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Sexual Minority Rights and ‘Religious Clauses’ of Conscience: The UK Case

Sexual Minority Rights and ‘Religious Clauses’ of Conscience: The UK Case

0 Comments 🕔08.May 2014

This article is part of our Over the European Rainbow feature.

Cardinal Cormac Murphy-O’Connor. Credit: Mazur/www.catholicnews.org.uk

by Stephen Hunt

The ethos of equality and liberation from discrimination based on the foundation of sexual orientation and gender identity are affirmed in the legislative, judicial, and institutional systems of the European Union and the Council of Europe. However, the rights and advancements of sexual minority citizens vary significantly between European nations. In many regards, gay, lesbian, bisexual, transgender, and queer (LGBTQ) rights in the United Kingdom (UK) have dragged behind other European countries and have been instituted largely piecemeal in the form of legislative enactments for almost a decade, at least until the Equality Acts of 2006 and 2010.

The far-reaching 2010 Equality Act brought the UK into line with principal Equal Treatment Directives (2008) and some 15 other directives advanced by the European Community that addressed, among other matters, equal treatment in employment and occupation. Member states were encouraged by the EU to “introduce or maintain more protective provisions than the minimum requirements provided for in the Directive, as well as positive discrimination measures aimed at compensating for disadvantages in respect of religion or belief, age, disability or sexual orientation.” Section 149 of the Equality 2010 Act thus instructs public bodies to eliminate discrimination, harassment and victimization in employment and administration and further equality of opportunity between people who share a relevant ‘protected characteristic’: age, race, disability, religion, and belief, as well as gender, transgender, and sexual orientation. Previous to the 2006 and 2010 Equality Acts sexual minority rights enacted under the Labour government of the time dovetailed with the administration’s social inclusion and equality of opportunity policies. Entailed here were rights to civil unions (the Civil Partnership Act (2004); laws pertaining to property and parental rights of sexual minorities (the Adoption and Children Act (2002); the Gender Recognition Act (2004) addressing gender reassignment; and the Employment Equality Regulations (2003).

Perhaps predictably, the history of opposition to such legislation has come from the more conservative directed religious groups, particularly those from the dominant faith, namely Christianity – raising critical issues in relation to religious liberties of conscience and where this conflicted with sexual rights. Certainly the more mainstream churches in the UK have shifted ground and now largely endorse the rights of LGBTQ people even if many opposed civil unions and the prospect of same-sex marriage. This attitudinal sea-change throughout the major denominations is arguably a result of an attempt to furnish a measure of propriety, ensuring that they are not unduly caught up in political controversies and legal complexities. Typical is the stance taken by the Catholic Church in England and Wales (CCEW). The CCEW welcomed the 2010 Equality Act in advancing law against discrimination and that this enactment was consistent with Catholic doctrines around social justice. Similarly, the Methodist Church, the Baptist Union, and United Reformed Church’s Joint Briefing in response to the 2010 Equality Act was one that emphasized the compatibility of rights with Christian teachings.

The challenge of more conservative-minded Christian politicians over the matter of sexual rights has proved largely ineffectual and can be accounted for by their relatively small number and political strength. There exists an official all-party Christian group, Christians in Parliament (CiP). Its membership remains entirely voluntary and does not claim to represent all self-identifying as Christian. A possible indication of Christian strength in Parliament was that in 2010, the year of the new Equality Act, the number of MPs in the House of Commons who might potentially vote on the basis of conventional Christian ‘moral’ issues seemed significant. On May 10, the Westminster 2010 Declaration of Christian Conscience (DCC), claiming signatories from a range of denominations, Christian professional organizations, lobbyist groups, and Christian leaders, issued a press release claiming that of 491 MPs who were standing for re-election in 2010, 32 percent could be categorized as supportive of traditional Christian conscience issues that potentially could oppose ‘progressive’ legislation such as sexual minority rights. Yet this did not constitute a sizeable conservative “religious bloc” comparable to a century ago or the Christian Right in USA Congressional politics able to significantly influence voting patterns reflecting traditional ‘moral’ concerns around abortion, homosexuality (mostly), and “family issues” such as divorce.  Nonetheless, a cadre of Christians of a more conservative disposition in Parliament was among those who opposed particular sections of the 2010 Equality Bill, sometimes tabling amendments around LGBTQ rights. The nature of the amendments has varied, but many fall back on so-called (in effect Christian) ‘conscience clauses’ – that opposing LGBTQ rights was a matter of religious liberty of conscience. In a sense there was nothing new here. Historically, UK legislation related to various issues has been peppered with ‘conscience clauses’, where religion has been regarded a special case when laws have carried a ‘moral’ dimension.

