Tuesday, February 16, 2010

Canterbury and the Equality Bill

UPDATE:  Simon Sarmiento has generously offered some corrections to the following essay.  Since Simon has written extensively on this topic, we will consider him our "resident expert."  Rather than attempt to edit the original text, I am inserting Simon's corrections at the appropriate places.  Note that these insertions are not being made as "debate points."    I consider Simon's additions to be more accurate than my American attempt to comprehend the workings of the UK government.


A couple of weeks ago, one of our readers pointed me to this article by Candace Chellew-Hodge. It is in reference to the Archbishop of Canterbury's Presidential Address to General Synod. Here's part of Candace's take on the speech:

...So, while Williams is so, so sorry for how he has undervalued the lives of gays and lesbians, he continues to oppose a new law that would recognize the value of that same slighted group - and dare to cloak his objection in religious doubletalk...
If you read Dr. Williams' address, I would say that is an accurate portrayal of what he said. He is sorry for the ugly way gays and lesbians have been treated by the Church, but will continue to advocate for the right to discriminate against them when it comes to hiring practices.

His argument is that once you start letting the government meddle in Church affairs, the right to religious freedom is in jeapordy. I'm not so sure that the reason for his apparent double-talk (I'm sorry, but reserve the right to make you suffer) is that simple.

The "new law" that Candace referred to, which Dr. Williams opposes, is known as the Equality Bill. Since Thinking Anglicans has done a fine job of following the Equality Bill, as well as the criticisms of Dr. Williams' Presidential Address, I was going to just skip this news item. However, as an American, who is rather unfamiliar with how the UK government works, I found that getting some understanding of the Equality Bill, and all its implications, required a bit of study. Perhaps a few other Americans might be interested in what I discovered.

The Equality Bill 2008-09 was introduction in the House of Commons on 24 April 24, 2009. The work that led to this bill had been initiated as early as 2005, and by some accounts, even earlier. It was described as an attempt to draw together the various pieces of non-discrimination legislation already on the books into one bill.

The part that was of concern among some of the Church members was the proposed language that attempted to specifically identify what particular positions within the Church would be exempt from anti-discrimination legislation. Previously, the wording of the exemption was quite vague, which allowed the Church to discriminate in most of their hiring practices.

(SS: No. The wording of the exemption in the 2003 Regulations is vague, but a legal precedent defining the narrow scope of the exemption arose when several trade unions challenged it in the High Court in 2004. This is commonly known as the Amicus case. And in any case the EU Employment Directive 2000/78/EC, which the UK regulations of 2003 implement, itself defines a narrow scope.)
Now, common sense suggests there are good reasons for this exemption. Obviously, a Church employee, especially in a leadership or teaching role, would need to be able to affirm the religious tradition they are representing. However, it is still rather ironic that the one institution that was allowed to continue to discriminate was the Church.

(SS: No. There is a confusion here between discrimination on grounds of Religion, and discrimination on other grounds (gender, race, age, disability, sexual orientation). The 2003 regulations relating to discrimination on the ground of Religion are separate now and in the Equality Bill are a separate clause (Schedule 9, Clause 3) still. There is (almost) no dispute surrounding them.

The big dispute was only about the wording of Schedule 9 Clause 2 which relates “only” to discrimination on gender (women clergy) marital status (divorced clergy) gender reassignment and sexual orientation. I am simplifying a little here.)
There was some concern voiced by members of the Church when the new Equality Bill was put forward, as it seemed to require new restrictions regarding hiring practices.
(SS: “Seemed” is the key word here. The UK Government has always claimed that it was not imposing any new restrictions, merely clarifying the existing restrictions. In legal terms, this is technically correct, because the EU Directive wording “trumps” whatever the UK legislation says. But the churches have never accepted this position, and have in fact always argued for total self-regulation in this area, see my recent article at http://www.guardian.co.uk/commentisfree/belief/2010/feb/10/rowan-williams-equality-bill)
It is at this point, as I reviewed various arguments against the Equality Bill, that I began to note references to the European Union. For instance, consider this news report:

...During the debate Conservative MP Mark Harper accused the European Commission of lobbying the House over the Equality Bill.

Mr Harper quoted the European Commission as saying: “We welcome the proposed Equality Bill and hope that it will come into force quickly”.

He responded: “The European Commission has no business telling the Parliament of the United Kingdom whether we should pass legislation.”

Last week the European Commission sent the UK Government a legal document, called a “reasoned opinion”, which argued that the UK needs to narrow the religious liberty safeguard in its employment laws.

