisions in the British courts, which have repeatedly dismissed their right to dress and act according to their beliefs.
The move by the European Court in Strasbourg is because Christians who believe they have suffered discrimination for their beliefs are taking a landmark legal fight the court…
Their cases have been selected by the European Court as of being of such legal significance that they be examined further.
Once ministers have responded the court will decide whether to have full hearings on them.
You can read the two documents filed with the European Court of Human Rights first here and then here.
This analysis of the subject area by Philip Henson is very helpful: Discrimination on the grounds of religion or belief. Scroll down to Persecuted Christians? for his discussion of these four cases:
How many of you have forgotten about the “big four” – the cases of Lillian Ladele, Gary McFarlane, Shirley Chaplin and Nadia Eweida? What do these people all have in common? The answer is that they have all recently issued applications at the European Court of Human Rights (ECHR).
The European angle has been massively overlooked almost all legal commentators, but it is the ECHR which will be the final battleground in the struggle for a superior right.
The British Humanist Association had this comment: European Court of Human Rights considers hearing cases which demand more privilege for Christianity.
The Christian Legal Centre had: European Court to rule on Christian discrimination cases.
Updated Tuesday
The General Assembly of the (Presbyterian) Church of Scotland is today considering a report on Same Sex Relationships and the Ministry. The report, and several related documents can be downloaded from here.
This week the Church Times published an article about this written jointly by Andrew Goddard and Giles Goddard. The article, as published, is available at the moment only to Church Times subscribers. But a version of it has been published by Fulcrum and can be read at Wisdom from the Scots: The CofE and Same-sex Unions.
Pending an official web page to link to, here is a summary of what they decided.
Kelvin Holdsworth has written this explanation: What the Church of Scotland decided today.
Here now is the official press release, available as a PDF here.
Tuesday press reports:
The Scotsman has extensive coverage:
Kirk split looms as members vote to back gay ministers
Catalyst that started the great debate
Analysis: ‘A peculiar decision which is unlikely to satisfy anyone’
Leader: Kirk’s vote for gay clergy marks clear divide
BBC
Church of Scotland votes on gay ministers
Mood shift points to gay clergy for the Kirk
Remember this? Methodist minister ruled employee not office holder.
This week, it was announced that Methodist Church granted leave to appeal employment ruling.
The Methodist Church has been granted leave to appeal to the Court of Appeal against the judgement of an Employment Appeal Tribunal that Methodist ministers should be counted as employees and cases concerning them heard by Employment Tribunals. Methodist ministers have always been treated by the Church as office holders rather than employees.
Leave to appeal has been granted by the Court on the grounds that the appeal “has a real prospect of success on the basis of the submissions in the skeleton argument dated 14 April 2011. The state of the authorities on the key question of whether a minister of religion is not an employee is unclear and requires further consideration by the court following the case of Percy.”
This case may have significance for British churches other than the Methodists.
Updated
Last Sunday’s Observer newspaper carried an article titled Christian Legal Centre fights more than 50 religious discrimination cases by Jamie Doward and Seb Wheeler which discusses how this organisation is funded:
Questions have been asked about from where the centre – and its sister organisation, Christian Concern For Our Nation – obtain funding. Accounts show both organisations have little in the way of income.
Williams said all of the centre’s work was done on a pro bono basis by committed Christian lawyers and that what money it had came in small donations from more than 30,000 people who received its regular email updates. “We never ask clients for money,” she said. “Very often they fear losing their case and having to pay the costs of the other side. Part of our ministry is to ensure they are not burdened with that.”
Close observers of the centre believe it is adopting the tactics of wealthy US evangelical groups, notably the powerful Alliance Defence Fund, which, through its Blackstone Legal Fellowship, trains an army of Christian lawyers to defend religious freedom “through strategy, training, funding and direct litigation”.
The ADF, which according to filings had an income of almost $40m last year, is funded by prominent benefactors including Erik Prince, founder of the Blackwater private security giant, the Covenant Foundation, which is financed by a leading member of the Texas Christian right, James Leininger, and the Bolthouse Foundation, a charity that rejects evolution, insisting “man was created by a direct act of God in His image, not from previously existing creatures”.
The ADF has joined forces with the Christian Legal Centre and Christian Concern For Our Nation to launch the Wilberforce Academy in the UK, which aims to train delegates “for servant-hearted, Christ-centred leadership in public life” having equipped them “with a robust biblical framework that guides their thinking, prayers and activity in addressing the issues facing our society”. Several of its delegates have already gone on to work for the legal centre and Christian Concern.
Update Wednesday
Joshua Rozenberg has written for the Guardian website that Belief is not always a good thing in an advocate.
Should advocates believe in the causes they argue in court? Generally speaking, it’s a bad idea.
Barristers who own up to their profession at dinner parties are often asked how they can defend someone who is guilty of a crime. The stock answer is that it’s not the lawyer’s job to decide whether a defendant is guilty: that’s a matter for the court.
Of course, if your client tells you he committed the crime and instructs you to tell the court he didn’t, you must withdraw from the case: a lawyer must never mislead the court. But the advocate’s job is to put forward his client’s case as effectively as possible, however implausible it may seem. That’s well understood by the court; indeed it’s welcomed. What judges don’t like are advocates who are so committed to a case that they lose their objectivity.
These thoughts are prompted by an Observer report that the Christian Legal Centre has some 50 claims of religious discrimination on its books. Many of those that come to court are likely to be argued by Paul Diamond, the centre’s standing counsel.
Updated
The Charity Tribunal has today rejected the latest appeal filed by Catholic Care. For earlier reports on this long-running saga start here.
The tribunal’s own press release appears below the fold. The full text of the judgment can be downloaded here (PDF).
Jerome Taylor had this report in the Independent Catholic adoption charity appeal dismissed.
Kaye Wiggins had this in Third Sector Catholic Care loses tribunal appeal over gay adoption.
Other reports: Press Association, BBC News, and Guardian.
Comment from:
Religion Law Blog Catholic Care v Charity Commission
British Humanism Association No ‘opt out’ from equality law: Catholic adoption agency will not be able to discriminate against same-sex couples
Christian Concern Catholic Care forced to offer adoption services to homosexual couples
Stonewall Stonewall response to Charity Tribunal dismissal of Catholic Care’s appeal
Christian Institute RC adoption group loses gay couples appeal
Press Release from Charity Tribunal
1. This case concerned an appeal by Catholic Care (Diocese of Leeds) a charity, against the decision of the Charity Commission to refuse its consent to a change of charitable objects. The charity wanted to change its objects so as to bring itself within an exemption to the Equality Act 2010 and thus be allowed to refuse to offer adoption services to same sex couples.
2. The Tribunal has dismissed the charity’s appeal for the reasons given below.
3. This matter has had a complicated procedural history and has been affected by changing legislation over the past 2 years or so (paras 2-5) The test the Tribunal had to apply was under s. 193 of the Equality Act 2010 which exempts charities from the equality obligations of the Act, where the Charity (a) acts in pursuance of a charitable instrument - ie their charitable objects require it and (b) it is a proportionate means of achieving a legitimate aim.
4. It was accepted by the charity that discrimination on the basis of religious belief alone would be unlawful - para 14 - so this was not in issue. The Bishop of Leeds gave evidence in which he expressed the view that the law should respect the Catholic Church’s views on this issue in the same way that it allows Churches not to have to bless civil partnerships. However, adoption is a public service, funded (in part) by local authorities, so does not have the same exemptions under the 2010 Act as those which cover private religious worship (para 60);
5. The charity argued that the discrimination should be permitted because:
(I) Same sex couples could obtain adoption services from local authorities and other voluntary agencies so would not suffer detriment if the charity alone refused them services;
(II) The charity can only operate its adoption service with the assistance of donated income, and its supporters would stop supporting it financially if it did not discriminate, so it would have to close if the discrimination were not permitted;
(III) The closure of the service was such a serious consequence that the discrimination proposed was proportionate to the aim pursued, which was that of seeking to increase the number of adoptions which take place;
(IV) The charity can attract potential adopters that other agencies would not attract because of its distinctive approach.
6. The Tribunal found that:
(I) There must be particularly weighty reasons to justify discrimination on the basis of sexual orientation, which is a protected characteristic under the 2010 Act (para 53);
(II) Same sex couples would suffer a significant detriment by not being able to use the charity’s own high quality service. The availability of other services to same sex couples could not amount to a justification for discrimination by the charity (para 53 again);
(III) The charity had not made out its case that its donors would cease to support it if it offered adoption services to same sex couples. Its accounts showed that its donated income is not restricted to its adoption services but applicable for all of its work; it produced no evidence of the views of donors, only the Bishop’s opinion on this point; the discriminatory views of 3rd parties cannot in any event justify discrimination by the charity (paras 54 - 57);
(IV) As to the risk of closure, the charity has not yet explored all the alternatives. Other Catholic charities have found alternative means of operating since the law changed. The expert evidence heard by the Tribunal contradicted the charity’s case that if it were to close, children would be left un-adopted (para 58).
(V) The charity did not prove its assertion that an increase in its resources would inevitably lead to more adoptions taking place, because the Tribunal found that the expert evidence about the local authority funding arrangements for adoptions did not support the charity’s case in this regard (para 49).
Aidan O’Neill QC has written about Religious Organisations and Secular Courts: The Ministerial Exception.
Read it in two parts at the UK Supreme Court Blog.
Part 1: The Ministerial exception in US case law
On 28 March 2011 the United States Supreme Court granted certiorari in Equal Employment Opportunity Commission and Perich v. Hosanna-Tabor Evangelical Lutheran Church. This means that an appeal can be brought before the US Supreme Court in which, for the first time, that court will consider the constitutionality of the legal doctrine known as the “Ministerial exception”.
The “Ministerial exception” is a US court created (common law) principle which is said to be implicit within and derived from the US Constitution’s First Amendment’s prohibition of “religious establishment” and its guarantee of “religious freedom”…
Part 2: The Ministerial exception in UK and EU case law
Perhaps under the influence of this US case law, by the last quarter of the twentieth century the growing tendency of the courts – at least in England and Wales – was to seek to avoid becoming mired in matters of ecclesiastical sensitivity and/or theological controversy by denying that they had jurisdiction to consider (intra- or inter-) religious disputes brought before them.
Paradoxically, this new found uneasiness as to the propriety of the civil courts ruling on matters religious might be thought to reflect the growing secularisation of public life in the UK, with the judges drawn from an increasingly unChurched class who – in contrast to their church-going and religiously literate Victorian and Edwardian forbears – felt uncomfortable and unqualified to sit in judgment on religious matters. Thus, the courts in England and Wales in this period declined to consider applications for judicial review brought by individuals exercising ministerial functions within various non-established religious denominations on the grounds that there was no “public law” element such as to make the case suitable for judicial review, apparently relying on a UK public law principle of separation of Church and State which had, in fact, no place historically with the polities making up the United Kingdom…
Aidan O’Neill QC has written at the UK Human Rights Blog about Squaring equality with religion.
…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…
And later on he has this:
…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…
Meanwhile Alan Wilson wrote Squaring a Human Rights Circle.
So what about religious particularity and freedom from discrimination? Pushed to an absolute degree either could compromise the other. If an atheist could fight a way through the courts to become Pope that would be a magnificent expression of openness, but bad news for the Papacy, which partly exists to define and maintain a particular identity in a way that can only credibly be done by a Roman Catholic. If, conversely, a Police force decided to soft pedal on the misdeeds of some clergy because they are authority figures in the community representing the dominant religion, this is plainly wrong and deprives the victims of a basic justice they have every right to expect.
This becomes even more complicated when people start asserting Christian rights. Jesus’ teaching about non violent resistance (turning the other cheek etc) and the strand of wisdom represented by Romans 13, does not lend itself to crusading militancy. Whenever the Church has ignored this principle it has made a fool of itself and compromised the gospel by behaving in a violent and assertive way to whch it might notionally have been entitled, but which was far from Christlike. People who are being reviled have a notional right to revile back, perhaps, but Jesus tells his followers to do the exact opposite. This being the case it is hard to represent an assertion of that right as something required of his followers by their religon. It damn well is not.
A few preliminary jottings are emerging for me about the ways christians are supposed to apply human rights law to ourselves…
Updated
The Government Equalities Office has announced the opening of this consultation.
Press release: Civil partnerships on religious premises: a consultation
Opening date: 31 March 2011
Closing date: 23 June 2011
In February we announced our commitment to enabling civil partnerships to be registered on the religious premises of those faith groups who wished to host them. This will be done by implementing section 202 of the Equality Act 2010. This provision removes the legal prohibition on civil partnerships being registered on religious premises, enables regulations to be made setting out the arrangements for these premises to be approved by the local authority and clarifies that there is no obligation on faith groups to have civil partnership registrations on their premises.
Civil partnerships on religious premises: a consultation sets out detailed proposals for this voluntary measure which enhances the freedom of both faith groups and same-sex couples. The proposals are designed to enable faith groups to opt in, respect the different decision-making structures of different faith groups, minimise the risk of successful legal challenges and be straightforward for local authorities to operate. The law will make clear that faith groups are not obliged to host civil partnerships. It would also be unlawful for a civil partnership to be registered on a religious premises that had not been approved for the purpose by the local authority. That approval will be given only with the approval of the faith group concerned.
We propose a two stage process for enabling civil partnerships to be registered on particular religious premises. First the faith group concerned will have to consent to this and the consultation document sets out how this could happen. Then the local authority in whose area the premises is located will have to approve the premises and the consultation document sets out what conditions should apply to the approval. The registration of civil partnerships would remain secular, despite taking place on religious premises, but a religious service could be held to mark the registration.
