INTRODUCTION
Looking at the broad historical canvas, it may be observed that religion and sexual orientation have shared similar legal journeys.Footnote 2 At first the law embodied discrimination against people of certain religions and sexual orientations. English law favoured the Church of EnglandFootnote 3 and heterosexuality to the extent that other forms of religion and sexual orientation were actively disadvantaged. Over time, however, much of this favouritism came to an end.Footnote 4 Many discriminatory laws were removed and the legal picture became characterised by non-discrimination. Other religious groups and homosexuality became tolerated. This toleration was achieved on an ad hoc and piecemeal basis and came much later in relation to sexual orientation than religion.Footnote 5 However, it may be argued that the legal position has changed once again in the 21st century. English law now actively promotes anti-discrimination.
It may be said that the legislation of the last decade or so has resulted in a ‘new’ law on religion and a ‘new’ law on sexual orientation.Footnote 6 There have been four important legal developments. First, the Human Rights Act 1998, in force from October 2000, ‘brought rights home’ by largely incorporating the European Convention on Human Rights into English law, including the Article 8 right to respect for private and family life and the Article 9 right to freedom of thought, conscience and religion.Footnote 7 Second, the Civil Partnership Act 2004 created a new legally recognised human relationship based on sexual orientation that excluded religion: the law prohibited the use of a religious service during a civil partnership ceremony and stipulated that a civil partnership could not be registered on religious premises. Third, there were developments in criminal law: stirring up hatred on grounds of religion or belief and sexual orientation became specifically outlawed.Footnote 8 Fourth, there were developments in discrimination law: discrimination on grounds of religion or belief and sexual orientation was expressly prohibited in England and Wales in relation to employmentFootnote 9 and goods and services.Footnote 10
These developments are ongoing. The Equality Act 2010 has recently consolidated the substantive law relating to religious and sexual orientation discrimination and the exceptions that exist for religious groups.Footnote 11 Section 202 of the Act made provisions to remove the prohibition on registering civil partnerships on religious premises but this is not yet in force. Moreover, these legislative developments have led to a great deal of litigation concerning the ambit of these new laws and what should happen when provisions protecting sexual orientation clash with those protecting religion or belief.
Collectively these developments constitute a significant shift from non-discrimination to anti-discrimination, from passive tolerance to the active promotion of religious freedom and sexual autonomy as positive legal rights. The legal framework today is very different from ten years ago. The law now goes notably further than the ad hoc and piecemeal protection which existed in the 20th century. This article seeks to tell the story of how the law has changed and what impact this has had upon the right to discriminate: to what extent does English law allow religious groups and individuals to follow their own beliefs regarding human sexuality?Footnote 12
THE NEW LAW
The latter half of the 20th century saw a number of significant legal developments which served as important precursors to the four legal developments explored in this article. However, generally, these developments did not go as far as the laws of the 21st century. The 20th century saw the positive conferral of progressive but specific rights by Acts of Parliament. In relation to religion, for example,Footnote 13 conscientious objections to military service, oath taking and abortion were recognisedFootnote 14 and specific exceptions were granted to Sikhs from laws requiring safety hats on a building sites and requiring protective headgear when motorcycling.Footnote 15 In relation to sexual orientation, ‘statutory discrimination against same-sex couples was remedied in a number of discrete areas’:Footnote 16 by the 21st century, the letter of the law was modified to allow same-sex couples to apply for adoption orders and for occupation orders, for example.Footnote 17
In relation to these specific (and often hard fought for) dispensations, some laws were enacted that began to give more general protection. From the 1950s onwards international human rights treaties and the ideals they embodied began to influence the law. Articles of the European Convention on Human Rights, including Articles 8 and 9, were regarded as an aid to interpretation and English courts sought to ensure that their decisions conformed to the Convention. This was particularly true in relation to Article 8: Strasbourg decisions relying upon Articles 8 and 14 held several pieces of UK legislation discriminating against homosexuals to be unlawful.Footnote 18 Moreover, laws prohibiting discrimination on the grounds of race and sex provided some limited overlapping protection.Footnote 19 Religious claims attempted to ‘fit’ within claims of racial discrimination whilst claims concerning sexual orientation tried to ‘fit’ their complaints under sex discrimination legislation.Footnote 20 Most notably, SikhsFootnote 21 and JewsFootnote 22 were protected as races under Race Relations Act 1976Footnote 23 and some religious practices were protected as ethnic practices.Footnote 24 In contrast, attempts to ‘fit’ sexual orientation discrimination claims into sex discrimination claims generally failed:Footnote 25 most notably the House of Lords in Macdonald v Ministry of Defence and Pearce v Governing Body of Mayfield Secondary School Footnote 26 held that term ‘sex’ within section 1 of the 1975 Act related to gender and not sexual orientation and so abuse directed at an individual's sexual orientation fell outside the 1975 Act. The Sex Discrimination Act 1975 did, however, provide some rights for religious bodies since it included a specific exception for ‘organised religions’ permitting, for instance, the existence of an all-male priesthood.Footnote 27 This began the practice under English law to provide exceptions for religious groups
In general, therefore, whilst there were important developments in the 20th century, these are now mostly notable for the manner in which they paved the way for the wider-ranging developments of the 21st century. The remainder of this article will examine the four components of the new law in turn: the Human Rights Act 1998, the Civil Partnership Act 2004, the criminal offences of stirring up hatred on grounds of religion and sexual orientation and the prohibition of discrimination on those two grounds.
