Tuesday, 19 May 2015

Ashers Bakery and the "Gay Cake"


Judgment has been delivered in the Northern Ireland case of  Lee v Ashers Baking Company [2015] NICty 2 (Court summary HERE).  The case considered whether it was illegal for Ashers to refuse to bake a cake which carried a logo saying "support gay marriage" along with a picture of Bert and Ernie from Sesame Street, and the logo of the organisation  'Queerspace'.  More background facts available HERE and a picture below of what Mr Lee wanted putting on the cake

Unlike many similar cases which involved Bakeries refusing to make a cake for a Same-Sex Marriage reception this case involved a Bakery being asked to bake a cake which explicitly endorsed the campaign to legalise Same-Sex Marriage in Northern Ireland.  The Company was run by a family who are devout Christians and who believe that Marriage is between a Man and a Woman

The case revolved around 2 separate legal issues namely whether the refusal to make the cake constituted Discrimination on the grounds of Sexual Orientation contrary to the  Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and whether it constituted unlawful discrimination on the grounds of Political Opinion contrary to the  Fair Employment and Treatment (Northern Ireland) Order 1998.

Northern Ireland is unique in the UK for in making discrimination on the grounds of political opinion explicitly unlawful and this arises from the long history of sectarian division in Northern Ireland where religion, nationality and political opinion were so often synonymous with British/Unionist/Protestant identity facing Irish/Republican/Catholic identity.

Surprisingly in this case the Judge held that the refusal of Ashers to bake the cake constituted direct discrimination on the grounds of sexual orientation simply on the basis that the buyer, a Mr Lee, happened to be Gay even though many supporters of Gay Marriage are heterosexual and similarly many Gay people are opposed to Gay Marriage.  As is usual in these cases the Judge paid lip service to the Ashers rights to Religious Freedom under Article 9 and then stated that the law overode those rights

Somewhat less surprisingly the Judge also decided that the refusal constituted discrimination on the grounds of political opinion.  Damages were assessed as a nominal figure of £500.

The case will undoubtedly be appealed but what does emerge from it is the complete intolerance of the "Equality" industry and the way in which Equality Law is being used to destroy individual freedom including the freedom of a Bakery company to decide what products it wants to make.  

We in Britain have just been celebrating the 70th anniversary of our victory in WW2 but frankly what are we celebrating ?, 'Freedom', but not if you run a Bakery it would seem.  

Tuesday, 28 April 2015

US Supreme Court - Same Sex Marriage arguments

In the case of Obergefell v. Hodges the US Supreme Court has been hearing final arguments regarding whether it should recognise Same-Sex Marriage as a "Right" under the US Constitution

The Court is considering 2 questions
(1)  “Does the 14th amendment require a state to license a marriage between two people of the same sex?”
(2)  “Does the 14th amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

The relevant part of the 14th Amendment says
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In addition to the 14th Amendment implicit in question(2) is Article IV, Section 1: of the US Constitution which says
"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

The US Supreme Court website  provides transcripts of the legal argument and also audio recordings so you can read the legal argument on Question 1 here and Question 2 here:  Or you can listen to an audio recording of the legal argument on Question 1here: and Question 2 here.

The SCOTUSblog provides a link to the (numerous) briefs and Amicus Curiae submissions made in the case HERE: as does the website of the American Bar Association

A fundamental argument frequently made by those who want the US Supreme Court to make Same-Sex marriage a Constitutional Right is the suggestion that banning Same-Sex marriage is similar to the earlier bans on Interacial Marriage which existed in many of the Southern States until these were overturned in the case of Loving v Virginia in 388 U.S. 1 (1967)

Interestingly at the outset of the legal argument between the parties US Chief Justice Roberts put his finger at the difference between this case and the Loving case when he said
"Well, you say join in the institution [ie Marriage].  The argument on the other side is that they're seeking to redefine the institution.  Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife.  Obviously, if you succeed, that core definition will no longer be operable.......... you're not seeking to join the institution, you're seeking to change what the institution is.  The fundamental core of the institution is the opposite­sex relationship and you want to introduce into it a same­sex relationship"

Justice Kennedy similarly pointed the inherent problem of a decision of this significance being imposed on the United States by Judicial Fiat.
"This definition has been with us for millennia.  And it ­­ it's very difficult for the Court to say, oh, well, we ­­ we know better."

