A relationship counsellor, Gary McFarlane, who was dismissed from his job at the counselling organisation Relate for his failure to counsel same-sex couples on sexual matters, was refused permission to appeal to the Court of Appeal on Thursday of last week. He had wanted to appeal against a decision of the Employment Appeal Tribunal rejecting his claims of unfair dismissal and religious discrimination against his employer (News, 23 April).
The Court of Appeal, in the person of Lord Justice Laws, took the opportunity of delivering a strongly worded rebuke in response to submissions from Lord Carey of Clifton, the former Archbishop of Canterbury. In a witness statement in support of Mr McFarlane’s application, Lord Carey had criticised the courts for having shown a disparaging attitude to Christian values and animus towards Christian beliefs.
Mr McFarlane’s employer, Relate Avon Ltd, is part of the Relate Federation, which provides relationship-counselling services. It is a member of the British Association for Sexual and Relationship Therapy, which has a code of ethics requiring therapists to avoid discrimination on grounds of sexual orientation. The employer also has an equal-opportunities policy, which requires it to ensure that no person receives less favourable treatment on the basis of characteristics such as sexual orientation.
Mr McFarlane entered into his contract of employment in August 2003, and signed up expressly to his employer’s equal-opportunities policy. He is a Christian who believes that it follows from biblical teaching that same-sex sexual activity is sinful, and that he should do nothing that endorses such activity.
He had no difficulties of conscience in counselling same-sex couples where no sexual issues arose. He asked, however, to be exempted from any obligation to work with same-sex couples in cases where issues of psychosexual therapy (PST) were concerned. His employer refused, and further communications and discussions took place.
In the course of a disciplinary investigation in January 2008, Mr McFarlane said he would undertake PST with same-sex couples if asked, and would raise any problems he had with his supervisor. It subsequently became clear to his employers, however, that he had no intention of counselling same-sex couples on sexual matters, and in March 2008 he was dismissed.
He claimed that he had been discriminated against on grounds of religion or belief, and that he had been wrongfully dismissed. His claim failed in the Employment Appeal Tribunal, which followed its own earlier decision in the case of the London Borough of Islington v. Ladele, where the facts were not dissimilar (News, 18 December).
In that case, Lillian Ladele, a registrar of marriages, objected on religious grounds to “gay marriage”, and was disciplined by her local-authority employer for refusing to conduct civil-partnership ceremonies.
Ms Ladele failed in her claim for unfair dismissal and discrimination. The tribunal ruled that the same reasoning as in Ms Ladele’s case applied to Mr McFarlane’s case. It was argued for Mr McFarlane that the Ladele case had been wrongly decided.
Lord Carey said in his witness statement that Mr McFarlane’s case should be heard “before the Lord Chief Justice . . . and a specially constituted Court of Appeal of five Lords Justices who have a proven sensibility to religious issues” (News, Comment, Press, 23 April). He disputed that “the manifestation of the Christian faith in relation to same-sex unions is ‘discriminatory’ and contrary to the legitimate objectives of a public body,” and that “such religious views are equivalent to a person who is genuinely a homophobe and disreputable”. He said that the “comparison of a Christian, in effect, with a ‘bigot’ . . . is further evidence of a disparaging attitude to the Christian faith and its values”.
Lord Carey said that a decision of the Court of Appeal concerning the wearing of crosses showed a reasoning that was “dangerous to the social order and represents a clear animus to Christian beliefs”. He continued: “The fact that senior clerics of the Church of England . . . feel compelled to intervene directly in judicial decisions and cases is illuminative of future civil unrest.”
Lord Justice Laws, who heard and refused Mr McFarlane’s application for permission to appeal, rejected Lord Carey’s observations and de-scribed them as “misplaced”. Judges, Lord Justice Laws said, had never sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”, or likened Christians to bigots. They administered the law in accordance with the judicial oath, he said, “without fear or favour, affection or ill-will”.
The common law and article 9 of the Human Rights Convention offered vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs, Lord Justice Laws said. By contrast, they did not, and should not, offer any protection whatever of the substance and content of those beliefs on the ground only that they were based on religious precepts.
He went on to say that the general law might “protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves”.
Although the liturgy and practice of the Established Church were to some extent prescribed by law, “the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled,” Lord Justice Laws said.
Religious faith was “necessarily subjective”, being “incommunicable by any kind of proof or evidence”. The ascertainment of its truth lay “beyond the means by which laws are made in a reasonable society”, and therefore it lay “only in the heart of its believer, who is alone bound by it”. No one else was bound by it unless of his or her own free choice.
Therefore, he ruled, the promulgation of law for the protection of a position held purely on religious grounds could not be justified.
To give effect to Mr McFarlane’s position would necessarily undermine Relate’s proper and legitimate policy, the court concluded. The Ladele case had been correctly decided, and could not sensibly be distinguished from Mr McFarlane’s.