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UK: Sexual Orientation and Religious Liberty

June 1, 2007
By: WEA RLC Principal Researcher and Writer, Elizabeth Kendal
The British government\'s controversial Sexual Orientation Regulations (SORs)
which outlaw discrimination against homosexuals in the provisions of goods and
services became law in England, Wales and Scotland on 30 April 2007.

The British SORs are parallel but slightly different from the Northern Ireland
SORs that the British government imposed on Northern Ireland prior to
devolving authority to the Democratic Unionist Party (DUP)/Sinn Fein-led local
administration. The Northern Ireland SORs became law on 1 January 2007.

The SORs that apply to Northern Ireland can be accessed at
< http://www.opsi.gov.uk/sr/sr2006/20060439.htm >
The SORs that apply to England, Wales and Scotland can be accessed at
< http://www.opsi.gov.uk/si/si2007/draft/20075920.htm >

The Christian Lawyers Fellowship note in their Briefing Pack concerning the
Northern Ireland SORs, many organisations have questioned the need for the
SORs because of a lack of empirical evidence showing that such discrimination
currently takes place. They further reiterate that Christian organisations
generally support the principle of outlawing unjustified discrimination on the
grounds of sexual orientation. "The opposition to and support for the Northern
Ireland SORs is therefore not a case of \'Christians v homosexuals\' as some
have sought to portray it. The opposition to the Northern Ireland SORs from
Christians is based on extremely important issues of freedom of religion and
freedom of conscience. It is a question of balancing rights.

"The Northern Ireland SORs have been controversial primarily because of the
impact they will have on freedom of religion and freedom of conscience for
Christians. The primary concern held by hundreds of thousands of Christians,
is that a law which is intended to remove discrimination on the grounds of
sexual orientation inadvertently discriminates heavily against Christians. . .
by making it illegal for Christians to continue to freely hold and profess the
Biblical teaching on sexual morality." (see:
< http://www.christianconcernforournation.co.uk/sor/docs/BriefingPack.pdf >)

As noted by "Christian Concern for our Nation", the Parliamentary Joint
Committee on Human Rights (JCHR), which has advised the government on the
SORs, maintains that in a democratic society, manifestations of religious
beliefs must be limited for the protection of the right of gay people not to
be discriminated against. As far as the JCHR is concerned religious liberty
is not violated because Christians will still have the right to hold their
beliefs; it is only the manifestation of those beliefs that will be limited by
the regulations. (see:
< http://www.christianconcernforournation.co.uk/sor/2mar7.php > for some
analysis and a link to the actual JCHR report.)

LAWFULNESS OF NORTHERN IRELAND\'S SEXUAL ORIENTATION REGULATIONS TO BE TESTED
IN HIGH COURT, BELFAST - MONDAY 4 JUNE

A hugely important court case will commence in the High Court in Belfast,
Northern Ireland, on Monday 4 June. A judicial review has been secured by the
Christian Institute < http://www.christian.org.uk >, which director Colin Hart
describes as "a nondenominational Christian charity committed to upholding the
truths of the Bible". The website of the Christian Institute has many
excellent resources, including a page of resources devoted to the SORs. See:
< http://www.christian.org.uk/soregs/index.htm >

The judicial review is scheduled to run for three days. Catholics and
Protestants will stand side by side to defend religious liberty. The High
Court will be considering whether Northern Ireland\'s Sexual Orientation
Regulations unduly interfere with religious liberty contrary to the Human
Rights Act, and whether the public consultation was flawed. If the review is
successful the regulations could be declared unlawful and struck down.
Whatever the outcome, it will serve as a precedent for the similar regulations
now in force in Great Britain.

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SUMMARY OF KEY CONTROVERSIAL REGULATIONS OF SORs
--------------------------------------------------

DISCRIMINATION DEFINED: Regulations 3 and 4

Regulation 3 defines discrimination on grounds of sexual orientation. It
covers both direct and indirect discrimination. This could mean that attempts
to restrict access to services, e.g., by means of statements of faith or other
statements could amount to indirect discrimination (though it is also possible
they might take precedence under the terms of Part 2 of the Equality Act 2006
relating to legally permitted discrimination on grounds of religion and belief).

Regulation 4 makes it clear that regardless of sexual orientation, goods,
facilities and services must be provided to the same quality, in the same
manner and on the same terms to everyone.

