Resolving the Tensions between Sexuality-Based Equalities and Faith-Based Equalities - Essay Example

?“Equality law has failed if it has simply produced a collision between competing equality strands. There must be better ways of resolving conflicts between faith-based and sexuality-based equality rights.” Discuss in the light of recent British case-law and wider international academic debate. Introduction Although international human rights emphasis the significance of gender equality, a number of state violations of sexuality-based equalities are justified on the basis of religious beliefs and practices.1 The fact is, many sexuality-based human rights are typically violated as a result of religious or cultural beliefs, norms and practices.2 Even so, state policy and practices have demonstrated that equality based on sexuality is not compatible with religious freedom.3 British case-law in particular reflects a practice in which sexuality based equality rights will not be forced on religions. This is an approach consistent with the asymmetry thesis. The asymmetry thesis, takes the position that the imposing sex discrimination prohibitions on religions would amount to excessive restraints on freedom of religion.4 International academic debate centres round either defending or attacking the asymmetry thesis.5 This paper argues that the liberalized thinking occupying international debate is more suited to resolving the tensions between sexuality-based equalities and faith-based equalities. Liberalized thinking in today’s egalitarian society argues that neither religious nor “quasi-religious” beliefs have a role to play in defining the parameters of civic duty and democratic participation.6 This paper analyses the tensions implicit in sexuality-based equalities and faith-equalities by reference to both British case law and in the context of international academic debate. British Case Law: Resolving the Tensions between Sexuality-Based Equalities and Faith-Based Equalities When cases involving discrimination on the basis of sexuality/gender and religious freedom arise before the courts, courts are generally responsible for determining which right should prevail where claimants’ rights are in conflict with one another. Nevertheless, equality is a statutorily protected right in the UK under the Equality Act 2010 which consolidates all previous statutes defining and regulating the states obligation to ensure equal treatment and protection of the law for all citizens regardless of race, gender, sexuality, religion, disability, nationality and so on.7 In particular, sexuality, gender and religion are “protected characteristics” within the ambit of the 2010 Act.8 Freedom of religion is likewise statutorily protected in the UK by virtue of the Human Rights Act 1998 which incorporates the European Convention on Human Rights 1953 (Hereinafter ECHR).9 Article 9 of the ECHR provides that all citizens have “the right to freedom of thought, conscience and religion” as well as the right to observe, practice, teach, worship and “manifest his religion or belief”.10 Article 9(2) however goes on to impose conditions to freedom of religion by providing that the freedom of religion is limitations imposed by law: ...And are 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 freedom of others.11 The Court of Appeal explained the importance of Article 9(2) of the ECHR in Ladele v Islington. In this case there was a conflict in competing equality claims: sexuality-based and faith-based equalities. On the facts of the case a registrar who professed to be a Christian declined to register a civil partnership between a same-sex couple on the grounds that same-sex partnerships were against her religious beliefs. The Court of Appeal, in considering Article 9(2) of the ECHR held that the law recognizes that in a modern democratic society it is necessary to prohibit discrimination with respect to the delivery of “goods, facilities and services on the grounds of sexual orientation” with only exceptional limitations.12 It must be noted however, that Article 9(2) of the ECHR only places a duty on the state to safeguard against permitting religious freedoms to conflict with other freedoms such as sexuality-based equalities. Ultimately, all human rights enunciated under the ECHR are only applicable to member states as opposed to individual or private citizens.13 Thus the decision in Ladele must be looked at from this perspective. In other words, government agencies offering services, goods or facilities to the public are bound by Article 9 of ECHR to ensure that religious freedoms do not encroach upon the equal rights of others. In fact, Section 202 (4) of the Equality Act 2010 recognizes that private religious facilities are not bound to respect the sexuality-based equal rights of others. In this regard, Section 202 (4) amends the Civil Partnership Act 2004 by adding that the 2004 Act does not place “an obligation on religious organisations to host civil partnerships if they do not wish to do so”.14 It therefore follows, that the legislative recognizes the right of religious organizations that are not working for the state to discriminate against others on the basis of sexuality pursuant to the right to freedom of religion. Even so the British courts have found that freedom of religion in the private sector cannot be manifested or practiced in such a way as to encroach upon the freedom of others. The relevant case was McFarlane v Relate in which a relationship counsellor refused to counsel a same-sex couple in the grounds that it went against the counsellor’s religious beliefs. The counsellor was terminated and sued the employer on the grounds of religious discrimination. However, the Employment