Unfair Discrimination Ruling Upheld

The Christian guesthouse owners who advertised their double bedrooms as available only to “heterosexual married couples” have lost their appeal to the Supreme Court. The BBC reports the following reactions:

Lady Hale, deputy president of the Supreme Court, said: "Sexual orientation is a core component of a person's identity which requires fulfilment through relationships with others of the same orientation."
Mike Judge, from the Christian Institute, said after the hearing: "What this case shows is that the powers of political correctness have reached all the way to the top of the judicial tree, so much so that even the Supreme Court dare not say anything against gay rights."
Gay rights group Stonewall said in a statement: "We are pleased that the Supreme Court has defended the laws protecting gay customers that Stonewall fought so hard to secure.
"Some might suggest that, rather than pursuing this case, a far more Christian thing to do would be to fight the evils of poverty and disease worldwide."

Disclaimer: I am not a lawyer, so the following is a layman's interpretation of what has been reported. 

This is good news for all supporters of equal rights, and confirms that the religious consciences of those who offer services to the public cannot be used as an excuse to discriminate unfairly. The press release does note, however, that "The Court’s judgment does not favour sexual orientation over religious belief: had the Respondents refused hotel rooms to the Appellants because of the Appellants’ Christian beliefs, the Appellants would equally have been protected by the law’s prohibition of discrimination". The appellants claimed that they were not discriminating on sexual orientation but on the couple's married status (they were not married, in their Christian eyes), but in law since civil partnerships must be treated as marriages, there is nothing else on which the couple can lawfully discriminate:

Regulation 3(4) [of the Equality Act (Sexual Orientation) Regulations 2007] provides that for the purpose of the provisions defining whether discrimination has taken place, when comparing the treatment of two people, the fact that one is a civil partner and the other is married is not a material difference in the circumstances.

The appellants also claimed freedom to manifest their religion under Article 9 of the ECHR. To this, the Court said:

EASOR’s interference with those rights is justified as a proportional means of achieving a legitimate aim: the protection of the rights and freedoms of people such as the Respondents.

Obviously there is a trade-off of rights necessary when applying the law, and thankfully the Courts are dismissing attempts to unfairly discriminate on the grounds laid out in the legislation. This can result in indirect discrimination, against the bigoted, but also against those who unfairly discriminate on religious grounds. I assume that even though religious conscience is protected by the legislation, it is deemed subsidiary to the discrimination against the gay couple because in this circumstance the first is deemed indirect discrimination and the second direct. By the same logic, a gay couple who refused to allow Christians to stay in their guesthouse on the ground of their religious homophobia would also find the courts ruling against them.

So this ruling is not evidence that sexual orientation is given priority over religious conscience in the hierarchy of rights (if this reading is correct). Nevertheless, I do fully expect believers and religious leaders to claim persecution based on this result!

The full judgement is here.

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Thrown to the Lions?

That Christians are being persecuted was the rather hysterical tenor of an article by Paul Diamond in the Telegraph a couple of days ago - Christians' rights: Martyred on a cross of secular liberalism. The martyr he cites is Harry Hammond, an unfortunate, but homophobic, street preacher who maybe was the victim of some injustice, back in 2002. That goes no way to showing anything more, however, than that one man was treated unfairly by the authorities in one instance. This is not an attack on religion, says Diamond, but on Christianity:

And this is not an erosion of rights for people of faith - Muslims, Hindus and Sikhs continue to be protected by the law - but for people of one particular faith: Christianity.

The assertion is that the British legal system is now antipathetic, to say the least, to Christianity:

It seems that the British legal system is intent on removing the Judeo-Christian foundation of our laws, which have served us for a thousand years, replacing them with a secular, liberal worldview which dispenses tolerance to all those who agree with it and relentless hostility, or even persecution, to those who do not.

Hmm. This hardly seems supported by the facts. But today the ECtHR has ruled on four cases of supposed discrimination against Christians, so we should have some more evidence to judge this by.

