Sexual Orientation and Religious Liberty in the U K

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Sexual Orientation and Religious Liberty in the U K

By Rowland Croucher and others ⋅ June 1, 2007 ⋅ Post a comment

Subj: UK: Sexual Orientation and Religious Liberty

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UK: SEXUAL ORIENTATION AND RELIGIOUS LIBERTY

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The British government’s controversial Sexual Orientation Regulations (SORs)

which outlaw discrimination against homosexuals in the provisions of goods and services became law in England, Wales and Scotland on 30 April 2007.

The British SORs are parallel but slightly different from the Northern Ireland SORs that the British government imposed on Northern Ireland prior to devolving authority to the Democratic Unionist Party (DUP)/Sinn Fein-led local administration. The Northern Ireland SORs became law on 1 January 2007.

The SORs that apply to Northern Ireland can be accessed at <http://www.opsi.gov.uk/sr/sr2006/20060439.htm> The SORs that apply to England, Wales and Scotland can be accessed at <http://www.opsi.gov.uk/si/si2007/draft/20075920.htm>

The Christian Lawyers Fellowship note in their Briefing Pack concerning the Northern Ireland SORs, many organisations have questioned the need for the SORs because of a lack of empirical evidence showing that such discrimination currently takes place. They further reiterate that Christian organisations generally support the principle of outlawing unjustified discrimination on the grounds of sexual orientation. “The opposition to and support for the Northern Ireland SORs is therefore not a case of ‘Christians v homosexuals’ as some have sought to portray it. The opposition to the Northern Ireland SORs from Christians is based on extremely important issues of freedom of religion and freedom of conscience. It is a question of balancing rights.

“The Northern Ireland SORs have been controversial primarily because of the impact they will have on freedom of religion and freedom of conscience for Christians. The primary concern held by hundreds of thousands of Christians, is that a law which is intended to remove discrimination on the grounds of sexual orientation inadvertently discriminates heavily against Christians. . . by making it illegal for Christians to continue to freely hold and profess the Biblical teaching on sexual morality.” (see: <http://www.christianconcernforournation.co.uk/sor/docs/BriefingPack.pdf >)

As noted by “Christian Concern for our Nation”, the Parliamentary Joint Committee on Human Rights (JCHR), which has advised the government on the SORs, maintains that in a democratic society, manifestations of religious beliefs must be limited for the protection of the right of gay people not to be discriminated against. As far as the JCHR is concerned religious liberty is not violated because Christians will still have the right to hold their beliefs; it is only the manifestation of those beliefs that will be limited by the regulations. (see: <http://www.christianconcernforournation.co.uk/sor/2mar7.php> for some analysis and a link to the actual JCHR report.)

LAWFULNESS OF NORTHERN IRELAND’S SEXUAL ORIENTATION REGULATIONS TO BE TESTED IN HIGH COURT, BELFAST – MONDAY 4 JUNE

A hugely important court case will commence in the High Court in Belfast, Northern Ireland, on Monday 4 June. A judicial review has been secured by the Christian Institute <http://www.christian.org.uk>, which director Colin Hart describes as “a nondenominational Christian charity committed to upholding the truths of the Bible”. The website of the Christian Institute has many excellent resources, including a page of resources devoted to the SORs. See: <http://www.christian.org.uk/soregs/index.htm>

The judicial review is scheduled to run for three days. Catholics and Protestants will stand side by side to defend religious liberty. The High Court will be considering whether Northern Ireland’s Sexual Orientation Regulations unduly interfere with religious liberty contrary to the Human Rights Act, and whether the public consultation was flawed. If the review is successful the regulations could be declared unlawful and struck down. Whatever the outcome, it will serve as a precedent for the similar regulations now in force in Great Britain.

————————————————– SUMMARY OF KEY CONTROVERSIAL REGULATIONS OF SORs ————————————————–

DISCRIMINATION DEFINED: Regulations 3 and 4

Regulation 3 defines discrimination on grounds of sexual orientation. It covers both direct and indirect discrimination. This could mean that attempts to restrict access to services, e.g., by means of statements of faith or other statements could amount to indirect discrimination (though it is also possible they might take precedence under the terms of Part 2 of the Equality Act 2006 relating to legally permitted discrimination on grounds of religion and belief).

Regulation 4 makes it clear that regardless of sexual orientation, goods, facilities and services must be provided to the same quality, in the same manner and on the same terms to everyone.

