Res Publica

, Volume 17, Issue 1, pp 21–40

Religious Freedom, Free Speech and Equality: Conflict or Cohesion?

Authors

    • School of LawKing’s College London
Article

DOI: 10.1007/s11158-011-9141-7

Cite this article as:
Malik, M. Res Publica (2011) 17: 21. doi:10.1007/s11158-011-9141-7
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Abstract

There have recently been a number of high profile political incidents, and legal cases, that raise questions about hate speech. At the same time, the tensions, and perceived conflicts, between religion and sexuality have become controversial topics. This paper considers the relationship between religious freedom, free speech and equality through an analysis of recent case law in Great Britain, Canada and the United States. The paper starts with a discussion of how conflicts between these values arise in areas such as hate speech and explores the differences between the European and US approach to this issue. In Council of Europe member states there is an increasing use of the criminal law to regulate hate speech. This paper argues that criminalisation of hate speech poses a distinct risk to the values of free speech and proposes alternative non-legal responses such as a greater use of cultural policy. The paper also explores a range of cases where the religion and sexual orientation conflict has arisen in areas such as the workplace. An analysis of these cases suggests that although there is no perfect resolution of this issue, it is possible to develop a set of principles that encourage a balance between the values of religious freedom, free speech and equality even in difficult situations where there is a conflict between religion and sexuality. The paper concludes with some practical recommendations for managing the tensions or conflicts between religious freedom, free speech and equality in liberal democracies.

Keywords

Religious freedomFree speechEqualitySexualitySexual orientationHate speechDiscrimination law

Introduction

Liberal democracies are struggling to reconcile three important goals that enjoy a special constitutional status: religious freedom, free speech and equality. The emergence of equality and non-discrimination as important constitutional values, as well as the expansion of the protected grounds of non-discrimination to sexual orientation, has raised the prospect of a conflict, or at the very least significant tension, between these goals. There is also a widespread public perception that an increase in the protection of equality through human rights and discrimination law has led to an increase in ‘conflicts’ between different social groups.

This perception has been encouraged by a number of high profile public events and legal cases. The Behzti play, Danish cartoons affair and Jerry Springer have explicitly raised the spectre of a conflict between religion and free speech. More subtly, other incidents also raise the issue about how religious freedom can come into conflict with contemporary equality norms. For example, a Christian registrar of marriages has argued that a requirement for her to carry out a civil partnership between a same sex couple constituted discrimination on the ground of religion or belief; a Muslim taxi driver has refused to accept a partially sighted passenger with a guide dog. The ‘Catholic adoption agencies’ debate led to public discussion about whether organised religion can provide public goods and services without fully complying with the requirements of equality law for gays and lesbians. At the European level, the debate about the headscarf and the niqab has focused on the accommodation of religious symbols in a secular public sphere, as well as raising questions about a potential conflict between these religious forms of dress and gender equality.

I want to narrow the analysis of these wide ranging inter-related issues by considering, first, the way in which conflicts between religion and sexual orientation emerge in liberal democracies. I start with a brief discussion of hate speech as the most obvious form of a clash between religion, sexual orientation and free speech. However, there are less explicit aspects of the religion and sexuality conflict that emerge in other spheres. Therefore, I also discuss some of the key legal cases in which the religion and sexual orientation conflict has arisen in contexts such as employment or student activities in ways that impact on free speech, expression/associational rights. Although some of these cases do not involve a direct dramatic clash between religion and free speech that is involved in The Satanic Verses, Danish Cartoons or Bezhti incidents, they do shed light on the way in which conflicts between religion and sexuality are emerging at a grass roots level. These developments have important implications for free speech, expression/associational rights of religious believers, as well as wider society. Although there is no resolution, finally, I offer a way forward which minimises the possibility of the most damaging conflicts between religion, sexual orientation and free speech.

Religion and Sexuality—A Conflict of Rights

It is well established that freedom of religion is protected in a range of international, European and domestic human rights instruments. At the international level, for example, Article 18 of the International Covenant on Civil and Political Rights states that ‘Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.’ Article 9 of the European Convention on Human Rights replicates this structure by having two specific components to fundamental freedom:

(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, 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 the protection of the rights and freedoms of others.

Freedom of religion, understood in this way, is a well established individual and associational right. What is less established is the emerging equality norm of religious equality that can be found in constitutional provisions (e.g. Article 15 of the Canadian Charter and Article 14 of the ECHR), as well as European Union and domestic discrimination law (e.g. the EU Employment Equality Directive and the UK Equality Act 2006). Article 14 of the ECHR, for example, introduces a norm of non-discrimination in the enjoyment of any of the ECHR right: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

In the context of Britain, provisions on religious freedom have been incorporated via the Human Rights Act which gives them special status by including the following provision in section 13(1) which states ‘If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.’ The general non-discrimination provision of Article 14 of the ECHR also applies to religion. In addition, provisions on freedom of expression (Article 10) will also be relevant to wider issues relating to religious freedom.

A more detailed discussion of Article 9 of the ECHR freedom of religion provisions can illustrate the usual way in which religion is protected in liberal democracies. First, Article 9(1) contains the provision that protects ‘the right to freedom of thought, conscience and religion’. Crucially, the first part of the text of Article 9(1) does not contain a reference to ‘belief’. It gives special status to the internal aspect of this right that is associated with ‘thought and conscience’. The second part of Article 9(1) deals with the freedom to act upon these inner beliefs. This freedom is guaranteed by Article 9 as a manifestation of religion or belief. This is more limited than the translation of the inner freedom of belief into all the external manifestations that follow from that belief.

