A marriage counsellor in Britain refused to offer sex therapy to same-sex couples. He was sacked. The High Court in April 2010 rejected his appeal.
His case illustrates a common misbelief about the principle of freedom of religion: that this freedom allows a person to exempt himself from his obligations under the law on the ground of his deeply-held religious beliefs. An extension of this belief goes even further: that if enough people disagree with the law in the same manner, on religious grounds, the law can be disregarded altogether as a matter of policy.
We see this in Singapore, for example, justifying censorship of gay representation, justifying the demonisation of gay people in sex education programs, even when our constitution (i.e. the highest law of the land) guarantees equality.
Few religiously-motivated people would articulate it quite like I did in the second paragraph because it does not look like a defensible position, but when you watch what they set about doing whenever law conflicts with their beliefs, you will see that they are in fact working on that premise.
The ruling handed down on 29 April 2010 in the English court set the matter straight. It stressed that while one is free to hold and express one’s beliefs, the law cannot offer any protection to the substance or content of those beliefs, simply because they are religious.
The case was McFarlane v Relate Avon Limited.
Relate Avon Limited provided relationship counselling services, subscribing to a code of ethics which requires therapists to “avoid discrimination…. on grounds of … sexual orientation”.
Gary McFarlane, 48 and a father of two, entered into a contract of employment with Relate Avon in 2003, expressly signing up to the employers’ equal opportunities policy. At some point, he sought to be exempted from any obligation to work with same-sex couples whenever issues of psycho-sexual therapy were involved. Relate Avon’s General Manager refused this request. Further discussion ensued, at the end of which McFarlane agreed to abide by company policy. Despite that, it soon became obvious that he still had no intention of counselling same-sex couples on sexual matters, and was subsequently dismissed.
He then appealed to a civil court, an appeal supported by a witness statement from Lord Carey, a former Archbishop of Canterbury.
Carey, in his letter, said he wished “to dispute the manifestation of the Christian faith in relation to same sex unions is ‘discriminatory’ and contrary to the legitimate objectives of a public body.”
He warned that it would be “but a short step from the dismissal of a sincere Christian from employment to a ‘religious bar’ to any employment by Christians.” Finally, he called for the establishment of a specialist “Panel of Judges” designated to hear cases engaging religious rights. “Such Judges should have a proven sensitivity and understanding of religious issues…”
In effect, the former archbishop called for special consideration of religious sentiments with a view to qualifying the law on this basis. And a special state body tasked to do that.
The appeal judge would have none of it. He ruled that:
There is an important distinction to be 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. The common law and [European Court of Human Rights Article 9] offer vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs. And so they should. By contrast they 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. These are twin conditions of a free society.
The first of these conditions is largely uncontentious. I should say a little more, however, about the second. The general law may of course 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. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty. … But 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. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence….
The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. 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. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.
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Law has many levels that can be put into an hierarchy. Most commonly we see only statutory law, i.e. laws passed by Parliament. But above that, there is constitutional law, which embodies certain guarantees essential to a free society. Singapore’s constitution includes an equality provision (Article 12).
Statutory law must necessarily be subordinate to constitutional law. Administrative policy must necessarily be subordinate to both.
Yet, in Singapore too, we see some religious believers here making similar demands as Gary McFarlane: for their sensitivities to set the boundaries for service providers.
In particular, I refer to the education service and its obligation to provide sex education to schoolchildren. To what extent have religious demands compelled our educators to abandon their duty of care (and non-discrimination) to schoolgoers, and by extension, to society overall, since all members of society (including gay and liberal-minded persons) have a stake in the output of our schools?
I also refer to censors. To what extent have they allowed religious beliefs to undercut their duty to provide a non-discriminatory playing field?
The censors may argue that Article 14 of our constitution (Freedom of speech, assembly and association) is qualified by 14(2)(a) which says that Parliament may make “such restrictions as it considers necessary or expedient in the interest of… morality” to freedom of speech.
However, is gay representation a matter of morality? It may be so according to the beliefs of certain religions, but as the English judge said, precisely because it is no more than religiously-based, it cannot have impact on state policy.
In other words, the censors cannot rely on the “morality” qualification to justify censoring gay content per current policy. The Equality provision in our constitution forbids censoring gay content in any manner stricter than heterosexual content.
At first sight, readers may wonder why this is a discussion about law when it appears to be a private dispute between an employee and his employer.
It is a matter of law because a contract of employment is involved, thus contract law. Additionally, Britain has passed a series of laws ensuring non-discrimination against gay, lesbian and transgender people — these laws have recently been brought together under the Equality Act 2010 — which oblige service providers such as Relate Avon Limited to act in a non-discriminatory fashion.
Finally, there is Section 377A, the law that criminalises homosex between males. When is our government going to see the illegality of their position and repeal the law?
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Yawning Bread wishes to thank a reader (who wants to remain anonymous) for sending him this judgement.
Readers who feel up to reading legal judgements can download McFarlane v Relate Avon Limited here.