This means that Christian businesses or enterprises that are mainly commercial in nature could run the risk of legal action if they decline to provide services to homosexual people that they make available to the general public. In most cases, of course, Christians will not wish to restrict services in such a way. However, there are certain situations, and especially where the provision of overnight accommodation is concerned, where difficulties could arise. For example: a Christian newspaper could not refuse to accept advertisements from a gay group; Christian printers and wedding photographers would be required to print gay propaganda and cover civil partnership ceremonies. A Christian bed and breakfast or guest house could not restrict double rooms to married couples since under Regulation 3(4) civil partners must be treated equally. However, where the owner of the establishment resides in the property, provided no more than two family rooms are available to the public, discrimination in making the facilities available will remain legal.

EDUCATION: Regulation 7

There is no specific protection for faith schools which are subject to the law in the same way as all schools. Regulation 7 prohibits discrimination in the field of education with particular reference to admissions policy, access to benefits, facilities or services, and exclusions. This is not controversial. However, Regulation 7(c)(iv) makes a very broad “other detriment” provision which, despite denials by Government, is considered by lawyers to suggest that the Regulations will apply to the school curriculum itself.

The influential Parliamentary Joint Committee on Human Rights (JCHR) has urged that it be unlawful for a teacher to state that homosexuality is wrong. Official lawyers advising the Parliamentary Joint Committee on Statutory Instruments indicated that they believe the school curriculum is definitely covered by the Regulations.

INDUCING OTHERS TO DISCRIMINATE: Regulation 11

Regulation 11 makes it unlawful for a person to “instruct”, “cause or attempt to cause”, or “induce or attempt to induce” another to discriminate unlawfully.

Serious concerns have been raised that this could mean that a church minister who delivers orthodox teaching about the incompatibility of homosexual behaviour with Christianity, and who encourages his congregation to avoid activities inconsistent with this teaching could be vulnerable to legal action on grounds instructing, causing, inducing or attempting to cause or induce discrimination on the part of his congregation should any of them be placed in the relevant circumstances.

At the very least, this Regulation is likely to result in a severe chilling effect on all public discussion that includes negative discourse with regard to homosexual behaviour, even if the discussion is in fact lawful.

RELIGIOUS EXCEPTIONS: Regulation 14

Regulation 14 is designed to afford certain exceptions to organisations with religious purposes. However, the exemptions will not apply if an organisation receives public funds or is largely commercial in nature.

Exceptions from the Regulations include: church membership and administration of sacraments; certain functions of church leaders; the management of church premises. The exceptions apply only where “it is necessary to comply with the doctrine of the organisation; or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers”.

Regulation 14(8) is an extremely wide provision which a number of lawyers consider may vitiate all religious exceptions. Religious bodies that are deemed to be public authorities or which operate with public authority contracts will lose all their exceptions under the Regulations. It would appear possible that under the Regulations all the functions of e.g., a church or a denomination could lose the protection of Regulation 14 if it is involved in any contract with a public authority. Accordingly, if a church runs a care home partly supported by local authority contracted funding, its other functions could be subject to the Regulations, including e.g., membership policy.

It should be noted that the Government is currently attempting through concurrent case law to ensure that all care homes for the elderly in receipt of public funds are considered to be public authorities and therefore required to make double rooms available to same-sex couples as a general policy.

ADOPTION AGENCIES: Regulation 15

Regulation 15 requires that following a brief transition period all religious adoption and fostering agencies must be prepared to place children with same-sex couples by the end of 2008.

CHARITABLE EXCEPTIONS: Regulation 18

Regulation 18 provides a special exception for charities which, under their trust deed, exist specifically to provide benefits only to those of a particular sexual orientation. Lawyers believe it is possible that a Christian marriage guidance and counselling charity might succeed in being excluded from the Regulations on the same basis.

———————————————————– PQ MAGAZINE, EAUK, 20 APRIL 2007

The April issue of PQ (Parliamentary Questions), a monthly magazine published by the Public Affairs Department of the Evangelical Alliance of the United Kingdom (EAUK: <http://www.eauk.org/> ), features an article that highlights some of the concerns Christians have regarding the SORs. Most of the text, which is found on page 3, is copied here, however the full text can be found at: <http://www.eauk.org/public-affairs/pqprayerandcampaigns/upload/april07pq-2.pdf> ————————————————————

Equality Act (Sexual Orientation Regulations) 2007 PQ magazine, 20 April 2007

On 21 March the House of Lords voted by 168 to 122 (most Lords abstained in view of the ‘take it or leave it’ statutory instrument) in support of the Government Regulations (SORs). Most religious groups have lamented this decision as a landmark presaging a new era of repressive ideologically-driven legislation which seeks to restrict freedom of conscience and belief and effectively imposes a new morality.

The Government rejected all attempts to introduce a reasonable conscience opt-out clause. The outcome suggests that rather than balancing rights, the right to live a homosexual lifestyle will effectively trump the right to live a Christian lifestyle in public.