Although the first part of Article 9 does not contain a reference to belief it seems probable that belief would be included within the term ‘right to freedom of thought and conscience’ (Evans 2001, pp. 52–53; Bamforth, Malik and O’Cenneide 2008). This internal aspect, sometimes known as forum internum, of the right to religious freedom in Article 9(1) is unqualified under Article 9(2). The vision of religion in Article 9, therefore, relies on a dichotomy between belief and conduct (or action). Belief is given unconditional protection. This is in comparison to the right to manifest religion and belief which can be justified under Article 9(2). A number of commentators have noted the way in which this dichotomy underestimates the relationship between belief and conduct and, in particular, the way in which restrictions on action can have an important impact on the inner dimension of religion and belief. The belief-conduct dichotomy is also part of the legacy of the Reformation, which ensures that our concept of freedom of religion focuses on preventing the coercion of belief, especially the punishment of heresy and forced conversion (MacCulloch 2004).

More recently, Lord Nicholls in the Williamson decision also acknowledged the distinction between belief and conduct but at the same time stated that there was an important relationship between these aspects:

It is against this background that Art.9 of the European Convention on Human Rights safeguards freedom of religion. This freedom is not confined to freedom to hold a religious belief. It includes the right to express and practice one’s beliefs. Without this, freedom of religion would be emasculated. Invariably religious faiths call for more than belief. To a greater or lesser extent adherents are required or encouraged to act in certain ways, most obviously and directly in forms of communal or personal worship, supplication and meditation. But under Art.9 there is a difference between freedom to hold a belief and freedom to express or ‘manifest’ a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest belief, is qualified.1

Despite the fact that this aspect of religious freedom may seem intangible, it is increasingly recognised that there may be serious forms of interference with this internal aspect. In particular, preventing interference with the inner aspect of religious belief means that the individual should not be subjected to treatment that renders this ‘inner freedom’ useless or restricted. The requirements for taking the Christian oath as a pre-condition for public office for Jewish minorities is an example of an interference. The concern with safeguarding an inner realm of belief and conscience would also prohibit the state from undertaking policies that constitute indoctrination, although it has been held that moral and social education lessons do not constitute indoctrination (Van Dijk and Van Hoof 1984, p. 542).

What constitutes an illegitimate interference with the inner aspects of religious belief is not a clear cut issue. As Moens (1989) has noted, the distinction between a wide range of latitude for belief, but a more restrictive approach to action, depends on some consensus about the social values that underlie religion. In increasingly plural societies it will be difficult to apply the doctrine because it provides no substantive guide to what types of manifestation of belief falls within the permissible range (Bader 2007). In the context of the religion versus sexuality debate, in particular, there is very little social consensus that allows us to determine how we should develop and police the boundaries of what constitutes a legitimate sphere of inner religious belief or lawful manifestation of that belief. In the UK, the political and legal goals of ‘equality’ and ‘non-discrimination’ have become a project of cultural transformation of key areas such as education and employment, as well as the public sphere more generally.

Although the new Equality Act 2010 treats all the grounds of discrimination—race, sex, religion and belief, sexual orientation, disability and age—in the same way, it is far from clear that they all enjoy the same degree of legitimacy in the wider society. Established equality norms—e.g. racial or gender equality—may enjoy a greater degree of social consensus as compared with emerging social norms around sexual orientation equality. In the 1960s London, refusing a bed and breakfast room to an Indian family was a common occurrence. In 2010, most people accept that this would be unlawful race discrimination. Yet, there is not the same degree of consensus about excluding a gay couple from a bed and breakfast hotel.2 This lack of social consensus about sexual orientation raises particular problems for regulating religious conscience and belief because regulatory concepts—such as the belief-conduct distinction—depend on a degree of consensus about what types of manifestation of religious belief fall within the permissible range (Moens 1989). Although the legal norm that sexual orientation discrimination should be prohibited is now well established, there is still a large degree of diversity of views about the topic. Significantly, there is a large degree of diversity within religious organisations and communities about the correct ethical approach to the issue (Leigh 2006). This raises a dilemma for liberal democracies about how they should respond to this diversity of viewpoints in secular society (Audi 2000) and within religious communities (Cane, Evans and Robinson 2008). Is the right approach to apply the free speech principle so that debate about sexual orientation is encouraged? Or should state and legal regulation be used unapologetically to pursue the goal of sexual orientation equality?

The clash between religion and sexuality is not just a theoretical prospect. A survey of even a very short time frame of two years between 2008 and 2010 confirms that many of the recent political struggles and legal cases in the US and UK have involved a conflict between religion and sexual orientation. In the US, political struggles over the recognition of same sex partnerships continue in a number of state jurisdictions. California provides a good illustration of the way in which this conflict involves both political and legal activism. Following a decision by the US Supreme Court that a state law banning same sex marriage was unlawful discrimination in May 2008, opponents launched the Proposition 8 initiative to ban same sex marriage. In November 2008, they won the vote by 52 percent and ensured that same sex marriages were banned in California. Supporters of same sex marriage filed a legal case to block the legislation but in May 2009 the Supreme Court upheld Proposition 8 as a voter-approved ban, although they also held that couples who had been married before the law was introduced had valid marriages. Opponents of Proposition 8 are now waiting before launching another political campaign.3

More recently, in Christian Legal Society v Martinez decided in June 2010, the US Supreme Court has held that a public higher education institution’s ‘all-comers policy’ that required the Christian Legal Society to open up its membership to individuals who did not agree with its views on homosexuality did not breach First Amendment free speech and expressive-association claims.4

In the UK, same sex partnerships have been officially recognised since the enactment of the Civil Partnership Act 2004. This has not, however, resolved the conflicts between religion and sexual orientation. In a case that was decided by the Court of Appeal in December 2009, Ladele v Islington, a Registrar of Births, Deaths and Marriages claimed that her employer had subjected her to direct discrimination, indirect discrimination and harassment on the grounds of her religion by requiring her to participate in civil partnership services against her orthodox Christian beliefs.5 More recently in April 2010, in Macfarlane v Relate Avon Ltd, a Christian counsellor argued that his employer’s insistence that he provide relationship and sexual therapy to same sex couples subjected him to unlawful religious discrimination.6