THE HUMAN RIGHTS ACT 1998
In addition to making it unlawful for public authorities to act in a way which is incompatible with a Convention right,Footnote 28 the Human Rights Act required very different approaches to interpretation.Footnote 29 These required judges ‘not to cast around in the European Human Rights Reports like black-letter lawyers seeking clues’ but rather to ‘to draw out the broad principles which animate the Convention’.Footnote 30 The Act ushered in a new rights-driven approach promoting religious freedom and the right to a private life as universal human rights.Footnote 31 Moreover, as part of this new legal culture, it has become normal to speak about the balancing of these rights as a means to resolve or at least minimise the tensions between them. However, although the Human Rights Act has brought about a profound cultural change by introducing a rights-focused vocabulary, it would appear that the Human Rights Act 1998 has had a greater effect in relation to sexual orientation than religion.Footnote 32
The effect upon religion
In relation to religion, the incorporation of Article 9 into domestic law has led to a number of high-profile cases.Footnote 33 However, analysis of this case law suggests that domestic courts are applying Article 9 somewhat restrictively. The statement first made in Begum Footnote 34 that ‘interference is not easily established’ has been used repeatedly to hold that there was no interference with the right to manifest religion;Footnote 35 and in the rare cases where the court have held that there has been an interference with Article 9(1) then the courts have held that interference to be justified under Article 9(2).Footnote 36 The lone successful case on religious dress in schools, R (on the application of Watkins-Singh) v The Governing Body of Aberdare Girls’ High School Footnote 37, argued under discrimination laws, illustrates the extent to which litigants will now argue anything but Article 9.Footnote 38
The effect upon sexual orientation
In contrast, it has been asserted that the Human Rights Act 1998 ‘heralded both a statutory and a judicial change towards discrimination against same-sex couples’.Footnote 39 Although some commentators have noted that the impact of the Human Rights Act 1998 has been less in family law than in other areas of lawFootnote 40 (because the ECHR protects individual rather than family rights),Footnote 41 it is clear that the Act has had a greater impact upon the protection of sexual orientation rather than religion. Although bold judicial interpretation in the area of family law is by no means novel,Footnote 42 a number of casesFootnote 43 show the ‘the increasing willingness of the courts to chip away at the concept of the family to include homosexual “family life” within its ambit’,Footnote 44 though there remain exceptionsFootnote 45 to this trend towards purposive interpretation.Footnote 46
The Human Rights Act 1998 has also prompted statutory change furthering the rights of same-sex couples.Footnote 47 An example may be found in the Gender Recognition Act 2004, which was the consequence of both unfavourable judgments by StrasbourgFootnote 48 and the House of Lords,Footnote 49 who made a Declaration of Incompatibility under the Human Rights Act 1998. The Gender Recognition Act 2004 provides, inter alia, that transsexuals who have obtained gender recognition certificates may marry someone of the opposite sex to the one that they have newly acquired.Footnote 50 The importance of the Human Rights Act 1998 as a precursor to the new law on discrimination and the Civil Partnership Act 2004 is also important. The Human Rights Act 1998 may therefore be seen as the base of the new ‘law on sexual orientation’.
