Proportionality, Equality Laws, and Religion

Conflicts in England, Canada, and the USA

Megan Pearson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317074557
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book considers how the law should manage conflicts between the right of religious freedom and that of non-discrimination on the grounds of sexual orientation. These disputes are often high-profile and frequently receive a lot of media attention and public debate. Starting from the basis that both these rights are valuable and worthy of protection, but that such disputes are often characterised by animosity, it contends that a proportionality analysis provides the best method for resolving these conflicts. The work takes a comparative approach, examining the law in England and Wales, Canada, and the USA and examines four main areas of law, considering how a proportionality approach could be used in each. The book will be an invaluable resource for students and researchers in the areas of Public Law, Human Rights Law, Law and Religion, Discrimination Law, and Comparative Law.

1 Introduction

A florist refuses to serve a customer because it contradicts her Southern Baptist beliefs to use her ‘professional skill to make an arrangement of flowers for use at a same-sex wedding’.¹ A man is refused employment as a Diocesan Youth Officer because the bishop appointing him is concerned that he will not comply with the Church of England’s teachings on sexuality as he is gay, although he confirms he will remain celibate.² A counsellor refuses to provide counselling to a client on the basis that her religion ‘prohibits her from encouraging or supporting same-sex relationships’.³ Such situations, involving conflicts between claims of religious freedom to act in discriminatory ways and the right not to be subjected to sexual orientation discrimination, have arisen in numerous contexts. These include the refusal of some religious organisations to hire out their premises for same-sex weddings, the refusal of some registrars or town clerks to perform marriages or give marriage licences to gay couples and the refusal of some faith-based social welfare organisations to employ gay people, among many others.

This book considers how such conflicts should be addressed in law. In doing so, it uses cases and situations that have arisen in three jurisdictions: the US, Canada, and England and Wales. These disputes raise important but difficult issues. They can cause a great deal of controversy, characterised in some contexts by bitterness and animosity, often accompanied by much public and media interest. The purpose of this text is not to provide a comprehensive description of the law in each jurisdiction. Instead, cases are selected to give examples of situations that have arisen to demonstrate the general approach of each jurisdiction or to contrast different approaches for the resolution of these issues. The legal problem in a basic sense, that of whether and how to reconcile the conflicting rights, has arisen in all three places. In each, the problem has been litigated, leading to a significant amount of case law, in addition to often detailed legislation. Indeed, some of the same situations have arisen in the different jurisdictions, such as the claim of some Catholic adoption agencies not to place children with gay couples or the demand of some owners of bed-and-breakfast accommodation to be permitted not to allow gay couples to stay. Of course though, the broader social and legal context in which these disputes have arisen is not identical.

My argument will be that an approach based on the concept of proportionality is the best way to resolve these conflicts between non-discrimination and freedom of religion. Proportionality in this sense requires the courts to apply a specific test made up of a number of parts. It requires that any interference with the right under examination must have a legitimate aim and a rational connection between the aim and the action taken. The policy selected must be the least restrictive means of achieving the aim and, finally, it must be proportionate overall. Under proportionality, rights do not operate in an all-or-nothing way: rights are not trumps as they are under a Dworkinian model.⁴ Rather, rights are balanced against legitimate public interests or against other rights, with the purpose being to optimise the right to the greatest extent possible. All these aspects will be considered in more detail later, but first it is necessary to consider why this conflict between sexual orientation discrimination and religious freedom matters.

Culture wars

American scholarship was the first to refer to the clash of world views that these conflicts illustrate as amounting to a ‘culture war’ and such a description has become relevant to the other jurisdictions as well, although to a lesser extent.⁵ A culture war involves deep and stark divisions between social groups, whereby ‘moral’ issues become flashpoints for cultural and political disagreements.⁶ In such a culture war, ‘the goal is not to go on living with [the other side] but under a new arrangement. It is somehow to root them out, or subjugate them, so that one does not have to deal with what they stand for anymore.’⁷ The question of gay rights, including non-discrimination laws, same-sex marriage, and broader claims for social recognition, has become part of this culture war and indeed perhaps one of its most contested issues.⁸ An interesting aspect of this situation is that an issue may become highly contested, not necessarily because of its practical importance but because it is symbolically significant or because of fears that it signals the beginning of a slippery slope. Even though the culture war may only involve a small number of participants, even in the US,⁹ the analysis is still pertinent. In all three jurisdictions at issue, disputes over gay rights or religious exemptions have on occasion become ‘high stakes’ issues and a matter of identity politics, where cases and issues can be used ‘not simply, or even primarily, to settle ordinary individual disputes, but rather to pursue social and political causes’.¹⁰

