Comments: Another B&B owner loses discrimination case

Leaving aside the well trodden facts of this debate, I have to say that I struggle with the definition of what constitutes religious belief and who has the right to define it.

Is it based on the fact that a majority of Christian churches still officially consider same sex relationships to be immoral?

What if someone who did belong to a liberal religious body, say the liberal Jews who want to celebrate same sex marriages, personally still thought that God prohibits same sex relationships.
Would the official views of the religious organisation be the determining factor or the individual view of a member of the congregation?

If the established church in Britain ended up officially supporting same sex marriage, would it still be possible for Christians who are members of the CoE to claim that their religious belief prevents them from offering services to a gay couple?

Is anything I personally object to because of my understanding of God protected, or are there defined boundaries?

Posted by Erika Baker at Tuesday, 23 October 2012 at 9:57am BST

I wonder what would happen if a Christian B&B owner turned away a couple whom they knew to be committing adultery. Would the same legal arguments apply?

Posted by David Keen at Tuesday, 23 October 2012 at 3:46pm BST

Would-be proprietors HAVE to understand that opening a business to customers, is NOT the same as opening your home to invited guests. In the latter, personal discretion and "Owner's Rules" are supreme. In the former, they are subject to considerably more laws.

Posted by JCF at Tuesday, 23 October 2012 at 10:29pm BST

Erika:

Conerning what it recognises as a religious belief system, the ECtHR will rely on domestic authorities in the first instance.

Article 9 guarantees “freedom, either alone or in community with others and in public or private, to manifest [one’s] religion or belief, in worship, teaching, practice and observance”

A key distinction is drawn between an activity central to the expression of a religion or belief, and one which is merely inspired or even encouraged by it. The action must be prescribed, rther than just motivated. Typically, the prescription would take the form of

In the instances that you cite, I still think those holding the minority position would be protected from coercion to actually perform a ceremony on pain of exclusion. However, an individual who is part of such an organisation does not have the right to perform a ceremony in an official capacity for the organisation, but it contradiction to it.

http://www.coe.int/t/dghl/cooperation/capacitybuilding/Source/documentation/hb09_rightfreedom_en.pdf

Posted by David Shepherd at Wednesday, 24 October 2012 at 7:01am BST

David,
thank you.

So would it be possible, for example, for a Roman Catholic couple to refuse a B&B room for a married couple if it was known that one of the couple had been divorced? Because very strictly speaking Catholics consider the second marriage to be an adulterous one.

Posted by Erika Baker at Wednesday, 24 October 2012 at 7:53am BST

Sorry, I meant to say,

A key distinction is drawn between an activity central to the expression of a religion or belief, and one which is merely inspired or even encouraged by it. The action must be prescribed, rather than just motivated. Typically the prescription would take the form of an historic mandate, scripture or canon, enjoined upon all adherents.

In the instances that you cite, I still think those holding the minority position would be protected from coercion to actually perform a ceremony on pain of exclusion. However, an individual who is part of such an organisation does not have the right to perform a ceremony in an official capacity for the organisation, but in contradiction to its precepts: 'Where the individual and collective aspects of Article 9 may conflict, it will generally be appropriate to consider that the collective rather than the individual manifestation of belief should prevail'

http://www.coe.int/t/dghl/cooperation/capacitybuilding/Source/documentation/hb09_rightfreedom_en.pdf

Posted by David Shepherd at Wednesday, 24 October 2012 at 8:39am BST

David,
I'm not talking about anyone performing any ceremonies but, in reference to the topic of this thread, people seeking religious exemption from providing commercial services to anyone who offends their religious sensibilities.

Posted by Erika Baker at Wednesday, 24 October 2012 at 4:21pm BST

Erika,

There are a number of key issues that would apply to your hypothetical:
1. The court considers private homes to fall within the scope of Equality regulations, once people pay to stay in them for a short time. It doesn't matter whether the guest rooms are in an annexe or the heart of that house.
2. The court upheld that running a business in accordance with Christian principles was a manifestation of belief withing Article 9(2).
3. Nevertheless, if comparison with first marriage couples proves that re-married divorcees are treated less favourably, then this limits the religious exemption provided by 2.
4. A business policy will only be interpreted as a manifestation of belief if it is applied uniformly.
5. Even if a Roman Catholic couple advertised the no-divorcees policy on the booking form or uniformly questioned all couples in respect of their marital history, their right to manifest that belief under Article 9 may be lawfully restricted in a democratic society under Article 8 (2).
6. Permitting a couple to stay in the double room does not involve the same moral imposition as being forced to profess something (as a school teachers might) contrary to their beliefs.
7. The judge concluded in respect of the B&B: 'It seems to me that the Defendant has a choice whether or not to operate this particular business; it is not a case where an employee has had new duties imposed on him by an employer' In this sense, it differs significantly from Ladele vs. Islington.

