US Supreme Court - Same Sex Marriage and Religious Freedom

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 Continuing my analysis of the US Supreme Court decision in Obergefell v. Hodges I am going to look at how the decison and the dissenting judgments deal with the implications of the judgment so far as Religious Freedom is concerned

Under the 1st Amendment to the US Constitution the "free exercise" of religion is explicitly protected
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

The question of a possible conflict between Religious Rights and the newly discovered (invented !) "right" to same-sex marriage was touched on in the majority judgment at P27
"Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. "

This reassurance is however given short shrift in the dissenting judgments

Roberts P27 
"Today’s decision,for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses. Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today"

Thomas P14 
"Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.....In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples. The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid.
Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice. Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution
requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty"

Alito P7 
"Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas"

So what are the consequences of the decision for Religous Freedom in the US since, as the dissenters have pointed out, the consequences are far greater than they would be if Same-Sex Marriage had become law through legislative chage rather than by becoming a, hitherto unseen, Constitutional "right".  Legislation can be fine tuned and amended in a way that an unwritten "right" cannot be.  The judgment creating the "right" to same-sex marriage sets up a conflict of "rights" namely the explicit protection of religious rights set out in the 1st Amendment as against the, fairly unspecified, "right" to same-sex marriage which was "discovered" by the 5 Judges who gave the Obergefell decision.  A conflict of rights is a recipe for years of expensive and acrimonious litigation because how can the Courts or legislatures protect the Constitutional rights of a Religious Organisation that actively disagrees with another Constitutional Right?

In Bob Jones University v. United States case 461 U.S. 574 (1983) the US Supreme Court decided that the Ist Amendment did not prevent the US Government removing the religious tax exemptions given to the religious Bob Jones University because the University prohibited Inter-racial dating.  It would be therefore be a relatively easy and lawful step for tax exemptions to be similarly removed from religions that did not endorse same-sex relationships; as Chief Justice Roberts in P27 of his dissent pointed out that this possibility has already been considered and accepted by the US Government.

A more sinister, but equally possible, secenario would be the passing of legislation seizing the property of Religious Organisations which disagree with same-sex marriage.  This could be legally justified on the basis that the teachings and practices of such religions opposed a "right" enshrined within the US Constitution.  

In the 19th Century when the Mormon Church practiced Polygamy the US Congress passed a series of increasingly draconian anti Mormon acts culminating in the 1887 Edmunds-Tucker Act which dissolved the MormonChurch and directed the confiscation by the federal government of all church properties. The legality and constitutionality of this act was endorsed by the US Supreme Court in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States 136 U.S. 1 (1890). on the basis that the beliefs and practices of the Mormon Church were incompatible with US Law

Could the same thing happen to Religious Organisations which disagree with same-sex marriage ?  The legal precedents are there and certainly on the part of same-sex marriage advocates the will is there to attack and if possible destroy religion, in particular Christianity. Religions in the US are therefore facing a dangerous future where their freedom is far from guaranteed. 

US Supreme Court - Same Sex Marriage Judgment

In the case of Obergefell v. Hodges the US Supreme Court has decided that the 14th Amendment to the US Constitution obliges all 50 States to recognise and licence Same-Sex Marriages.  

The decision was by a majority of 5 - 4 so a very close split for such a fundamental decision with implications that go far beyond the issue of Same-Sex marriage itself.  The majority decision was given by Justice Kennedy, supported by Ginsberg J, Breyer J, Sotomayor J, and Kagan J.  There was a dissenting Judgment given by Chief Justice Roberts, supported by Scalia J and Thomas J,  a dissent by Justice Scalia J supported by Thomas J, another by Thomas J supported by Scalia J and last, but very definately not least a dissent by Alito J supported by Scalia J and Thomas J.

There are specific references in all these judgments regarding its implications for Religious Freedom which I will deal with in a separate Blog but from my point of view the dissenting judgments are more intellectually and legally coherent than the warm words, feel good, fatuousness of the majority Judgment so I will concentrate on them.  

The dissenting judgment by Thomas J is particularly interesting in that he attacks what is in effect the new notion of "rights" within western society namely a demand that the Government and State "do something" rather than the historical view that "liberty" involves freedom "from" the state "doing something" and he points out that the decision of the Court is actually subversive and undermining of "Liberty" and "freedom" which are (or should be) the cornerstones of the US Constitution. 