These political struggles confirm the difficulty faced by liberal democracies that simultaneously seek to safeguard religious freedom and equality for gays and lesbians. Of course, religion raises general problems for liberals and the religious. For liberals, many of the beliefs and practices of the main religions either conflict with—or at the very least are difficult to reconcile with—key human rights and equality norms. For the religious, although liberal societies guarantee freedom of religion and belief, they seem to do so from a position of superiority where the framework and terms of the debate are unilaterally dictated by secular liberalism. One classic way in which liberals address this tension is through the distinction between belief and manifestation. It is an often repeated mantra that liberals are comfortable with religious belief and only seek to regulate religious practice. The recent cases, however, suggest that the picture is more complicated. In Christian Legal Society (CLS) v Martinez, for example, CLS argued that prohibitions of their ability to exclude some members who took a different view on homosexuality was an infringement on their right to free speech, conscience and expressive activity. A noteworthy feature of Ladele v Islington was that there was hostility directed towards Ms Ladele as soon as it became clear that she was a Christian who viewed same sex partnerships as a moral sin. In the next section, I discuss a range of US and UK cases between 2008 and 2010 which illustrates the precise way in which the conflict between religion, sexual orientation and free speech is emerging.

Regulating Religion and Sexuality Conflicts

Hate Speech

Hate speech is one area in which there is a direct conflict between religion and sexuality. There are complex provisions which prohibit hate speech on a number of different grounds such as race, religion and sexual orientation (Heinze 2006). This raises the prospect of a conflict of rights between freedom of speech on the one hand and equal protection for minority groups on the other. Incitement to hatred legislation now extends (albeit to different standards) to race, religion and sexual orientation. A religious individual or group making a homophobic statement (or vice versa) could be subject to a criminal penalty. Unlike the US, the ECtHR accepts that a sufficiently narrow hate speech statute will not necessarily breach the right to freedom of speech. It is clear from Jersild v Denmark7 that an appropriately drafted statute which targets the actual perpetrators of hate speech will not necessarily breach Article 10 ECHR. In Otto-Preminger v Austria8 the Court draws on a number of justifications which include the argument that certain types of hate speech constitute a special category that can be prohibited because of its impact on the social (racial or religious) groups who are its targets. In addition, the Court also gives a special status to religious belief as a special category that deserves protection and refers to states being left a margin of appreciation in relation to speech which is directed at the ‘religious feelings of others’ (author’s emphasis).

Although ECHR jurisprudence permits national authorities to introduce hate speech legislation, the use of the criminal law to protect freedom of religion or belief clearly raises the risk of a conflict between freedom of expression and equality norms (Hare 2006). One solution to this conflict is to avoid the use of the criminal law altogether in favour of non-legal responses that aim to achieve some of the goals of protection for minorities, but that do not create the possibility of a conflict with a fundamental human right such as freedom of speech. A focus on the use of the criminal law to protect minorities, especially given the controversial British debates on incitement to racial and religious hatred legislation can also obscure an analysis of whether the use of the criminal law is an appropriate or sufficient response in the context of hate speech. And there are very few prosecutions under these criminal provisions.

Free speech and the protection of minorities can also be reconciled as compatible values. David Richards argues that free speech is an important constitutional and legal tool for minorities who have suffered injustice. It allows them to criticise and challenge dehumanising stereotypes and ‘empowers the legitimacy and integrity of the politics of identity in the reasonable understanding and remedy of structural injustice of group and national identity whose political power has rested on invisibility and unspeakability of such injustice’ (Richards 1999, p. 237).

This enables a focus on the structural disadvantage of minorities who are the targets of hate speech. It also suggests that giving more voice to all members of minority communities is a more appropriate response to instances of hate speech by individuals from those communities than criminalising them. It is also significant that incitement to racial or religious hatred targets the most extreme forms of speech. Whilst these are serious forms of hate speech, prejudice and stereotyping in the mainstream media will often have a more widespread influence and may be more pernicious because these views and representations are ‘normalised’. The use of media regulation may, therefore, be a more successful way of addressing this ‘normalised’ source of hate speech. For example, clause 13 of the Press Complaints Commission Code of Practice which deals with discriminatory speech states that

‘(i) the press must avoid prejudicial or pejorative references to an individual’s race, colour, religion, gender, sexual orientation or to physical or mental illness or disability; (ii) Details of an individual’s race, colour, religion, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.’

While the Code of Practice is limited in that only named individuals can make a complaint, media self-regulation has a potentially useful role to play here. Such approaches have the potential to generate a public sphere that is more conducive to empowering and giving ‘voice’ to minorities rather than restricting or criminalising the ‘speech’ of others in ways that pose a risk for freedom of speech (Malik 2006).

Exemptions

One obvious solution is to grant an exemption that permits some religious organisations or individuals to discriminate on the ground of sexual orientation, whilst at the same time requiring them to comply with non-discrimination provisions. The EU and British approach to a potential clash between religion or belief and sexual orientation is to create a specific exemption that allows organised religion to discriminate on the grounds of sexual orientation in certain circumstances. Like the exemptions granted to religion under the Sex Discrimination Act 1975, this uses the technique of a derogation from the principle of non-discrimination on the ground of sexual orientation to accommodate religion or belief. The EC Employment Equality Directive, which has been transposed into UK law through the Employment Equality (Sexual Orientation) Regulations 2003, introduces a specific genuine occupational qualification (Regulation 7) which seeks to balance freedom of religion or belief (especially associational rights) and the right of non-discrimination on the ground of sexual orientation. The introduction of the Employment Equality Directive, which prohibits sexual orientation discrimination in employment and training, explicitly deals with this conflict. It introduces a narrow range of categories in which the rights to freedom of association of a group will take precedence over the right to non-discrimination on the grounds of sexual orientation in employment and training: this narrow exception is available only for (a) organised religion; and (b) religious organisations. There are also exemptions from the prohibition on discrimination on the ground of sexual orientation in the provision of goods and services that are contained in the Equality Act (Sexual Orientation) Regulations 2007 (Regulation 14).

Regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, which allows ‘organised religion’ to discriminate against gay and lesbian people in employment and training in some circumstances, has been held to be compatible with EU discrimination law in R (Amicus) v Secretary of State for Trade and Industry.9 In Amicus the key questions concerned whether these provisions resolve conflicts between religion and sexual orientation by striking the right balance between (a) individual rights to freedom of religion and belief; (b) freedom of religion as an associational right; and (c) the right to non-discrimination on the ground of sexual orientation. Richards J. held that the UK legislation does strike the appropriate balance. This case involved a challenge to the compatibility of Employment Equality (Sexual Orientation) Regulation 7 on the basis that this was incompatible with the Employment Equality Directive and also with Articles 8 (right to privacy) and Article 14 (right to non-discrimination) of the ECHR. It was held that the regulations were compatible with both EU law and the ECHR, and more specifically that these provisions struck the right balance between the right to freedom of religion or belief and equality on the one hand, and the right to non-discrimination on the ground of sexual orientation on the other. Mr Justice Richards confirmed that these provisions acted as a derogation and, therefore, they operated in very limited circumstances concerning organised religion where a ‘particular sensitivity and difficulty’ may arise. Consequently, they had to be interpreted narrowly and purposively to give effect to the purpose of the Directive that seeks to prohibit sexual orientation discrimination in employment and training.10 He also concluded (at para 123) that the Regulation 7 exemption was a lawful implementation of Article 4(1) of the Directive because there has already been a ‘legislative striking of the balance between competing rights. It was done deliberately in this way so as to reduce the issues that would have to be determined by courts or tribunals in such a sensitive field’.

Despite the decision in Amicus, it has been argued that the existing Regulation 7(3) exception is drafted too widely and should be narrowed by introducing an explicit requirement of ‘proportionality’, as required for all derogations in EU discrimination law. This is particularly important in the context of the exception for ‘organised religion’ because Stonewall, an organisation that addresses the needs of lesbians, gay men and bisexuals, has stated that Regulation 7(3) has ‘been flagrantly abused by some organisations who have used it to hound gay employees in a way which was certainly not envisaged when it was introduced’ (Stonewall 2007).

Significantly, the Amicus decision also considered the wider impact of the sexual orientation discrimination provisions on freedom of religion, speech and associational rights. Richards J’s approach was based on the assumption that courts and tribunals do not, and should not, stray into the area of interfering with the content of religious belief. Although Richards J did not draw specifically on the belief and conduct distinction, he stated that at one end of the spectrum freedom of thought and conscience were serious rights that were given a wide degree of freedom as compared with the manifestation of those rights.11 Richards J was also reluctant to interfere with issues of theology about the status of gay and lesbian people in religious traditions, and he reiterated the importance of the church/state divide.12

Reaney v Hereford Diocesan Board of Finance also illustrates the potential impact of a derogation such as Regulation 7 on the free speech, associational and expression rights of religious organisations and individuals. In Reaney, a Church of England Diocesan Bishop had refused to employ the applicant, a gay man, as a Diocesan Youth Officer on the basis that he was not convinced by the claimant’s assurance that he would remain celibate during his employment as required by the Church of England’s policy. The Employment Tribunal found that the post did fall within the scope of Regulation 7 because it was bound up with representing the Diocese and the Church of England. Most significantly, the Tribunal was willing to undertake its own investigation of whether or not the claimant met the requirements of the Church of England on celibacy. They found that he met these requirements because his past relationship had ended and he had made a clear commitment to not enter into a sexual relationship whilst working for the Church of England.

Although exemptions are the preferred approach in current legislation, they are not an ideal mechanism for addressing the religion v sexuality conflict. Rather than encouraging a more nuanced approach towards what constitutes religion or sexuality, the mechanism of granting exemptions delegates the power of definition to religious organisations, who in turn frequently represent the most conservative viewpoints. In a situation such as Reaney, for example, the ‘exemption’ leaves no room for a process whereby Reaney can argue that he represents a legitimate strand of thought within the Church of England. Rather, he is a ‘minority within a minority’ who is forced to exit his own religious community before he can rely on his right to non-discrimination.

Belief-Conduct Distinction

Most recently, in Ladele v London Borough of Islington13 a Registrar of Births, Deaths and Marriages successfully claimed that her employer had subjected her to direct discrimination, indirect discrimination and harassment on the grounds of her religion by requiring her to participate in civil partnership services against her orthodox Christian beliefs. The Employment Tribunal found in favour of the applicant on all three grounds: direct and indirect discrimination on the ground of religion or belief, as well as harassment on the ground of religion or belief. The Employment Appeal Tribunal allowed an appeal from this decision in favour of the London Borough of Islington. The Court of Appeal refused the appeal of Ms Ladele and confirmed the decision in favour of the London Borough of Islington.

In applying Amicus, Richards J had based his decision on the fact that the legislature had already struck the appropriate balance between religion or belief on the one hand, and sexual orientation on the other, by specifying the exact circumstances under which there would be an exemption. On one analysis, these circumstances are limited to the exemptions that are granted under SOR Regulation 7(3). These exemptions protect religion or belief through the technique of granting an exception (derogation) from the general rule of non-discrimination on the ground of sexual orientation, in narrowly specified areas: where there is a genuine occupational requirement or where there are associational rights that are being claimed by organised religion. In Ladele, the applicant’s post as a registrar of marriages would not fall within either of these exceptions to allow her a defence to an act of sexual orientation discrimination for failure to perform (same sex) civil partnerships as compared with other forms of marriages. Moreover, given the ECtHR case law which endorses the ‘contracting out’ approach, she could not easily argue that there had been an interference with her Article 9 ECHR right because she has the option either not to take up that form of employment or to leave her employment altogether.14 Restrictions on acting on religious conviction in employment are not, per se, a restriction of freedom of religion or belief.

