Faith and Freedom
In a debate that has lasted several years, one of my colleagues and I have been at odds on the case of Lillian Ladele, the Islington registrar who refused to conduct civil partnership ceremonies.
Readers will recall that Ms Ladele's brand of Christianity holds that gay relationships are sinful. She felt that to perform civil partnerships would be to condone (as she saw it) immoral behaviour. Civil partnerships had not existed when she began her employment as a registrar. The Tribunal found that Islington could have rearranged registrars' duties - without any impact on the service to the public - so that Ms Ladele would not have had to perform civil partnership ceremonies. No gay couple coming to celebrate their partnership would know any different. Nevertheless, the Court of Appeal held that Islington, in fulfilling its objective of removing unlawful discrimination from its workplace, was objectively justified in requiring Ms Ladele to conduct civil partnerships.
The difficulty, of course, with Ms Ladele's case is: who is the victim?
As readers cannot have missed, the ECHR gave judgment recently on four cases brought by British Christians including Ms Ladele involving their "right" (as they saw it) of manifesting their beliefs at work. One, Natalie Eweida, won her claim. The ECHR considered that Article 9 (freedom of religion) entitled her to wear a small and discreet cross over her uniform as a British Airways check in assistant. BA has since changed its policy to permit such items. Ms Ladele and the other two claimants lost.
Much has been written about these judgments. Some have hailed them as evidence of the flowing tide of secularism. Others see it as evidence that a European-driven Human Rights Machine works only in favour of "liberal" causes and individuals.
But these commentators are fighting yesterday's culture war. Parliament and the EU, representing (however imperfectly) the moral consensus of society, have decided that to treat people less favourably in the workplace (or in the provision of goods and services) because they're gay is to be unlawful. Particular religions or particular religious people may feel their conscience compels them otherwise - but logically they will then need to face the sanction of the secular state. Pending a withdrawal from the EU (and its anti-discrimination directives), that legal position is not going to change.
So that's not really what interests me.
Ms Ladele's case raises a different point: what is the point of anti-discrimination law?
Is it to change attitudes? Or is it to stop people suffering discrimination? Put another way, does the law police the six inches inside the skull or the world outside? Most of us would, I think, say the latter. People who have not suffered discrimination themselves do not in general have a right to bring a claim against an individual who may hold a belief they dislike. Simply, I cannot sue someone just for being a member of the British National Party.
The problem is that Ms Ladele's case, on its facts, looks like a victimless crime. Surely freedom of expression can extend that much?
For the avoidance of doubt (as we lawyers like to say), I think Ms Ladele's views are wrong. However, freedom of speech is as hard won as any anti-discrimination laws, and we should be as vigilant in protecting it.