This means that Christian businesses or enterprises that are mainly commercial
in nature could run the risk of legal action if they decline to provide
services to homosexual people that they make available to the general public.
In most cases, of course, Christians will not wish to restrict services in
such a way. However, there are certain situations, and especially where the
provision of overnight accommodation is concerned, where difficulties could
arise. For example: a Christian newspaper could not refuse to accept
advertisements from a gay group; Christian printers and wedding photographers
would be required to print gay propaganda and cover civil partnership
ceremonies. A Christian bed and breakfast or guest house could not restrict
double rooms to married couples since under Regulation 3(4) civil partners
must be treated equally. However, where the owner of the establishment resides
in the property, provided no more than two family rooms are available to the
public, discrimination in making the facilities available will remain legal.

EDUCATION: Regulation 7

There is no specific protection for faith schools which are subject to the law
in the same way as all schools. Regulation 7 prohibits discrimination in the
field of education with particular reference to admissions policy, access to
benefits, facilities or services, and exclusions. This is not controversial.
However, Regulation 7(c)(iv) makes a very broad "other detriment" provision
which, despite denials by Government, is considered by lawyers to suggest that
the Regulations will apply to the school curriculum itself.

The influential Parliamentary Joint Committee on Human Rights (JCHR) has urged
that it be unlawful for a teacher to state that homosexuality is wrong.
Official lawyers advising the Parliamentary Joint Committee on Statutory
Instruments indicated that they believe the school curriculum is definitely
covered by the Regulations.

INDUCING OTHERS TO DISCRIMINATE: Regulation 11

Regulation 11 makes it unlawful for a person to "instruct", "cause or attempt
to cause", or "induce or attempt to induce" another to discriminate unlawfully.

Serious concerns have been raised that this could mean that a church minister
who delivers orthodox teaching about the incompatibility of homosexual
behaviour with Christianity, and who encourages his congregation to avoid
activities inconsistent with this teaching could be vulnerable to legal action
on grounds instructing, causing, inducing or attempting to cause or induce
discrimination on the part of his congregation should any of them be placed in
the relevant circumstances.

At the very least, this Regulation is likely to result in a severe chilling
effect on all public discussion that includes negative discourse with regard
to homosexual behaviour, even if the discussion is in fact lawful.

RELIGIOUS EXCEPTIONS: Regulation 14

Regulation 14 is designed to afford certain exceptions to organisations with
religious purposes. However, the exemptions will not apply if an organisation
receives public funds or is largely commercial in nature.

Exceptions from the Regulations include: church membership and administration
of sacraments; certain functions of church leaders; the management of church
premises. The exceptions apply only where "it is necessary to comply with the
doctrine of the organisation; or so as to avoid conflicting with the strongly
held religious convictions of a significant number of the religion\'s followers".

Regulation 14(8) is an extremely wide provision which a number of lawyers
consider may vitiate all religious exceptions. Religious bodies that are
deemed to be public authorities or which operate with public authority
contracts will lose all their exceptions under the Regulations. It would
appear possible that under the Regulations all the functions of e.g., a church
or a denomination could lose the protection of Regulation 14 if it is involved
in any contract with a public authority. Accordingly, if a church runs a care
home partly supported by local authority contracted funding, its other
functions could be subject to the Regulations, including e.g., membership policy.

It should be noted that the Government is currently attempting through
concurrent case law to ensure that all care homes for the elderly in receipt
of public funds are considered to be public authorities and therefore required
to make double rooms available to same-sex couples as a general policy.

ADOPTION AGENCIES: Regulation 15

Regulation 15 requires that following a brief transition period all religious
adoption and fostering agencies must be prepared to place children with
same-sex couples by the end of 2008.

CHARITABLE EXCEPTIONS: Regulation 18

Regulation 18 provides a special exception for charities which, under their
trust deed, exist specifically to provide benefits only to those of a
particular sexual orientation. Lawyers believe it is possible that a
Christian marriage guidance and counselling charity might succeed in being
excluded from the Regulations on the same basis.

-----------------------------------------------------------
PQ MAGAZINE, EAUK, 20 APRIL 2007

The April issue of PQ (Parliamentary Questions), a monthly magazine published
by the Public Affairs Department of the Evangelical Alliance of the United
Kingdom (EAUK: < http://www.eauk.org/ > ), features an article that highlights
some of the concerns Christians have regarding the SORs. Most of the text,
which is found on page 3, is copied here, however the full text can be found at:
< http://www.eauk.org/public-affairs/pqprayerandcampaigns/upload/april07pq-2.pdf >
------------------------------------------------------------

Equality Act (Sexual Orientation Regulations) 2007
PQ magazine, 20 April 2007

On 21 March the House of Lords voted by 168 to 122 (most Lords abstained in
view of the \'take it or leave it\' statutory instrument) in support of the
Government Regulations (SORs). Most religious groups have lamented this
decision as a landmark presaging a new era of repressive ideologically-driven
legislation which seeks to restrict freedom of conscience and belief and
effectively imposes a new morality.

