The Labour Government (1997–2010) created a large number of new laws affecting religion. The Blair and Brown years saw the incorporation of Article 9 of the European Convention on Human Rights into domestic law, the creation of religiously-aggravated offences, the recognition of civil partnerships, and a tide of legislation affecting education, charities and equality law, which saw the extension of the law to cover discrimination on grounds of religion or belief. And all this legislation has resulted in an abundance of case law.Footnote ² There is more ‘religion law’ – national and international law affecting religion – than ever before.Footnote ³ And, for some time, there has been an implicit tension in English law between this new religion law and older laws protecting religion. These old laws, many still on the statute books, were based upon a different premise. They often sought to protect Christianity in general (or the Church of England in particular) as the norm, while providing some degree of toleration for other faiths. Moreover, the legal regulation of religion was characterised by a lightness of touch. The new religion law, by contrast, is facilitative,Footnote ⁴ seeking to protect religious freedom mainly as an individual right which needs to be balanced against other rights.Footnote ⁵ No special protection is afforded to any one religion and protection is often afforded to non-religious beliefs. The new legal framework affords utmost importance to the concept of religious neutrality as the State takes on the role of facilitating the religious market place.Footnote ⁶ The tension between the old laws on religion and the new ‘religion law’ can be seen, for example, in the abolition of the offence of blasphemy (which favoured the Church of England in particular) and its replacement by offences concerning religious hatred (which covers all religions).Footnote ⁷ This tension has recently come to the fore in the Court of Appeal ruling in the application for leave to appeal in McFarlane v Relate Avon Limited.Footnote ⁸

THE DECISION

The case concerned a Christian counsellor who was dismissed because he refused to counsel same-sex couples on sexual matters. Both the Employment Tribunal and the Employment Appeal Tribunal (EAT)Footnote ⁹ rejected McFarlane's claims of unfair dismissal and religious discrimination. The case was almost simultaneous with the factually similar case of Ladele v London Borough of Islington Footnote ¹⁰ and so it was unsurprising that the various judgments in McFarlane relied heavily upon those in Ladele, making the dismissal of McFarlane's appeal application almost inevitable. However, McFarlane should not be relegated to footnote status. A witness statement by Lord Carey of Clifton, formerly Archbishop of Canterbury, provoked Lord Justice Laws to deliver a significant judgment which elucidated the relationship between Christianity and the law and, consequentially, the relationship between the older laws on religion and the new religion law.

The Court of Appeal decision focused on the question of indirect discrimination. In relation to direct discrimination, the claim failed because Relate did not treat McFarlane less favourably on grounds of religion.Footnote ¹¹ McFarlane was treated as he was because of his unwillingness to provide counselling rather than because of his Christian faith. The question of indirect discrimination, however, was more controversial. It was agreed that McFarlane had been disadvantaged and that Relate's actions had had a legitimate aim (the provision of counselling services to all sections of the community regardless of sexual orientation) but it was disputed whether the absolute rule was proportionate with McFarlane contending that there was no good reason why he should not be allowed to counsel only heterosexual couples on the basis of his religious convictions about homosexuality.Footnote ¹²

Both the EAT and the Court of Appeal found Ladele to be definitive on this point. As Laws LJ noted, the two cases ‘cannot sensibly be distinguished’.Footnote ¹³ In Ladele Footnote ¹⁴ the Court of Appeal emphasised that Ladele was employed in a public job and was being ‘required to perform a purely secular task, which was being treated as part of her job’.Footnote ¹⁵ The Court of Appeal quoted the EAT's statement that ‘the only way in which they could have achieved that aim was by requiring all their registrars to conduct civil partnerships’.Footnote ¹⁶ The Court of Appeal held that the aim of their equality policy was ‘of general, indeed overarching, policy significance to Islington, and it also had fundamental human rights, equality and diversity implications, whereas the effect on Ms Ladele of implementing the policy did not impinge on her religious beliefs: she remained free to hold those beliefs, and free to worship as she wished’.Footnote ¹⁷

There are a number of flaws with this argument in Ladele. The argument seems one-sided. There is no recognition that equality policy protects discrimination on grounds of religion as well as on grounds of sexual orientation. Preventing discrimination on grounds of sexual orientation is described as being of ‘overarching, policy significance’ whilst freedom of religion is defined very narrowly. Indeed, taken literally, Ladele seemed to suggest that freedom of thought, conscience and religion only included the right to hold beliefs and worship. This is not the case as the text of Article 9 makes clear. In sum, in Ladele the laudable aim of preventing discrimination on grounds of sexual orientation was used to annihilate the claim of religious discrimination.Footnote ¹⁸

THE ARGUMENTS

It is not surprising that counsel for McFarlane chose to focus upon this point in the application for permission to appeal. It was argued that the Court of Appeal judgment in Ladele ‘failed properly to consider other decisions’ concerning Article 9, ignored the principle of legality and was ‘unconstitutional and contrary to the rule of law’.Footnote ¹⁹ It was submitted that both the EAT in McFarlane and the Court of Appeal in Ladele failed ‘to conduct the balancing exercise’ between the two competing claims of religious discrimination and sexual orientation discrimination. The case was supported by a witness statement by Lord Carey arguing for ‘a specially constituted Court of Appeal of five Lords Justices who have a proven sensibility to religious issues’.Footnote ²⁰ Lord Carey criticised the description of Christian beliefs about sexuality as ‘discriminatory’ and lamented what he perceived to be ‘disparaging comments’ made by senior members of the judiciary which suggested that someone who held religious views was ‘a homophobe and disreputable’. He further suggested that the fact that senior clerics felt compelled to intervene in recent cases was ‘illuminative of a future civil unrest’.