“Evangelicals without Pride” (UK, July 3, 2010)

Especially over the past decade, Conservative Christians have been galvanized into action around LGBTQ rights and they have more broadly adopted various tactics of opposition, mostly from a position of weakness, which do not necessarily appear to be matters of religious conscience even if this remains the principal guiding force. For instance, initial opposition at the Bill stage of the Civil Partnership Act (2004) confirming the rights of same-sex couples identical to opposite-sex civil marriage included an amendment proposed by the Conservative Party peer Baroness O’Cathain (a Christian renowned for supporting traditional family values). The amendment called for the Bill to be extended to cover all carers and family members living in the same property, amounting to an attempt to make the context vastly different from intended, and in effect wreck the Bill.

The weakness of conservative Christian voices in Parliament is also indicated by tendencies to solicit inter-faith ecumenical support. This was, for example, evident in objections to lowering the age of homosexual consent in line with heterosexual consent from 18 to 16 in 2000.[1] In a letter to a leading national newspaper, The Daily Telegraph (November 30, 2010), religious leaders lobbied the Labour government to reconsider. Among the 17 signatories were not only the former Archbishop of Canterbury, George Carey, and Cormac Murphy-O’Connor, head of the Roman Catholic Church in England, but the secretary general of the Muslim Council of Great Britain. The letter stressed strong ‘moral’ objections to the lowering of the age of homosexual consent: that it brought alleged health risks, and ran counter to “the beliefs of many religious people – Christians, Jews, Muslims, Hindus,” and that the legislation was contrary to public opinion.

Earlier, the Employment Equality (sexual orientation) Regulations (2003) carried a clause late in the passage of the legislation allowing “a requirement related to sexual orientation” to be imposed when employment is “for the purposes of an organised religion.” A significant landmark legal case in 2007 related to the Regulations centered around Anthony Priddis, the Bishop of Hereford, who faced a breach of employment practice by unlawfully discriminating on grounds of sexual orientation. The case concerned John Reaney, a professional youth worker, who applied for a post in the diocese of Hereford and confessed to being a gay man in his application, although not at the time in a same-sex relationship. Reaney complained of unlawfully discrimination on the grounds of his sexual orientation and took his case, supported by the UK’s second-largest trade union Amicus, to an employment tribunal. The tribunal ruled that churches could insist that a youth worker should adhere to their doctrines on marriage and celibacy.[2]

Another example was the Gender Recognition Act 2004, which allowed transsexual people to change their legal gender, and made it unlawful to discriminate against or harass a transsexual person when providing goods or services, while an employer (including their employees) was obliged to avoid discrimination or treat them less equally. The legislation, in addition, afforded a full recognition of a transsexual person’s acquired sex in law for all purposes, including marriage. Nonetheless, under pressure from the Church of England in particular, a ‘religious clause’ in the Act allowed exception of a right of conscience for the Church’s clergy, who are normally permitted to marry any two people by law, to refuse to marry a transgendered individual. Two years later, ‘religious clauses’ of the 2006 Equality Act permitted restriction of provisions of goods, facilities or services by a Christian minister performing duties on the grounds of religious conscience ([Regulations 14, 4 (c)]) (a Christian minister can refuse provisions to sexual minority people on church premises).

In another instance, several members of the House of Lords (most notably those numbered among the 26 ‘Lords Spiritual’) articulated unease regarding the Labour administration’s proposed “incitement to homophobic hatred” offence contained in the Criminal Justice and Immigration Bill (Act in 2009). Typifying concerns was the speech made by the Bishop of Manchester who informed the Lords that in his opinion: “The churches are concerned that the offence should clearly exclude from its scope the expression of traditional Christian teaching about human sexuality, marriage and the family, and consequent criticism of particular forms of behaviour or lifestyle.”

Conservative Christians were particularly galvanized in the fear that the 2010 Equality Act would mean narrowing existing law so as to curtail exemptions from employment discrimination legislation to which some religious organizations were entitled. Religious-based organizations constituted a major earlier exception to the prohibition of sexual orientation discrimination in refusing to employ persons with characteristics incompatible with their doctrines and/or that would offend “a significant number of (their) followers,” but this related only to official religious functional roles. The House of Lords also generated a measure of opposition to the 2010 Equality Act. More conservative-minded Christian Lords sought to oppose the legislation at the Bill stage in regard to sexual minority rights. A small number of Catholic Bishops in England and Wales were concerned they could be prosecuted under the 2010 Act for refusing to allow gay men and transsexual people into the priesthood, as well as women and married men.

The passage of the 2010 Equality Bill attracted additional controversies around ‘religious clauses’ issues, leading to a number of objections in the form of amendments. This included two amendments tabled by Baroness Butler-Sloss, the country’s highest-ranking female judge and practicing Anglican, to the give the right to ‘conscientious objections’ to sexual equality measures. The amendments related to allowing employees the right not to be “complicit with an action or circumstance,” which went against their beliefs on homosexuality.[3] The amendments lacked support and were withdrawn. However, as the Bill reached the Lords the Labour government was defeated over its plans to force churches to hire homosexuals and transsexuals. Peers voted 216 to 178 in favor of Baroness O’Cathain’s (a Conservative Peer and Anglican) amendment (supported by Conservative Party front benches) to keep the earlier law unchanged. Defeat meant no change to previous law permitting churches and other faith-based employers to protect their ethos by insisting staff live consistently with their religion’s doctrine on sexual behavior.