THE CIVIL PARTNERSHIP ACT 2004
As Cretney has observed, there is a ‘remarkable paradox’ behind the creation of the Civil Partnership Act 2004: ironically, concerns about the rights of unmarried heterosexual couples promoted legislation which dealt solely with the rights of same-sex couples.Footnote 51 The Civil Partnership Act was introduced by the Government in response to two private member's Bills, which both sought to introduce a mechanism for both homo- and heterosexual couples. However, unlike these Bills,Footnote 52 the civil partnership legislation only provided recognition and protection in the case of ‘a relationship between two people of the same sex’ which is either formed ‘when they register as civil partners of each other’ or ‘by virtue of having registered an overseas relationship’.Footnote 53
The Act clearly represents an advance in the protection afforded to same-sex couples. However, the affect of the Act upon religious believers is unclear for two reasons. First, it is unclear what the precise difference is between a civil partnership and a marriage and this is important since for many religious believers marriage has an important religious significance. Second, the exclusion of religion from civil partnership ceremonies has been controversial and has led to recent legislative changes which further muddy understandings of what a civil partnership is. The following examines these two issues in turn.Footnote 54
The difference between civil partnerships and marriage
There has been a heated debate as to the differences between civil partnerships and marriages. The Labour Government's intention was to create ‘a parallel but different legal relationship’ to marriage.Footnote 55 And they sought to do this by using ‘civil marriage as a template for the processes, rights and responsibilities that go with civil partnership’.Footnote 56 Section after section of the legislation relating to marriage and divorce was simply been copied into the Act.Footnote 57 Much of the law on the restrictions, formation and dissolution of civil partnerships are the same as for civil weddings, for example.Footnote 58 However, there are certain differences regarding termination which may shed some light on how a civil partnership is different to a marriage. Like marriage, a civil partnership ‘ends only on death, dissolution or annulment’.Footnote 59 However, although the provisions of the Civil Partnership Act 2004 as regards termination ‘mirrors, to a large extent, the provisions contained in the Matrimonial Causes Act 1973’Footnote 60 (with the order of dissolution being equivalent to a divorce), there are two main differences between the termination of a marriage and termination of a civil partnership.Footnote 61 First, whilst adultery is a ground for a divorce,Footnote 62 it is not a ground for the dissolution of a civil partnership.Footnote 63 Second, in relation to annulment, whilst section 12 of the Matrimonial Causes Act 1973 provides that a marriage may be voidable if one party petitions that the marriage has not been consummated,Footnote 64 there is no equivalent provision to that in the Civil Partnership Act 2004.Footnote 65 These differences would seem to suggest that sexual intimacy is not a definitive element of a civil partnership.Footnote 66 As Cretney has observed, whilst the Act makes it clear that ‘a civil partnership is a “relationship” between two people of the same sex, … Parliament has not been prepared to ordain that it should necessarily be a sexual relationship’.Footnote 67
Much has been made of this distinction by some religious groups; most notably by the House of Bishops of the Church of England who noted that clergy were free to enter a civil partnership since that act of registration does not of itself constitute a declaration of homosexual practice.Footnote 68 However, such neat distinctions are not to be found in the Act itself. As Cretney notes, the Civil Partnership Act does not answer the question of what a civil partnership is about.Footnote 69 The rules as to formation and termination tell the parties nothing about ‘what is involved in the relationship which they have created’.Footnote 70 This is the same as the legislation applicable to marriage and divorce. However, whilst social, moral and religious ideas about the nature of marriage have developed and evolved over the centuries, little thought has been given to determining the essence of a civil partnership.Footnote 71 It is therefore somewhat inevitable that marriage has been used as the frame of reference against which civil partnerships are compared and contrasted with. The facilitative but vague nature of the Civil Partnership Act renders it difficult to extrapolate the differences between marriages and civil partnerships.Footnote 72 This conceptual uncertainty poses problems in terms of promoting equality on grounds of both sexual orientation and religion.
‘Religious’ civil partnerships?