Laws LJ's judgment sought to address these concerns and focussed mainly upon Lord Carey's statement. He held that this was appropriate given Carey's ‘seniority in the Church and the extent to which others may agree with his views, and because of the misunderstanding of the law which his statement reveals’.Footnote ²¹ The following will seek to elucidate the four key issues discussed in the judgment, namely: the level of protection provided by Article 9, the concept of discrimination, the legal favouring of Christianity and the protection of religious doctrine.

THE PROTECTION PROVIDED BY ARTICLE 9 ECHR

Laws LJ dealt swiftly with the argument that the judgment in Ladele had been decided per incuriam because it failed properly to consider the Article 9 case law. Counsel for McFarlane contended that the court in Ladele failed to take into account the judgments in Williamson Footnote ²² and Copsey Footnote ²³. Laws LJ held that Ladele was not inconsistent with either decision because in both cases it had been held although that the claimant's beliefs fell within the scope of Article 9(1), there had been no breach of Article 9.Footnote ²⁴ However, whilst it is true that the Article 9 claim was unsuccessful in both of these cases, it is also the case that Williamson and Copsey took a more generous approach to Article 9 than subsequent cases. Since the House of Lords decision in Begum,Footnote ²⁵ domestic courts have tended to interpret the Article 9 rights in a narrow and conservative fashion, uncritically following Lord Bingham's questionable assertion that ‘interference [with Article 9] is not easily established’Footnote ²⁶ and making repeated use of the ‘specific situation rule’.Footnote ²⁷ The result of this is that Article 9 is rendered of little practical use.Footnote ²⁸ This tendency could be seen in Ladele. The Court of Appeal held that ‘Ladele's proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington's concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community’.Footnote ²⁹ The treatment of Article 9 in Ladele was of concern because whilst it highlighted the need to protect discrimination on grounds of sexual orientation, it ignored the need to protect discrimination on grounds of religion or belief. The Court of Appeal decision in Ladele showed how the application of the ‘specific situation rule’ renders Article 9 impotent by allowing other Convention rights to ‘trump’ it with ease. It is a matter of regret that Laws LJ did not deal with this matter in McFarlane,Footnote ³⁰ choosing to focus more on refuting the arguments in Lord Carey's witness statement.

THE CONCEPT OF DISCRIMINATION

Laws LJ held that Lord Carey's concern that Christian views were equated to homophobia was ‘misplaced’.Footnote ³¹ Finding no examples of judges likening Christians to bigots, Laws LJ concluded that Lord Carey's ‘mistaken suggestions’ arose from a misunderstanding of the meaning attributed by the law to the idea of discrimination.Footnote ³² Laws LJ noted that ‘the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur.’ He noted that the motivation for discrimination could be ‘for good or ill’ and that was shown by the fact that ‘in various contexts the law allows indirect discrimination where (in a carefully controlled legislative setting) it can be shown to have justifiable effects’. These comments are sound. However, they point to a problem with the use of the word ‘discrimination’ which has been commented upon by David Harte.Footnote ³³ For Harte, the word ‘discrimination’ has ‘become a negative concept, expressing prejudiced judgement’, and this has occurred to such an extent that it is now difficult to use the word ‘to mean the drawing of justified distinctions’.Footnote ³⁴ Indeed, the problematic colloquial meaning of the word ‘discrimination’ is shown by the fact that the product of the work of the Discrimination Law Review was the Equality Act 2010.Footnote ³⁵ Laws LJ's comments are therefore to be welcomed as an attempt to remove the unintended stigma which has become attached to the word ‘discrimination’, which may be in part responsible for the frequently simplistic media accounts of litigation.Footnote ³⁶

THE FAVOURING OF CHRISTIANITY

In relation to the other points raised by Lord Carey, Laws LJ commented that they were ‘formulated at such a level of generality that it is hard to know precisely what Lord Carey’ meant.Footnote ³⁷ He surmised Carey's argument to be broadly that ‘the courts ought to be more sympathetic to the substance of the Christian beliefs referred to than appears to be the case, and should be readier than they are to uphold and defend them’.Footnote ³⁸ Expressed in this way, Laws LJ's rejection of Carey's argument seems sound. Human rights and discrimination law safeguards mean that Christianity cannot be singled out for special treatment. However, it is again important not to ignore the other side of the coin. Christianity should not be disadvantaged under the law. The laudable practice of protecting minority faiths should not result in disfavour being shown to Christianity.