The Employment Tribunal decision in favour of Ms Ladele considered the importance of the Article 9 ECHR right to freedom of religion, although it failed to apply the ‘contracting out’ limits placed on Article 9 in employment contexts. The Employment Appeal Tribunal (EAT) decision in favour of Islington BC re-affirmed the ‘contracting out’ doctrine, as well as the belief-conduct distinction. This narrower approach confirms that Article 9 ECHR does not require that one has the right to manifest the right to all religious belief at all times and in all contexts. Moreover, Mr Justice Elias in the EAT also confirmed that rights to religious freedom are limited by the rights and interests of others. More specifically in the context of a conflict between the grounds of religion and belief and sexual orientation, Elias J stated that ‘the right to manifest religious belief must give way to rights of same sex partners to have their partnership recognised by law’.15

The Court of Appeal also dismissed Ms Ladele’s appeal from the decision of the EAT in December 2009,16 as well as refusing leave to appeal to the Supreme Court Ms Ladele’s claim of direct and indirect religious discrimination was rejected. The Master of the Rolls (with whom Dyson and Smith LJJ agreed) stated (at paragraph 52):

‘[I]t appears to me that the fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy. Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served […].’

Ladele is clear on the issue that a religious believer cannot expect to be granted an exemption (wider than that granted in Regulation 7) from the requirement of non-discrimination on the ground of sexual orientation. Yet, there are aspects of the case that illustrate the way in which these incidents raise practical conflicts that may create a risk for free speech. In the first instance decision the Employment Tribunal had relied on the fact that Islington Council gave insufficient weight to the religion or belief of the applicant in making decisions about how to manage this conflict in the workplace, and they failed to consider whether there were ways of ensuring that the applicant’s religion or belief could be accommodated. Most significantly in the context of free speech, there was evidence that the management at Islington Borough Council failed to consider alternative ways of resolving the conflict because they had already reached the view that the failure to perform a civil partnership was per se a form of homophobia which breached their ‘Dignity for All’ equal opportunities policy.17 The EAT decision also recognised that there had been poor ‘human resources’ management of this particular case. Elias J stated that ‘There were clearly some unsatisfactory features about the way the Council handled this matter. The claimant’s beliefs were strong and genuine and not all of management treated them with the sensitivity that they may have done.’18 In situations that involve a religion and sexuality conflict there is the risk of a reactive vicious cycle: a religious person voices their reservations about homosexuality or same sex partnerships; this is interpreted as homophobia per se that triggers equal opportunities policies and sanctions. This general atmosphere in the workplace, in turn, creates an indirect risk for the free speech of religious believers.

The problems raised by the religion and sexuality conflicts for free speech become most clear in situations where religious institutions (particularly those linked to the public sector) seek to impose codes of conduct or belief in relation to homosexuality. Cases from other jurisdictions provide some useful guidance on how this conflict can be managed or resolved. One example of exactly such a clash is Trinity Western University v British Columbia College Teachers19 in the Canadian Supreme Court that raised the issue of a conflict between freedom of religion and the constitutional right to equality. Trinity Western University (TWU) is a private institution in British Columbia (BC) which was associated with the Evangelical Free Church of Canada. TWU had a teacher training course and applied to the BC College of Teachers (BCCT) for permission to assume full responsibility for teacher training, in part to give a Christian view of the world. BCCT refused citing as its reasons that it was contrary to public policy to approve a teacher training programme offered by a private institution which appears to follow discriminatory practices. BCCT’s concern was that TWU Community Standards applicable to all staff embodied discrimination against homosexuals. At first instance, the BC Supreme Court found that there was no reasonable foundation to support the BCCT’s decision with regard to discrimination and granted mandamus allowing approval of the TWU proposed teacher training programme subject to a few conditions. The BC Court of Appeal found that the BCCT had acted within its jurisdiction, but affirmed the trial judge’s decision on the basis that there was no reasonable foundation for the BCCT’s finding of discrimination. The Canadian Supreme Court dismissed the appeal and found that the BCCT had jurisdiction to consider discriminatory practices in dealing with the TWU application.

Much of the discussion in the Canadian Supreme Court turned on the issues of the standard of review used by the BCCT and Canadian Administrative law. There is also, however, some discussion of the conflict between a right to freedom of religion or belief and the right to equality on the ground of sexual orientation. One significant aspect of the decision of the Canadian Supreme Court is the weight that they gave to the constitutional right to freedom of religion (para 31). The majority stated (at para 29–33) that:

‘A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict […] Charter principles require a balance to be achieved that fully respects the importance of both sets of rights’.

Therefore, not only should the BCCT have considered the importance of sexual orientation equality they should have also given weight to freedom of religion. The Canadian Supreme Court went on to state there was a particular need to understand the importance of freedom of religion in the context of Canada as a diverse society, and of maintaining a private sphere of freedom of association for religious groups and individual believers (para 25). Finally, the majority of the Canadian Supreme Court stated that one key concept devised for resolving a conflict between rights such as freedom of religion or belief and sexual orientation equality is to use the distinction between belief and conduct (para 36).

It is possible to extract a number of principles from the decision of the majority in Trinity Western University v British Columbia College. First, in cases where there is a potential conflict between two constitutional rights, a hierarchical analysis which tries to decide which right is more important should be avoided in favour of an analysis that seeks to balance and give importance to both sets of rights. Second, the Canadian Supreme Court confirmed the importance of the public–private distinction in an analysis of constitutional and human rights law by finding that freedom of religion is an important constitutional right that entails respecting a private sphere that is not subject to the requirements of non-discrimination on grounds such as sex and sexual orientation. Third, and related to the private–public distinction, there is a wider margin of appreciation for freedom of belief as compared with the freedom to act upon beliefs. Therefore, an individual or group has a wider sphere of freedom to hold or express beliefs that are discriminatory (e.g. believing that LGBT people should be subject to discrimination) as compared with acting on those beliefs (e.g. discriminatory acts against LGBT people).

