Thursday, 11 February 2010

Equality and religious liberty: why the Archbishop is wrong

The Anglican bishops in the House of Lords have come in for some tough criticism of late for their various interventions in the recent debate over the government's Equality Bill.

So I was interested in what the Archbishop of Canterbury would have to say about these matters in his Presidential Address to the current General Synod of the Church of England.

The Archbishop tells us that:

'As...the bishops' speeches in the Lords made quite clear...very few Christians were contesting the civil liberties of gay and lesbian people in general; nor should they have been. What they were contesting was a relatively small but extremely significant point of detail, which was whether government had the right to tell religious bodies which of the tasks for which they might employ people required and which did not require some level of compliance with the public teaching of the Church about behaviour.'

In one respect, of course, this account of what the bishops were up to in the Lords debate is a tad economical with the truth. As earlier posts and posts by others have discussed, the bishops did not intervene in the debate only to press for exemptions from the Equality Bill's anti-discrimination clauses. They also intervened against a proposed amendment to the Bill which would have made it legal for religious groups to celebrate civil partnership ceremonies on their premises if they so want (but still allowing groups to refuse such ceremonies if they don't want to host them). Despite the strong emphasis on the need to respect pluralism in his address, the Archbishop chooses to say nothing about this aspect of the bishops' intervention.

Still, the above passage from the Archbishop's address does identify a genuine issue. In my view, some on the left oversimplify (or side-step) the issue by affirming a complete supremacy of equality over the claims of religious liberty. However, the Archbishop's take on the issue, which oversimplifies in the opposite direction, is at least as implausible.

As a way into the issue, consider two cases. On the one hand, imagine a state which tells religious groups that they may not discriminate on grounds of gender in any jobs or appointments related to the organization. So the Roman Catholic Church cannot bar women from the priesthood. Now, while I look forward to the day when the Roman Catholic Church does allow women to be priests, I also think, unlike some on the left, that it would be illiberal and unjust for the state to impose this on the religious group.

But consider a second case. This is a legal case from the USA, Corporation of Presiding Bishop v. Amos (1987).

In this case a janitor, Arthur Mayson, who worked in a gymnasium owned by the Mormon church - a gym that was open to Mormons and non-Mormons - was fired from his job because his life-style was judged not to be up to the required standard. The Mormon church had every apparent legal right to do this because the US Congress had granted religious groups a very broad exemption from anti-discrimination law. The US Supreme Court held that this broad exemption was consistent with the US constitution and, as such, that the janitor could not claim that any of his constitutional rights had been violated.

Do we want a society which allows religious organizations this degree of autonomy in deciding whether or not a job can be subject to religious requirements?

It is hard to see what the serious religious interest on the part of the church in the Amos case is. Arthur Mayson was not a priest or in a similar position of spiritual leadership. Indeed, he wasn't employed in any capacity related to the core religious activities of the relevant church. So any burden to the religious life of the church from his employment can hardly stand comparison with the case of state enforced gender equality in the priesthood.

And, on the other hand, the potential threat to workers' interests of allowing such broad discretion to religious groups to discriminate is considerable. At the limit, such discrimination actually threatens the freedom - including religious freedom - of non-believers who may feel forced to adopt specific lifestyles just to conform to the behavioural expectations of a religious employer.

So a line has to be drawn. Religious associations cannot plausibly claim a right to discriminate on religiously-based, behavioural grounds across the full range of the employment they control. And if a line has to be drawn, who is to draw it? Who but the state? We simply cannot concede the kind and degree of autonomy that the Archbishop seems to want to claim for religious groups without surrendering the state's prime duty to protect adequately and fairly the interests of all its citizens.

(The Archbishop speaks of religious and other groups having the ' settle for themselves - not at the government's command - how they define the jobs people do publicly on their behalf as specific communities of belief...' As Simon Sarmiento, an Anglican commentator puts it in a terrific post at Ekklesia: 'What the church is against is not any particular definition of the scope of that exemption, but the very concept of putting any limiting definition into the law. They want to be able to decide for themselves exactly which jobs it can be applied to. ')

This is not to say that the government's original Equality Bill drew the line in the right place, or that the state should ignore the views of religious groups about where the line should be drawn. But it is the state's job - not that of any church - to say where the line is.

It is perhaps worth noting that the original Bill quite explicitly did allow an exemption for positions of spiritual leadership, the case where the enforcement of equality norms over religious conscience is most plausibly said to be illiberal and unjust. The government's proposals were careful not to step over this most obvious of lines.

But I am not sure a similar sensitivity is reflected in the Archbishop's declaration in favour of an apparently unrestricted freedom of religious groups to determine when and how behaviour is relevant to employment.

1 comment:

Michael said...

'Now, while I look forward to the day when the Roman Catholic Church does allow women to be priests...'

I don't think you ever will see the day Mr. White. Theology tends to trump sociology for the RC Church.