One significant and ‘real’ difference which is found in the Act is that same-sex couples cannot choose to have a religious civil partnership.Footnote 73 In the same way as a religious service cannot be used during a civil marriage ceremony,Footnote 74 a religious service cannot be used ‘while the civil partnership registrar is officiating at the signing’Footnote 75 and the place at which two people may register as civil partners must not be in ‘religious premises’.Footnote 76 It is possible to see both pragmatic and principled reasons for this. Pragmatically, this neatly defused opposition from some traditional Christian churches.Footnote 77 On a more principled level, this is in line with the Labour Government's intention to use ‘civil marriage as a template’ for civil partnerships.Footnote 78 However, objections to this ban were raised. It was considered to be discrimination that whilst a couple contemplating marriage has a religious choice in addition to the non-religious civil marriage:Footnote 79 same-sex couples, by contrast, could only have a civil ceremony.Footnote 80 A religious ceremony (a ‘blessing’) could follow, but without any legal effect and on different premises.Footnote 81
The desire of some religious groups to conduct and register civil partnerships eventually led to amendments being tabled to what was to become section 202 of the Equality Act 2010.Footnote 82 During the committee stage in the House of Lords, a ‘permissive’ amendment was tabled which would have allowed civil partnerships to take place on religious premises.Footnote 83 Although several of their Lordships spoke in favour of the amendment (with Baroness Campbell, for example conceiving ‘the issue as a matter of religious freedom’)Footnote 84 a number of objections were raised, most notably that changes to ‘civil’ partnerships would affect ‘civil’ weddings and would therefore ‘blur the distinctions between civil and religious marriage as two paths to effect what is in law the same relationship’.Footnote 85 This resulted in the amendment being withdrawn in light of the Minister's commitment to look at the issue further.Footnote 86 Following a vote in favour of removing the bar at report stage, the Government brought forward its own amendment at third reading. This sought to amend the Civil Partnership Act 2004 to remove the ban on civil partnerships taking place on religious premises,Footnote 87 to add a power to create Regulations to approve premises that may include ‘religious premises’,Footnote 88 and to insert a new section into the Civil Partnership Act 2004 stating that, ‘For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to’.Footnote 89 This amendment, now section 202 of the Equality Act 2010, is not yet in force. At the time of the third reading, it was promised that ‘there would be extensive consultation before these powers are used’.Footnote 90 However, since then there has been a change of Government and to date the new Coalition Government have simply said that they are consulting whether to bring the power into force.Footnote 91
If section 202 is brought into force, one of the few clear defining attributes of civil partnerships will be lost and the relationship between civil partnerships and marriage will be clouded in yet more uncertainty. It will no longer be the case that civil partnerships are analogous to civil weddings: civil partnerships will not be ‘civil’; they will no longer share one of the, if not the, key definitional attributes of civil weddings.Footnote 92 This lack of clarity will be in keeping with much of the character of the Civil Partnership Act itself. The Act extends the rights afforded to same-sex couples but does so in a haphazard way characterised by an ‘ambiguity (or perhaps squeamishness) about the essential attributes of the relationship’.Footnote 93 This poses problems not only in relation to discrimination on grounds of sexual orientation but also in relation to religious freedom.Footnote 94 The original tactic of avoiding the issue by means of blanket exclusion has simply not worked. Reform, dialogue and compromises are fraught with difficulty due to the vagueness of the legislation. The law is currently uncertain and this is unsatisfactory in terms of promoting equality on grounds of both sexual orientation and religion or belief.
STIRRING UP HATRED
While civil partnerships provide an example of legislation enhancing the rights of same-sex couples which have been modified to enhance the rights of religious believers,Footnote 95 provisions in the criminal law provides evidence of the reverse trend: the modification of legislation that was enacted to protect religion in order to protect homosexual rights. As is well known, the Racial and Religious Hatred Act 2006Footnote 96 controversially amended the Public Order Act 1986 to create ‘offences involving stirring up hatred against persons on religious grounds’.Footnote 97 It created numerous criminal offences protecting groups of believers from being threatened in a way that is defined by reference to religious belief or lack of religious belief. It is less well known, however, that section 74 of the Criminal Justice and Immigration Act 2008 amended Part 3A of the Public Order Act 1986 to also cover hatred ‘on grounds of sexual orientation’.Footnote 98 The amendments made by the 2008 Act largely serve to add the words ‘or hatred on grounds of sexual orientation’ to the various offences created by the Racial and Religious Hatred Act 2006.Footnote 99
