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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.

Thursday, 15 April 2010

British Chiropractic Association v Singh

Today the Times reports that the British Chiropractic Association has dropped its libel case against Simon Singh, following an adverse ruling by the Court of Appeal.

I wrote the following as a company blog on the Appeal Court's judgment:

Sticks and stones may break my bones”, went a popular refrain of my primary school days, “but names will never harm me”.

Made of somewhat less robust material is the British Chiropractic Association, which took exception to an article by the scientist and author Dr Simon Singh in the Guardian newspaper. The article included the following:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

Ignoring the journalistic context, this is the ordinary stuff of scientific controversy: the Association made certain claims for which Dr Singh disputed the evidence. The appropriate response for the Association would have been to adduce peer-reviewed evidence supporting its claims; and for those to be subject to further study. Over time either or both sides should then have modified their views depending on the weight of the evidence. There were any number of fora available to the Association to propound its viewpoint: indeed, the Guardian itself offered just such an opportunity.

But the Association did not take that course. Instead it chose to sue for libel. Moreover, it chose to sue not the obvious defendant of the Guardian, but Dr Singh personally.

It takes little imagination to work out why. The Guardian would be well placed to defend any such action. But Dr Singh is a private individual and, though reasonably well-off, hardly in the position of a national newspaper to afford the cost of High Court litigation. It is not unreasonable to assume that the Association hoped not only to silence Dr Singh, but also send a message to anyone else who dared cross them in the same fashion.

The Court of Appeal had this to say of that tawdry strategy:

It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic. If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved. This would be a surprising consequence of laws designed to protect reputation ...

Fortunately it was not the ultimate consequence of the litigation. Dr Singh found the resources not only to defend the action in the High Court, but to appeal successfully against an adverse first instance finding that his article could not amount to “fair comment”.

The evidence proffered by the Association is revealing in itself. The Court of Appeal quotes the following:

The BCA ... relies (among other studies) on a 1989 observational study of 316 children, of which it is said:

"This …. measured the number of hours each child spent in crying .... There was no control group. However, the study constitutes evidence."

It is, however, elementary medical science that the only evidence worthy of the name comes from double blind, randomised control tests. The Association’s quoted “observational study” admits that it had no control group and thus did not meet that criteria. To suggest it constitutes evidence is a classic example of the post hoc ergo propter hoc fallacy. It is difficult to rebut the suspicion that the lack of scientific validity of this “observational study” might be the reason why the Association opted for a libel suit rather than the proper course of a public debate about the evidence for its claims.

The Court of Appeal offered the following pithy observation from an American judgment (Underwager v Salter 22 Fed. 3d 730 (1994)):

"[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us."

With which it is impossible to disagree. The irony is that by adopting its bullying tactics and failing, the Association has ultimately done itself more damage – both financially and in terms of its reputation – than Dr Singh’s original article ever would have done if it had been simply ignored. It fully deserved to come unstuck on that one.

Monday, 12 April 2010

Class players

Letter 15

From http://www.timesonline.co.uk/tol/comment/letters/article7094798.ece

(They managed to get my name wrong, but at least it is correct in the paper version)

Sir, Morgan Rees (letter, April 9) rightly points out that not all amateur rugby union players were middle class. As well as the 1905 Welsh team that defeated the All Blacks, he might have cited the New Zealanders themselves.

In 1987 they won the World Cup on a Saturday afternoon. On the Monday morning Craig Green waited outside his house, packed lunch in hand, for his mates to pick him up on the way to work on a building site, while Zinzan Brooke went back to work as a roofer in a working-class suburb of Auckland.