In recent years, the clash between supporters of religious liberty and sexual orientation equality legislation has led to repeated battles both in Parliament and the courts. First came the clashes over the scope of exemptions in employment discrimination legislation for religious groups. The UK Regulations dealing with employment discrimination on grounds of sexual orientation give a limited exception for ‘employment for purposes of an organised religion’, which allows an employer to apply a requirement related to sexual orientation to comply with the doctrines of the religion, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.Footnote ² A legal challenge brought to the scope of this exception was unsuccessfulFootnote ³ but, despite that, the exemption has not averted damaging findings of discrimination against the Church of England. The Bishop of Hereford was held to have discriminated unlawfully in blocking the appointment of a practising homosexual to a youth-officer post within the Church of England.Footnote ⁴ The partial success of religious groups in achieving exemption was followed by defeat in the equivalent regulations dealing with discrimination in goods and services, made under the Equality Act 2006, despite the claims of Catholic adoption agencies that they would rather close than place children with same-sex couples.

Then there have been a series of well-publicised cases in which individuals have claimed to have suffered penalties on grounds of their religious beliefs concerning homosexuality, such as the unsuccessful challenge by a magistrate to the refusal of the Sheffield bench to accommodate his beliefs by allowing him not to sit on cases that might require him to approve the adoption of children by same-sex households, following the Civil Partnerships Act.Footnote ⁵

The scene of the latest battle in this contemporary Kulturkampf was the Criminal Justice and Immigration Bill 2007–8, containing the government's proposals to introduce an offence of incitement to hatred on grounds of sexual orientation. Under Clause 126 and schedule 26 of the Bill,Footnote ⁶ it will become an offence to use threatening words or behaviour or to display any written material that is threatening if the intension is to stir up hatred on the grounds of sexual orientation. Hatred ‘on the grounds of sexual orientation’ is defined to mean ‘hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both)’.

Groups such as Stonewall have lobbied for an offence of this kind because of the alleged link between inciting hatred and homophobic violence.Footnote ⁷ The proposed offence is an extension of the existing racial hatred legislation, modelled on the recent offence of incitement to religious hatred law.Footnote ⁸ Just as in the debate over incitement to religious hatred, critics (including prominent homosexual activists) argued that this further extension of the law was unnecessary in view of the application of other criminal offences.Footnote ⁹ Religiously motivated opponents claimed that it relied on a false comparison between race and homosexuality (which some argue is a practice, rather than a status), and that there was a risk to free speech and religious debate.Footnote ¹⁰

Under existing law, ‘homophobic’ speech can be punished in several ways. Judges are required to treat it as an aggravating factor in sentencing for an offence if the defendant showed hostility based on the sexual orientation (or presumed sexual orientation) of the victim or if the offence was motivated wholly or partly by hostility towards persons who are of a particular sexual orientation.Footnote ¹¹ Moreover, applying a widely drawn Code of Practice, the police are now regularly responding to alleged homophobic ‘hate incidents’ where the harm involves no more than the public expression of disapproval of homosexual conduct, regardless of whether or not an offence might have been committed.Footnote ¹² On this basis, police investigations were launched following complaints from members of the public against the Anglican Bishop of Chester, the Secretary-General of the Muslim Council of Great Britain for broadcast remarks disapproving of homosexual conduct, and the Roman Catholic Archbishop of Glasgow for comments in a sermon observing that civil partnerships undermined the institution of marriage.Footnote ¹³ These and other examples of misguidedly over-zealous policing featured prominently in the campaign for a free-speech amendment to the Bill.