Of course, we should be careful not to overly simplify or misinterpret this controversy. It is very important to remember that there is no straightforward religious/secular divide. There is no intrinsic reason why religious belief should necessarily be discriminatory towards gay people. There are many devoutly religious people who see no conflict between their religious beliefs and a belief that same-sex relationships are as morally worthy as heterosexual ones.¹¹ Some organised religions’ teachings do not argue there is any moral difference between the two, and indeed there are some religious institutions particularly aimed at gay people, such as the Metropolitan Community Churches, as well as groups which campaign for greater inclusiveness in religious organisations, such as Dignity, in the USA, and the Lesbian and Gay Christian Movement, in the UK.¹² Additionally, many religious individuals and organisations would not wish to discriminate in providing services to gay people, for example, regardless of their beliefs or teaching on sexual morality, and therefore do not seek exemptions from equality laws. The number of those who do wish to discriminate in these jurisdictions, by which I mean treat differently those with a non-heterosexual sexual orientation from those with a heterosexual one outside the sphere of intimate relationships, may therefore be small. The number of those with discriminatory views also appears to be decreasing.¹³ Even so, numerous conflicts have arisen and continue to arise and can arouse strong feelings.

The importance of the rights

From a political and social perspective this conflict of rights is therefore a controversial and difficult issue. It also poses problems from a legal and philosophical perspective since it gives rise to a weighty dilemma. Both freedom of religion, which may include the freedom to express and act on discriminatory beliefs, and freedom from discrimination, including on the grounds of sexual orientation, are important rights in a liberal society and represent important underlying values.

Freedom of religion

Numerous reasons have been put forward for the protection of freedom of religion.¹⁴ Whilst many commentators have argued that there is little that is unique about freedom of religion that could not be covered by other rights such as freedom of association, conscience or expression,¹⁵ it is almost universally included in lists of rights both domestically and internationally.¹⁶

Arguments for religious toleration and freedom of religion have a long historical background. Many of the early arguments for religious freedom were based on instrumental considerations. Locke, for example, argued that failure to tolerate religious practices would lead to dissatisfaction and societal disorder.¹⁷ However, while there may be some truth to this at various historical moments, it is not evidently true at present in the jurisdictions discussed here in this context. While there have, of course, been violent conflicts over religious matters, this seems far from likely in relation to the conflict between freedom of religion and non-discrimination rights. In general, too, as Rivers points out, those who are subject to religious oppression tend to be minorities who would not have sufficient power to challenge the state.¹⁸ This merely pragmatic argument is contingent on particular circumstances and does not provide justification when these are not present.

A still instrumental, but less contingent, potential justification is Mill’s argument that religious liberty is more likely than authoritarianism to lead to the discovery of truth because it permits the pursuit of many competing lifestyles, and therefore allows others to assess the success of such ideas.¹⁹ While there may be some value in this idea, it fails to grasp the importance of freedom of religion for individuals and groups who share particular beliefs, since it only focuses on the utilitarian benefits for society as a whole.

A more important and persuasive reason is that religion may be of great importance to people’s lives. Martha Nussbaum argues that it has an important role ‘in people’s search for the ultimate meaning of life; in consoling people for the deaths of loved ones and in helping them face their own mortality; in transmitting moral values; in giving people a sense of community and civic dignity [and] in giving them imaginative and emotional fulfilment’.²⁰ Perhaps because of these benefits, religion can have an ‘identity-generative’²¹ nature: that is, it may be central to a person’s identity and ‘form a core aspect of the individual’s sense of self and purpose in the world.’²² For some, religion is a nomos: ‘a normative universe’ providing its own source of ‘law’, which because of its mixture of a ‘divinely ordained normative corpus, common ritual and strong interpersonal obligations’ may present a ‘potent’ combination.²³ Interferences with religious practices may therefore be experienced as intensely burdensome and disorientating.

Freedom of religion is also part of a broader value of autonomy. In a liberal democracy, there is an important ideal that all should be free to seek their own ultimate convictions without state interference and that they should be able to live in accordance with these convictions, where this is possible and compatible with others’ rights.²⁴ Numerous scholars have argued that seeking such convictions is an intrinsic part of what it means to live a flourishing human life. For example, Maclure and Taylor argue that ‘it is in choosing values, hierarchizing or reconciling them, and in clarifying the projects based on them that human beings manage to structure their existence, to exercise their judgment, and to conduct their life’.²⁵ Nussbaum similarly argues, basing her arguments to some extent on the writings of the seventeenth century writer and theologian Roger Williams, that there should be a ‘special respect for the faculty in human beings with which they search for life’s ultimate meaning’.²⁶ Along the same lines, Plant uses Bernard Williams’ idea of ‘ground projects’ to point to the importance of such a capacity, arguing that people have ‘beliefs that give a sense of meaning and significance to their lives and that may indeed give them the best reasons they have for wanting to live at all.’²⁷ This last set of arguments have at their core a sense that the opportunity to develop and maintain beliefs is valuable, and indeed part of what it is to be human.

Preserving autonomy does not merely require that people should be free to develop their beliefs, but also requires some scope to live in accordance with them. Religions t...