The crucial difference between your hypothetical and the recent case is the higher level of cogency that a manifestation of belief requires for exemption when the difference in treatment relates to sexual orientation.

Posted by David Shepherd at Thursday, 25 October 2012 at 12:27am BST

David,
thank you.
This still leaves me wondering how "religious belief" is actually defined. Is it something that most members of a particular faith believe, by doctrine or convention? Or is it something that the religious organisation an individual belongs to believes, or can it simply be something an individual holds to be true?

Posted by Erika Baker at Thursday, 25 October 2012 at 8:30am BST

Erika,

This is fruitful. To quote from the link 'the belief must “attain a certain level of cogency, seriousness, cohesion and importance”;...the belief itself must be one which may be considered as compatible with respect for human dignity...the belief must relate to a “weighty and substantial aspect of human life and behaviour”

It's a belief if you can demonstrate that it relates to important values of society and has a major impact on human life and behaviour.

It's a belief if it's part of a framework of other central tenets about life that can be proven to hold together under scrutiny.

It's a belief if the position you hold can be reasonably deduced from those tenets. Obviously, it's less convincing when there is no clear link between the belief and other tenets.

Although, it's individual belief that's protected, belief is easier to prove when it's deduced from explicit authoritative teaching of a religion, such as scripture.

The basic purpose of Article 9 is to prevent state indoctrination of individuals by permitting the holding, development, and refinement and ultimately change of personal thought, conscience and religion.

So, a publisher can distribute a pamphlet in support of heterosexual marriage and challenge the underpinning arguments for same-sex marriage.

A publisher cannot be penalised for balking at publishing a magazine after discovering that it will promote same-sex marriage contrary to the essence of his/her belief.

A publisher can be penalised for promoting views that present the choices of gays and lesbians as not simply very strong reasoned disagreement, but that they are an exceptionally perverse class of people. The legal focus is on preventing attempts to spread a wholesale derogatory characterisation of those who share a protected characteristic.

Of course, ultimately, the publisher can and should decide whether the most critical part of any such decision is how he/she will fare before the law courts, or before the accusation of his own conscience.

As Christ said:'don't begin until you count the cost. For who would begin construction of a building without first calculating the cost to see if there is enough money to finish' Luke 14:28. He knew the He would eventually cross swords with the legal system and have to let them do their worst.

Posted by David Shepherd at Thursday, 25 October 2012 at 10:11am BST

David
thank you again.

'To quote from the link 'the belief must “attain a certain level of cogency, seriousness, cohesion and importance”;...the belief itself must be one which may be considered as compatible with respect for human dignity...the belief must relate to a “weighty and substantial aspect of human life and behaviour”'

In which case, something external like wearing crosses, that can be said to be important to an individual but it is not a "weighty and substantial aspect of human life and behaviour" should not really come under the framework of religious exemption?

And this: "”;...the belief itself must be one which may be considered as compatible with respect for human dignity..."
indicates that the kind of belief that could be protected is not static but can change over time.

It was, for example, once possible to believe in Apartheid while maintaining a Christian respect for human dignity, yet no-one would consider this now to be a belief that respects the dignity of black people.

So there has to be some kind of assessment and arbitration to decide what considers religious belief in individual cases at any given moment in time?

Posted by Erika Baker at Thursday, 25 October 2012 at 12:47pm BST

I would add that the arbitration should occur a lot earlier than after litigation has started.

I think that the concern in some circles is 'why can't Christians enjoy the same sort of workplace accommodation that is extended to other faiths in respect of outward emblems of faith?' Not all cases involve the issue of sexual orientation discrimination.

