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These judgments restrict freedom

by
20 May 2010

The Ladele and McFarlane judgments undermine religious liberty, argues Lawrence West QC

The judgments of the Court of Appeal in London Borough of Isling­ton v. Ladele, and of Lord Justice Laws refusing permission to appeal in McFarlane v. Relate Avon Limited, raise justifiable concerns to those holding largely orthodox religious beliefs about the extent to which the law can be relied upon to continue to protect the right to hold those beliefs (News, 7 May; News, Comment, Press, 23 April).

In Ladele, the employee was a registrar who objected to being required to perform civil partner­ships. In McFarlane, the employee was a counsellor who was happy to counsel same-sex partners in respect of relationship problems, but objec­t-ed to being required to offer sexual counselling to same-sex partners.

There was no suggestion in either case that the employee was obstruct­ing, either directly or indirectly, the employer’s aim to ensure that same-sex partners were not discriminated against in the provision of services. The employee was not insisting that the employer abandon its policies.

In each case, the employee sought to be excused from participation in activities that conflicted with his or her religious beliefs. The employer was not and would not be prevented from achieving its aim in conseq­uence. There were other employees who did not share those objections, and who could undertake the provision of those services. Also, those services formed only a relatively small pro­por­tion of those offered by the employer.

In both cases, the employee was dismissed in consequence of his or her religious objections. In these two cases, the Court held that the dis­missals were lawful, and rejected the contentions by the employees that they had been discriminated against on the grounds of their religious beliefs.

The practical consequences for those in a similar position are stark. An employer can justifiably require an employee to make a choice be­tween having a job, or of acting publicly contrary to his or her moral or religious beliefs — to choose between unemployment and public hypocrisy. The further consequence is that the decisions create a material risk that entire sectors of employ­ment may become inaccessible to those holding similar orthodox views.

In Ladele, there were a number of threads to the legal analysis:

1) The Master of the Rolls stated that the employer’s aims in ensuring that all registrars performed civil partner­ships were laudable, but, inferentially, that Ms Ladele’s beliefs were not. (His Lordship noted that Ms Ladele’s beliefs — not her actions — caused offence to colleagues.)

2) He further stated that Ms Ladele’s beliefs were not “a core part of her religion”, despite there being no basis in the evidence for that comment, and despite the clear implication that her employers were entitled to force Ms Ladele to pick and choose which beliefs to adopt out of the tenets of her religion.

3) Finally, he stated that Ms Ladele’s beliefs had to cede to the aims of the Council, regardless of the fact that the services could easily be provided by others.

One comment made by the Master of the Rolls is alarming: “Islington’s requirement in no way prevented her from worshipping as she wished.”

The implication is that religious freedom is limited to the freedom to worship, but not to carry one’s beliefs beyond the doors of the church.

This law permits the employer to impose its views on its employees. The judgment is deeply flawed by its lack of proper analysis of the practical consequences, and its apparent in­ability to discern the inherent judicial bias displayed in it.

In McFarlane, Lord Justice Laws’s judgment was even more illiberal. He refused permission to appeal to the full Court of Appeal, saying in part: “in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. . .

“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. . . The law of a theocracy is dictated without option to the people, not made by their judges and governments.”

Of course, Mr McFarlane was not contending that the substance of his beliefs should have some special pro­tection of the law. His contention was that he should not be required to participate in an act that ran contrary to his orthodox religious moral beliefs.

Having apparently misunderstood Mr McFarlane’s case, Lord Justice Laws concluded that it was perfectly justifiable for Relate to im­pose upon Mr McFarlane its belief that same-sex sexual activity is ac­ceptable and de­serving of sexual counselling. It was not justifiable, however, for Mr McFarlane to take the view that although Relate was free to offer those services, he should not be forced to participate as a condition of his em­ployment.

His Lordship’s suggestion that those who accept religious beliefs do not think for themselves is danger­ously unprincipled — so, too, is the contention that religious beliefs are dictated and are not the product of careful, rational thought. His words consign centuries of theological and philosophical thought, study, and debate to irrationality.

It is unfortunate that what he here says is diametrically opposed to his immediately preceding statement: “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.” It is worrisome that the judge did not appreciate that he was doing exactly that, by sub­stituting the tenets of modern secu­lar­ism for those of orthodox religion.

It is unfortunate that what he here says is diametrically opposed to his immediately preceding statement: “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.” It is worrisome that the judge did not appreciate that he was doing exactly that, by sub­stituting the tenets of modern secu­lar­ism for those of orthodox religion.

In any democratic society, it is right that citizens should be free to hold and express their beliefs. That right is wholly illusory, however, if citizens are not also free to conduct them­selves in accordance with those beliefs. That freedom must be main­tained. Anything less than that amounts to no more than paying lip-service to the democratic principle and imposing inimical beliefs justi­fied by contrived language that seeks to camouflage that imposition.

Of course, a balance must neces­sarily be established in any true demo­cracy where contradictory beliefs result in real conflict. The res­olution of that conflict must involve drawing a line based on the precept that no one should be forced to accept the contrary views of another. That resolution emphatically ought never to be achieved by the denigration of one apparent belief system to justify the imposition upon those holding those beliefs of the requirement to act upon a contradictory belief system.

The Court of Appeal has signally failed to take this approach in these cases. Furthermore, as Lord Justice Laws demonstrates, there is a sub­stantial risk that the judiciary has adopted a line of reasoning that closes the door to further consideration of the issues. It is of paramount import­ance that a proper principled analysis of cases such as these be undertaken, in order to restore the reality rather than the illusion of religious freedom in England.

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