The opinion is now in the public domain despite persistent attempts by the Government’s Equalities Office to keep it confidential.

Mr Harper went on to quote the Commission’s reasoned opinion which said: “The UK Government has informed the Commission that the new Equality Bill currently under discussion before the UK Parliament will amend this aspect of the law and bring UK law into line with the Directive”...
What does the EU have to do with any of this? Perhaps more than we might imagine.

In 1997, the Member States of the European Union approved the Treaty of Amsterdam. Article 13 of this new Treaty granted the EU new powers to act against discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The United Kingdom was one of those Member States.

If a Member State breaks one of these non-discrimination laws, an 'infringement procedure' will be initiated. This "infringement procedure" has three steps. The Member State first receives a letter of "formal notice," and is given two months to respond. If the reply is not satisfactory, a "reasoned response" is sent. If there is still no change, the matter is sent to the European Court of Justice. The Court may impose a fine on the Member State for non-compliance.

According to a June 27, 2007 "press release from the European Commission (right sidebar pdf link), the UK received a "formal notice" that they were not in compliance. On November 20, 2009, the UK received a "reasoned opinion" from the EC, the second stage of legal action.

(SS:  This press release and associated links refers to a much earlier stage of the EC dialogue, and is not the current item.)
Some of the details regarding the specific areas of non-compliance are worth noting:

...In the reasoned opinion sent to the United Kingdom on discrimination based on religion or belief, disability, age or sexual orientation in employment and occupation, the Commission pointed out that:

- there is no clear ban on 'instruction to discriminate' in national law and no clear appeals procedure in the case of disabled people;

- exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the directive...
Note that the only specific issue mentioned regarding "religious employers" was "sexual orientation."

So, from Brussell's point of view, the matter was the equal opportunity for employment within the Church for gay and lesbian members.

There are those who have suggested that government was hesitant to admit that some of the language of the Equality Bill was intended to meet the requirements of the European Commission, and so avoid a possible fine.

(SS: No. The issue here is not a fine, it is a court case to make the UK legislation conform to the Brussels legislation.)
There certainly is some confusion regarding the assurances offered by government that the new language did not change the previous exemptions granted churches, when it seems clear that there was indeed an attempt to be more specific regarding these exemptions in order to placate the EC. Beyond that, if Mr. Harper's accusation above is valid, that government did indeed assure the EC that the new Equality Bill would address their concerns, there is even more reason to believe that the government was intentionally misleading in their claim that no changes to the previous exemptions were being made.

Next came the reaction from the churches. The Bishop of Winchester called the bill "irrational and ignorant." The Archbishop of York claimed that Christianity was being wiped out of public life in the name of equality. Even the Pope weighed in, declaring that the Equality Bill violated natural law.

(SS: No. The Pope did not specify which legislation he was referring to. Although many people believed he was referring to the Equality Bill, it is much more likely in my view that he was referring to the 2007 Regulations which banned RC Adoption Agencies from discriminating against homosexual couples. See recent article by Clifford Longley at
The rewording of the section of the Equality Bill governing church employment was defeated in the House of Lords, primarily due to the lack of support it received from all of the bishops, with one exception. When the bill returns to the House of Commons, we are told that the new wording will not be reintroduced.
(SS: No. All eight diocesan bishops voted against the government. Two retired bishops who have seats as Life Peers in their own right, also voted, one for the government (Harries) and one against (Carey).)
In other words, nothing will change. The Church will still be allowed to legally discriminate against gays and lesbians.

(SS:  There will be no change in the present law. This allows some “direct” discrimination but only in limited circumstances, which will remain as poorly defined as they are now. The current law does not allow any “indirect discrimination” e.g. by establishing a policy which it is easier for one group, e.g. male heterosexual clergy, to meet than for another, e.g. lesbian clergy.)
And the UK will be brought before the European Court of Justice for not conforming to the anti-discrimination laws of the EU.

Meanwhile, some Christians (including, it would seem, the Archbishop of Canterbury) are celebrating their "victory." Apparently, to them, if bigotry is still legal, it is also moral.

Personally, being granted the right to discriminate is not something I would feel like celebrating. And to claim that such discrimination is based on your "freedom of association" or your beliefs, or ethos, or to avoid "legal challenges" or any number of other code words seems so dishonest. If you are going to discriminate, just say plainly what group you wish to exclude.

But please, don't do it in the name of Christianity. Such behavior really turns folks away from Jesus.

We live in very strange times.


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