McFarlane’s appeal is refused

by
05 May 2010

by Shiranikha Herbert Legal Correspondent

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.

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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”.

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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.

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