This consultation will be of particular interest to:
- faith groups including religions, denominations and individual independent religious congregations
- Lesbian, gay and bisexual (LGB) organisations, LGB individuals and their families and friends
- Local authorities, including registrars and other relevant local authority employees
- owners and managers of buildings approved for civil marriages and civil partnerships
Comments from other interested parties are also welcome.
Download the consultation
The official CofE response to the second sentence of this paragraph (emphasis added) from the consultation document will be interesting:
1.8 Please tell us whether you are responding as an individual or whether you
are representing the views of an organisation. If you are responding on
behalf of an organisation please tell us whom the organisation represents
and, where possible, how the views of members have been sought.
Updated
A recent decision of the Employment Appeal Tribunal is concerned with the employment status of Methodist ministers.
The case is UKEAT/0219/10/DM between Ms H. A. Moore and The President of the Methodist Conference. The judgment, dated 15 March 2011 is available here, and can also be downloaded from here. (49 pages as a .doc file).
Here’s a news report from the Western Morning News Female church minister wins landmark employment rights case.
A sacked [but see comment below] female minister in Cornwall has won a landmark ruling to bring a case against the Methodist Church for unfair dismissal.
The decision by the Employment Appeal Tribunal reverses an earlier decision by the Court of Appeal and paves the way for all clergy to challenge their employers in the courts.
The tribunal concluded that Haley Moore, who was dismissed as a minister in Redruth, was an employee under the Employment Rights Act and can take action against her former employer, the President of the Methodist Conference.
The Unite union, which has been fighting for equal rights at work for religious workers for 16 years, said the decision was a “significant step forward”.
but note also:
A Methodist Church spokesman said it would appeal the ruling.
Kenneth Howcroft, assistant secretary of conference, said: “The Methodist Church is seeking an appeal against the judgement that Haley Moore’s case is a matter for an employment tribunal.
“As it stands, Methodist ministers are office holders, not employees, of the Church and have legal rights of redress under long established, procedural channels.”
And a press release from the solicitors: New Landmark Employment Ruling for Clergy.
The decision of the Employment Appeal Tribunal is a significant step towards achieving this as it establishes that a Methodist minister is an employee under employment legislation, which is contrary to the Court of Appeal’s decision about Methodist ministers in 1984. The Methodist Church has 21 days from the date of the EAT’s order of 15 March 2011 to make an application for leave to appeal to the Court of Appeal.”
And a press release from the Trade Union: Church of England urged ‘to smell the coffee’ over employment rights, following landmark ruling in Cornwall.
Religion Law Blog carries some comment on this by Neil Addison:
In Moore v The President Of The Methodist Conference BAILII:[2010] UKEAT 0219_10_1503 the Employment Appeals Tribunal decided that a Methodist Minister was an Employee for the purposes of Employment Law, in this case a claim for unfair dismissal. The EAT applied an earlier House of Lords case Percy v. Church of Scotland [2005] UKHL 73 in which the House of Lords decided that a Church of Scotland Minister was an employee.
Prior to Percy the general assumption in law was that religious ministers, of all denominations, were office holders rather than employees and so were not protected under unfair dismissal and/or discrimination law. In Percy however the House of Lords decided that, on the specific facts, the Minister in the case was an employee and the same decision was made in Moore as regards a Methodist minister.
How far this principle will extend is difficult to determine. It is possible that Denominations which have a very sacramental view of the status and role of the Clergy, such aside the Catholic and Orthodox Churches, will continue to be able to claim that their clergy are “office holders” rather than employees. However for Free Church Ministers, Rabbi’s and Immans the position may be different and they may be held to be employees of their respective congregations should they decide to sue for unfair dismissal or discrimination.
Update
The full text of the Methodist Conference statement quoted in part above:
The Revd Kenneth Howcroft, Assistant Secretary of the Methodist Conference, said: “The Methodist Church is seeking leave to appeal against the judgement that Haley Moore’s case is a matter for an employment tribunal. It is treating the matter with great seriousness as something that would affect all our ministers. The Court of Appeal held as long ago as 1984 that Methodist ministers are not employees. A minister’s role is one which is traditionally based on the ethos and laws of the Church rather than on a secular ethos. Our ministers have legal rights of redress under Church procedures. The Methodist Church cares for all who serve it, whether lay or ordained, paid or volunteer, and we want to ensure that we treat everyone fairly and properly.”
Updated Friday morning
Neil Addison has written at Religion Law Blog about this case, see Italian Crucifix Case - Grand Chamber Judgment.
As I predicted in my earlier Blogs the ECtHR based its decision on the concept of the “margin of appreciation” and decided that it was for individual countries to make these decisions so that just as France is free to ban all religious symbols from state schools so Italy is free to put religious symbols in state schools. In the UK context this is a significant basis for the decision. When UK Courts apply the Human Rights Act 1998 which incorporates the European Convention into UK law they apply the “margin of appreciation” so as to give that margin to Government and public bodies. The fact that the display of the Crucifix, or indeed any other form of religious symbol, is governed by the “margin of appreciation” will go a long way to free local and central government, schools etc from the danger of legal cases being brought to ban Nativity Displays, prayers at remembrance parades etc.
Unusually for the ECtHR there were a number of separate concurring judgments and I feel that some of them deserve quoting in detail because they do pick up and question the often unquestioned assumption that Secularism is the same as religious neutrality.
And he includes some quotes from them.
William Oddie wrote at the Catholic Herald that Fr Lombardi is wrong: the judgment on crucifixes isn’t about Europe’s Christian roots.
What is actually much more interesting about the court’s full judgment is that it gives a lengthy account, with generous quotations, of the original judgment in an Italian court which was subsequently set aside by the European Court, a reversal now itself reversed by the highest European Court, the “Grand Chamber” (maybe it doesn’t sound so silly in French). The Italian judgment found in favour of keeping crucifixes, not for their religious value, but because they symbolised the moral values which in the end led to the Enlightenment and the modern Italian secular state. Neat, eh? This the Italian court did by delivering itself of a lengthy disquisition on Italian cultural history which had nothing whatever to do with legal argument at all, long and windy stuff (wonderfully Italian: you simply can’t imagine it in an English courtroom), a lot of which is actually rather interesting stuff.
And he goes on to give an illustrative quote.
Andrew Brown at Cif belief writes Raise high the crucifix!
The decision of the European court of Human Rights that Italian schools may continue to display a crucifix in the classroom is obviously a victory for common sense, of which only fanatics would disapprove. But it is also, in a small way, something to help rescue the European project, and to preserve us from the wilder excesses of American political life.
The idea that human rights legislation should be used to prevent children from being exposed to a crucifix is a profoundly totalitarian and superstitious perversion of one of our civilisation’s best inventions. To understand why, consider another family which would want their children protect from crucifixes, but this time not secular Finns, but Muslims. They exist. One Shia Muslim girl I know was not allowed as a child to walk through much of the Victoria & Albert museum, because to do so would expose her to Christian symbolism…
Update
Shiranikha Herbert writes at the Church Times that Classroom crucifixes can stay, Strasbourg rules.
…The 17 judges of the Grand Chamber decided by 15 votes to two that there had been no violation of the rights guaranteed by the Convention. Judge Bonello said that a European court should not be called upon to “bankrupt centuries of European tradition” and “rob Italians of part of their cultural personality”. The court should, “before joining any crusade to demonise the crucifix”, place the presence of that emblem in its rightful historical perspective in Italian schools.
Until relatively recently, the “secular” state had delegated education to Christian institutions, who had a virtual monopoly on education. The presence of the crucifix in Italian schools testified to that historical reality. Now, Judge Bonello said, “a court in a glass box, a thousand kilometres away, had been engaged to veto overnight what [had] survived countless generations”, and was being “asked to be an accomplice in a major act of cultural vandalism”.
It was “uninformed nonsense”, the Judge said, “to assert that the presence of the crucifix in Italian schools bears witness to a reactionary fascist measure imposed, in between gulps of castor oil, by Signor Mussolini”, whose circulars merely took formal notice of a historical reality that predated him by several centuries.
“Nations do not fashion their histories on the spur of the moment…”
Strasbourg Observers has Lautsi v. Italy: the Argument from Neutrality (H/T 3minutetheologian)
Lautsi v. Italy was destined to achieve legendary status in the ECtHR’s case law. In fact, it became the stuff of legends long before the Grand Chamber’s judgment came out. Rarely has a judgment of a supranational court put such a spell on people. Rarely has it inspired such passionate comments and speculation even before it was released. Rarely have so many people looked forward to a judgment with such anxious anticipation. But why? What is it about the issues involved in this case that causes them to speak so strongly to the hearts and minds of so many? It is a question I have been asking myself for a while now, while reflecting on the tension between freedom of and freedom from religion in the Court’s case law. And the question is haunting me now more than ever, having read the Lautsi judgment and the comments in the blogosphere thereon and preparing a post of my own. I have not been able to come up with a satisfactory answer to the question. At least not satisfactory to a legal mind. My personal preoccupation with Lautsi seems to stem from a strong conviction that neutrality requires that the state should not hang crucifixes on the walls in public schools. I will attempt to explain my opinion in this post. But I will also explain why this is perhaps not an issue to be decided by a human rights court.
Updated Friday evening
Long-suffering TA readers will recall this case.
The Associated Press reports today: European court: Crucifix acceptable in classrooms.
The full text of the judgment is available as a PDF over here.
Here is the official press release from the court also as a PDF.
The ECHR Blog has published Grand Chamber Judgment in Lautsi: No Violation.
Austen Ivereigh at America has written Lautsi overturned: secularization has a reverse gear. Earlier he had written a much longer article, Waiting on Lautsi.
The National Secular Society has reacted with Crucifix case overturned by Human Rights Court.
Riazat Butt writes in the Guardian European Court of Human Rights rules crucifixes are allowed in state schools
AFP has Vatican hails ‘historic’ ruling on crucifixes in schools
The Equality and Human Rights Commission (Scotland) has issued this press release: New Scottish Government called upon to address Equal Marriage for same sex couples.
The Equality and Human Rights Commission Scotland today launched a new report calling for access to equal marriage for same sex couples in Scotland. The report is a result of a symposium recently held by the Commission to investigate perceived barriers to equal marriage and suggest ways forward for legislators.
Scotland currently has a segregated family law system in which marriage is available only to mixed-sex couples, and civil partnership only to same-sex couples.
In England and Wales, the UK Government has announced public consultations on proposals to hold civil partnerships on religious premises and to open up civil marriage to same-sex couples and civil partnership to mixed-sex couples. However, because marriage and civil partnership are devolved issues, these proposals apply to England and Wales only.
The report calls upon the Scottish Government to consider these disparities and to take steps to bring about equal access to marriage in Scotland. The evidence and research contained within the report aims to inform their deliberations…
The EHRC report is available here: Equal Access to Marriage: Ending the segregation of same-sex couples and transgender people in Scotland. (PDF)
See earlier reports here, and also here.
Third Sector Online reports that Catholic Care’s exclusion of same-sex couples ‘unjustified’, charity tribunal hears.
The Charity Commission has defended its decision not to allow the charity Catholic Care to prevent gay people from using its adoption service, at a charity tribunal hearing.
During the hearing, which finished on Friday, the commission argued it would be a “serious and demeaning act of discrimination” for the charity to restrict its adoption services to heterosexual, married couples.
The charity appealed to the tribunal to quash the commission’s ruling, made in August last year, that it could not change its objects to prevent same-sex couples from using its adoption service. Catholic Care argued that failing to change its objects would force it to close its adoption service because it would lose its funding from the Catholic church.
The commission’s barrister, Emma Dixon, said at the hearing: “The exclusion of same-sex couples is a particularly serious and indeed a demeaning act of discrimination. Weighty reasons would be needed to justify discrimination on the grounds of sexuality.”
… Alison McKenna, principal judge of the charity tribunal, said it would make its decision in about a month.
The Equality and Human Rights Commission has issued a statement: Commission statement on Preddy and Hall legal case
11 March 2011
John Wadham, Legal Director at the Commission, said:
“This morning we withdrew our cross appeal in this case. It was filed initially because of an error of judgment on the part of our legal team.
“They submitted the cross appeal in an attempt to clarify the law around how damages are calculated in cases such as this. This resulted in it appearing that Steve Preddy and Martyn Hall were seeking to increase the amount of damages they receive because Mr and Mrs Bull’s Christian beliefs had led them to break the law. This was not our intention and it was certainly not the intention of Steve and Martyn.
“I would like to confirm that public money will not be spent funding a claim for increased damages in this case…”
That’s the second retraction the EHRC has made in recent days. See also Johns v Derby City Council.
The Press Association report is available at Gay couple end hotel payout claim.
A(nother) lawyer wrote Foster care and religion: the legal debate.
Bishop Alan Wilson writes again today: Munchausen loses Court Case.
…Ah, but you may say, there are people out there who don’t like Christianity. There are, and there always were. Some English Christians seem hell bent on behaving like a persecuted minority, and who am I to try and stop them? They’ve obviously never been to Pakistan or anywhere else Christians really are persecuted as Christians.
Historic Christianity does have massive historic, cultural and legal influence in the UK, not least in the pursuit of ancient rights founded on the principles of Equity that gave rise to our human rights law in the first place. The surest way to destroy this influence is for a group of zealots to take upon themselves the role of being the “one prophet left,” and indulge in the legal equivalent of Munchausen’s Syndrome by Proxy…
Andrea Minichiello Williams at Christian Concern wrote Permanent Exclusion and the Johns.