tribunal found that there was no religious discrimination since the employee in question was bound by a professional code of ethics which prohibited discriminatory treatment. Moreover, any individual who voluntarily accepted employment which might involve practices inconsistent with his or her religion was not at liberty to subsequently claim religious discrimination.15 The complainant appealed the matter to the Court of Appeal and the decision of the Employment Tribunal was upheld. Laws LJ went on to state that religious beliefs were entirely subjective and can only bind the person professing a particular religious belief, but would certainly not bind others. Laws LJ specifically stated that: The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other.16 Thus in Laws LJ’s interpretation of religious freedom, the state’s obligation is merely to ensure that religious freedom is protected, but not specific values or content of a particular religion. Moreover, it would be entirely improper for the state to safeguard a specific moral stance or value judgment solely on the grounds of religious freedom. The state is under a duty to accept and acknowledge diverse values and morals in society and to come to its own conclusions relative to how enforcing one set of values or morals would impact the wider democratic society.17 It is important to note however, that the McFarlane case involved a service to which the service provider was bound by a professional code of ethics which prohibited discrimination. It is therefore doubtful whether or not religious discrimination would have been dismissed in any other circumstance in which the discrimination occurred between private individuals with no pre-existing agreement prohibiting religious practices or the manifestation of one’s religious beliefs in circumstances where it would discriminate against another on the grounds of sexuality. As previously noted, the amended Civil Partnership Act 2004 permits religious organizations to refuse civil partnership ceremonies on the basis of religious beliefs. Regardless, the duty serve publically involves a duty to provide indiscriminate services to all members of society regardless of religious beliefs. For example in R (SB) v Governors of Denbigh High School, it was held that once a public official voluntarily accepts a position that conflicts with his or her religious beliefs, that official may not claim religious discrimination once he or she engages in the particular service.18 Similarly, a magistrate who was denied an application to be removed from a case in which a child would be placed in a same-sex situation claimed discrimination based on his religious beliefs as a Christian. However, the claim was dismissed primarily because the magistrate had asked to be removed from the case because he stated that he did not want to participate in a social experiment. Therefore his application to be removed was not based on a religious belief. Moreover, the magistrate had taken an oath to serve and was therefore bound by that oath.19 Ultimately, the courts have clearly taken the position that the government is bound by its duty to serve all citizens to take a neutral position with respect to religious freedom. The government may not via its agents or representatives appear to act in a way that favours one religion over another. It therefore follows that the state, while recognizing the right of individuals to practice their respective religious beliefs and to worship, the government may not act in a way that demonstrates its adoption of a specific religious belief or practice. Simultaneously, the government is required to ensure that its anti-discrimination laws and policies are upheld. Thus should the state allow a public servant to practice his or her religious beliefs in a way that undermines anti-discrimination laws, it is not only subscribing to a specific religious belief, it is breaking its own anti-discrimination laws. Even so, the government only provides limited protection against discrimination on the grounds of sexuality and this raises the question of whether or not equality laws are unable to remove the tensions between sexuality-based and faith-based equalities. As Fredman points out, despite improvements in harassment laws, protection against harassment on the basis of sexuality in education, services and the public sector remains absent. As a result, the goal of making harassment a “specific species of discrimination” has demonstratively failed.20 The British courts however have made significant progress in filling in the gaps left by the legislature with a view to resolving the conflicts between sexuality-based equalities and faith-based equalities. For example the British courts are bound by the decision in P v S in which the European Court of Justice (ECJ) ruled that discrimination discriminatory treatment on the grounds of a transgender was no different from discrimination on the grounds of gender.21 Likewise, British courts are bound by the ECJ’s decision in Goodwin v UK in which it was held that gender is not determined by biology alone.22 The British Courts ruled accordingly in Bellinger v Bellinger.23 It would appear that limitations on the protection of religious freedoms have become increasingly under scrutiny within the ambit of Article 9(2) of ECHR. Increasingly, the British courts are beginning to take the position that religious freedom can be constrained in a limited way, subject to maintaining and promoting a liberal democracy. This means balancing those rights that conflict. Unfortunately, the law has created boundaries and permits private organizations and individuals to discriminate against others on the grounds of sexuality provided they are manifesting