Regulatory control of the media has also been used to punish religious speech deemed homophobic. In this vein, OFCOM and its predecessor body, the Independent Television Commission, have each found against religious broadcasters for breaches of their regulatory codes.Footnote ¹⁴ Some forms of ‘homophobic’ speech are also covered by anti-discrimination law. The definition of harassment applicable to sexual-orientation discrimination in employment includes ‘creating an intimidating, hostile, degrading or offensive environment’.Footnote ¹⁵ On the basis of North American experience, some critics fear that this might be used to penalise employees who, during casual conversation, explain their religious beliefs concerning homosexuality that the other person finds contentious or upsetting.Footnote ¹⁶

Evidence from other countries with equivalent legislation on incitement to hatred on grounds of sexual orientation also suggests that traditional religionists may become the target for complaints and prosecutions. In the Netherlands in 2002, a court acquitted Imam el-Moumni in a prosecution brought under article 137 of the Criminal Code of inciting hatred or discrimination against a group of people because of their homosexual orientation. In May 2001, on the television programme Nova, he had denounced homosexuality as ‘harmful to Dutch society’ and a ‘contagious disease’. He was acquitted and, on appeal by the prosecutor to the Court of Appeal, the acquittal was upheld.Footnote ¹⁷ The court found that his statements were permitted as a manifestation of his religious freedom of expression as an Imam.

Similarly, the Supreme Court of Sweden quashed the conviction of pastor Åke Green, who had been convicted and sentenced to a month's imprisonment in 2004 for inciting hatred on grounds of sexual orientation, following his trenchant criticism (in a church sermon) of homosexuality.Footnote ¹⁸ The Supreme Court found that, having regard to the jurisprudence of the European Court of Human Rights, the conviction was a disproportionate restriction under Articles 9 and 10 of the Convention. Accordingly, a restricted interpretation of the offence of agitation against a group was required and, since his statements could not be said to encourage or justify hatred of homosexuals, a conviction would therefore violate the Convention.

Both of those decisions contrast vividly with their nearest equivalent in English law, Hammond v DPP,Footnote ¹⁹ in which the conviction was upheld of an elderly street preacher who preached in the centre of Bournemouth on a Saturday afternoon while holding a large sign with the words: ‘Stop Immorality’, ‘Stop Homosexuality’, ‘Stop Lesbianism’ and ‘Jesus is Lord’. A hostile crowd of some 30 to 40 people had formed, some of whom reacted violently by assaulting Mr Hammond. After his refusal to desist from preaching, and following substantial debate among themselves (and after representations by members of the crowd), the police decided to arrest Hammond rather than his opponents and he was duly convicted of displaying an ‘insulting’ sign causing ‘alarm or distress’ convicted contrary to section 5 of the Public Order Act 1986.Footnote ²⁰ Hammond's appeal against the magistrates' conviction by way of case stated on a point of law was dismissed by the Divisional Court, which rejected the arguments that his rights of religious freedom and free expression (under Articles 9 and 10, respectively, of the European Convention) had been violated. The Court was reluctant to interfere with the first instance tribunal's findings that Hammond's behaviour amounted to displaying an ‘insulting’ sign causing ‘alarm or distress’. This is a profoundly unsatisfactory decision that is inconsistent with the Convention jurisprudence recognising the protection for expression of shocking ideas given by the Article 10 jurisprudence at Strasbourg.Footnote ²¹ It is doubtful that it would have withstood substantive analysis in the European Court of Human Rights – an avenue closed, however, by Hammond's death before the petition was determined.Footnote ²²

The decision in Hammond and other examples of heavy-handed policing of comparable complaints go a long way to explaining the scepticism that greeted the government's attempts at reassurance concerning protection of free speech under the new offence of incitement to hatred on grounds of sexual orientation.

As with incitement to religious hatred, the difficulty in defining ‘hatred’ was central to the issue. Critics argued that it would be difficult if not impossible to distinguish ‘hatred’ from vigorous and open debate on religious and other grounds about the morality of same-sex conduct and equality. Even leaving aside difficulties of what ‘homophobia’ means, to draw a line between derogatory homophobic abuse, on the one hand, and reasoned, if contentious, religious opinion, on the other, is problematic. The difficulty leads in one of two directions. Supporters of the reform argued that the good sense of the prosecuting authorities and of juries and magistrates as fact-finders should be trusted so as not to penalise expression in the latter category. In the light of the Hammond decision and the police investigations already mentioned into broadcasters and clergymen, the scepticism of opponents and distrust of prosecutorial discretion was at least understandable. Moreover, even if good sense were to prevail, speech anywhere near to the boundary would nonetheless be chilled. From this, opponents of the proposed offence concluded that it would be better not to legislate against expression of hatred against homosexuals beyond the existing provision providing increased sentences for bias-motivated crimes.