…I hope that the highlighting of the issue in the press will shatter the misconception that the Equality Act means equality for all. Some are very much more equal than others. We are currently living in ‘Animal Farm’ days; “All animals are equal, but some animals are more equal than others”.
And Paul Diamond wrote Why the Johns Case will not be appealed.
…I have reluctantly advised the Johns not to appeal; such an appeal would normally be expected but now, in my opinion, futile - a waste of resources. The Courts are so set against religious freedom for Christians that an appeal is likely to only make matters worse.
The problem is a combination of bad laws and, in recent years, a number of poor judicial appointments by the previous Government. Where there are excellent Judges they are restricted by bad laws. Unfortunately, there are also Judges making law based on personal predilections. Parliament must remedy this situation as a matter of urgency.
The ideals of the Equality Acts and the Sexual Orientation Regulations have much to commend them in so far as all civilised people would not accept overt discrimination against any person based on irrelevant considerations as to their sexual orientation or faith. However, the laws are bad. They are poorly drafted leaving too much discretion to the Courts; they are contradictory in so far as one cannot have a society without substantive values. Finally and most importantly these laws are political laws seeking a political objective.
The laws are currently being used to eradicate Judeo Christian morality and usher in secular values. The secular movement is but a variant of the Utopian ambitions that have inspired man from the beginning of time. However, the end game of such programmes is always the same. To repeatedly promote a failed ideology is base ignorance or at its worst criminal. Coerced morality or coerced immorality (depending on one’s perspective) is not the hallmark of a free society…
Mr Diamond was interviewed this morning, along with Lord Falconer, a former Lord Chancellor, on the BBC’s Today radio programme, listen at Are courts enforcing a ‘new morality’?
There seems to be no end to the comments on this.
Alan Wilson writes for the Guardian’s Face to Faith column, Homosexuality, Christianity and child welfare.
…So what does the case really show? First, that the customary paranoia of rightwing newspaper op-eds sounds silly in court. Courts will injunct in cases of real urgency, but they are, quite rightly, very reluctant to compensate people for wrongs they have not yet suffered, simply to make a point on behalf of a group of zealots, however sincere they may be. It is absolutely no part of a court’s job to enter into such antics, just to create a story for the press.
This case was the fourth bite at this particular cherry by the barrister Paul Diamond and his chums in the Christian Legal Centre. There is now nothing more legally to be said on this subject than various judges, especially Lord Justice Laws, a devout Christian and churchwarden, have said so far. Rightwing Christians must establish their views on their merits, not expect courts to do the job for them.
How does orthodox Christian teaching relate to the views that were seeking legal protection? When Mrs Johns averred, for example, that “having a different sexual orientation was unnatural and wrong”, she put herself well beyond what either the Church of England or the church of Rome are prepared to say on the matter of orientation. The Johnses are entitled to their views, but cannot expect them to be unquestioned insofar as they could affect the welfare of a child…
Anglican Mainstream has reproduced an editorial from the Church of England Newspaper The unique problem of Christianity for the judges.
…The three most potent decisions of the High Court of Justice, delivered by Lord Justice Munby and Mr Justice Beatson, were that they were ‘secular’ judges, that they accepted that caring foster parents were not acceptable for holding sexual morality corresponding to the historic Christian ethical stance on homosexual sexual intercourse, and for denying a scintilla of place for Christianity in British law. They also implicitly accepted the dogma of the EHRC, the Equalities and Human Rights Commission, that Christian beliefs taught to young children would ‘infect’ them. We have come a very, very long way from ‘Clause 4’ and the ban on promoting homosexuality in schools, now that is compulsory and Christian belief is positively harmful. In the eyes of the law homophobia is not religious, anyone of any belief can be guilty, but this raises serious questions for traditionalist Christians and the Churches in general. Doctrine must now be viewed in subordination to the country’s anti-discrimination laws…
And Paul Sims at the New Humanist writes about Fostering, gay rights and the secular law.
Damian Thompson asks: Catholic bishops mount ferocious attack on gay weddings. So why don’t they want to talk to the press about it?
The National Secular Society thinks that Church-state confrontation over gay marriage could be solved with disestablishment.
Giles Fraser says I don’t see a threat in gay blessings.
Benny Hazlehurst has written: Towards a Theology of Gay Marriage.
And there was a letter in the Guardian published under the headline Toilets, insects … but not civil partnerships.
Updated Sunday morning
The Equality and Human Rights Commission has issued a statement apologising for a mistaken in their intervention in this case:
Earlier this week the case of Johns v Derby City Council, in which the Commission had intervened, attracted some attention. Unfortunately a mistake within our legal submission led to an inference that we did not intend and which was misconstrued as suggesting that the Commission equates Christian moral views with an infection. This oversight was caused by a drafting error in our submissions to the court. This should have been picked up in our internal clearance process for the legal documentation and does not represent the position of the Commission in any way.
Furthermore, the Commission entirely rejects any view (as reported in the media) that rights in relation to sexual orientation ‘take precedence’ over religious rights. The Commission fully upholds the rights of looked-after children to be supported in their chosen religion or that of their family, in the context of the paramount importance of the welfare of the child…
Christian Concern has issued Johns Fostering Case: Effects of the Ruling and Further Analysis.
There has been huge media interest regarding the Johns ruling by the High Court. There has also been some confusion over the nature and implications of the ruling.
We have produced the thoughts below to add further clarity to our original article here and press release here…
Update
According to this American report, there will be no appeal of this case. See Christian couple warned not to appeal decision barring them from foster care. Some extracts are below the fold.
“When these laws were introduced, particularly by Prime Minister Blair, they were not resisted,” Diamond said. “They seemed fair and reasonable. But over the past five or six years, we’ve had a number of crazy decisions in Britain.
“We once had a millennium’s worth of human rights and religious freedom, just built into the culture,” Diamond recalled. “It’s inconceivable that these millennium-old freedoms could be overturned in 10 years – but they were. People are getting very scared, and rightly so.”
“Things can change very rapidly. If a few key things happen in America, and a few judicial appointments should be made, you will find that there can be very swift and rapid changes in your basic assumptions of what your rights are.”
“It’s got very little to do with the law,” he observed. “You have to see these decisions as political acts. One set of ‘rights’ is triumphing over another. It’s simply masked by this language of ‘tolerance’ and ‘diversity.’”
And more:
“If we went to the court of appeal, I believe the outcome would have been worse,” Diamond lamented. “The judgment, which was so bad in terms of Christian rights, would have been reinforced at a higher level. And we have cost rules here, so you can end up paying the other side for your attempt to stand on your rights.”
“I thought an appeal, in the current circumstances, would be hopeless – and would make the situation worse for Christians. The senior court of appeals judge made it quite clear that he believes the outcome of religious practice is ‘discriminatory’ against homosexuals.”
Andrea Minichiello Williams, who assisted the Johns in her position as the head of the Christian Legal Centre, shared Diamond’s concern over what was happening in Britain. Like Diamond, she voiced concern that the United States and other countries could be traveling a similar path, sooner than most citizens might expect.
In England, she recalled, Christians and other religious groups had received “continual assurances” that equality and non-discrimination laws would not be used to subject them to discrimination for their own beliefs.
“And yet,” she said, “the law has very clearly been used to trample Christian rights.”
“What we’ve got is the imposition of a new political orthodoxy,” Williams explained. “If you don’t think or act in a certain way, you will find yourself barred from public office. It’s very frightening, and it’s very real. We have plenty of cases here at the Christian Legal Centre to prove it.”
“It doesn’t take long,” she reflected. “We were not in this position at the beginning of the Tony Blair/Gordon Brown regime.”
The Church Times today has a news report by Ed Beavan Pentecostal couple find no comfort in the High Court.
A COUPLE’s views on homosexuality are relevant to whether or not they can foster children, the High Court ruled on Monday. The court also ruled that to ban them on these grounds would not be discriminatory, even when their views are informed by religion…
And there is a Leader: The Johns judgment: a useful corrective
…Some Christians — we do not know how many — would agree with Mr Johns’s view that, were a foster child to express the view that he or she was possibly gay, an attempt should be made “gently [to] turn them round”. Others would disagree. Neither side could claim that theirs was the exclusive “Christian” view, and thus, even within the Church, an appeal needs to be made to authorities other than the Bible. For Anglicans, these are tradition and reason. Another quote from Lord Justice Laws: “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.”
This important point is repeatedly overlooked by those who cite scripture (or their interpretation of it) and then feel hard done by when they are ignored. It is not a new requirement that the Church, or a section of it, marshall evidence to demonstrate that what it proposes or defends is for the general good. This is the day-to-day task of bishops in the House of Lords. What is new, perhaps, is the laziness of Christians when it comes to reasoning their case, with the result that rationality is now thought, erroneously, to be the preserve of secularists. In such an atmosphere, the lack of investment by the Church in research and education has severely weakened its intellectual centre, leaving the field to be occupied by lobby groups of various persuasions. When these go to law, it is no surprise when their emotive, partial arguments are given short shrift. This is emphatically not the defeat of Christian principles or teaching. A few more press releases and a little more lazy journalism might, however, convince people that it is so.
The Evangelical Alliance has issued a press statement: Response to Derby City Council Fostering Case.
It is not true that Christians are being prevented from fostering and adopting children in spite of increasing evidence that they are being marginalised in public life, says the Evangelical Alliance…
…While the outcome is unhelpful for Christians and other religious believers with orthodox beliefs, it is unlikely that the case will carry any major landmark implications.
It is highly questionable whether British courts of law should be used as forums for debating the pros and cons of conflicting human rights created by equalities legislation. Instead, they should only be used to resolve disputed points of law based on evidence.
The Evangelical Alliance expresses doubt about the wisdom in bringing such cases to the High Court in the first place. While there is no doubt that equality laws appear increasingly controversial in the way they seem to disproportionately impact against Christians, there is a clear need for a more cautious and strategic approach when deciding to take matters to court…
Andrew Brown comments on this at Evangelicals reverse the ferret.
The Evangelical Alliance has disowned the tactics of the Christian Legal Centre, the fringe group which brought a case against Derby Council on behalf of a Pentecostal couple who feared that their views on gay people would prevent them from fostering children.
The Evangelical Alliance’s statement stands in sharp contrast to the hysterical coverage in some right-wing papers. Many reported without question the claims of the CLC that the ruling meant that orthodox christian views were now enough to bar anyone from fostering children…
The position taken by the EA is very clear. Less clear but also interesting was the distancing from the CLC that the Christian Institute took in its full statement earlier:
The Johns’ case was supported by The Christian Legal Centre, an entirely separate organisation to The Christian Institute.
Updated again Wednesday afternoon
Stephen Bates reports for the Guardian Anti-gay Christian couple lose foster care case
John Aston and Jan Colley, PA via Independent Anti-gay Christian couple lose battle to become foster parents
The Telegraph has huge coverage, including this Leader Foster parents defeated by the new Inquisition
Tim Ross
Foster parent ban: ‘no place’ in the law for Christianity, High Court rules and
Foster parent ban: ‘extreme distress’ of ‘anti-gay’ Christians’ over ruling
and the following additional articles:
Foster parent ban: ‘this is a secular state’, say High Court judges
Foster parent ban: ‘we have not received justice’
Fostering row commentary: would-be parents must be non-judgmental
Foster parent ban: Lord Justice Munby ‘avid supporter of open justice’
Foster parent ban: Mr Justice Beatson ‘UK’s best academic lawyer’
Updates
Peter Ould has written Breaking - Christians with Traditional Moral Views can still be Foster Parents
Cranmer has written “…the laws and usages of the realm do not include Christianity, in whatever form”
Ekklesia has written Court rejects foster couple ‘Christian discrimination’ claim and Misleading claims about discrimination against Christians
The Christian Institute has published Christian Institute responds to foster carer court case and there is a fuller statement available as a PDF over here in which the Christian Institute is at pains to note that it is a completely separate organisation from the Christian Legal Centre.
Ruth Gledhill has posted a video on UTube which contains comments from Eunice and Owen Johns and also from Andrea Minichiello Williams of the Christian Legal Centre. See it here.
Symon Hill has written at Left Foot forward Lazy journalism surrounds the latest foster parents furore
Melanie Phillips has written for the Spectator The judges’ atheist inquisition
The UK Human Rights Blog has an analysis by Rosalind English Analysis: the place of religion in foster care decisions
An open letter to the Prime Minister regarding Homosexual Marriage and the registration of Civil Partnerships in places of religious worship has been sent by three organisations, The Council of the Protestant Truth Society with the support of the Council of Church Society and the Management Committee of Christian Watch.
The Living Church has an article by John Martin Erastianism Debate Rears its Head.
The British Humanist Association published Church of England’s opposition to gay marriage highlights need for disestablishment.
At Episcopal Café Jim Naughton is still trying to unravel What exactly is Rowan Williams saying about the new civil partnership bill?
Cranmer has The Government are NOT about to force ‘gay marriage’ on the Church of England.
Andrew Carey wrote for the Church of England Newspaper Redefining what marriage means.
Updated twice Monday evening
The BBC reports Court backs decision to bar Christian foster couple.
The full text of the judgment can be found here. The language used by the judges is really quite extraordinarily strong.
It has seriously upset Christian Concern whose article is over here. Another version of this appears as a Christian Legal Centre press release.
Andrew Brown has published an analysis, at The law of England is not Christian.