The Government rejected all attempts to introduce a reasonable conscience
opt-out clause. The outcome suggests that rather than balancing rights, the
right to live a homosexual lifestyle will effectively trump the right to live
a Christian lifestyle in public.

Many religious groups will now need to consider the implications of the SORs
carefully, take legal advice and reflect on the various legal options open to
them. The legislation was not approved without extensive controversy. Despite
a record level of responses to the initial Government consultation, the
majority of which came from religious groups, there is a wide perception that
the balance of concern about the proposed regulations was not reflected in the
outcome.

Whilst the Government were keen to persuade religious groups they had nothing
to fear from the regulations, it soon became patently obvious that they will
seriously impact the religious sector, especially in the public sphere. This
was graphically illustrated by the Roman Catholic adoption agencies which
recognised they may have no option but to close. In the event, they gained a
temporary stay of execution until December 2008.

However, many other religious groups, including churches, who are in receipt
of public funding for community based activities are now having to review
whether they can continue, or curtail their activities by declining public
funding. The Evangelical Alliance issued a statement urging Christians not to
withdraw from offering their historic public services wherever possible – at
least until they are stopped by the law.

Following other recent controversial developments within the human rights
industry, it appears that a hierarchy of rights is emerging, with religion and
belief deemed bottom of the pile and subservient – especially to sexual
orientation rights.

There seems to be an increasing illiberal trend to enforce the privatisation
of faith and to tolerate everything apart from religious belief. This needs to
be arrested before we wake up to find that as a consequence Christian
contribution has been increasingly withdrawn from the public square. Christian
registrars, adoption agencies and other religiously motivated voluntary
workers are already disappearing from the public scene. Consequently, the
impact for society may be significant, given the substantial levels of
voluntary and community work undertaken by religious groups.

While other rights can freely manifest themselves in the public arena, there
is evidence of a political agenda to restrict and privatise religious liberty
in a way that undermines the protection enshrined by article nine of the
European Convention on Human Rights. It increasingly seems to be the case that
when there is a clash of rights, it is usually religion and belief that has to
make way.

The Evangelical Alliance has published an interim guide to the SORs which is
available in abbreviated form on its website with the full version available
on request. A notable concern relates to education. Despite Government
denials, most lawyers believe that the regulations will effectively impact the
school curriculum. This could mean that, for example, a faith school is unable
to teach in accordance with its beliefs that homosexual behaviour is wrong,
and indeed be required to teach that it is normal.

In the debate in the House of Lords Baroness Andrews appeared to confirm that
the curriculum itself may not be covered. But the way in which it is delivered
will be covered. This will presumably also apply to common worship.
Accordingly, it appears that in any school it will become unlawful to teach as
objective truth that homosexual practice is wrong. Conversely, it will not be
a requirement for teachers to teach that homosexual behaviour is right.
Nevertheless, the consequence of this would seem to be that homosexual
behaviour, sex within marriage and heterosexual behaviour outside of marriage
will be required to be presented as morally relative or neutral.

There are already projects funded by the Department for Education and Skills
suggesting primary schools may be required to use highly controversial books
which seek to promote and normalize homosexuality. The Government denies that
schools will be forced to use material they don\'t like and that parents may
still remove their children from sex education lessons if they wish. It seems
likely that this whole area could become highly contentious and that governors
and teachers will require maximum skill in treading a narrow and precarious path.

The issue of religious freedom will clearly continue to be prominent on the
public agenda. Christian groups need to persist in constructive dialogue with
the Government urging application of the law in a way which treats all
citizens fairly, but which allows Christians to deliver services in a
Christian way and exercise fundamental freedoms of conscience and religion and
belief. This becomes even more critical as the forthcoming Discrimination Law
Review will probably attempt to force religious groups in receipt of public
funding to become public bodies (thus losing all protection on grounds of
religious liberty) and will seek to outlaw proselytism in the public sphere.
END
------

Elizabeth Kendal
rl-research@crossnet.org.au

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