The Court's assessment starts with an excellent summary of the issues at stake:

79. The Court recalls that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A).

I rather like that reference to 'the unconcerned', an often over-looked constituency, and the recognition that freedom of thought and conscience are also a 'precious asset' for atheists et al is important. The first case they rule on is that of Nadia Eweida; British Airways refused to allow her to wear her cross visibly. Did the ECtHR consider that she had been persecuted by domestic law? In Para 92 they considered the question, and concluded:

The Court does not, therefore, consider that the lack of specific protection under domestic law in itself meant that the applicant’s right to manifest her religion by wearing a religious symbol at work was insufficiently protected.

So that's a No, then. However, they did consider that the domestic courts had made the wrong decision in this case. It's worth quoting the three paragraphs on the subject to get a sense of the balancing of competing interests involved:

93. When considering the proportionality of the steps taken by British Airways to enforce its uniform code, the national judges at each level agreed that the aim of the code was legitimate, namely to communicate a certain image of the company and to promote recognition of its brand and staff. The Employment Tribunal considered that the requirement to comply with the code was disproportionate, since it failed to distinguish an item worn as a religious symbol from a piece of jewellery worn purely for decorative reasons. This finding was reversed on appeal to the Court of Appeal, which found that British Airways had acted proportionately. In reaching this conclusion, the Court of Appeal referred to the facts of the case as established by the Employment Tribunal and, in particular, that the dress code had been in force for some years and had caused no known problem to the applicant or any other member of staff; that Ms Eweida lodged a formal grievance complaint but then decided to arrive at work displaying her cross, without waiting for the results of the grievance procedure; that the issue was conscientiously addressed by British Airways once the complaint had been lodged, involving a consultation process and resulting in a relaxation of the dress code to permit the wearing of visible religious symbols; and that Ms Eweida was offered an administrative post on identical pay during this process and was in February 2007 reinstated in her old job.
94. It is clear, in the view of the Court, that these factors combined to mitigate the extent of the interference suffered by the applicant and must be taken into account. Moreover, in weighing the proportionality of the measures taken by a private company in respect of its employee, the national authorities, in particular the courts, operate within a margin of appreciation. Nonetheless, the Court has reached the conclusion in the present case that a fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.
95. The Court therefore concludes that, in these circumstances where there is no evidence of any real encroachment on the interests of others, the domestic authorities failed sufficiently to protect the first applicant’s right to manifest her religion, in breach of the positive obligation under Article 9. In the light of this conclusion, it does not consider it necessary to examine separately the applicant’s complaint under Article 14 taken in conjunction with Article 9.

So that's a Yes, the domestic authorities failed to protect Ms Eweida's right to manifest religion. I think it's plain that this is still seen as a judgement call, weighing the competing rights, but the Court decided 'there is no real encroachment on the interests of others'. Certainly it seems to me that there is very little encroachment on the interests of other individuals, although clearly the interests of the company were affected. I must say, this conclusion seems reasonable to me, and the BA relaxation of rules should really have come a lot sooner after Ms Eweida objected to her treatment. I can't even imagine what was going through the minds of her superiors when they insisted she hide her cross, displayed as unobtrusively as it was.

The second case is Shirley Chaplin. She was a nurse who had been asked to remove a cross and chain she was wearing:

The evidence before the Employment Tribunal was that the applicant’s managers considered there was a risk that a disturbed patient might seize and pull the chain, thereby injuring herself or the applicant, or that the cross might swing forward and could, for example, come into contact with an open wound. There was also evidence that another Christian nurse had been requested to remove a cross and chain; two Sikh nurses had been told they could not wear a bangle or kirpan; and that flowing hijabs were prohibited. The applicant was offered the possibility of wearing a cross in the form of a brooch attached to her uniform, or tucked under a high-necked top worn under her tunic, but she did not consider that this would be sufficient to comply with her religious conviction. (Para 98)

Here we see very clear evidence that there is no Christian persecution going on at all; other religion's manifestations were also the subject of health and safety measures.