a religious belief. It is however, promising that the British courts are prepared to interpret the state’s duty to enforce anti-discriminatory laws broadly enough to ensure that citizens, regardless of sexuality can expect the equal services and treatment from the government and its agents. The International Academic Debate Despite the fact that religious freedom, at least in the private sector is typically accorded greater protection than sexuality-based equalities, some critics have argued that religious freedoms have become eroded by “contemporary society”.24 However, in considering that religion plays a significant role in maintaining and supporting the rule of law in society, Vickers argues that: ...An understanding of the parallel interests of equality needs further recognition if we are to achieve an optimal understanding of the role of organized religion in society.25 In the UK and in other Western democracies, liberal ideology, state neutrality and gender equality often comes into conflict with freedom of religion.26 Religious freedom is facilitated when it is manifested as an individual freedom. The primary value of religion is its ability to contribute to full “integration and tolerance”, the cornerstones of a “safe” and “stable” society.27 Even so, in recognizing and enforcing freedom of religion, there is always the risk of having to significantly dismiss or ignore other freedoms which come into conflict with the integrity of the religion. Obviously, the integrity of another’s conflicting belief or opposition to a religious belief is just as important and requires similar preservation. According to the international academic debate the favouritism accorded religious freedom is since modern society is increasingly moving toward the creation and perpetuation of an egalitarian society. It is time to place far more emphasis on “an egalitarian-based ethic over a faith-based” ethic since more and more public support of faith-based ethics is decreasing.28 Regardless, the international academic debate remains centred around the feasibility of the asymmetry thesis. Ironically, the asymmetry thesis acknowledges that it is perfectly permissible to enforce civil and criminal laws against religions. In other words there is nothing wrong with forbidding the manifestation of one’s religion by virtue of sacrificial or ritualistic murders or other criminal activities. Likewise, it is perfectly permissible to forbid religious practices to involve the commission of a tort or other civil wrong. However, it is entirely wrong to force religious practices to observe anti-discrimination laws.29 Thus there is nothing wrong with allowing religious practices that segregate students in educational institutions on the basis of sexuality or to prohibit same-sex relationships or adoptions. According to Sunstein, the asymmetry thesis in indefensible because it permits religions to add to rather than tame the perpetuation of sexuality-based discrimination. Religion is intended to play a significant role in the maintaining of public order and enforcing the rule of law. Instead permitting religious practices that encroach upon discrimination on the grounds of sexuality perpetuates a potentially damaging aspect of society.30 Sunstein identifies a number of flaws in the asymmetry thesis that contributes to upheaval in society. To begin with, when religions enforce segregation on the basis of gender and discriminate against others on the basis of sexuality this contributes to: ...sex role stereotyping in a way that produces damaging effects on boys and especially girls that may even compromise fair equality of opportunity.31 In addition, injustices occur because sexuality-based discrimination by religious practices in the private sector is permitted. For example, a private Catholic university may decide that it would not permit homosexuals or women to participate in a specific university programme. In the event, a homosexual or woman challenges the university on the ground of sexual discrimination, the university may simply hide behind the law and state that as a religious practice, the courts are not permitted to intervene.32 Another type of injustice would occur in a situation where a homosexual teacher is harassed by other teachers in a private university. The harassment might take the form of derogatory sexual comments or even “pornographic mailings”.33 Should the harassed teacher threaten to sue the university on the basis of discrimination in his employment, he might simply be reminded that his suit has not merit since the harassment is merely an expression of religious freedom.34 It is therefore hardly surprising that: Some of the most pernicious forms of sex discrimination are a result of the practices of religious institutions, which can produce internalized norms of subordination. Those internalized norms might undermine equality of opportunity itself, as when women scale back their aspirations to conform to those internalized norms.35 The fact is, inequality does not materialize out of the blue. It emanates from somewhere, most often in society. The international academic debate against the asymmetry thesis argues that: ...religious practices often contribute a great deal to such beliefs and choices, on the part of men and women alike.36 The law does not help when it turns a blind eye to this reality and adhere to the practice of preserving the integrity of religion. The tensions between faith-based equalities and sexuality-based equalities demonstrate the dangers of permitting far too much religious freedom at the expense of sexuality-based equalities. Over much of the 21st century the conflicts between faith-based equalities and sexuality-based equalities have become