This final point would help to resolve some of the issues in cases like Ladele, because it suggests that whilst Ms Ladele had the right to believe that civil partnerships should not be permitted, she did not have a right to act on these beliefs by refusing to perform civil partnerships. This analysis would also endorse the ECHR ‘contracting out’ doctrine which confirms that Ms Ladele’s Article 9 right to freedom of religion or belief is not breached where an employer requires her to perform an essential part of a job that she has taken up voluntarily, because she is able to exercise her right to freedom of religion or belief by taking up another job. This analysis recognises that some forms of conflicts will have to be resolved by limiting the extent to which spheres such as employment can be an arena where an individual can insist on the accommodation of all of their conscience. It is preferable that areas such as the workplace or public service delivery are designed to prevent individuals being put into a position where their religious conscience is tested. The Ladele case suggests the reasons that the conflicts emerge may be because of the failure of management to take proper steps to resolve the dispute.

It is also worth pointing out that there was a strong dissent by L’Heureux-Dubé J. against the majority decision and reasoning in Trinity Western University. Specifically, L’Heureux-Dubé J. challenged the separation of the private and public sphere by arguing that the beliefs and actions in the private sphere can have a considerable impact on the public sphere and stated at para 62:

… freedom of religion like any other freedom is not absolute. It is inherently limited by the rights and freedoms of others. Whereas parents are free to choose and practice the religion of their choice, such activities can and must be restricted when they are against the child’s best interests, without thereby infringing the parents’ freedom of religion … there is a similar intersection between the asserted private religious beliefs and the public interest in the present appeal. Actions in the private sphere can have effects in the public realm. Everyone must assume the legal consequences of his or her private beliefs, so long as these consequences do not violate fundamental rights.

L’Heureux-Dube J. also stated (at para 70, relying on Bob Jones University v US20) that ‘there can no longer be any doubt that sexual orientation discrimination in education violates deeply and widely accepted views of elementary justice’. Finally, she was sceptical about the use of the belief-conduct distinction as a basis to allow discriminatory beliefs a much wider margin of appreciation, and also questioned why the code of conduct in this case was construed as a matter of belief rather than conduct (at para 72): ‘with respect, I do not see why my colleagues classify this signature as part of the freedom of belief as opposed to the narrower freedom to act on those beliefs.’ A different line of analysis is, therefore, represented by the L’Heureux-Dubé minority dissent which is sceptical about the belief-conduct distinction, and suggests a greater willingness to intervene in the affairs of religious organisations, even those in the private sphere, who can be said to breach the right to sexual orientation equality.

Privatising Religious Expression

The approach of the Canadian Supreme Court in Trinity Western can be contrasted with two decisions of the US Supreme Court. In Boy Scouts of America v Dale21 the applicant James Dale was a former boy scout who had remained a volunteer of the organisation after entering college. He had been a member of the boy scouts movement for over 12 years during which time he had earned twenty-five badges of honour and other commendations. In 1990, after the Boy Scouts movement became aware that Dale was the head of his college’s gay student group, the local leader of his boy scouts movement wrote to tell him that his membership was revoked because the Boy Scouts movement prohibits membership by gays. Dale sued the Boy Scouts movement under New Jersey state discrimination law which prohibits discrimination on the grounds of sexual orientation in accessing public accommodation and states: ‘all persons shall have the opportunity … to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation … without discrimination because of … sexual orientation’. The New Jersey (state) Supreme Court found that the Boy Scouts did fall within the public accommodation sphere of the discrimination law statute. Therefore, prima facie, the Boy Scouts had discriminated against Dale on the grounds of sexual orientation. However, the Boy Scouts had a claim that the statute breached their First Amendment Rights to freedom of association. On this point, the New Jersey Supreme Court found that the ‘ethos’ of the Boy Scouts Movement was diverse: some within the movement opposed homosexuality, whilst others were opposed to discrimination on the grounds of freedom of association. The New Jersey court also found that the belief that homosexuality was immoral was not a core aspect of the associational beliefs, or ‘ethos’, of the Boy Scouts movement: therefore, they granted a judgment in favour of Dale and concluded that this decision, and the New Jersey discrimination provision, did not violate the Boy Scouts First Amendment right to freedom of association.

On appeal, the US Supreme Court overturned the decision of the New Jersey Supreme Court and found in favour of the Boy Scouts. A bare majority (expressed in the opinion of Reinquist C.J) found that the New Jersey discrimination provision had violated the Boy Scout’s First Amendment Rights to Freedom of Association. They used the test of whether the discrimination provision (the public accommodation statute) would be a ‘serious burden’ to the ideas of the organisation and the ability of the association to express its message. The majority found that the Boy Scouts movement does have an ‘official position’ that is anti-gay and they deferred to this official position for the purposes of constructing the First Amendment rights to freedom of association.22 The majority also accepted the Boy Scouts’ conclusion that the presence of Dale would interfere with their ability to maintain this aspect of their beliefs and expressive message. In contrast to the views of the majority, there was a powerful dissent (expressed in the opinion of Stevens J and Souter J) that used a different test for examining the conflict between the discrimination law (public accommodation) provision that prohibited sexual orientation discrimination and the First Amendment rights to freedom of association of the Boy Scouts. This dissenting view argued that for the conflict to be resolved in favour of the rights to free association of the group there should be a test applied that ‘at a minimum, a group seeking to prevail over a discrimination law must adhere to a clear and unequivocal view’.23 If, for example, there were a substantial body of ‘internal critics’ or a minority within the boy scouts who did not agree that it was an anti-gay organisation, then this would suggest that there was not a clear conflict that needed to be resolved in favour of the first amendment rights of the group.

Most recently, in June 2010, in Christian Legal Society v Martinez the US Supreme Court has again considered the problem of the religion and sexuality conflict in the context of the first amendment.24 The case raised the issue of whether a public law school could place a condition on its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students in a way that was non-discriminatory. Christian Legal Society (CLS), argued that an ‘accept all comers policy’ that was instituted by Hastings Law School as part of its policy on non-discrimination on a number of grounds including, inter alia, sexual orientation, infringed its First Amendment rights to free speech, expressive-association, and free exercise of religion by requiring it (non-compliance would lead to giving up the advantages of official recognition) to accept members who do not share the organization’s core beliefs about religion and sexual orientation. CLS sought a special dispensation from the ‘accept all comers policy’.