The Court considers that, as in Ms Eweida’s case, the importance for the second applicant of being permitted to manifest her religion by wearing her cross visibly must weigh heavily in the balance. However, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in respect of Ms Eweida. Moreover, this is a field where the domestic authorities must be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence. (Para 99)

A clear ruling that the domestic authorities in such a case must be allowed a wide margin of appreciation, so that's a No:

It follows that the interference with her freedom to manifest her religion was necessary in a democratic society and that there was no violation of Article 9 in respect of the second applicant. (Para 100)

The third case is Lillian Ladele:

She believed that same-sex unions are contrary to God’s will and that it would be wrong for her to participate in the creation of an institution equivalent to marriage between a same-sex couple. Because of her refusal to agree to be designated as a registrar of civil partnerships, disciplinary proceedings were brought, culminating in the loss of her job. (Para 102)

The Court noted that her objection was religious, and:

The Court recalls that in its case-law under Article 14 it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification (see, for example, Karner v. Austria, no. 40016/98, § 37, ECHR 2003-IX; Smith and Grady, cited above, § 90; Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010). It has also held that same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship, although since practice in this regard is still evolving across Europe, the Contracting States enjoy a wide margin of appreciation as to the way in which this is achieved within the domestic legal order (Schalk and Kopf, cited above, §§ 99-108). Against this background, it is evident that the aim pursued by the local authority was legitimate. (Para 105)

Some interesting notes there, on the same-sex marriage issue as the Court sees it. They conclude:

In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them. It cannot, therefore, be said that there has been a violation of Article 14 taken in conjunction with Article 9 in respect of the third applicant. (Para 106)

So that's another No. It's worth reading the preamble, though, to see that they are concerned that Ms Ladele lost her job over her religious beliefs, a heavy price to pay. Such consequences should not be taken lightly, and we should applaud all courts that weigh these matters conscientiously.

The fourth case is Gary McFarlane:

Employed by a private company with a policy of requiring employees to provide services equally to heterosexual and homosexual couples, he had refused to commit himself to providing psycho-sexual counselling to same-sex couples, which resulted in disciplinary proceedings being brought against him. His complaint of indirect discrimination, inter alia, was rejected by the Employment Tribunal and the Employment Appeal Tribunal and he was refused leave to appeal by the Court of Appeal. (Para 107)

Again the Court agrees that these are beliefs motivated by his religion. It's important to note that Christians are using their religion specifically to ground their homophobia. This should not be forgotten when some dismiss the evil wrought by religion through dogma.

The Court concluded:

However, for the Court the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. The State authorities therefore benefitted from a wide margin of appreciation in deciding where to strike the balance between Mr McFarlane’s right to manifest his religious belief and the employer’s interest in securing the rights of others. In all the circumstances, the Court does not consider that this margin of appreciation was exceeded in the present case. (Para 109)

It should be noted that this is allowing that the state had not exceeded its margin of appreciation; they expressed serious concerns over the consequences suffered by Mr McFarlane. Nevertheless:

110. In conclusion, the Court does not consider that the refusal by the domestic courts to uphold Mr McFarlane’s complaints gave rise to a violation of Article 9, taken alone or in conjunction with Article 14.

So we have another No, there is no violation of Article 9:

Article 9 – Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

So we have a picture building that does not support the sentiments expressed by Paul Diamond in his Telegraph article. Certainly there are provisos; one case out of four shows a fault in the domestic courts, but we see from them all that these are difficult judgement calls - consider the dissenting decision on Ladele, for example (final page of judgement):

She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others. (Para 7)

A person can be homophobic (that is their right), so long as it does not encroach on the interests of others.

I think it will always be the case that mistakes will be made by courts when weighing competing rights - this is the price we pay for living in a pluralistic, democratic society. But to conclude from such marginal cases that Christians, in particular, are being persecuted is simply not supported by the details of this judgement.

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A Blog Post Concerning John Locke

In John Locke’s A Letter Concerning Toleration (1689) he presents two minor arguments for religious toleration, and one major one.

The 'Unchristian' argument

If the gospel and apostle may be credited no man can be a Christian without charity, and without that faith which works, not by force, but by love.

His argument goes something like this:

Premise 1 No one can be a true Christian unless they are charitable.

Premise 2 Religious persecutors aren’t charitable.

Conclusion Therefore religious persecutors aren’t true Christians.

It's valid, but P2 doesn't convince; if a persecutor thinks he is doing the persecution to help the persecutee achieve eternal life, that would surely be consistent with charitable principles.

