Lord Justice Nero?

There is
a shrill, unpleasant new sound in the UK church. It is the sound of
conservative Christians saying that they are persecuted. It’s the voice of a
minority. And as Rowan Williams trenchantly observed: ‘The Church of England is
like a swimming pool: all the noise comes from the shallow end.’ The claim of
persecution is an insult to the vast numbers of Christians in the world who really
are persecuted. Please read the Bible and the history books before going on
prime time TV to say that you’re persecuted. 

It would
be nice to think that the judgment of Lord Justice Laws in McFarlane v Relate Avon Ltd
(29.4.2010) 
would inhibit the misuse of courtrooms as pulpits. Laws LJ is a charming,
courteous judge, but was barely able to conceal his irritation at  Gary McFarlane’s application for permission to
appeal from the decision of the Employment Appeal Tribunal (EAT). The
application, he decided, embodied some basic misunderstandings of the law of
discrimination.

McFarlane
was employed as a counsellor by Relate. He is a Christian who thinks that same
sex sexual activity is sinful. He signed a contract of employment that included
the equal opportunities policy. The relevant part of that policy required the
employers to ensure ‘that no person….receives less favourable treatment on the
basis of characteristics, such as…..sexual orientation.’ All was well for a
while, and then he sought to be exempted from work with same-sex couples where
issues of psycho-sexual therapy (PST) were involved. His manager refused to
give such an exemption, and McFarlane eventually said that he would undertake
PST with such couples, raising with his supervisor any problems that he had.
But his employers soon concluded that he had no intention of counselling such
couples, and accordingly dismissed him on the grounds that he said that he
would comply with the policy but had no real intention of doing so.

He
launched legal proceedings. The only claims relevant for present purposes were
claims of unfair dismissal and discrimination.

As to
discrimination, he said that he had been subjected to direct and indirect
discrimination. Direct discrimination is where, on grounds of religion or
belief, A treats B less favourably than he treats or would treat other persons.
Indirect discrimination is where ‘A applies to B a provision, criterion or
practice which he applies or would apply equally to persons not of the same
religion or belief as B, but which puts or would put persons of the same
religion or belief as B at a particular disadvantage when compared with other
persons’, in fact puts B at that disadvantage, and which A cannot show to be a
proportionate means of achieving a legitimate aim:  see the Employment Equality (Religion or
Belief) Regulations 2003, para 3(1)(b).

As to
direct discrimination, the Employment Tribunal applied a comparator approach,
asking itself whether Relate would have treated differently an employee who,
for reasons unrelated to Christianity, refused to provide PST. It concluded
that Relate would not.

McFarlane
said that this was the wrong approach, because it reduced or eliminated the
need to protect the manifestation of religious belief as well as the fact that
the belief is held. That, said the EAT and Laws LJ, was nonsense: look at the
authorities.

As to
indirect discrimination, McFarlane said that Relate’s insistence on compliance
with their policy was disproportionate: there was no good reason why he should
not be allowed to counsel heterosexual couples only.  The EAT and Laws LJ disagreed: Relate’s
approach was a proportionate means of achieving a legitimate aim.

McFarlane
sought to turn his case into a State trial of seminal constitutional
importance. The main authority against him (London
Borough of Islington v Ladele
[2010] EWCA Civ 1357) was, he said, decided
wrongly because the Court of Appeal failed properly to consider other cornerstone
cases. Ladele needed to be revisited
urgently. It was ‘unconstitutional and contrary to the rule of law’.
Reconsideration was crucial ‘not just for the law but for the direction of the United
Kingdom, and whether we are going to be a secular state or a neutral state
holding the ring between competing values.’ Wow!

These
ambitious submissions were buttressed by a witness statement from the former
Archbishop of Canterbury, Lord Carey. It was carefully considered by Laws LJ,
whose introductory remarks speak volumes: ‘I think it right to address what he
has to say, having regard to his seniority in the church and the extent to
which others may agree with his views, and because of the misunderstanding of
the law which his statement reveals.’

Lord
Carey  said that judges sitting in
previous comparable cases had 
erroneously regarded as homophobic Christians who took McFarlane’s view,
and  called on the court to order that
McFarlane’s case be heard by the Lord Chief Justice…and a ‘specially
constituted Court of Appeal of five Lords Justices who have a proven
sensibility to religious issues.’  That
submission was not likely to be greeted rapturously by Laws LJ, and it wasn’t.

Lord
Carey went on to paint an apocalyptic picture. We were well on our way down a
slippery slope leading to the lions and Christians show at the Colosseum. ‘It
is, of course, but a short step from the dismissal of a sincere Christian from
employment to a ‘religious bar’ to any employment  by Christians. If Christian views on sexual
ethics can be described as ‘discriminatory’, such views cannot be ‘worthy of
respect in a democratic society’. An employer could dismiss a Christian, refuse
to employ a Christian and actively undermine Christian beliefs. I believe that
further judicial decisions are likely to end up at this point and this is why I
believe it is necessary to intervene now….’

That
passage is likely to feature in many of this term’s employment law examination
papers over the request: ‘What is wrong with this analysis?’ If you’re a law
student, pick that question: it’s very easy.  There are two big mistakes:

(a)        As a matter of fact there is no reported
case where the judges have regarded conservative Christian disapproval of
homosexual practice as homophobic or otherwise bigoted. In short, the courts
haven’t fallen into the same basic error as the anti-Christian bigots who
crowed in the achingly politically correct press over McFarlane’s downfall.