What the Supreme Court will decide is difficult to predict but my personal view is that it will answer Question (1): No, and Question (2): Yes, on the basis both of the 14th Amendment and the principle of reciprocity in Article 1V.  This answer will also avoid the danger of the Supreme Court being seen to impose its own subjective views and thereby overuling or sidelining the democratic process.

Wednesday, 1 April 2015

Religious Freedom and Education in Quebec - Loyola High School case

The Supreme Court of Canada has supported the Religious Freedom rights of a Catholic School in the Province of Quebec in a case which revolved around s2 of the Canadian Charter of Rights and Fundamental Freedoms  which is the section that protects Religious Freedom in Canada

The case of  Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII) was the culmination of a 5 year legal battle over the teaching of a compulsory curriculum on Ethics and Religious Culture as opposed to teaching the subject in conformity with the Catholic beliefs which were part of the inherent identity of the School

Since September 2008, as part of the mandatory core curriculum in schools across Quebec, the Minister of Education, Recreation and Sports had required all schools in Quebec to teach a Program on Ethics and Religious Culture (ERC), which teaches about the beliefs and ethics of different world religions from a neutral and objective perspective.

 The stated objectives of the ERC Program are the “recognition of others” and the “pursuit of the common good” seeking to inculcate in students "openness to human rights, diversity and respect for others" (or to put it another way the usual meaningless PC claptrap which has inflitrated speech and political discourse in the English [and French] speaking world).

To fulfil these objectives, the ERC Program has three components: world religions and religious culture, ethics, and dialogue. The three components are intended to support and reinforce one another. The orientation of the Program is strictly secular and cultural and requires teachers to be objective and impartial. Teachers are not to advance the truth of a particular belief system or attempt to influence their students’ beliefs, but to foster awareness of diverse values, beliefs and cultures. 

The course was compulsory in Provincial state schools but under s. 22 of the Regulation  the Minister can grant private independent schools an exemption from the specific requirements of the ERC Program if the School provides an alternative program which is deemed to be “equivalent”. Loyola wrote to the Minister to request an exemption from the Program, proposing an alternative course to be taught from the perspective of Catholic beliefs and ethics. The Minister denied the request based on the fact that Loyola’s whole proposed alternative program was to be taught from a Catholic perspective. It was not, as a result, deemed to be “equivalent” to the ERC Program.

Loyola brought an application for judicial review of the Minister’s decision. Loyola High School c. Courchesne, 2010 QCCS 2631 (CanLII)  where the Superior Court decided that the Minister’s refusal of an exemption infringed Loyola’s right to religious freedom under the Charter, quashed the Minister’s decision, and ordered an exemption. On appeal Québec (Procureur général) c. Loyola High School, 2012 QCCA 2139 (CanLII)  the Quebec Court of Appeal  overuled the Superior Court and concluded that the Minister’s decision was reasonable and did not result in any breach of religious freedom. 

At the Supreme Court hearing Loyola modified its request to teach the whole ERC program from a Catholic perspective, and was prepared to teach about the doctrines and practices of other world religions neutrally but it still wanted to teach about the ethics of other religions from a Catholic perspective. The Minister’s position however remained the same namely that no part of the ERC program could be taught from a Catholic perspective.

The Supreme Court decided that the Minister’s decision requiring that all aspects of Loyola’s proposed program be taught from a neutral perspective, including the teaching of Catholicism, limited freedom of religion more than was necessary and as a result, it did not reflect a proportionate balancing and should be set aside. The appeal was allowed and the matter remitted to the Minister for reconsideration.

The court held para 79 
"it is the Minister’s decision as a whole that must reflect a proportionate and therefore reasonable balancing of the Charter protections and statutory objectives in issue.  It does not, in my respectful view, because it rests on the assumption that a confessional program cannot achieve the objectives of the ERC Program."

A particularly important point of principle relating to the rights of Religious Organisations, including religious schools, was dealt with in paras 90 -91

[90]  The Attorney General of Quebec contends that Loyola enjoys no such constitutional protection because it is not a natural person, but merely a legal person:  religious freedom protects sincerely held beliefs, and a corporation is capable of neither sincerity nor belief.  This raises the question of whether religious organizations are protected by the guarantee of freedom of religion.

