Baroness Hale, one of the UK’s most senior judges, and the first woman appointed to the highest court in the land, recently set out in a speech to Yale Law School criteria for accommodating religious beliefs when these appear to clash with the rights of particular groups in society. In the light of same-sex marriage becoming law, and the demands of groups for the ‘eradication’ of views unsympathetic to theirs,  the speech is timely and could be the start of a long-overdue restoration of the law’s balancing act on discrimination and religious freedom.

She has form in this area. As deputy president of the UK’s Supreme Court, Brenda Hale has sat on judicial panels which have heard the most vexing and important cases concerning religious freedom in Britain in modern times. As she says in her speech at Yale Law School, the anti-discrimination measures adopted in the UK as a result of EU law are blunt tools. There is a conflict between, on the one hand, measures prohibiting discrimination against people on the grounds of their sexual orientation, and on the other, measures prohibiting discrimination on the grounds of religion or belief when people act in accordance with that religion or belief.

Two sets of regulations were passed, in 2003 and 2007 (and now found together in the paradoxical Equality Act 2010), which stand in practical opposition to one another. The workings of these measures are often in the context of alleged discrimination by Christians against gay or lesbian people, e.g. in cases where hoteliers or bed-and-breakfast owners have denied rooms with double beds to same-sex couples (Preddy v Bull) or where, citing their Christian beliefs, employees have refused to take part in same-sex civil partnerships or sex counselling sessions (Ladele and McFarlane).

In these cases there is a tendency for courts to find the actions of the Christians to be ‘directly discriminatory’ and therefore without legal justification. This has been the case even when the policy of refusing double beds to unmarried couples has been applied to the opposite-sex unwed as to the same-sex unwed. When there is a case that the action is only indirectly discriminatory — in which case the law allows potential justifications for discrimination — English jurisprudence has been severely against any possible arguments, finding, for instance, that the lack of express exemptions and the capability of a Christian simply to resign from their job rather than compromise their beliefs, gives ample protection. Constant rulings to this effect are leading to the freezing-out of Christians from jobs and public life.

Baroness Hale does not engage with this problem (although Parliament has: consider, for example, the specific protections for faith schools, who can defend their ethos from secular dilution, or for medical professions faced with complicity in abortion) but instead contrasts EU law with the European Convention on Human Rights and Fundamental Freedoms. The ECHR posits positive protections for religious beliefs and practices (Article 9) and private life (Article 8), whereas EU law prohibits discrimination under both heads of sexual orientation and religion. EU law arises from the current Treaty of European Union between some 28 states; the Convention, on the other hand, has some 47 states party to it. There are some key differences between the two corpuses: the Convention usually protects a person or entity against the state and is rarely useable against another person (legal or natural) although its application is wide, whereas EU law covers employment, occupation and training in both the private and public sector for the purpose of establishing a common market in labour.

Although she does not quite put it this way, Lady Hale notes that the Convention allows more flexibility in its interpretation. Discrimination may be justified in the context of human rights when it is a proportionate response to a legitimate aim, although some areas require stronger justifications than others. “Sexual orientation falls into the category requiring ‘’weighty reasons” to justify a difference in treatment” she notes, yet:

 How much more satisfactory it would be, I have suggested, if there were to be a general defence of justification in discrimination law, so that courts and tribunals could get down to addressing the real issues – legitimate aim, rational connection, proportionality – rather than looking for distinctions which mean that they hold there was no discrimination at all. The problem has become more acute now that we have so many more protected characteristics which may well conflict with one another, in particular religious belief and sexual orientation.

What legal tools can be applied to carve out a less rigid understanding of the relationship between anti-discrimination measures? Lady Hale’s conclusion is that, “instead of all the technicalities which EU law has produced”, it would be

 [a] great deal simpler if we required the providers of employment, goods and services to make reasonable accommodation for the religious beliefs of others. We can get this out of the ECHR approach but not out of our anti-discrimination law (although it is well established there in relation to disability).

What would this legal test look like? Adopting the “powerful minority” of dissenting judges in a recent ECtHR decision, Francesco Sess v Italy (concerning a Jewish lawyer refused adjournment of his case to a decide which did not coincide with Jewish holy days), Lady Hale agreed that when deciding the proportionality of a restriction on the freedom to manifest religion, the “means which is least restrictive of rights and freedoms” must be adopted, so “seeking a reasonable accommodation may, in some circumstances, constitute a less restrictive means of achieving the aim pursued”.

This means “employers might have to make reasonable accommodation for the right of their employees to manifest their religious beliefs and suppliers of services might have to make reasonable accommodation for the right of their would-be customers to use them.”

Whilst a reasonable accommodation test would be better than the status quo, where measures prohibiting discrimination against Christians will almost always lose as a matter of law, the main objection is that it is far from certain whether it would be sufficient in practice to alter the balance as it currently stands. Lady Hale cites two cases before the British Columbia Human Rights Tribunal which were discussed in one of the B&B cases, Preddy v Bull, in arguments before the UK Supreme Court.

The BCHRT cases concerned, firstly, the Catholic Knights of Columbus, who hired their hall to a lesbian couple for a reception after their marriage. The letting was cancelled when the Knights found out about the purpose of the rental. The tribunal “accepted that the Knights could not be compelled to act in a manner contrary to their core belief that same-sex marriages were wrong” but because “they did not consider the effect their actions would have on the couple, did not think of meeting them to explain the situation and apologize, or offer to reimburse them for any expenses they had incurred or to help find another solution”, the Knights “failed in their duty of reasonable accommodation… In effect, they did not appreciate the affront to the couple’s human dignity and do their best to soften the blow.” In the other case, Christians who cancelled the booking of a gay couple failed in their duty of reasonable accommodation “in the offensive manner of the cancellation and the failure to explore alternatives”.

Do we really want to see Christians lose their rights to manifest their deeply-held beliefs just because they failed to apologise correctly? Whilst the cancellations might have been rude, surely that rudeness in and of itself cannot trump the otherwise reasonable right they have to act in accord with their formed conscience, in ways recognised and supported by millions of people around the world? The precise interpretation of facts in a broader balance lies at the heart of legal activity. Baroness Hale herself sees this problem:

I wonder whether that is something of a relief or whether we would be better off with a more nuanced approach. I find it hard to believe that the hard-line EU law approach to direct discrimination can be sustainable in the long run. But I am not sure how comfortable I would be with the sort of balancing exercise required by the Canadian approach. At all events, it is fascinating that a country with an established church can be less respectful of religious feelings than one without.

 And make no mistake: if there were to be a reasonable accommodation test, it would be used in more and more situations. As the UK Supreme Court showed in its recognition of Scientology as a religion, English law reduces protections for conventional and orthodox religious belief while at the same time widening the category of beliefs which fall to be protected as religious.

Lady Hale’s speech should be welcomed for its recognition that Christians in Britain are often in tricky legal positions. She doesn’t accept that religious belief is worthy of any special protection just because it is religious (hence the snarky aside about “a country with an established church”, above) and she echoes Lord Justice Laws’ famous retort to George Carey, the former Archbishop of Canterbury, when Carey criticised the courts for failing to recognise the privileges of established Christianity (“there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content,” said Laws. “The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves.”) But her logic, subtle and incremental as it is, may help tip the scales back towards protecting Christians living and working in the secular world.

[Peter Smith is a barrister]