Rather than arguing for a defence for good-faith arguments on a religious subject,Footnote ²³ or based on Article 9 of the European Convention on Human Rights (for example teaching within religious organisations or religious services),Footnote ²⁴ religious critics of the legislation instead put their weight behind a more general free-speech defence. Their first attempt at revising the Bill was an unsuccessful cross-party backbench amendment, which failed to pass at the House of Commons Report Stage in January 2008.Footnote ²⁵ The proposed amendment would have protected from prosecution ‘discussion of, criticism of or expressions of antipathy towards, conduct relating to a particular sexual orientation, or urging persons of a particular sexual orientation to refrain from or modify conduct related to that orientation’. The proponents argued that the focus upon conduct rather than criticism of homosexuals as a group was in keeping with the spirit of the new offence and that the main purpose was to provide reassurance to those whose speech – whether religiously motivated or not – might otherwise be chilled. The government claimed, however, that these interests had already been protected by confining the scope of the offence to ‘threatening’ words and behaviour (rather than insulting or abusive words or behaviour) and that the police and prosecutors would receive guidance on distinguishing unlawful words or behaviour from unpopular criticism of homosexuality.

In many ways, the debate was a reprise of arguments raised by the Lester amendment to the Racial and Religious Hatred Bill 2006. That amendment to the offence of incitement to religious hatred introduced a strong free-speech protection,Footnote ²⁶ supported by, among others, those fearful for the effect on religious freedom. On this occasion, however, the amendment to the Criminal Justice and Immigration Bill was defeated by a government majority of 159.

Undeterred, critics of the proposals rephrased their objections in milder language that referred solely to criticism of sexual conduct and on, 21 April 2008, the former Conservative Home Secretary, Lord Parker of Waddington, successfully moved an amendment at the Lords' Committee stage. This amendment, which passed by a majority of 81 to 57, states that:

The government continued to maintain that the amendment was unnecessary because the proposed offence could only be committed by use of words that were ‘threatening’ and that mere criticism would not fall within the ambit of the offence. Supporters of the amendment stressed, however, that it was designed to provide reassurance to those whose speech might otherwise be ‘chilled’ and to prevent over-zealous policing. Ministers preferred that the latter question be addressed through guidance but critics pointed out that the existing guidance on hate incidents was misleading and appeared to have encouraged the police to intervene in an overbearing fashion. Although the government succeeded in removing the amendment in the House of Commons,Footnote ²⁷ when the House of Lords inserted the amendment for a second time, ministers, anxious to secure speedy passage of the other powers in the Bill, conceded defeat.Footnote ²⁸

Despite this outcome, unfortunately it remains all too likely that the new offence will result in further legal skirmishes between religious traditionalists and gay rights advocates. The police, however, now have a clearer legislative basis to turn away requests to investigate religious speech that may be counter-cultural in its stance on sexual orientation but which is not threatening. It is noteworthy, however, that the Bill does nothing to correct the previous interpretations given to lesser public order offences. Even where the words of street preachers, clergymen and other religious critics clearly fall short of the ‘threatening’ threshold under the new offence, there remains therefore the possibility of liability under lesser public order offences that cover ‘abusive’ or ‘insulting’ words likely to cause harassment, alarm or distress.Footnote ²⁹ The next time that the UK courts face these issues it is to be hoped that they too will follow the lead of the Supreme Court of Sweden in the Green case and apply the ECHR, rather than imitating the Divisional Court in Hammond v DPP.