This was particularly surprising since the provisions found in the Racial and Religious Hatred Act 2006 differed from what the then Government had intended. Due to defeats during the Parliamentary passage of the Bill, the Act not only provided that a prosecution could only be brought if the defendant intended to stir up religious hatredFootnote 100 but also inserted a freedom of speech clause into the final Act.Footnote 101 These decreased the likelihood of a successful prosecution under the Act. These same restrictions apply in the new criminal offences of stirring up hatred on grounds of sexual orientation. As with the law on religious hatred, the act of the defendant must be threatening and there must be an intention to stir up hatred.Footnote 102 Moreover, a section protecting freedom of expression, similar but not identical to, that which exists in relation to religious hatred has been included.Footnote 103
There are now two offences of stirring up hatred on the statute books which are both narrower than the Labour Government had intended. Questions expressed about the likelihood of a successful prosecution for religious hatred equally apply in relation to hatred on grounds of sexual orientation. Whilst unsurprisingly there has been a lack of reported court decisions on these criminal offences, their importance to the new law on religion and the new law on sexual orientation ought not to be overlooked for two reasons. First, it is noteworthy that in both cases exceptions were provided but that these were on grounds of free speech not religious freedom. Second, the criminal law approach of dealing sexual orientation and religion in the same way is significant since the same approach has been followed in discrimination law: in the Equality Act 2010 ‘religion and belief’ sits alongside seven other ‘protected characteristics’, including sexual orientation. This is noteworthy because there are concerns that religion or belief is different from the other ‘protected characteristics’ and ought to be protected differently.Footnote 104
DISCRIMINATION ON GROUNDS OF RELIGION AND SEXUAL ORIENTATION
Developments in discrimination law represent perhaps the most important part of the new law. In compliance with EU law,Footnote 105 discrimination on grounds of sexual orientation and religion or belief was prohibited at first in relation to employmentFootnote 106 and then in relation to goods and services.Footnote 107 This law, which is now to be found in the Equality Act 2010, has led to two significant areas of concern where there has been a clash between these two equality streams. First, a series of high-profile cases has been brought by religious individuals (typically employees) who are obligated to act in certain ways by the new laws protecting sexual orientation which they feel clash with their religious convictions. Second, the existence and scope of exceptions allowing religious groups and employers to discriminate on grounds of sexual orientation has led to numerous heated debates both inside and outside Parliament. The following examines these two controversies in turn, paying most attention to the second issue.Footnote 108
Litigation brought by employees
A number of claims have been brought by employees who have been forced to carry out obligations arising from new laws protecting sexual orientation. All of these cases asserting that their employer's insistence that they carry out these obligations constitutes religious discrimination have failed.Footnote 109 The two leading cases are the Court of Appeal decisions in Ladele v London Borough of Islington Footnote 110 concerning a registrar threatened with dismissal because she refused on grounds of conscience to perform civil partnership ceremonies and McFarlane v Relate Avon Ltd Footnote 111 concerning a Christian counsellor who was dismissed because he refused to counsel same-sex couples on sexual matters. In both cases, the Court of Appeal held that claims of direct discrimination on grounds of religion failed because the employer did not treat the employee unfavourably on grounds of religion. Although Ladele and McFarlane's actions were on grounds of religion, their employer's actions were not. Claims of indirect discrimination were also dismissed on the basis that any disadvantage was justified. In both cases, the Court of Appeal held that the employer's policy of promoting equality on grounds of sexual orientation constituted a legitimate aim. As the Court of Appeal put it in Ladele, the Council's policy was ‘of general, indeed overarching, policy significance to Islington, and it also had fundamental human rights, equality and diversity implications, whereas the effect on Ms Ladele of implementing the policy did not impinge on her religious beliefs: she remained free to hold those beliefs, and free to worship as she wished’.Footnote 112 In short, the obligations on the employer not to discriminate on grounds of sexual orientation trumped the rights of the employee not to be discriminated against on grounds of religion or belief. There seems to be no recognition that equality policy protects discrimination on grounds of religion as well as on grounds of sexual orientation.