The Christian Institute and similar bodies have mounted a series of court cases over the alleged persecution of Christians in the last five years. Almost all have been based around the claim that Christians are entitled to discriminate against gay people. Each one has ended in defeat. From the cross worn by Nadia Eweida to the attempts to allow religious exemption to the registrants of civil marriage, or the owners of B&Bs, the cases have been pitched as matters of high principle, and the judges have responded with increasing asperity. None, I think, has been so brutal as Lord Justice Munby in his judgment on the case of Owen and Eunice Johns, a couple of Sheffield pentecostalists who were turned down as foster carers because they would not accept homosexuality…
…[T]hey wrote to the council “We take these statements and others to mean that it is either your policy, or your understanding of the law, that Christians and other faith groups who hold the view that any sexual union outside a marriage between a man and a woman is morally reprehensible are persons who are unfit to foster. In short you seem to be suggesting that Christians (such as us) can only adopt if we compromise our beliefs regarding sexual ethics”.
This is the view that Lord Justice Munby has described as a “travesty of reality”.
He quotes some substantial excerpts from the judgment, and then concludes:
Obviously, these judgments will have a considerable effect on evangelical protestantism in this country, which has always taken the view that we are, or should be, a Christian nation. But I think the greatest effect will not be on pentecostalists like the Johnses. They can adjust quite easily to the idea that they live under a heathen or godless regime. It is the old-fashioned evangelical wing of the Church of England which will be most upset and confused by these clear statements of principle.
Others have issued statements:
Stonewall Stonewall welcomes ‘landmark’ fostering decision
British Humanist Association High court upholds decision to bar anti-gay Christian couple from fostering: BHA comments
Gavin Drake has also written an analysis, see Misplaced outrage over High Court “ban” on Christian foster parents which makes some good points. One thing he says is this:
The Christian Legal Centre have issued a press release about the case which they open: “In a landmark judgment, which will have a serious impact on the future of fostering and adoption in the UK, the High Court has suggested that Christians with traditional views on sexual ethics are unsuitable as foster carers, and that homosexual ‘rights’ trump freedom of conscience in the UK.”
This is nothing less than a lie and I am appalled that a Christian group should seek to misrepresent the truth in such a way. I’d go so far as to suggest that the Christian Legal Centre’s press release may amount to a contempt of court.
Lawyer Neil Addison has commented at Religion Law blog see Johns v Derby Council - Christian Foster Carers Case and he concludes:
All in all this does appear to be a case that should not have been brought and which, from the point of view of orthodox Christians has done more harm than good.
Perhaps in fulfillment of Andrew Brown’s last sentence (see above) Chris Sugden has weighed in at Anglican Mainstream with High Court ruling on Foster-Care parents.
The Guardian has published a strongly worded editorial, which criticises both the Church of England and the Roman Catholic Church, for the public statements made by some of their leaders.
Read it (and follow the excellent links) at Civil partnerships: bluster in bad faith.
The heart sinks at the prospect of another battle between faith and the state, in which the churches wring their hands and find themselves sustaining discrimination against gay and lesbian couples. But such a dispute has begun with the government’s confirmation that it plans to lift the total ban on holding civil partnership ceremonies in religious buildings. First, the Church of England warned of “unexplored impacts”, “confusion” and “difficult and unintended consequences for churches”. In sum, because the church can’t make up its mind, everyone else ought to hold back. Now the Catholic church has joined the fray, railing against the proposal in even more strident terms…
It concludes with:
…This is a proposal which the Church of England – whose own bishops split on the issue in the Lords last year – should find unexceptional. Equality, one bishop claimed in that debate, is not the same as making the laws for everyone the same. But nor should the principles of some faiths be imposed on others. The blanket ban on religious institutions hosting partnership ceremonies is a lawful infringement of their liberty. It must be swept away. Doing that will not eradicate every ancient prejudice or protect everybody from them, it will merely give progressive believers the right to do things in new ways. As such, it will strengthen and not compromise freedom of conscience. Claims to the contrary are illogical bluster.
Updated
Jonathan Wynne-Jones reports in the Sunday Telegraph that Archbishop says the Church will resist Government moves on gay marriage.
…Dr Rowan Williams has refused to be drawn on the issue publicly, but has broken his silence to tell MPs he is not prepared for the Coalition to tell the Church how to behave.
He told a private meeting of influential politicians that the Church of England would not bow to public pressure to allow its buildings to be used to conduct same-sex civil partnerships…
And in more detail:
…Challenged by Simon Kirby, the Tory MP for Brighton Kempton, to explain what he would say to a same-sex couple wanting a church union, he said that the Church is welcoming to homosexuals and permits its clergy to enter civil partnerships.
However, he stressed that it would not countenance weakening its teaching on marriage and said that it would not be dictated to by the Government.
But Mr Kirby said that the Dr Williams’s comments threaten to alienate homosexual churchgoers and would give rise to accusations that the Church out of touch with society.
“I hoped he might be more measured in his response and reflect on the cases for both sides of the argument more evenly, but he was very one sided,” he said.
“Public opinion is moving faster than the Church on this issue and it is increasingly in danger of getting left behind.
“Obviously it is a difficult issue for the Church, but it has many gay men and women who want to be treated the same way as everyone else.”
Doug Chaplin has written a detailed analysis of this story on his blog, see A politician’s PR, or, stitching up the Archbishop. And I have commented there.
Judith Maltby writes in the Guardian today (in the Face to faith column) that Churches should celebrate bringing God into civil partnership ceremonies.
…Some leaders in my own church, the Church of England, as well as the Roman Catholic church have described this as an assault on religious liberty – and no doubt there is an aggressive secularist agenda to embarrass the churches, though aggressive secularists should note that we are pretty good at doing that ourselves without their help. Indeed, the religious liberty defence has a patronising and hollow ring to it when Quakers and Reform Jews are asking precisely for the liberty to register and bless civil partnerships in their own places of worship. They do not need Anglican or Roman Catholic bishops to “save them from themselves” – especially since both our churches have a shameful history of persecuting these very same faith groups.
So why does the liberty to introduce God into civil partnership ceremonies devalue marriage? It would appear that there just isn’t enough of God to go around. One cannot, apparently, honour and bless one pattern of living a faithful and committed life, without somehow devaluing another. It is the theological equivalent of printing too much money…
Some other opinions that we failed to report earlier:
LGCM LGCM welcomes another step towards full marriage equality
Peter Tatchell Religious civil partnerships welcome, no progress on gay marriage
Quakers Quakers welcome government move on civil partnerships
Cutting Edge Consortium Cutting Edge Consortium asks Government to press ahead with Marriage Review
Will churches really be sued for not allowing civil partnerships? is the title of an excellent, detailed analysis by Matthew Flinn at the UK Human Rights Blog.
Matthew provides a detailed explanation of the wording of all the relevant sections of the applicable statutes and regulations, with links to the text. I may reproduce some of that detail in a later article here.
He then goes on to discuss whether or not there is any risk of a successful discrimination claim being brought against anyone for refusing to make religious premises available for such an event. His conclusion:
In the round, the concerns of religious institutions that the changes will, in themselves, require them to facilitate civil partnerships are probably unfounded. Although this is certainly not the only question posed by the changes; there are other dilemmas which may arise pursuant to the operation of ecclesiastical law. For example, the Church of England, which has made clear it will forbid its churches to be used to facilitate civil partnerships, may face difficulties in preventing rectors who have freehold title to parish property for using their premises for that purpose, and there may be issues in disciplining a clergyman who invites a civil registrar onto his premises to conduct a civil partnership ceremony.
And he ends by saying:
…In the meantime, it is possible that some religious institutions are really more worried about the ever closer prospect of full marriage equality for homosexuals, than of the risk of being sued.
Updated Wednesday
Ruth Gledhill has interviewed Giles Fraser on YouTube, watch Canon Giles Fraser tells Ruth Gledhill why Church should celebrate gay marriage.
Austen Ivereigh has written a further article about this for America see Bishops to challenge UK laws allowing gay marriage in churches.
Colin Coward has written about Changing Attitude England’s campaign for civil partnerships to be held in Church of England churches.
Michelle Hutchinson has written at Practical Ethics about Civil Partnership, Religion and the BNP.
Updates
Riazat Butt reports in the Guardian the remarks of RC Archbishop Peter Smith, in Catholic archbishop accuses coalition over gay marriage in church move
The Catholic church is on a collision course with the government after declaring it will oppose in the “strongest terms” changes to the Equality Act that will allow gay couples to register civil partnerships in places of worship.
A statement from the archbishop of Southwark, the Most Rev Peter Smith, said it was neither “necessary nor desirable” to allow gays and lesbians to have civil partnership ceremonies in religious premises and accused the government of “considering a fundamental change to the status of marriage”.
You can read the full statement made by the archbishop over here.
Austen Ivereigh has continued (see link above) to defend the archbishop’s position on this, at Cif belief, see In marriage we trust.
…But civil partnerships are not marriage. The last government made that clear when it said they could not be religiously solemnised. Implicit in that restriction was a final vestige of recognition that marriage is a natural institution, beyond the state or churches to redefine. Now a Conservative government (committed, now there’s the irony, to restoring the vigour of civil society) wishes to use the power of the state to refashion the primary cell of civil society. Allowing churches to solemnise gay marriages is one of the most statist acts ever attempted by a government, and an assault on religious freedom.
The fact that Quakers and Unitarians are happy to host this government’s totalitarian fantasy is neither here nor there; they have no more right to redefine marriage than has the state…
The Economist has published I thee bless.
BRITAIN took a small step this week towards eroding the legal distinction between gays and straights in the matter of matrimony. The civil partnerships that came into force in 2005 grant same-sex couples essentially the same legal rights (over property, pensions, inheritance and parenting) as opposite-sex marrieds; but the law stipulates that the ceremonies must be secular. Last year, after fierce opposition, Parliament voted to remove the prohibition on civil partners tying the knot in churches, synagogues and other religious settings. On February 17th the government said it would begin consultations on implementing that decision—with a view to changing the regulations this year…
Fulcrum has published a statement: On the Use of Religious Buildings for Registration of Civil Partnerships.
The Evangelical Alliance has this statement: Religious liberty must be guaranteed - Alliance responds to proposals to enact section 202 of Equality Act 2010 and also Government proposes allowing civil partnerships in religious settings.
The Tablet has this editorial: Marriage a La Mode.
Throughout the West, the issue of gay marriage has been used as the spearhead of a secularising agenda, propelled by those who want to rid modern civilisation of all traces of its Christian roots. Paradoxically, within the gay community itself the most vociferous supporters of gay marriage have been gay Christians, who want to be given an equal place in the life of Christian institutions rather than to overthrow them. Both these views are reflected in church reactions to government proposals in response to gay pressure, for instance for allowing a religious element in civil partnership ceremonies – at present forbidden by law – and even allowing a partnership or marriage ceremony in a church or synagogue. The Quakers, some liberal synagogues and the Unitarian Church would welcome that permission…
Austen Ivereigh has written in America The Church will have to fight this attempt to redefine marriage.
It’s hard so far to see the tempest behind the first clouds and hastening winds. But an announcement yesterday by the UK government that it intends to lift the ban on civil partnerships being celebrated in places of worship is set to unleash a storm which could well redefine the relationship between Church and state; and have profound long-term consequences — especially for Anglicanism…
The Plymouth Herald printed Will gay church marriages end up in the courtroom?
The Church Times website has a report by Ed Beavan and me, Civil partnerships will not be forced on Church, says May.
This expands the earlier report by Ed which appears in the paper edition, to include an interview with Lynne Featherstone which I conducted on Thursday. The portion of the report containing the interview is copied below the fold.
Speaking on Thursday to the Church Times, the Minister for Equalities, Lynne Featherstone, confirmed that there would be two separate streams of action.
Neither of these, she said, constituted government approval of “gay marriages in churches”, as some religious commentators had suggested.
One stream would implement Lord Alli’s amendment to the Equality Act 2010 by bringing forward, in the late Spring, draft amendments to Clause 11 of the Marriages and Civil Partnerships (Approved Premises) Regulations 2005.
There would then be a formal public consultation on this draft, before a text was laid before Parliament for approval. The regulations currently prohibit not only the use of religious premises for civil partnerships, but also the use (in any venue) of religious texts, such as Bible readings or hymns, or the participation of a minister of religion.
Ms Featherstone confirmed that the consultation would address all of these aspects. She stressed, however, that the key issue was to ensure religious freedom, both for those who wished to take advantage of these changes, and those who did not want to do so.
There was no question that any organisation, or any individual member of the clergy, would be under any Government compulsion to do anything.
Asked whether the Church of England would be able, under the new regulations, to opt out en bloc from the new provisions, the Minister said that this had yet to be decided, and would depend on the outcome of the consultation.
As a separate stream of activity, the Government was committing to a review of further possible changes to the law to bring civil partnerships and civil marriage more closely in line with each other.
Ms Featherstone emphasised that this was a matter of “early days and baby steps”. There was as yet no defined plan of activity, but the Government would consult very broadly and very carefully before proceeding further.
There would be detailed consultations with representatives of all the religious faiths, as well as with all other interested parties. If suggested changes to the civil arrangements impinged on the law relating to marriage in the Church of England, that would have to be taken into account.
This announcement, said the Minister, was simply a commitment to look further at the relevant issues, which were complex. The consultations were not working to any deadline, and would be allowed to take “whatever time it takes”.
Updated
Among all the noise about this, there have been some thoughtful articles.
Independent
Leading article: A welcome blow against discrimination
Much attention around the expected change to the law will concentrate on whether the churches will now have to allow gay marriages to take place in their places of worship. Certainly, it will be interesting to see how the Church of England, which remains bitterly divided over the ordination of gay priests, responds.