Although the government defeat arose from organized lobbying by the Church of England bishops in the House of Lords, only eight bishops were present and one vote was carried against the government by five. This suggested that the bishops by no means constituted a united bloc of opinion, but nonetheless proved to be pivotal in inflicting the government’s defeat. Many Lords had, however, received briefing in support of amendments 98, 99, and 100 from the Church of England and the Roman Catholic Church. A letter pleading specifically for support for these amendments had been sent beforehand to the government signed by numerous religious groups, including the Hindu Council UK, Sikhs in England, the Jain Network, the Muslim Council of Great Britain, the Fellowship of Independent Evangelical Churches (representing conservative Evangelicals), and many other Christian groups.

Gender reassignment is a ‘protected characteristic’ under the Equality Act 2010, attempting to bring security from all types of discrimination. For the purposes of the Act a person has the protected characteristic of gender assignment if that person “is proposing to undergo, is undergoing or has undergone a process (or part of a process) for purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” The amendments to the Equality Bill in Parliament (Part 6 of Schedule 3) included those advanced by the Anglican Bishop of Winchester regarding gender reassignment and marriage and how the Equality Act would undermine earlier Acts related to regulating marriage and its dissolving. These were accepted by the government, making it clear the Bill would preserve the current position in discrimination law and would not interfere with changes made to the Marriage Act 1949 by the Gender Recognition Act 2004.

Civil partnerships proved a related contentious issue raised by the 2010 Equality Act, as had the earlier Civil Partnership Act (2004), which includedcivil partners’ entitlement to the same property rights as married opposite-sex couples, same exemption as married couples on inheritance tax, social security, and pension benefits,  the ability to obtain parental responsibility for a partner’s children, as well as responsibility for reasonable maintenance of one’s partner and their children, tenancy rights, full life insurance recognition, and next-of-kin rights in hospitals. While the Act was opposed by conservative Christian lobbyist groups, the mainstream churches were concerned with the need to differentiate such partnerships with traditional marriage and some of the legal complexities entailed (although many churches regarded the legality of civil partnerships to be in line with Christian social justice), the major objection by the greater number of Christian denominations was the prospect of conducting civil partnership on religious premises. Although the prospect was never realized in the resultant legislation, the concession in the 2004 Act to some religious groups was to permit them to conduct civil partnerships to include religious readings, music or symbols, and for ceremonies to take place in religious venues if they so wished.

The Church of England opposed the proposal by the government through the 2010 Equality Bill to permit the conduct of civil partnerships on religious premises (thus amending the Civil Partnership Act (2004)). In general, the fear by conservative Christians was that the proposal constituted a slippery slope toward the legalization of gay marriages and that such marriages would be able to take place on church premises. Indeed, the latest controversy around sexual rights in the UK is in respect of same-sex marriage. Legislation allowing such marriage was passed by Parliament in July 2013 and came into force in March 2010 in England and Wales (legislation to permit same-sex marriage in Scotland was passed by the Scottish Parliament in February 2014; the Northern Ireland Executive has stated that it does not intend to introduce legislation allowing same-sex marriage in Northern Ireland, which it noted for its higher levels of religiosity). The largest Christian denominations have been wholly opposed to the legalization of same-sex marriages. This time the Conservative/Liberal coalition government generated an opt-out clause of its own: that Christian churches would not be obliged to conduct same-sex marriages on their own premises.

Despite the UK arguably becoming a post-Christian society, recent successive governments have continuingly sought a balancing act between sexual rights and religious liberties in the form of religious ‘clauses’ and ‘exceptions’. From one perspective such a stance might appear to be a much predictable traditional British compromise, but this approach is not unique to the UK and is now played out across the European Union. Besides ‘religious’ clauses in legislation related to ‘moral’, essentially religious conscience, the indication is that religion amounts to some kind of ‘special case’ enshrined and protected with its own unique liberties. In turn, this raises crucial questions as to when one liberty (sexual rights) can be trumped by another (religious rights). It is a question unlikely to go away in the near future.

Stephen Hunt is Associate Professor in the Department of Health & Applied Social Sciences, the University of the West of England, Bristol, UK. His academic interest lies in contemporary Christianity with a current specific interest in religion and sexuality.

 

This article is part of our Over the European Rainbow feature.


[1] The opposition came under the leadership of Iain Duncan Smith, the first Roman Catholic to serve as Conservative Party leader and known for his strong views on conventional family life. As party leader, Duncan Smith imposed a three-line whip against the Adoption and Children Bill before its enactment in 2002, including the legality of child adoption by gay couples.
[2] Employment Tribunals between Claimant Mr John George Reaney and Respondent Hereford Diocesan Board of Finance Judgment of the Employment Tribunal, case no: 1602844/2006. However, the court reprimanded Bishop Priddis and required him to undertake gender-awareness training.

 

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