These cases can be contrasted with a recent case brought under the law prohibiting discrimination on grounds of sexual orientation. Hall and Preddy v Bull and Bull Footnote 113 concerned a private hotel which had a policy that ‘out of a deep regard for marriage’ they ‘preferred to let double accommodation to heterosexual married couples only’. When the claimants, two men who had entered a civil partnership, were refused the double room, they contended that this constituted direct or indirect discrimination on grounds of sexual orientation. The judgment of the County Court was that there had been both direct and indirect discrimination. In terms of direct discrimination, the County Court did not accept the defendant's argument that their actions were because of their views on sex outside marriage and not their views on homosexuality.Footnote 114 This seems at odds with Ladele and McFarlane, where a great emphasis was given to the respondent's motive. In terms of indirect discrimination, the County Court held that the discrimination had not been justified. Interestingly the judgment of the court does not mention the grounds upon which the discrimination could be justified and suggests that it would be difficult to identify such grounds, noting that, in contrast, it would be ‘easy to imagine examples of such cases’ in the sphere of religious discrimination.Footnote 115 The judgment suggests that it is more difficult to justify indirect discrimination on grounds of sexual orientation than it is to justify such discrimination on grounds of religion.Footnote 116
Although at time of writing this case has only been heard at the County Court,Footnote 117 there seems to be a staggeringly different approach at play here to that which was employed in Ladele and McFarlane. In those cases, the employer's concerns about sexual orientation equality trumped the employee's right not to be discriminated on grounds of religion or belief. In contrast, in Hall and Preddy v Bull and Bull when the service provider's concerns about religious freedom clashed with the customer's right not to be discriminated against on grounds of sexual orientation, the customer won. Ladele and McFarlane illustrate how difficult it is for religious individuals to exempt themselves from the obligations placed on employees by the new law on sexual orientation. It is clear that the way in which they are treated by the law differs greatly from religious groups. The law offers very little, if any, accommodation of their views. Despite being in the job far before the advent of the new law on sexual orientation discrimination, the only option for employees is the right to resign. In contrast, religious groups and employers enjoy a greater level of protection. Laws prohibiting discrimination on grounds of sexual orientation make some concession to religious groups and religious employers whose religious beliefs clash with obligations placed on them by providing statutory exceptions.
Exceptions afforded to religious groups and employers
The Equality Act 2010 provides a number of exceptions for religious groups.Footnote 118 These include separate religious exceptions from the law prohibiting sexual orientation discrimination allowing religious groups to discriminate in relation to employmentFootnote 119 and the provision of goods and services.Footnote 120 The wording of these exceptions closely follows those found in the previous lawFootnote 121 since attempts to modify the terms of these exceptions were defeated as part of the Parliamentary passage of the Bill.Footnote 122 The Labour Government had wanted to amend the terms of these exceptions, claiming that these amendments simply sought ‘to clarify, not to change’ the law.Footnote 123 However, opponents saw these amendments as narrowing the terms of the exceptions and successfully sought to remove them, claiming that they were seeking to retain the status quo.Footnote 124
This was simply the latest in a long line of controversies surrounding these exceptions. They have been the subject of numerous Parliamentary debates, reported clashes within both the Blair and Brown cabinets, and important litigation. Indeed, the hullabaloo concerning the existence and scope of these exceptions may not be over. In November 2009 the European Commission sent a reasoned opinion to the UK Government asserting that exceptions for religious employers under UK law were broader than those permitted under the EC Directive. Although the Government responded by saying that it was studying this reasoned opinion,Footnote 125 the defeat of the reconfigured exceptions in the Equality Act 2010 raises the question of whether the exceptions could now be subject to challenge under EU law.Footnote 126
The scope of the employment exception has proved particularly contentious. The exception from the law prohibiting discrimination on grounds of sexual orientation in relation to employment, now found in Schedule 9 to the Equality Act 2010, applies where three criteria are met.Footnote 127 First, the employment must be ‘for the purposes of an organised religion’. The use of the phrase ‘for the purposes of organised religion’ seems intended to limit the ambit of the exception. The Explanatory Notes state that this is ‘intended to cover a very narrow range of employment: ministers of religion and a small number of lay posts, including those that exist to promote and represent religion’.Footnote 128 This is undoubtedly the meaning which would have been given to ‘employment for the purposes of an organised religion’ had the revised exceptions found in earlier drafts of the Equality Bill become law. The revised exception would have provided that it could only apply to someone whose employment ‘wholly or mainly involves leading or assisting in the observation of liturgical or ritualistic practices of the religion, or promoting or expanding the doctrine of the religion’. This would have questioned the finding in Reaney v Hereford Diocesan Board of Finance Footnote 129 that employment as a Diocesan Youth Officer was for the purposes of an organised religion.Footnote 130 The defeat of the Government's amendment seems to suggest that the phrase ‘for the purposes of organised religion’ is not just limited to ministers of religion and lay employees who promote and represent religion. However, Government Ministers argued that this was still the case despite the rejection of the amendment. Harriet Harman argued that the revised exception simply sought to ‘make the distinction between religious and non-religious jobs clearer’ but since the Lords did not regard the amendment as helpful the law remained as it was: ‘in anti-discrimination law there is an exemption for religious jobs but not for non-religious jobs’.Footnote 131