P7: "In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. .....P8 “[T]he common idea of liberty is merely negative, and is only the absence of restraint.” ....... "Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace" ........P10 "Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers [of the US Constitution] would have recognized."

The Dissent by Scalia J is astonishing in the vehemence of his language excoriating 5 of his colleagues.  Like all of the dissenters he makes it clear that his objection is not to Same-Sex Marriage per se, his objection is to Same-Sex marriage being imposed on the entire United States by means of Judicial Decree

P1"The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court"....... 

He contrasts the difference between a new idea, such as same-sex marriage coming into force as a result of legislative debate rather than through Judicial diktat P2" Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work." .....P4"But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect".........P6"The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since."

Alito J makes a similar point regarding the fact that the Court is imposing on America a judgment which in a Democracy should be made by the elected representatives of the people.  
P6" The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.”

And he points out the long term implications of the way inwhich this decision has been arrived at and the future role of the Supreme Court P7"Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims."

The Dissent by Chief Justice Roberts, is more restrained, as one might expect but for that reason is even more damning

P2 "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be"....."Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. The majority’s decision is an act of will, not legal judgment." ......

P3 "Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law." 

Interestingly Chief Justice Roberts goes on to compare this decision by the Supreme Court to the infamous "Dred Scott" case where the decision of the then, pro-slavery, Supreme Court to extend the rights of slave owners throughout the entire United States including the Free States was a major factor leading to the subsequent American Civil War.

P11 "The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. ....... Dred Scott’s holding was overruled on the battlefields of
the Civil War and by constitutional amendment after Appomattox,"

The Chief Justice also dealt with the probability that the logic of the decision by the Supreme Court would lead to legal cases demanding Polygamy, Polyandry and Plural Marriage In terms of American legal history this was not a merely theoretical suggestion.  The legal definition of Marriage as being between 2 persons was laid down in the United States by the 1878 case of Reynolds v USA 98 U.S. 145 wchich involved the legality of Mormon Polygamy.  (See my Blog for 1 August 2013 on Mormon Polygamy and the Law)

P20 "One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one."

 And he, like the other dissenters gives a warning regarding the long term implications of the Courts decision

"P22 "The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now"

Or as Scalia puts it more pointedly
P5"A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."  
to which I, as a British rather than an American citizen, can only say "hear hear"

Allah for Muslims Only ? - 3

Following my two earlier Blogs of 24 January 2015 and 23 June 2014 there has been a further case in Malaysia involving the question of whether Christians, and other non Muslims, are entitled to use the word "Allah" as the word signifying "God"

The Malaysian Court of Appeal has issued a judgment in an ongoing case involving CD's seized by Malaysian Customs Officers from the luggage of a Malaysian Christian, Ms Jill Ireland Lawrence Bill.  The CD's included ‘Cara Hidup Dalam Kerajaan Allah’ (How to live in God’s Kingdom), ‘Hidup Benar Dalam Kerajaan Allah’ (Right living in God’s Kingdom) and ‘Ibadah Yang Benar Dalam Kerajaan Allah’ (True faith in God’s Kingdom) and therefore all used the word "Allah" to refer to "God" hence their seizure. 

The Court of Appeal itself is based on a fairly arcane point of law namely that the Customs Officer involved did not have the necessary legal authority to seize and keep these CD's which were seized in 2008. The decision therefore does seem to keep open the possibility that Government Officials in Malaysia, with the appropriate authority can still seize Christian CD's, Magazines, Bibles etc which refer to "God" as "Allah"   

The Malaysian Courts system has therefore not been in any hurry to decide the issues in this case indeed the fundamantal issue of principle is still not decided if indeed it ever will be. The earlier decision in the "Catholic Herald" case does show that the Malaysian Courts accept that the Government of Malaysia can restrict the use of the word "Allah" and that decision is likely to be used against Ms Ireland if she continues with her claim

So far I have not been able to find a transcript of the Judgment so this Blog is based on reports of the case at Lapido Media (an invaluable source of worldwide religious news), Malaysia University Legal News, and The Malaysia Star

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.  

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

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 ?   

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.   

