Thursday, February 04, 2010

That ad limina Speech: The Pope and Equality

The speech of Pope Benedict XVI to the Roman Catholic Bishops of England and Wales on their ad limina visit to Rome has aroused a lot of comment.

Unfortunately, the critical headlines in the United Kingdom focused on one part of his speech which commented adversely on the Government`s Equality Bill:

"Your country is well known for its firm commitment to equality of opportunity for all members of society. Yet as you have rightly pointed out, the effect of some of the legislation designed to achieve this goal has been to impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs. In some respects it actually violates the natural law upon which the equality of all human beings is grounded and by which it is guaranteed.... Continue to insist upon your right to participate in national debate through respectful dialogue with other elements in society.... [W]hen so many of the population claim to be Christian, how could anyone dispute the Gospel’s right to be heard?"

The critics have spun it to attack him unjustly and unfairly. The aim is of course to portray him as some kind of old Neanderthal prejudiced bigot similar to Alf Garnett or Archie Bunker. And as a (pseudo) justification to protest against the Pope`s visit to the United Kingdom in September of this year. As if they really needed a valid justification to protest. The protests will give them great publicity which they would not otherwise have had.

More learned commentators have leaped to the Pope`s defence on this matter and from all viewpoints. Rather than being out on a limb, it would appear that the Pope`s viewpoint is shared by many people of all backgrounds and opinion

See for example:

If one looks at the House of Lords Debates on the Bill, one can see that the Anglican Establishment (with many of the Anglican Bishops) turned out to speak and vote against the government`s proposals in the Equality Bill.

One debate was on a clause attempting to define religious workers – in order to exempt them from the anti-discrimination law – would have caused serious problems for churches had it not been removed in the House of Lords, by making it impossible for them to demand that certain new employees for certain posts were Christian.

The Government wished to define it in such a way that the exemption was narrowly defined and in any Court case there would have been a heavy onus on the Churches to prove that they were exempt from the law.

The Church`s justification would have been subject to review by the secular Courts as to whether it was reasonable, rational and proportionate.

But the House of Lords defeated the government attempt to narrow the employment discrimination exemptions currently available to religious institutions under the Employment Equality (Sexual Orientation) Regulations 2003.

Under that law, religious organizations can discriminate on the basis of sexual orientation in order to comply with religious doctrine or to avoid conflicting with the strongly held religious convictions of a substantial number of the religion's followers. (Sec. 7(3).)

The Equality Bill, which consolidates a number of Britain's anti-discrimination laws, would have limited the exemption to individuals whose "employment mainly involves" either "leading or assisting in the observance of liturgical or ritualistic practices of the religion," or "promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)."

In the House of Lords, Bishop Scott-Joynt and Baroness O'Cathain, an evangelical, proposed amendments to retain the 2003 exemptions. In three separate votes (216- 178, 195-174 and 177-172), the peers voted to approve Lady O'Cathain's amendments.

Catholic bishops and the Church of England were concerned that the Equality Bill would require churches to employ gays and transsexuals or to admit women to the priesthood or to some posts where they genuinely felt that they could only employ someone either of their own faith and/or who complied with their official teaching. They also felt that if they wished to discipline a minister or a priest for some act of misconduct, they would be prevented or greatly hindered or could only do so under the shadow of long, expensive and inconclusive litigation in the secular courts and tribunals.

Traditionally the secular Courts in an attempt to preserve religious liberty have always granted religious bodies a large measure of discretion in relaton to matters of worship, doctrine, church government and discipline. Over the years this "margin of appreciation" has been narrowed by legislation and by the Courts.

For example in cases such Percy v. Church of Scotland Board of National Mission, (December. 15, 2005) the House of Lords (sitting as the highest civil court in the United Kingdom) overturned a decision of Scotland's highest court, the Court of Session, and permitted a minister to assert a claim for sex discrimination in employment.

Helen Percy claimed she lost her clergy position with the Church of Scotland after having sexual relations with a church elder, even though the church had "not taken similar action against male ministers who are known to have had/are having extra-marital sexual relationships".

The House of Lords in a 4-1 decision held that a minister was an employee protected by the Sex Discrimination Act 1975. This was despite the fact that the Church of Scotland Act 1921 (which is regarded as a constitutional statute) gives the Church of Scotland the right to govern its own affairs on "matters spiritual".

But the House of Lords held that "a sex discrimination claim would not be regarded as a spiritual matter even though it is based on the way the church authorities are alleged to have exercised their disciplinary jurisdiction".

If one looks at the debates on 25th January 2010 on the three amendments debated in the House of Lords, you will see the arguments presented by all religious viewpoints arguing for greater religious freedom. The arguments of the Government lacked credibility. Its appreciation of the concept of "religious freedom" is dangerously minimal. A minister or priest seems to be regarded as an employee, a worker, a provider of services rather than a vocation, a calling. The relationship between Church and priest/minister seems to be regarded as a matter of contract which is justiciable according to the normal secular rules rather than according to the rules of ecclesiastical or canon law which are far older and of greater pedigree than the secular rules.

In particular, the speeches of the Anglican bishops are worthwhile looking at and in particular that of Archbishop Dr John Sentamu. His criticism of the government was fierce. The Pope`s comments were diplomatic and mild, a slap on the wrist in comparison. Here is some of what the Archbishop said:

"My Lords, I want to explain why I shall be supporting Amendments 98, 99 and 100, moved by the noble Baroness, Lady O'Cathain, in preference to Her Majesty's Government's Amendment 99A.