These ministerial comments are questionable.Footnote 132 Since no further definition of ‘for the purposes of an organised religion’ are now to be found in Schedule 9 to the Equality Act 2010, the previous case law on the topic remains good law. This includes statements in R (Amicus MSF Section) v Secretary of State for Trade and Industry Footnote 133 that the term ‘organised religion’ is narrower than ‘religious organisation’Footnote 134 but it also includes the finding in Reaney that employment as a Diocesan Youth Officer is within the definition. Whilst it is clear that the requirement that discrimination can only occur for the ‘purposes of an organised religion’ definitely narrows the scope of the exception, the scope of the exception is unclear.Footnote 135
The second requirement is that the ‘compliance’ or ‘non-conflict’ principles must be engaged. Although these terms are new to the Equality Act, they are simply shorthand expressions to cover the reasons why the organised religion may discriminate (which remain largely unchanged). The compliance principle is engaged where the discrimination takes place ‘so as to comply with the doctrines of the religion’.Footnote 136 The non-conflict principle is engaged where the discrimination takes place ‘so as to avoid conflicting with the strongly held convictions of a significant number of the religion's followers’.Footnote 137 The exception found in earlier versions of the Equality Bill would have added a proportionality test. Although this test is not found in the text of the Act,Footnote 138 the Explanatory Notes give the impression that it is: stating that the discrimination ‘must be a proportionate way of meeting the criteria’.Footnote 139 This ambiguity is reflected in the Parliamentary debates. While opponents argued that the introduction of proportionality sought to narrow the scope of the exception,Footnote 140 the Government contended that it would not, arguing that the proportionality requirement was already ‘implicit’ within the exception.Footnote 141 This again suggests that there is an unhelpful air of confusion as to the scope of these exceptions.Footnote 142
Even putting to one side the effect of the absence of an explicit reference to proportionality; the scope of the ‘compliance’ or ‘non-conflict’ principles remains unknown. Deciding whether a ‘significant number’ of followers may be offended is by no means a straightforward task.Footnote 143 The only guidance is dicta in Reaney v Hereford Diocesan Board of Finance,Footnote 144 which suggests that the reference should be made to the national rather than local membership of the religion in question.Footnote 145 Moreover, the reference to doctrine is also problematic. The courts are usually reluctant to engage in questions of doctrine. Although exceptionally the courts will need to examine questions of doctrine to resolve disputes about property or money,Footnote 146 it is usually the case that ‘courts will not attempt to rule upon doctrinal issues or intervene in the regulation or governance of religious groups’.Footnote 147
The third requirement is that the employer can only discriminate either where the employee does not meet the requirement imposed or where the employer is not satisfied and it is reasonable for him not to be satisfied that that person meets it. The importance of this reasonableness requirement was stressed in Reaney v Hereford Diocesan Board of Finance Footnote 148 in which Reaney had been denied the job of Diocesan Youth Officer in Hereford after the Bishop refused to accept his assurance that he would remain celibate since he had been in a committed same-sex relationship. The Employment Tribunal found that Reaney did meet the requirement imposed and it was not reasonable for the Bishop to conclude otherwise. This meant that the Bishop could not rely upon the exception. Although Reaney provides an example of when the exception might be applied,Footnote 149 the overall message seems to be that the exceptions are to be interpreted narrowly.Footnote 150 The complexity of the provisions and the ambiguity of the language are likely to increase the likelihood of concern, tension and litigation.
The same is true of the exception allowing discrimination on grounds of sexual orientation in relation to goods and services, as now found in Schedule 23 to the Equality Act 2010. This is the same in substance as the old law. It applies where two criteria are met. First, the discrimination must be by ‘an organisation relating to religion or belief’.Footnote 151 This does not apply to an organisation ‘whose sole or main purpose is commercial’Footnote 152 or to anything done ‘on behalf of a public authority’ and ‘under the terms of a contract between the organisation and a public authority’.Footnote 153 This explains why the exception cannot be enjoyed by Catholic adoption agencies. Although Catholic adoption agencies are entitled to the exception in that they are ‘organisations relating to religion or belief’, they lose that exception when they contract with the State to provide their service. This proved controversial prior to the enactment of the Employment Equality (Sexual Orientation) Regulations 2007,Footnote 154 leading to a compromise whereby faith-based adoption and fostering agencies were given a specified time to adapt to the new regime.Footnote 155 Following the end of this period of time, the matter has been subject to long-running litigation brought by Catholic Care which is still ongoing at time of writing.Footnote 156 However, it would seem that there is little prospect of any change in the law on this matter.Footnote 157
Second, an organisation can only discriminate on grounds of sexual orientation ‘because it is necessary to comply with the doctrine of the organisation’ or ‘to avoid conflict with the strongly held convictions’ of a ‘significant number of the religion's [or belief's] followers’.Footnote 158 This mirrors the exception previously found in Regulation 14 of the Employment Equality (Sexual Orientation) Regulations 2007. Interestingly, although the grounds mirror those for employment in relation to sexual orientation, the ‘compliance’ or ‘non-conflict’ labels are not used in this context. This provides further evidence that the Equality Act 2010 has not fulfilled its purpose of consolidating the law making it easier to understand. The likelihood of further litigation and rebukes from the European Commission means that the current text of the Equality Act 2010 is unlikely to be the last word on the matter. And if current trends are to continue, it is likely that the narrowness of the exceptions will be continued to be stressed until the exceptions narrow to the extent that they cease to exist. Although the law on sexual orientation discrimination provides some recognition of the need to balance that right against religious freedom,Footnote 159 cases on the scope of the exception are likely to follow Ladele v London Borough of Islington Footnote 160 and McFarlane v Relate Avon Ltd Footnote 161: the laudable need to eliminate discrimination on grounds of sexual orientation is likely to trump the equally laudable need to prevent discrimination on grounds of religion or belief.