The 'Inconsistency' argument

For if it be out of a principle of charity, as they pretend, and love to men’s souls, that they deprive them of their estates, maim them with corporal punishments, starve and torment them in noisome prisons, and in the end even take away their lives; I say, if all this be done merely to make men Christians, and procure their salvation, why then do they suffer ‘whoredom, fraud, malice, and such like enormities’ which, according to the apostle, manifestly relish of heathenish corruption, to predominate so much and abound amongst their flocks and people?

The suggestion is that persecutors are insincere in their charity; else they would address themselves to those with more obvious moral failings than heretics. But most Christian doctrine allows that simple belief in Christ is sufficient for salvation, not moral probity, so a persecutor could easily sidestep this argument.

The 'Irrationality' argument

…penalties are no ways capable to produce such belief. It is only light and evidence that can work a change in men’s opinions; and that light can in no way proceed from corporal sufferings, or any other outward penalties.

This is Locke's major argument. The state can legislate to affect our actions, but not our beliefs. Beliefs are not the sort of thing that we can simply adopt at will (‘To believe this or that to be true is not within the scope of the will’). This is because we think our beliefs are true. If we think something is false, we cannot will ourselves to believe it. The link between belief and reality would be broken.

If beliefs cannot be adopted at will then there is no point in trying to force them. Torture could change what we say, but not what we believe.

Faith only, and inward sincerity, are the things that procure acceptance with God ... . In vain, therefore, do princes compel their subjects to come into their church communion, under pretence of saving their souls. If they believe, they will come of their own accord; if they believe not, their coming will nothing avail them.

The argument goes like this:

Premise 1 Magistrates’ only sanction is physical force.

Premise 2 Physical force cannot alter religious beliefs.

Conclusion So magistrates cannot alter religious beliefs.

It's valid, and at first blush, the premises appear true. But note that if someone does not understand that belief cannot be coerced, then he wouldn’t be irrational. But if he knows that beliefs cannot be coerced, it is plainly irrational to persecute, per this argument.

Locke did allow a couple of exceptions to toleration: anyone whose religious beliefs threaten society. He cites atheists and those whose beliefs would put them in thrall to a foreign power. Atheists, because they could not be trusted to keep their word since they think there is no divine judgement! 

Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all.

A daft thought, as if morality is simply something that operates only through a celestial CCTV, but indicative of the contempt for atheism at the time.

Jeremy Waldron presents a counter-argument to Locke, by distinguishing between coercion by direct and indirect means, and reveals that the situation is more complicated than Locke assumed; a point first made by his contemporary Jonas Proast. The environment could be directed towards the desired end by the magistrate; for example, restricting reading material and discourse for a prisoner, thus achieving a gradual, indirect conversion.

Since coercion may therefore be applied to religious ends by this indirect means, it can no longer be condemned as in all circumstances irrational.

Waldron’s claim is that by curtailing individual freedom of speech, and freedom to read what you want to read, the population’s religious beliefs could be controlled. This casts doubt on P2. Locke has overlooked the rather complex way we come to our beliefs about reality. But Locke’s argument may still apply to direct coercion, although the existence of victims of brain-washing suggest that even this coercion can be effective over time.

Susan Mendus responds to Waldron's response thus:

...the irrationality of coercing belief, even indirectly, is akin to the irrationality of brainwashing; it can certainly be done but it does not generate the right kind of belief or, more precisely, it does not generate a belief which is held in the right way.

Such a belief would still not guarantee one's salvation because, ultimately, one was pushed into acquiring it. Waldron had anticipated this objection and counters that the manner in which one is led to form a belief does not alter the content of that belief. Also, consistency would demand that most of our beliefs are ruled out too, since “In most cases (not just a few), the selection of sensory input for our understanding is a matter of upbringing, influence, accident or constraint”, so an absurd conclusion follows.

Mendus's point makes sense, I think, if we are in the business of judging the 'truthiness' of beliefs; someone whose reading has been restricted to just one book is likely to have different beliefs to someone who has read widely - and it's reasonable to conclude that the more widely-read person is more likely to have true beliefs. This would not be a genetic fallacy because the sources and methodologies being considered do cast a shadow on the beliefs. 