Many religious groups will now need to consider the implications of the SORs carefully, take legal advice and reflect on the various legal options open to them. The legislation was not approved without extensive controversy. Despite a record level of responses to the initial Government consultation, the majority of which came from religious groups, there is a wide perception that the balance of concern about the proposed regulations was not reflected in the outcome.

Whilst the Government were keen to persuade religious groups they had nothing to fear from the regulations, it soon became patently obvious that they will seriously impact the religious sector, especially in the public sphere. This was graphically illustrated by the Roman Catholic adoption agencies which recognised they may have no option but to close. In the event, they gained a temporary stay of execution until December 2008.

However, many other religious groups, including churches, who are in receipt of public funding for community based activities are now having to review whether they can continue, or curtail their activities by declining public funding. The Evangelical Alliance issued a statement urging Christians not to withdraw from offering their historic public services wherever possible � at least until they are stopped by the law.

Following other recent controversial developments within the human rights industry, it appears that a hierarchy of rights is emerging, with religion and belief deemed bottom of the pile and subservient � especially to sexual orientation rights.

There seems to be an increasing illiberal trend to enforce the privatisation of faith and to tolerate everything apart from religious belief. This needs to be arrested before we wake up to find that as a consequence Christian contribution has been increasingly withdrawn from the public square. Christian registrars, adoption agencies and other religiously motivated voluntary workers are already disappearing from the public scene. Consequently, the impact for society may be significant, given the substantial levels of voluntary and community work undertaken by religious groups.

While other rights can freely manifest themselves in the public arena, there is evidence of a political agenda to restrict and privatise religious liberty in a way that undermines the protection enshrined by article nine of the European Convention on Human Rights. It increasingly seems to be the case that when there is a clash of rights, it is usually religion and belief that has to make way.

The Evangelical Alliance has published an interim guide to the SORs which is available in abbreviated form on its website with the full version available on request. A notable concern relates to education. Despite Government denials, most lawyers believe that the regulations will effectively impact the school curriculum. This could mean that, for example, a faith school is unable to teach in accordance with its beliefs that homosexual behaviour is wrong, and indeed be required to teach that it is normal.

In the debate in the House of Lords Baroness Andrews appeared to confirm that the curriculum itself may not be covered. But the way in which it is delivered will be covered. This will presumably also apply to common worship. Accordingly, it appears that in any school it will become unlawful to teach as objective truth that homosexual practice is wrong. Conversely, it will not be a requirement for teachers to teach that homosexual behaviour is right. Nevertheless, the consequence of this would seem to be that homosexual behaviour, sex within marriage and heterosexual behaviour outside of marriage will be required to be presented as morally relative or neutral.

There are already projects funded by the Department for Education and Skills suggesting primary schools may be required to use highly controversial books which seek to promote and normalize homosexuality. The Government denies that schools will be forced to use material they don’t like and that parents may still remove their children from sex education lessons if they wish. It seems likely that this whole area could become highly contentious and that governors and teachers will require maximum skill in treading a narrow and precarious path.

The issue of religious freedom will clearly continue to be prominent on the public agenda. Christian groups need to persist in constructive dialogue with the Government urging application of the law in a way which treats all citizens fairly, but which allows Christians to deliver services in a Christian way and exercise fundamental freedoms of conscience and religion and belief. This becomes even more critical as the forthcoming Discrimination Law Review will probably attempt to force religious groups in receipt of public funding to become public bodies (thus losing all protection on grounds of religious liberty) and will seek to outlaw proselytism in the public sphere. END ——

Elizabeth Kendal

“World Evangelical Alliance – Religious Liberty News & Analysis.”

For more information on the World Evangelical Alliance, please see: <http://www.WorldEvangelicalAlliance.com>, For the Religious Liberty Commission of the WEA, see: <http://www.WorldEvangelicalAlliance.com/commissions/rlc.htm>. All WEA RLC material is archived at <http://www.ea.org.au/rlc>.

PRAYER: For those of you who would like more detailed information on situations for prayer and intercession, we recommend that you subscribe to the WEA Religious Liberty Prayer List. Each week a different nation or situation is highlighted. To subscribe, send an empty e-mail to <> with any or no subject.

Advocates International <http://www.advocatesinternational.org> serves as the legal and judicial advisor to the RLC. Advocates International links many Christian lawyers and judges around the world and has been involved in religious liberty issues for many years.

The Religious Liberty News & Analysis mailing list provides reports on the state of religious liberty and persecution around the world with those with a special interest in the field. Most members are involved in church-based religious liberty advocacy, academic research, missions leadership, creative-access missions, religious media, or have prayer networks supporting these groups, although anyone is welcome to join. Postings average one or two per week. Information shared does not necessarily reflect the opinion of World Evangelical Alliance, or of the WEA Religious Liberty Commission.