If changes to the law force what is still the Established Church in England to clarify its muddled and often disingenuous thinking on the question of sexual equality, so much the better. But in an age when a growing number of marriages take place in civil settings and have no religious element to them at all, this is at the same time a peripheral matter.
Much more important than anything the churches have to say is that Britain is now a world front-runner in the field of equality for sexual minorities. If the Coalition Government succeeds in following through on Ms Featherstone’s expected proposals, it will be to its credit.
Tom Sutcliffe What’s undermining about gay marriage?
Guardian
Michael White Same-sex marriage cannot be the same as heterosexual marriage
Giles Fraser 500 years of church intolerance
…But just as the government ought not to impose gay marriage on churches that are still not ready for it, so too the church must not impose its own institutional homophobia on gay Christians who want to use the Bible in a civil marriage ceremony. Lynne Featherstone, the Liberal Democrat equalities minister, is currently preparing plans for marriage equality. She must not be distracted by a nervous church protecting its control of biblical hermeneutics. People ought to be free to use the Bible as they feel the spirit leads. The word of God exceeds the limited imagination of the church. It always has.
Update
Another good article, which first appeared in The Times has now appeared at the website of the Australian, see Gay marriage is good conservatism by Daniel Finkelstein
When civil partnerships were first suggested, the idea was advanced that providing legal status for gay couples might undermine heterosexual marriage. The means by which this would happen were obscure, but whether or not this was ever a sensible argument, it is apparent the fear is groundless.
The opposite point should recommend itself to Tories. Marriage strengthens commitment between couples and therefore brings stability into the lives of those who enter in it. The advantage of extending that to gay people is obvious. Nevertheless, there is an objection that the difference between marriage and gay civil partnership should be maintained, because marriage is intended for procreation. Another odd argument. Lots of people marry when they don’t intend to have children, cannot have children or are too old to do so. Should these people be forced to have civil partnerships?
Against this is the important fact - that to deny gay people the right to marry in the full sense is to deny people the dignity and respect they deserve. And who better than a Conservative can understand the desire of an individual for dignity, respect and social status?
Last weekend there was a flurry of speculative news reports about a forthcoming government announcement in this area. These reports prompted several religious organisations to issue statements, even though there was as yet no actual government announcement. For example, the Communications Office at Church House, Westminster, issued this on behalf of the Church of England:
“We have yet to see the proposals, so cannot comment in detail. Given the Church’s view on the nature of marriage, the House of Bishops has consistently been clear that the Church of England should not provide services of blessing for those who register civil partnerships. The proposal as reported could also lead to inconsistencies with civil marriage, have unexplored impacts, and lead to confusion, with a number of difficult and unintended consequences for churches and faiths. Any change could therefore only be brought after proper and careful consideration of all the issues involved, to ensure that the intended freedom for all denominations over these matters is genuinely secured.”
Today, the Government Equalities Office has issued a press release which is headed New push for LGB and T equality will allow civil partnerships in religious buildings.
The full text of this is reproduced below the fold. This has provoked a further series of news stories and of statements.
News reports:
Guardian Alan Travis Gay marriages and heterosexual civil partnerships may soon be welcomed and Gay marriage v civil partnership: what’s the difference?
Telegraph Tim Ross Gay couples will be allowed to marry under Coalition plan
BBC Gay church ‘marriages’ plan to be announced
The Church of England has not issued any further statement. But two conservative evangelical groups have done so.
Reform and several other organisations have made a joint statement: Homosexual marriage and the registration of civil partnerships in churches:
Anglican Mainstream sent out a “press release” which has been reproduced over here.
Earlier this had been published: Statement from Anglican Mainstream on proposals for civil partnerships to be contracted in churches.
GEO press release 17 February 2011
NEW PUSH FOR LGB AND T EQUALITY WILL ALLOW CIVIL PARTNERSHIPS IN RELIGIOUS BUILDINGS
As part of its commitment to advancing equality for lesbian, gay, bisexual and transgender (LGB and T) people, the government will today announce that religious buildings will be allowed to host civil partnership registrations.
The change, which will be entirely voluntary and will not force any religious group to host civil partnership registrations if they do not wish to do so, is being introduced as part of the Equality Act. It will give same-sex couples, who are currently prevented from registering their civil partnership in a religious setting, the chance to do so.
The government’s LGB and T action plan, which was published last year, included a commitment to look at next steps for civil partnerships, and giving religious organisations the right to host registrations is the first stage in that process.
Ministers have also identified a desire to move towards equal civil marriage and partnerships, and will be consulting further how legislation can develop, working with all those who have an interest in the area.
Home Secretary and Minister for Women and Equalities Theresa May said:
“This government is committed to both advancing equality for LGB and T people and ensuring freedom of religion for people of all faiths, which is why we will be allowing religious organisations to host civil partnership registrations if they choose to do so.
“No religious group will be forced to host a civil partnership registration, but for those who wish to do so this is an important step forward.”
Minister for Equalities Lynne Featherstone said:
“Over the past few months I’ve spoken to a lot of LGB and T people and campaign groups, and it quickly became clear that there is a real desire to address the differences between civil marriage and civil partnerships.
“I’m delighted to announce that we are going to be the first British government to formally look at what steps can be taken to address this.”
Michael Hutchinson, for Quakers in Britain, said:
“Quakers warmly welcome the move to allow the celebration of civil partnerships on religious premises. We are also heartened by proposals to address calls for full equality of civil marriages and civil partnerships, as our religious experience leads us to seek a change in the law so that same sex marriages can be celebrated, witnessed and reported to the state in the same way as heterosexual marriages.”
The changes to the rules governing civil partnerships will come about by enacting section 202 of the Equality Act 2010. This removes the ban on civil partnership registrations being held on religious premises.
However, the rule is entirely permissive, meaning no religious organisation could be forced to host civil partnership registrations if it did not want to.
NOTES TO EDITORS
1. The removal of the ban on civil partnership registrations in religious premises will affect England and Wales. In Scotland and Northern Ireland it is a matter for the devolved administrations.
2. Section 202 of the Equality Act 2010 lifts the explicit ban on holding civil partnership registrations in religious premises, which is included in the Approved Premises (Marriage and Civil Partnership) Regulations 2005. Although it was passed by both Houses of Parliament on a free vote, making the necessary changes to the Approved Premises Regulations will require further legislation. The Government Equalities Office will launch a formal consultation on this later in the Spring.
3. Section 202 makes clear the voluntary nature of the provision, stating: “For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnership registrations if they do not wish to do so.”
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.”
Judgment was issued yesterday in the discrimination case brought under the Equality Act (Sexual Orientation) Regulations 2007 against a Cornwall hotel in Bristol County Court. As the local paper reports: Bristol gay couple win legal case against Cornwall hotel.
The full text of the judgment can be found in a PDF here.
Press coverage is considerable. Here is a sample:
Guardian
Telegraph
The Christian Institute itself reported the judgment this way: Judge rules against Christians in B&B case, but allows appeal
The Equality and Human Rights Commission issued Court finds hotel owners discriminated against gay couple.
The former archbishop, Lord Carey has written a letter to the current prime minister, David Cameron. This is reported in a news article by Tim Ross under the headline Only half of Britons say UK is a Christian country. The text of the letter itself doesn’t appear to have been published yet.
In the letter to the Prime Minister, Lord Carey said Christians were too often “ridiculed” and dismissed as relics of “a bygone age”.
“Notwithstanding its vast and varied contribution to our society, there appears to be a suspicion about the validity and value of the role that the Christian faith plays in our national life,” he said.
“This has been highlighted by the spate of recent instances in which ordinary Christians who have sought to manifest their Christian faith in the workplace and have allowed their Christian conscience to direct their public service have fallen foul of new employment practices and then discovered that rather than protect them, the law has sided against them.”
Lord Carey suggested that recent legislation was unclear on where the balance of rights fell between different groups. One particularly contentious subject has been the clash of rights between homosexuals and Christians.
“Whatever the explanation, this situation needs urgent review and action from government,” he said.
“It is a remarkable state of affairs that, in such a short space of time and in a country that has been so shaped by, and benefitted so significantly from, a Christian foundation, those who hold traditional Christian viewpoints, in common with millions across the globe and across history, can suddenly find their position labelled discriminatory and prejudiced and then discover that it has effectively become a legal bar to public service.”
Earlier, on a BBC radio news broadcast, the Bishop of Winchester, Michael Scott-Joynt also criticised the legal system. Again the Telegraph has the story, see Bishop of Winchester: legal system discriminates against Christians by Rosa Prince.
Bishop Scott-Joynt told the BBC’s World This Weekend: “The problem is that there is a really quite widespread perception among Christians that there is growing up something of an imbalance in the legal position with regard to the freedom of Christians and people of other faiths to pursue the calling of their faith in public life, in public service.
“Probably for the first time in our history there is a widespread lack of religious literacy among those who one way and another hold power and influence, whether it’s Parliament or the media or even, dare I say it, in the judiciary.
”The risk would be that there are increasingly professions where it could be difficult for people who are devoted believers to work in certain of the public services, indeed in Parliament.
“Anybody who is part of the religious community believes that you don’t just hold views, you live them. Manifesting your faith is part of having it and not part of some optional bolt-on.
“Judgement seemed to be following contemporary society, which seems to think that secularist views are statements of the obvious and religious views are notions in the mind. That is the culture in which we are living.
“The judges ought to be religiously literate enough to know that there is an argument behind all this, which can’t simply be settled by the nature of society as it is today.”
The Telegraph is observing Christmas Eve by publishing a clutch of articles relating to possible changes in the law relating to marriage and civil partnerships.
Tim Ross writes that Coalition ministers consider gay marriage plans.
He also provides a Q&A: same-sex marriages and civil partnerships.
The Bishop of Truro, the Rt Rev Tim Thornton writes that Marriage should be between a man and a woman.
And the Rev Sharon Ferguson, chief executive of LGCM, writes that We were brought up to believe we would fall in love and get married.
The Tablet this week has an article about those organizations that support people who make claims of discrimination on the grounds of their Christian faith.
Read Just cause? by Sam Adams.
A new campaign to encourage Christians to show their religion openly has been launched, echoing a concern felt by some that they feel discriminated against because of their faith. But the legal groups that advise them may be simply worsening divisions as they fight their corner…
Here’s a view expressed by Baroness Kingsmill.
It occurs in an article in the St Louis Post-Dispatch which is about the US handling of “Gays in the Military”. She was asked how the UK had dealt with this issue.
Kingsmill offered three insightful reasons.
“First and perhaps most importantly is that we are, by temperamental and historical inclination, a largely liberal-minded society,” she said. “As a small, crowded island we have to be accepting of each other. Wave after wave of immigrants first from the Commonwealth and more recently Europe, have been absorbed mostly without serious concerns. We have acquired the habit of tolerance. Sexual orientation and behaviour is just another aspect of diversity we have learned to embrace.”
Second, the weakening in the influence of the Church and the religious right has also played a role. The Established Church of England is one of the last bastions of anti-gay prejudice still outside the law. It is the only institution that legally can discriminate against the employment of gay people. The church recently fought to retain the right to refuse a religious service to gay couples wishing to marry, even in circumstances in which the church and the priest may wish to perform the ceremony. The Bishops, who have reserved seats in Parliament, face rapidly declining church attendance in the United Kingdom. Kingsmill suggested that it is only a matter of time until this last barrier to full equality falls.
Third, the impact of legislation on social change should not be underestimated. Many major shifts in social attitudes have been preceded by progressive acts of Parliament, sometimes in advance of public opinion. Foremost among these must be the abolition of the death penalty in 1969, when it was likely that a majority of the country still supported capital punishment. Today, polls show there is only a very small minority that would support its reintroduction.
Two Church of England diocesan bishops and two retired Church of England bishops have written to the Telegraph Councils should not discriminate against Christian carers. The full text of the letter is reproduced below the fold.
Jonathan Wynne-Jones had earlier reported the letter in the Telegraph news columns, Christians’ freedom to express beliefs is at risk, warn bishops.
This case has been running for a while. Rachel Harden reported on it for the Church Times in February 2008, see ‘Unsuitable’ foster-parents to appeal.
Update
It may be helpful, as suggested in the Comments below, to provide a link to the earlier McFarlane case in which Lord Carey intervened. The full text of the main judgement was linked from here.
The full text of Lord Carey’s own witness statement was published by Ruth Gledhill on her blog, but is no longer available; however comment on it from the Church Times is still available here. Update Now available in .doc format here.
31 Oct 2010
SIR – On Monday the High Court is to be asked to rule on whether Christians are “fit people” to adopt or foster children – or whether they will be excluded, regardless of the needs of children, from doing so because of the requirements of homosexual rights.
The case involves Derby City Council and Eunice and Owen Johns, both highly experienced foster carers, but whose traditional Christian views have left them penalised under legislation enacted by the former government in the name of equality.
This “equality”, however, privileges homosexual rights over those of others, even though the Office for National Statistics has subsequently shown homosexuals to be just one in 66 of the population.
In January 2007, the Johnses applied to Derby City Council to be respite carers for a single child aged five to 10 years old. However, in August 2007, their orthodox Christian views on the practice of homosexuality and their commitment to attending church with their children came to the notice of a social worker.
As a result, they were withdrawn from the process and deemed “unsuitable” to foster through the council.
The Johnses believe that the desperate shortage of foster carers, and the need for people like them to offer short-term respite care for parents in need of a rest, mean that denying Christians the opportunity to be carers will deeply affect children’s welfare.
The Johnses are a loving Christian couple, who have in the past, and would in the future, give a stable home to a vulnerable child.