[91]  In our view, Loyola may rely on the guarantee of freedom of religion found in s. 2(a) of the Canadian Charter.  The communal character of religion means that protecting the religious freedom of individuals requires protecting the religious freedom of religious organizations, including religious educational bodies such as Loyola.  Canadian and international jurisprudence supports this conclusion.

The Court accepted therefore that Loyola’s teachers were permitted to describe and explain Catholic doctrine and ethical beliefs from the Catholic perspective. They agreed with the principle of the ERC course that Loyola’s teachers must describe and explain the ethical beliefs and doctrines of other religions in an objective and respectful way but accepted that where the context of the classroom discussion requires it, they may identify what Catholic beliefs are, why Catholics follow those beliefs, and the ways in which other ethical or doctrinal propositions do not accord with those beliefs.

An interesting point was raised in para 150 regarding the fact that a completely secular approach was not necessarily a neutral approach
150 By using as her starting point the premise that only a secular approach to teaching the ERC Program can suffice as equivalent, the protection contemplated by the s. 22 exemption provision was rendered illusory.

This mirrored to some extent similar points made by the European ourt of Human Rights in the Lautsi (Italian Crucifix) case in 2011

A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option.

The case may well be too specific to Quebec legislation for it to have a wider influence but since s2 of the Canadian Charter is similar to Article 9 of the European Convention on Human Rights this case could be of value to UK Religious based Schools should they feel that parts of the National Curriculum are contrary to their religious nature and identity.  It may be particularly helpful as providing some guidance and reassurance for religious schools considering the difficult question of how they are to teach about same-sex marriage and same-sex relationships

Tuesday, 17 March 2015

Socialism is a "Belief"

The Employment Appeals Tribunal has made an "interesting" decision in General Municipal and Boilermakers Union v Henderson [2015] UKEAT 0073_14_1303 where it has agreed that a strong commitment to "left-wing democratic socialist beliefs" would constitute a "philosophical belief" for the purpose of s10 Equality Act 2010  which say
(1) Religion means any religion and a reference to religion includes a reference to a lack of religion.

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
The judgement itself is lengthy to the point of tedium and involves a dispute between Mr Henderson and his employer who happened to be the GMB Union.  It seems from the judgement that it was accepted by both sides that Mr Henderson had strongly held “left-wing democratic socialist beliefs” and that it was also accepted that these constituted protected beliefs for the purpose of s10.  The rest of the judgement involves the EAT Judge deciding that Mr Henderson was not actually discriminated against because of those beliefs.

However was the EAT Judge right to agree that left wing Socialism was a protected belief under s10 ? In my view she was emphatically and hopelessly wrong.  I covered the question in Chapter 3 of my book "Religious Discrimination and Hatred Law" where I quoted the Parliamentary debate when the Equality Bill was going through Parliament.  Chapter 3 read as follows

"One thing that was made clear in both the Lords and the Commons was that Parliament did not want to see Political Beliefs or the membership of a political party being treated by the courts as a “belief” for the purposes of section 44. Questions were raised on this point in both houses because the definition of “religion or belief” in s44 differed from the definition that was already in place in s2(1) of the Employment Equality (Religion or Belief) Regulations 2003 namely
"religion or belief" means any religion, religious belief, or similar philosophical belief

Concerns were raised that removing the word "similar" could mean that it would become illegal to discriminate against people because of their political beliefs. Home Office Minister Baroness Scotland said (Hansard 13 July 2005 Col 1109)
"The intention behind the wording in Part 2 is identical to that in the employment regulations. However, in drafting Part 2, it was felt that the word "similar" added nothing and was, therefore, redundant. This is because the term "philosophical belief" will take its meaning from the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief. Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of Part 2 of the Bill, but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not—I hope I do not give any offence to anyone present in the Chamber—would be support of a political party or a belief in the supreme nature of the Jedi Knights."