The US Supreme Court was split 4–3 in reaching a decision that Hastings ‘accept all comers policy’ did not infringe CLS’s First Amendment rights. Ginsberg J delivered the opinion for the majority. A critical part of her analysis turned on the fact that the case fit within what US First Amendment jurisprudence categorises as a limited public forum, e.g. a forum whose boundaries can legitimately be limited by an owner who has proprietary type interests. It therefore followed that Hastings’ insistence that CLS follow an ‘accept all comers policy’ was an indirect rather than direct measure to encourage CLS to modify its membership,. This distinguished the CLS v Martinez case from Boy Scouts v Dale. Unlike the Boy Scouts, CLS were effectively seeking a state subsidy for their activities on the campus of a public higher education institution. CLS could exclude any person they choose for any reason, although the consequence of this would be that they give up public recognition and public funding. This was quite different from a situation in which a group was being coerced into accepting unwanted members with no choice of an opt out (e.g. the situation in Boy Scouts v Dale).

It was also essential to the majority’s argument in CLS v Martinez that the non-discrimination ‘accept all comers’ policy was treated as being viewpoint neutral. Stephens J, concurring, argued that the policy did not discriminate against those with religious beliefs (e.g. that homosexuality is a sin) but it only targeted those who acted on these beliefs to exclude some individuals from membership of the CLS. Moreover, the fact that in practice the ‘accept all comers’ policy would have a disparate impact on religious groups who may be more likely to want to exclude individuals from their groups and association was not an infringement of the First Amendment. Alito J, dissenting, strongly disagreed with this characterisation of the ‘accept all comers policy’ as viewpoint neutral. His statement that ‘Hasting’s accept all comers policy is not reasonable in light of the stipulated purpose of the RSO [registered student organisations] forum: to promote diversity of viewpoints “among”—not within—“registered student organizations” suggests a very different vision of what is required by the First Amendment. Whereas for Stevens J, First Amendment free speech values are guaranteed by ensuring that each student has access to membership of each of the organisation, for Alito J these values are safeguarded through a strategy of pluralism that ensures that a range of distinct voices are all represented within the forum. Once again, Stevens J’s response to these arguments was that, whereas the First Amendment protects CLS’s right to discriminate in private, it need not provide them with public funds and a public forum. Free speech, he argued, requires us to tolerate organisations such as the CLS rather than granting them equal access to public forums and public funds.

The disagreement between Stevens J and Alito J on this point has wide ranging significance for the scope of the free speech principle where there is a religion and sexuality conflict. For example, will the increasing delegating of public functions to civic society, and the UK’s ‘Big Society’ agenda, be subject to the requirements of non-discrimination? If religious organisations step forward to provide important public services (e.g. care and counselling) using public funds, is it reasonable that they should comply with sexual orientation equality norms? The decision in CLS v Martinez suggests that in these situations the requirement that religious organisations meet non-discrimination standards will not be a breach of their right to free speech or association. If they cannot, in good conscience, provide the public service without sexual orientation discrimination then the solution is that they should withdraw from the public activity.

Concluding Comments—Managing Religion and Sexuality Conflicts

Religion and sexuality conflicts are, as the previous discussion confirms, proliferating and the subject of considerable political and legal activism. The cases also suggest that there are ways of developing our existing legal concepts to address. Decisions such as Ladele (in the UK Court of Appeal) or CLS v Martinez (in the US Supreme Court) confirm the willingness of the judicial branch to impose a legal solution despite the lack of social consensus about sexual orientation equality. Religious groups often point to these decisions to argue that they are uniquely disadvantaged when faced with secular political institutions, and some have argued in favour of separate religious courts.25 This process within secular liberal democracies, in turn, often provides the basis for a legal claim of religious discrimination. One important guiding principle is that, where there is a religion and sexuality conflict, it is important to take an approach that does not create a hierarchy between rights or equality grounds. As Judge Tulkens stated in the context of the headscarf cases: ‘In a democratic society, I believe it is necessary to seek to harmonise the principles of secularism, equality and liberty, not to weigh one against the other.’26

It is also important for equality law and policy to recognise diversity within social groups. This should make decision makers more sensitive to power relations within groups, recognising the issue of ‘minorities within minorities’ who are often not fully represented in formal consultations with equality groups and the need to ensure that these individuals are empowered within their communities rather than expecting them to ‘exit’ their preferred social group. In the Reaney decision, for example, the Tribunal resisted the temptation to define membership of the Church of England solely from the perspective of the established religious authorities. There was a willingness to develop solutions that treated Reaney as an ongoing member of his preferred religious community, rather than assuming that the incompatibility of his sexual orientation with religious doctrine was an automatic grounds for his exclusion. Significantly, in situations such as Reaney, the applicant often wants to stay within the religious group rather than exercising a right to exit. This suggests that techniques such as mediation or alternative dispute resolution should be explored in preference to the all or nothing structure of litigation which sours relations between the two parties.

Although the belief-conduct distinction is not an ideal conceptual device, where there is a conflict between religion or belief/culture and sexual orientation discrimination there may be a need to respect the rights of belief and conscience, whilst at the same time taking a strict approach to discriminatory conduct by limiting the scope of exceptions as well as evaluating the impact of these exceptions in practice.

Some conflicts could be resolved in a forum other than courts. In some situations, it may be appropriate to have a more wide ranging debate that allows greater public participation about the appropriate balance between conflicting equality groups or between equality, free speech and other human rights. In the context of the exemptions that have been granted to religious organisations to discriminate on the ground of sexual orientation (SOR Regulation 7) the Joint Committee on Human Rights could hear evidence from a wide range of individuals and groups in civil society (including organisations such as Stonewall in the UK) about their experience of the exemptions granted to religious organisations. The Committee could then evaluate and report on the impact of these exemptions in an annual review that would be an open and transparent procedure.

