Thursday, 14 July 2011

Equality Commission outrages gays and humanists

Earlier this week, the Equalities and Human Rights Commission dropped a quiet bombshell. Four cases of religious discrimination brought by Christians backed by the hardline Christian Institute and rejected by British courts as worthless were going to be heard in Strasbourg, and the EHCR intended to "intervene" in their support. The cases include those of Lilian Ladele, the registrar who refused to officiate at civil partnership ceremonies; Gary MacFarlane, the Relate counsellor who preferred not to counsel gay couples; and Nadia Eweida, the BA check-in clerk who was told she couldn't wear a cross at work.

That some such move was on the cards might have been suspected after Trevor Phillips, the EHCR head, gave an interview to the Telegraph a couple of weeks ago in which he announced - to the loud indignation of the British Humanist Association, among others - that "our business is defending the believer". The BHA, the National Secular Society and Stonewall nevertheless reacted this week with something approaching stunned disbelief.

Gay activist Patrick Strudwick sounded like a man who had just been bitten by his own pet dog:

The EHRC... has switched colours, and what an extraordinary switch that is. To refuse to work with gay people is ipso facto discrimination, however you attempt to justify it. Yet now the commission will champion the discriminators. It will champion those who choose their minority status – people of faith – over those with no choice over theirs – gay people.

While the BHA's Andrew Copson feared that the Commission was lending its influential backing to

a sustained attempt to weave a victim narrative in defiance of the facts and the construction of this narrative looks like a deliberate agenda to stir up support for a re-Christianisation of our public spaces as a reaction to feelings of persecution.

The tone of the EHRC's statement would seem to lend weight to gay and humanist fears. It explains that

If given leave to intervene, the Commission will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.

It will say that the courts have set the bar too high for someone to prove that they have been discriminated against because of their religion or belief; and that it is possible to accommodate expression of religion alongside the rights of people who are not religious and the needs of businesses...

In other words, it will use its influence as a statutory regulatory body to try to persuade the European Court of Human Rights to overturn a growing body of case law that has been developed since the concept of "religious discrimination" was introduced here. British judges have made a point of interpreting the law quite narrowly. In the MacFarlane case, Lord Justice Laws drew a sharp distinction between protecting the believer as an individual from discrimination and protecting the substance of a particular belief. Here's part of what Laws said:

The common law and ECHR 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.

Laws went on to describe as "deeply unprincipled" the notion that the law should give protection to particular moral positions "on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture." This would be to "give effect to the force of subjective opinion". Indeed, he claimed, if such a concession were granted we should be "on the way to a theocracy" in which non-believers found themselves "out in the cold."

It is this principle that the EHRC has set its face against, preferring the argument put forward by the Evangelical Alliance (which has been lobbying the Commission for several years) that there should be a principle of "reasonable accommodation". That of course begs the obvious question of why it should be "reasonable" for a woman who believes that God opposes gay marriage to refuse to officiate at a civil partnership ceremony that is (1) not the same as marriage and (2) has no religious content whatsoever. As a Christian, should she not - if she is being consistent - refuse to countenance non-religious unions at all?

Especially worrying, perhaps, is the EHRC's assertion that it's simply trying to help people avoid costly legal battles:

The Commission thinks there is a need for clearer legal principles to help the courts consider what is and what is not justifiable in religion or belief cases, which will help to resolve differences without resorting to legal action.

Of course, cases like that of Lillian Ladele serve no-one's interest than lawyers'. But the Court of Appeal ruled in the clearest terms that she had no valid claim. Is the EHRC saying that employers should simply give in to unreasonable, bogus claims of discrimination just so as to avoid the courts? Or that the firm legal principles laid down by Laws LJ and other judges who have made similar decisions should be set aside in favour of its own imprecise notion of "reasonable accommodation" because this would cause less hassle? Such a policy would amount to little more than acquiescence in blackmail, and the result would not be "reasonable accommodation" but unreasonable privileges being accorded to those with the self-righteousness and sense of entitlement to kick up a fuss.

But this is to get into fine details and, perhaps, to miss the bigger picture. What lies behind the Commission's apparent volte face and what lessons might be drawn from it?

The EHRC's main job is to oversee, regulate and promote the burgeoning equality and diversity industry in the UK, a vital task for which it receives substantial amounts of public money. Around £60 million a year, in fact. Like all bureaucracies, it exists primarily to extend its own power and reach. Tasked with tackling race, gender, disability and various other discriminations, it has hitherto rather neglected the religious part of its remit. At least, Trevor Phillips seems to think so.

In the shiny, happy world of equalities quangoes, discrimination is "not a zero sum game"; there is no need for the right of gay people to receive public services to conflict with the right of fundamentalist Christians (or Muslims) to refuse to provide them, so long as the bigots concerned are working for the government rather than, like the owners of a Cornish guesthouse, for themselves. In the real world, however, rights do conflict. And certainly groups representing aggrieved rights-holders (real or imagined) are at each other's throats, for the moral high-ground and for the attention of the EHRC with its generous funding, official status and quasi-judicial functions.

The EHRC has a statutory duty to intervene in support of its understanding of equality and anti-discrimination. It does not, though, have a statutory duty to be "politically correct", however it might have behaved in the past. It might seem obvious to the likes of Patrick Strudwick that its proper role involves supporting gay "victims" and ignoring Christian ones, or to Andrew Copson that its proper role lies in promoting secular pluralism and opposing religious privilege. But that is not its job.

Evangelical Christians claiming that they have been discriminated against have just as much right to its offices as do gay rights activists. They are citizens, and taxpayers, too. The political process has also become increasingly sensitive to religious concerns, from Tony Blair's obsession with inter-religious dialogue to the Big Society's stress on encouraging faith-based initiatives. Recent talk of "Blue Labour" suggests that pro-faith politics remains a bi-partisan obsession.

It is only to be expected that the EHRC, anxious to assure politicians of its continuing relevance in an era of cutbacks and quango-culls, should respond to such a climate by looking with increasing sympathy on its religious clients. That's where the action is. Apart from anything else, gay rights are a bit old hat.

So to those condemning the EHRC's change of heart this week I say this: The bureaucracy is not your friend. Why did you ever imagine that it was?