increasingly controversial and generally centre round equality for lesbians, gays, homosexuals and transgender individuals. According to Stychin, increasingly, in Western democracies calling for the perpetuation of absolute compliance with anti-discriminatory policies and laws and claims that non-compliance has had a negative impact on “conscientious faith-based objectors to same-sex sexual acts”.37 Essentially, in respecting freedom of religion it is only necessary that the individual is free to believe as he or she wishes. However, the freedom to practice what one believes should be tempered so that in practicing one’s beliefs they do not violate the fundamental human rights of others. Practice becomes a matter for serious scrutiny when it is practiced in public and relates to relationships that are on public display. Put another way, an individual’s personal religious beliefs should be just that: personal. It should not be put on public display and permitted and indorsed by the law regardless of how discriminatory it might be. Obviously, the law has known where to draw the line in many cases. For example, the law requires that religious practices strictly adhere to the criminal law and the law of tort. Likewise, a religious organization would be held in breach of contract should it renege on its contractual obligations on the basis of religious belief. For instance, a religion that does not believe in eating meat should not be permitted to refuse to serve meat to those who do not share the same belief. Likewise, there is nothing preventing the law enforcing its anti-discriminatory laws against religious organizations for the greater good of society and mankind generally. Article 9(2) of the ECHR already arms the law with the ability to safeguard against allowing religious practices that essentially permit sexuality-based discrimination. Conclusion The laws creating and enforcing faith-based and sexuality-based equalities laws are continuously coming into conflict with one another and quite frequently at the expense of sexuality-based equality. These tensions can be removed by simply prohibiting sexuality-based discrimination regardless of religious beliefs. Freedom of religion should be restricted to private choices and should have no place in any forum in which members of the public have access. Since the law cannot force citizens to accept non-heterosexuals indiscriminately, it can forbid open manifestations of those beliefs that can be observed by members of the public. Certainly, the courts would intervene should a religious organization take a derogatory position against a group identified by race. Similarly the courts and the legislators can take the same position relative to derogatory positions against others on the basis of sexuality. Both the British courts and the international debate relative to the tensions between sexuality-based equalities and faith-based equalities have come a long way in terms of promoting a more egalitarian society. There is a growing consensus that there is a need to create a fairer balance between these conflicting rights in a way that promotes the concept that freedom of religion does not necessarily equate with the public stereotyping of individuals on the basis of sexuality. However, religious organizations and their members remain confident that they are free to manifest discrimination on the basis that it is implicit in an inalienable right to religious freedom. Bibliography Articles/Journals Ahmed, T. and de Jesus Butler, I. ‘The European Union and Human Rights: An International Perspective.’ (2006) 17(4) European Journal of International Law, 771-801. Ferrari, S. ‘Individual Religious Freedom and National Security in Europe After September 11’, (Summer 2004) Brigham Young University Law Review, 357-384, 358. Sauer, B. ‘Headscarf Regimes in Europe: Diversity Policies at the Intersection of Gender, Culture and Religion,’ (2009)7 Comparative European Politics, 75-94. Stychin, C. ‘Faith in the Future: Sexuality, Religion and the Public Sphere,’ (2009)29 (4) Oxford Journal of Legal Studies, 729-755. Sullivan, D. J. ‘Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution,’ (1991-1992) 24 New York University Journal of International Law and Politics, 795-855. Sunstein, C. ‘Feminism and Cultural Diversity.’ In D. Satz and R. Reich (Eds) Toward a Humanist Justice: The Political Philosophy of Susan Okin, (Oxford, UK: Oxford University Press, 2009) 129-142. Vickers, L. ‘Twin Approached to Securlarism: Organized Religion and Society.’ (Spring 2012) 32(1) Oxford Journal of Legal Studies, 197-210. Weithman, P.‘Political Republicanism and Perfectionist Republicanism,’ (Spring 2004) 66(2) The Review of Politics, 285-312. Textbooks Cookson, C. Encyclopedia of Religious Freedom. (New York, NY: Routledge, 2003). Fredman, S. Discrimination Law. (Oxford, UK: Oxford University Press, 2011). Hunter-Henin, M. Law, Religious Freedoms and Education in Europe. (Surrey, England: Ashgate Publishing Limited, 2011). Laycock, D.; Picarello, A. and Wilson, R. Same-Sex Marriage and Religious Liberty: Emerging Conflicts. (Lanham, MD: Rowman & Littlefield, 2008). Sunstein, S.R. Designing Democracy: What Constitutions Do. (Oxford, UK: Oxford University Press, 2001). Cases Bellinger v Belligner [2003] UKHL 2. Case C-13/94 P v S and Cornwall Country Council [1996] ECR I-2143. Goodwin v UK [2002] 35 EHRR 18. Ladele v Islington [2009] EWCA (Civ) 1357. McClintock v Department of Constitutional Affairs [2008] IRLR 29. McFarlane v Relate Avon Ltd. [2010] EWCA Civ 800. R (SB) v Governors of Denbigh High School [2006] 2 WLR 719. Statutes Civil Partnership Act 2004. Equality Act 2010. European Convention on Human Rights 1953. Human Rights Act 1998. Read More