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Peter Smith: The next step in equality --- Protecting the freedom to differ

Smith PeterPeter Smith is a lawyer who works in central London. He has previously worked in Parliament, for Edward Leigh MP.

The move to bar direct and indirect forms of discrimination over the past 50 years has been, to a great degree, welcome progress. Without doubt it is perniciously unfair to discriminate against people on grounds of their race, and the same is largely true of discrimination because of sex, age or disability (although valid qualifications exist, such as the current ban on women in the infantry, which may yet change).

What has become apparent, however, is that when it comes to sexual orientation, many people consider homosexual acts to be morally wrong. I accept this is a blunt statement for many reasons, but the essence of this view stems from a wider understanding of the magnificence of heterosexual acts in the promises of lifelong marriage, complementarity between the sexes, and the creation and nurturing of new human life. For many people, such views stem from orthodox religious beliefs, and they may be mediated through appeals to historical tradition, reason, nature, and experience.

Yet how is the dynamic of equality represented in same-sex marriage to fare when it clashes with mainstream Christian, Muslim and Jewish views on human sexuality? Where does the equality agenda go now?

The Government has now published its draft bill creating same-sex marriage. It runs to 52 or so pages of law, and, starting with the Submission of the Clergy Act 1533, changes dozens of previous Acts of Parliament. No matter how much opposition the Government faces, not least from Tory backbenchers, the legal creation of same-sex marriage is likely to happen soon in roughly the form proposed. This will profoundly change the British conception of marriage and impact European and wider international understandings of that institution too.

Incremental steps have taken the state well away from active opposition to homosexuality – think Wolfenden, decriminalisation, section 28 Local Government Act 1988. In fact, the boot is now very much on the other foot today. The state uses criminal sanctions to arrest street preachers like Dale McAlpine (who, when asked by a gay PCSO, said, “the Bible says homosexuality is a sin”) and civil sanctions to support the dismissal of Lillian Ladele, the civil marriage registrar sacked by Islington Borough Council when she asked to be excused presiding at civil partnerships, despite no gay couple suffering discrimination.

The state has moved from opposing homosexuality through positions of tolerance and then neutrality, to preferring actively the legal protections afforded to gay people, turning equalities legislation from a protective shield and into a sword that cuts down any dissenter who speaks against the state-sponsored norms.

Peter Tatchell recognises that the balance between equalities legislation and free speech has been misdrawn, in his campaign for the removal of ‘insults’ from section 5 Public Order Act and his corresponding support for the free speech of those who respectfully voice a different view on the moral meaning of sex.

Protecting free speech is one thing; what about taking actions as a result of sincerely-held beliefs? To balance equality legislation with orthodox Christian views on homosexuality, for instance, a space for conscientious objection in the workplace needs to be carved out.

In the Ladele case, her supporters hoped that her views – which led her quietly to request that she was not designated a civil partnership registrar, and for the departmental work schedule to be rejigged so she could cover the load born by other registrars instead – would lead to a reasonable accommodation of her beliefs by the council.

However, the council decided to crush her request, and her job. She ended up claiming that the council breached her human right to religious freedom, as protected by Article 9 of the European Convention on Human Rights. As the European Court of Human Rights said in its judgment on her case:

[T]he aim pursued by the local authority was to provide a service which was not merely effective in terms of practicality and efficiency, but also one which complied with the overarching policy of being an ‘employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others.’… Against this background, it is evident that the aim pursued by the local authority was legitimate.

In other words, the ECtHR approves of Islington’s approach to gay rights, which brooks no dissent: you can be sacked if you undermine the ‘holistic commitment’ to equal rights, even if this means no real discrimination.

This is highly relevant to the same-sex marriage debate. On Tuesday, Edward Leigh MP spoke in favour of his 10 minute rule bill which aims to amend the Equality Act 2010 to include a person’s conscientious beliefs about the definition of marriage.

Leigh was prompted to act after the case of Adrian Smith, a 55-year-old housing manager from Manchester who posted his opposition to same-sex marriage on Facebook and was punished by his employer. Trafford Housing Trust demoted Mr Smith from his managerial position, cut his salary by 40 per cent and gave him a final warning after reading Mr Smith’s post describing gay marriage as “an equality too far”, despite the comments being private and blocked from public view. The Trust had justified their actions on the grounds that Mr Smith had broken their code of conduct by “expressing religious or political views which might upset co-workers.”

Mr Smith won his claim for unfair demotion and breach of contract caused by the loss in pay, but was refused reinstatement at the Trust. As Mr Justice Briggs said in judgment at the High Court, “Mr Smith was taken to task for doing nothing wrong, suspended and subjected to a disciplinary procedure which wrongly found him guilty of gross misconduct.”

Leigh worries that public servants will suffer discrimination like Mr Smith, and be treated as outcasts for refusing to promote gay marriage if it becomes law later this year. As he told the Daily Telegraph,

"If the Government is successful in redefining marriage, then there are hundreds of thousands of teachers, parents, foster carers, or even hospital and army chaplains who could find themselves being disciplined for their beliefs, just as Adrian Smith was. To think otherwise is out of touch with reality. If the Government is serious about protecting those who back the current definition of marriage from being marginalised for their beliefs then it must act immediately to change the Equality Act. If it does not then it will open the door to Christians, Muslims, Jews – and anyone else with a conscientious objection – being disciplined, demoted or even sacked for backing the current definition of marriage".

Leigh came to this view after reading the legal opinion of Adrian O’Neil QC, an expert on EU and human rights law, who concluded that the Government’s proposals to ban the Church of England from conducting same-sex marriages is “eminently challengeable from a human rights perspective and may well not stand up to scrutiny.” A senior civil servant at the Department of Education also recently admitted that reassurances by Michael Gove, regarding the conscientious protection of teachers who hold traditional views on marriage, were not cast-iron: the UK was not “in control” of the matter, and the final decision might “inevitably” be taken by the European Court in Strasbourg. As Leigh says:

"The Government might think that any legislation it introduces is bomb proof, but the reality is the UK has a very poor record when tested in the European Courts. According to the Equality and Human Rights Commission, during the period from 1966 – when the UK opted in to the jurisdiction of the ECHR – up to and including 2010, there were 443 judgments relating to the UK. In 217 of those cases the ECHR found that the UK had breached the Convention. Given the Government’s poor track record of winning in Europe, it would be the height of arrogance to think any legislation will not end up before the European Court, where it stands a good chance of being ruled against".

English law historically liked nice fudges where someone like Ladele could quietly go about her way as a civil marriage registrar, and a truly liberal state would seek to tolerate the views of sizeable minority – even, it may be said, a slim majority – of Britons who, for well-founded reasons, are opposed to the legal creation of same-sex marriages. The Leigh Bill has passed its preliminary stage by 86 votes to 31. Perhaps, in a few years’ time, it will be considered an important step in the move towards a state that tolerates and meaningfully respects sincere Christian views in the public square.

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