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

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

Call The Midwife I want an Abortion ! - 4

In an attempt to try to derive some good from the Supreme Court decision in  Greater Glasgow Health Board v Doogan [2014] UKSC 68  the comments of Lady Hale in paras 23 and 24 are worth noting 

23: There was some discussion, at an earlier stage in these proceedings, of the relevance of the petitioners' rights under article 9 of the European Convention on Human Rights. This protects the "right to freedom of thought, conscience and religion," including the freedom "to manifest his religion or belief, in worship, teaching, practice and observance". It is our duty, under section 3(1) of the Human Rights Act 1998, to read and give effect to legislation, whenever it was passed, in a way which is compatible with the Convention rights, so far as it is possible to do so. However, the article 9 right is a qualified right, which may be subject to "such limitations as are prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others". Refusing for religious reasons to perform some of the duties of a job is likely (following the decision of the European Court of Human Rights in Eweida v United Kingdom ((2013) 57 EHRR 8) to be held to be a manifestation of a religious belief. There would remain difficult questions of whether the restrictions placed by the employers upon the exercise of that right were a proportionate means of pursuing a legitimate aim. The answers would be context specific and would not necessarily point to either a wide or a narrow reading of section 4 of the 1967 Act.


24: The better course, therefore, is for this court to decide what that section means according to the ordinary principles of statutory construction. That will then set a limit to what an employer may lawfully require of his employees. But a state employer has also to respect his employees' Convention rights. And the Equality Act 2010 requires that any employer refrain from direct or unjustified indirect discrimination against his employees on the ground of their religion or belief. So, even if not protected by the conscience clause in section 4, the petitioners may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs. This will, to some extent at least, depend upon issues of practicability which are much better suited to resolution in the employment tribunal proceedings (currently sisted pending the resolution of this case) than in judicial review proceedings such as these.

This does give Supreme Court approval to an argument that I have successfully used to defend pro-life medics being pressurised to assist with Abortion services even if they do not "participate" in the narrow sense in which that word has been interpreted by the Supreme Court.  In a Blog on 12 August 2011 "Abortion and the Equality Act" I discussed my use of the Equality Act with the pro-life position being put forward either as a religious or a philosophical belief ( as I have frequently mentioned in the past pro-life views are not restricted to religious believers, it is quite possible to be an Atheist and pro-life )

In an ET1 (Employment Tribunal Claim Form) drafted by myself on behalf of a pro-life employee in the NHS I relied on Article 9 and s10 as follows

"The claimant is a member of the Roman Catholic Religion.  She has both a religious and a personal philosophical belief that human life begins at conception and that Abortion is the killing of an innocent human life and is harmful both to the unborn child and to the mother of that unborn child. This is a belief which is compatible with human dignity and worthy of respect in a civilised society and as such it is protected under Article 9 of the European Convention on Human Human Rights and under section 10(1) and 10(2) of the Equality Act 2010."

The cases I have been involved in have however all been resolved without litigation and therefore it is still unclear how far the Equality Act will be effective in protecting pro-life medics and Lady Hales remarks do seem to be an encouragement to litigation which will be expensive and uncertain for all concerned.  

Personally I would have preferred the simpler and more realistic solution of the Supreme Court giving a broad reading  to the Conscientious Objection clause in s4 of the Abortion Act 1967.  However since that has not happened pro-life medics and lawyers such as myself will now have to look increasingly to the Equality Act and the Human Rights Act in order to protect conscience and avoid participation in Abortion

Equality Guidance published by Catholic Bishops

A new guidance document 

Applying Equality Law in Practice: Guidance for Catholics and Catholic Organisations

has been published by the Christian Responsibility and Citizenship Department of the Catholic Bishops’ Conference of England and Wales.

The Bishops Conference says that the new Guidance 

"Will help Catholics gain a deeper understanding of this area of law and remove any misconceptions caused by its perceived complexity. It is important to note that the guide is not intended as a replacement for specialist legal advice.

The guide makes clear that if any issue arises that might lead to liability under equality law, it is strongly recommended that reader consults a solicitor or legal advisor."

About the guide, Archbishop Peter Smith, chairman of the Christian Responsibility and Citizenship Department said

"The aim of this guide is to offer some clear practical guidance on a complex area of law. It is not a substitute for taking professional legal advice but it aims to raise awareness on what the law allows and to enable potential problems to be anticipated and averted.

"There is both scope and sometimes a need for Catholics to make use of the new law’s provisions which can protect religious freedom."

Whilst the Guidance is, of course, primarily aimed at the needs of Catholics and Catholic organisations it should be of interest to any Religious Organisation looking to understand what their legal rights are