There are even fair-minded non-Christians who believe that religious extremism has cowered employers into unduly accommodating the manifestations of minority faiths. They understand that these emblems are not compulsory aspects of religious adherence, yet wonder why employers treat the externalisms of other faiths and sexual minorities with almost obsequious accommodation, while censoriously singling out Christian emblems for exclusion. I want to see one example of an employer who banned pink ribbons, or turbans. Just one who attempted to do so without incurring a barrage of vilification. Until then, I'll assume that some employers view overt expressions of Christian faith as an easy target for their legally veiled contempt.

What's the actual aim of banning Christian jewellery and cabin adornments? Is it really health and safety compliance, workplace uniformity or is it legally sanctioned coercion to keep unwelcome tacit religious expression out of the workplace?

Posted by David Shepherd at Saturday, 27 October 2012 at 6:48pm BST

David,
I did not want to get into a discussion about wearing crosses, in fact, I had merely tried to do what you are doing and to move this argument away from the lgbt debate.

I am only interested in understanding the concept of "religious belief", who defines it, what it includes and what it applies to.

Am I not right in thinking that it was precisely the right to expression of one's faith that was used in the 2 legal cases about wearing crosses?
And yet, from the definition you cited, it cannot apply to that.

It seems that the secular laws are very clear about what is and is not allowed, yet the exemptions on the grounds of "religious belief" appear to be far more fluid, barely definable and requiring a certain level of arbitration.

Posted by Erika Baker at Saturday, 27 October 2012 at 8:32pm BST

David: "There are even fair-minded non-Christians who believe that religious extremism has cowered employers into unduly accommodating the manifestations of minority faiths."

Hmmm... is Islam a minority faith in Britain today? In terms of active participation, I suspect it is verging on being the majority faith. In terms of active church attendance, Christians are a subset and minority in society. Religious adherence seems more embedded in Islam.

David: "What's the actual aim of banning Christian jewellery and cabin adornments? Is it really health and safety compliance."

In the case of the lady in the hospital who wanted to wear a cross around her neck, honestly, the same terms and conditions apply to all healthcare workers - no necklaces or superfluous jewellery... primarily because of infection control.

I am a Christian. I am a student nurse. My care for good standards and my patients is hopefully an expression of Christian convictions - and I wouldn't even consider wearing a cross around the neck. It's not 'persecution' of my religion. It's responsible good practice, and it's the same for everyone, regardless of faith or no faith.

Posted by Susannah at Saturday, 27 October 2012 at 8:47pm BST

Erika:

Point taken (hopefully both you and Susannah know my own opinion is that wearing a cross is a dispensable externalism).

'Am I not right in thinking that it was precisely the right to expression of one's faith that was used in the 2 legal cases about wearing crosses? And yet, from the definition you cited, it cannot apply to that.'

You are right. The problem is that the definition that I researched and cited is from EU legislation. Most people haven't got a clue what it covers.

I know it's perspex clear to you, but few citizens or lawyers have any understanding of what the right to express one's faith means legally. They think that it offers blanket protection to anything motivated by religion.

So, we can either meet people (however distasteful we find them) where they are and attempt to change attitudes, or lob moral grenades at them with little interest in transforming them. I suppose this is where we ask WWJD (what would Jesus do?)

If Changing Attitude wants to do the former, why can't they sponsor a guide in simple English explaining what constitutes belief and manifestation of belief in legal terms? The helpful inclusion of a series of workplace scenarios could provoke insight and discussion. Perhaps, these materials could be approved for use in a range of settings, including church meetings.

What do you think?

Posted by David Shepherd at Sunday, 28 October 2012 at 9:26am GMT

"If Changing Attitude wants to do the former, why can't they sponsor a guide in simple English explaining what constitutes belief and manifestation of belief in legal terms? "

I'm not sure what authority they would have to compile such a guide and who would take it up, but why don't you suggest it to them?

Posted by Erika Baker at Sunday, 28 October 2012 at 2:44pm GMT

The sponsorship of such a guide would involve Changing Attitude funding its development by those who have the recognised legal expertise to write one. There are several human rights lawyers who would be quite capable.

In answer to your question: yes, I will suggest it to them. However, as you intimate, it may be outside of their current charitable aims.

Posted by David Shepherd at Sunday, 28 October 2012 at 9:22pm GMT
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