Whilst Home Office Minister Paul Goggins MP said (Hansard 6 December 2005 Col 146)
"philosophical belief is not limitless; for example, it would not be possible to claim that belief in the supremacy of a certain football team qualified as a religion or philosophical belief. Nor, indeed, could that claim be made about belief in the principles of a political party, the point raised by the hon. Gentleman. We know that because of the case in April this year of Baggs v. Fudge, in which a member of the British National party sought to challenge the refusal of an organisation to interview him for a job under the Employment Equality (Religion or Belief) Regulations 2003, which incorporate wording about “philosophical belief” similar to that in the Bill. That individual’s argument, that his support for the BNP constituted a philosophical belief, was thoroughly rejected by the tribunal, so there is no case to suggest that any such political belief would qualify as a religion or belief under the Bill. We are not making up the provisions on the spur of the moment; as I said, there is a precedent for them in the 2003 regulations.
Mr. Grieve: I can understand the rationale in Baggs v. Fudge, which concerned an adherence to a political party, as I understand it. That seems to me to be capable of being distinguished from an adherence to a particular philosophical belief. There may be no such difference, but the Minister may understand why I remain slightly troubled by this point. It is one thing to say, “We refused to interview him because he was a member of the BNP” and another to say, “We refused to interview him because we knew that he had a belief in white supremacy”. Maybe there is no distinction between those two statements, but I see a capacity for one. I wonder whether we are in danger of opening a door to people to make such arguments.
Paul Goggins: Often those two things, a particular belief and association with an organisation, are inextricably linked. In the end it will always be for the court, the employment tribunal or other judicial setting to determine whether the provisions of a particular employment law are relevant to a particular case. Our job here is to set out in legislation the overall provisions, and that we do, in a way that does not give limitless extent to the concept of philosophical belief, but ensures that it is consistent with the hallmarks of religious belief, such as cogency, which I quoted earlier"

So is a belief in Political Islamism or indeed Fascism, now protected by the Equality Act ?   

Thursday, 12 March 2015

Equality and Human Rights Commission Report

The Equality and Human Rights Commission has issued a Report on Religion or belief in the workplace and service delivery which is an analysis of a consultation regarding the operation of the Equality Act 2010 in relation to protecting (or not protecting) expressions of Religion and Belief especially in the workplace

I was asked to speak on the subject to BBC Radio Merseyside this morning and you can hear my contribution HERE (I am at 01:06:00  the contribution from the EHRC is at 00:06:00 )

My main point which I have made before is that the real problem is the fact that people increasingly look for reasons to be 'offended' rather than adopting a 'live and let live' attitude to others.  

The EHRC consultation elicited responses from 2,500 people with the largest number of responses coming from Christians from a number of denominations. The EHRC website says that

"Positive experiences included respondents describing workplaces with an inclusive environment in which employees and employers were able to discuss openly the impact of religion or belief on employees or customers. Some respondents of different religions also reported they were easily able to take time off to celebrate religious holidays.

Some employees or service users stated that they had experienced no or few negative issues in their workplace or in receiving a service which they attributed to the view of employers or service providers that religion or belief was a private matter and should not be discussed in the workplace or the service.

Some employees and students stated that they had encountered hostile and unwelcoming environments in relation to the holding, or not holding, of a religion or belief. The issues raised concerned the recruitment process, working conditions, including the wearing of religious clothing or symbols, promotion and progression, and time off work for religious holidays and holy days. Some reported that particular beliefs were mocked or dismissed in the workplace or classroom, or criticised unwelcome 'preaching' or proselytising, or the expression of hurtful or derogatory remarks aimed at particular groups.

Employees and employers reported that requests relating to religion or belief issues were not always fairly dealt with in the workplace and some called for better guidance on how to achieve this.

Many participants were concerned about the right balance between the freedom to express religious views and the right of others to be free from discrimination or harassment. Specific issues raised included conscientious objection in relation to marriage of same sex couples and how to protect employees from harassment and discrimination by staff, customers or service users with a religion. There was a marked divergence of opinion about when it was desirable and appropriate to discuss religious beliefs with service users during the delivery of a service.

A group of service providers with a religious ethos expressed concerns about reductions in funding opportunities from the public and private sectors.

Some participants viewed the current equality and human rights legal framework relating to religion or belief favourably, arguing that it provided a single robust framework to deal with discrimination and equality. Others were broadly favourable, but felt a pluralistic approach had not yet gone far enough. A third group viewed the law negatively, with some Christian employers, service users and providers considering that Christianity had lost status as a result of the legal framework. "

My own view is that I do not expect to see anything positive coming from the EHRC which so far as I am concerned is simply a waste of the taxpayers money. It is a paradox of EHRC like so many other organisations in modern Britain that is considers itself a beacon of liberal tolerance but that liberal tolerance is only extended to similarly minded tolerant liberals.   

