The right to discriminate

Article English OPEN
Sandberg, Russell (2011)

The first decade of the 21st century has witnessed a number of controversies surrounding the interaction between law and religion in the United Kingdom. In particular, tensions have emerged between laws protecting religious freedom and those which prohibit discrimination on grounds of sexual orientation. In particular, Parliament has repeatedly examined the scope and ambit of exceptions afforded to religious groups which allow them to discriminate on grounds of sexual orientation when specific conditions are met. And these exceptions have reportedly led to tensions within both the Blair and Brown cabinets and rebukes from the Vatican and the European Commission, criticising the exceptions for being too narrow and too broad respectively. The exceptions have also been challenged by way of judicial review, have been applied or commented upon in a number of high-profile cases and have attracted comment in the print and broadcast media. A number of employees have brought claims asserting that new legal requirements promoting equality on grounds of sexual orientation are incompatible with their religious beliefs. This article seeks to explore the legal changes that have occurred in the first decade of the 21st century affecting religion and sexual orientation with particular reference to how courts and tribunals have dealt with clashes between the two. It discusses the extent to which English law allows religious groups and individuals to follow their own beliefs regarding human sexuality.
  • References (128)
    128 references, page 1 of 13

    3 With the exception of the period of Mary I's reign when papal authority was restored (1553-1558) and the commonwealth period (1648-1660). See M Hill and R Sandberg, 'Is nothing sacred? Clashing symbols in a secular world' [2007] Public Law 488, p 489.

    4 However, it may be argued that aspects of this favouritism remain today: for example, in relation to concerns about the presence of bishops in the House of Lords and why civil partnerships are not considered to be gay marriages. A textbook example of this favouritism is the law on marriage which continues to see the Church of England and heterosexual unions as the norm.

    5 It was only in 1967 that the criminal offence prohibiting homosexual conduct between consenting male adults was repealed in England and Wales by the Sexual Offences Act 1967. Repeal in Scotland came later and in Northern Ireland much later still. See Cretney, Same Sex Relationships, chapter 1.

    6 For further analysis of the 'new' law regulating religion and its significance see Sandberg, Law and Religion.

    7 Other rights are also of importance. Art 12 provides the right to marry and Art 14 provides that the enjoyment of convention rights shall be secured without discrimination.

    8 Public Order Act 1986 part 3A, as added by the Racial and Religious Hatred Act 2006; as amended by the Criminal Justice and Immigration Act 2008.

    9 Employment Equality (Religion or Belief) Regulations 2003; Employment Equality (Sexual Orientation) Regulations. Prior to 2003, discrimination law covered only race and sex (Race Relations Act 1976; Sex Discrimination Act 1975) as discussed below.

    10 Equality Act 2006, part 2; Equality Act (Sexual Orientation) Regulations 2007.

    11 There is a debate as to whether the term 'exception 'or 'exemption' should be used. This article follows the practice of the Equality Act 2010 which refers to 'exceptions'. This can be contrasted with much of the Parliamentary debates where the use of the term 'exemption' was commonplace.

    12 There are, of course, several other dimensions to this debate: it is possible to explore the content of the beliefs held, whether they should be held and their theological basis. However, those issues are beyond the scope of this article.

  • Metrics
    No metrics available
Share - Bookmark