Nevertheless, Waldron’s argument hits home, because he's only concerned with what someone truly believes, not what true things someone believes. So, in light of Waldron's objection, Locke’s irrationality argument fails, although could perhaps be moderated to account for the complex way we come to acquire beliefs.

Bibliography:

Warburton, N. (2002) Arguments for Freedom , Milton Keynes, The Open University

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Morecambe & Wise Can Stay in Hotel, Court Rules

The welcome news that a gay couple have won their case for unfair discrimination against the Bulls, of the Chymorvah Hotel, near Penzance, who refused to let them share a double bed, has provoked predictably hysterical responses from Christians. This case was brought under the Equality Act 2010, which consolidated Britain's previously diverse laws on discrimination, and looks to ensure that Morecambe and Wise, and Laurel and Hardy, as well as civil partners, can seek accommodation (and engage with other businesses) without fear of censure, humiliation and no roof over their heads. In fact, in my youth, penury drove me to share double beds with my mates on occasion, for anything but carnal purposes.

One of the problems with this whole area is the equivocation between discrimination and unfair discrimination - 'discrimination' is often used as a shortened version for the unfair one. And the Act doesn't help too much; the preamble includes:

...to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics...

Clearly there is a presumption that discrimination based on personal characteristics is unfair. The judgement stated the law as it stands:

For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on the grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances) .

And hear the unfairness is made as clear as it ever is ('unfair' doesn't feature in the Act); to treat someone less favourably because of x, where x is a personal characteristic.

The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. So, conversely, a gay couple running a hotel couldn't refuse entry to Christians because of their homophobic beliefs; more debatable, this, I think, since beliefs are far more variable and self determining than sexual orientation. But, on balance, I'd rather err on the liberal side on that one, and agree with the Act.

Anglican blogger Cranmer brings up an interesting conundrum; how can we tell if the Bulls are prejudiced? It's plain we cannot tell exactly, and as long as we resist the thought police, we never shall. But laws must operate on actions, and the actions of the Bulls were unfairly discriminating, so the law can conclude that their actions were prejudicial. If the Bulls maintain they love all things homosexual or, more reasonably, are indifferent to them, fair enough. But the law cannot act on that.

Christians disingenuously point out that unmarried heterosexuals are also banned, so the ruling should not apply. But that is a bogus argument; Christian disqualification of gay marriage ensures the effect is discriminatory. The Act explicitly equates marriage and civil partnership in any case, making the legal case invalid too.

Cranmer objects to (Director of Stonewall) Ben Summerskill's words:

Religious freedom shouldn't be used as a cloak for prejudice.

Why would anyone think that religious freedom was being used as a cloak for prejudice?

Here are a few of the comments:

Rebel Saint says:

The gay mafia are well organised and have lots of friends in high places due to their over representation in the media. However the feeling amongst the population at large - particularly the C2DE's - is still disgust and antipathy (go read the comments on the Sky News website for example). Alas, they can't be bothered to vote so the gay mafia win.

Bred in the Bone says:

They should inform all guest both hetro and homo that buggery is unacceptable on these premises without discriminating.

Then when guests check just ask them do they like it up the arse.

Oswin said:

Bred in the bone

Tee hee ... harrumphs! :o)

And in a subsequent post, English Viking said:

Homosexualists are perfectly capable of getting married, and having children for that matter.

They have exactly the same choice as a normal person; marry a nice lass.

PS Don't call me a bigot for the use of the word 'normal'. It won't work.

No, I can't imagine what gives people the idea that religious freedom is being used as a cover for prejudice.

Finally, Commenter Anabaptist makes clear again the theist obsession with theocracy, just as Catholics and Muslims all too often do:

Christians need to continue to act according to their faith, neither expecting nor demanding privileged treatment by the state, and taking the consequences as did Jesus and Paul. 'We should obey God rather than men,' is the principle that was applied by the apostles, and it needs to be ours.

If anyone honestly believes this, then it renders them a fifth columnist in their own country, prepared to usurp its properly made laws in favour of a barbarous tradition. It's the same madness that drives Catholics to protect paedophiles and Islamists to blow up innocent commuters.

It is simply evil.

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