Research clearly establishes that children flourish best in a family with both a mother and father in a committed relationship.
A commitment to respecting conscience is the essence of civil liberty. The supporters of homosexual rights cannot be allowed to suppress all disagreement or disapproval and “coerce silence”.
There is a “clash of rights”, which the court must settle. If the court believes that those with traditional Christian views on homosexuality can be discriminated against, the state has taken a position on a moral question, namely that such religious belief is problematic.
However, despite the Sexual Orientation Regulations and the Equality Act, the courts are still able to establish jurisprudence.
We trust and pray that common sense and justice will be done.
Lord Carey of Clifton Former Archbishop of Canterbury
Rt Revd Michael Scott-Joynt Bishop of Winchester
Rt Revd Peter Forster Bishop of Chester
Rt Revd Michael Nazir-Ali Former Bishop of Rochester
According to a report from Catholic News Service by Simon Caldwell English Catholic adoption agency appeals Charity Commission’s decision:
The last remaining Catholic adoption agency in England has filed an appeal against a decision by the Charity Commission for England and Wales forbidding it to turn away same-sex couples as potential adopters and foster parents.
Catholic Care lodged the appeal with the charity tribunal against a ruling by the commission rejecting its application to change its constitution so it could comply with church teaching prohibiting gay adoption and civil laws stopping it from discriminating against same-sex couples.
The agency, which serves the dioceses of Leeds, Middlesbrough and Hallam in northern England, had sought to continue its policy of assessing married heterosexuals and single people as potential adopters, which means it will not deal with gay couples.
But on July 21, the Charity Commission turned down its application on the grounds that it was discriminatory toward homosexuals and in breach of European and British equality and human rights laws.
Catholic Care lodged an appeal against the decision Sept. 28, arguing that commissioners ignored the opinion of a High Court judge, Sir Michael Briggs, who in March ruled in favor of the agency when it first appealed against the commission’s decision.
Benjamin James of London-based Bircham Dyson Bell Solicitors, representing Catholic Care, told Catholic News Service Oct. 4 that the “commission is wrong in its decision.”
He said, “We have lodged an appeal with the charity tribunal and the charity tribunal will request that the Charity Commission responds within 28 days.
“Once the commission has responded, there will be a directions hearing deciding how the case will be managed going forward,” he said.
“The actual appeal is whether the Charity Commission correctly interpreted Sir Michael’s (Briggs) judgment,” he added…
Previous TA reports on this subject are here and also here.
Back in June, I wrote an article for the Church Times, Equality Law will affect church appointments. This is a more detailed look at the same subject, with particular reference to the draft legislation on women bishops that is about to be referred to the dioceses of the Church of England.
That draft measure, GS 1708A as amended by synod in July, contains the following clause:
7 Equality Act exceptions
(1) Section 50(1), (2), (3), (6) and (7) of the Equality Act 2010 (2010 c. 15) (“the Equality Act”) do not apply so far as they relate to sex or religion or belief, in relation to —
(a) any arrangements contained in a scheme made by the bishop of a diocese under section 2,
(b) any request made by a parochial church council under section 3(1) or (3),
(c) any arrangements set out in a notice sent to the secretary of a parochial church council by the bishop of a diocese under section 3(8),
(d) any action taken in exercising functions relating to the appointment of a priest in order to take account of a request made by a parochial church council under section 3(3), and
(e) any provision in a Code of Practice made under section 5.
(2) Subsection (1) is without prejudice to Schedule 9 to the Equality Act
Section 50 of the Equality Act 2010 deals with the particular topic of Public offices: appointments, etc. Under the Equality Act, a Public office is defined as:
a) an office or post, appointment to which is made by a member of the executive;
(b) an office or post, appointment to which is made on the recommendation of, or subject to the approval of, a member of the executive;
(c) an office or post, appointment to which is made on the recommendation of, or subject to the approval of, the House of Commons, the House of Lords, the National Assembly for Wales or the Scottish Parliament.
Clearly, this definition encompasses all Crown appointments, which within the Church of England includes among many others all appointments to bishoprics.
Section 50 goes on to specify the various ways in which discrimination is prohibited in relation to such appointments. For example:
(a) in the arrangements A makes for deciding to whom to offer the appointment;
(b) as to the terms on which A offers B the appointment;
(c) by not offering B the appointment.
It is self-evident that several provisions in the draft legislation are, and are intended to be, discriminatory against women appointees. See, for example, the references to a “male bishop” in the text. Unless a clause along the lines of Clause 7 is included in the draft measure, there will be a clear conflict with Clause 50 of the Act. It is worth noting, perhaps, that this requirement is entirely separate from, and in no way impinges on, the various exemptions for religious organisations which are enumerated in Schedule 9 of the Act.
It is also worth noting that the Second Church Estates Commissioner, Tony Baldry MP, and the former MP, Robert Key, both issued warnings to synod during the debate that even with, or perhaps because of, Clause 7, the draft measure might face opposition in Parliament. See my earlier report women bishops and equality legislation.
Updated again Tuesday afternoon
Adam Wagner has written at the UK Human Rights Blog that the Catholic Care gay adoption rejection boosts equality protection.
The Charity Commission has rejected a bid by a Catholic organisation to amend its charitable objects in order to restrict its adoption services to heterosexuals. The case highlights the significant protections which have been put in place by recent equality law, and the policing role which the Charity Commission is required to play from a human rights perspective…
Martin Pendergast has written at Cif belief that the Catholic gay adoption ruling is a victory for vulnerable children
Neither the pope nor the bishop of Leeds are likely to go as far as Cardinal Sandoval, the Mexican who this week accused civic authorities of bribing the courts. But they will not be at all happy about the charity commission’s rejection of Leeds-based Catholic Care’s application to restrict adoption to heterosexual couples. Lesbian and gay Catholics and many other members of the church will be delighted that this attempt to institutionalise discrimination has been defeated.
Altering charitable objects to avoid compliance with legislation was deeply offensive to many Catholics, and not just lesbian and gay people. Catholic values dictate that a childcare service should do its utmost to find loving homes for the children it exists to serve. If a majority of other Catholic childcare agencies in England and Wales found it possible to comply with the law, why not Leeds? Other agencies lost neither financial nor moral support from their Catholic populations. There was never any evidence that Catholic Care would be any different…
Virginia Ironside has written in the Independent The Catholic Church should stay out of the gay adoption debate.
Sunday update
Paul Vallely has written in the Independent on Sunday Talking over the heads of children.
The Roman Catholic Church and the equality lobby are both wrong: the rights of would-be adopters do not come first.
Monday update
Neil Addison Catholic Care An attack on the idea of Charity
…Also the Commission has dealt a blow to the idea of Charity itself which is the free giving by individuals and organisations to help others. If the Catholic Church (or any other organisation or individual) wants to spend its own money in any way it pleases to help others why should an unelected quango, or indeed an elected Government interfere ? If individuals want to give money to adoption services that serve only heterosexuals, or adoption services for homosexuals, or disabled people or black or white people what right does the government have to interfere with that choice?
The provision of adoption services is a good thing in itself and a charitable purpose and for that reason alone should surely have been permitted even if the Commission felt that the services were provided on too limited a basis. The Commission seems to have regarded Charitable status as a favour granted by itself rather than as a good thing to be encouraged. This decision by the Charity Commission has, quite rightly been criticised as an attack on religious freedom but I would go further it is an attack on freedom itself. If individuals, churches and organisations do not even have the right to choose how to give away their own money then freedom itself ceases to exist.
Tuesday Update
Third Sector reports that Catholic Care considers appeal against Charity Commission over gay adoption
See earlier reports on this case, here, and also here.
Civil Society reports on the latest decision:
The Charity Commission has again ruled that Catholic Care (Diocese of Leeds) may not change its objects in order to exclude homosexual couples from accessing its adoption services.
Despite being told in March by the High Court to reconsider, the Commission has stood by its original decision, arguing that there are not “particularly convincing and weighty reasons justifying the proposed discrimination”.
Speaking about the judgement, the Commission’s chief executive Andrew Hind, said: “In certain circumstances, it is not against the law for charities to discriminate on the grounds of sexual orientation.
“However, because the prohibition on such discrimination is a fundamental principle of human rights law, such discrimination can only be permitted in the most compelling circumstances.
“We have concluded that in this case the reasons Catholic Care have set out do not justify their wish to discriminate.”
Read the news reports:
Guardian Riazat Butt Catholic adoption agency loses bid to bar gay parents from service
Telegraph Martin Beckford Last Catholic adoption agency faces closure after Charity Commission ruling
BBC Catholic charity’s appeal over gay adoption fails
Press Association Bid to block gays adopting fails
Associated Press UK: Adoption charity can’t ban gay couples
Third Sector Charity Commission refuses to change Catholic Care gay adoption decision
Press releases from the principals:
Charity Commission
Catholic charity ‘may not restrict its adoption service’, says Charity Commission
Summary of Decision
Full Document (PDF)
Catholic Care
PRESS STATEMENT : 18th August 2010
The Equality Act 2010 amends the Civil Partnership Act 2004 so as to remove provisions in the Civil Partnership Act 2004 that prevent all ‘religious premises’ being approved for the registration of civil partnerships.
See here for the wording of the amendment, and also see this earlier article for some explanations of the wording.
At the time these amendments were passed, the Church of England which had earlier issued this statement, then also said, as I reported in the Church Times :
A spokesman for the Archbishops’ Council confirmed on Wednesday that the amendment took account of discussions held with the Government. The Church of England’s concern, he said, was to ensure that the regulations provided for an opt-in or opt-out at denominational level. The C of E (and other denominations) wanted to be able to nominate a national body to declare a position on this issue, before individual applications could be made. This was what the Quakers themselves had done (Comment, 12 March).
The government is now holding consultations with “interested parties” in preparation for implementing such provisions. As a recent Government document [PDF] said:
An amendment made to the Equality Act 2010 makes it possible to remove the express prohibition on civil partnerships taking place in religious premises. We want to talk to those with a key interest in this issue about what the next stage should be for civil partnerships, including how some religious organisations can allow same-sex couples the opportunity to register their relationship in a religious setting if they wish to do so.
And on 20 July, the following written answer was given in the House of Commons:
Civil partnership and civil marriage registrations are entirely secular in nature and prohibited from taking place on religious premises or containing any religious language, or religious music.
An amendment made during the passage of the Equality Act 2010 removed the express prohibition on civil partnership registrations taking place on religious premises. In response to this amendment, the Government committed to talking to those with a key interest in this issue about what the next stage should be for civil partnerships. This will include consideration of whether civil partnerships should be allowed to include religious readings, music and symbols. This commitment was made clear in the Government’s published document ‘Working for Lesbian, Gay, Bisexual and Transgender Equality’, published on 16 June 2010.
We will begin this exercise before the summer parliamentary recess.
There are reports of these consultations, which show that some groups are now looking for rather more from the new Coalition government than they were from the Labour one:
The Independent yesterday carried a report that the Liberal Democrat conference next month would consider adopting a new policy, see Lib Dems to vote on full marriage rights for gay couples.
In England, James Kirkup reported in the Telegraph that ‘Gay couples will get equal right to marry’.
Simon Hughes, the Lib Dem deputy leader, said that the Government will allow same-sex couples to have “civil marriage” with same legal status as marriage between a man and a woman.
His comments follow moves by a Lib Dem minister to allow homosexual couples to have religious elements to their civil partnership ceremonies.
Under current rules, same-sex couples can contract a civil partnership, which is recognised in law but not given the same status as marriage for a heterosexual couple.
Mr Hughes predicted that before the next general election, the law will be changed to give an equal right to full marriage…
In Scotland, Rebecca McQuillan in the Glasgow Herald reported on a Fresh call for gay marriages to be legalised
It might be marriage in all but name – but now campaigners want to end that final inequality in gay partnerships.
Senior churchmen and a cross-party coalition of MSPs are demanding a change in the law in Scotland to give same-sex couples full marriage rights.
Polling evidence suggests a majority of Scots would back the move…
And there was also a leader article, Same-sex couples should be afforded equality of treatment.
The following day the same reporter wrote of Roman Catholic reaction, Bishop on same-sex marriage: not now, not ever…
The Catholic Church will never celebrate same-sex unions – “not now, not in the future, not ever” – even if the law changes to allow religious celebrants to conduct gay marriages, the Bishop of Paisley, Philip Tartaglia, has told the Prime Minister…
The Irish Civil Partnership Bill was signed into law by the President of the Republic yesterday. The bill was passed without a vote in the Dail (the lower house of the Irish parliament) and was supported in the Seanad (Senate) with only 4 dissenting votes, out of 52.
Irish Times Signing into law of new civil Bill welcomed
Some earlier reports:
According to RTE in this report Civil Partnership Bill passes the Seanad:
The Seanad rejected, without a vote, an amendment that would have allowed Registrars opt-out of presiding over civil partnership ceremonies.
The so-called ‘conscientious object’ amendment had been tabled by Independent Senator Rónán Mullen, however the matter was not put to a vote because not enough Senators called for one.
Senators spent three hours discussing the amendment, in total there were 77 amendments down for discussion.
Irish Times Bill’s success shows ‘society’s maturity’ and ‘Historic advance’ for equality as Civil Partnership Bill passed.