Laws LJ addressed this by stressing that:

Again, the general underlying point here is sound: we do not live in a theocracy. If Laws LJ is simply asserting that it is not the role of the law to embrace specific examples of religious practice then this is unobjectionable. Laws LJ is correct to maintain that 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’.Footnote ⁴⁰ As he puts it, ‘the State, if its people are to be free, has the burdensome duty of thinking for itself’.Footnote ⁴¹ However, Laws LJ seems to be stating that the law protects certain values not because they are religious values but by reason of their own merits. This is a different argument from saying that Christian ideas have become submerged into general culture. If Laws LJ's judgment is saying that the law will never protect religion as such then this seems inaccurate. Special treatment is afforded in many areas of law to protect religious ideas. The reason why there is so much religion law is because religious ideas (as opposed to opinions or leisure pastimes) are deemed to be worthy of support. The notion that religion is a good thing and is worth protecting for that reason can still be said to underpin the law.Footnote ⁴² Laws LJ is correct to say that this does not mean that the State approves of, endorses or follows any particular religious belief.Footnote ⁴³ But the argument that the law will never protect religion as such is questionable.Footnote ⁴⁴ Indeed, as Laws LJ noted, reflections of a Judaeo-Christian heritage can still be found in English law. Although the ecclesiastical courts have lost their jurisdiction over the enforcement of the law of contract, trusts, defamation and wills,Footnote ⁴⁵ their legacy upon the substantive laws and procedures of modern English law continues. Clerical fingerprints can still be found over modern pieces of English law, especially in relation to marriage and education law.Footnote ⁴⁶ The historical synthesis of law and Christianity means that many laws are the way they are because of those clerical fingerprints. And it is difficult to say that these laws are the way they are simply because their ‘merits commend themselves’; especially as the criteria by which we assess such merits itself derive from the same Judaeo-Christian heritage.

Laws LJ's reasoning needs to be understood within the context of the new religion law, which is underpinned by a notion of religious equality that is ahistorical and which does not sit comfortably with legal reality. In modern eyes, many aspects of the UK constitution may appear ‘unprincipled’ (to use Laws LJ's term) but this does not mean that they are wrong and need to be changed. This is true of the benefits and burdens placed on the Church of England as the established church. As Strasbourg has stated, the existence of a State Church is not in itself incompatible with the European Convention on Human Rights; there is only incompatibility if that special treatment prevents the religious freedom of those who do not conform to the State Church.Footnote ⁴⁷ It must be remembered that the new religion law and its rhetoric of religious neutrality does not exist in a legal and historical vacuum.

THE PROTECTION OF RELIGIOUS DOCTRINE

In addressing Lord Carey's concerns, Laws LJ emphasised the ‘important distinction … drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content’.Footnote ⁴⁸ He held that the common law and Article 9 provided ‘vigorous protection of the Christian's right (and every other person's right) to hold and express his or her beliefs’ but ‘do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts.’Footnote ⁴⁹ Again, this is unobjectionable if it is merely an assertion that we do not live in a theocracy. Law LJ's comments are also welcome if they are meant as recognition of religious autonomy, reaffirming Lord Nicholls' judgment in Williamson that courts should be reluctant to intervene in doctrinal matters.Footnote ⁵⁰ While Courts may be concerned with whether or not the claim of religious belief was made in good faith, they are not concerned whether the religious belief professed is a good faith in terms of judging the validity of that faith.Footnote ⁵¹ Laws LJ's comments are especially welcome since some of the lower court decisions have increasingly entered into what Laws LJ referred to as the ‘belief's substance or content’ in order to determine whether the manifestation is obligatory or central to the belief.Footnote ⁵²

However, it is questionable whether a watertight line can and should be drawn between the protection of the right to hold a belief and protection of the content of that belief. Surely it is the substance or content of the belief that singles it out for protection. As Lord Nicholls noted in Williamson, in order to be protected as a manifestation of belief under Article 9, a belief ‘must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. [It] must be a belief on a fundamental problem. … The belief must also be coherent in the sense of being intelligible and capable of being understood’.Footnote ⁵³ The reason why a belief in the supreme nature of the Jedi knights is not protected is precisely because the substance or content of that belief does not meet the Williamson thresholds.Footnote ⁵⁴

Laws LJ seems to be saying that the substance of beliefs should not be protected solely on the ground that they are ‘religious precepts’. Laws LJ's reasoning appears to go too far. This is most notable when he asserts that:

A lot depends on the meaning of the word ‘purely’ here. Arguably Article 9 and several other pieces of religion law have been promulgated in order to provide ‘protection of a position held on religious grounds’. This is perhaps epitomised by the numerous exceptions afforded in discrimination law to religious groups.Footnote ⁵⁶ And the Strasbourg jurisprudence makes it plain that the State is obligated to facilitate religious freedom. Although many laws are underpinned by a perception that there is a need to protect religion in its own right, it is unclear whether they were promulgated to protect views held ‘purely’ on religious grounds. The reference to objectivity and subjectivity is also troubling, bearing in mind Lord Nicholls' statement in Williamson that ‘freedom of religion protects the subjective belief of an individual’.Footnote ⁵⁷