The news that the Catholic Adoption Agencies had lost their their case before the Charity Tribunal is sad but was certainly not unexpected, at least as far as I was concerned.
What the agencies were trying to do was to change their objects so as to add the following
"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church"
They argued that this would enable them to operate because of the exemption for Charities under reg 18 of the Sexual Orientation Regulations 2007
which say
"18.—(1) Nothing in these Regulations shall make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if—
(a) he acts in pursuance of a charitable instrument, and
(b) the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument"
From a legal point of view the Tribunals decision seems to me to be very questionable, the Tribunal said (para 21)
"regulation 18 could not be relied upon by the Appellant to permit activity which was no longer permitted, or which was made unlawful, by another regulation. As the Preliminary Ruling made clear, this was because the Tribunal understood regulation 18 to permit discrimination by charities only when their activities did not stray into the areas covered by the other regulations"
Frankly that is a legally fatuous remark and completely circular reasoning since if reg 18 only applies to activities which are not covered by the SOR's anyway then why would any Charity need to rely on reg 18 at all ? Before the comments section of this Blog gets overload I should add at this point that reg 18 is not some sinister " legal loophole" in the SOR's designed by cunning homophobes, it is the standard type of exemption given to Charities in every other area of Discrimination legislation so as to permit Charities(and we are only talking about Charities) to offer specific services to Women/Specific Races/Specific Nationalities/People with specific disabilities etc. If the Charity Tribunal decision stands unchallenged then every other Charity is now subject to every other type of Anti-Discrimination legislation and, incidentally, the commission decision makes it more difficult for there to be specific Charities providing services for Gay and Lesbian people.
However the irony is that even had the Catholic Charities won their case before the Tribunal it would have been a pyrrhic victory. As the Tribunal pointed out local authorities would refuse to deal with an Adoption Agency which was clearly and directly discriminatory in its objects and the Agency in that situation would have had no way to challenge such a refusal by a local authority.
Leaving aside the fact that the potential views of local authorities should have been irrelevant to the decision the Tribunal was supposed to be making which was whether the proposed change in objects was legal or not; the Tribunal was undoubtedly correct in their analysis. That is why I, as Director of the Thomas More Legal Centre have been advising Adoption Agencies for a year that they should amend their objects to read as follows
"The Charity shall not have power to engage in any activity which it knows, or reasonably believes, is contrary to the teaching of the Catholic Church; the formal opinion of the Bishop of [ ] shall be final in any question as to what is the teaching of the Catholic Church”
Such a provision in the objects of the Charity would, of course, have prevented them choosing either same sex, or unmarried heterosexual couples, as adoptive parents and they would have had to concentrate on married couples who according to the teachings of the Church (and millenia of human experience) are the appropriate unit to raise and nurture children. Had a local authority then refused to deal with one of the Catholic Agencies then the local authority would itself have been acting illegally by engaging in Religious Discrimination. Why none of the Catholic Agencies even tried this route I do not know. It certainly could not have been any more unsuccessful than the route they did choose.
Wednesday, 3 June 2009
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10 comments:
Neil: the difference is that this attempt was not done because the charities specifically wanted to provide services to heterosexuals - but because they did not want to provide them to gays and lesbians. Very different from aiming charitable work positively at one section of the community who are protected under anti-discrimination law!
The sensible Catholic charities simply agreed to comply - and I'd say the social workers within the organisation were happy to do so. Many Catholics involved in the caring professions are far more open on such matters than some may imagine
The right decision has been made.
Once again I suggest there is a contradiction in what you say. Saying you want to provide services specifically for heterosexuals is no different in principle from providing services specifically for homosexuals. If you think that it is acceptable for Charitable work to be aimed "positively at one section of the community" why is it unacceptable to for Charitable work to be aimed "positively" at another section of the community.
Incidentally ALL sections of the community are, or should be, "protected" under anti-discrimination law otherwise the law itself becomes discriminatory.
Finally on the point that many Catholics or Charity workers may have agreed with same sex adoption you may well be right.
The point is that the Charities were organisations, which were founded by the Catholic Church using Catholic money and they should have been free to make their own decisions on same sex adoption rather than being coerced
Does a person have to have the intellect of Albert Einstein to argue these points. Just plain common sense gives the answer - or even a little child can give the answer - a child needs a mother and a father - it's been that way since time immorial. Only a mother and a father can by nature be a mother and a father. It's a tragedy when either one or both are unable to raise their child but you try to make it as "natural" as possible when you place a child in an adoptive situation - ie a mother and a father. - From what I see now it's all about what adults want!! That's so shameful. - Rene
Quite right Mrs O’Riodan
The services of an adoption service are for the benefit of the children, not the potential adopters. That is why the prospective adopters are assessed thoroughly to determine if they are suitable as adoptive parents. The assessment involves police checks, medical examination, references from family, friends and employer and detailed analysis by the social workers. All this to for the benefit of the children with the aim being to ensure that they are placed in a suitable home.
