Lord Mackay of Clashfern served as Lord Chancellor under both Margaret Thatcher and John Major between 1987 and 1997. He is also a former Lord High Commissioner to the General Assembly of the Church of Scotland.
In the first case of its kind, a judge has recently ruled that the Christian owners of a guesthouse were acting unlawfully in restricting the provision of a double room to married couples and denying a double room to a homosexual couple in a civil partnership. The court accepted without reservation that the guesthouse policy was applied consistently to both unmarried heterosexual couples and homosexual couples. The defendants argued that their policy was based on their sincere beliefs about marriage, not hostility to anyone’s sexual orientation.
In a respectful judgment that correctly understands the nuances and sincerity of the defendants’ religious beliefs, His Hon. Judge Rutherford said: “I am quite satisfied as to the genuineness of the defendants’ beliefs and it is, I have no doubt, one which others also hold.” He added that the policy was based on “a perfectly orthodox Christian belief in the sanctity of marriage”, one which is already recognised by the courts in this country as a valid religious belief and it is a belief which itself is protected by equalities legislation and the Human Rights Act.
Judge Rutherford found for the claimants. The case hinged on the Equality Act (Sexual Orientation) Regulations, specifically Regulation 3(4) which, according to Judge Rutherford’s ruling, should be read to mean that a homosexual civil partnership must be treated in the same way as marriage when it comes to providing goods, facilities or services. The wording of the Regulations on that point is not particularly clear, but that appears to be the thrust of it. Therefore, Judge Rutherford ruled that providing a double room to a married couple but not to a homosexual couple in a civil partnership, is an act of direct discrimination of grounds of sexual orientation.
However, Judge Rutherford has granted leave to appeal. He recognises, quite rightly in my view, that this is a significant case with finely balanced and complex legal points. In granting permission for appeal he has departed from his normal practice (he prefers for the Court of Appeal to consider an application). He has done so for a number of reasons, one of which seems to me to be particularly important. He said his ruling “does affect the human rights of the defendants to manifest their religion and forces them to act in a manner contrary to their deeply and genuinely held beliefs.”
Here we reach the nub of it.
The Regulations as passed by the previous Parliament and applied in this case force Christians – and all others who hold marriage to be precious and worthy of special status – to act against those beliefs. There are those, of course, who have no such view of marriage. To them, marriage is at best just one of a number of family arrangements, at worst it is a repressive patriarchal institution that should be consigned to the dustbin of history. But most people still affectionately regard marriage, as understood by English law and the Church, as deserving of its special status. To equate civil partnerships with marriage is a big step to take. For the law to force people to equate the two, and penalise those who do not, is an Orwellian leap.
There are those who will say the Regulations only apply to those who have chosen to step into the commercial realm and offer goods, facilities and services in exchange for money – the defendants were not forced to open their home to fee-paying guests. Yes, but the right to liberty of conscience, freedom of expression and religious liberty is not restricted to the private realm. One does not lose them when one steps into the public sphere. Indeed, for the sake of everyone’s liberty it is paramount that such rights are upheld in the public realm. Consider an atheist who seeks to work as a teacher in a state school in full knowledge that the law requires a daily act of religious worship. Do we say his beliefs should be left at home? Do we say he has stepped into the public sphere and his personal views ought not be accommodated? No, the law allows liberty of conscience. A Christian deserves the same.
Of course the rights to manifest one’s beliefs are not absolute, they may be limited for the sake of others, but nor are they to be easily cast aside. Judge Rutherford said in his judgment: “At one point in the case I queried whether the running of an hotel along Christian principles could be described as manifesting one’s religion but I have come to the conclusion (and counsel for the claimants did not seriously try to argue otherwise) that it can so be regarded.” Well, yes. Otherwise we are in danger of putting religion in a box only to be brought out on ceremonial occasions. Religion, certainly the Christian faith, is much more than that.
This case has wider significance. The same legislation that has given rise to this case has also led to the demise of all but one Roman Catholic adoption agency in England and Wales. The agencies had a policy, in keeping with Roman Catholic teaching, that children should be placed with a mother and father who had entered into the commitment of marriage. However, due to the sexual orientation regulations introduced in 2007 all but one agency has either cut off ties with the Roman Catholic Church or closed down altogether. The one remaining agency is engaged in a legal battle to maintain its policy. This has happened at a time when it is very difficult to find suitable arrangements for adoption for many children.
We recognised the right to exemption from military service when our country was in desperate struggles for survival in two world wars for those with a genuine conscientious objection against such service. Surely we are a sufficiently tolerant society today to do the same for those who wish to run a hotel in line with their Christian faith.