The Religious Scruples of

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Lecture 3

• The Religious Scruples of
• public Office-bearers

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The human right of religious freedom

• ECHR Art 9 guarantees the right to manifest
  ones religion or belief in practice and
  observance
• Art 14 prohibits discrimination in the enjoyment
  of Convention rights
• Human Rights Act 1998 makes ECHR claims
  justiciable in domestic courts, forbids public
  authorities to act in violation of such rights,
  and requires courts to have regard to Strasbourg
  ECtHR jurisprudence

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The human right of religious freedom

• Religious people who believe consummated same-sex
  relationships to be sinful regularly claim that
  the ways in which they show this disapproval
  (e.g. in verbal argument, in their employment
  practices, in refusal of services) are protected
  manifestations of their religion
• But the right cited from ECHR Art 9 is qualified
  it may be subject to limitations prescribed by
  law and 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 freedoms of others.
  

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Other relevant human rights

• Art 8 ECHR guarantees respect for private and
  family life
• This guarantee is also qualified (interference
  allowed e.g. for the protection of morals or of
  the rights of others)
• ECtHR decisions include same-sex relations under
  private life but not family life
• Legal recognition of same-sex unions is one way
  in which respect for private life can be shown,
  although whether and how to recognise such unions
  probably falls within contracting states margin
  of appreciation
• Art 6 ECHR requires civil rights to be determined
  before an impartial tribunal

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Other relevant rights and duties

• EU Council Directive 2000/78/EC imposes a general
  framework for equal treatment in employment and
  occupation
• The Employment Equality (Religion or Belief)
  Regulations 2003 prohibit direct or indirect
  discrimination against an employee or
  office-holder because of his/her religion
• The Civil Partnership Act 2004 provides for
  same-sex partnerships, entered into by signing a
  register in front of a civil partnership
  registrar, and allows civil partner couples to
  adopt children on the same basis as married
  couples
• The Equality Act (Sexual Orientation) 2007
  prohibits public authorities from discriminating
  against any person because of his/her sexual
  orientation

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Other relevant rights and duties

• The Judicial Oath
• I swear by Almighty God that I will well and
  truly serve our sovereign lady Queen Elizabeth
  the second in the office of Justice of the Peace
  for the County of South Yorkshire and I will do
  right to all manner of People, after the laws and
  usages of this realm, without fear or favour,
  affection or ill-will so help me God.
• The Oath is taken to require a judge to hear all
  cases that may come before him although a judge
  can recuse himself for recognised grounds, e.g.
  an appearance of bias

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McClintock

• 1988 Appointed a J.P. ( lay magistrate) for
  South Yorkshire swears the Judicial Oath
• 1991 Joins the Family Panel of the Bench,
  entitling him to decide cases where decisions are
  taken on care placement, fostering and adoption
• 2004 Regards the CPA provision for adoption of
  children by civil partner couples as using
  children as guinea-pigs in a social experiment
• 2006 When told he cannot be excused from judging
  such cases, resigns from the Family Panel

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McClintock v. Dept of Constitutional Affairs
2008 IRLR 29

• Employment Tribunal discrimination claim under
  EE(R/B)Regs 2003, reiterating social experiment
  reasoning, fails
• Appeal to Employment Appeal Tribunal, adding
  religious objection to same-sex unions and ECHR
  Art 9 claim, also fails
• Accepted that the 2003 Regs must be read, if
  possible, in a manner compatible with Art 9

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McClintock discrimination law issues

• The reason given to the DCA and to the ET for
  McClintocks unwillingness to hear same-sex
  adoption cases was the social experiment
  argument, based on allegedly inadequate
  government research. Religious objections were
  not voiced so there could have been no religious
  discrimination because of them.
• Even had they been voiced, there would have been
  a proportionate reason for the indirect
  discrimination involved in insisting on the
  judicial oath

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McClintock discrimination law issues

• Employment Tribunal
• To have allowed the Appellant, or anyone else
  for that matter, to opt out of cases where they
  disapproved or were less than enamoured with the
  law because of their views on a particular matter
  or because their conscience would not allow them
  to consider doing something, would have been
  abdication of the responsibilities of those whose
  task it is to uphold the administration of
  justice in this country. Even if a Judge
  personally has particular views on any subject,
  he or she must put those views to the back of his
  or her mind when applying the law of the land
  impartially as their judicial oaths of office
  require them to do. It is the only way the public
  can place any trust in the law. To allow Judges
  with a particular point of view the ability to
  avoid cases which come before them because they
  feel it will likely cause them embarrassment or
  difficulty could, apart from anything else,
  impose greater burdens on others or lead to a
  situation whereby another pool of Judges with
  views in another direction might have to sit and
  adjudicate on such cases. The Respondent's stance
  was therefore wholly proportionate and wholly
  justified and, in our view, wholly necessary. In
  a country where there is such a diverse range of
  opinions and beliefs held and expounded by people
  from many religions and walks of life, it would
  be invidious were judges to pick and choose which
  cases they were prepared to sit on. It would
  undermine the basis of our judicial system, one
  that warts and all has served people well for a
  very long time.

