Equality and Religious Belief
A great summary of the state of play as the EHRC engages in a review of religious discrimination can be found over at the excellent Religion Law Blog.
11) The Commission has said that it will oppose the appeals in the cases ofÂ McFarlaneÂ andÂ LadelleÂ and clearly considers that the issues in the two cases are the same.Â I disagree and suggest that the two cases are clearlyÂ distinguishable on their facts and in the legal principles applicable to them. ThisÂ submission will concentrate solely on the case of Ladelle which we would suggestÂ shows an inability on the part of the Courts, and the Commission, to distinguishÂ between simple discrimination and refusal to be complicit in an immoral act. InÂ addition the case demonstrated an unwillingness on the part of the UK Courts toÂ properly consider or apply the limitations in Article 9.2 in particular the questionÂ whether the limitations wereÂ â€œnecessary in a Democratic Societyâ€
12) In respect of her desire not to participate in same sex partnership ceremonies MsÂ Ladelle was manifesting her religion and belief in â€œpractice and observanceâ€. SinceÂ she believed that same sex relationships are sinful she was aware that byÂ participating in them she would herself be morally complicit in that sin and therefore any attempt to force her to participate in them was contrary to her rights under Article 9 because it was an attempt to force her to act in a way that was inconsistent with her moral beliefs. Her objections should only have been overridden if that was â€œnecessary in a democratic societyâ€
13) InÂ para 56 of its judgmentÂ the Court of Appeal saidÂ â€œMs Ladele’s objection was based on her view of marriage, which was not aÂ core part of her religion; and Islington’s requirement in no way prevented herÂ from worshipping as she wished.” Â and this section shows a fundamental misunderstanding of Christian belief onÂ marriage, or Article 9 and of the proper role of the Courts. It is not for SecularÂ Courts to distinguish what is or is not a â€œcore partâ€ of a religion and Article 9 isÂ concerned with freedom of religion not freedom of worship. Like all elements of theÂ Convention Article 9 protects both positive and negative freedom. To forceÂ someone to act in a way contrary to their religious beliefs is as bad as preventingÂ someone acting, or worshipping in accordance with their religious beliefs but that isÂ what Islington Council and the Court of Appeal required of Ms Ladelle.
14) In Ms Ladelles case there is absolutely no evidence that it was â€œnecessaryâ€ to makeÂ her participate in same sex ceremonies. The evidence in the case showed that theservice provided by Islington was not in any way affected by Ms Ladelle ensuringÂ that she was not rostered for same sex ceremonies therefore requiring her toÂ participate was not â€œnecessaryâ€ in any meaningful sense of the word. The fact thatÂ her views may have been contrary to the Equality policy of the Council, which isÂ arguable both ways, still does not make it â€œnecessaryâ€ to force her to act in aÂ manner which was contrary to her religious beliefs. The issue of whether theÂ Councils actions were â€œnecessaryâ€ was never properly addressed by the Court.
Perhaps the work of the Christian Legal Centre over the past few years might yet bear fruit?