Local authorities implementing an equality duty that covers religion or belief, and sexual orientation or gender (under the Equality Act 2010) should be encouraged to devise processes of consultation with local communities and civil society that bring together a wide range of groups and individuals before significant conflicts arise. An early process of consultation may help to resolve conflicts within and also between different groups. It could also inform the design and implementation of an equality action plan.

Cultural policy that encourages the participation of minorities in ‘free speech’ should be supported as a key way of addressing hate speech in the public sphere. Supply side investment that increases capacity within minority groups to respond to ‘hate speech’ may be preferable to the use of the criminal law. This could be an alternative to incitement to hatred legislation which often causes a conflict between equality and freedom of speech.

Better training and management in the workplace should be supported to prevent disputes (for example, between religious conscience and sexual orientation equality) becoming acrimonious. In some cases, the reallocation of work duties and rosters can address the issue without the need for disciplinary proceedings or litigation. ACAS should consider whether there is a need to issue guidance or a code of practice about how employers can reconcile their responsibilities under the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003 (ACAS, 2005). As the comments in the EAT decision in Ladele confirm, there is considerable scope for addressing these conflicts through the intelligent use of human resources policy rather than through litigation.

Religion and sexuality conflicts require a range of responses. Legal devices, such as the use of the belief-conduct distinction, or drawing distinctions between the public and private sphere, can only provide a partial solution. There is a considerable role for non-legal strategies in this context. Although law has a role to play in addressing religion and sexuality conflicts, this is one area where—as one commentator argues—‘you can’t hurry love’ (Koppelman 2006). Legal devices such as the belief-conduct distinction, and the public-private distinction, are useful to safeguard the rights of individuals (such as gays and lesbians) in key areas such as employment or on campuses. Nevertheless, one consequence of these techniques is that they will tend to silence and marginalise religious voices within liberal democracies in ways that could be both damaging and counter-productive, as well as detrimental to free speech values. A willingness to enter into, and encourage, debate between those on different ends of the spectrum in the religion and sexuality conflict is also necessary (Stychin 2009). The institutional context is critically important in all these cases. The debate about how to resolve conflicts, and the resulting negotiations between groups, needs to be carried out within mainstream political and legal institutions. Civil society and the media are also important actors within this process. We must recognise diversity within groups as well as being vigilant about the risk of harm to vulnerable individuals from oppression within groups. This procedure is likely to ensure the broadest range of participation in public debate and political negotiations. In this way the painful compromises that are an inherent part of balancing religious freedom, free speech and equality law and policy are more likely to command the consent of all those involved.

Footnotes
1

R v Secretary of State for Education and Employment ex parte Williamson [2005] H.R.L.R. 14 at para 16.

 
2

See incident of ‘Gay Couple Turned Away from B and B by Christian Owners’, The Guardian/The Observer, Sunday 21 March, 2010.

 
3

Same Sex Marriage, Civil Unions, and Domestic Partnerships, The New York Times, Wed 28 June, 2010.

 
4

561 U. S. (2010), U.S. Supreme Court.

 
5

Ladele v Islington, [2009] EWCA Civ 1357.

 
6

Macfarlane v Relate Avon Ltd, [2010] EWCA Civ B1.

 
7

The case concerned racist statements made as part of a Danish Broadcasting Corporation television programme (Jersild v Denmark (A/298) (1995) 19 E. H. R. R. 1, ECHR).

 
8

The case concerned the Austrian state’s confiscation of a film on the grounds that it would offend Catholic religious feeling (Otto-Preminger v Austria (1995) 19 E. H. R. R. 34).

 
9

[2004] WL 741919 (QBD).

 
10

[2004] EWHC 860 (Admin) at para 115 and 31.

 
11

[2004] EWHC 860 at para 44.

 
12

[2004] EWHC 860 at para 38-40.

 
13

ET 2203694/2007 (unreported). ET Judgment of 3 July 2008 (copy of case with the author). The final decision of the Court of Appeal is reported at [2009] EWCA Civ 1357.

 
14

See Darby v Sweden, 187 Eur. Ct. H. R. (Ser A) (1990). See the discussion by Carolyn Evans (2001) at p. 127. Another example of permissible ‘contracting out’ of the right to freedom of religion or belief is the case of the Muslim school teacher who was found to have limited his right to religious freedom when he accepted an employment contract which included set working hours which prevented him from taking time off for Friday prayers. See X v United Kingdom, App. No.8160/78, 22 Eur. Comm’n H. R. Dec. and Rep. 27 (1981).

 
15

London Borough of Islington v Ladele (Liberty as Intervenor), Appeal No: UKEAT/0453/08/RN, Decision of 10 December 2008 (at para. 126).

 
16

[2009] EWCA Civ 1357.

 
17

ET 2203694/2007 (unreported). ET Judgment of 3 July 2008 (copy of case with the author), paras 27–28.

 
18

London Borough of Islington v Ladele (Liberty as Intervenor), Appeal No: UKEAT/0453/08/RN, Decision of 10 December 2008 (at para 130)

 
19

Trinity Western University v British Columbia College Teachers [2001] 1 SCR 772.

 
20

Bob Jones University v US, 461 US 574 (2010).

 
21

Boy Scouts of America v Dale 530 U.S. 640 (2000).

 
22

Boy Scouts of America v Dale 530 U.S. 640 (2000).

 
23

Boy Scouts of America v Dale 530 U.S. 640 (2000), at 676 and 686.

 
24

Christian Legal Society v Martinez 561 U. S. (2010).

 
25

James Meikle, Ex-archbishop attacks judges over gay counselling ruling, The Guardian, 29 April 2010.

 
26

Leyla Sahin v Turkey, European Court of Human Rights, Decision of 10 November 2005, Application No. 44774/98, per Judge Tulkens, para 4.

 

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