CONCLUSIONS
The Coalition Government's new Equality Strategy, published in December 2010, makes little reference to issues concerning sexual orientation or religion. Indeed, it talks of ‘the Government's new approach to tackling inequality: one that moves away from treating people as groups or “equality strands” and instead recognises that we are a nation of 62 million individuals’ and pointedly remarks ‘new legislation and increased regulation has produced diminishing returns’.Footnote 162 Further major legislative activity therefore looks unlikely in the short term. This may not be a bad thing. The legal changes examined in this article need time to bed in. However, the case law to date in a range of different areas does point to a growing concern. Whilst the much-heralded laws on sexual orientation seem to have made significant and welcome improvements, the same cannot be said in relation to religious freedom. Laws protecting religious freedom have had little effect,Footnote 163 while laws protecting sexual orientation seem to have constrained religious freedom.
The opening decade of the 21st century has seen a substantial shift in the way in which the law protects religion and sexual orientation. A passive stance of toleration has been superseded by the active promotion of religious freedom and equality on grounds of sexual orientation as positive basic rights. Although there were important precursors to the four legal developments discussed, the four collectively may be said to mark a step change.
Even before the Human Rights Act 1998, but especially so after it, the rights expressed in the ECHR have provided a basic standard for the law in the terms of individual rights that need to be balanced. The Human Rights Act 1998 may be seen as the base of the new law on sexual orientation and, to a lesser extent, the law on religion: many of the steps taken in the last decade would not have been taken were it not for the Convention in general and the Human Rights Act 1998 in particular. The Civil Partnership Act 2004 built upon this, representing a bold step forward in the recognition of same-sex couples. But the lack of conceptual clarity at the heart of the Act has proved problematic and this would become even more problematic if the template of civil marriage is jettisoned.
The new offences of stirring up hatred on grounds of religion and sexual orientation are not only based upon the assumption that the law can deal with these forms of identity in the same way but are also based on the assumption that toothless, ambiguous and largely symbolic criminal offences are helpful. The laws prohibiting discrimination on grounds of religion and sexual orientation have led to an abundance of claims and have brought forward cases where the two equality streams clash. The early skirmishes suggest that employers' concerns about promoting equality on grounds of sexual orientation will trump employees' concerns about their right not to be discriminated on grounds of religion or belief. A similar picture can be seen in the long-running debates about religious exceptions which allow discrimination on grounds of sexual orientation. One of the few things that is clear about the religious exceptions, now found in the Equality Act 2010, is that they are intended to be narrow, but probably not as narrow as the proposed (and rejected) changes in earlier versions of the Bill would have made them.
In sum, during the last decade passive accommodation has been replaced by prescriptive regulation. In some respects, this is clearly a very good thing. It would be difficult to disagree with the assessment found in the Coalition Government's new Equality Strategy that Britain has ‘come a long way’ and is now ‘a more diverse and tolerant country’.Footnote 164 However, at the very least, the pace of change and the complicated overregulation presents a multifaceted picture. In particular, it is noticeable that the growth of the law on sexual orientation is somewhat faster than the growth of the law protecting religion. The right for religious groups and individuals to discriminate on grounds of sexual orientation is narrow and is increasingly reducing. Thus the precise delineation of its reach is of importance not merely to academics and jurists, but to the population at large.
