Time to save religious freedom from the UK's religious right

Fear of litigation by the 'Gaystapo' against dissenters is a smokescreen objection to permitting some faith groups conduct civil partnerships on religious premises. It has no basis in law - only bigotry.
Iain McLean
3 December 2011

The ‘Alli amendment’ was enacted in March 2010. It removes the previous ban on celebrating civil partnerships on religious premises. It passed in the Lords by 95 to 21, to the fury of Christian conservatives, and in the Commons without a vote. It now forms section 202 of the Equality Act 2010.

Job done? Er, no.

The section cannot be brought into force until Parliament passes regulations to specify who has the right to register premises for civil partnerships, and who has the right to object. After the General Election, the Government Equalities Office produced draft regulations, which as usual were put out for public consultation. They have now revised the regulations, which in the normal way would come into force automatically. But a Conservative peer, Baroness O’Cathain, has used a rare procedural device to force a debate on them on December 15th. If she wins then, she will reverse her defeat in March 2010, and section 202 will become a dead letter.

What faith groups want to conduct civil partnerships on their premises? At the moment, a handful: the Metropolitan Community Church, the Quakers, the Unitarians, and Liberal Judaism. The Act, the regulations and ministers in both Labour and Coalition Governments have all made it clear that s.202 is purely permissive. No faith community can be penalised for not requesting to hold civil partnerships. And yet a coalition of conservative Christian groups continues to insist that this measure exposes them to litigation from those seeking to force them to hold civil partnerships against their will. This is part of a victimhood narrative in which, it is said, people are being penalised “for being Christians” (read: for discriminating against gay clients) in various roles such as registrars, relationship counsellors, would-be adopters, and hotel proprietors. In each of these cases, the courts have ruled against the Christians. This is bad for the individual Christians, who have been encouraged to bring (or defend) hopeless cases; it is good for their lobby groups, who need to keep the victimhood narrative going.

In extreme versions of the victimhood narrative, a “Gaystapo” is persecuting faithful Christians. Nobody has (to my knowledge) attempted to say that Quakers or Liberal Jews are part of the Gaystapo. But the Christian conservatives have used their exceptional access to the House of Lords to get a Lords committee to produce a report that gives credence to their fears of victimhood. The report is bolstered by a QC’s Opinion claiming that:

“These Regulations are bound to lead to long and costly litigation for faith groups and individual resident or officiating ministers in circumstances where the number of religious organisations which have evinced an intention to avail themselves of this statutory amendment is miniscule.”

But hang on, Mark Hill QC: if only the ‘miniscule’ Quakers and Liberal Jews have ‘evinced an intention’ to allow civil partnerships on their premises (wonderful legalese), how can there be ‘long and costly litigation’ against faith groups that do not want to follow their example? The then leader of the Lords, Jan Royall, decisively answered that point when s.202 was originally enacted:

“It is unlawful to conduct civil partnership registrations on premises that are not approved for that purpose. It is not possible to bring a claim for discrimination for failing to do something which is unlawful. There is no obligation on the controllers of religious premises to get them approved, and since seeking approval is neither the provision of a service nor a public function, for the purposes of the Equality Bill, there is no scope for a claim for discrimination being brought for failing to do so.”

So why do Christian conservatives persist with it? The QC’s Opinion depends on an extraordinarily strained interpretation of a leading case, Aston Cantlow­. His argument runs: Marriage is a public function; bodies exercising public functions have a duty not to discriminate; therefore if they offer marriages, they have a duty to offer civil partnerships, despite the explicit language to the contrary in s.202 itself and elsewhere. My colleague Scot Peterson has produced a memorandum showing, among much else, why the QC is wrong about Aston Cantlow.

Furthermore, in a legal opinion published only on 1 December (long after Lady O’Cathain had secured her debate), the Church of England Legal Office reveals that both it and the government’s own lawyers agree with us and disagree with Mark Hill. It is a mystery why the Legal Office did not pass this opinion on to the Lords committee, which could then have seen that the regulations pose no real threat: neither to the Church of England, nor, as the C of E’s lawyers proceed helpfully to add, to any other faith community, whether congregational or hierarchical.

Lady O’Cathain’s campaign is not about protecting faithful Christians from the threat of vexatious litigation. If it were, then Quakers and Jews, who have suffered more than their fair share of that over the centuries, would be on the same side. It is about restricting religious freedom, and thwarting the will of parliament. Section 202 was enacted under the Labour government. The disputed regulations were promulgated by the coalition. All three parties have therefore endorsed it. As a Quaker, I totally respect the right of other Christian denominations not to host civil partnerships, if that is where their conscience leads them. But we have consciences too. Please get your tanks off our lawn, Lady O’Cathain. I hope that Peers will turn out in force on December 15th to protect religious freedom by defeating the O’Cathain motion.

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