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Courts and Conscience: Where next for Religious Freedom?

15th February 2013

The future of religious freedom in the UK was the subject of the Theos Courts and Conscience event on Wednesday 6th February at Portcullis House, as panellists Professor Roger Trigg (Emeritus Professor of Philosophy at the University of Warwick), Professor Maleiha Malik (Professor in Law at King’s College London), and Michael Rubenstein (General Editor of the Equality Law Reports) engaged in a strong but friendly debate on religion and law.

The event was introduced by host Jim Dobbin MP, who emphasised that in our increasingly diverse society, the questions that would be deliberated upon at the event “would have not been problematic or even considered a generation ago”, stating that we see an increasing “conflict between the demands of public roles and personal convictions”. Urging the panellists to “disagree without being disagreeable”, Dobbin set the tone for the debate, before handing over to chair Nick Spencer, of Theos, who introduced the panellists.

Beginning with the four cases adjudicated by the European Court of Human Rights at the start of 2013 – namely, Nadia Eweida and British Airways, Relate counsellor Gary McFarlane, Devon nurse Shirley Chaplin, and Islington registrar Lillian Ladele – Maleiha Malik began the debate by agreeing with the rulings in all four cases, pointing out that “religious freedom has always been a very complex human right” and stating that she thought the “commercial interests in [the Eweida] case should not outweigh Miss Eweida’s right to be able to wear a cross.”

Malik went on to admit that the Ladele case, in particular, was complex: “Should Islington Borough Council have accommodated Miss Ladele so that we could have had some compromise of her belief as a Christian, her right to work as a marriage registrar, and the rights of gays and lesbians in Islington to be able to get same-sex civil partnership? I think this is a really complex issue; I’ve changed my mind quite a lot as this case has progressed.”

Ultimately, however, Malik concluded that the judgment was right because of “the breach of dignity” that “occurs when Islington Borough Council accommodate views that give out a wider signal, not just to that couple themselves, but a signal that reverberates throughout the community legitimising discrimination against gays and lesbians by permitting an opt out of same-sex civil partnerships”.

Michael Rubenstein agreed and said that it was “a better interpretation of the law” when these cases are judged on whether there has been an interference with an individual’s right to manifest their belief, rather than requiring evidence that a group has been affected. He quoted the judgement in the Eweida case – “where there is no evidence of any real encroachment on the interests of others” – and remarked, “I see that as being the key to the case […] and also the explanation for their decision in the two cases involving the conflict of rights between the right to manifest religion and the right not to be discriminated against on grounds of sexual orientation.”

Elaborating on “the conflict of rights”, Rubenstein explained: “What they’re saying is that where there is no evidence that the rights of others will be infringed by allowing the religious manifestation, then it’s likely to be unjustified not to allow people to manifest their religion. Where, on the other hand, allowing the manifestation would conflict with the rights of others or with health and safety obligations, or indeed in some cases undermine the employer’s business objectives, then it is likely to be justified.”

Roger Trigg quickly disagreed, expressing “a great deal of worry” about the decision in the Ladele case, believing that “when there’s a conflict of rights, religious rights always lose – the freedom of religion always is outweighed by something else”. Referring to the fact that British courts said Eweida did not have a case because her Christian belief does not require her to wear a cross, Trigg argued that it is “very dangerous ground indeed” for “the courts to get involved in theological judgments about what is or is not” a central belief of a Christian.

He proposed that a compromise could have been reached in the Ladele case so that she could have continued in her role: “You don’t solve [a conflict of rights] by finding on one side without any attempt to accommodate the other.” Accepting that Islington Borough Council was right not to accept discrimination on the grounds of sexual orientation, Trigg argued that religious freedom – including “the right to deny religion” – is “a very precious right, at the root of all democracy”, continuing: “If we subtract that and say the State will decide how you are to behave, that’s very dangerous.”

Malik rebutted the argument about religion losing in a hierarchy of rights, saying: “Very many of us would say that the exemptions that have been granted under the Equality Act 2010 in the UK to organised religions generally, including Christians and the Christian church, that allow them to discriminate against gays and lesbians are too wide by European standards. In my view, the British legislation goes quite far to justify organised religion as being a special category.” She added that where there is a conflict between your conscience and the rights of others, as in the Ladele case, Lord Justice Neuberger was right to conclude that in some situations it is not unfair to expect those with strong religious beliefs to “bear the burden of their own conscience”.

Rubenstein added to this that the Ladele case was about the employer deciding to “put a primacy on [the rights of gay people] for their own policy reasons”, and that some rights trumping others is not the issue, but employers having the right to regulate their workplaces is what is at stake.

Responding to this point, Trigg said that European law seemed to him to have reached a place where “the idea is [that] the employer’s interest is paramount and, if you don’t like it, get another job”, so he welcomed the expressed willingness of the European Court in these cases to depart from this trajectory, pointing out again that “it’s very important to see just how basic this is to our democracy. If we’re not free to live by what we think most important – that there is a God or that there isn’t a God – if we have to live at the behest of other people, we aren’t free to contribute our own judgments to the Government of a democratic society about what is good and what is bad. Democracy can’t function if people can’t bring their deepest visions into the public space.”

The debate was then opened to the floor, with questions coming from Congleton MP Fiona Bruce, Keith Porteous Wood of the National Secular Society, and Baroness Berridge, of The Vale of Catmose, among others.

In concluding remarks, Maleiha Malik summed up the feeling of many when she observed, “The law is not a good way of having these conversations. Seminars such as this Theos dialogue are a better way of having a dialogue with the potential of shifting attitudes and transformation on all sides.”