(b)        In cases of indirect discrimination the
law forbids discriminatory conduct by X not by reference to X’s motive, but by
reference to the outcome of X’s
conduct. Accordingly the judicial analysis of McFarlane’s motive that Lord
Carey said was so catastrophically repercussive had never been attempted at
all: it would have been wholly irrelevant to the issue that the court had to
decide.

But Lord
Carey’s complaint went further. He thought that the courts showed ‘a lack of
sensitivity to religious belief.’ Laws LJ observed that ‘these concerns are
formulated at such a level of generality that it is hard to know precisely what
Lord Carey has in mind. Broadly, however, the argument must be that the courts
ought to be more sympathetic to the substance of the Christian beliefs referred
to than appears to be the case, and should be readier than they are to uphold
and defend them.’ That this was indeed the argument is shown by the enraged
response of some conservative Christians to what Laws LJ said about it: see,
for instance, the view of Michael Nazir-Ali.

Laws
LJ’s answer will be widely quoted. It asserts the crucial distinction between protecting
the right to hold and express a belief (important) and protecting the substance
of a belief (impossible and undesirable). Gary McFarlane and Lord Carey had conflated
these two very different things. Laws LJ said:

‘The
common law and ECHR Article 9 offer vigorous protection of the Christian’s
right (and every other person’s right) to hold and express his or her beliefs.
And so they should. By contrast they do not, and should not, offer any
protection whatever of the substance or content of those beliefs on
the ground only that they are based on religious precepts
. These are
twin conditions of a free society….The general law may of course protect a particular social or
moral position which is espoused by Christianity, not because of its religious imprimatur,
but on the footing that in reason its merits commend themselves. So it is with
core provisions of the criminal law: the prohibition of violence and
dishonesty. The Judaeo-Christian tradition, stretching over many centuries, has
no doubt exerted a profound influence upon the judgment of lawmakers as to the
objective merits of this or that social policy. And the liturgy and practice of
the established Church are to some extent prescribed by law. But the conferment
of any legal protection or preference upon a particular substantive moral
position on the ground only that it is espoused by the adherents of a
particular faith, however long its tradition, however rich its culture, is
deeply unprincipled. It imposes compulsory law, not to advance the general good
on objective grounds, but to give effect to the force of subjective opinion.
This must be so, since in the eye of everyone save the believer religious faith
is necessarily subjective, being incommunicable by any kind of proof or
evidence. It may of course be true; but the ascertainment of such a
truth lies beyond the means by which laws are made in a reasonable society.
Therefore it lies only in the heart of the believer, who is alone bound by it.
No one else is or can be so bound, unless by his own free choice he accepts its
claims.

The promulgation
of law for the protection of a position held purely on religious grounds cannot
therefore be justified. It is irrational, as preferring the subjective over the
objective. But it is also divisive, capricious and arbitrary. We do not live in
a society where all the people share uniform religious beliefs. The precepts of
any one religious – any belief system – cannot, by force of their religious
origins, sound any louder in the general law than the precepts of any other. If
they did, those out in the cold would be less than citizens; and our
constitution would be on the way to a theocracy, which is of necessity
autocratic. The law of a theocracy is dictated without option to the people,
not made by their judges and governments. The individual conscience is free to
accept such dictated law; but the State, if its people are to be free, has the
burdensome duty of thinking for itself.

So it is that the law must firmly
safeguard the right to hold and express religious belief; equally firmly, it
must eschew any protection of such a belief’s content in the name only of its
religious credentials.
Both principles
are necessary conditions of a free and rational regime.’
(My emphasis).

This is
stirring stuff. It might have been put slightly less provocatively: perhaps
substituting ‘not capable of definitive rational evaluation’ for ‘irrational’.
But the gist must  be right. Indeed would
Gary McFarlane’s supporters really want it otherwise? Do they want judges to adjudicate
on the evidence for their beliefs? Or to balance the merits of their beliefs
against those of Islam or Buddhism?

McFarlane should generate some earnest and
urgent reflection amongst conservative Christian pressure groups. Their record
in the courtroom is dismal: see my assessment in  The Pro-Life lobby and its pyrrhic victories . That is not because the judges are demonic.
These courtroom  campaigns do the devil’s
job for him. There is something particularly unattractive and ironic about
Christians demanding special status.

One
caveat, though. Michael Nazir-Ali, in the article cited above, drew parallels
between McFarlane’s case and the case of conscientiously objecting doctors.
This was tactically unwise. Julian Savulescu famously and mischievously
suggested that doctors are in the same class as every other type of employee so
far as conscientious objection is concerned. They should leave their moral
scruples at the door of the operating theatre along with their dirty shoes. If
they don’t want to perform abortions, and their failure to perform abortions
creates problems, then they are in breach of contract and should stop being
doctors: Conscientious objection in
medicine
(2006) 332 BMJ 294-7. That’s rather a good argument in a McFarlane
type case: if you don’t like the job you’re paid to do, don’t do it. But it
doesn’t work for doctors. I have set out at inordinate length elsewhere why it
doesn’t: see Choosing Life, Choosing
Death
(2009) Oxford, Hart, pp 21-28. 
Nazir-Ali plays straight into Savulescu’s hands. Doctors won’t like
that.

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