A recent UK Supreme Court case concerned the deportation of gay asylum seekers. As the UKSC blog explained:
Under the Convention on the Status of Refugees, members of particular social groups (which can include groups defined by their sexual orientation) are entitled to asylum where they can establish they would face a well-founded fear of persecution if they returned to their home states. The issue concerned the extent to which those who seek asylum will, if returned to their countries of origin, be able to conceal, or at least be discrete about, characteristics of themselves which give rise to the fear of persecution. The Supreme Court unanimously overturned the Court of Appeal’s decision that it was permissible to return a person if they would conceal their sexuality in order to avoid being persecuted, provided their situation could be regarded as “reasonably tolerable”. To compel gay people to pretend their sexuality does not exist is to deny him his fundamental right to be who he is. Simple discriminatory treatment does not give rise to protection under the Convention, but the Convention does not envisage applicants being returned to their home country “on condition” they take steps to avoid offending their persecutors.
The full judgement is available here.
Aidan O’Neill has written Some Reflections on Religion, Sexuality and the Possible Transatlantic Implications of the HJ (Iran) v. Home Secretary [2010] UKSC 31
In HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 the UK Supreme Court held that gay people cannot properly be required or expected under international asylum/refugees to conceal their sexuality/pass as straight to avoid State sponsored but usually religiously inspired persecution in their home countries. The central point about the UKSC decision is that the court rejects the cogency of any distinction between acting on one’s sexual orientation and being of a particular sexual orientation. It was argued by the Home Office that it could properly send back avowedly gay men to Iran and Cameroon respectively on the basis that, if they were to be discreet (not – openly – act on their sexual orientation) they would not invite persecution…
He goes on to review some American legal comment on the decision, and concludes:
…what seems to concern the Professor and what he seems to be driving at, is a suggestion or feeling that the specifically religious motivation for discriminatory attitudes and practices resulting in State persecution, should be worthy of some respect and deference from the courts. But his objection to Lord Hope’s use of the word “misguided” itself seems to be misguided, in that it is clear from the passage quoted that Lord Hope was not there seeking to make any theological point, or to suggesting that the anti-gay views expressed were not in fact true expressions of the particular religious beliefs described. Rather the tenor of the whole court’s decision in HJ (Iran) is that those religious beliefs when acted upon are morally wrong because inimical to the proper respect for individual human dignity that is incumbent upon all States and societies.
The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world. An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge. There is no usurpation of power in the judges so doing in this particular case.
The following article appeared in the Church Times on 11 June 2010.
Equality Law will affect church appointments
by Simon Sarmiento
THE Equality Act 2010 will apply to all Crown appointments of clergy when it comes into effect later this year, probably in October.
Until now, anti-discrimination law has not covered clerical office-holders in the Church of England. But the definition of “public office” in the new Act will bring within its scope all posts to which appointment is made on the recommendation of a minister of the Crown.
Another category of posts defined in the Act is that of “personal office”-holders. But a Church House spokesman said last month that “That definition probably applies only to stipendiary curates. It does not apply to incumbents or priests-in-charge who are not ‘appointed to discharge a function personally under the direction of another person’.”
One consequence of this change is that legislation to allow women bishops in the C of E will need specific provisions to widen the existing exemptions. As the revision committee’s report explains: “essentially, the Equality Act provides . . . that a person can be excluded from consideration for appointment to a public office altogether on the grounds of sex,” but would not “allow a woman to be appointed a diocesan bishop but on the basis that . . . she would refrain from carrying out certain functions herself (because of her sex)”.
This is not the case under the current Sex Discrimination Act 1975, which contains an express exemption in wider terms for ministers of religion. Modifications made to this exemption in 2005 included the repeal of an earlier specific provision inserted in the Priests (Ordination of Women) Measure 1993.
Clause 7 of the Draft Bishops and Priests (Consecration and Ordination of Women) Measure contains an exemption from relevant clauses in the Equality Act that deal with the “terms on which an appointment is made”. The Government Equalities Office told Church House staff that “We have no doubt that Parliament will consider very carefully, and with good will, any measure that the Church of England as a whole ultimately feels is necessary to achieve this objective.”
The 1975 Act will be repealed at the same time as the new 2010 Act comes into effect, but the current exemptions in the former are carried forward in Schedule 9 of the new Act.
A Church House spokesman said on Friday, however: “In so far as anything in the 1993 Measure conflicts with Part 5 of the Equality Act it is rendered lawful by Schedule 9 paragraph 2 of the Act. But not all the arrangements contained in the 1993 Measure do conflict with Part 5 of the Act because Part 5 does not cover all the clergy.”
When asked whether it agreed that many clergy were not covered by the Equality Act, a government spokesman said on Monday: “The policy is to provide protection to those in employment and employment-related positions (meaning, roughly, where someone has sufficient direction and control over another such that discriminating against them could seriously impede their ability to obtain/engage in gainful work, thereby compromising their ability to provide for themselves), implementing our EU obligations and domestic policy. It is for the tribunals to decide whether any definition is satisfied on the facts of each case.”
The UKSC blog, which is focused on the new UK Supreme Court, has published an article by Aidan O’Neill QC titled Religion and the Judiciary.
He discusses several recent situations where the personal religious convictions or cultural background of judges have given rise to comment, and in particular the recent intervention by Lord Carey in McFarlane v Relate Avon Ltd.
He concludes:
The paradox is that the obvious tension between the views expressed by Lord Carey and their unequivocal rejection by Lord Justice Laws arises precisely because of the expansion of anti-discrimination law explicitly to outlaw discrimination on grounds of religion or belief. What the religiously motivated find difficult to understand or accept is that the freedom from discrimination on grounds of religion or belief which has been afforded them by the law does not extend to giving the religious a general right to discriminate (on otherwise unlawful grounds such as sex, age, race, disability, or sexual orientation) on the basis of religion or belief. There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue. The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.
Updated 3 June
See earlier reports here.
The full judgment is available in English here (PDF also available there), or as a Word file, downloadable here.
Neil Addison notes that a relevant bit of history is contained in paragraph 16, see here.
The next hearing in the case will be at the European Court of Human Rights in Strasbourg on 30 June.
The Italian Government has submitted a brief (PDF), which is so far only available in French.
Several other parties have filed Amicus Curiae briefs in this case. Here are links to some of them.
The European Centre for Law and Justice has filed a brief (PDF).
See their press release: The ECLJ Admitted as Amicus Curiae in the Italian Crucifix Case Before the European Court of Human Rights.
The American-based Alliance Defense Fund has submitted a brief (PDF) on behalf of 32 members of the European Parliament.
See their press release: Court grants ADF request to allow 32 members of European Parliament to defend Italy in cross case.
Another American-based group, the Becket Fund for Religious Liberty has also filed a brief (PDF) prepared by a team of 37 law professors.
See their press release: 37 Law Professors Urge European Court to Reject Ruling Banning Cross from Italian Classrooms.
Also, the European Humanist Federation has filed this brief (PDF). More from the EHF available here. Update This organisation has had its application to intervene rejected.
Update
There are also reports that ten European states have joined Italy in petitioning the European Court of Human Rights to overturn its decision. They are reported to be:
I have not so far linked to the detailed Church Times report on the latest judgment, written by Shiranikha Herbert and published on 7 May. Here it is: McFarlane’s appeal is refused.
In the same issue, there was a news report headlined Bishops criticise ‘secular’ judgment.
And Andrew Brown devoted most of the Press column to this: The Lord and the Law Lord.
Even earlier Carl Gardner had written on his own blog, on 30 April Short shrift for Lord Carey.
And the day before, Heresy Corner had published Laying down the Laws.
Nancy Doyle asks on the Charities_Parliament blog Was Lord Carey right to question ruling made against Christian who refused to treat gay couple?
Tom Chivers at the Telegraph argues that Religious beliefs should not trump the laws of the land.
George Pitcher does not agree.
From Eastbourne comes Christians warned of increasing marginalisation in the UK, a report on a conference where Bishop Wallace Benn, Oak Hill principal Mike Ovey, and others attacked Lord Justice Laws:
“Lord Laws also believes something, he fails to see that he has a faith too … secularism fails to understand that it is a religion.”
And there is an interview with Bishop Benn over here: Wallace Benn on the marginalisation of Christians in the UK.
But best of all, in today’s Guardian Stephen Bates tells us how Anglican the judge at the centre of this controversy really is. In the Diary column he writes:
…So just who is this wicked, secularist judge who doesn’t understand the former archbish’s concept of Christianity? Intriguingly, it turns out that Laws could scarcely be more Anglican if he tried…
Last week, before the McFarlane judgment was issued, the Church Times carried an article by Mark Hill entitled Judges should not be hand-picked.
One might be forgiven for thinking that Lord Carey of Clifton has generated more column-inches since retiring as Archbishop of Canterbury than he did when in office. His latest foray into the nation’s media is more than usually regrettable, as it strikes at the heart of the independence of the judiciary.
In a witness statement placed before the Court of Appeal on Thursday of last week, Lord Carey sought to lend his support to an application by Gary McFarlane that his case be heard by a specially constituted Court of Appeal comprising five Lords Justice who had “a proven sensitivity to religious issues”.
By what authority he sought to intervene is far from clear. He gave written evidence that, during his time as 103rd Archbishop of Canterbury, he was “responsible for the spiritual welfare of 70 million Anglicans in the worldwide communion” — a curious assertion in the light of the principle of autonomy underscored by the Lambeth Quadrilateral (See Press) His compulsion to intervene was couched as follows: “I am bound by my commitments as former Archbishop of Canterbury to defend the spiritual requirements of the Anglican Communion and of all sincere Christians. I am also bound to consider the rights of religious minorities.”
He seems to forget that, after he vacated the see of Canterbury, his successor inherited these responsibilities. As Monty Python would put it, he is an ex-Primate…
The same issue had comment on this topic by Andrew Brown in the Press column (scroll down past the pope stuff).
LORD CAREY’s impulse to self-dramatisation as a member of a persecuted Church is not as sinister as Cardinal Castrillón’s. Sorry, that was disrespectful: let me quote his proper dignities, as set out in the preamble to his witness statement: “I was the 103rd Archbishop of Canterbury and I was responsible for the spiritual welfare of 70 million Anglicans in the worldwide communion. I was created Lord Carey of Clifton upon retirement. . . Currently, I am Chancellor of the University of Gloucestershire, and I am the recipient of 12 Honorary Degrees. I am the author of 14 books.” Not even Baron Widmerpool could boast as much, and he had the advantage of an Eton education…
Updated twice
James Meikle Guardian Ex-archbishop attacks judges over gay counselling ruling
Independent
Jerome Taylor Church’s call for religious judges is rejected by Court of Appeal and
Robert Verkaik Lord Carey’s proposal is a step back to medieval days and
Steve Clifford If Christians are marginalised, it is not just the fault of secular society
Steve Doughty Daily Mail Judge rules Christians have NO special rights as he throws out case of sex therapist who refused to work with gay couples
Telegraph
John Bingham Gary McFarlane: judge’s assault on ‘irrational’ religious freedom claims in sex therapist case and
Gary McFarlane: the counsellor whose case led to warnings of ‘civil unrest’ and
Michael Nazir-Ali The legal threat to our spiritual tradition
Andrew Brown Cif belief Carey slapped down by senior judge
Neil Addison What is Religious Discrimination ?
Heresy Corner Laying down the Laws
Philip Henson Cif belief Carey’s intervention backfires
And here is an older article by him , written before the judgment, which I failed to link to previously.
The church cannot claim ‘superior right’
Christian Institute Christian counsellor appeal turned down
Letter to The Times (Saturday edition) Christian courts
In his judgment, Lord Justice Laws said this…
20. …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.
You can learn something more about Paul Diamond by reading this interview with him in last week’s Church Times.
Updated twice Thursday afternoon
Telegraph Judge dismisses counsellor’s bid to appeal sacking over refusal to help homosexuals
BBC Relate therapist Gary McFarlane loses appeal bid
Read the full text of the judgment here.
More press coverage:
Press Association via the Guardian Christian counsellor loses court fight over sacking
and another PA version, this time via the Independent Sacked Christian counsellor Gary McFarlane’s appeal bid dismissed
The Times Frances Gibb Special legal protection of Christianity ‘divisive, capricious and arbitrary’ headline now changed to: Judge rejects ‘irrational’ idea that Christianity deserves special protection from law
Ruth Gledhill We have never said anti-gay Christians are bigots, says Judge
Reactions from campaigning groups:
Christian Concern for our Nation
The Equality Bill received the Royal Assent on 8 April.
The full text of the Equality Act 2010 can be found here:
The Act will start to come into force from October 2010. More information on that is here.
The text of the debate in the House of Commons on Tuesday 6 April, when all the House of Lords amendments were approved without any voting taking place, can be found here:
During the debate, the Solicitor-General said:
The House might recall that it was mentioned on Report and Third Reading that the European Commission had delivered a reasoned opinion in November 2009 on two aspects of our implementation of this directive. We have now responded to that opinion, although the correspondence is kept confidential. However, as my noble Friend Baroness Royall explained on 25 January in the debate in Committee in the other place, we did not inform the European Commission that the Bill will amend regulation 7(3) of the 2003 regulations, which paragraph 2 of schedule 9 replaces, to bring the position into line with the directive. We did not say that because the existing legislation already complies with the directive. I ask the House to agree to these amendments.
Doug Chaplin has fisked the witness statement at One law for us, one for you: the Carey-a Sharia revisited.
Afua Hirsch in the Guardian has written Lawyers reject calls for Christian-sensitive judges.
Stephen Bates at Cif belief has written Lord Carey’s bloated conscience.
Earlier yesterday on the Today BBC radio programme, Barrister Dinah Rose and Andrea Williams of Christian Legal Centre discussed the implications. (hat tip SB).
Ruth Gledhill has the full text of the witness statement made today in the High Court by Lord Carey, in the case of Gary McFarlane.
