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Thursday, 29 April 2010

Religion and the law again

Another internal post

In a previous post on religion and the law, I said the following:

the obligation in a free society is that one is required to respect a person’s right to their beliefs, but not to respect the beliefs themselves. So it would be perfectly acceptable for employee A to hold her religious beliefs, but not for that to impose any cost on her employer or her fellow employees. Otherwise it is compelling them at least partly to accept those beliefs, which might of course be contrary to their own. Employee A should not therefore take on the job in the first place, or should negotiate the terms before she starts.

Now the Court of Appeal has used the same logic in another case where an employee wished to be excused certain duties on the basis that they conflicted with his religious views.

The Times reports:

Christianity deserves no protection in law above other faiths and to do so would be “irrational”, “divisive, capricious and arbitrary”, a senior judge said today, as he rejected a marriage guidance counsellor’s attempt to challenge his sacking for refusing to give sex therapy to gay couples.

In the latest clash between the judiciary and Christian believers, Lord Justice Laws said that laws could not be used to protect one religion above another.

He also delivered a robust dismissal to the former Archbishop of Canterbury who had warned that a series of recent court rulings against Christians could lead to “civil unrest.”

To give one religion legal protection over any other, “however long its tradition, however rich its culture, is deeply unprincipled”, the judge said. It would give legal force to a “subjective opinion” and would lead to a “theocracy”, which is of necessity autocratic.”

Robust retort to the former Archbishop it certainly was. Elsewhere the Telegraph reports the former Archbishop’s predictable reaction. Yet Laws LJ’s decision is both logically correct and, moreover, not an attack on anyone’s right to religious belief. The decision is quite straightforward. Everyone has the right to their beliefs. But they may not impose those beliefs on others. Which means that the employee in this case was perfectly entitled to hold the religious belief that he should refuse to offer services to homosexuals. But, that being the case, he should not have taken the job in the first place, or at least should not continue with it. That does not reflect on him as a Christian. It would be the same for any religious belief, or indeed any other sort of belief, however serious or trivial. One can object to the trade in oil due to the amount of blood and other injustice associated with its extraction, but in that case one shouldn’t take a job at a service station and refuse to operate the petrol pumps. Nor should anyone accept employment at a butcher’s shop or off licence and then demand state-enforced exemption in respect of handling pork or alcohol products, unless one agrees with the employer beforehand.

This does not involve other rights “trumping” the right to religion as is occasionally supposed. It is simply that one’s own personal beliefs provide no excuse for not obeying the law, which prohibits discrimination on certain grounds. It does not prevent one from holding those beliefs nor from campaigning for a change in the law or otherwise exercising one’s right to free speech to proselytise as much as one wishes.

If it were otherwise then there would be many potentially negative consequences beyond simply religious employees skipping a few duties here and there at work. Adherents of the doctrine of the Dutch Reform Church in the 1980s would be permitted to act in a particularly odious fashion. Indeed, in the UK itself B&Bs were once permitted to display signs excluding people of a certain ethnicity. Further back in time, of course, this country had a state religion that was extremely ruthless towards anyone not on message. In the present day many countries still do. I doubt many in the UK in the present day would wish to see people fined for non-attendance at church, never mind executed for apostasy or blasphemy.

So much for the general point. In fact in the instant case the above was reinforced by the very terms of the employment contract. The employer had an equal opportunities policy which required them to ensure “that no person… receives less favourable treatment on the basis of characteristics, such as… sexual orientation…” The employee can be taken to have been aware of this when signing his contract.

That is the short answer to the argument (which others have made) that homosexuality is being privileged over religion. But one could also make the point in reverse: suppose that the employee had been homosexual, and took the view that the Bible was a bigoted document in respect of homosexuals and that he disagreed with the church's teaching thereon. Would or should he have been able to ask not to advise Christians? Of course not.

One further point mentioned by the Times is the contention by the former Archbishop that only judges proven to have some sort of religious sensitivity should hear cases with a religious element. This argument can be disposed of shortly. It would be completely unprincipled to afford certain individuals separate (and presumably more sympathetic) legal procedures on the basis of their personal beliefs. It is unworkable anyway - why only religious cases? Almost any type of case could conceivably involve someone’s particular sensibilities and deeply held beliefs. The role of the courts is to decide cases according to law, and certainly not to attempt to evaluate religious doctrine. (Note that this should not be confused with the regular practice of the Court of Appeal to include at least one judge with particular expertise on the area of law a case raises, eg shipping law. In those cases the particular judge is chosen so as to ensure the tribunal understands the law, not because he or she might show extra sensitivity to shipowners or charterers or cargo owners. Nor should it be confused with the ecclesiastical courts which still exist and reflect the CofE's status as the established church; on which more possibly another time.)

It is not as though the approach advocated above should worry any religious believer; quite the opposite. The United States has a constitutional separation of church and state, as well as freedom of speech, and yet has a much higher level of religious attendance than the United Kingdom. By contrast certain theocratic states elsewhere in the world, as I have mentioned, protect only one religion, and not much in the way of other minority rights either. Perhaps the former Archbishop would be better off addressing the real persecution of Christians in other countries rather than the imagined persecution in this one.

Post script: This letter to the Times also makes a very strong rebuttal of Lord Carey's views.


  1. I agree with your position but how to defend against someone who thinks otherwise? I once had some students who thought no doctor should have to perform an abortion if that went against their beliefs. If a private doctor, sure but they also thought the same for publicly-paid doctors. I agree with you - if that's their belief they should t have taken the job.

  2. Because there simply isn't a limit on the possible number of religious beliefs, so by that logic it's possible no jobs could end up being done by anyone. We already have had Muslim medical students wanting not to learn about birth control, abortion and various other things and presumably Jehovah's witness doctors don't want to perform blood transfusions, and vegan doctors don't want to use any equipment that is derived from animals etc etc etc. Similarly religious people want holidays on certain days ... It has to be the case that the terms of employment or qualifications are set out in advance and then no-one can complain that the rules are against them. Quite the contrary - it is they who are against the rules, and that's their problem.