Religion and the law: squaring the circle

Published in Halsbury's Law Exchange (in slightly diluted form) here.

Mr Aiden O’Neill QC has written a counterpoint to recent developments in law and religion, a subject on which I have written several recent posts. His view deserves a response.

Mr O’Neill summaries the present state of the law as follows:

“The courts analyse such cases from a discrimination law perspective by asking whether a person without religiously based views would have been permitted to act in any of these ways. If both a religious and a non-religious person would not have been permitted to do these things, then there is no discrimination on grounds of religion or belief.”

He criticises this approach on the basis that there is a distinction between informed religious beliefs and secular beliefs; the former, he argues, are “intimately tied into the moral values to which [the religious] would adhere, by word and deed. Failing to act on those beliefs is not an option for the religious, because a failure so to act expresses for them a denial of their beliefs.”

There are several responses. First, it would be of small consolation to someone on the receiving end of what would otherwise be unlawful discrimination to be told that the discriminator was sincerely following a prescribed moral code. I doubt, for example, whether someone deemed untouchable by hardline adherents of the Hindu caste system, or excluded by followers of the former Dutch Reform Church, would have any sympathy for Mr O’Neill QC’s views. That those are extreme examples does not change the fundamental principle of non-discrimination.

Secondly, while it is true that some religious people who have been in the courts recently may have been genuine adherents of a mainstream religion who were acting according to deeply held beliefs, others seeking a religious-based exemption from anti-discrimination laws might simply be religious adherents of convenience, who offer a religious belief as a straw defence to justify bigotry held on other grounds. The courts are ill-equipped to judge anyone’s piety.

Thirdly, one would also have to define a religion, another exercise courts are not well placed to undertake.

Fourthly, there would have to be a list of acceptable or unacceptable religious beliefs for the purposes of legal exemption. No-one would support on religious grounds stoning someone to death for adultery, or withdrawing a female child from education, or forced marriages, or female genital mutilation. But compiling such a list would be an invidious task and bound to be over or under-inclusive. Alternatively, some principles would have to be formulated for the courts to implement on a case by case basis, which would likely lead to unacceptable uncertainty.

Mr O’Neill argues that, on his analysis, being religious is akin to having a disability: the law requires that account be taken of disability and appropriate measures taken to place the disabled on an equal footing with those without that disability. He says the same should occur for religions. The analogy is false. For a start, there is no choice about having a disability, whereas people often abandon or otherwise modify their religious beliefs.

Mr O’Neill would doubtless respond that for many it is not at all possible to change their beliefs, still less is it reasonable for the law to require them to do so. Yet the analogy still does not hold up: there is nothing about having a disability which affects anyone else’s rights, still less anyone else’s right not to be discriminated against. One person having a disability is totally irrelevant to anyone else’s right not to be discriminated against on the ground of race, gender, age or sexual orientation, for example – no reasonable adjustment would have anything to do with those grounds.

Underlying Mr O’Neill’s thesis is the assumption that religious beliefs are of a different nature to secular beliefs of any form and, he inevitably has to argue, somehow more deserving of the law’s protection. He contends that “there can be no proper comparison between those who would discriminate on grounds of a religiously informed conscience, and those who so act simply from unthinking incoherent prejudice or bigotry.”

This argument is not sustainable. Some religions might constitute deeply held belief systems with centuries of provenance. Others might be bizarre and extremist offshoots. Recent cases have shown the difficulties inherent in distinguishing one from the other. Moreover, someone might write a scholarly thesis on the dangers of religion and seek to exclude religious people from their public establishment accordingly – not all who discriminate on secular grounds are unthinking bigots.

The overarching principle regarding religion and the law is that one is entitled to respect for the right to hold beliefs, but not those beliefs themselves. Just because a person is entitled to hold a belief does not mean that another person has to pay for it, or suffer unlawful discrimination because of it.