It is not for the benefit of the parents: though having an adopted child can give them great joy.
Of all the actions of the current government this regulation seems the most evil. The aim was to curry favours with the Gay rights lobby at the expense of vulnerable children. Even if one supports the principle of gay adoption (a case might be made that it is better for a child to be with stable and loving gay parents than being passed between temporary foster families) the point is that most agencies were willing to assess such potential adopters so they suffered no more than negligible discrimination. By closing some agencies the losers are the children who really do need help.
Who advised the adoption agencies in this case?
And why did they not follow the advice of the St Thomas More Legal centre?
Hi Neil,
This is a very interesting subject that addresses questions of moral, religious, legal and public policy importance.
I hope you don't mind if I focus on the legal issues only. This is a narrow perspective, but it is the the only one that is relevant to the specific issues in the legal case under discussion. On this subject, I don't agree with your legal analysis.
You are correct in pointing out that all of the anti-discrimination laws have a "charities" provision which permits employment or services to be provided on a discriminatory basis in certain circumstances.
However, the one contained in the Equality Act (Sexual Orientation) Regulations 2007 (i.e. Reg.18) is different to the ones in the other laws. The relevant difference (for the purpose of this discussion) is that the others have no provisions that correspond to Reg. 15 of the SO Regs.
As you know, Reg.15 permitted adoption/fostering agencies linked to religious organisations to continue to discriminate on the grounds of sexual orienation up until 31st Dec 2008, after which time they had to stop doing so. The treatment of such groups compared favourably to the same Regulation's treatment of commercial adoption/fostering agencies which were prohibited from discriminating on grounds of sexual orientation as from 30th April 2007.
It is obvious that Reg.18 must be read in the light of Reg.15 (and its associate provision Reg 14). It would be a nonsense for SO discrimination to be prohibited in the case of commercial adoption/fostering agencies, and later prohibited in the case of religiously-linked adoption/fostering agencies only for it to be still permitted in the case of charitable adoption/fostering agencies (whether religiously-linked or not).
These provisions, when read together, were clearly seeking to regulate the activities of all adoption/fostering agencies.
Clearly, the Government was ultimately prohibiting SO discrimination by all adoption/fostering agencies, no matter whether they were commercial or religious or, otherwise, charitable in nature. It is the only way to make sense of Reg.15.
Btw, I don't believe that your proposal for how Catholic charities might change the wording of their "objects" will succeed in putting public authorities on the defensive in the event that the charities will allege religious discrimination.
My reasoning is that it will be very difficult (if not impossible) for a complainant to show that the "offending" public authority acted on the grounds of "religious belief" for the purpose of establishing a prima facie case under the Equality Act's religious belief provisions. For example, the public authority will easily be able to show that its decision was, ostensibly, based on the ground that the charity is committing, or is likely to commit an act of SO discrimination. The charity's ultimate motivation (probably religious) is irrelevant to the public authority's decision.
Another way of looking at it is to ask how the public authority would treat a charity that is linked to the Protestant or Muslim or Jewish or Hindu faiths, or to any other faiths, or to no religious faiths at all, which also would discriminate against homosexuals. If the public authority can show that it would also refuse to "deal" with that charity, then a Catholic charity would not be able to establish a prima facie case of direct religious discrimination. In such a situation , the Catholic charity might establish a prima facie case of indirect religious discrimination (because the public authority's policy puts religious groups at a substantial disadvantage compared to non-religious (commercial) groups, but a court is likely to find that the policy is justified given that general public (i.e governmental) policy is against this form of discrimination, as are the SO Regs too.
Sorry for going on for so long.
CT
21 June 2009 00:07
I agree with the post. Out of interest, though, what would happen if a Bishop were wrong, or at odds with either canon law, the Holy See, a Church Council, or the law? Could any view be an opinion? Also--I hope you don't mind the questions--what would be a reasonable belief in this context?
I've only just discovered this blog, having been pointed here by Berenike, and have to say I like it very much.
I agree with the statement that regulation 18 could not be relied upon by the Appellant to permit activity which was no longer permitted, or which was made unlawful, by another regulation.
Law writing
I think that it is acceptable for Charitable work to be aimed "positively at one section of the community .thanks a lot for sharing this
http://oopslaw.changjy.com/2009/10/22/a-deep-insight-into-adoption-law/
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