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McClintock discrimination law issues

• Employment Appeal Tribunal
• the issue is whether a judge should be allowed a
  blanket objection not to have to hear cases which
  involve a consideration of laws to which they
  have a principled or conscientious objection. It
  does not of course mean that he or she will have
  to hear particular cases where, because of their
  activities or public pronouncements, their
  hearing the case might give the appearance of
  bias.
• Recusal is different from a situation where the
  judge is refusing to apply the law because he has
  moral objections to it, or thinks that it has
  been introduced prematurely or has been
  insufficiently considered. He is then expected to
  put his personal views to one side which judges
  frequently have to do and there is no reason
  why the parties should not trust him to be able
  to do that.
• cp. McClintock argument for a representative
  judicial Bench with a cross-section of citizens
  views

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McClintock Human rights issue

• Employment Appeal Tribunal
• line of authority in ECtHR which strongly
  suggests that, at least in circumstances where a
  party voluntarily places himself or herself in a
  position where a conflict might arise between his
  or her religious or philosophical beliefs and the
  duty imposed by an employment or office, then it
  is not in general an infringement of Article 9(1)
  to insist that the duties are complied with
• consider also Art 6 ?

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Ladele

• 2002 appointed a Registrar of Births Deaths and
  Marriages
• 2007 Registrar service becomes a local government
  function and L. becomes an employee of the London
  Borough of Islington (LBI)
• 2005 LBI designates all existing registrars to be
  also Civil Partnership Registrars
• 2006 LBI refuses to allow L. to opt out of
  officiating at civil partnership registration.
  Ls continued refusal leads to a disciplinary
  hearing and other disadvantages, although she is
  not dismissed

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Ladele v. LB of Islington (2008)

• L. claims religious discrimination in relation to
  LBIs refusal to make special provision for her
  beliefs, and in relation to the subsequent
  treatment
• The claim succeeds before the ET but LBI appeals
  to the EAT (judgment 19.12.08), where the appeal
  is allowed
• the Tribunal has fallen into the trap of
  confusing the council's reasons for treating the
  claimant as they did with her reasons for acting
  as she did

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Ladele the legitimate aim

• LBI aim, as summarised by the EAT
• To provide an effective civil partnership
  arrangements service as an employer public
  authority which is wholly committed to the
  promotion of equal opportunities and to fight
  discrimination part of this commitment is
  that employees should not be permitted to refuse
  to provide services to the community for
  discriminatory reasons

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Ladele discrimination law

• The council was entitled to adopt the position it
  did. Once it is accepted that the aim of
  providing the service on a non-discriminatory
  basis was legitimate -and in truth it was bound
  to be - then in our view it must follow that the
  council were entitled to require all registrars
  to perform the full range of services. They were
  entitled in these circumstances to say that the
  claimant could not pick and choose what duties
  she would perform depending upon whether they
  were in accordance with her religious views, at
  least in circumstances where her personal stance
  involved discrimination on grounds of sexual
  orientation. That stance was inconsistent with
  the non-discriminatory objectives which the
  council thought it important to espouse both to
  their staff and the wider community. It would
  necessarily undermine the council's clear
  commitment to that objective if it were to
  connive in allowing the claimant to manifest her
  belief by refusing to do civil partnership duties.

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Ladele human rights law

• Cases such as Ahmad v UK 1982 4 ECHR 126 and
  Stedman v UK 1997 23 ECHR CD show that the act
  of an employer who refuses to accommodate an
  employee's wish to have time off for religious
  worship does not even engage Article 9 . In each
  case the Commission took the view that the reason
  for the conduct was the refusal to work the
  hours, rather than the religious belief as such.
  The rights under Article 9 were not subject to
  interference because the employee could resign
  and take up other employment.
• Did it matter that the duties were imposed after
  L. took up employment?
• We doubt, however, whether even this argument
  could succeed here because the range of duties
  appropriate for registrars had been extended by
  Parliament and the claimant was being required to
  carry out precisely the kind of tasks which those
  in her situation do.

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Ladele human rights law

• The limitations imposed on freedom of religion
  are particularly strong where a person has to
  carry out state functions. In Kalak v Turkey
  1999 27 ECHR the court found that the military
  judge's Article 9 rights were not breached when
  he was compulsorily retired for reasons
  associated with his religion. He had adopted
  fundamentalist Muslim opinions inconsistent with
  his position as a judge. The court said this
  (para 27-28)
• Article 9 does not protect every act motivated
  or inspired by a religion or belief. Moreover, in
  exercising his freedom to manifest his religion,
  an individual may need to take his specific
  situation into account.
• In choosing to pursue a military career, Kalak
  was accepting of his own accord a system of
  military discipline that by its very nature
  implied the possibility of placing on certain of
  the rights and freedoms of members of the Armed
  Forces limitations incapable of being imposed on
  civilians.
• In that case it was not the Muslim beliefs which
  created the problem - indeed, he was allowed, for
  example, to pray five times a day and to keep
  fasts - rather it was, as the court put it, his
  conduct and attitude.
• see also Knudsen v. Norway, 1964

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Points to ponder

• Are state office-holders a special case in
  relation to human rights claims? Should they be?
• Are democratic bodies entitled to adopt and
  enshrine in law a national (or local) morality
  which may exclude certain candidates from office?
• What would have been the situation, were the
  position reversed (e.g. a Roman Catholic or
  Mormon fostering service which would not employ a
  gay manager who saw no objection to same-sex
  fostering)?