Recent religious belief versus discrimination cases show a softening towards the rights of those with strong faith
The interaction between religious belief and discrimination law has, of late, become a hot topic. Until recently, the attitude of the UK courts had been to reject arguments that an individual’s religious belief entitles him to treat another less favourably on grounds of a protected characteristic such as sexual orientation. The law, said the domestic courts, provided no protection to the substance of such beliefs (as opposed to the individual’s right to hold them).
So, for example, the courts have rejected discrimination claims by a Christian registrar disciplined for refusing to officiate at civil partnership ceremonies (Ladele) and by a sex and relationships counsellor dismissed for refusing to provide sex advice to gay couples (McFarlane).
In the Jewish Free School case, a majority of the Supreme Court held that the school’s policy of giving priority to applicants who were Jewish by matrilineal descent (or conversion), albeit motivated by religious belief, was discriminatory on grounds of ethnic origin and could not, therefore, be justified. Also, the Court of Appeal has held that a Christian couple unlawfully discriminated against a gay couple when they refused to let them a double room in their B&B (Bull v Hall).
But is the tide turning? Mr and Mrs Bull have been granted permission to appeal to the Supreme Court. Earlier this month, the Upper Tribunal heard a case (Catholic Care v Charity Commission) concerning a charity’s practice of refusing to offer adoption services to same sex couples. The tribunal rejected the charity’s case (that this practice was justified because if not continued its funding would cease to the detriment of children) on the facts. However, it also rejected the Charity Commission’s submission that the private prejudice of charitable donors could never provide a justification for discrimination, emphasising that the views of donors motivated by “sincerely held religious beliefs in line with a major tradition in European society” had legitimacy. The judgment could open the door for charities that wish to discriminate on the basis of the religious beliefs of their donors.
Meanwhile, the cases of Ladele and McFarlane have been argued in Strasbourg. A key part of Ladele’s argument before the ECHR was that she could have been permitted to limit her services to opposite-sex marriages, leaving other colleagues to officiate at them, without any adverse effect on the services provided by Islington Council. Her beliefs could, and should, therefore have been accommodated. If this is accepted by the court, it would suggest a ‘reasonable adjustments’ or ‘reasonable accommodation’ approach for such issues. In other words, courts would ask whether the religious believer’s desire to act in accordance with beliefs could reasonably be accommodated.
Courts dealing with religious belief cases have emphasised there is no ‘hierarchy’ of rights. In practice, it is difficult to reconcile conflicting rights without creating what, from the outside, looks very much like a hierarchy. From recent developments, it appears the rights of religious believers may be about to take a step up the ladder.