Read it at Carey warns of ‘civil unrest’ over ‘dangerous’ anti-Christian rulings.
Updated twice Thursday morning and twice Thursday afternoon
According to Andrew Alderson in the Telegraph:
Lord Carey, the former Archbishop of Canterbury, and other church leaders will urge senior judges to stand down from future Court of Appeal hearings because of “disturbing” and “dangerous” rulings they issued in recent religious discrimination cases.
Senior churchmen do not think they have any chance of a “fair” ruling if the latest significant hearing – due on Thursday – is heard in front of those judges who, they argue, have already shown a lack of understanding of Christian beliefs….
Lord Carey and others will this week support a formal application by lawyers acting for Gary McFarlane, a Christian relationship counsellor, that a specialist panel of five judges with a proven understanding of religious issues and headed by Lord Judge, the Lord Chief Justice, should be established to hear his case and future cases involving religious rights.
See Church leaders head for showdown with top judges over bias against Christians.
Also, Laura Clark in the Mail reported that:
Lord Carey will back an application by Mr McFarlane’s lawyers for the case to be heard by a specialist panel of five judges with an understanding of religious issues.
It would be headed by Lord Judge, the Lord Chief Justice.
A spokesman for Lord Carey yesterday confirmed the former archbishop has already prepared a witness statement.
He will warn of ‘disturbing’ rulings and ‘dangerous’ reasoning in previous cases. Other senior church figures are also said to have prepared statements.
See ‘Anti-Christian’ judges should be banned from religious cases, says Lord Carey
Responses to this include:
Ruth Gledhill in The Times It can only harm Christians to bleat about persecution and be sure to watch the video version as well.
In Britain Christians cry: “We are being persecuted.” But the lions don’t exist beyond their imaginations or the arena beyond their story books. Lord Carey of Clifton, the former Archbishop of Canterbury, and his fellow victims are giving all Christians a bad name. It is time for liberals to stand up and say: “We will not be slain by this malevolent spirit, not even when the persecutors are our fellow Christians…”
Andrew Brown at Cif belief Carey’s court is an admission of defeat
…But as soon as the church, or Christianity, becomes just another pressure group fighting its corner, it has conceded the power to grant legitimacy to something else, whether this is public opinion or the political process. And from a position outside Christianity, it is absurd to demand that cases involving Christians and their tender consciences be tried by Christians, but corresponding cases involving Muslims should not be tried by Muslims.
And also there are statements from the British Humanist Association and the National Secular Society.
Updates
Telegraph Peter Hutchison ‘Persecuted Christians’ join forces
The letter mentioned in this report can now be read here (scroll down) or in the comments below.
Press release from CCFON, titled (the quotation marks are theirs!) ‘Christian Victims’ of English Judicial System to Challenge Master of the Rolls - today in Court
Frances Gibb The Times Lord Carey warns of ‘unrest’ if judges continue with ‘dangerous’ rulings
Lord Carey of Clifton, the former Archbishop of Canterbury, warned today of future “civil unrest” if judges continue with “disturbing” and “dangerous” rulings in religious discrimination cases.
He intervened in a case being brought by a Bristol solicitor and relationship counsellor who wants a special panel of five senior judges to hear his appeal against being sacked for refusing to counsel homosexual couples.
Lord Carey, who was Archbishop of Canterbury from 1991 to 2002, attacked the courts over a series of “disturbing” judgments and accused judges of being responsible for some “dangerous” reasoning which could, if taken to extremes, lead to Christians being banned from the workplace.
“Recent decisions of the courts have illuminated insensitivity to the interests and needs of the Christian community and represent disturbing judgments,” he said in a witness statement.
Lord Carey said it was “but a short step from the dismissal of a sincere Christian from employment to a “religious bar” to any employment by Christians.”
Lord Carey, who said he had the support of several other Anglican bishops and other leading churchmen, also attacked recent decisions by the Court of Appeal on the right of Christians to wear crosses in the workplace…
And also, Peter Hutchison Telegraph ‘Civil unrest’ warning over ‘un-Christian’ rulings
…Paul Diamond, who was applying to the Court of Appeal for permission to challenge an employment tribunal ruling which backed the sacking of Mr McFarlane, said: “There will be a collision between the established faith of this land and judicial decisions which will lead to civil unrest.”
He added that laws protecting religious freedom now “counted for nothing” in the courts.
The Equality Bill completed its passage through the UK Parliament yesterday when the House of Commons accepted all the Lords amendments. It will now go for Royal Assent.
Press Association Equality Bill sent for Royal Assent
Ekklesia Faith groups hail new law allowing civil partnerships on religious premises
The Equality Bill received its third reading in the House of Lords yesterday. Reports of the debate are online at They Work for You and Lords Hansard. The amendments to clause 202 (amendments 4 and 5 in the debate) that we detailed earlier were carried. The bill now returns to the House of Commons for consideration of these and all the other Lords amendments.
Martin Beckford writes in the Telegraph Government insists vicars will not be sued for refusing ‘gay marriages’ in churches.
Simon Caldwell and Martin Beckford also wrote in the Telegraph before the Lords third reading debate that Equality Bill could be amended by Lords to benefit Catholic adoption agencies but the amendment referred to (number 7 in the debate) was not moved.
The Cutting Edge Consortium has issued a press release:
CUTTING EDGE CONSORTIUM URGES HOUSE OF LORDS TO VETO MORE RELIGIOUS EXEMPTIONS IN EQUALITY BILL
The Cutting Edge Consortium (CEC) deplores the tabling, yet again, of an amendment to the Equality Bill, this time by Baroness Williams of Crosby, designed to provide an explicit exemption for religious fostering and adoption agencies from anti-discrimination law. The aim of Equalities legislation should be that services targeted at various population groups are provided in the overall context of achieving a more equal society, not to institutionalize discrimination.
(continued below the fold)
Equality Bill
Attempts to amend the Equality Bill to provide a new exemption specifically for religious fostering and adoption agencies have been repeatedly rebuffed in both Houses of Parliament. Recent attempts were made in the House of Lords by Lord MacKay of Clashfern and by Baroness Butler-Sloss. CEC agrees with Baroness Murphy’s comment at Committee stage:
“I would defend to the death the rights of religious groups and organisations to believe what they want to believe but, when it comes to how those religious groups behave in relation to the rest of society, they cannot exercise a right that so diminishes the rights of other groups. … these amendments are deeply, offensively, homophobic.”
CEC’s Maria Exall said:
“Everyone committed to promoting equality and non-discrimination will be alarmed that charities providing key services in the public interest will be able to act in a prejudicial way to LGBT people if these amendments are passed.”
CEC notes that claims are often made that this involves a matter of religious ‘doctrine’ but, for example, Catholic teachings on sexual orientation are not to be considered as “core doctrine”, and are officially recognised by the Vatican and Catholic theologians world-wide as Third Level teachings and subject to development. As such they require “religious respect” from Catholics but are also capable of conscientious dissent. Such dissent does not excommunicate anyone from the Catholic Church. The avoidance of conflict “with the strongly held religious convictions of a significant number of the religion’s followers” ignores the reality that many people of faith exercise their right to dissent in this area of religious teachings across a number of faiths and denominations.
CEC urges all Peers to use the final stages of the Equality Bill to close any loosely worded loopholes in existing legislation and to reject the amendment to Schedule 3 of the Equality Bill tabled in the name of Baroness Williams of Crosby for consideration at Third Reading on 23 March 2010.
Catholic Care & the Charity Commission
The CEC notes with concern this week’s High Court judgment in the case brought by the Leeds-based Catholic Care child-care agency. CEC urges the Charity Commission to take careful account of how other Catholic adoption agencies have dealt creatively with this matter, before accepting the arguments that Catholic Care will now have to make in order to pursue its case.
Catholic Care seeks to change its charitable objectives so that it will be lawful for it to discriminate against same-sex couples seeking assessment as prospective foster-carers or adoptive parents. These revised objectives would expressly state:
“The Charity would only provide adoption services to heterosexuals…”
The Charity Commission must now consider whether the benefits of the charity operating in this discriminatory manner outweigh the disbenefits of it not operating at all.
That need arises solely because Catholic Care has itself decided that if the change is not approved, it will close down rather than follow one of the alternative routes used by other Catholic adoption agencies in responding to the Equality Act (Sexual Orientation) Regulations 2007.
The majority of other Catholic adoption agencies have not closed down. A minority has chosen to discontinue adoption work while still providing other services. Over the past 30 years, many of these agencies have never discriminated against either single homosexual people or, more recently, same-sex couples since legislative changes enabled such joint adoption. They do not propose to do so now. It is also crucial to note that children placed with such agencies are in the legal care of the local authority, not the agencies themselves. No local authority would wish to place a child with a charity which it perceives as discriminatory.
Although these agencies may no longer have the local Diocesan Bishop as a Trustee, they remain Catholic charities, retaining a majority of Catholic Trustees, fundraising in the Catholic community, pastorally supported by their relevant Bishops, Dioceses, local clergy and people, and have not changed their principle charitable aims/objectives apart from, in some circumstances, a change of name, e.g Caritas Care (Lancaster), Cabrini Childrens Society (Arundel & Brighton, Portsmouth, & Southwark), Faith in Families (Nottingham). Other Catholic agencies, such as Westminster Catholic Childrens Society and Catholic Care Leeds, have never accepted lesbian or gay applicants singly or as couples.
Most of these agencies remain members of Caritas Social Action, the officially recognised social welfare agency of the Catholic Bishops Conference of England & Wales.
It remains open to the Charity Commission to find that, on the evidence presented to it in this specific case such a change would not overall result in public benefit or gain. CEC believes that evidence should include the experience of other similar agencies.
The judge also noted that his decision was not a carte blanche for other religiously-based charities which provide public services and receive public funding to simply change their charitable instruments to introduce an expressly discriminatory element. Each case has to be evaluated by the Charity Commission on its merits.
Note for Editors:
The Cutting Edge Consortium, launched in November 2009, consists of lesbian, gay, bisexual, and transgendered groups, political and social justice activists, people of all faiths and none, trades unions and professional associations. It includes: a:gender, British Humanist Association, Centre for the Study of Christianity & Sexuality, Ekklesia, Inclusive Church, Interfaith Alliance UK, Lesbian & Gay Christian Movement, LGBT Consortium of Voluntary & Community Organisations, Liberal Judaism, Muslim Education Centre Oxford, National Secular Society, Pink Triangle Trust, Progressive British Muslims, Trades Union Congress.
Further information: cuttingedgeconsortium1@googlemail.com
Martin Pendergast - 020 8986 0807
Maria Exall - 07714 206404
The Republic of Ireland is considering a Civil Partnership Bill.
See this earlier report on what the Evangelical Alliance Ireland said about it.
The Church of Ireland Gazette has a report this week on what the Church of Ireland is doing in relation to it. See C. of I. delegation on Civil Partnership Bill (scroll down for item).
…”The group expressed the view that many in the Church of Ireland would welcome the legislation and that it was important that Government legislated for all its citizens. They did, however, raise issues relating to freedom of conscience and property.”
In response to a request for further information on those issues, the Gazette was told that some members of the delegation had expressed concern over freedom of conscience issues for registrars who may have objections to participating in civil partnership ceremonies for same-sex couples.
The issues of property, we were told, related to the availability of parish halls under the Equal Status Act in respect of goods and services. We were told that clarity was also sought on the issue of Church halls that were not made commercially available, and that Department officials had said they would respond on that point…
First of all, the articles, letters previously listed from last week are now all available without subscription.
Second, this week’s news report written by me can be read now, see Alteration proposed for Bill.
…The effect of the amendment is to require that the approval of individual religious premises for the registration of civil partnerships needs consents from a “person specified, or a person of a description specified” in new regulations to be laid before Parliament after consultation with various religious bodies.
The present rule forbidding the use of any religious premises for civil-partnership registrations remains in force in the mean time. The amendment specifically allows for distinctions to be made, not only between religious premises and “other premises” but also between different kinds of religious premises. For example, the arrangements for Quakers might be different to those for Liberal Judaism. Nor would it be necessary for the regulations governing civil partnerships to be identical to those relating to civil marriages in the same venue.
A spokesman for the Archbishops’ Council confirmed on Wednesday that the amendment took account of discussions held with the Government. The Church of England’s concern, he said, was to ensure that the regulations provided for an opt-in or opt-out at denominational level. The C of E (and other denominations) wanted to be able to nominate a national body to declare a position on this issue, before individual applications could be made. This was what the Quakers themselves had done (Comment, 12 March)…
And the CT blog has noted that Equality Bill: Amendment allowing civil partnerships in church buildings could be lost, and linked to the letter already published here.
Updated
The Chancery Division of the High Court has published its decision in the case of Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Ano[the]r.
You can read the ruling in full here, as web pages, or here as an .rtf file.
Earlier documents in the case (mentioned in the above) can be found here.
A press release from Catholic Care can be found here, and one from Stonewall can be found here.
There are newspaper reports:
The Times High Court reverses ban on Catholic Care’s anti-gay adoption policy by Ruth Gledhill and Rosemary Bennett and see also Catholics win latest stage in gay adoption battle on Ruth’s blog.
Guardian Riazat Butt Catholic adoption agency can turn away gay couples
Telegraph Matthew Moore Catholic adoption agency wins gay rights exemption ruling
Press Association Adoption society wins gay ruling
Reuters Catholic charity wins gay adoption ruling
Independent Sarah Cassidy Catholic group granted gay adoption exemption
Updates
Some of the press reports give an erroneous impression of what has happened so far. This report by Joshua Rozenberg is more re