More recently, I reported on 15 October, that action had been delayed until next April.
My earlier Church Times article is unfortunately not available at present from the CT archive, so is reproduced below the fold.
This week, the government has taken action earlier than that, but in Northern Ireland. See this report in the Telegraph Gay rights law ‘being forced through’.
Today, there is a further report in the Daily Mail Vicars could be sued for refusing to bless gay weddings, fears Church which claim may well be unjustified.
Anglican Mainstream and The Lawyers’ Christian Fellowship have become even more hysterical than usual about this, and the latter’s public policy website, Christian Concern for our Nation contains yet another plea for its supporters to deluge politicians to stop all this action.
The proposed regulations for Northern Ireland, which have been published by the Northern Ireland Office, can be read here: The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. The document is described as follows:
Made 8th November 2006
To be laid before Parliament under paragraph 7(3) of the Schedule to the Northern Ireland Act 2000
Coming into operation 1st January 2007
The wording of these regulations contains some material that is specific to Northern Ireland, but is presumably broadly consistent with the government’s intentions for the whole UK. Watch out for further analysis of this soon.
Equally, a matter of orientation
Originally published in the 23 June 2006 edition of the Church Times
THE Archbishops’ Council recently responded to Getting Equal, the latest DTI consultation on outlawing discrimination. The Church does not agree with the Government over the extent to which it should be allowed to discriminate against people on grounds of sexual orientation.
A White Paper in May 2004 eventually led to Parliament approving the Equality Act 2006 in February. Media coverage focused on the new Commission for Equality and Human Rights, which will replace three existing agencies from October 2007. It will be responsible for preventing discrimination in six areas of concern: race, gender, disability, age, sexual orientation, and religion or belief. But the Act covers much more.
Discrimination in the provision of “goods, facilities and services” is already illegal in respect of gender, race, and disability. Part two of the Act contains detailed provisions to outlaw such discrimination on grounds of religion or belief. They take effect in October.
They state that it is immaterial whether or not a charge is made for goods, facilities or services. There are, however, exemptions allowing a religious organisation (unless its main purpose is commercial) to limit its membership, participation in its activities, provision of goods, facilities, and services in the course of such activities, and use of its premises. Any religious body may thus lawfully discriminate in all these areas against members of another religion, or of another Christian denomination.
Part three of the Act enables the Government to make corresponding regulations in relation to sexual orientation, hence the consultation, which opened in March and closed on 5 June. The Government will respond within 12 weeks, and then lay regulations before Parliament for approval, to take effect in October.
THE main issue is that the Government clearly wishes the sexual orientation exemptions for religious bodies to be significantly more restrictive than those for religion or belief. The DTI said in its consultation document:
“We are interested to hear views on the impact that the regulations may have in these areas [“the doctrines of some faiths concerning sexual orientation”], particularly where the regulations may impede religious observance or practices that arise from the basic doctrines of a faith. Any exceptions . . . for religious organisations would need to be clearly defined and our starting point is that these should be limited to activities closely linked to religious observance or practices that arise from the basic doctrines of a faith.
“Religious organisations also have a role in providing wider services to the community with a social or welfare aspect . . . We do not see a case for exempting such services.”
The Archbishops’ Council argues that this approach would require the courts to determine doctrinal matters, which they have consistently declined to do; that Article 9 of the European Convention on Human Rights protects much wider religious rights than this implies; and that the Government also fails to take account of Section 13 (1) of the Human Rights Act 1998.
The Council was also concerned that including church schools in the proposed regulations might extend beyond such matters as admissions and discipline (to which it had no objection) to the curriculum, and even worship. These areas, it says, are already adequately covered under the Education Act 1996.
The Council seeks all the same exemptions as are in the religion or belief provisions. These would give churches, mosques, and others carte blanche to discriminate on the basis of sexual orientation.
The Council also repeats the claim that behaviour, not orientation, is the sole locus of concern (though this might not convince many who observed the “Reading affair”).
Specific exemptions for church schools relating to curriculum and worship are also sought, along with another for the use of school premises. This last was justified on the perhaps odd grounds that “Faith schools might be required to make their premises equally available to groups [that] . . . could give considerable offence to the conscientiously held beliefs of staff and parents.”
THE DIFFICULTY is that English law does not recognise the distinction between orientation and behaviour.
As Mr Justice Richards said in 2004, concerning the religious exemptions that were being argued over in the 2003 Employment Equality regulations (his italics):
“One of the matters that will need to be considered in examining the challenge to that provision, is a distinction drawn between sexual orientation and sexual behaviour. As regards the protection conferred by the [European] Convention [on Human Rights], however, I do not consider there to be any material difference between them. Sexual orientation and its manifestation in sexual behaviour are both inextricably connected with a person’s private life and identity.”
Nevertheless, the Church persists in arguing that “It is crucial to ensure that churches and other faith communities and their members are able to manifest their own doctrines and convictions in this area without fear of legal sanction.”
So it might be hard to convince the DTI that such sweeping exemptions are a proportionate response to the Church’s views on sexuality. Its case is surely weakened when the Council admits that “a range of views is held on that moral issue within the Church.”
Yet the Council chose not to deploy the argument used by Anglican Mainstream: that religion and orientation are both entirely a matter of personal choice. It is hard to see how the differences might be resolved, when the Council is asking for a wholesale exemption, and the Government is seeking to limit the Church’s protection from the law.
Simon Sarmiento is a former personnel director of a large software company.