Saturday, 24 January 2015

Allah for Muslims Only ? - 2

On 23 June last year I blogged about a case in Malaysia where the Government had prevented the Catholic Herald of Malaysia from using the word "Allah" in its Malay publication.  In its Judgment Roman Catholic Archbishop of Kuala Lumpur v Negeri & Ors Civil Application No.: 08-690-11/2013 the Federal Court of Malaysia, which is the highest Court in the Country, noted [para 30]
" the reasons given by the Minister in his Affidavit In Reply, it is clear that he was concerned with national security and public order."

the Federal Court in the same paragraph endorsed the view of the Court of Appeal
"the usage of the word ‘Allah' particularly in the Malay version of the Herald, is without doubt, do have the potential to disrupt the even tempo of the life of the Malaysian community."

In its Judgement the Federal Court basically took a very narrow and technical view of its powers of Judicial Review and regarded the decision as one that fell within the area of Executive discretion.  

The Catholic Church recently applied to the Federal Court to reconsider its Judgment on the basis that it had not properly taken account of the provisions of the Constitution of Malaysia  relating to religious freedom.  Not surprisingly perhaps the Federal Court having looked at its own decision decided it had been right all along and so the possibility of any further review of the Federal Court decision has ended see News Links HERE, HERE, HERE, There appears to be no further legal route for the Catholic Church to appeal this ban on it using the word "Allah" for God in Malay services and publications and there are already attempts to try to stop the Catholic Herald publishing anything in Malay.

As an outsider this decision by the Malaysian Government to try to control the use of the word "Allah" seems bizarre.  Arab Christians use "Allah" and I was recently in Malta, an extremely Catholic country, where in services God is routinely called "Alla".  In a strange way to try to keep Allah as a word only to be used by Muslims actually diminishes "Allah" who ceases to be "the God", the one true creator of the Universe and instead becomes merely the God of Muslims on a par with Zeus or Odin.   

I wonder however whether this idea of restricting the use of the word "Allah" will spread within the Muslim World.  A particular danger may be that the Ahmadiyya Muslims will be targeted and prevented from using the word "Allah" in their services.  They are not regarded as "true" Muslims by most Sunni and Shia groups and are already prevented from describing themselves as Muslims in many countries

Monday, 19 January 2015

Caste Discrimination in the Employment Tribunal

A recent case in the Employment Appeal Tribunal has accepted that Caste Discrimination, may (and I emphasise "may") constitute a subset of Racial Discrimination for the purposes of a Discrimination claim under the Equality Act 2010.

In  Chandhok v Tirkey  [2014] UKEAT 0190_14_1912 a claim was brought by a former domestic worker against her former employers alleging that they had treated her in a demeaning and prejudiced manner.  Both the worker and her employers were of Indian origin though she alleged that the reason for this treatment was her perceived lower caste status.  The defendants applied to strike out that element of the claim since caste is not one of the "protected characteristics" listed in the Equality Act  

The ET and the EAT refused this application in large part because it was possible that, on the facts of the case, the caste of the claimant arose from her descent in which case it could fall under the definition of race.  If caste was for some other reason, ie religious, then it would not constitute race discrimination.  The matter had to be decided on its own facts and therefore the "caste" element of the race discrimination claim could not be dismissed without a hearing where it could be determined whether on the facts it could fall within the protected characteristic of race/ethic origin.

The decision certainly does not throw open the doors to straightforward claims of caste discrimination but it does make such claims easier to bring which is something that caste activists have been seeking for some time.  Whilst caste as a formal concept is inextricably linked to the Indian sub continent it is not unique to Hinduism.  There is a great deal of evidence that both Muslims and Sikhs continue to have a strong conciousness of caste even though the concept is condemned by their own religions.

Interestingly on 31st December 2014 Parliament issued The Equality Act 2010: caste discrimination - Commons Library Standard Note which is a useful source of information on the issue including mention of the Chandhok case.  I can also heartily recommend Caste discrimination: the Government’s progress which is a posting in April 2014 on the invaluable Law and Religion UK Blog