This debate has the potential to be one where the competing arguments pass each other like ships in the night. We do not want it to be like the radio exchange recorded between an American naval ship and Canadian authorities off the coast of Newfoundland in 1995. The Americans said, "Please divert your course 15 degrees to the south, to avoid collision." The Canadians replied, "Recommend you divert your course 15 degrees to the north, to avoid collision." The American captain said, "This is the captain of a US Navy ship. I say again divert your course." The Canadians replied, "Negative. You will have to divert your course." Americans: "This is the aircraft carrier USS Missouri. We are a large warship of the US Navy with heavy weaponry and nuclear warheads. Divert your course now!" Canadians: "We are a lighthouse. Your call." It is true.

It is important, as we make up our mind on the choices before us, that we are clear what they are. Are the disagreements ones of principle or are they about how best to reflect agreed principles in how the Bill is drafted? Arguing about drafting may be less exciting than arguing about principles, but we are a legislative Chamber. When important issues concerning individual rights and religious freedom are at stake, we have a duty to ensure not only that the principles are right, but that the drafting is clear.

There are those who struggle with the concept of allowing any exemptions for religious organisations from provisions relating to discrimination in the field of employment. But the argument is simple. Religious organisations, like all others, must be able to impose genuine occupational requirements in relation to those whom they serve. There are many jobs that you can do for the Church of England without necessarily being an Anglican or indeed a Christian. But for our clergy, and for some key lay roles, we impose certain requirements in relation to faith and conduct. The same is true of all other churches and religious organisations, although the nature of the requirements will vary in each case.

Even within religious organisations, certain requirements about marital status or personal conduct may be different between roles. An obvious example is that the Roman Catholic Church insists that priests and bishops are male and unmarried. The Orthodox Church has the same requirements, except that it will ordain as priests, although not bishops, those already married. The Church of England allows women to be priests but not bishops. We allow both to be married. We also impose restrictions on marriage after divorce, cohabitation and same-sex relationships. These touch on matters-gender, marital status and sexual orientation-that the law lays down that employers in general should not take into account. To use the language of the Bill, they represent "protected characteristics" that can form the basis of discrimination claims.

By contrast, churches and other religious organisations cannot draw the same clear-cut distinction between who we are and what we do; between what we believe and how we conduct ourselves; between work life and private life. Successive legislation over the past 35 years has always recognised the principle that religious organisations need the freedom to impose requirements in relation to belief and conduct that go beyond what a secular employer should be able to require. Noble Lords may believe that Roman Catholics should allow priests to be married; they may think that the Church of England should hurry up and allow women to become bishops; they may feel that many churches and other religious organisations are wrong on matters of sexual ethics. But if religious freedom means anything, it must mean that those are matters for the churches and other religious organisations to determine in accordance with their own convictions. They are not matters for the law to impose. Start down that road and you will put law and conscience into inevitable collision, and that way lies ruin. As Edmund Burke said:

"Bad laws are the worst sort of tyranny".

I am not determining a point of law, but seeking to restore tranquillity and a spirit of moderation, magnanimity and meeting the other half way. Aristotle, in his Nicomachean Ethics, says that magnanimity is that which is just and sometimes that which is better than justice: it corrects the law when that is deficient because of its generality
." (emphasis added)

One of the most interesting contributions came from Baroness Deech, a distinguished Professor of Law and who is of the Jewish faith. She is a former principal of St Anne`s College at The University of Oxford. She explained why she supported the amendments and was against the Government:

"Equality, human rights and freedom have become in themselves a religion or a philosophical belief-almost organised, in fact, given the number of bodies that exist to enforce them. We have, therefore, a clash between two sets of religious or philosophical beliefs and I see no reason why one should be superior to the other. Indeed, equality, freedom and human rights have grown out of the older established religions. To prevent the older established religions from continuing to teach their principles will, in the end, produce a generation that cannot see the point in equality, freedom and human rights, the justification for which lies originally in religion.

Since we are, in my view, dealing with clashes of philosophical beliefs, there is a danger for those who uphold equality, freedom and human rights-I, of course, am one of them-that this becomes like a juggernaut, crushing all other religions. Anyone who stands in the way gets the sort of treatment that reminds me of what took place when there were clashes between the organised religions a few hundred years ago. It behoves those who believe in equality and freedom to be magnanimous and tolerant and to allow other religions the same freedom that equality itself, and all that goes with it, has.

It is for that reason that I support the amendments tabled by the noble Baroness, Lady O'Cathain-with one other proviso. Court intervention in religious matters has not worked well. If, according to European law, we must be proportionate, writing that into the legislation is unnecessary because it is there anyway. However, the courts have great difficulty. I instance a recent judgment about a faith school where the noble and learned Lords of the Supreme Court-not always Lords now-admitted that it was a shame that the case had come to court and that what was being done was not at all appropriate. We ended up with a rather sad judgment, which flew in the face of the way in which Jews have defined themselves for thousands of years. The intervention of the court should be avoided if at all possible. It costs hundreds of thousands of pounds and may not be appropriate.

This is a case for magnanimity, tolerance and flexibility."