The Pope has recently launched an
attack on the UK's anti-discrimination legislation.
The Pope seems to be referring to certain provisions in the government's Equality Bill which is currently being debated in Parliament —
specifically, the provisions that clarify the conditions in which an employer can lawfully refuse to hire
someone because of their sex or marital status or sexual orientation. According to the bill,
the principal conditions in which a religious organization may do this is when filling positions that "mainly involve (a)
leading or assisting in the observance of liturgical or ritualistic practices,
or (b) promoting or explaining the doctrine of the religion (whether to
followers of the religion or to others)."
According to the Pope, this "imposes … unjust limitations on the freedom of
religious communities to act in accordance with their beliefs, [and] in some
respects, … violates natural law".
I shall argue that on this point the UK government is basically right, and the
Pope is wrong.
The English Roman Catholic Bishops have also
complained about the bill.
In their view, the Church needs to be able to discriminate on such bases as sex or
marital status or sexual orientation
whenever such discrimination could help to ensure that the
"ethos of the Church permeates every aspect of its activities": this could be important even with "a residential caretaker post if it involves routine
contact with the local Catholic community"; but it is especially important with
positions that have a "representative … role" — which apparently includes
not just "youth workers" but even "parish secretaries."
According to the Bishops, the UK government fails to understand that the ultimate purpose of religion is all-encompassing: "religion
is about the whole of life and the whole person; it is not limited to formal
worship and instruction." But the question is whether
the state should accept this all-encompassing purpose as legitimate grounds for employment discrimination.
The problem is that this all-encompassing purpose of promoting a certain "ethos" could in principle
justify any kind of discrimination whatsoever. For example, imagine a Church of
White-Supremacist Misogynists, whose central religious doctrine is that all
human beings other than white men are wholly despicable. It would be contrary to
their "ethos" to employ anyone who wasn't a white man to do anything, even to be
an accountant or a gardener!
However, freedom of religion does not mean that "religious communities" should
always be permitted to "act in accordance with their beliefs", as the Pope puts
it. For instance, in the
famous 1990 case Employment Division vs. Smith, the US Supreme Court
ruled that it was quite consistent with freedom of religion for the government
to prohibit the use of the psychoactive drug peyote without allowing any
exemption for its sacramental use in Native American religious practices.
Fundamentally, I believe, the point of freedom of religion is that the law should not
single out any religious beliefs or activities for special
disfavour; it does not exempt religious organizations from being subject
to the same laws as everyone else.
In general, any organization that has the long-term role of
being an employer in the labour market can reasonably be subject to a range of legal requirements.
Since equality of opportunity is such an important government objective, it
reasonable that employers should be required to define every employment position as having a
fairly definite and specific role or function, and that when people apply for these positions,
they should be selected solely on the basis of how well they can reasonably
be expected to fulfil that function.
So, we should ask, What
legitimate kind of definite and specific role
or function could it be that could only be appropriately performed by a person
of a certain specific sex or sexual orientation?
The only relevant answer that I can think of is: a broadly expressive
purpose, the purpose of expressing and communicating a certain set of doctrines
or values or ideals. Certain doctrines or ideals can only be effectively
communicated by someone who represents or embodies those ideals, and embodying those ideals
might require having a certain sex or sexual orientation. In short, I suggest, religious organizations should
be allowed precisely the same sorts of exemptions from employment
non-discrimination laws as "expressive associations."
E.g. a feminist organization devoted to promoting the belief that women should
have the leading role in the fight against sexism may, I believe, favour women in
appointing the leaders of the organization (though perhaps not in employing its
cooks and cleaners). If the doctrines of Roman Church include the idea that
homosexual behaviour is contrary to "natural law", and that in consequence
having a propensity towards such behaviour is an "intrinsic disorder", then
perhaps they may permissibly discriminate against gay people in appointing
people to promote, express, or communicate these doctrines (whether as priests
or deacons or Sunday-school teachers or the like).
However, this seems more or less what the UK government is focusing on with
its emphasis on positions that "mainly" involve "promoting and explaining the doctrine of
the religion". Perhaps the wording is not ideal. Perhaps the formulation should
allow for a larger understanding of a position's "expressive" or "communicative" or
"representative" role (as well as recognizing that a post may crucially involve a certain role even if it is not the role that takes up most of the postholder's time). But if the Roman Church asserts that "parish secretaries" and "residential caretakers" have this
sort of role, that assertion should not be automatically exempt from
judicial review. (Otherwise, our imaginary Church of White-Supremacist
Misogynists could just declare that every one of its employees, including its
accountants and cleaners, had a "representative" role, and religious
organizations would have carte blanche to engage in any form of
employment discrimination whatsoever.)
Some Roman Catholics appear to believe that the Equality Bill would force the
Church to ordain non-celibate gay priests. My legal friends assure me that "in no jurisdiction where there is similar legislation have the courts required a church to employ gay priests, deacons, religious teachers….;
nor is it likely that the English courts would do this." So I conclude that the
Pope is quite wrong to call for "missionary zeal" against the Equality Bill.